LUBA1996-104 - Marcott Holdings, Murryhill Thriftway
Jun-10-96 01:45P Newberg Legal 503 537 1277 P-01
City of
City Manager 414 E. First St.
(503) 538-9421 Newberg. Oregon 97132
City Attorney F A X COVER SHEET City FAX
(503) 537-1208 (503) 538-5393
TRANSMITTING T0:
R ~br rt qcLrCL
FAX NUMBER: LDle)LI - '-7oD9 -7
FROM: Terrence D. Mahr
City Attorney
FAX No.: (503)537-1277
DATE: (.D I C) LD
TIME:
NUMBER OF PAGES:
(Including Cover Sheet)
Message:
Ll~ moo, Q~-~p~
F. VEGALIWPSFILESIhORMSITDWAKCYR
Building: 537-1240 • Community Development: 537-1210 Finance: 537-1201 Fire: 538-7441
Library: 538-7323 • Municipal Court: 537-1203 • Police: 538-8321 Public Works: 537-1214 • Utilities: 537-1205
"Working Together For A Better Comm unity-S erious About Service"
Jun-10-96 01:45P Newberg Legal 503 537 1277 P.02
c ')4
O n
t
I.AND USF
13()A1\' 1) 01.
June 5, 1996 A 11 FAI_S
John W.',SKonkwiler
Attorn at Law
1342 72nd Avenue
Tigard, OR 97223
RE: Marcott Holdings, Inc. v. Tigard
LUBA No. 96-104
Dear Mr. Shonkwiler:
This is to advise you that your motion to intervene in the
above appeal was received by the Board on June 5, 1996.
ORS 197.830(9)(b), requires that LUBA provide the following
notide of the option to enter into mediation when a motion to
intervene is filed.
Notice: Pursuant to ORS 197.860, all parties to a LUBA
appeal may at any time stipulate that the appeal
proceeding be stayed to allow the parties to enter into
mediation- Mediation information and assistance can be
obtained from Donna Silverberg or Dale Blanton at the
Department of Land Conservation and Development,
telephone 373-0050.
Very truly yours,
D. Renee Young
Administrative Specialist
L//cc: Jeffrey L. Kleinman
Terrence Mahr
rd~a.
30h State hbrarv i3kh'
;0 Winter Street NF
Salem, ()I; 97310
(301) 37:-L'_hi (VniCClm)
O'DONNELL R.AMIS CREW
CORRIGAN & BACHRACH
JEFF H. BACHRACH CLACKAMAS COUNTY OFFICE
THEODORE W. BAIRD ATTORNEYS LAW
1727 N.W. Hoyt yt street 181 N. Grant, Suite 202
PAMELA J. BEERY Portland, Oregon 97209 Canby, Oregon 97013
MARK L. BUSCH TELEPHONE: (503) 266-1149
DOMINIC G. COLLETTA" TELEPHONE: (503) 222-4402
CHARLES E. CORRIGAN* FAX: (503) 243-2944
STEPHEN F. CREW VANCOUVER, WASHINGTON OFFICE
PAUL C. ELSNER First Independent Place
GARY F. FIRESTONE' 1220 Main Street, Suite 570
WILLIAM E. GAAR Pi 1 eCF REPLY TO PORTLAND OFFICE Vancouver, Washington 98660-2964
G. FRANK HAMMOND• TELEPHONE: (360) 699-7287
KENNETH D. HELM FAX: (360) 699-7221
MALCOLM JOHNSON' June 28, 1996
MARK P. O'DONNELL
TIMOTHY V. RAMIS JAMES M. COLEMAN
WILLIAM J. STALNAKER SUSAN J. WIDDER
SPECIAL COUNSEL
• ALSO ADIarTD TO PRACnCE IN WASENGTON
^ ALSO ADMTTFD TO PRACnCE IN CAI]PORNIA
M/SW nkwiler
Aaw
1nd Avenue
T7223
RE: Marcott Holdings, Inc. v. City of Tigard
LUBA No. 96-104
Dear John:
Our office was recently served with a copy of the record in this proceeding.
Based on direction from Bill Monahan, City Administrator for the City of Tigard, our firm will
not be taking a position to actively defend this LUBA appeal. This is consistent with our past
practice of allowing the developer/applicant to carry the burden of defending LUBA appeals unless
City codes or interpretations are uniquely affected in any given case.
Also, as you are aware, Jeff Kleinman has asserted a conflict against our office in this matter.
Terry Mahr represented the City at the last Council hearing for that reason. I anticipate following
receipt of the petition for review that I will have only a coordinative role in assisting the City with
a decision as to how active a defense to make, and in the transition of the defense to another
attorney.
O'DONNELL RAMIS CREW
CORRIGAN & BACHRACH
Mr. John Shonkwiler, Esq.
June 28, 1996
Page 2
I hope the above is clear and that we're all on the same page as to the defense of this case; please
let me know if you have any questions or concerns.
Sincerely,
Pamela J. Beery
PJB/mmd
cc: Terry Mahr, Esq.
Bill Monahan, City Administrator
Jeff Kleinman, Esq.
Jun-25-96 03:28P Newberg Legal 503 537 1277 P-01
City of
fie
City Manager 414 E. First St.
(503) 538-9421 Newberg. Oregon 97132
City Attorney F A X COVER SHEET City FAX
(503) 537-1208 (503) 538-5393
TRANSMITTING TO: 0-coAge-i o , UV ~~1~ 1
C " Re c r kr Tiga r6-
FAX NUMBER: L4 - -i Qq -
FROM: Terrence D. Mahr
City Attorney
FAX No.: (503)537-1277
DATE: ( 0
NUMBER OF PAGES:
(Including Cover Sheet)
Message:
~i~: (Yl car _Ott_- NAO LdL~ ( , ~1 nC . V Tigard
9 C)
F. % EGALIWPSFILFSVFORMSITD,'AFACCVR
- Building: 537-1240 • Community Development: 537-I210 • Finance: 537-1201 • Fire: 538-7441
Library: 538-7323 • Municipal Court: 537-1203 • Police: 538-8321 • Public Works: 537-1214 • Utilities: 537-1205
"Working Together For A Better Community-Serious About Service"
Jun-25-96 03:28P Newberg Legal 503 537 1277 P_02
UrEgon
LAND USE
BOARD OF
June 24, 1996 AI'I'EALS
Jeffrey L. Kleinman
Attorney at Law
1207 SW Sixth Avenue
Portland, OR 97204
Terrence Mahr
Tigard City Attorney
414 E. 1st Street
Newberg, OR 97132
John W. Shonkwiler
Attorney at Law
13425 SW 72nd Avenue
Tigard, OR 97223
RE: Marcott Holdings, Inc. v. Ti d
LUBA No. 96-104
To the Parties:
We are in receipt of the record transmittal for the above-
captioned appeal. We will refer to the Board's Procedural
Rules for the calculation of the briefing schedule.
The petition for review is due twenty-one days after receipt
of the record by the Board. The respondent's brief is due
forty-two days after receipt of the record. The record was
received by the Board on June 21, 1996.
Very truly yours,
P. 67,
D. Renee Young
Administrative Specialist
306 State Library Bldg.
250 Winter Street NE
Salem, OR 97310
(503) 373-1265 (Voice/TTY)
.Jun-07-96 07_36A Newberg Legal 503 537 1277 P-01
Memorandum
To: Ms. Catherine Wheatley,- City of Tigard Facsimile:
1325 SW Hall Blvd. (503) 684-7297
Tigard, Oregon 13 pages
CC: Bill Monahan, City Manager
Richard Bewersdorff, Senior Planner (X316)
From: Terrence D. Mahr
Date: June 7, 1996
Subject: Albertson's Remand Hearing
Please provide copies of this fax to Mr. Monahan and Mr. Bewersdorff.
Attached is information I received concerning the above referenced matter:
1. Notice of Intent to Appeal dated June 3, 1996 filed by Jeffrey L. Kleinman, attorney for
Marcott Holdings, Inc., et al.
2. Letter from the Land Use Board of Appeals (LUBA) dated June 4, 1996 setting out the
date the record is due - June 24, 1996.
3. Letter and Motion to Intervene from John W. Shonkwiler dated June 4, 1996, attorney
for Albertson's, Inc.
I would appreciate your providing me with the following information:
I . Confirm with Mr. Monahan Tigard attorneys' involvement
in overseeing the preparation of the record and compiling information, but
not brief the issues? Who is going to prepare the record?
2. Confirm with Mr. Bewersdorff that he will be coordinating the
Planning Department's portion of the record/brief. From the desk of
Terrence D. Mahr
Citv Attornev
City of Newberg
414 E. 1st Street
Nc%-bcr& OR 97132
503-537-12-18
FALEGAL.\Nv P5 FILES\TIGARD\NV'rMkTZ.v1EM Fax 503-537-1277
.Jun-07-96 07:36A Newberg Legal 503 537 1277 P_02
JEFFREY L. KLEIN-MAY
ATTORNEY AT LAW
THE AMBASSADOR
1207 SAV. SIXTH AVENUE
PORTLAND. OREGON 97204
TELEPHONE (503) 248.0808
FAX (503) 228-4529
June 3, 1996
Via Messe a 'ce
Renee Youn
Land Use and of Appeals
Room 30 State Library Building
250 W' ter Street NE
Sal OR 97310
Re: Marcott Holdings, Inc.,
et al v. City of Tigard
Dear Renee:
Enclosed for filing please find an original and two (2) true
copies of Notice of Infant to Appeal in the abave matter. Also
enclosed is a check in the amount of $200, which comprises the
filing fee of $50 and a deposit for costs of $150.
Thank you for your courtesies.
Very truly yours,
ffrey Kleinman
JLK:ay
Enclosures
cc:' Terry Mahr, Esq.
John Shonkwiler, Esq.
Marcott Holdings, Inc.
Matt Marcott
Murrayhill Thriftway, Inc.
.Jun-07-96 07:36A Newberg Legal 503 537 1277 P_03
BEFORE THE LAND USE BOARD OF APPEALS
OF THE STATE OF OREGON
MARCOTT HOLDINGS, INC., MATT )
MARCOTT, and MURR.AYHILL )
THRIFTWAY, INC., )
LUBA No.
Petitioners, )
NOTICE OF INTENT
V. ) TO APPEAL
CITY OF TIGARD, )
Respondent. )
)
I.
Notice is hereby given that petitioners intend to
appeal that land use decision of respondent entitled, ordinance
No. 96-20, "An Ordinance Adopting Findings and Conclusions to
Approve a Comprehensive Plan Amendment and Zoning Map Amendment
Requested by Albertson's Incorporated (CPA 93-0009 and ZON 93-
0003)," and "A Final Order Including Findings and Conclusions
with Regard to a Remand of an Application for a Comprehensive
Plan Amendment, Zone Change, Site Development Review and Minor
Land Partition Applications Requested by Albertson's, Inc.," File
Nos. CPA 93-0009; ZON 93-0003; SDR 93-0014; and MLP 93-0013,
which for purposes of appeal became final on May 14, 1996. Said
land use decision involves respondent's approval on remand from
LUBA of a request for the following development approvals: (1)
Comprehensive Plan and Zone Change approval to redesignate
approximately eight acres of a 12 acre parcel from Medium-High
Density'Residential to Community Commercial on tax lot 200 and to
redesignate an approximately 6.93 acre parcel from Neighborhood
Page 1 - NOTICE OF INTENT TO APPEAL
Jun-07-96 07:37A Newberg Legal 503 537 1277 P_04
Commercial to Medium-High Density Residential on tax lot 100.
Zone changes accompanying the above plan changes include a zone
change from R-25 (PD) (Residential, 25 units/acre, Planned
Development) to C-C (Community Commercial) and C-N (Neighborhood
Commercial) to R-25 (Residential, 25 units/acre) ; (2) Site
Development Review approval to allow the construction of a 40,000
square foot grocery store and three smaller tenant pads of 1,200,
2,400, and 5,950 square feet adjoining the anchor tenant pad,
together with two 4,000 square foot stand alone tenant pads; and
(3) Minor Land Partition approval to divide the 12 acre parcel
into two parcels of approximately eight acres and 3.95 acres
each.
IZ.
Petitioners are represented by Jeffrey L. Kleinman,
1207 S.W. Sixth Avenue, Portland, Oregon 97204, telephone (503)
248-0808.
III.
Respondent has as its mailing address Tigard City Hall,
13125 SW Hall, Tigard, OR 97223, telephone (503) 639-4171, and
has as its legal counsel Terry Mahr, Acting City Attorney for
City of Tigard, City Attorney, City of Newberg, 414 E. 1st
Street, Newberg, OR 97132.
IV.
The applicant is Albertson's Inc. The applicant was
represented by John Shonkwiler, 13425 SW 72nd Avenue, Tigard, OR
97223, before the governing body.
Page 2 - NOTICE OF INTENT TO APPEAL
.Jun-07-96 07:37A Newberg Legal 503 537 1277 P_05
Other persons mailed written notice of the decision of
the respondent, as indicated by its records in this matter,
include:
(See Exhibit A, attached hereto and by this reference
incorporated herein.)
NOTICE:
Anyone designated in paragraph IV of this Notice who
desires to participate as a party in this case before the Land
Use Board of Appeals must file with the Board a Motion to
Intervene in this proceeding as required by OAR 661-10-050.
DATED: June 3,.1996.
c
Je r~y~ l Kleinman, OSB #74372
t0rney for PEtiti0ners
Page 3 - NOTICE OF INTENT TO APPEAL
Jun-07-96 07:37A Newberg Legal 503 537 1277 P_06
FROM: City of Tigard FROM: City of Tigard
City Administration City Administration
13125 SW Halt Blvd., Tigard, OR 97223 13125 SW Hall Blvd., Tigard, OR 97223
TO: TO:
Albertson's, Inc.
John Shonkwiier c/o Don Duncambe
Attorney at Law 17001 NE San Rafael
13425 SW 72nd Avenue Portland OR 97230
Tigard, OR 97223
PROM: City of Tigard FROM: City of Tigard
City Administration City Administration
13125 SW Hail Blvd., Tigard, OR 97223 1312S SW Hall Blvd., Tigard, OR 97223
TO: TO:
Terry Mahr, City Attorney Barbara Collins
City of Newberg 14158 SW Northview Drive
414 East First Street Tigard, OR 97223
Newberg OR 97132
FROM: City of Tigard FROM: City of Tigard
City Administration City Administration
13125 SW Hall Blvd., Tigard, OR 97223 13125 SW Hall Blvd., Tigard, OR 97223
TO: TO:
Scott Russell Jeff Meinni un
31291 Raymond Creek Road The Ambassador
Scappoose OR 97056 1207 SW Sixth Ave
Portland, OR 97204
~-ys .mss
EHIBIT ~
.
ray-+o AUrie
.Jun-07-96 07:37A Newberg Legal 503 537 1277 P_07
CERTIFICATE OF FILING
I hereby certify that on June 3, 1996, I filed the
original of this NOTICE OF INTENT TO APPEAL, together with two
copies, with the Land Use Board of Appeals, 306 State Library
Building, 250 Winter Street NE, Salem, OR 97310, by first class
mail.
Dated: June 3, 1996.
f einman, OSB #74372
tt a for Petitioners
CERTIFICATE OF SERVICE
I hereby certify that on June 3, 1996, I served a true
and correct copy of this Notice of Intent to Appeal on all
J
persons listed in paragraphs III and IV of this Notice pursuant
to OAR 661-10-015(2) by first class mail.
Dated: June 3, 1996.
( I z//1 -
Z ffr Kleinman, OSB #74372
torr(e for Petitioners
Page 4 - CERTIFICATE OF FILING AND SERVICE
.Jun-07-96 07:37A Newberg Legal 503 537 1277 P-08
C%6n
LAND USE
BOARD OF
June 4, 1996 APPEALS
Terrance Mahr
Tigard City Attorney
414 E. 1st Street
Newberg, OR 97132
RE: Marcott Hold-4-n. s, Inc. v. Tigard
LUBA No. 96-104
Dear Mr. Mahr:
This is to advise you that a Notice of Intent to Appeal was
filed on June 3, 1996, in the above matter and that OAR 661-
10-015 requires that service of the notice of intent to
appeal be made upon the respondent within 21 days after the
date of the lard use decisio. eirg appealed.
The record is to be pre re y respondent and transmitted to
the Board within 21 days of the date of such service.
Enclosed is a summary of the specifications for preparation
of the record as set out in OAR 66"1-10-025(4).
Notice: Pursuant to ORS 197.860, all parties to a LUBA
appeal may at any time stipulate that the appeal
proceeding be stayed to allow the parties to enter into
mediation. Mediation information and assistance can be
obtained from Donna Silverbe_g or Dale Bunton at the
Department of Land Corse-vation and Development,
te1ancc ne 373-00'02.
Very truly yours,
D. Renee Young
Administrati-Je Specialist
cc: Je=frey L. Kleinman
`~J4
Enc10sure
306 State Library Bldg.
250 Winter Street LE
Salem, OR 97310
(503) 373-1-265 (Voicei7Ti',
.Jun-07-96 07:38A Newberg Legal 503 537 2277 P.09
LAND USE BOARD OF APPEALS
RECORD SPECIFICATIONS
OAR 661-10-025(4)
The record submitted to LUBA, and any supplement or
amendment thereto, must be prepared in accordance with
OAR 661-10-025(4). Any record, or supplement or amendment
thereto, which does not conform to the requirements of
OAR 661-10-025(4), will not be accepted. The specifications set
out in OAR 661-10-025(4) are as follows:
[ ] Bound folder. The record must be in a
suitable folder and securely fastened.
OAR 661-10-025(4)(a)(A) and (C).
( ] Cover Page. The record must include a cover
page which includes the title of the case as it
appears in the notice of intent to appeal.
OAR 661-10-025(4) (a) (A) .
( ] Table of Contents. The record must include a
table of contents, listing each item contained
in the record and the page of the record where
the item begins. OAR 661-10-025(4)(a)(B).
( ] Oversized Exhibits. The record table of
contents must list large maps, tapes or other
documents retained by the local government which
will be submitted at oral argument.
OAR 661-10-025 (4) (a) (B) .
( ] Consecutive Page Numbers. The pages of the
record must be numbered consecutively.
OAR 661-10-025 (4) (a) (D) .
[ ] Order of Documents. The record must be
arranged in inverse chronological order, with
the most recent item o:, top.
OAR 661-10-025 (4) (a) (D) .
( J Certificates of Filing and Service. The
record must include a certificate of service
showing a copy of the record was served or.
petitioner(s). OAR 661 -10-07:(2)(c)(D). The
copy of the record serves on petitioner(s) must
include a certificate showing the date the
record was filed =Witz LUBA
OAR 661-10-075(2)(c)(C).
.Jun-07-96 07:39A Newberg Legal 503 537 1277 P_10
JOHN W. SHONXWILER, P.C.
Attorney at Lau,
13425 SW 72nd Avenue
Tigard, Oregon 97223
Fax 684-8971
Phone 624-09I7
June 4, 1996
Land Use Board of Appeals
State Library Building, Room 306
250 Winter Street NE
Salem, OR 97310
RE: Marcott Holdings, Inc. et al. v. City of Tigard
LUBA No. 96-104
Dear Clerk:
Enclosed please find a MOTION TO INTERVENE on behalf of Albertson's, Inc., for
filing in the above-described proceeding. Please call if you have any questions.
incerely,
W. SHONKWILE P. C.
1
John W. Shonkwiler
cc: Terry Mahr
Don Duncombe
Jeffrey L. Kleinman
Jun-07-96 07:39A Newberg Legal 503 537 1277 P-11
BEFORE THE LAND USE BOARD OF APPEALS -
OF THE STATE OF OREGON
)
MARCOTT HOLDINGS, INC., MATT
NIARCOTT, and MURR4YHILL }
THRIFTWAY, INC., ) LUBA NO. 96-104
Petitioners, )
V. }
CITY OF TIGARD, )
Respondent, )
and )
ALBERTSON'S, INC., )
}
Intervenor. )
MOTION TO INTERVENE
1.
Intervenor, ALBERTSON'S, INC., makes this motion to intervene on the side of the
Respondent, City of Tigard, in the above-described proceeding.
I I.
The Intervenor is entitled to intervene in the above proceeding as the intervenor was the
applicant for the land use decision that is being challenged by the Petitioners. In addition, the
Intervenor has an ownership interest in the property upon which the land use decision will be
I - ;MOTION TO INTERVENE JOHN W. SHONKWILER, P.C.
ATTORINEY AT LAW
13425 SW 72ND AVE.
TIGARD, OR 97223
Telephone: (503) 624-0917
Jun-07-96 07:39A Newberg Legal 503 537 1277 P-12
implemented if upheld, and the Intervenor remonstrated at the public hearing for the challenged
land use decision-
This motion has been filed as soon as was practically possible after the filing of the
Notice of Intent to Appeal. Intervenor shall be able to comply with the briefing schedule date to
be set for the Respondent.
fs.
DATED this day of QUAAJ ,1996.
U Respectfully submitted,
JOHN W. SHONKWILER, P.C.
ohn W Snonkwiler, OSO No. 75337
Of Attorneys for Intervenor
Albertson's, Inc.
2 - IMOTION TO INTERVENE JOHN W. SHONKWILER. P.C.
ATTORNEY AT LAW
i;421 SW 72ND AVE.
TIGARD. OR 97223
Telephone: (:03) 624-0917
Jun-07-96 07:40A 'Newberg Legal 503 537 1277 P.13
CERTIFICATE OF SERVIC
1, JOHN W. SHONKWILER, hereby certify that I served a foregoing true copy of the
enclosed MOTION TO INTERVENE by first class snail and by placing into the United States
Mail, with postage prepaid, in Tigard, Oregon this ~ day of ,1996.
r
upon the parties/attorney of record, to their last known addresses:
Terry Mahr, Acting City Attorney
City of Newberg
414 East I st Street
Newberg, OR 97132
Attorney for Respondent City of Tigard
Jeffrey L. Kleinman
Attorney at L'aw
1207 SW Sixth Ave.
Portland, OR 97204
Attorney for Petitioners
l
ohn W. Shonkwiler, OSB No. 75337
~Of Attomeys for Intervenor
Albertson's, Inc.
1 - CERTIFICATE OF SERVICE
Jun-07-96 07:36A Newberg Legal 503 537 1277 P-01
Memorandum
To: Ms. Catherine Wheatley? City of Tigard Facsimile:
1325 SW Hall Blvd. (503) 684-7297
Tigard, Oregon 13 pages
CC: Bill Monahan, City Manager
Richard Bewersdorff, Senior Planner (X316)
From: Terrence D. Mahr
Date: June 7, 1996
Subject: Albertson's Remand Hearing
Please provide copies of this fax to Mr. Monahan and Mr. Bewersdorff.
Attached is information I received concerning the above referenced matter:
1. Notice of Intent to Appeal dated June 3, 1996 filed by Jeffrey L. Kleinman, attorney for
Marcott Holdings, Inc., et al.
2. Letter from the Land Use Board of Appeals (LUBA) dated June 4, 1996 setting out the
date the record is due - June 24, 1996.
3. Letter and Motion to Intervene from John W. Shonkwiler dated June 4, 1996, attorney
for Albertson's, Inc.
I would appreciate your providing me with the following information:
1. Confirm with Mr. Monahan Tigard attorneys' involvement
in overseeing the preparation of the record and compiling information, but
not brief the issues? Who is going to prepare the record?
2. Confirm with Mr. Bewersdorff that he will be coordinating the
Planning Department's portion of the record/brief. from the desk of
Terrence D. Mahr
City Attomey
City of Newberg
414 E. 1st Street
Newberg, OR 97132
503-537-1248
F.\LEGAL\WPSFILESITIGARD\WHEAT2.MEM Fax: 503-537-1277
a
Jun-07-96 07:36A Newberg Legal 503 537 1277 P_02
JEFFREY L. KLEINMAN
ATTORNEY AT LAW
THE AMBASSADOR
1207 S.W. SIXTH AVENUE
PORTLAND. OREGON 97204
TELEPHONE (503) 248-0808
FAX (5031228-4529
June 3, 1996
Vi Messe r erv'ce
Renee Youn
Land Use and of Appeals
Room 30 State Library Building
250 W' ter Street NE
Sal , OR 97310
Re: Marcott Holdings, Inc.,
et al v. City of Tigard
Dear Renee:
Enclosed for filing please find an original and two (2) true
copies of Notice of Intent to Appeal in the abave matter. Also
enclosed is a check in the amount of $200, which comprises the
filing fee of $50 and a deposit for costs of $150.
Thank you for your courtesies.
Very truly yours,
i
ey Kleinman
;f f-;.
JLK: a V
Y
Enclosures /
cc: Terry Mahr, Esq.
John Shonkwiler, Esq.
Marcott Holdings, Inc.
Matt Marcott
Murrayhill Thriftway, Inc.
Jun-07-96 07:36A Newberg Legal 503 537 1277 P.03
BEFORE THE LAND USE BOARD OF APPEALS
OF THE STATE OF OREGON
MARCOTT HOLDINGS, INC., MATT )
MARCOTT, and MURRAYHILL )
THRIFTWAY, INC., )
LUBA No.
Petitioners, )
NOTICE OF INTENT
V. ) TO APPEAL
)
CITY OF TIGARD, )
Respondent. )
I.
Notice is hereby given that petitioners intend to
appeal that land use decision of respondent entitled, ordinance
No. 96-20, "An Ordinance Adopting Findings and Conclusions to
Approve a Comprehensive Plan Amendment and Zoning Map Amendment
Requested by Albertson's Incorporated (CPA 93-0009 and ZON 93-
0003)," and "A Final Order Including Findings and Conclusions
with Regard to a Remand of an Application for a Comprehensive
Plan Amendment, Zone Change, Site Development Review and Minor
Land Partition Applications Requested by Albertson's, Inc.," File
Nos. CPA 93-0009; ZON 93-0003; SDR 93-0014; and MLP 93-0013,
which for purposes of appeal became final on May 14, 1996. Said
land use decision involves respondent's approval on remand from
LUBA of a request for the following development approvals: (1)
Comprehensive Plan and Zone Change approval to redesignate
approximately eight acres of a 12 acre parcel from Medium-High
Density Residential to Community Commercial on tax lot 200 and to
redesignate an approximately 6.93 acre parcel from Neighborhood
Page 1 - NOTICE OF INTENT TO APPEAL
Jun-07-96 07:37A Newberg Legal 503 537 1277 P_04
Commercial to Medium-High Density Residential on tax lot 100.
Zone changes accompanying the above plan changes include a zone
change from R-25 (PD) (Residential, 25 units/acre, Planned
Development) to C-C (Community Commercial) and C-N (Neighborhood
Commercial) to R-25 (Residential, 25 units/acre) ; (2) Site
Development Review approval to allow the construction of a 40,000
square foot grocery store and three smaller tenant pads of 1,200,
2,400, and 5,950 square feet adjoining the anchor tenant pad,
together with two 4,000 square foot stand alone tenant pads; and
(3) Minor Land Partition approval to divide the 12 acre parcel
into two parcels of approximately eight acres and 3.95 acres
each.
IZ.
Petitioners are represented by Jeffrey L. Kleinman,
1207 S.W. Sixth Avenue, Portland, Oregon 97204, telephone (503)
248-0808.
III.
Respondent has as its mailing address Tigard City Hall,
13125 SW Hall, Tigard, OR 97223, telephone (503) 639-4171, and
has as its legal counsel Terry Mahr, Acting City Attorney for
City of Tigard, City Attorney, City of Newberg, 414 E. 1st
Street, Newberg, OR 97132.
IV.
The applicant is Albertson's Inc. The applicant was
represented by John Shonkwiler, 13425 SW 72nd Avenue, Tigard, OR
97223, before the governing body.
Page 2 - NOTICE OF INTENT TO APPEAL
Jun-07-96 07:37A Newberg Legal 503 537 1277 P_05
Other persons mailed written notice of the decision of
the respondent, as indicated by its records in this matter,
include:
(See Exhibit A, attached hereto and by this reference
incorporated herein.)
NOTICE:
Anyone designated in paragraph IV of this Notice who
desires to participate as a party in this case before the Land
Use Board of Appeals must file with the Board a Motion to
Intervene in this proceeding as required by OAR 661-10-050.
DATED: June 3,.1996.
c
JAez? ay K leinman, OSB #74372
A me for Petitioners
Page 3 - NOTICE OF INTENT TO APPEAL
Jun-07-96 07:37A Newberg Legal 503.537 1277 P_06
ni 5HAIBIW., Tigard El City of Tigard
istration City Administration
125 Tigard, OR ;97223 5 SW Hall Blvd., Tigard, OR 97223
TO: TO:
Aibertson's, Inc.
John Shonkwfler c/o Don Duncombe
Attorney at Law 17001 NE San Rafael
13425 SW 72nd Avenue Portland OR 97230
Tigard, OR 97223
FROM: City of Tigard tI:; City of Tigard
City Administration City Administration
13125 SW Hail Blvd., Tigard, OR 97223 12S SW Hal Blvd., Tigard, OR 97223
1
TO: TO:
Terry Mahr, City Attorney Barbara Collins
City of Newberg 14158 SW Northview Drive
414 East First Street Tigard, OR 97223
Newberg OR 97132
FROM: City of Tigard FROM: City of Tigard
City Administration City Administration
13125 SW Hall Blvd., Tigard, OR 97223 13125 SW Hall Btvd., Tigard, OR 97223
TO: TO:
Scott Russell ]eff 1Qein®an
31291 Raymond Creek Road The Ambassador
Scappoose OR 97056 1207 SW Sixth Ave
Portland, OR 97204
UHIBIT
Jun-07-96 07_37A Newberg Legal 503 537 1277 P_07
CERTIFICATE OF FILING
I hereby certify that on June 3, 1996, I filed the
original of this NOTICE OF INTENT TO APPEAL, together with two
copies, with the Land Use Board of Appeals, 306 State Library
Building, 250 Winter Street NE, Salem, OR 97310, by first class
mail.
Dated: June 3, 1996.
all , lepjirffp4Y V.-'-Kleinman, OSB #74372
tt a for Petitioners
CERTIFICATE OF SERVICE
I hereby certify that on June 3, 1996, I served a true
and correct copy of this Notice of Intent to Appeal on all
L
persons listed in paragraphs III and IV of this Notice pursuant
to OAR 661-10-015(2) by first class mail.
Dated: June 3, 1996.
41-
f . Kleinman, OSB #74372
Zf
to for Petitioners
Page 4 - CERTIFICATE OF FILING AND SERVICE
Jun-07-96 07:37A Newberg Legal 503 537 1277 P.08
co( (:74q-~
n
LAND USE
BOARD OF
June 4, 1996 APPEALS
Terrance Mahr
Tigard City Attorney
414 E. 1st Street
Newberg, OR 97132
RE: Marcott Holdings, Inc. v. Tigard
LUBA No. 96-104
Dear Mr. Mahr:
This is to advise you that a Notice of Intent to Appeal was
filed on June 3, 1996, in the above matter and that OAR 661-
10-015 requires that service of the notice of intent to
appeal be made upon the respondent within 21 days after the
date of the land use decisio g appealed.
The record is to be pre re y
respondent and transmitted to
4
the Board within 21 days of the date of such service.
Enclosed is a summary of the specifications for preparation
of the record as set out in OAR 661-10-025(4).
Notice: Pursuant to ORS 197.860, all parties to a LUBA
appeal may at any time stipulate that the appeal
proceeding be stayed to allow the parties to enter into
mediation. Mediation information and assistance can be
obtained from Donna Silverberg or Dale Blanton at the
Department of Land Conservation and Development,
telephone 373-0062.
Very truly yours,
0- V"'7'
D. Renee Young
Administrative Specialist
cc: Jeffrey L. Kleinman
Enclosure
306 State Library Bldg.
250 Winter Street NE
Salem, OR 97310
(503) 373-1265 (Voice,/TTY)
Jun-07-96 07:38A Newberg Legal 503 537 1277 P_09
LAND USE BOARD OF APPEALS
RECORD SPECIFICATIONS
OAR 661-10-025(4)
The record submitted to LUBA, and any supplement or
amendment thereto, must be prepared in accordance with
OAR 661-10-025(4). Any record, or supplement or amendment
thereto, which does not conform to the requirements of
OAR 661-10-025(4), will not be accepted. The specifications set
out in OAR 661-10-025(4) are as follows:
( ] Bound folder. The record must be in a
suitable folder and securely fastened.
OAR 661-10-025(4)(a)(A) and (C).
[ ] Cover Page. The record must include a cover
page which includes the title of the case as it
appears in the notice of intent to appeal.
OAR 661-10-025 (4) (a) (A).
[ ] Table of Contents. The record must include a
table of contents, listing each item contained
in the record and the page of the record where
the item begins. OAR 661-10-025(4)(a)(B).
[ ] Oversized Exhibits. The record table of
contents must list large maps, tapes or other
documents retained by the local government which
will be submitted at oral argument.
OAR 661-10-025(4)(a)(B).
[ ] Consecutive Page Numbers. The pages of the
record must be numbered consecutively.
OAR 661-10-025(4)(a)(D).
[ ] Order of Documents. The record must be
arranged in inverse chronological order, with
the most recent item on top.
OAR 661-10-025(4)(a)(D).
[ ] Certificates of Filing and Service. The
record must include a certificate of service
showing a copy of the record was served on
petitioner(s). OAR 661-10-075(2)(c)(D). The
copy of the record served on petitioner(s) must
include a certificate showing the date the
record was filed with LUBA.
OAR 661-10-075(2) (c) (C)
Jun-07-96 07:39A Newberg Legal 503 537 1277 P.10
JOHN W. SHONKWILER, P. C.
Attorney at Lain
13425 SW 72nd Avenue
Tigard, Oregon 97223
Fax 684-8971
Phone 624-0917
June 4, 1996
Land Use Board of Appeals
State Library Building, Room 306
250 Winter Street NE
Salem, OR 97310
RE: Marcott Holdings, Inc. et al. v. City of Tigard
LUBA No. 96-104
Dear Clerk:
Enclosed please find a MOTION TO INTERVENE on behalf of Albertson's, Inc., for
filing in the above-described proceeding. Please call if you have any questions.
Yincerely,
W. SHONKWILEP. C.
W. Shonkwiler
cc: Terry Mahr
Don Duncombe
Jeffrey L. Kleinman
Jun-07-96 07:39A Newberg Legal 503 537 1277 P-11
BEFORE THE LAND USE BOARD OF APPEALS
OF THE STATE OF OREGON
)
MARCOTT HOLDINGS, INC., MATT
MARCOTT, and MURRAYHILL )
THRIFTWAY, INC., ) LUBA NO. 96-104
Petitioners, )
V. )
CITY OF TIGARD, )
Respondent, )
and )
ALBERTSON'S, INC., )
Intervenor. }
MOTION TO INTERVENE
1.
Intervenor, ALBERTSON'S, INC., makes this motion to intervene on the side of the
Respondent, City of Tigard, in the above-described proceeding.
I I.
The Intervenor is entitled to intervene in the above proceeding as the intervenor was the
applicant for the land use decision that is being challenged by the Petitioners. In addition, the
Intervenor has an ownership interest in the property upon which the land use decision will be
I - MOTION TO INTERVENE JOHN W. SHONKWILER, P.C.
ATTORNEY AT LAW
13425 SW 72ND AVE.
TIGARD, OR 97223
Telephone: (503) 624-0917
Jun-07-96 07:39A Newberg Legal 503 537 1277 P-12
implemented if upheld, and the Intervenor remonstrated at the public hearing for the challenged
land use decision.
III.
This motion has been filed as soon as was practically possible after the filing of the
Notice of Intent to Appeal. Intervenor shall be able to comply with the briefing schedule date to
be set for the Respondent.
DATED this day of QUAV ,1996.
U Respectfully submitted,
JOHN W. SHONKWILER, P.C.
ghn W Shonkwiler, OSB No. 75337
Of Attorneys for Intervenor
Albertson's, Inc.
2 - MOTION TO INTERVENE JOHN W. SHONKWILER, P.C.
ATTORNEY AT LAW
13425 SW 72ND AVE.
TIGARD, OR 97223
Telephone: (503) 624-0917
Jun-07-96 07_40A Newberg Legal 503 537 1277 P_13
CERTIFICATE OF SERVICE
I, JOHN W. SHONKWILER, hereby certify that I served a foregoing true copy of the
enclosed MOTION TO INTERVENE by first class mail and by placing into the United States
~i
Mail, with postage prepaid, in Tigard, Oregon this day of ,1996,
upon the parties/attorney of record, to their last known addresses:
Terry Mahr, Acting City Attorney
City of Newberg
414 East I st Street
Newberg, OR 97132
Attorney for Respondent City of Tigard
Jeffrey L. Kleinman
Attorney at Law
1207 SW Sixth Ave.
J
Portland, OR 97204
Attorney for Petitioners
ohn W. Shonkwiler, OSB No. 75337
Of Attorneys for Intervenor
Albertson's, Inc.
1 - CERTIFICATE OF SERVICE
BEFORE THE LAND USE BOARD OF APPEALS
OF THE STATE OF OREGON
MARCOTT HOLDINGS, INC. )
MATT MARCOTT, and )
MURRAYHILL THRIFTWAY, Inc. ) LUBA NO.
96-104
• Petitioner, )
vs. )
Index and
CITY OF TIGARD, ) Record
Respondent. )
ALBERTSON'S, INC./DUNCOMBE - LAND USE BOARD OF APPEALS REMAND
Comprehensive Plan Amendment (CPA) 93-0009/Zone Change (ZON) 934003
Site Development Review (SDR) 93-0014/Minor Land Partition (MLP 93-0013)
(CITY OF TIGARD ORDINANCE NO. 96-20)
CITY OF TIGARD PUBLIC HEARING RECORD
FOR LAND USE BOARD OF APPEALS (LUBA NO. 96-104)
I, Catherine Wheatley, City Recorder for the City of Tigard, certify that the contents within
are a true copy of the record.
c - -tJO 1 .0 1 Q(o
Catherine Wheatley, City Reco er Date
Certified to be a True Copy of
Original on file"l'yf+,h W.U-&4
By:-:Z ~ 2 W 4
City, ecorder - City of Tigar
Date: a v I4G (o
i-
TABLE OF CONTENTS
Statement Certifying the Record of Proceeding i
Table of Contents i -
Exhibit No.
1 Affidavit of Mailing (Final Order mailed
May 21, 1996 - Ordinance No. 96-20 1-27
(SDR 93-0009/PDR 93-0006)
2 Affidavit of Publication - May 14, 1996 Council Meeting 28
3 Excerpt of Council Minutes - May 14, 1996 29 - 31
4 Agenda for the May 14, 1996 Council Meeting ................................32 - 36
5 Council Agenda Summary Report for the May 14, 1996
Council Meeting, Item 6 37 - 79
• 6 Affidavit of Publication (April 23, 1996 Council
Agenda Synopsis) .80-81
7 Affidavit of Publication (Public Hearing Notice - CPA
96-0009 Albertson's) ..................................................................82 - 84
8 Council Minutes (Excerpt) - April 23, 1996 85 - 94
9 Agenda for the April 23, 1996 Council Meeting 95 - 102
10 Testimony Sign-up Sheets from the April 23, 1996 Council
Meeting, Item 12 103 105
11 Council Agenda Summary Report for the April 23, 1996
Council Meeting - Item 12 106 - 156
ii
•
Exhibit No.
•
12 Memorandum to Mayor and Members of the Tigard City 157 - 163
Council from Jeffrey L. Kleinman Regarding Albertson's,
Inc....
13 Notice of Final Decision - By City Council
Marge Krueger/Russ Krueger - CPA 1-86, ZC 3-86 164 - 169
14 Memorandum Katy Dorsett, NPO 7 Secretary from Jerry Offer
Development Review Planner (dated October 17, 1991) Regarding
Albertson's CPA/ZC ......................................................................170
15 Letter to Ed Murphy, Tigard Planning Department from James N.P.
Hendryx, Planning Manager, City of Beaverton .....................................171
- Large Exhibits on File at Tigard City Hall:
2 Drawings: "Perspective" - Prepared by Musil Perkowitz Ruth
1 Drawing: "Lighting Plan" - Prepared by Musil Perkowitz Ruth
Site Plan: - Musil Perkowitz Ruth
Site Plan & Elevation - Northview/Walnut Apartments - Prepared by
Land Development Consultant's, Inc.
- Audio tapes of Tigard City Council meetings can
be made available upon request
iii
• AFFIDAVIT OF MAILING
STATE OF OREGON )
County of Washington )
City of Tigard )
I, ~'~G,(1 W t+l 6'1 . hereby certify:
Please Print
That I am a ?j ' for the City of Tigard, Oregon..
That I served notice of the Tigard City Council y r~
W-6~-
Owhich the attached * a copy (Marked Exhibit A) upon each of the following named
5; ' &
persons on the a 1 day of 19 ?~zl by mailing to each of
said notice is hereto
them at the address shown on the attached list (Marked Exhibit )
9
attached, and deposited in the United States Mail on the S2~- day of
19~ postage prepaid.
Prepared Notice
Subscribed and sworn to before me this 11`s day of m 19 56_.
r
~ OFFICIAL SEAL
c:` M JO ANN HAYES Notarylic of Oregon
NOTARY PUBLIGOREGON
COMMISSION NO. U2148 My Commission Expires: /Ad,_T [ Cl 15
MY COMMISSION EXPIRES MAY QS. 1999
h:\1ogin\cad y\afofmai1
EXHIBIT I
Page I of
Pages
i
CRY OF nGARD
crrY OF TIGABD
Washington County, Oregon
NOTICE OF FINAL ORDER ra BY THE CITY COUNCIL
Case Number(s): COMPREHENSIVE PLAN AMENDMENT (CPA) 93-000920NE CHANGE (ZON) 93-00031SITE
DEVELOPMENT REVIEW (SOR) 93-00141MINOR LANO PARTITION (MLP) 93-0013
+cvc r~Y~cn, .~c.,~~... ~
Case Name(s): w L BERTSON'S INC D INCOM13E t I IRA REMAND
Name of Owner. Magary Christ
Name of Applicant Albertson's Inc mI Incombe
Address of Applicant 17001 NE San Rafael - City. Portland State: Omgon Zip: 97230
Address of Property: Southeast and Northeast tiuad ants of the intersecfion of SW Scholts Ferry Road and
SW_ Walnut Street_ City: Tigard State: Oregon Zip: 97223
Tax Map 8 Lot No(s).:WCTM 2S1 468. Tax Lots 100 and 200
Requ ➢ A request to consider an Oregon Land Use Board of Appeal (LUBA) remand for the
following development approvals:
• Comprehensive Plan and Zone Change approval to re-designate approximately eight acres of a
11.95 acre parcel from Medium-High Density Residential to Community Commercial on Tax Lot
200 and to re-designate an approximately 6.93 acre panel from Neighborhood Commercial to
Medium-High Density Residential on Tax Lot 100. The Zone Changes accompanying the above
plan changes include a change from R-12 (PO) (Residential, 12 units per acre, Planned
Development) and R-25 (PD) (Residential. 25 units per acre, Planned Development) • to C-C
(Community Commercial) and from C-N (Neighborhood Commercial) to R-25 (Residential, 25
units per acre);
2 Site Development Review approval to allow the construction of a 40,000 square foot stand-alone
tenant pad and three smaller tenant pads of 1,200, 2,400 and 5,950 square feet adjoining the
anchor pad. The applicant also proposes two 4,000 square foot stand-alone tenant pads; and
3. Minor Land Partition approval to divide the. 11.95 acre parcel into two parcels of approximately
eight acres and 3.95 acres each.
The October 20, 1995 LUBA remand required City Council to receive and make additional findings on the
following issues:
1. Transportation Tigard Comprehensive Plan Policy (TCP) 8.1.3 (fHh) and 8.4.1
2 Air/Water Quality.. LCDC Goal 6
3. Air Quality Impact TCP Policy 4.1.1
Water Quality Compliance: TCP Policy 4.2.1
Commercial Compatibility: TCP Policy 5.4
6. Buffering: TCP Policy 6.6.1
7. Storm Drainage Facilities Feasibility. TCP Policy 7.1.2 EXHIBIT,
Page _~Q_ of
8. Design Criteria Community Development Code 18.61.055
Pages
NOTICE OF FINAL ORDER BY THE CITY COUNCIL CPA 9300091ZON 93.00031sDDR 93-0041MLP 93-0013
Zone: The existing Neighborhood Commercial zone permits a range of convenience goods and services
which are purchased at least weekly. Typical uses would include convenience sales and personal
services, children's day care, financial. insurance and real estate -services, food and beverage
retail sales, etc. Neighborhood Commercial centers have a 5,000 square foot lot minimum.
The proposed Community Commercial zone permits a range of convenience goods and services
which are designed to serve the regular needs of residents of nearby residential neighborhoods.
Community Commercial centers typically range in size from a minimum of two acres to eight
acres. In terms of building square footage, these centers range from 30,000 to 100,000 square
feet
The existing R-25 (PD) zone permits a range of single-family attached, low and medium rise
multiple-family residential units, for medium-high residential development The R-25 zone permits
residential densities up to 25 units per acre. The Planned Development zoning district overtay is
designed to encourage properties to be developed as a single unit in terms of design, access, etc.
APPLICABLE REVIEW CRITERIA: Statewide Planning Goal 6; Comprehensive Plan Policies 1:1.1, 1.1.2, 4.1.1,
421. 5.4, 6.6.1, 7.12 and 8.1.3 (f)-(h) and 8.4.1; Community Development Code Chapters 18.22, 18.32 and
18.61.055.
Action: ➢ ❑ Approval as requested Approval with conditions ❑ Denial
Notice: Notice was published in the newspaper, posted at City Hall and mailed to:
® Owners of record within the required distance ® Affected governmental agencies
11 The affected Citizen Involvement Team Facilitator ® The applicant and owner(s)
Final 122dsim%
THE DECISION WAS SIGNED ON-:)~~~ 1996 AND BECOMES EFFECTIVE ON 1996.
The adopted findings of fad. decision and statement of conditions can be obtained from the City of Tigard
Planning Department; Tigard City Hall, 13125 SW Hall Boulevard, Tigard. Oregon 97223.
Appeal: A review of this decision may be obtained by filing a notice of intent with the Oregon Land Use Board
of Appeals (LUBA) according to their procedures.
Questions: If you have any questions, please call the City Recorder at (503) 639-4171.
EXHIBIT I
Page 3 of
Pages
NOTICE OF FINAL ORDER BY THE CITY COUNCIL CPA 93400920N 914003/SDOR 93404/MLP 93.0013
AL9ERTSCEN'Ifni Imrnuo=tttoAPCMaMn
CITY OF TIGARD, OREGON
ORDINANCE NO. 96--0 0
Alv ORDINANCE ADOPTING FINDINGS kNI D CONCLUSIONS TO APPROVE A
COMPREHENSIVE PLAN ivL4° AMENDMENT AND ZONING IvLAP AMENDMENT
REQUESTED BY ALBERTSON'S INCORPORATED (CPA 93-0009 AND ZON 93-0003).
WHEREAS, the applicant has requested a Comprehensive Plan Map Amendment from Medium-
Hieh Density Residential to redesignate apprommately 8 acres of a 11.95 acre parcel from
Medium-High Density Residential to Community Commercial and a Comprehensive Plan
approval to redesignate a 6.93 acre parcel from Neighborhood Commercial to ivledium-High
Density Residential. T'ne Applicant's requests also include accompanying Zone Changes which
propose to redesignate the property from R-12 (PD) and R-25(PD) (Residential, 12/25 units per
acre. Planned Development) to C-C (Community Commercial) and C-N (Neighborhood-
Commercial) to R-25 Residential. 25 units per acre).
NOW, THEREFORE, THE CITY OF TIGARD ORDAINS AS FOLLOWS:
SECTION 1: The proposal is consistent with all relevant criteria based upon the facts. findings
. and conclusions, noted in the attached final order, additional findings and vicinity maps
identified as Exhibits A. B. C. D-1, D-2, and D-3 (Albertson's, Inc. Remand Statement with
attachments). Exhibit A is the facts, findings and conclusions pertaining to the remand decision.
and where conflicting shall take precedence over Exhibits B and C (the facts. findings and
conclusions pertaining to the prior approval dated December 27, 1994).
SECTION' 2: This ordinance shall be effective 30 days after its passage by the Council.
signature by the Mavor, and posting by the City Recorder.
PASSED: By U 0a11*%nrnOU& vote of all Council members present after being read
by number and title only, this P4 4'hday of -1""n Lk~ .1996.
Catherine Wheatley, City Recorder '
•
ORDI'vAvCE NO. 96 - 00 EXHIBIT 1
Page 1 Page ~ of
Pages
~-nday ~1 I 1996.
=
APPROVED: By Tigard City Council this of
Jame icoli. Mayor
Aooroved as to form:
City Attorney
17 M(a
Date
•
ORDINTAICE NO. 96 - c-^ ~ EXHIBIT I
Paae'_ Page .17 of
Pages
EXHIBIT "A"
CITY OF TIGARD CITY COUNCIL
FINAL ORDER
A FINAL ORDER INCLUDING FINDINGS AND CONCLUSIONS WITH REGARD TO
A REIMAND OF AN APPLICATION FOR A COMPREHENSIVE PLAN AMENDMENT,
ZONE CIL-k GE, SITE DEVELOPMENT REVIEW.kND MINOR LAND PARTITION
APPLICATIONS REQUESTED BY ALBERTSON'S, INC.
The Tigard City Council reviewed the application below at a public hearing on April 23, 1996.
The City Council approves the request. The Council has based its decision on the facts, findings
and conclusions noted below.
A. FACTS:
1. General Information
Comprehensive Plan Amendment CPA 93-0009
Zone Change ZON 93-0003
Site Development Review SDR 93-0014
• Minor Land Partition MLP 93-0013
A request for the following development approvals:
(1) Comprehensive Plan and Zone Change to redesignate eight acres of a 11.95 acre
parcel from Medium-High Density Residential to Community Commercial on Tax Lot
200 and to redesignate a 6.93 acre parcel from Neighborhood Commercial to Medium-
High Density Residential on Tax Lot 100. Proposed zone changes accompanying the
above plan changes includes request for a zone change from R-12 (PD) and R-25 (PD)
(Residential, 25 units/acre, Planned Development) to C-C (Community Commercial) and
C-N (Neighborhood Commercial) to R-25 (Residential, 25 units/acre);
(2) Site Development Review approval to allow the construction of a 40,000 square foot
Albertson's Grocery Store and three smaller tenant pads of 5,950; 2,400 and 1,200 square
feet. T"ne applicant has also proposed two 4,000 square foot retail pads.
(3) Minor Land Partition approval to divide an 11.95 acre parcel into two parcels of
approximately eight acres and 3.95 acres each.
Applicant: Albertson's. Inc. (Don Duncombe)
17001 NE San Rafael
Portland. OR 97230
FINAL REMAND ORDER - CPA 93-09.7ON 93-035DR 93-14 - ALBERTSON'S - 1 EXHIBIT I
Page U of
Pages
Agent: John W. Shonkwile:. P.C.
Attornev at Law
13425 SW 72nd Ave.
Tigard, OR 97223
Owner: Margerv Christ, et al.
Route 1, Box 792
Beaverton, OR 97007
Location: Southeast and northeast quadrants of the intersection of SW Scholls Ferry Road
and SW Walnut Street. (WCTM 2S1, 4BB, Tax Lou 100 and 200).
Applicable Review Criteria:
(1) Generally: Statewide Planning Goals 1, 2, 6, 9, 10, 11, 13 and 14; Comprehensive
Plan Policies 1.1.1, 1.1.2, 4.1.1, 4.2.1, 6.1.1, 6.4.1, 6.6.1, 7.1.2, 7.2.1, 7.4.4, 7.5.2, 7.6.1,
8.1.1, 8.1.3, 8.2.2, 8.4.1, 9.1.3, 12.1.1, 12.2, and 12.2.1 and 12.2.4; and
Community Development Code Chapters 18.22, 18.332, 18.56, 18.60, 18.61, 18.98,
18.100,18.102,18.108,18.114,18.120,18.1-)0,18.162, and 18.164.
(2) On Remand: Statewide Planning Goal 6; Comprehensive Plan Policies 4.1.1, 4.2.1,
5.4, 6.6.1, 7.12, 8.1.3 (f)-(h), 8.4.1; and Community Development Code Chapter
18.61.055.
2. Background Information
An area that included the subject property was annexed to City of Tigard on June 12,
1983. In August 1983, the City approved a variety of plan and zone design ations for the
area, including Medium-High Density Residential (R-20, now R-25 zone), Medium
Density Residential (R-12 zone), and Neighborhood Commercial (C-N zone).
The City subsequently approved the relocation of the C-N designation in a number of
locations in the vicinity between 1983 and 1986 (Case files CPA 18-83/AC 14-83, CPA
4-85/ZC 4-85, CPA 1-86/ZC 3-86). The current C-N designation is located on Tax Lot
100. In CPA 1-86 and ZC 3-86 the City Council ordered that the configuration of the C-
N' designation would be modified to conform to the final alignment of Murray Boulevard.
Subsequently, Walnut Street was constructed as part of the projected Murray Boulevard
alignment, thereby finalizing Tax Lot 100. The City Council confirms that the
configuration of the former C -N designation on Tax Lot 100 is now 6.93 acres to conform
with the final alignment affecting that parcel. A summary of past City actions pertaining
to the commitments to the size and location of the N-C designation is presented in the
staff report for an earlier. Comprehensive Plan Amendment proposed by Albertson's for
this property (Case CPA 91-0003/ZCA 91-0006).
FINAL REMAND ORDER - CPA 93-091ZON 93-03.'SDR 93-14 - ALBERTSON'S - 2 EXHIBIT -t.
Page = of
Pages
A number of single family and multi-family residential developments have been proposed
for all or a portion of the subject property between 1986 and 1990 (Case Files SDR 4-86,
S 87-04/V 87-04, S 87-07,SUB 90-04/ZON 90-04/ VAR 90-08). Development has
recently occurred following the approval of Castle Hill Subdivision.
In 1991, AIbertson's applied for a Comprehensive Plan Amendment and Zone Change
(CPA 91-0003/ZCA 91-0006) to establish an 8 acre Commercial General (C-G) site on
Tax Lot 200. The reauest also involved the redesignation of the existing C-N site on Tat
Lot 100 to Medium-High Residential (R-25). A final decision by the City Council was
staved at the request of the applicant. .
Following this. application, the City considered including a new Community Commercial
zoning designation as part of the Comprehensive Plan and Community Development
Code. After lengthy review, the City adopted the Community Commercial designation in
December 1992.
On November 15, 1993 the Planning Commission recommended that the City Council
approve the application with the inclusion of conditions for an automobile access
driveway to SW Northview Drive, a pedestrian staircase to SW Northview Drive,
conceptual building design details which are consistent with the grocery store design, the
Planning Commission also recommended that an access plan for the 3.95 acre parcel
south of the site and an improved interior parking lot pedestrian pathway system.
On January 25, 1994 the City Council remanded the application back to the Planning
Commission due to concerns related to property owner notification, the findings within
the staff report and the appropriateness of proposed development within the Community
Commercial Zoning District.
Subsequently, the applicant made the following revisions to the proposal as a result of
concerns raised at neighborhood meetings and issues raised by the City Council at the
January 25, 1994 Public Hearing:
(1) The proposed commercial uses on the pads opposite to the Albertson's pad have been
modified. T'ne gas station and Shari's uses have been eliminated as prospective tenants.
The pads are shown as 4, 000 square foot retail sites.
(2) A new brick wall has been proposed along portions of the proposed 8 acre parcel's
property frontage on SW Northview Drive.
(3) The staircase entrance from SW Northview• Drive has been modified to include a
series of 90 degree turns to obscure the staircase entrance.
(4) The applicant has agreed not to develop the site with tenants which would have 24-
hour commercial operations due to potential impacts to adjoining residential areas.
The applicant revised the site plan to provide a separate staircase from SW Northview
. Drive to the grocery store building and separated pedestrian pathways for internal
circulation between all buiidines and through the center of the parking area.
EXHIBIT
FrNAL REMAND ORDER -CPA 93-09.ZOT 93-03/SDR 93-14 - ALBERTSON'S • 3 Page q_ of
Pages
(6) The site has been posted with a sign showing the proposed site development plan for
the shopping center.
(7) The applicant has also discussed transferring ownership of the multi-family area south
of the Albertson's site to the Castle Hill Neighborhood Association.
(8) The applicant has provided a history of the application, a synopsis of the changes
which have been made to the plan, a security lighting plan, a noise study; and conceptual
plans for Albertson's store, the site plan, the wall proposed along SW Northview Drive.
On November 7, 1994 the Planning Commission recommended that the City Council
approved the application without the inclusion of conditions for an automobile access
driveway to SW Northview Drive. A portion of the Commission felt that the Council
should consider provision of a one-way driveway which allows ingress but not egress
onto SW Northview Drive. Commission felt that the improved interior parking lot
pedestrian pathway system was sufficient as proposed.
The City Council reviewed the application, as modified, on December 13, 1994 and
approved the application, with conditions, on December 27, 1994. An appeal of the City
Council's decision was subsequently filed with the Land Use Board of Appeals (LUBA).
On October 20, 1995, LUBA filed a Final Opinion and Order (Order) remanding the
decision to the City. The LUBA remand sustained eight assignments or sub-assignments
of error relating to the following:
1. Transportation: Tigard Comprehensive Plan (TCP) Policy 8.13 (f)-(h) and 8.4.1.
LUBA Opinion at 14.
2. Air/Water Quality: LCDC Goal 6. LUBA Opinion at 14-16.
3. Air Quality Impacts: TCP Policy 4.1.1. LUBA Opinion at 16-17
4. Water Quality Compliance: TCP Policy 4.2.1. LUBA Opinion at 17.
5. Commercial Compatibility: TCP Policy 5.4. LUBA Opinion at 20-22.
6. Buffering: TCP Policy 6.6.1. LLBA Opinion at 24-28.
7. Storm Drainage Facilities Feasibility: TCP Policy 7.1.2. LUBA Opinion at 28-29.
S. Design Criteria: CDC 18.61.053. LLBA Opinion at 3 , 1-33.
I Vicinity Information
Single family residential development in the Castle Hill Subdivision lies to the east and
south. To the northeast is the Cotswald Subdivision which is of a similar character and
density. A day school is on the west side of SW Scholls Ferry Road. A few large lot
single. family residences also exist to the north. south and west of the subject area. A
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quarry operated by Morris Brothers Inc. is located to the southwest, across SW Scholls
. Ferry Road.
R-25(PD) zoning surrounds the parcel currently designated CN. The area south of the
proposed C-C designation is zoned R-12 (PD) and R-25(PD). The area across SW
Scholls Ferry Road from this area is zoned by the City of Beaverton as R-2 (multi-family.
2.000 square feet lot area/unit). The average allowable density within a 112 mile radius of
the site is approximately 15 units per, acre.
Other commercial sites within the seneral vicinity of the proposal include: Murray Hill
Shopping Center located approximately 3/4 mile north on Murray Boulevard; Greenw•ay
Town Center Shopping Center located approximately 1'/. mile east on Scholls Ferry
Road. Washington Square located approximately 2!4_ miles east; several commercial
centers along Pacific Highway, including the Tigard Central Business District, located
approximately two or more miles to the southeast.
4. Site Information
There are two properties involved in this application. Tax Lot 100 is 6.93 acres in size,
zoned C -N, and located on the northeast quarter of SW Scholls Ferry Road and Walnut
Street. This parcel is a vacant, grassy field with a relatively moderate grade.
Tax Lot 200 is 11.96 acres in size, zoned R-12 (PD) and R-25(PD), and located on the
southeast quarter of SW Scholls Road and Walnut Street. This property is also vacant - a
grassy field, but it slopes significantly downward away from the Castle Hill Subdivision
to Scholls Ferry Road.
.2-mosal Description
The applicant has submitted a packet of materials which relate to the issues remanded by
LUBA. The materials include studies related to transportation/traffic, and engineering
analvsis/designs for treatment and compliance with regulations for "discharges"
associated with the proposed development.
The application includes the follo«ing four separate components:
a. CPA 93-0009/ZC A 93-0003
A proposed change of the C-Iv designation on Tax Lot 100 to R-2-5, and change the R-12
(PD) and R-25(PD) designation for 8 acres of Tax Lot 200 to C-C, leaving the remaining
land use desienations on the propem, as they are (see Applicants Statement, Exhibit
XL.III). This change is proposed to be consistent with the requirements associated with
the City*s C-C designation and the obligations of the City to maintain an adequate
• inventory of multi-family residential plan.
~
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b. SDR 93-0014
The applicant proposes to develop a shopping center with a total of 57,550 square feet of
floor space. This space includes a 40,000 square foot grocery store, 9,550 square feet of
additional commercial space adjacent to the grocery store and two separate pad sites
totaling 8.000 square feet (see Applicant's Statement, Exhibit .III). The applicant has
provided preliminary site, grading, utility, and landscaping plans. Conceptual building
elevations providing detail of proposed design features for the Albertson's and a model
for future structures have also been provided.
A 40,000 square foot Albertson's Grocery Store and 9,550 square of commercial space
are proposed for the southern portion of the site. A truck access and loading area is
proposed along the south side of the building. The southern and eastern portions of the
site are proposed to be graded extensively and the south side of the main building would
have a floor elevation that ranges from 8 to 24 feet below the existing grade.
A freestanding tenant pad site is proposed towards the southeast quarter of SW Scholls
Ferry Road and SW Walnut Street, a second freestanding pad is intended for the
southwest corner of SW Walnut Street and SW Northview Drive. The applicant has
revised the application to indicate both pads are intended to be developed with retail uses.
The applicant has withdrawn a conditional use permit portion of this application.
The applicant has not submitted development plans for non any of the residential
areas on the subject properties. Conceptual development plans for the residential area has
been previously entered into the record.
In addition to the specific uses shown on a site plan and referred to in the Applicant's
statement, approval of other uses is requested. This is because all tenants of the center
have not been committed. It is also expected that tenants will change over time. The
additional uses which may be located at the site and are permitted in the C-C zone for
which the applicant requests approval are:
Animal sales and services;
Consumer repair services;
Convenience sales and personal services;
Children's day care:
Eating and drinking facilities:
General retail sales (less than 10,000 square feet);
General offices (medical, dental, financial, insurance. real estate, professional and
administrative services); and
indoor participant Sports and recreation.
Three driveways are proposed on SW Scholls Ferry Road and one driveway is shown on
SW Walnut Street. Internal sidewalks are sho%%m immediately adjacent to the commercial
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buildings. Sidewalks link: the two pad sites with the public sidewalks on the perimeter of
. the project, a sidewalk and staircase connections are proposed between the grocery store
and Ski Northview Drive, and sidewalks are permitted through the parking area to the
main building.
c. MLP 93-0013
The applicant wishes to create a separate 8 acre parcel for the shopping center. The other
3.95 acre parcel is to retain its existing designation for future residential development.
6. yggencv and Neighborhood Comments
The applicable agency and neighborhood comments have been received and included in
the record for consideration.
7. Remand Hearing
The remand hearing on the application was limited to the assignments and sub-
assignments of error sustained and requiring remand by LUBA's Order. This limitation
was included in the public notice for the remand hearing.
• B. FINDINGS:
1. Transportation: Tigard Comprehensive Plan (TCP) Policy 8.13 (f)-(h) and 8.4.1.
LUBA Opinion at 14.
TCP Policy 8.13 (f) provides that "The City shall require as a precondition to
development approval that: Transit stops, bus turnout lanes and shelters be provided when the
proposed use (is) of a type whic'. generates transit ridership."
The subject property and the intersection of SW Scholls Ferry Road and Walnut Street
are not currently served by transit ridership. Nor is the site in close enough proximately to be
served by transit ridership. The property is approximately 1/2 mile from the nearest Tri :Met
route. The policy phrase "the proposed use of a type which generates transit ridership" is
interpreted to mean that it is a use which transit ridership facilities, such as Tri-Met bus routes,
are already available to serve the site, and thereby necessitating the need for on-site
improvements. such as transit stops, bus turnout lanes, etc. Therefore, TCP Policy 8.1.3 (f) does
not require the Albertson's application to provide transit stops, bus turnout lanes, or bus shelters
associated with the site because transit ridership facilities are not currently available, nor
expected in the reasonably near future, to serve this site. The Applicant's statement traffic study
(Kittleson R; port dated February 16. 1.996) and Tri-tiiet's evaluation letter supports these
determinations. This policy is satisfied.
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However, SW Scholls Ferry Road and Walnut Street are logical routes for future
expansion as the demand for bus services increases. The' Albertson's application includes
• provision for future placement of bus turnout lanes, bus stop and/or shelter near the "mini-park"
at the intersection of Schoils Ferry Road and Walnut Street. A traffic study conducted by
Kittleson & Associates, I.^.c., transaontation planners and ttamc engineers, determined that the
future provision of these transit requirements are "feasible" due to the adequacy of the site
development plan. Although not currently required by the policy, the applicant has agreed to
condition approval upon providing the area near the "mini-park" to accommodate such transit
stop, bus turnout lanes and shelters as required for future needs. Any potential application of
the policy is satisfied.
TCP Policy 3.1.3 (a) provides "T-he City shall require as a precondition to development
approval that: Parking spaces be set aside and marked for cars operated by disabled persons and
that the spaces be located as ciose as possible to the entrance designed for disabled persons."
?'fie proposed development provides handicapped parking spaces in compliance with the
Americans with Disabilities Act (.FDA) requirements, and these parking spaces are located in
close prox ity to the access points for the proposed grocery store, attached shop spaces, and the
two outlying commercial buildings. This determination is supported by the Kittleson Report
exhibit D-3). 7-he site development plan identifies the handicap parking locations. Policy 8.1.3
(g) will be satisfied with the condition of approval pertaining to re-locating two handicapped
parking spaces and provision for additional spaces within the existing parking lot plan area for all
other building sites throughout shopping center. The Applicant has provided a traf`-c report and a
site plan that identifies adequate area to satisfy the feasibiiity of the Applicant complying with
the requirements of TCP Policy 8.1.3 (g) and its related condition of approval.
TCP Policy 8.13 (h) provides "T"he City shall require as a precondition to development
approval that: Land be dedicated to implement the bicycle/pedestrian corridor in accordance with
the adopted plan."
i ne Appiicant's site does not abut. nor is it transversed by a proposed designated
bicycle pedestriar: corridor as identified in the City's adopted Plan. Therefore. Policy 8.1.3(h)
goes not app!`'.
TCP Policy 3.4.1. provides "Tae City shall locate bicvcle:'pedest an corridors in a
mnarizier which provides for cedes -ian and bicycle users. sale ,,rid convenient -novernent in all
r):r-,.s of the Cirv. Dv developing the pat!!way systern shown on the adopted pedeszri wbik-ewav
? :-le subiect propen,--• does not abut. nor is it traversed by. a designated bic, cie:'pedeS :_n
c,-r: eon in 2-.:On"anc-, VLit a Ule Cirv's adopted pia-r. In acCOrdanc-- v%idh the adoutzd clan. a
bicvclZ'cedestr:: n c0r,-dor :s ~esie .at.-; to the west of SW SC lolls Road and is intended to
•
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cross the future extension of Murray Boulevard. Since the actual route of the future
transportation improvement is determined, the City is not required to designate a study area
• under TCP Policy 8.4.1. Further, the Applicant's proposed development provides sidewalks
along each.property frontage with access to cross-walks at the intersections of SW Scholls Ferry
Road at Walnut Street. and Northview Drive and Walnut Street. The Applicant has satisfied this
policy by providing transit and pedestrian orientation throughout the development of a walkway
system to and from adjoining streets. This will. in turn, link: bicycleipedestrian access to
sidewalk: connections along SW Scholls Ferry Road and the future extension of Murray
Boulevard; thereby evenrualiv linkin, to the proposed bicycierpedestrian corridor located
immediately west of SW Scholls Ferry Road when, it is constructed. The Applicant has also
proposed to provide a potential bus turnout lane. bus stop and/or shelter location on SW Scholls
Ferry Road near the intersection of SW Scholls Ferry Road and SW Walnut Street in anticipation
of future transit service. This policy is satisfied.
2. Air, Water and Land Resources Quality: LCDC Goal 6. LUBA Opinion at 14-16.
The air, water and land resources quality requirements under LCDC Goal 6 are satisfied
by the proposal. This requirement necessitates an analysis of the "discharges" that are projected
to result from the Albertson's development, including air quality, solid waste, thermal, noise,
atmospheric or water pollutants, contaminants, or products therefrom. The Applicant has
provided an engineering study analyzing and providing design details to satisfactorily address all
waste and process discharges from the proposed development. This study, the Westech Report,
• identifies that the Albertson's application will not violate or threaten to violate applicable city,
state or federal environmental quality statutes, rules and standards.
In accordance with the Westech Report, solid waste shall be stored and removed in
compliance with all applicable regulations for design, construction and location of solid waste
storage areas and equipment. The Applicant's plan does not violate any city, state or federal
thermal discharge regulations because atmospheric thermal discharges are not regulated for the
proposed type of uses. Regulations relating to waterway thermal discharges do exist, but the
proposed application does not involve their application. With the Applicant using evaporative
condensers for its building, all applicable regulations for noise shall be satisfied by the site
development plan.
Similarly, all atmospheric or air quality requirements are satisfied by the - proposed
development. The water pollutants regulations are also satisfied. The Westech Report has
incorporated the design requirements for grater discharge facilities adequate to satisfy all city,
state and federal requirements for water quality and quantity control. As a result, the applicant
has shorn substantial and reliable evidence to establish the feasibility of Albenson's compliance
with LCDC Goal 6 requirements.
3. Air Quality Impacts: TCP Policy 4.1.1. LUBA Opinion at 16-17
• The Westech Report describes the applicable criteria of TCP Policy 4. 1.1 as they apply to
the potential air quality impacts of the Albertson's application. The report identifies that an
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Indirect Source Construction Permit Application is presently being prepared and will be
submitted to the DEQ. The Westech Report identifies that this application complies with all
i applicable.standards and has a high feasibility of being approved by the DEQ. In addition, the C-
C zone and the surrounding residential properties will result in fewer and shorter automobile trips
to obtain commercial goods and services. The proposed center, as designed and conditioned,
will provide for ease of access to the surrounding neighborhoods. This in turn will help satisfy
Policy 4.1.1 by reducing potential air quality impacts from the new residents and their
automobiles.
Opponents assert that the Applicant failed to address each of the requirements under TCP
Policy 4.1.1. However, the Westech Report submitted by the Applicant identified that all of the
requirements under this policy are implemented through compliance with Oregon's Indirect
Source Review Program. The Westech Report identified the applicable criteria and
methodology establishing that the applicant would be able to comply with these requirements
and obtain the necessary permit. The Report further identified that Westech had contacted the
DEQ, conferred on the requirements and expectations of compliance feasibility, and incorporated
those statements within the Report. The Applicant shall be required to obtain approval of the
Indirect Source Construction Permit, if such permit is still required prior to construction, as a
condition of approval for this land use application. Such permit should not be required in
- = advance of approving this application due to the DEQ proposing to modify its regulations so that
the permit may not be required before the Applicant seeks building permits. Therefore, the
applicability and approval of the permit shall be made a condition of approving this land use
• application,
This policy is satisfied by the Applicant's submittal and plan, and the Applicant has
provided substantial evidence of its feasibility of compliance with the associated conditions of
approval.
4. Water Quality Compliance: TCP Policy 4.2.1. LLBA Opinion at 17.
This policy requires "All development within the Tigard. urban planning area shall
comply with applicable federal, state and regional water quality standards." The Applicant's
engineering study, the Westech Report, establishes that the Applicant complies with all the
requirements of this policy. In particular. the report identifies at pages 5 through 9 that the water
quality facilities designed for the Albertson's site are intended to comply with all applicable
federal, state and regional water qualilry standards. The report further describes these standards,
how they are being- complied with and that AIberson's compliance with these standards is
feasible.
Also. this policy Mill be satisfied through the development review and building permit
processes at which time a development proposal for this site must be shown to comply with
applicable federal. state. and regional water quality requirements including implementation of the
• non-.source pollution control Vplan in compliance with the Oregon Environmental Quality
Commission's applicable rules for the Tualatin River Basin. The proposed redesicnation would
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not by itself affect compliance with this plan policy. The Applicant has complied with TCP
Policv 4.2.1 and has established feasibility for compliance with all associated conditions of
approval.
5. Commercial Compatibility: TCP Policy 5.4. LLBA.Opinion at 20-22.
TCP 5.4 provides: "The City shall ensure that new commercial and industrial
development shall not encroach into residential areas that have not been designated for
commercial or industrial uses."
Albertson's application affects a "residential area" that includes the residential and
commercial lands surrounding the intersection of Scholls Ferry Road and Walnut Street. This
"residential area" includes the existing Neighborhood Commercial located at the northeast corner
of this intersection, the 8 acre parcel proposed for community commercial, the Castlehill
residential subdivision located in the southeast of the intersection, and the multifamily
designations located to the west, northwest and south.
The application also proposes to replace the existing designated commercial use (N-C) in
this residential area with a "Community Commercial" designation. The phrase "residential
area," referred to in TCP 5.4, includes the area and uses identified in the above paragraph. As a
result, the proposed C-C designation in this residential area will not create new commercial
where no commercial previously existed. The N-C designation already existed in.this designated
• "residential area"; and the C-C designation will replace it and shift it across Walnut Street to the
other comer (all within the same "residential. area").
TCP 5.4 does not restrict different types of commercial, changes in size or changes in
type of commercial under this policy. The policy is intended to address restricting the
encroachment of new commercial in residential areas where no commercial previously existed.
Since the Applicant's proposal changes one type of commercial to another type where a
commercial designation already existed in this residential "area", Albertson's application
complies with TCP 5.4:
Nevertheless, the Albertson's proposal replaces approximately 7 acres of N-C with 8
acres of Community Commercial within the same residential area. The Kittleson Traffic study
submitted by the Applicant in the earlier land use hearings identified that the traffic impacts
between 8 acres of C-C use and the commercial designation on 6.93 acre parcel (current C-1N'
designation) are nearly equivalent. The Westech Report submitted by the Applicant further
identifies that there will be no significant offsite impacts by the Applicant's development and the
"discharges" from the project w111 be contained or filtered to comply with all applicable
governmental requirements and standards. Further, the reduced commercial square footage and
allowed uses. increased area for landscapin`!bufferin_, and increased dedication of area for right-
of way along Scholls Ferry Road. renders the commercial usage of the eight acre parcel nearly
equivalent in size and impacts %%ith potential development of Tax Lot 100 as commercial. The
net impact to surrounding residential uses is not significant.
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Movina the commercial from the northeast comer of the Scholls Ferry Road and Walnut
• Street intersection to its southeast comer will allow the commercial use to be excavated into the
hillside. This relocation of the commercial across the street is not precluded by TCP Policy 5.4
since the new location will still be within the same residential area. This new location will
provide better buffering and the opportunity to greatly diminished adverse impacts to
surrounding residential uses. As a result. Albertson's proposal provides a better compatibility
between commercial designations and residential uses in this "area" than the previously
designated N-C use and Tax Lot 100 location. Moreover, the Albertson's application complies
with the locational criteria identified in the comprehensive plan for "Community Commercial"
designations. TCP Policy 5.4 is intended to be satisfied by the commercial use applicant
complying with all the applicable locational criteria under TCP Policy 12.2.1. Where the
applicant satisfies, as has Albertsons, all of the locational criteria for Community Commercial
under TCP 12.2.1.4.B, the requirements for TCP Policy 5.4 are also satisfied. The findings
pertaining to TCP 12.2.1 were previously appealed to LUBA as the "Eighth Assignment of
Error"; and those findings were found lawfully adequate.
Opponents asserted that the Applicant had failed to satisfy the requirements of TCP
Policy 5.4. The Opponents based their argument upon the policy's definition of "residential
area", and assumed that would be a 1 112 mile radius from the Applicant's property. However,
the City Council interprets the policy language to mean the residential area surrounding the
Applicant's property as defined above in this section. The Opponents also argued that TCP
Policy 5.4 application requires a comparison of development limitations between C-N and C-C
zones. However, the C-N zone for this "residential area" was the result of an earlier "mistake" at
the time the area including the Applicant's site was annexed by the City. Therefore, the
development limitations of the C-N zone are irrelevant for this analysis. The Community
Commercial designation is intended to fully replaced the former C-N designation in this
"residential area."
The Applicant has satisfied all the requirements of TCP Policy 5.4.
6. Buffering: TCP Policy 6.6.1. LUBA Opinion at 24-28.
TCP Policy 6.6.1 pertains to buffering and screening between different types of land uses
and imposes factors to be considered in determining the type and extent of the required buffer or
screen. The City has also adopted CDC 18.100 to implement this comprehensive plan policy for
landscaping and screening. In the prior decision. specific findings set forth Albertson's
compliance with all the applicable requirements of CDC 18.100. These findings were not
appealed to LUBA from the prior decision. As a result. these findings, presently, are deemed
legally valid. Since CDC 1 S.100 was adopted to implement TCP Policy 6.6.1, a determination of
compliance with CDC 18.100 shall be deemed as satisfvine the requirements of TCP Policy
6.6.1. The applicant has complied with all the requirements of TCP Policy 6.6.1.
In anv event, Albenson's site development plan fully complies with the specific
• provisions of TCP Policy 6.6.1. Under TCP Poiicy 6.6.1.a.1. the City is to determine the
"purpose of the buffer". In this case. the potential buffering or screening factors for "noise" and
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"air pollution" are either not significant or are effectively resolved by the design plan. The
Applicant has submitted an engineering study, the Westech Report, which identifies that the
• Albertson's application complies with all applicable noise emission regulations and will not
create of-site noise problems for surrounding neighborhoods. Similarly, the report identifies
that there are no atmospheric pollution emissions generatea from the proposed use. Nevertheless,
Albertson's proposed landscaped buffer and screening will provide an effective buffer for any
potential noise and air pollution that might be generated by the proposed commercial use and
any prospective changes in use or tenants.
As a potential "air pollution absorber", "noise filter", "dust filter" and "visual banner",
the proposed Albertson's landscape plan satisfies and exceeds City requirements. For the
purposes of the buffer, the width and height are defined in CDC 18.100. The applicable matrix
under the CDC 18.100.070.B and 18.100.130 establishes that the applicant must provide at least
10 feet of buffer and/or screening between the proposed. shopping center site and nearby
residential uses. The site development plan provides for excavation of the site to lower the grade
approximately 24 feet near the single-family residential area on the southeast and the multi-
family area on the south. This excavation will also reduce the noise associated with the loading
area designed for the rear of the grocery store structure by screening the loading area with the
large building and the 24 foot deep landscaped slope. Between these residential uses and the
proposed commercial uses will be landscaped areas that range in width between 37 to 60 feet on
the southeast and between 20 to 82 feet on the south. The Albertson's landscape plan designates
these buffer areas as also providing an "Evergreen Screen" to provide a year-around buffer and
screened area. The types and sizes of plants are specifically identified on the "Landscape Plan"
• and they comply with the City's requirements.
In addition to landscape buffering and screening along the Northview Drive, the applicant
is also providing a brick wall the entire length of the subject property. Landscaping widths
between the parking lot and Northview Drive on the southeast range between 30 to 45 feet.
Again, the types and sizes of the plants are identified on the "Landscape Plan." Landscaped
buffers along Walnut Street and Scholls Ferry Road (the northeast, north and northwest borders
of the site) range in width between 26 to 135 feet. The overall landscaping plan exceeds the City
Code's 20% requirements by providing almost 30% landscaped buffers and screens around the
perimeter of the site.
T"ne landscaped buffer and screening plan surrounds the entire site and thereby provides
adequate buffering and screening between the proposed commercial use and the single-family
residential to the southeast, the multi-family residential to the northeast, north. west and south.
The buffer and screening is also sufficient for both stationary and mobile viewers along or
abutting Scholls Ferry Road. Walnut Street and Northview= Drive. The multi-family residential
designated property to the south will provide stationary viewers, and the proposed landscaped
area separating these uses will provide an effective buffer and screen. The "Landscape Plan"
calls for a solid year-around "Eve:-green Screen" along this entire perimeter. T"nis screening is
also extended for the length of the building along tiorthview Drive. A solid ornamental brick
• wall is also proposed along Northview• Drive to provide an additional and adequate screen
between the proposed, commercial use and the single-family residential area to the southeast.
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Special screening is not necessary along Scholls Ferry Road and Walnut Street. The neighboring
uses are separated by at least 45 feet of roadway, additional distance for sidewalks and additional
• depth of the proposed landscaping. The Applicant's landscaping in these locations substantially
exceeds the depth requirements of the applicable code. Also, the traffic impacts along Scholls
Ferry Road and Walnut Street, not associated with the proposed development, are substantial and
mask impacts created at the Alber tson's site.
The application complies with all applicable requirements of TCP Policy 6.6.1,
including all requirements pertaining to noise impacts. The Applicant has previously submitted a
noise study and a current engineering study that establishes the Applicant's compliance with all
regulations pertaining to noise generation by the proposed uses. The Applicant's buffering and
screening details in its landscape plan provide additional assurances that all potential noise
impacts will be sufficiently mitigated.
7. Storm Drainage Facilities Feasibility: TCP Policy 7.1.2. LUBA Opinion at 28-29.
Albertson's has designated a portion of the landscaped area along Scholls Ferry Road as
the location for the storm drainage facilities that will satisfy all applicable water quality and
quantity requirements under TCP Policy 7.1.2. In addition, the Applicant's engineers have
completed a storm drainage facilities analysis and designed a system to satisfy all these
requirements (the Westech Report). The report identifies specific requirements, calculations for
compliance and design characteristics for both water quality and quantity. The report concludes
• that: "Both of these requirements are met by stormwater facilities we have designed and
presented in detail in the report". The Westech Report also establishes the "feasibility" of
Albertson's ultimate compliance with the applicable conditions of approval, and constitutes
sufficient substantial evidence for a respective finding. The Applicant has complied with the
requirements of TCP Policy 7.1.2.
8. Design Criteria: CDC 18.61.055. LUBA Opinion at 31-33.
Section 18.61.055 contains a number of design guidelines and standards for C-C
development. The basic design concepts presented by the applicant are consistent with these
Code provisions. The Applicant's revised plan shows to a new sidewalk along the southern side
of the central driveway access along SW Scholls Ferry Road. The northern most driveway access
along SW Scholls Ferry Road alreadv has a sidewalk paralleling the driveway through the "mini-
park". This Code section will be satisfied with a condition of development approval requiring
the addition of one more walkway along the northern side of the driveway entrance located at the
southern end of the propemr along SQL' Scholls Ferry Road. The revised Site Plan includes new
walkways through the center of the parking lot (north and south) and a cross-walkway between
the commercial pads (east and west). These walkways are raised where adjacent to parking stalls
and consisting of distinctive materials or markings where located across drivine.corTidors. The
revised plan also includes a staircase walkway from the erocerv store to SW Nortrhview Drive to
satisfy pedestrian connections for that adjoining area. These additional walkways. along with
• added w•alkw•av associated with the driveway along Scholls Ferry Road, satisfy the requirements
in CDC 18.61.055. Other revisions by the applicant include provision of evaporator units placed
MAL REMAND ORDER - CPA 93-092ON 9:-01WR 93-14 - ALBERTSON'S - 14 EXHIBIT 1
Page I5 of
Pages
behind the building at me-7-:nine level to assure compliance with regulations pertaining to noise
• impacts; requested details for the landscaping plan showing sizes, locations and species of
landscaping materials; and details of cut-off shields on lighting fixtures; all in compliance with
the applicable provisions under CDC 18.61.055.
Section 18.61.055 A. 1. contains building design guidelines which have been satisfied.
The Applicant has provided a design for the grocery store and a list of required design criteria for
all subsequent structures which are sufficient for assuring compliance with the Code provisions
for all structures on the site. Although the grocery store will have blank walls facing SW
Northview Drive, this building elevation will be screen from view by landscaping and the
excavated embankment, and should result in a pleasing appearance.
Section 18.61.055. A. 2. discourages loading areas that face toward residential uses. The
proposed loading area abuts an undeveloped residential parcel and is near Castle Hill
Subdivision. Because of the proposed grading of the site, the loading area will be approximately
24 feet below the existing grade. This design serves to mitigate noise impacts to adjoining
residential areas along with the landscaping and year-around screening; and will also provide a
satisfactory visual buffer.
Section 18.61.055.B. 1. requires internal walkways to facilitate pedestrian circulation on
the site. The revised site plan shows walkways in the vicinity of the building locations and
throughout the parking area. As identified above and with the condition of approval requiring an
• additional walkway along the southern most driveway entrance on SW Scholls Ferry Road, the
revised site plan provides sufficient walkways and accesses to comply with this Code
requirement.
Section 18.61.055.B.2. and 3. are complied with by the Applicant's plan, submittals, and
with the required conditions of approval.
C. DECISION:
1. Approval of CPA 93-0009/ZCA 93-0009 to change the Comprehensive Plan and
Zoning designations on Tax Lot 100 (Washington County Tax Map 2S1, 4BB) from
Neighborhood Commercial (C-N) to Medium-High Residential/Planned Development
[R-25(PD)]. and to change the Comprehensive Plan and Zoning designation for 8 acres of
Tax Lot 200 from Niedium and Medium-High Residential/Planned Development, R-25,
to Community Commercial (C-C).
The Cirv Council finds that the change will promote the general welfare of the City and
will not be significantly detrimental or injurious to surrounding land uses.- The
Comprehensive Plan and zoning. map amendments shall be finalized at the time a
building or other development permit (e.g., grading) is issued. It is further ordered that
the applicant and parties to these proceedings be notified of the entry of this order. -
Approve the Site Development portion of the aoolication with the following
•
, .
FINAL REMAND ORDER - CPA 9:-092ON 93-03/SDR 93-14 - ALBERT SON'S -15 EXHIBIT I
Page ao of
Pages
conditions (unless otherwise noted, all conditions shall be satisfied prior to issuance of
• building permits):
a. A revised site plan shall be submitted for approval which includes the following
modifications:
(1) A walkway along the northern side of the driveway entrance located at the
southern end of the property along SW Scholls Ferry Road shall be provided.
Differing walkway materials shall be used to designate walkway areas. Bicycle
racks shall be provided within or near the columned facade area in front of the
grocery store structure.
(2) A staircase sidewalk from the grocery store shall connect with SW Northview
Drive.
(3) Two of the proposed handicapped parking spaces in front of the grocery store
(the northwesterly spaces) shall be moved to the parking area immediately in front
of Building "A" next to the Albertson's grocery store location. In compliance with
TCP Policy 8.1.3, standard handicapped parking spaces shall be required for all
commercial uses throughout the site as buildings are constructed.
(4) Details concerning the screening of all mechanical equipment to be used on
the perimeter of any building or on the roof shall be supplied by the applicant
prior to issuance of building permits for that building.
(5) All cooling units shall be as specified within the noise study dated September
29, 1994. The study recommended the use of quieter evaporative condensers
located within the mezzanine level of the store rather than air cooled condensers
units located on the roof.
(6) The landscaping plan and landscaping shall achieve a minimum of 35%
canopy coverage at maturity over the parking stall areas. .
(7) Building design details shall be provided for the entire development consistent
with the model details incorporated in the approved first building. Of key
importance is consistent size and scale of buildings and signs. The applicant shall
create a sign program for the center identifti_-ine the size, location and design of all
freestanding and wall sianage.
(8) All lighting fixtures shall use the cut-off shields identified by the Applicant to
prevent the spillover of light to adjoining properties.
(9) If the driveway design is utilized which would intersect with SW Northview
• Drive south of the corner pad towards SW Walnut Street, construction of a
driveway aiona the southern property towards S V%,* SchoIls Ferry Road should be
FINAL REMAND ORDER - CPA 9=-09,20N 9---03/SDR 93-14 - ALBERTSON'S - 16 EXHIBIT
Page 3 of
Pages
considered to allow for future access between the 3.95 acte parcel and the
Albertson's site.
STAFF CONTACT: Mark Roberts, Planning Division.
b. Two (2) sets of detailed public improvement plans and profile construction drawings
shall be submitted for preliminary review to the Engineering Department. Seven (7) sets
of approved drawings and one (1) itemized construction cost estimate, all prepared by a
Professional Engineer, shall be submitted for final review and approval (MOTE: these
plans are in di ' to any drawings required by the Building Division and should only
include sheets relevant to public improvements). STAFF CONTACT: John Hagman.
Engineering Department.
c. Building permits will not be issued and construction of proposed public improvements
shall not commence until after the Engineering Department has reviewed and approved
the public improvement plans and a street opening permit or construction compliance
agreement has been executed. A 100% performance assurance or letter of agreement, a
developer-engineer agreement, the - payment of a permit fee and a sign
installation/streetlight fee are required. STAFF CONTACT: John Hagman, Engineering
Department.
d. Additional right-of-way shall be-dedicated to the Public along the SW Scholls Ferry
• Road frontage to increase the right-of-way to 37 feet from the centerline. If the existing
right-of-way has been dedicated to the required width, the applicant shall submit survey
and title information to confirm. The description of any additional right-of-way shall be
tied to the existing right-of-way centerline. For additional information contact
Washington County Survey Division. In the future when transit ridership is extended to
the subject property, the applicant may be required to provide transit stops, bus turnout
lanes and/or shelters at or near the "mini-park" in accordance with the design
specifications of the City's Engineering Department. The City may elect to require such
construction after duly providing notice to all landowners within 250 feet of the site and
conducting a scheduled public hearing for such decision.
e. Standard half-street improvements. including concrete sidewalk, driveway apron, curb,
asphaltic concrete pavement. sanitary sewer, storm drainage, streetlights, and
underground utilities shall be installed along the SW Scholls Ferry Road frontage,
including the frontage of all parcels within the minor land partition. Improvements along
SW Scholls Ferry Road shall be designed and constructed to Washington County
Uniform Road Improvement Design Standards and shall conform to an alignment
approved by the Washington County Engineering Department. For addition ai
information contact Washington County Engineering Department.
• f. The applicant shall obtain a facility permit from the Department of Land Use and
Transportation of ashincton Count. to perform work within the rght-of way of SW
FINAL REMAND ORDER - CPA 93-0920N 93-03JSDR 93-14 - ALBERTSON'S -17 EXHIBIT I
Page as of
Pages
Scholls Ferry Road. A copy of this permit shall be provided to the City Engineering
• Department prior to issuance of a Public Improvement Permit.
P. Standard half-street improvements, including concrete sidewalk, drveway apron,
streetlights, and underground utilities shall be installed along the SW Northview Drive,
including the 31.95 acre multi-family frontage of SW Northview Drive. Improvements
shall be designed and constructed to local street standards and shall conform to &.e
alignment of existing adjacent improvements or an alignment approved by the
Engineering Department. STAFF CONTENT: Michael Anderson, Engineering
Department.
h. The applicant shall submit sanitary sewer plans to the Cite of Beaverton for their
approval. The plans shall also be submitted for the review and approval of the City of
Tigard Engineering Department. A copy of the approved plans shall be provided to the
City of Tigard prior to the construction of any public improvements.
i. The applicant shall provide an on-site water quality facility as established under the
guidelines of Unified Sewerage Agency Resolution and Order No. 9147. Submitted
design information shall include an operation and maintenance plan. STAFF
CONTACT: Greg Berry, Engineering Department.
j. The Applicant shall demonstrate that storm drainage runoff can be discharged into the
• existing drainageways without significantly impacting properties downstream. STAFF
CONTACT: Greg Berry, Engineering Department.
k. The proposed privately operated and maintained sanitary sewer plan-profile details
shall be provided as part of the public improvement plans; and the storm drainage system
plan-profile details shall be completed in accordance with the Westech Report submit by
the applicant. STAFF CONTACT: Michael Anderson, Engineering Department.
1. The applicant shall obtain a "Joint Permit" from the City of Tigard. This permit shall
meet the requirements the NPDES and Tualatin Basin Emotion Control Program.
STAFF CONTACT: Michael Anderson, Engineering Department.
m. A grading plan shall be submitted showing the existing and proposed contours. A
soils report shall be provided detailing the soil compaction requirements. STAFF
CONTACT: Michael Anderson. Engineering Department.
n. The applicant shall provide a gee-technical report that addresses the slope stability
adjacent to SW Northview Drive and the overall grading conditions of the proposed
development, in accordance with the requirements of Chapter 70 of the Uniform Building
Code. STAFF CONTACT: Michael Anderson. Engineering Department.
• o. The applicant s ;all underground the existing overhead facilities along each frontage or
FINAL REMAND ORDER - CPA 93-09,20N 93-03: SDR 93-14 - ALBERTSON,s - 18 EXHIBIT I
Page L. of
Pages
pay the fee in-lieu of undergrounding. STAFF CONTACT: Michael Anderson,
Engineering Department.
p. An erosion control plan shall .lie provided as part of the improvement drawings. The
plan shall conform to "Erosion Control Plans-Technical Guidance Handbook, November
1989. STAFF CONTACT: Michael Anderson, Engineering Department.
q. The applicant shall provide a construction vehicle access and parking plan for approval
by the City Engineer. All construction vehicle parking shall be provided on-site or within
the SW Northview Drive and SW Walnut Street right-of-way. 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 the site improvements or buildings proposed by application, and shall
include the vehicles of all suppliers and employees associated with the project. STAFF
CONTACT: Michael Anderson, Engineering Department.
r. As a further condition of approval, duly given prior notice(s) and a scheduled public
hearing(s) shall be given for anv discretionary decision to allow change(s) in the
approved application, such as for any discretionary decision to allow change(s) in the
approved application, such as for future construction of an automobile access from the
site to Northview Drive, or changes outside mere compliance with mandatory code
provisions and regulations affecting compliance with any condition of approval identified
• herein. STAFF CONTACT: Mark Roberts, Planning Division.
s. The applicant and all tenants of the shopping center shall restrict the use of mechanical
parking lot sweepers, auxiliary generators, truck-loading activities and other similar
excessive noise generating activities to the hours of operation from 6:00 a.m. to 11:00
p.m. daily. STAFF CONTACT: Mark Roberts, Planning Department.
t. Windows shall be included in the grocery store facade facing SW Walnut Street by
including at least one window in each bay of the columned facade area (constituting not
less than a total of four windows). STAFF CONTACT: Mark Roberts, Planning
Division.
u. T'ne applicant shall provide a covered walkway in front of the grocery store, and in
particular the entrance way: and the columned facade area may be used to serve this
purpose. STAFF CONTACT: Mark Roberts. Planning Department.
v. Tne applicant shall maintain a minimum of a five-foot wide unobstructed walkwray
area in front of the grocery store that is free of display materials or other pedestrian
obstructions. STAFF CON T ACT: Iii ark Roberts. Planning Department.
w. The drivewav entrance at the southwestern corner of the site along SW Scholls Ferry
Road shall be moved approximately eighteen (18) feet to the south to comply with
Washineton County standaris for dricewav alignments with the proposed driveway
FINAL REMAND ORDER - CPA 93-09,20N 93-03: SDR 93-14 - ALBERTSON'S -19 EXHIBIT . i
Page Q4 of
Pages
access across from SW Scholls Ferry Road to the west. STAFF CONTACT: ?*,lark
• Roberts. Planning Division.
x. In the future the applicant may be required to provide an automobile driveway, in
accordance with the design specifications of the City's Engineering Department, for
access to and from the parking lot to SW Northview Drive, as follows:
(1) The future driveway would be located south of the building pad situated near
the intersection of SW Walnut and Northview Drive.
(2) The applicant will provide the City with a permanent easement for such
ingress and egress prior to occupancy.
(3) The applicant will be responsible for payment of costs of construction of such
drivewray, if and when it is required to be constructed.
(4) The City may elect to require construction of such driveway access after duly
providing notice to all landowners within 250 feet of the site and conducting a
schedule public hearing for such decision.
y. The applicant shall obtain an Indirect Source Construction Permit to comply with the
requirements of TCP Policy 4.1.1. In the event that the DEQ revises its regulations and
standards so that the applicant is no longer required to obtain such a permit prior to
constriction, the applicant shall provide the City with verification from the DEQ.
I Final Plat Application Submission Requirements:
A. Three copies of the partition plat prepared by a land surveyor licensed to
practice in Oregon, and necessary data or narrative.
B. The partition plat and data or narrative shall be drawn to the minimum
standards set forth by the Oregon Revised (ORS 92.050), Washington County,
and by the City of Tigard.
C. Copy of boundary survey.
STAFF CONTACT: John Hadlev, Engineering Department.
OC-
TH"P FOttOWNG CO DITION(S) SI4 OLtLD BE REQUIRED PRIOR TO FINAL
CUPANCY PERMIT:
4. Provide the Engineering Department with a recorded mylar copy of the final survey;
or if not recorded Stith Washington County but has' been approved by the City of Tigard
• the applicant shall have 30 days after recording with Washington County to submit the
copy.
FINAL REMAND ORDER - CPA 93-09,20N 93-03: SDR 93-14 - ALBERTSON'S - 20 EXHIBIT t
Page -s2f 0f
Pages
D. RULING ON ADiNlISSION OF EVIDENCE
Opponents have submitted documents and a memorandum for admission into evidence at
the City Council hearing on April 2:, 1996. The Applicant in its rebuttal statement has objected
to only the admission of evidence and testimony as to the size of Tax Lot 100's C-N designation
being allegedly 5 acres in size. - The City Council has decided to admit all of the opponents'
evidence and testimonv into the record. However. in reviewine this evidence and testimonv, the
City Council has taken into consideration the arguments raised by the Applicant as to the weight
and reliability that should be considered for this evidence.
EXHIBIT I
FINAL REMAND ORDER - CPA 93-09:20N 93-03,5DR 93-I4 - ALBERTSON'S - 21 Page -U of
Pages
FROM: City of Tigard FROM: City of Tigard
City Administration City Administration
13125 SW Hall Blvd., Tigard, OR 97223 13125 SW Hall Blvd., Tigard, OR 97223
TO: TO:
Albertson's, Inc.
John Shonkwiler c/o Don Duncombe
Attorney at Law 17001 NE San Rafael
13425 SW 72nd Avenue Portland OR 97230
Tigard, OR 97223
FROM: City of Tigard (FROM: City of Tigard
City Administration City Administration
13125 SW Halt Blvd., Tigard, OR 97223 13125 SW Ha!! Blvd., Tigard, OR 97223
PTO: TO:
Terry Mahr, City Attorney Barbara Collins
City of Newberg 14158 SW Northview Drive
414 East First Street Tigard, OR 97223
Newberg OR 97132
FROM: City of Tigard (FROM: City of Tigard
City Administration City Administration
13125 SW Hall Blvd., Tigard, OR 97223 13125 SW Hall Bivd., Tigard, OR 97223
TO: TO:
Scott Russell Jeff lQeinman
31291 Raymond Creek Road The Ambassador
Scappoose OR 97056 1207 SW Sixth Ave
Portland, OR 97204
EXH181T 1
Page of
__Pages
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BEAVERTON, OREGON 97075
Legal Notice Advertising
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.City of Tigard • ❑ Tearsheet Notice
13125 SW Ilall' Blvd.
•Tigard,Oregon 97223-8199 • ❑ Duplicate Affidavit
Accounts Payahle:Terry a !;.Thefollowing meetinghigh ilglit arepublished for youinforimadon:Fulli'i iyf;i,
;:agendas may be"obtained from the City'Recgrder,13,1 Hall<<;
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• community. She emphasized the importance of citizen involvement up front, pointing out
the community survey and the citizen Steering Committee. She_ cited the successful
experiences of Scottsdale, Arizona, and Milwaukie, Oregon, in acquiring money from grant
or other sources as a direct result of this process.
Ms. Newton said that she has also contacted Metro about getting money for the Visioning
process. She said that she has been encouraged to pursue funding because their process
could serve as a model for how other citizens might want to integrate the 2040 issues into
a city's future planning.
Ms. Mills commented that they have heard from the other cities involved in this process that
their relationships with other entities within the city (i.e., fire district, etc.) have improved
because they were all working from the same game plan and could make mutually
supportive decisions.
Mayor Nicoli asked if the proposed budget was included in next year's budget. Ms. Mills
said that it was but explained that the presentation at the Budget Committee meeting had
been based on the first budget. She said that if Council approved this, the revised budget
would be discussed at the June budget review.
Ms. Newton noted that Councilor Hunt has not yet seen the revisions since he was out of
town.
Mr. Monahan stated that staff could bring this back on the May 28th agenda for Council
action. He said that staff hoped for unanimous approval because of the considerable effort
and commitment on the part of staff and the Council to make it work.
Mayor Nicoli stated that he supported the process.
Councilor Scheckla expressed his reservations regarding the process. He stated that he did
not think he could support it. He said that he thought that they had enough volunteer people
telling the City where to go in the future without adding another survey, and that he
disagreed with Ms. Newton and Mr. Monahan taking time away from their job duties to do
this.
Councilor Rohlf stated that he strongly supported the process. He said that he didn't know
how anyone achieved goals without laying them out and working in a proper direction.
Councilor Moore stated that he agreed with Councilor Rohlf. He said that this was a good
time to be proactive and develop a road map to give them direction before events overtook
them.
Councilor Rohlf said that he would be willing to wait to vote on this matter until Councilor
Hunt returned.
6. CONTINUATION OF PUBLIC HEARING (QUASI JUDICIAL) ALBERTSONS'
INC./DUNCOMBE Land Use Board of Appeals (LUBA) Remand - Comprehensive Plan
Amendment (CPA) 93-0009/Zone Change (ZON) 93-0003; Site Development Review (SDR)
93-0014/Minor Land Partition (MLP) 93-0013
• a. Continue Public Hearing
CITY COUNCIL MEETING MINUTES - MAY 14,.1996 - PAGE 7
EXHIBIT
Page a~j_ of
-Pages
Mayor Nicoli asked for clarification on whether or not the hearing had been closed,
allowing only the applicant to provide rebuttal of written information.
Mr. Monahan introduced Terry Mahr, the City Attorney for the City of Newberg,
who was filling in for their City Attorney because of a potential conflict of interest.
Mr. Mahr confirmed that the hearing was in fact closed at the last meeting; the
applicant was allowed seven days to submit his rebuttal statement, and the record
was now closed. He noted a request from Mr. Kleinman (opponents' representative)
to give a four- to five-minute rebuttal; Mr. Shonkwiler objected to reopening the
record to allow that.
Mr. Mahr advised the Council that they did have the discretion to reopen the record
but noted that they would have to allow the applicant another seven days to submit
rebuttal unless he waived that right. He said that the Council could make a decision
tonight since the record was closed. He stated that both Mr. Kleinman and Mr.
Shonkwiler wanted to make additional arguments, should the Council reopen the
record.
Councilor Scheckla asked if a decision to allow additional testimony could be
appealed. Mr. Mahr stated that any decision made by the Council could be appealed
to LUBA, then to the Court of Appeals and the Oregon Supreme Court.
Councilor Rohlf stated that he was not inclined to reopen the record. Councilor
Moore and Mayor Nicoli concurred. Councilor Scheckla stated that he could go
either way.
b. Mayor Nicoli stated that they would not reopen the record. The public hearing was closed.
C. Council Consideration - Ordinance No. 96-20
Councilor Rohlf stated that he was comfortable with the findings except for the
language on page 8, TCP 8.1.3 (h). He said that he thought they had changed the
language to state that this policy did not apply in this situation because the property
was not near a bike path.
Councilor Rohlf asked staff whether or not the language in 8.4.1 was typical of the
language commonly used in findings . Mr. Bewersdorff stated that it was lengthy but
served the purpose and did not overstate the case.
Motion by Councilor Moore, seconded by Councilor Rohlf, to adopt Ordinance
96-20 as amended by Councilor Rohlf.
The City Recorder read the number and title of the ordinance.
Ordinance No. 96-20, an ordinance adopting findings and conclusions to approve a
comprehensive plan map amendment and zoning map amendment requested by
Albertson's Inc., CPA 93-09 and ZON 93-03.
•
CITY COUNCIL MEETING MINUTES - MAY 14, 1996 - PAGE 8
EXHIBIT
Page _30 of
Pages
• Councilor Rohlf expressed his distress that this application has taken so long to go
through the process. Councilor Moore concurred.
Motion was approved by unanimous roll call vote of Council present. (Mayor
Nicoli, Councilors Rohlf, Scheckla, and Moore voted "yes.")
7. PUBLIC HEARING (LEGISLATIVE) - ZONE ORDINANCE AMENDMENT (ZOA)
96-0003 - DEDICATION, RESERVATION AND IMPACT STUDY REQUIREMENTS
- The City of Tigard proposes amendments to the Community Development Code Sections
18.32.050 13.5, 18.32.250 E.2, 18.96.010 A. and 18.96.100 A. and B. to require impact
study, reservation and dedication requirements for public facilities and services.
LOCATION: City Wide. ZONE: N/A. APPLICABLE REVIEW CRITERIA: Statewide
Planning Goals 1, 2, 11 and 12; Tigard Comprehensive Plan Policies 1.1.1 a., 2.1.1, 2.1.3,
3, 7 and 8; Community Development Code Chapter 18.30.
a. Open Public Hearing
Mayor Nicoli read the hearing title and opened the hearing.
b. Declarations or Challenges: None
C. Staff Report
Dick Bewersdorff, Planning Manager, presented the staff report. He said that this
ordinance was before the Council as a result of the Supreme Court decision on
Dolan v. Tigard. He explained that these amendments drafted by the City
Attorney's office required an impact study to quantify the effect of each development
on public facilities and services. In the case where dedication was required, the
applicant would be required to comply with the requirements or to provide evidence
to support the conclusion that the requirements were not roughly proportional.
Mr. Bewersdorff stated that the amendment language also included language to
permit the reservation of park land, utility, greenway, and storm drain management
areas with setbacks from the reservation area rather than from the property line . He
explained that this would protect the City's ability to construct trails and to manage
drains.
Mr. Bewersdorff noted the public hearing before the Planning Commission on April
8 at which the Commission voted 4-3 to recommend that the Council adopt the
portions of the amendments requiring the impact study and the findings on rough
proportionality. He informed the Council that the majority of the Commission were
philosophically opposed to the new language under 18.96.010 and 18.96.100
regarding the reservation of land for future acquisitions; the other three members felt
exactly the opposite.
d. Public Testimony
Proponents: None
- Opponents:
CITY COUNCIL MEETING MINUTES - MAY 14, 1996 - PAGE 9
EXHIBIT
Page 3-~- of
Pages
CITY OF TIGARD
♦ u.\\
kno
Ii ♦ \\\\s`.
CUM
NNW,\
PUBLIC NOTICE: Anyone wishing to speak on an agenda item should sign on the
appropriate sign-up sheet(s). If no sheet is available, ask to be recognized by the
Mayor at the beginning of that agenda item. Visitor's Agenda items are asked to be
two minutes or less. Longer matters can be set for a future Agenda by contacting
either the Mayor or the City Administrator.
Times noted are estimated; it is recommended that persons interested in testifying
• be present by 7:15 p.m. to sign in on the testimony sign-in sheet Business agenda
items can be heard in any order after 7:30 p.m.
Assistive Listening Devices are available for persons with impaired hearing and
should be scheduled for Council meetings by noon on the Monday prior to the
Council meeting. Please call 639-4171, Ext 309 (voice) or 684-2772 (TDD -
Telecommunications Devices for the Deaf).
Upon request, the City will also endeavor to arrange for the following services:
• Qualified sign language interpreters for persons with speech or hearing
impairments; and
• Qualified bilingual interpreters.
Since these services must be scheduled with outside service providers, it is
important to allow as much lead time as possible. Please notify the City of your
need by 5:00 p.m. on the Thursday preceding the meeting date at the same phone
numbers as listed above: 639-4171, x309 (voice) or 684-2772 (TDD -
Telecommunications Devices for the Deaf).
SEE ATTACHED AGENDA
COUNCIL AGENDA - May 14, 1996 - PAGE 1 EXHIBIT r
Page 3 of
Pages
AGENDA
TIGARD CITY COUNCIL MEETING
• MAY 14, 1996
6:30 p.m.
• STUDY MEETING
> Report on City Hall Roof
> Discussion on Budget Committee Vacancy Applications
> Election Information Training
> Discussion on Ballot Measure 31
7:30 p.m.
1. BUSINESS MEETING
1.1 Call to Order - City Council & Local Contract Review Board
1.2 Roll Call
1.3 Pledge of Allegiance
1.4 Council Communications/Liaison Reports
1.5 Call to Council and Staff for Non-Agenda Items
T:35 p.m.
2. VISITOR'S AGENDA (Two Minutes or Less, Please)
T:45 p.m.
3. CONSENT AGENDA: These items are considered to be routine and may be
enacted in one motion without separate discussion. Anyone may request
that an item be removed by motion for discussion and separate action.
Motion to:
3.1 Approve City Council Minutes: April 9, 16 and 23, 1996
3.2 Receive and File:
a. Council Calendar
b. Tentative Agenda
3.3 Appoint M. JoAnn Hayes as Deputy City Recorder - Res. No. 96-
3.4 Adopt Fee Schedule for Land Use Application - Res. No. 96-
3.5 Approve Purchase of Ross Street Right-of-Way - Res. No. 96-
• Consent Agenda - Items Removed for Separate Discussion: Any
items requested to be removed from the Consent Agenda for separate
discussion will be considered immediately after the Council has voted
on those items which do not need discussion.
7:45 p.m.
4. REPORT ON OREGON FLOOD SUPPORT SERVICES OF WASHINGTON
COUNTY
Ron Carl
8:05 P.M.
5. DISCUSSION OF VISIONING PROJECT
• Assistant to the City Administrator and Administrative Analyst/Risk
COUNCIL AGENDA - May 14, 1996 - PAGE 2
EXH181 4
Page 0_ f
Pages
8:30 P.M.
6. CONTINUATION OF PUBLIC HEARING (QUASI-JUDICIAL) -
• ALBERTSON'S INC./DUNCOMBE Land Use Board of Appeals (LUBA)
Remand - Comprehensive Plan Amendment (CPA) 93-0009/Zone Change
(ZON) 93-0003; Site Development Review (SDR) 93-0014/Minor Land
Partition (MLP) 93-0013
a. Continue Public Hearing
b. Staff Report: Community Development Department
C., Public Testimony (Rebuttal Phase)
d. Staff Recommendation
e. Council Questions
f. Close Public Hearing
g. Council Consideration
9:00 p.m.
7. PUBLIC HEARING (LEGISLATIVE) - ZONE ORDINANCE AMENDMENT
(ZOA) 96-0003- DEDICATION, RESERVATION AND IMPACT STUDY
REQUIREMENTS
The City of Tigard proposes amendments to the Community Development
Code Sections 18.32.050 B.5, 18.32.250 E.2, 18.96.010 A. and
18.96.100 A. and B. to require impact study, reservation and dedication
requirements for public facilities and services. LOCATION: City Wide.
ZONE: N/A. - APPLICABLE REVIEW CRITERIA: Statewide Planning
Goals 1, 2, 11 and 12; Tigard Comprehensive Plan Policies 1.1.1 a.,
• 2.1.1, 2.1.3, 31 7 and 8; Community Development Code Chapter
18.30.
a. Open Public Hearing
b. Declarations or Challenges
C. Staff Report: Community Development Department
d. Public Testimony (Proponents, Opponents)
e. Staff Recommendation
f. Council Questions
g. Close Public Hearing
h. Council Consideration
9:20 p.m.
8. PUBLIC HEARING - SUPPLEMENTAL BUDGET
To discuss a proposed supplemental budget for 1995/96. The first notice
of the supplemental budget hearing and financial summary was published in
the Oregonian on Tuesday, April 30, 1996. A copy of the proposed
supplemental budget document may be inspected or obtained at Tigard City
Hall between the hours of 8 a.m. and 5 p.m., Monday through Friday.
a. Open Public Hearing
b. Declarations or Challenges
C. Staff Report: Community Development Department
d. Public Testimony
• e. Staff Recommendation
COUNCIL AGENDA - May 14, 1996 - PAGE 3
EXHIBIT
Page of
Pages
f. Council Questions
g. Close Public Hearing
h. Council Consideration
COUNCIL AGENDA - May 14, 1996 - PAGE 4Ie1T~/__
Page 3 of
Pages
9:45 p.m.
• 9. CONSIDER WETLAND MITIGATION ON CITY PROPERTY - BOWEN
DEVELOPMENT COMPANY
a. Staff Report: Community Development Department
b. Council Discussion/Questions
C. Council Consideration: Resolution No. 96-
10-00 P.M.
10. NON-AGENDA ITEMS
10:10 P.M.
11. EXECUTIVE SESSION: The Tigard City Council will go into Executive
Session under the provisions of ORS 192.660 (1) (d), (e), at (h) to
discuss labor relations, real property transactions, current and pending
litigation issues. As you are aware, all discussions within this session are
confidential; therefore nothing from this meeting may be disclosed by those
present. Representatives of the news media are allowed to attend this
session, but must not disclose any information discussed during this session.
10:30 p.m.
12. ADJOURNMENT
cca960514.doc
•
COUNCIL AGENDA - May 14, 1996 - PAGE 5
EXHIBIT 4
Page 69 of
Pages
AGENDA ITEM T V
• For A_enda of 5/ I~l G Ia
CITY OF TIGARD. OREGON
COUNCIL AGENMA ITEM S(JvR*vL RY
-
ISSUEIAGENDA TITLE Sornjuehens ve Plan Amendment CPA 93-0009_ Zone Chan;e ZON 93-0003
Albe-tson's Inc - LLB A Remand
PREPARED BY: Dick A. DEPT HEAD OK ~ CITY ADMIN OK
ISSUE RFFOR_E THE COUNCIL
Should the City Council adopt the attached ordinance and findings approving the albertson's Inc. Comprehensive
Plan and Zoning NRap Amendments?
STAFF R_FCONRMENDATION
Staff recommends that the City Council adopt the attached ordinance and findings as revised from the April 23.
1996 meeting.
INFORMATION SURMMARY
The City Council approved the Albertson"s Comprehensive Plan and Zone Map amendments as well as
*lopment plans subject to numerous conditions on December 27, 1994. The decision was appealed to the State
L d Use Board of Appeals. On October 20, 1995, LUBA remanded the application back to the Tigard City
Council for further review and findings on eight issues. No other issues of error were reversed by LUBA. The
City Council held a public hearing on the remand issues on April 23, 1996. The applicant requested the record be
held open for seven days to respond to issues raised by the opponents. The applicant's response is attached. The
ordinance and revised findings are attached. Changes made by the applicant include: 1) a revision in the
background information to redect the configuration of the CN zone through CPA 1-36 and ZON 3-96 [page 2]); 2)
a new paragraph on page 10 speaking to the opponent's concern relative to Air Quality Impact, TCP 4.1.1; 3)
added Rang".aQe on page 11 concerning the impacts of 3 acres of CC versus 6.93 acres of CN; 4) new language on
page 12 idenditidn_ the tax lot 100 location and regarding the "residential area" issue as well as the irrelevancy of
CN limits: 5) a new condition v on page 20 requiring the applicant to obtain an Indirect Source Pennit from DEQ;
and 6) a ruling on the admission or evidence on page 21.
OTLIFR ALTER-NATIVES CONSIDERED
i. Ma?~e :~Ons co u'i ^rMc:?ed or-' z anc° and dndings.
FTSC.AL N0'7-_S
No dire=: fiscal impacts
EXHIBIT
Page,~T"l_ of
Pages
• JOHN W. SHONKWILER, P. C.
Attorney at Uiv
13425 SW 72nd Avenue
Tigard, Oregon 9T1-3
Fax 6&1-8971
Phone 624-0917
April 29, 1996.
Mark Roberts
Planning Department
City of Tigard
13125 SW Hall Boulevard
Tigard, OR 97223
RE: Remand Hearing: Albertson's Application
File Nn_s CPA 9,-009. ZON 93-003. SDR 93-0014
and MLP 93-013
Dear Mark:
• Enclosed are 10 copies of a revised draft of the proposed Final Order and findin.-5. An
additional copy is provided with the changes highlighted in yellow. I believe these
changes will satisfy the appellate requirements for addressing opposition issues raised
during the City's hearing.
Thank you for your cooperation.
Sincerely,
JOHN W. SHONKWILER. P. C.
1
John W. Shonkwiler
cc: Don Duncombe
EXHIBIT
Page 3 of
Pages
• BEFORE THE CITY COUNCIL OF THE CITY OF TIGARD
ALBERTSON'S APPLICATION ) ALBERTSON'S, INC.'S
CPA 93-0009, ZON 93-0003, SDR } REBUTTAL STATEMENT
93-0014, NfLP 93-0013 )
I. OBJECTIONS TO ADMISSION OF EVIDENCE.
Jeffrey L. Kleinman, attomey representing Marcott Holdings, Inc., Matt Marcott and
MurrayhW Thriftway, Inc., submitted a memorandum dated April 23, 1996 to the Tigard City
Council. This memorandum purportedly was limited to addressing only those issues remanded
by LUBA and restricted by the City Council's notice for the hearing. However, Mr. Kleinman's
memorandum includes evidence or testimony pertaining to issues that are not within the scope of
the remand. Such issues, as discussed below, are not admissible into evidence in this proceeding
and cannot be raised in this proceeding. Mr. Kleinman and his clients have waived these issues
because they failed to raise them in the prior LUBA appeal or appeal LUBA's decision which
did not include those issues for remand. ORS 197.763; ORS 197.535; Colhouer v. Union Pacific
• R.R. Co., 975 Or. 559 (1976); Beck v. City of Tillamook, 313 Or. 143 (1992).
A. Size of Tax Lot 100 (6.93 acres or 5 acres
tifr. Kleinman limited his issues discussion to only two subjects: (1) Commercial
Compatibility-TCP Policy 5.4, and (2) Air Quality Impact-TCP Policy 4.1.1. These are remand
issues number 5 and 3, respectively, as identified in the "Public Hearing Notice' for the remand
hearing.
First, LUBA did not include as a designated deficiency in its remand order that the size
of Tax Lot 100 was an issue to be resolved on remand. There is no basis for Mr. Kleinman
raising this issue at this time. Secondly, Mr. Kleinman failed to raise this "potential" issue when
he filed the original appeal to LUBA. In Nlr. Kieinman's Petition for Review he admitted as
`'Nfaterial Facts'' that Tax Lot 100 corstiruted "(6.93 acres)". Indeed, his Fifth Assignment of
Error (raising a deficiency in the tirdintzs as to the application of TCP Policy 5.4) failed to raise
the issue that the designated 6.9: acre parce! was "potentially" less in size (as he now claims as 5
acres). See Nlr. Kleinnan's Petition for Review pages 4. 17-20, attached hereto as Exhibit "A".
Since Mr. Kleinman failed to raise this issue in the first appeal. he is precluded from
raising it during this remand. ORS 191.763: ORS 197'.S35. Colhouer v. Union Pacific R.R.
Co.. supra: Beck v. Cite of T iilamook. supra In fact. a c are^al reading of NL-. Kleiruran's orief
• estab!ishes that he rig er e,:en raise, the subject of the size of Tax Lot 100 other than descn-bins
it as 6.9: acres dzougi:out all his a!leaea assigr rents of e.-,or. The finding that Tax Lot 100
EXHIBIT 5
1 - .u BERT=o`•s..rN-C. - REBUT-i AL STATEMENT Page 3,Q of
Pages
• constituted 6.93 acres is set forth on page 1 of the Final Order dated December 27, 1994. LUBA
Record 005. The designation is also found on page 1 of Ordinance No. 94-27 (LUBA Record
003) and the Notice of Final Order (LUBA Record 002). Clearly, the "fact" issue of the size of
Tax Lot 100 was on the face of the approval order and findings. However, Mr. Kleinman did not
include as an assignment of error on appeal to LUBA that this 6.93 acre finding was in error or
not supported by substantial evidence in the record. This issue has been waived and all
references to the size of Tax Lot 100 in his April 23, 1996 "Memorandum" should not be
admitted into evidence-'record for this proceeding. Alternatively, such evidence should be given
little or no weight in deciding the applicable issues. Attached hereto as Exhibit "B" is a copy of
"ir. Kleinman's Memorandum with the pertinent provisions, highlighted in yellow, that should
be excluded.
Finally, if there is a question as to the meaning of the City Council's order creating Tax
Lot 100 and its C-N designation after construction of Walnut Street (effectively matching the
projected alignment of Vfurray Boulevard), the City Council has a simple solution. The City
Council can clarify in the findings that the meaning of the word "configuration" in Ordinance
No. 36-12 was meant to include modification of both the size of Tax Lot 100 and its C-N
designation to conform with the final alignment of Murray Boulevard. Then, a declaration can
be made that this new alignment now establishes that Tax Lot 100 is 6.93 acres of C -N. Such as
explanation in the findings could clarify that issue for the only parties in doubt (Mr. Kleinman's
clients in Beaverton) and, possibly, avoid yet another appeal.
U. REBUTTAL TO INIR. KLEIIN IAN'S MEMORANDUM ISSUES
A. Commercial Compatibility: TCP 5.4.
The essential elements of Mr. Kleinman's argument is that a 1 i/2 mile radius area is too _
large to be a proper planning consideration, that the restrictions for the Neighborhood
Commercial zone must be compared with the Community Commercial zone to evaluate
difre-ence in impacts, that the traffic impacts will be "several times greater than that produced
by the existing" C-N zone, and there is insufficient planning justification to move the
co=, .erci :l from the north side to the south side of Walnut Street
As a threshold issue, L1r. Kleinman strongly relies upon the characterization that the C-N
zone must be conside-ed as a maximum of D acres in size. This factual issue regarding the size
of Tex Lot 100 and its CN designation raises an issue that is outside the scope of this remand
proceeding, and was previously waived by Kleinman..
1. Residential Area. T'ne first ar211ment is that the 1 1/2 mile radius factor is too large
of an area for proper, planning. However. the 1 1/2 mile radius standard is set forth in the
locationai criteria requirements under TCP 12.2.1.4.A for establishing a Community Commercial
zone v.-ithin the City. That Comprehensive Plan text was not appealed to LCDC or LUBA when
is it was adopted. Significantly, Mr. Kleinman's clients were participants in the public hearings for
EXHIBIT 5._
Page
2 - ALBERTSOVS. RNC. - REBU'ri.-kL. sTATEMEN7
Pages
s
the adoption of that Comprehensive Plan text. A challenge to that distance criteria in this
proceeding is too late, and arguably waived by Mr. Kleinman's clients.
The real issue here is what is the proper area around the Applicant's site that should be
considered the "residential area" for purposes of applying TCP Policy 5.4. The Applicant has
proposed that the proper residential area should be described as:
"[Includes the existing Neighborhood Commercial located at the northeast comer of this
intersection (Scholls F.erry Road and Walnut Street), the 8 acre parcel proposed for
community commercial, the Castlehill residential subdivision located in the southeast of
the intersection, and the multifamily designations located to the west, northwest and
south." Proposed Final Remand Order at 10.
The Applicant's reference to the Community Commercial distance separation between
commercial uses of 1 M mile radius was merely to show that the above "residential area"
definition would not conflict with the Community Commercial standards. Since the Mr.
Kleinman appears to have been confused by inclusion of that information, it would be
appropriate to merely delete references to the 1 1/2 mile radius criteria in the findings pertaining
to TCP Policy 5.4.
2. Comparison of N-C restrictions.
• The City Council should not consider a comparison of restrictions between the C-N and
the Community Commercial zones in analyzing impacts of the Albertson's application. First,
the City Council's previous approval of the Albertson's application included a finding that the
replacement of C-N zoning on the subject property with the new Community Commercial
zoning was necessary to correct a "mistake" that occured when the property was previously
annexed into the City. This included a specific finding that TCP Policy 1.1.1 and CDC 18.22
were satisfied and the mistake was corrected by adopting the Community Commercial zoning.
The legality of justifying the Community Commercial designation through a "mistake"
was raised and argued before L1 BA on the appeal. LL-BA stated in its Opinion at page 30 that
" Petitioners (.'-vir.' 'tleinman's clients) attack the city's findings for failing to analyze the
consequences of replacing an C-N designation with a C-C designation." In ruling on this
challenged finding, LUBA held: "The analysis is adequate to justify a quasi-judicial amendment
to the plan and zoning maps on the basis of an earier rrisrakz at the time the area including the
a iber-aon's site was annexed by the city." (Emphasis Added). Lt,TBA Opinion at 31.
Essentially, LliBA has found that the City was correct in r-,plac;.nQ the C-N zone with the
C-C zone because the earlier C-N zone was a mistake. The substantial evidence supporting the
.ndinQ of "mistake*' identified that the City of Tigard should have adopted commercial zoning
equivalent to the existinga Washineton Countv zoning for this prope-t at the time of annexation.
T:ze Cirv's new C-C zoning is r:eariv eouivalezt vizh the Washington County zoning that had
• appiied to the property before annexation. Those findings and supporting substantial evidence
were spec.
- Ilv uphe'.d by LUB a . See Lt BA Opinion at _331. footnote 18.
irca
EXHIBIT 5_
- ALBERTSON-& IBC. - R. BLTAL STA T EMEN i Page H_ of
Pages
• As a result, an analysis of the restrictions in the C-N zone is totally irrelevant. T-ne
proper analysis is the commercial impacts for the 6.93 acre parcel, fully developed as
Community Commercial, as compared to the Applicant's proposal for the 8 acre parcel. For
example, iVlr. Kleinman attempted to compare the 2 acre maximum size limitation in the C-N
zone to the proposed 8 acre of Community Commercial. Since the finding that C-N should never
have even been adopted for the property was upheld by LUBA, this analysis.is illogical. The
proper analysis is that Tax Lot 100 (6.93 acres) could be fully developed as C-C or up to
100,000 square feet of commercial space. In comparison, Albertson's proposal only involves
57,550 square feet of commercial commercial on the 8 acre parcel. Also, Albe:tson's proposal
provides 30% of the site for landscaping. The C-C zone only requires 20%. Albertson's
proposal also includes a dedication of right-of-way along its entire frontage with Scholls Ferry
Road. Tax Lot 100 is triangular shaped and only has the "point" of the triangle abutting Scholls
Ferry Road (requiring very little right-of-way dedication).
The combination of increased landscaping ( an additional 10% of the entire site) and
right-of-way dedication reduces the commercial usage of the Albertson's site to nearly a direct
equivalent with the developable commercial usage of Tax Lot 100. The impact difference of
changing the C-N to C-C on the Albertson's site is essentially "zero". The Kittleson traffic
studies establish that there will be no significant difference. The recent Westech report
establishes that there will be no significant ` offsite" impacts by the Albertson's development and
the "discharges" from the project will be contained or filtered to satisfy all applicable city, state,
• federal and regional governmental requirements.
Further, this entire analysis by Mr. Kleinman under the remand issue for TCP Policy 5.4
was raised and fully rejected by LUBA under the Eighth Assignment of Error. He is now
attempting to circumvent LUBA's denial of his Eighth Assignment of Error (for TCP 12:1.1) by
transferring the same argument over to the remand issue on TCP 5.4. However, he failed to raise
this argument under TCP 5.4 before LUBA and, effectively, has now waived it.
3. Traffic Impacts allegedly increased by Community Commercial designation.
Again,'Ar. Kleinman's amument raises an issue that is not directly relevant. The existing
C-N zone was not the correct zoning for the subject property and the replacement of this zone
with Community Commercial has been upheld by LLB A as correcting the "mistake". Second,
Mr. Kleinman relies upon a letter --witten by N1r. Robert Bernstei,-i as substantial evidence for his
assertion that the C-C zonin,2 traffic wviIl "be several times Greater than that produced by the
existing" C-N designation. dlr. Bernstein's letter does not support that assertion. Mr. Bernstein
fails to provide any factual data, calculations, description of assumptions for his analysis, or
reasoning for his conclusion.
For example, did dir. Bernstein tare into account that the Albertson's application only
proposes using 57.5% of the allo,,t.-able corrtr.Iercial use in the zone? Was he comparing
• inaxim tt corm-nerctal square rootage for C-C against maximum square footage for C-N? Was
he comparing 8 acres of C-C against 2 acres of C-N (as %L-. Kleinman argues as being applicable
- ALBERTSO\'S. r\C. - REBLTt.4L STA TE-MEv7 EXHIBIT
Page 4Q of
Pages
at page 3 of his memorandum)? We only know that Mr. Bernstein relied solely upon
. representations made to him by Mr. Kleinman ("I have reviewed your description and
comparison of the types and intensities of development'. We do not have those "assumptions"
attached to Mr. Bernstein's opinion letter. This letter is only an "opinion" without any factual
oasis or support, and thus, cannot be used as substantial, believable or reliable evidence.
In contrast, the Applicant has provided in the record complete traffic reports, including
detailed data, assumptions, analysis and reasoning to establish that the traffic impact difference
between commercial development of Tax Lot 100 and the Albertson's site is relatively
insignificant. Sze, Kittleson Report submitted as Exhibit "A" of the Applicant's Remand
Statement, LUBA Record 350-351, 620-621, 702-847, 1233-1323, 1473-1319, and 1917-1961.
The City Council is entitled to rely upon the substantial and believable evidence submitted by the
Applicant as a basis for its decision. City of Portland v. Bureau of Labor and Industries, 298 Or.
104, 119, 690 P.2d 475 (1989).
4. Basis for moving the commercial across Walnut Street.
There are numerous planning advantages for moving the commercial zoning to the south
side of Walnut Street. The long and narrow triangular shape of Tax Lot 100, with its narrow or
pointed-end facing westward toward Scholls Ferry Road, precludes any practical development of
this parcel for commercial uses. The narrow triangular shape will not accommodate sufficient
space to allow for the needed commercial uses and adequate buffering from adjacent residential
• uses. This site cannot provide adequate access from Scholls Ferry Road, and thereby would
burden Walnut Street by requiring all traffic to ingress and egress at that one street. Multiple
accesses, usually required for assuring traffic circulation and safety, would be difficult to provide
because of the parcel's narrow shape. The site is also on level ground with abutting residential
uses, with no separation by a street or other use, particularly necessitating adequate onsite
bufferin,. -
By moving the commercial designation to the proposed Albertson's site on the south side
of Walnut Street, the commercial can now be accommodated on a retangular shaped parcel. This
allows for the opportunity to provide 30% of the total site for landscaping and buffering
(whereas the City's Code only requires 20%). This additional buffering further enables the
development plan to provide landscaping widths along the parameter that range from twice to
over ten times the minimum width required by the City's Code. T'ne Albertson 's site also has a
hillside tocooraphy that allows the site to be excavated by 21 feet at the uphill end of the
property. T'his enables the development to be lowered so that all visuai, noise. dust and other
related impacts of the de': elopment are eliminated or diminished by a combination of
Iandscapins buff er area and beins substantially below the abutting Castlehill and other residential
desisnations to the south and east. The site excavation will provide a slope upward from Scholls
Ferry Road through the perimeter landscaped area before leveling off at the parking lot and
combined with the proposed iandscaping.,burie:ing, will adequately buffer the impacts of the
development from multifarni1v residential uses proposed to be developed west of the site.
•
- 1.LBERTSO\'S. tLC. - REBL'TAL STATEN-1 E~ T EXHIBIT
. Page 43 of
f
Pages
TCP Policy 5.4 seeks to ensure that "new" commercial shall not encroach into residential
areas that had not been designated for commercial. First, this residential area is not being
encroached by new commercial. The commercial usage was already designated for this
"residential area." The Community Commercial is merely replacing the Neighborhood
Commercial designation. This replacement is consistent with the language of TCP Policy 5 and
the finding that the C-N zoning was a "mistake." There is nothing in the policy that restricts
changing one commercial use for another or moving the commercial use to a different and better
location within the "residential area". Further, the Albertson's proposal complies with the
purpose for this policy, ie., to assure that the residential uses in an area are not subjected to
significantly increased adverse impacts of commercial uses. Here, the Albertson's proposal
solves the inherent impact problems that exist for developing the triangular Tax Lot 100 parcel.
By moving the commercial designation across the street, the commercial development can now
adequately screen and buffer the commercial use from all surrounding residential uses.
S. Response to documents introduced by Mr. Kleinman into evidence.
Notice of Final Decision (CPA 1-86 'and ZC 3-86), Ordinance No. 86-12, Staff
Report dated February 4, 1986 (Exhibit A to Order No. 36-12), Map (Exhibit B attached to
Order No. 86-12). All of these documents pertain to the issue of what size Tax Lot 100 is for
purposes of its Neighborhood Commercial (C-N) designation. As identified above under
subsection A, all of these documents relate to an issue that is outside the scope of the remand
hearing. The issue of parcel size was not timely raised in the previous LUBA appeal, and -was
• therefore waived by Mr. Kleinman. He cannot now raise this issue when he has already waived
all rights to challenge that factual determination.
The Applicant does not object to the submittal of these documents because, apparently,
they are already in the record from the earlier proceedings. However, this merely enhances the
argument that Mr. Kleinman had full awareness and opportunity to raise this issue before LUBA
on the previous appeal. Since he failed to do so, consideration of this issue is waived.
City of Beaverton Letter dated October 4, 1991. Mr. Kleinman also sought to
introduce the letter from the City of Beaverton dated October 1991. However, this letter
identifies that it only pertains to Comprehensive Plan amendment 91-0003 and Zone Change 91-
0006. This was an application submitted to the City of Tigard in 1991 that was for a "General
Commercial" zoning designation and involved different proposed uses on the property. That
application was subsequently stayed and no final decision was ever adopted.
Tae present application (CPA 93-009 and ZOO 93-003) is not the same application, nor
involving the same public hearing process. As a result, this letter from the City of Tigard has no
relevancy to the present proceeding or issues on re=mand. For this document to be relevant in this
proceeding, Mr. Kleinman should have apoealled the issue of "coordination" with the City of
Beave ton in the 1991 application: and'or that 1991 application must have formed a substantial
evidenc_- basis for the present 199= auplication. Further. that "basis" must also be a material
• factor per-aining to the'LUBA rernand issue regarding TCP Policy 5.4. There is nothing in the
record that establishes those necessary connections. Instead, notice was provided to the City of
EXHIBITS
0-
ALBERTSON"S. f\C. - UK T AL STATEME`"r Page -q.-q- of
Pages
Beaverton for all proceedings in the present application. The City of Beaverton did not raised
any objections to approval of this Albertson's application.
B. Air Quality Impacts-TCP Policy 4.1.1.
Mr. Kleinman asserts that the criteria under Policy. 4.1.1 are not being addressed by
Albertson's application and specifically implementation strategy no. 3 has been ignored.
However, the Westech Report (Exhibit "B" of Albertson's, Inc., Remand Statement) identifies
that the criteria and the DEQ Handbook are implemented by compliance with Oregon's Indirect
Source Review Program. The Westech Report goes on to identify the criteria and factors
establishing that the Albertson's application will be able to obtain the necessary permit. This
Exhibit "B" at 1 and 7 identify that Westech had contacted the DEQ, conferred on the
requirements and expectations of compliance feasibility, and incorporated those statements
.within the Westech Report. All of the requirements of TCP Policy 4.1.1 have been satisfactorily
addressed and the Applicant has adequately established that compliance with the policy is
"feasible."
The City Council may wish to include an additional condition of approval in its final
order that would clarify that the Applicant must obtain, prior to issuance of any building permits,
either approval of the Indirect Source Construction Permit Application or verification from the
DEQ that its revised regulations and standards no longer require such a permit.
M. CONCLUSION.
The Applicant has provided the City with sufficient evidence and revised findings to
assure that the LUBA requirements on remand are satisfied. An additional revision to the
findings to incorporate the subject matters addressed above shall be immediately provided to the
City Council by the Applicant. In addition, Mr. Kleinman has only challenged two of the eight
remand items listed in the notice for these proceedings. Thus, the decision and findings
pertaining to (1) Transportation-TCP 8.1.3iTCP 8.4.1, (2) Air/Water Quality-LCDC Goal 6, (4)
Water Quality Compliance-TCP 4.2.1, (6) Buffering-TCP 6.6.1, (7) Storm Drainage Facilities
Feasibility-TCP 7.1.2, and (8) Design Criteria-CDC 18.61.055 are not being challenged during
this proceeding.
:Idbertson's, Irc., respectfully requests that the proposed order and revised findings be
approved and adopted by the City Council.
Respectfully submitted,
W. SHON: ~T R, P.C.
i For the Applicant: Albertson's, Inc.
✓ S
7 - A1.3ERTSON-s. r.`c. - RE3Lrr i AL STATEMENT EXHIBIT
Page IT of _LiL Pages
i
.are intended to address.
• Respondent misconstrued the applicable law and-failed to
I
make adequate findings supported by substantial evidence;
exceeded its jurisdiction; and failed to follow the notice
procedures applicable to the matter before it in a manner which
I
prejudiced petitioners' substantial rights by approving an
application and making a decision in which the actual location of
the property and the proposed uses changed frequently.
C. 7m,_Ummary of Material Facts.
Albertson's Inc. ("Applicant") submitted the within
1
application with respect to Tax Lots 100 and 200 at the northeast
and southeast quadrants of the intersection of SW Scholls Ferry
Road and SW Walnut Street in Tigard. (R. 2) Applicant proposed
M
i
to develop approximately eight acres with a 40,000 square foot
it \
Albertson's grocery store, and five additional tenant "pads" for
commercial development, two comer sing 4,000 square feet, and the
others comprising 5950, 2400, and 1200 square feet, respectively. ,
(R. 5) This development requires a "flip-flop" of the existing
plan designation and zoning, with Tax Lot 100 changing from
commercial to residential, and Tax Lot 200 changing from
residential to commercial. (R. 9-10) Specifically, the proposed
changes are as follows:
1. File No. CPA 93-0009/ZCA 93-0003. For comprehensive
plan and zone change approval, (1) to redesignate Tax Lot 100
(6.93 acres) from C-N (Neighborhood Commercial District) to R-25
(Medium-High Density Residential, 25 units per acre); and (2) to
• 4 - PHTITION FOR REVIEW
T EXHIBIT PAGE _1 OF Page 4 6. of
Pages
~l
- 1
plan :to a later point in the development process. Respondent
cannot leave Plan policy compliance to another time if the Plan
policy is applicable at this time. Most importantly, neither the
design process nor the building process is a public process in
Tigard.
All applicable water quality issues must be determined at
this point in the process. -After all, there is nothing in
respondent's decision which would stop the applicant from
dropping out of the site design process at this time; preserving
the plan amendment and zone change awarded herein; and preserving.
the ability to chan~e the site design later.
E. lifth Assignment of Error. Respondent Misconstrued the
.
Applicable Law and Failed to Make Adequate Findings Supported by
Substantial Evidence that the Application Herein Complies with ~
Statewide Planning o ivision 9: ahd Plan
Policy 5.4. i
Respondent's sole finding with respect to Goal 9 (Economic
Development) is that the goal "is satisfied because the proposed
redesignation would increase the City's inventory of developable
commercial land, thereby increasing employment opportunities in
t`~e City." (A-29-30) However, Goal 9 requires substantially
more analysis, and especially an analysis of commercial land
needs within the jurisdiction. This is especially true in
respondent's case, given the 'importance of such land allocations
during periodic review, in a plan which was coordinated with
those of Washington County and the City of Beaverton.
17 - PETITION FOR REVirg
EXHIBIT ! EXHIBIT -5
PA,r. c -~:L Jc , Paged of
Pages
i
Goal 91s implementing rule, OAR Chapter 660, Division 9 (A-
45), adopted pursuant to ORS 197.712, requires local governments
to designate and prioritize economic development opportunities
and sites which may be used for the same; respondent has not done
so herein. Goal 9 and Division 9 together require, consistent
with the alternatives and policy choice language of Goal 2, a
reasoned evaluation of alternative sites, and an analysis of
commercial land needs and availability. OAR 660-09-015.
In order to justify the comprehensive plan amendments
herein, respondent must present findings supported by substantial
evidence, showing (1) a review of respondent's commercial land
inventories, and (2) the basis for reallocation of lands under
these criteria. Td. Specifically, respondent must show ho 6.93 i
• S
acres of what was "Neighborhood Commercial" land are equivalent s
to eight acres of "Community Commercial" land. Respondent
appears to assume this equivalence, but fails to directly address
it or demonstrate it.
As part of its Goal 9 finding, respondent discusses its Plan '
Policy 5.4. However, neither this policy nor any other policy in
the Economy.portion of the Plan is included in the notice of
these proceedings. (See, e.g., A-1.)
Policy 5.4 requires that "new commercial and industrial
development shall not encroach into residential areas that have
not been designated for commercial or industrial uses." (A-56)
In this regard, respondent found that the newly Community
Commercial property would be-compatible with nearby residential
18 - PETITION FOR REVIEW
EXHIBIT 5
EXHIBIT
PAGE 61 OF Paged of
Pages
properties and is physically separated from them by streets on
• three sides and a slope on the other. (A-30) Respondent also
found that a "commercial service center of modest size" has been
• r
contemplated in this area since 1983. (Id.) _
Respondent's finding is inadequate in several ways.. First, 1
it is simply wrong to suggest that compatibility with residential
. r
uses is assured by the presence of an intervening street.
Secondly, respondent has failed to define the terms, "commercial
service .center", and "modest size". These surely could not
describe a strip shopping center with a 40,000 square foot
supermarket, five other as yet unidentified commercial
businesses, and the associated, vast expanse of parking spaces.
Moreover, the previously contemplated use was in the
category of Neighborhood commercial, rather than Community
i~
*Commercial. Among other differences, the latter would allow
i.
restaurants, bars, general retail sales, and general office use,
while the former would not.. (Compare, CDC 18.61.030 (A-81-82) to
CDC 18.60.030 (A-76-77).) Respondent has not addressed CDC 18.60
1
. -in its decision at all.
Further, the preexisting Neighborhood Commercial site
occupies a different quadrant of the intersection in question;
the "flipping" of the commercial sites results in the
encroachment of coaaercially designated land where it did not
exist before.
Respondent seems to regard the two sites as fungible, an
assumption which underlies this-entire proceeding. These
•19 - PETITION FOR FVIE14
A
EXHIBIT - EXHIBIT 5
PAGE It- OF Page H q of
Pages
I~
properties are not identical and do not share the same location.
i
If the City wishes to rely upon some notion of fungibility here, '
it must first make the appropriate finding, supported by
substantial evidence in the record. In the meantime, the result
of respondent's casual "flip" is a plan amendment expressly '
violating Plan Policy 5.4. ;i
7. Sixib Assignment of Error. Respondent Misconstrued the
Applicable Law and Failed to Make Adequate Findings Supported by
Substantial Evidence that the Application Herein Complies with
;I
Statewide Planning Goal 10; OAR Chapter 660 Division 7• and Plan
Policy 6.6.1.
As is the case with commercial lands under Goal 9 and OAR
Chapter 660, Division 9, Goal 10 (Housing) and OAR Chapter 660,
.Division 7 (A-41) require respondent to take into account its
finite supply of residential lands. OAR 660-07-030(1) requires
~I
respondent to "either designate sufficient buildable land to
provide the opportunity for at least 50 percent of new
residential units to be attached single family housing or j~
multiple family housing or justify an alternative percentage
based on changing circumstances." ~
Respondent has found that Goal 10 is "satisfied because the !f
:i
proposal will result in a loss of 1.07 acres of R-25 land and a
net residential opportunity of 26 units." (A-30) However,
respondent's calculations of the net effect of the "flip", set
out at A-16, assume the continued availability of the remaining
• 3.95 acres of Tax Lot 200 for multifamily development. The
20 - PETITION FOR Rrz'VIEW
EXHIBIT A EXHIBIT 5
PAGE S OFS Page S0 of
Pages
JEFFREY L KunrxAx
THE AxaAssA ca
1207 S.W. scxrs ,vz.'%=
FoRTLm%m. Oxzcov 97204
TzuPHoNrz (503) 248.0809
FAX (303) 2294529
April 23, 1996
M E M O R A N D U M
To: Mayor and Members of the Tigard City Council
From: Jeffrey L. Kleinman
Re: Albertsonos, Inc., CPA 93-0009/ZON 93-0003
.On behalf of my clients, Marcott Holdings, Inc., Matt
Marcott, and Murrayhill Thrift-day, Inc., I would like to respond
to two of the key issues addressed by Albertson's in this remand
• proceeding.
1. COZORCIAL COMPATIBILITY: TIGARD COMPREHENSM PLAN
POLICY 5.4.
Perhaps the most important issue for which LUBA remanded
this case to the city is that of "Commercial Compatibility" under
TCP 5.4. TCP 5.4 provides as follows:
"The City shall ensure that new commercial and
industrial developments shall not encroach into residential
areas that have not been designated for commercial or
industrial uses." (Emphasis added)
In t::is regard, LUBA held as follows:
"The [challenged decision] falls short of describing
what is proposed: the substitution of a larger development
for a smaller one, on an oooosite corner of the same
intersection, when both the existing and proposed locations
border residentially zoned property. * * Marcott
• Fc! linas. Tnc. v. Ci tv of Tigard, LUBA (CUBA No. 95-
011, Final Ooinion and Order, October 20, 1995, at 21)
1 - OP?O S' Z*.r..uCR~YDUM
EXHIBIT EXHIBIT 5
PAGE l OF Page 5 of
Pages
The findings proposed by Albertson's in the draft submitted
• to the city do nothing to resolve the problem identified by LUBA.
Albertson's has chosen to fudge this issue by making use of the
one and one-half mile radius trade area established for Community
Commercial uses by TCP 12.2.1, section 4.A, and stating that if
commercial exists within that radius, moving any commercial
designation within that radius "will not create new commercial
where no commercial previously existed." The proposed findings
state:
"The N-C designation already existed in this designated
'residential area'; and the C-C designation will replace it
and shift across Walnut Street to the other corner (all
within the same 'residential area')."
Both the practical effect of and the dangerous precedent
established by this finding are evident. If you are a resident
• of Tigard living within one and one-half miles of any property
bearing any of the city's commercial designations, you will be
subject to the siting of new or relocated commercial uses any
place up to your doorstep. You will have no protection
whatsoever under TCP 5.4, even though that policy was adopted
specifically to provide protection from an encroachment of
commercial and industrial development into residential areas.
Such an interpretation would violate both the express language of
and the policy behind TCP 5.4.
An analysis of the applicant's proposal under TCP 5.4 can
certainly be performied. Unfortunately, Albertson's apparently
does not wish to perform one. A reasonable analysis would take
• into account the factors set out below.
2 - OPPONEN'TS' MEMORANDUM
EXHIBIT EXHIBIT S
PAGE r OF -:Z- Page 5_Q .of
Pages
The applicant proposes to swap "6.93" acres of Neighborhood
• Commercial E(actually, just five acres, according to the staff
report in Case No. CPA 91-0003/ZCA 91-0006, to which the
applicant has referred the City Council]) on one side of an
intersection for eight acres of Community Commercial on another
side of the same intersection. Those eight acres are presently
zoned R-12 and R-25.
The applicant states, "the net impact to surrounding
residential uses is not significant." Assuming for the sake of
argument that the two sites are the same size, what would be the
impact of establishing a Community Commercial rather a
Neighborhood Commercial use in light of the following differences
under the Tigard Municipal Code?
A. Neighborhood Commercial site size is limited to two
acres. TCP 12.2.1, section 1.A.(2). Community Commercial sites
start at two acres in size, and have a maximum size of eight
acres. TCP 12.2.1, section 4.B.(3) (a). Hence, the applicant's
proposal is actually for a project four times larger than would
be permitted in the C-N zone.
B. Neighborhood Commercial centers have a confined
neighborhood trade area, limited to 5,000 people. TCP 12.2.1,
section. 1.A.(1) Community Commercial centers are intended to
se;-ve a much large: trade area, within a one and one-half mile
radius. TCP 12.2.1, section 4.A.(1).
C. The Neighbonccod Commercial designation does not permit
res-aurants,-bars, general retail sales, and general office use.
3 - OPPON~'NTS , N.Z !ORANDr.v.
EXHIBIT EXHIBIT 5
PAGE OF Z-- Page .53 of
Pages
CDC 18.60.030. The proposed community Commercial designation
• does. CDC 18.61.030.
D. Individual uses on a Neighborhood Commercial site are
limited to 4,000 square feet. CDC 18.060.045.A.2. The Community
Commercial designation allows 40,000-square-foot super markets,
and general retail uses of up to 10,000 square feet per store.
TCP 12.2.1, section 4.A.(2).
E. The gross commercial floor area permitted by the
Community Commercial designation is 100,000 square feet. TCP
12.2.1, section 4.A.(2). This is substantially more than the
tots site size of two acres allowed for Neighborhood Commercial
development, regardless of the commercial floor area actually
built.
NO IMPACT? We are compelled to disagree. The traffic
• impacts brushed off by the applicant, and every additional impact
associated with large-scale commercial development, will be
several times greater than that produced by the existing,
Neighborhood Commercial designation.. The impact on traffic is
confirmed by traffic engineer Robert Bernstein, P.E., in the _
letter attached to this memorandum.
I
Another aspect of the proposed finding under TCP 5.4'also
warrants scrutiny. If one agrees that there must some impact
resulting from moving a Community Commercial use onto what is now
an R-12 and R-25 site largely surrounded by developed residential
uses, then both the site and the impact must be described and
discussed in reasonable detail. Clearly, t::e applicant does not
4 - 0PPCNENTs, MEmoR. A-mum
EXHIBIT n_ EXHIBIT 3
PAGE OF Page 54 of
Pages
wish to do this. However, this must be done' in order to make the
• necessary finding concerning "encroachment" under Policy 5.4.
The "baseline" analysis is missing.
Clearly, a primary motivation for the proposed plan and zone
switch herein is to permit more intensive development on an
eight-acre site, rather than less intensive development on two
acres of a site comprising a total ofFeither five or 6.93 acres.
Why else would the applicant be here? This switch may somehow be
feasible under Policy 5.4, but not on the basis of the evidence
in this record or the proposed findings before you.
2. AIR QUALITY IMPACTS: TIGARD COMPREHENSIVE PLAN POLICY
4.1.1.
LUBA also affirmed our assignment of error pertaining to TCP
4.1.1, which provides in material part as follows:
• "The city shall:
"a. Maintain and improve the quality of Tigard's
air quality and coordinate with other
jurisdictions and agencies to reduce air
pollutions within the Portland-Vancouver Air
Quality Maintenance Area. (AQY.A).
"b. Where applicable, require a statement from the
appropriate agency, that all applicable-
standards can be met, prior to the approval of
a land use proposal.
"c. Apply the measures described in the DEQ
Handbook for 'Environmental Quality Elements of
Oregon Local Comprehensive Land Use Plans' to
land use decisions having the potential to
affect air quality."
implementation Strategy 3 requires the city to "use
measures descr_bed in the DEQ Handbook for 'Environmental
Quality Elements of Oregon Local Comprehensive Land Use Plans'
• 5 - OPPON..`TE':TS ' XZ.. M
CRXNDCM
EXHIBIT 5_
EXHIBIT Page S5- of
FGc OF % Pages
when planning any development activities having the potential
• to directly (by direct emissions) or indirectly (by increasing
vehicular travel) affect air quality."
Implementation Strategy 5 requires the city to "consult j
and coordinate with the Oregon Department of Environmental
Quality to ensure that land uses and activities in Tigard
comply with Federal and State air quality standards."
Even with the new materials with which the applicant has
embellished the record, there is no evidence that any of the
above requirements have been complied with. This is
especially true of Policy 4.1.1(b)*and (c), and the two
Implementation Strategies identified above.
The record shows only that an Indirect Source
• Construction Permit Application "is being prepared" and will
be submitted to DEQ. (Westech Report, page 5) The
information submitted by the applicant is insufficient to
justify a finding of compliance with TCP 4.1.1 at the present
time.
Conclusion
Fcr the reasons set forth above, the applicant has not
yet complied with the approval criteria described in this
memorandum. The application shculd therefore be denied.
;Res ectfully submitted,
y Keinman
JLK ay /
6 - OPPON'ENTS' u .`~ORAINMUM
EXHIBIT EXHIBIT 5
01 Page Sb of
PAGE OF Pages
ROBERT BERNSTEIN. P.E.
Consultln~ Trscu~rt.►uvn ;:n~jinctr/t'bnnrr
507 - 18th Avenue East t206) 325-4320
Seattle. Washington 98112 fax (206) 325-4318
April 23, 1996
Mr. Jeffrey Klanman r RECEIVED
T'ne Ambassador
1207 SW 6th Ave APR 2 31996
Portland, OR 47204
xsY r.. xysc.`1MAX
,,jj=oR.yss AI L&W-
Dear Mr. Kleinman,
Per your request, I have reviewed your description and comparison of the types and intensities
of development allowable in the City of Tigard's "Neighborhood Commercial" and "Community
Commercial" zones. I agree with your conclusion that in the situation you have described, the
traffic-generating potential of the Community Commercial zone significantly exceeds the traffic-
generating potential of the Neighborhood Commercial zone.
If you have any questions, or if you require further assistance, please call tire.
i
Sincerely.
~MV)
Robert Bernstein, P.E.
•
EXHIBIT 5
EXHIBIT Page of
PAGB OF Pages
F
• JOHN W. SHONKWILER, P. C.
Attorney at Law
13425 SW 72nd Avenue
Tigard, Oregon 9r-M
Fax 684-3971
Phone 624-0917
April 29, 1996
Mark Roberts
Planning Department
City of Tigard
13125 SW Hall Boulevard
Tigard, OR 97223
RE: Remand Hearing: Albertson's Application
File No.s CPA 93-009. ZO 93-003. SDR 93-0014
and MLP 93-013
Dear Mark:
• Enclosed are 10 copies of Albertson's, Inc., Rebuttal Statement. Please feel free to call if
you have any questions. A revised draft of the proposed findings will follow, as soon as
possible.
Thank you for your cooperation.
Sincerely,
40HN W. SHONKWILER, P. C.
John W. Shonk-,viler
cc: Don Duncombe
Jeffrey Kleinman
•
EXHIBIT 5
Page S3_ of
Pages
AGENDA ITEM #
For Agenda of S/ 1y G co
CITY OF TIGARD, OREGON
COUNCIL AGENDA ITEM SUMMARY
ISSUE/AGENDA TITLE Comprehensive Plan Amendment CPA 93-0009. Zone Change ZON 93-000^ -
Albertson's inr - LUBA Remand
J
PREPARED BY: Dick B. DEPT HEAD OK CITY ADMIN OK
ISSUF_ BEFORE THE COUNCIL
Should the City Council adopt the attached ordinance and findings approving the Albertson's Inc. Comprehensive
Plan and Zoning Map Amendments?
STAF RECOMMENDATION
Staff recommends that the City Council adopt the attached ordinance and findings as revised from the April 23,
1996 meeting.
INFORMATION SUMMARY
The City Council approved the Albertson's Comprehensive Plan and Zone Map amendments as well as
a elopment plans subject to numerous conditions on December 27, 1994. The decision was appealed to the State
kd Use Board of Appeals. On October 20, 1995, LUBA remanded the application back to the Tigard City
Council for further review and findings on eight issues. No other issues of error were reversed by LUBA. The
City Council held a public hearing on the remand issues on April 23, 1996. The applicant requested the record be
held open for seven days to respond to issues raised by the opponents. The applicant's response is attached. The
ordinance and revised findings are attached. Changes made by the applicant include: 1) a revision in the
background information to reflect the configuration of the CN zone through CPA 1-36 and ZON 3-96 [page 2]); 2)
a new paragraph on page 10 speaking to the opponent's concern relative to Air Quality Impact, TCP 4.1.1; 3)
added lan~g guage on page 11 concerning the impacts of 3 acres of CC versus 6.93 acres of CN; 4) new language on
page 12 identifying the tax lot 100 location and regarding the "residential area" issue as well as the irrelevancy of
CN limits; 5) a new condition y on page 20 requiring the applicant to obtain an Indirect Source Permit from DEQ;
and 6) a ruling on the admission of evidence on page 21.
OTHER ALTERNATIVES CONSIDERED
1. Make revisions to the attached ordinance and findings.
FISCAL NOTES
No direct fiscal impacts
EXHIBIT 5
Page ~Sq of
Pages
• BEFORE THE CITY COUNCIL OF THE. CITY OF TIGARD
ALBERTSON'S APPLICATION ) ALBERTSON'S, INC.'S
CPA 93-0009, ZON 93-0003, SDR ) REBUTTAL STATEMENT
93-0014, MLP 93-0013 )
1. OBJECTIONS TO ADMISSION OF EVIDENCE.
Jeffrey L. Kleinman, attorney representing Marcott Holdings, Inc., Matt Marcott and
141urrayhill Thriftway, Inc., submitted a memorandum dated April 23, 1996 to the Tigard City
Council. This memorandum purportedly was limited to addressing only those issues remanded
by LUBA and restricted by the City Council's notice for the hearing. However, Mr. Kleinman's
memorandum includes evidence or testimony pertaining to issues that are not within the scope of
the remand. Such issues, as discussed below, are not admissible into evidence in this proceeding
and cannot be raised in this proceeding. Mr. Kleinman and his clients have waived these issues
because they failed to raise them in the prior LUBA appeal or appeal LUBA's decision which
did not include those issues for remand. ORS 197.763; ORS 197.835; Colhouer v. Union Pacific
• R.R. Co., 975 Or. 559 (1976); Beck v. City of Tillamook, 313 Or. 148 (1992).
A. Size of Tax Lot 100 (¢,93 acre or 5 acres).
Mr. Kleinman limited his issues discussion to only two subjects: (1) Commercial
Compatibility-TCP Policy 5.4, and (2) Air Quality Impact-TCP Policy 4.1.1. These are remand
issues number 5 and 3, respectively, as identified in the "Public Hearing Notice" for the remand
hearing.
First, LUBA did not include as a designated deficiency in its remand order that the size
of Tax Lot 100 was an issue to be resolved on remand. There is no basis for Mr. Kleinman
raising this issue at this time. Secondly, Mr. Kleinman failed to raise this "potential" issue when
he :fled the original appeal to LUBA. In Mr. Kleinman's Petition for Review he admitted as
"Material Facts" that Tax Lot 100 constituted "(6.93 acres)". Indeed, his Fifth Assignment of
Error (raising a deficiencv in the findings as to the application of TCP Policy 5.4) failed to raise
the issue that the designated 6.93 acre parcel was "potentially" less in size (as he now claims as 5
acres). See Mr. Kleinman's Petition for Review pages 4, 17-20, attached hereto as Exhibit "A".
Since Mr. Kleinman failed to raise this issue in the first appeal, he is precluded from
raising it during this remand. ORS 197.763; ORS 197.835, Colhouer v Union Pacific R.R.
CD-, supra; Beck v. City of Tillamook. supra. In fact, a careful reading of Mr. Kleinman's brief
establishes that he never even raised the subject of the size of Tax Lot 100 other than describing
it as 6.93 acres throughout all his alleged assignments of error. The finding that Tax Lot 100
1 - ALBERTSON•s. INc. - REBUTTAL. sTATEMEN-r EXHIBIT f
Page (R~ of
Pages
constituted 6.93 acres is set forth. on page 1 of the Final Order dated December 27, 1994. LUBA
• Record 005. The designation is also found on page 1 of Ordinance No. 94-27 (LUBA Record
003) and the Notice of Final Order (LUBA Record 002). Clearly, the "fact" issue of the size of
Tax Lot 100 was on the face of the approval order and findings. However, Mr. Kleinman did not
include as an assignment of error on appeal to LUBA that this 6.93 acre finding was in error or
not supported by substantial evidence in the record. This issue has been waived and all
references to the size of Tax Lot 100 in his April 23, 1996 "Memorandum" should not be
admitted into evidence/record for this proceeding. Alternatively, such evidence should be given
little or no weight in deciding the applicable issues. Attached hereto as Exhibit "B" is a copy of
Mr. Kleinman's Memorandum with the pertinent provisions, highlighted in yellow, that should
be excluded.
Finally, if there is a question as to the meaning of the City Council's order creating Tax
Lot 100 and its C-N designation after construction of Walnut Street (effectively matching the
projected alignment of Murray Boulevard), the City Council has a simple solution. The City
Council can clarify in the findings that the meaning of the word "configuration" in Ordinance
No. 86-12 was meant to include modification of both the size of Tax Lot 100 and its C-N
designation to conform with the final alignment of Murray Boulevard. Then, a declaration can
be made that this new alignment now establishes that Tax Lot 100 is 6.93 acres of C-N. Such an
explanation in the findings could clarify that issue for the only parties in doubt (Mr. Kleinman's
clients in Beaverton) and, possibly, avoid yet another appeal.
•
II. REBUTTAL TO MR. KLEINMAN'S MEMORANDUM ISSUES
A. Commercial Comnatibiii - TCP 5.4.
The essential elements of Mr. Kleinman's argument is that a 1 1/2 mile radius area is too
large to be a proper planning consideration, that the restrictions for the Neighborhood
Commercial zone must be compared with the Community Commercial zone to evaluate
difference in impacts, that the • traffic impacts will be "several times greater than that produced
by the existing" C-N zone, and there is insufficient planning justification to move the
commercial from the north side to the south side of Walnut Street.
As a threshold issue, Mr. Kleinman strongly relies upon the characterization that the C-N
zone must be considered as a maximum of 5 acres in size. This factual issue regarding the size
of Tax Lot 100 and its C-N designation raises an issue that is outside the scope of this remand
proceeding, and was previously waived by Mr. Kleinman.
1. Residential Area. The first argument is that the 1 1/2 mile radius factor is too large
of an area for proper planning. However, the 1 1/2 mile radius standard is set forth in the
locational criteria requirements under TCP 12.2.1.4.A for establishing a Community Commercial
• zone within the City. That Comprehensive Plan tent was not appealed to LCDC or LUBA when
it was adopted. Significantly, Mr. Kleinman's clients were participants in the public hearings for
2 - ALBERTSON-S, INC. - REBUTTAL STATEMENT EXHIBIT'_
Page (o / of
Pages
the adoption of that Comprehensive Plan text. A challenge to that distance criteria in this
i proceeding is too late, and arguably waived by Mr. Kleinman's clients.
The real issue here is what is the proper area around the Applicant's site that should be
considered the "residential area" for purposes of applying TCP Policy 5.4. The Applicant has
proposed that the proper residential area should be described as:
"[I]ncludes the existing Neighborhood Commercial located at the northeast comer of this
intersection (Scholls Ferry Road and Walnut Street), the 8 acre parcel proposed for
community commercial, the Castlehill residential subdivision located in the southeast of
the intersection, and the multifamily .designations located to the west, northwest and
south." Proposed Final Remand Order at 10.
The Applicant's reference to the Community Commercial distance separation between
commercial uses of 1 1/2 mile radius was merely to show that the above "residential area"
definition would not conflict with the Community Commercial standards. Since the Mr.
Kleinman appears to have been confused by inclusion of that information, it would be
appropriate to merely delete references to the 1 1/2 mile radius criteria in the findings pertaining
to TCP Policy 5.4.
2. Comparison of N-C restrictions.
• The City Council should not consider a comparison of restrictions between the C-N and
the Community Commercial zones in analyzing impacts of the Albertson's application. First,
the City Council's previous approval of the Albertson's application included a finding that the
replacement of C -N zoning on the subject property with the new Community Commercial
zoning was necessary to correct a "mistake" that occured when the property was previously
annexed into the City. This included a specific finding that TCP Policy 1.1.1 and CDC 18.22
were satisfied and the mistake was corrected by adopting the Community Commercial zoning.
The legality of justifying the Community Commercial designation through a "mistake"
was raised and argued before LUBA on the appeal. LUBA stated in its Opinion at page 30 that
"Petitioners (Mr. Kleinman's clients) attack the city's findings for failing to analyze the
consequences of replacing an C-N designation with a C-C designation." In ruling on this
challenged finding, LUBA held: "The analysis is adequate to justify a quasi-judicial amendment
to the plan and zoning maps on the basis of an earlier mistake at the time the area including the
Albertson's site was annexed by the city." (Emphasis Added). LUBA Opinion at 31.
Essentially, LUBA has found that the City was correct in replacing the C-N zone with the
C-C zone because the earlier C-N zone was a mistake. The substantial evidence supporting the
finding of "mistake" identified that the City of Tigard should have adopted commercial zoning
equivalent to the existing Washington County zoning for this property at the time of annexation.
The City's new C-C zoning is nearly equivalent with the Washington County zoning that had
• applied to the property before annexation. Those findings and supporting substantial evidence
were specifically upheld by LUBA. See LUBA Opinion at 31, footnote 18.
EXHIBIT 5
3 - ALBERTSON'S. INC. - REBUTTAL STATEMEVT Page 4 5 0f
Pages
• As a result, an analysis of the restrictions in the C-N zone is totally irrelevant. The
proper analysis is the commercial impacts for the 6.93 acre parcel, fully developed as
Community Commercial, as compared to the Applicant's proposal for the 8 acre parcel. For
example, Mr. Kleinman attempted to compare the 2 acre maximum size limitation in the C -N
zone to the proposed 8 acre of Community Commercial. Since the finding that C-N should never
have even been adopted for the property was upheld by LUBA, this analysis is illogical. The
proper analysis is that Tax Lot 100 (6.93 acres) could be fully developed as C-C or up to
100,000 square feet of commercial space. In comparison, Albertson's proposal only involves
57,550 square feet of commercial commercial on the 8 acre parcel. Also, Albertson's proposal
provides 30% of the site for landscaping. The C-C zone only requires 20%. Albertson's
proposal also includes a dedication of right-of-way along its entire frontage with Scholls Ferry
Road. Tax Lot 100 is triangular shaped and only has the "point" of the triangle abutting Scholls
Ferry Road (requiring very little right-of-way dedication). .
The combination of increased landscaping ( an additional 10% of the entire site) and
right-of-way dedication reduces the commercial usage of the Albertson's site to nearly a direct
equivalent with the developable commercial usage of Tax Lot 100. The impact difference of
changing the C-N to C-C on the Albertson's site is essentially "zero". The Kittleson traffic
studies establish that there will be no significant difference. The recent Westech report
establishes that there will be no significant "offsite" impacts by the Albertson's development and
the "discharges" from the project will be contained or filtered to satisfy all applicable city, state,
federal and regional governmental requirements.
Further, this entire analysis by Mr. Kleinman under the remand issue for TCP Policy 5.4
was raised and fully rejected by LUBA under the Eighth Assignment of Error. He is now
attempting to circumvent LUBA's denial of his Eighth Assignment of Error (for TCP 12.2.1) by
transferring the same argument over to the remand issue on TCP 5.4. However, he failed to raise
this argument under TCP 5.4 before LUBA and, effectively, has now waived it.
3. Traffic Impacts allegedly increased by Community Commercial designation.
Again, Mr. Kleinman 's argument raises an issue that is not directly relevant. The existing
C-N zone was not the correct zoning for the subject property and the replacement of this zone
with Community Commercial has been upheld by LUBA as correcting the "mistake". Second,
Mr. Kleinman relies upon a letter written by Mr. Robert Bernstein as substantial evidence for his
assertion that the C-C zoning traffic will "be several times greater than that produced by the
existing" C-N designation. Mr. Bernstein's letter does not support that assertion. Mr. Bernstein
fails to provide any factual data, calculations, description of assumptions for his analysis, or
reasoning for his conclusion.
For example, did Mr. Bernstein take into account that the Albertson's application only
proposes using 57.5% of the allowable commercial use in the zone? Was he comparing
maximum commercial square footage for C-C against maximum square footage for C-N? Was
he comparing 8 acres of C-C against 2 acres of C-N (as Mr. Kleinman argues as being applicable
4 - ALBERTSON'S. N. -C. - REBMAL STATEMENT EXHIBIT 5
Page ( of
Pages
at page 3 of his memorandum)? We only know that Mr. Bernstein relied solely upon
S representations made to him by Mr. Kleinman ("I have reviewed your description and
comparison of the types and intensities of development's. We do not have those "assumptions"
attached to Mr. Bernstein's opinion letter. This letter is only an "opinion" without any factual
basis or support, and thus, cannot be used as substantial, believable or reliable evidence.
In contrast, the Applicant has provided in the record complete traffic reports, including
detailed data, assumptions, analysis and reasoning to establish that the traffic impact difference
between commercial development of Tax Lot 100 and the Albertson"s site is relatively
insignificant. See, Kittleson Report submitted as Exhibit "A" of the Applicant's Remand
Statement, LUBA Record 350-351, 620-621, 702-847, 1283-1328, 1473-1519, and 1917-1961.
The City Council is entitled to rely upon the substantial and believable evidence submitted by the
Applicant as a basis for its decision. City of Portland v. Bureau of Labor and Industries, 298 Or.
104, 119, 690 P.2d 475 (1989).
4. Basis for moving the commercial across Walnut Street.
There are numerous planning advantages for moving the commercial zoning to the south
side of Walnut Street. The long and narrow triangular shape of Tax Lot 100, with its narrow or
pointed-end facing westward toward Scholls Ferry Road, precludes any practical development of
this parcel for commercial uses. The narrow triangular shape will not accommodate sufficient
space to allow for the needed commercial uses and adequate buffering from adjacent residential
uses. This site cannot provide adequate access from Scholls Ferry Road, and thereby would
burden Walnut Street by requiring all traffic to ingress and egress at that one street. Multiple
accesses, usually required for assuring traffic circulation and safety, would be difficult to provide
because of the parcel's narrow shape. The site is also on level ground with abutting residential
uses, with no separation by a street or other use, particularly necessitating adequate onsite
buffering.
By moving the commercial designation to the proposed Albertson's site on the south side
of Walnut Street, the commercial can now be accommodated on a retangular shaped parcel. This
allows for the opportunity to provide 30% of the total site for landscaping and buffering
(whereas the City's Code only requires 20%). This additional buffering further enables the
development plan to provide landscaping widths along the parameter that range from twice to
over ten times the minimum width required by the City's Code. The Albertson's site also has a
hillside topography that allows the site to be excavated by 24 feet at the uphill end of the
property. This enables the development to be lowered so that all visual, noise, dust and other
related impacts of the development are eliminated or diminished by a combination of
landscaping buffer area and being substantially below the abutting Castlehill and other residential
designations to the south and east. The site excavation will provide a slope upward from Scholls
Ferry Road through the perimeter landscaped area before leveling off at the parking lot, and
combined with the proposed landscaping/buffering, will adequately buffer the impacts of the
development from multifamily residential uses proposed to be developed wesi of the site.
EXHIBIT S
Page ~ of
5 7 ALBERTSON'S. INC. - REBUTTAL STATEME q Pages
TCP Policy 5.4 seeks to ensure that "new" commercial shall not encroach into residential
areas that had not been designated for commercial. First, this residential area is not being
encroached by new commercial. The commercial usage was already designated for this
"residential area." The Community Commercial is merely replacing the Neighborhood
Commercial designation. This replacement is consistent with the language of TCP Policy 5 and
the finding that the C-N zoning was a "mistake." There is nothing in the policy that restricts
changing one commercial use for another or moving the commercial use to a different and better
location within the "residential area". Further, the Albertson's proposal complies with the
purpose for this policy, ie., to assure that the residential uses in an area are not subjected to
significantly increased adverse impacts of commercial uses. Here, the Albertson's proposal
solves the inherent impact problems that exist for developing the triangular Tax Lot 100 parcel.
By moving the commercial designation across the street, the commercial development can now
adequately screen and buffer the commercial use from all surrounding residential uses.
5. Response to documents introduced by Mr. Kleinman into evidence.
Notice of Final Decision (CPA 1-86 and ZC 3-86), Ordinance No. 86-12, Staff
Report dated February 4, 1986 (Exhibit A to Order No. 86-12), Map (Exhibit B attached to
Order No. 86-12). All of these documents pertain to the issue of what size Tax Lot 100 is for
purposes of its Neighborhood Commercial (C-N) designation. As identified above under
subsection A, all of these documents relate to an issue that is outside the scope of the remand
hearing. The issue of parcel size was not timely raised in the previous LUBA appeal, and was
therefore waived by Mr. Kleinman. He cannot now raise this issue when he has already waived
all rights to challenge that factual determination.
The Applicant does not object to the submittal of these documents because, apparently,
they are already in the record from the earlier proceedings. However, this merely enhances the
argument that Mr. Kleinman had full awareness and opportunity to raise this issue before LUBA
on the previous appeal. Since he failed to do so, consideration of this issue is waived.
City of Beaverton Letter dated October 4, 1991. ilv1r. Kleinman also sought to
introduce the letter from the City of Beaverton dated October 4, 1991. However, this letter
identifies that it only pertains to Comprehensive Plan Amendment 91-0003 and Zone Change 91-
0006. This was an application submitted to the City of Tigard in 1991 that was for a "General
Commercial" zoning designation and involved different proposed uses on the property. That
application was subsequently stayed and no final decision was ever adopted.
The present application (CPA 93-009 and ZON 93-003) is not the same application, nor
involving the same public hearing process. As a result, this letter from the City of Tigard has no
relevancy to the present proceeding or issues on remand. For this document to be relevant in this
proceeding, Mr. Kleinman should have appealled the issue of "coordination" with the City of
Beaverton in the 1991 application; and/or that 1991 application must have formed a substantial
evidence basis for the present 1993 application. Further, that "basis" must -also be a material
factor pertaining to the LUBA remand issue regarding TCP Policy 5.4. There is nothing in the
record that establishes those necessary connections. Instead, notice was provided to the City of
6 - ALBERTSON'S, INC. - REBUTTAL STATEMENT EXHIBIT C _
Page S of
Pages
Beaverton for all proceedings in the present application. The City of Beaverton did not raised
any objections to approval of this Albertson's application.
B. Air uali Impacts-TCP Policy 4.1.1.
Mr. Kleinman asserts that the criteria under Policy 4.1.1 are not being addressed by
Albertson's application and specifically implementation strategy no. 3 has been ignored.
However, the Westech Report (Exhibit "B" of Albertson's, Inc., Remand Statement) identifies
that the criteria and the DEQ Handbook are implemented by compliance with Oregon's Indirect
Source Review Program. The Westech Report goes on to identify the criteria and factors
establishing that the Albertson's application will be able to obtain the necessary permit. This
Exhibit "B" at I and 7 identify that Westech had contacted the DEQ, conferred on the
requirements and expectations of compliance feasibility, and incorporated those, statements
within the Westech Report. All of the requirements of TCP Policy 4. 1.1 have been satisfactorily
addressed and the Applicant has adequately established that compliance with the policy is
"feasible."
The City Council may wish to include an additional condition of approval in its final
order that would clarify that the Applicant must obtain, prior to issuance of any building permits,
either approval of the Indirect Source Construction Permit Application or verification from the
DEQ that its revised regulations and standards no longer require such a permit
M. CONCLUSION.
The Applicant has provided the City with sufficient evidence and revised findings to
assure that the LUBA requirements on remand are satisfied. An additional revision to the
findings to incorporate the subject matters addressed above shall be immediately provided to the
City Council by the Applicant. In addition, Mr. Kleinman has only challenged two of the eight
remand items listed in the notice for these proceedings. Thus, the decision and findings
pertaining to (1) Transportation-TCP 8.1.3/TCP 8.4.1, (2) Air/Water Quality-LCDC Goal 6, (4)
Water Quality Compliance-TCP 4.2.1, (6) Buffering-TCP 6.6.1, (7) Storm Drainage Facilities
Feasibility-TCP 7.1.2, and (8) Design Criteria-CDC 18.61.055 are not being challenged during
this proceeding.
Albertson's. Inc., respectfully requests that the proposed order and revised findings be
approved and adopted by the City Council. '
Respectfully submitted,
1 ~
4theAp ON R, P.
•
Jr cant:Albertson's, Inc.
EXHIBIT -S
7 - ALBERTSON'S. INC_ - REBUTTAL STATEMENT Page L(2 of
Pages
are intended to address.
• Respondent misconstrued the applicable law and failed to
make ifdequate findings supported by substantial evidence;
exceeded its jurisdiction; and failed to follow the notice
procedures applicable to the matter before it in a manner which
I
prejudiced petitioners' substantial rights by approving an
i
application and making a decision in which the actual location of
the pro ert and the proposed uses changed frequently. 6
C. .8ummarv of Katerial Facts. - ;
Albertson's Inc. ("applicant") submitted the within
application with respect to Tax Lots 100 and 200 at the northeast
A
and southeast quadrants of the intersection of SW Scholls Ferry
Road and SW Walnut Street in Tigard. (R. 2) applicant proposed
. to develop approximately eight acres with a 40,000 square foot
Albertson's grocery store, and five dditional tenant "pads" for
commercial development, two compr sing 4,000 square feet, and the
others comprising 5950, 2400, and 1200 square feet, respectively:
(R. 5) This development requires a "flip-flop" of the existing
plan designation and zoning, with Tax Lot 100 changing from
commercial to residential, and Tax Lot 200 changing from
residential to commercial. (R. 9-10) Specifically, the proposed
changes are as follows:
1. File No. CPA 93-0009/ZCA 93-0003. For comprehensive
plan and zone change approval, (1) to redesignate Tax Lot 100
(6.93 acres) from C-N (Neighborhood Commercial District) to R-25
(Medium-High Density Residential, 25 units per acre) ; and (2) to
4 - PETITION FOR REVIEW
EXHIBIT A PAGE ~ OF ~ EXHIBIT ~ :
Page Lto 2 of
Panes
plan to a later point in the development process. Respondent
cannot leave Plan policy compliance to another time if the Plan ,
policy is applicable at this time. Most importantly, neither the
design process nor the building process is a public process in
Tigard.
All applicable water quality issues must be determined at
this point in the process. After all, there is nothing in
respondent's decision which would stop the applicant from
dropping out of the site design process at this time; preserving
the plan amendment and zone change awarded herein; and preserving
the ability to change the site design later.
E. Fifth Assignment of Error. .Respondent Misconstrued the
Applicable Law and Failed to Make Adequate Findings Supported by
Substantial -Evidence that the ARDlication Herein Complies with
Statewide Plannincr Goal 9; OAR Chapter 660, Division 9; and Plan
Policy 5.4. ~
Respondent's sole finding with respect to Goal 9 (Economic
Development) is that the goal "is satisfied because the proposed
redesignation would increase the City's inventory of developable
commercial land, thereby increasing employment opportunities in
the City." (A-29-30) However, Goal 9 requires substantially
more analysis, and especially an analysis of commercial land
needs within the jurisdiction. This is especially true in
respondent's case, given the importance of such land allocations
during periodic review, in a plan which was coordinated with
those of Washington County and the City of Beaverton.
17 - PETITION FOR REVIEW -
EXHIBIT / l
EXHIBIJ_
PAC= OF = Page of
Pages
Goal 9's implementing rule, OAR Chapter 660, Division 9 (A- !
• 45), adopted pursuant to ORS 197.712, requires local governments
to designate and prioritize economic development opportunities
and sites which may be used for the same; respondent has not done
so herein. Goal 9 and Division 9 together require, consistent
with the alternatives and policy choice language of Goal 2, a
reasoned evaluation of alternative sites, and an analysis of
commercial land needs and availability. OAR 660-09-015.
In order to justify the comprehensive plan amendments
herein, respondent must present findings supported by substantial
evidence, showing (1) a review of respondent's commercial land
inventories, and (2) the basis for reallocation of lands under
these criteria. Id. Specifically, respondent must show ho 6.93
acres of what vas "Neighborhood Commercial" land are equivalent
to eight acres of "Community Commercial" land. Respondent
appears to assume this equivalence, but fails to directly address ;
it or demonstrate it.
As part of its Goal 9 finding, respondent discusses its Plan `
Policy 5.4. However, neither this policy nor any other policy in
the Economy portion of the Plan is included in the notice of
these proceedings. (5Ae , e.g., A-1.)
Policy 5.4 requires that "new commercial and industrial
development shall not encroach into residential areas that have
not been designated for commercial or industrial uses." (A-56)'
In this regard, respondent found that the newly Community
Commercial property would be compatible with nearby residential
18 - PETITION FOR REVIEW
EXHIBIT
PAGE _-5- OF p EXHIBIT
of
Pages
properties and is physically separated from them by streets on i~
three sides and a slope on the other. (A-30) Respondent also
found that a "commercial service center of modest size" has been
I:
contemplated in this area since 1983.
a
Respondent's finding is inadequate in several ways.. First,
I~
it is simply wrong to suggest that compatibility with residential
i
uses is assured by the presence of an intervening street. I
Secondly, respondent has failed to define the terms, "commercial
service center", and "modest size". These surely could not
describe a strip shopping center with a 40,000 square foot
supermarket, five other as yet unidentified commercial
businesses, and the associated, vast expanse of parking spaces.
Moreover, the previously contemplated use was in the
i
category of Neighborhood Commercial, rather than Community
Commercial. Among other differences, the latter would allow
restaurants, bars, general retail sales, and general office use,
while the former would not.- (Compare, CDC 18.61.030 (A-81-82) to
I•
CDC 18.60.030 (A-76-77).) Respondent has not addressed CDC 18.60 i
in its decision at all.
Further, the preexisting Neighborhood Commercial site
occupies a different quadrant of the intersection in question;
the "flipping" of the commercial sites results in the
encroachment of commercially designated land where it did not
exist before.
Respondent seems to regard the two sites as fungible, an
assumption which underlies this entire proceeding. These
• 19 - PETITION FOR REVIEW
EXHIBIT 7A -m- EXHIBIT.5
eZ~ of
PAGE ~ OFD pag Pages
h.
properties are not identical and do not share the same location.
i
If the City wishes to rely upon some notion of fungibility here, .i
it must first make the appropriate finding, supported by
substantial evidence in the record. In the meantime, the result-
of respondent's casual "flip" is a plan amendment expressly
violating Plan Policy 5.4.
F. Sixth Assignment of Error. Respondent Misconstrued the
ADDlicable Law and Failed to Make Adequate Findings Supported by
Substantial Evidence that the Application Herein complies with
Statewide Planning Goal 10: OAR Chapter 660 Division 7• and Plan
P91icv 6.6.1.
As is the case with commercial lands under Goal 9 and OAR ;
Chapter 660, Division 9, Goal 10 (Housing) and OAR Chapter 660,
M
*Division 7 (A-41) require respondent to take into account its
finite supply of residential lands. OAR 660-07-030(l) requires
respondent to "either designate sufficient buildable land to
provide the opportunity for at least 50 percent of new
residential units to be attached single family housing or
multiple family housing or justify an alternative percentage
based on changing circumstances."
Respondent has found that Goal 10 is "satisfied because the if.
proposal will result in a loss of 1.07 acres of R-25 land and a
i
net residential opportunity of 26 units." (A-30) However,
respondent's calculations of the net effect of the "flip", set
i
out at A-16, assume the continued availability of the remaining
• 3.95 acres of Tax Lot-200 for multifamily development. The
20 - PETITION FOR REVIEW
EXHIBIT
PAGE S OF EXNIBIT 15
Page _11_ of
Pages
JEFFREY L KunnuN
Arronxrr AT L&a
Tag AmaAsswnoa
1207 S.W. SixTS Avar'va
PoRTLArm.Oxaoox 97204
TELEPRobz (503) 248.0809
Fix (3o3) 228.4529
April 23, 1996
M E M O R A N D U M
To: Mayor and Members of the Tigard City Council
From: Jeffrey L. Kleinman
Re: Albertson's, Inc., CPA 93-0009/ZON 93-0003
On behalf of my clients, Marcott Holdings, Inc., Matt
Marcott, and Murrayhill Thriftway, Inc., I would like to respond
to two of the key issues addressed by Albertson's in this remand
• proceeding.
1. COMMERCIAL COMPATIBILITY: TIGARD COMPREHENSIVE PLAN
POLICY 5.4.
Perhaps the most important issue for which LUBA remanded
this case to the city is that of'"Commercial Compatibility" under
TCP 5.4. TCP 5.4 provides as follows:
"The City shall ensure that new commercial and
industrial developments shal not encroach into residential
areas that have not been designated for commercial or
industrial uses." (Emphasis added)
In this regard, LUBA held as follows:
"The [challenged decision] falls short of describing
what is proposed: the substitution of a larger development
for a smaller one, on an opposite corner of the same
intersection, when both the existing and proposed locations
border residentially zoned property. * * Marcott
Holdings Inc v City of Tigard, LUBA (LUBA-No. 95-
011, Final opinion and order, October 20, 1995, at 21)
1 - OPPONENTSI MEMORANDUM
EXHIBIT EXHIBIT
PAGE OF Page7~ of
Pages
The findings proposed by Albertson's in the draft submitted
. to the city do nothing to resolve the problem identified by LUBA.
Albertson's has chosen to fudge this issue by making use of the
one and one-half mile radius trade area established for Community
Commercial uses by TCP 12.2.1, section 4.A, and stating that if
commercial exists within that radius, moving any commercial
designation within that radius "will not create new commercial
where no commercial previously existed." The proposed findings
state:
"The N-C designation already existed in this designated
'residential area'; and the C-C designation will replace it
and shift across Walnut Street to the other corner (all
within the same 'residential area')."
Both the practical effect of and the dangerous precedent
established by this finding are evident. If you are a resident
of Tigard living within one and one-half miles of any property
bearing any of the city's commercial designations, you will be
subject to the siting of new or relocated commercial uses any
place up to your doorstep. You will have no protection
whatsoever under TCP 5.4, even though that policy was adopted
specifically to provide protection from an encroachment of
commercial and industrial development into residential areas.
Such an interpretation would violate both the express language of
and the policy behind TCP 5.4.
An analysis of the applicant's proposal under TCP 5.4 can
certainly be performed. Unfortunately, Albertson's apparently
does not wish to perform one. A reasonable analysis would take
into account the factors set out below.
9 -
2 - OPPONENTS' MEMORAMUH
EXHIBIT 15
EXHIBIT Page _-2 3 of
PAGE OF Z Pages
The applicant proposes to swap."6.93" acres of Neighborhood
Commercial (actually, just live acres, according to the staff
report in Case No. CPA 91-0003/ZCA 91-0006, to which the
applicant has referred the City Council]) on one side of an
intersection for eight acres of Community Commercial on another
side of the same intersection. Those eight acres are presently
zoned R-12 and R-25.
The applicant states, "the net impact to surrounding
residential uses is not significant." Assuming for the sake of
argument that the two sites are the same size, what would be the
impact of establishing a Community Commercial rather a
Neighborhood Commercial use in light of the following differences
under the Tigard Municipal Code?
• A. Neighborhood Commercial site size is limited to two
acres. TCP 12.2.1, section 1.A.(2). Community Commercial sites
start at two acres in size, and have a maximum size of eight
acres. TCP 12.2.1, section 4.B.(3) (a). Hence, the applicant*s
proposal is actually for a project four times larger than would
be permitted in the C-N zone.
B. Neighborhood Commercial centers have a confined
neighborhood trade area, limited to 5,000 people. TCP 12.2.1,
section 1.A.(1) Community Commercial centers are intended to
serve a much larger trade area, within a one and one-half mile
radius. TCP 12.2.1, section 4.A.(1).
C. The Neighborhood Commercial designation does not permit
restaurants, bars, general retail sales, and general office use.
•
3 - OPPONENTS, MEMORMMU.i
EXHIBIT r>---- EXHIBIT
PAGE OF '7 Page Z of
Pages
CDC 18.60.030. The proposed Community Commercial designation
does. CDC 18.61.030.
D. Individual uses on a Neighborhood Commercial site are
limited to 4,000 square feet. CDC 18.060.045.A.2. The Community
Commercial designation allows 40,000-square-foot super markets,
and general retail uses of up to 10,000 square feet per store.
TCP 12.2.1, section 4.A.(2).
E. The gross commercial floor area permitted by the
Community Commercial designation is 100,000 square feet. TCP
12:2.1, section 4.A.(2). This is substantially more than the
total site size of two acres allowed for Neighborhood Commercial
development, regardless of the commercial floor area actually
built.
NO IMPACT? We are compelled to disagree. The traffic
impacts brushed off by the applicant, and every additional impact
associated with large-scale commercial development, will be
several times greater than that produced by the existing,
Neighborhood Commercial designation. The impact on traffic is
confirmed by traffic engineer Robert Bernstein, P.E., in the
letter attached to this memorandum.
Another aspect of the proposed finding under TCP 5.4'also
warrants scrutiny. If one agrees that there must some impact
resulting from moving a Community Commercial use onto what is now
an R-12 and R-25 site largely surrounded by developed residential
uses, then both the site and the impact. must be described and
discussed in reasonable detail. Clearly, the applicant does not
• 4 - OPPONENTS, MEMORANDUM
EXHIBIT
EXHIBIT n Page-? S of
PAGE OF Pages
wish to do this. However, this must be done in order to make the
necessary finding concerning "encroachment" under Policy 5.4.
The "baseline" analysis is missing.
Clearly, a primary motivation for the proposed plan and zone
switch herein is to permit more intensive development on an
eight-acre site, rather than.less intensive development on two
acres of a site comprising a total of either five or 6.93 acres.
Why else would the applicant be here? This switch may somehow be
feasible under Policy 5.4, but not on the basis of the evidence
in this record or the proposed findings before you.
2. AIR QUALITY IMPACTS: TIGARD COMPREHENSIVE PLAN POLICY
4.1.1. -
LUBA also affirmed our assignment of error pertaining to TCP
4.1.1, which provides in material part as follows:
"The city shall:
"a. Maintain and improve the quality of Tigard's
air quality and coordinate with other
jurisdictions and agencies to reduce air
pollutions within the Portland-Vancouver Air
Quality Maintenance Area. (AQMA).
"b. Where applicable, require a statement from the
appropriate agency, that all applicable.
standards can be met, prior to the approval of
a land use proposal.
"C. Apply the measures described in the DEQ
Handbook for 'Environmental Quality Elements of
Oregon Local Comprehensive Land Use Plans' to
land use decisions having the potential to
affect air quality."
Implementation Strategy 3 requires the city to "use
measures described in the DEQ Handbook for 'Environmental
Quality Elements of Oregon Local Comprehensive Land Use Plans'
5 - OPPONENTS' MEMORANDUM
EXHIBIT I~ EXHIBIT S
Page of
aLp-
PAGE S OF Ile
Pages
when planning any development activities having the potential
• to directly -(by direct emissions) or indirectly (by increasing
vehicular travel) affect air quality."
Implementation Strategy 5 requires the city to "consult
and coordinate with the Oregon Department of Environmental
Quality to ensure that land uses and activities in Tigard
comply with Federal and State air quality standards."
Even with the new materials with which the applicant has
embellished the record, there is no evidence that any of the
above requirements have been complied with. This is
especially true of Policy 4.1.1(b) and (c), and the two
Implementation Strategies identified above.
The record shows only that an Indirect Source
Construction Permit Application "is being prepared" and will
be submitted to DEQ. (Westech Report, page 5) The
information submitted by the applicant is insufficient to
justify a finding of compliance with TCP 4.1.1 at the present
time.
conclusion
For the reasons set forth above, the applicant has not
yet complied with the approval criteria described in this
memorandum. The application should therefore be denied.
Res ectfully submitted,
J
f ,ey K einman
• JLK:ay ' /
6 - OPPONENTS, MEMORANDUM
EXHIBIT K
EXHIBIT B Page of
PAGE 0 Pages
ROBERT BERNSTEIN. P.E.
ConsultingTranspurt.auun Fnginmrj11lanner
507 18th Avenue East (206) 325-4320
Seattle. Washington. 98112 fax (2061325-4318
April 23, 1996
Mr. Jeffrey Kleinman
The Ambassador
1207 SW 6th Ave APR 2 31996
Portland, OR 97204
ppRFY t, XLEINMAN
e=OFxaY wT LAW-
Dear Mr. Kleinman,
Per your regvest, I have reviewed your description and comparison of the types and intensities
of development allowable in the City of Tigard's "Neighborhood Commercial" and "Community
Commercial" zones. I agree with your conclusion that in die situation you have described, the
traffic-generating potential of the Community Commercial zone significantly exceeds the traffic-
generating potential of the Neighborhood Commercial zone.
• If you have any questions, or if you require further assistance, please call me.
Sincerely,
eAt
Robert Bernstein, P.E.
•
EXHIBIT 9 EXHIBIT
PAGE OF Z Page ~ es
May-16-96 11:17A Newberg Legal 503 537 1277 P-02
However, SW Scholls Ferry Road and Walnut Street are logical routes for future
expansion as the demand for bus services increases. The Albertson's application includes
provision for future placement of bus turnout lanes, bus stop and/or shelter near the "mini-park-
at the intersection of Scholls Ferry Road and Walnut StrceL A traffic study conducted by
Kittleson & Associates, Inc., transportation planners and traffic engineers, determined that the
future provision of these transit requirements are "feasible" due to the adequacy of the site
development plan. Although not currently required by the policy, the applicant has agreed to
condition approval upon providing the area near the "mini-park"-to accommodate such transit
stop, bus turnout lanes and shelters as required for future needs. Any potential application of
the policy is satisfied.
TCP Policy 8.1.3 (g) provides "The City shall require as a precondition to development
approval that: Parking spaces be set aside and marked for cars operated by disabled persons and
that the spaces be located as close as possible to the entrance designed for disabled persons."
The proposed development provides handicapped parking spaces in compliance with the
Americans with Disabilities Act (ADA) requirements, and these parking spaces are located in
close proximity to the access points for the proposed grocery store, attached shop spaces, and the
two outlying commercial buildings. This determination is supported by the Kittleson Report
(-'Exhibit D-3). The site development plan identifies the handicap parking locations. Policy 8.13
(g) will be satisfied with the condition of approval pertaining to re-locating two handicapped
parking spaces and provision for additional spaces within the existing parking lot plan area for all
• other building sites throughout shopping center. The Applicant has provided a traffic report and a
site plan that identifies adequate area to satisfy the feasibility of the Applicant complying with
the requirements of TCP Policy 8.1.3 (g) and its related condition of approval.
TCP Policy 8.13 (h) provides "The City shall require as a precondition to development
approval that: Land be dedicated to implement the bicycle/pedestrian corridor in accordance 'th
e adopted plan." 54
x TCP Policy S. 1.3 (h) is interpreted to mean that an applicant is only required to dedicate
land for a bicycle/pedestrian order when the applicant's grope..-y is designated in the City's $p
adopted plan as being a location for the proposed corridor. Here, the Applicant's site does not
aKt, nor is it traversed by, a designated or proposed bicycle!pedestrian corridor as identified in
Ue City's adopted plan. Therefore, TCP Policy 8.1.3 ('n) does not require a dedication, and the
Albertson's plan complies with this policy.
TCP Policy 8.3.1. provides "The City shall locate bicvcle/pedesuian corridors in a
manner which provides for pedestrian and bicycle users, safe and convenient movement in all
parts of the City, by developing the pathway system shown on the adopted pedesmarvbikeway
plan"
. -
Th, subject rropeny does not abut. nor is it tra%•e:sed by, a designated bicycle/pedestrian
• corrdor in accordance with the City's adopted plan. In accordance with the adopted pian, a
bicycle! pedestrian corridor is designated to the west of SW Scholls Fe.: v Road and is intended to
FrNAL ,UNL4`D ORDER - CPA 93-09/ZO` 93-03,SDR AL3ERTSON'S - 8 EXHIBL4_P Page of Pages
•
COMMUNITY NEWSPAPERS, INC. Legal
P.O. BOX 370 PHONE (503) 684-0360 Notice TT 8 4 5 8
BEAVERTON, OREGON 97075
REc=E1VEC
Legal Notice Advertising
P ~ 2 ?Q9E
City of Tigard • 13 Tearsheet Notice 3
13125 SW Hall Blvd. 'T OF TlGARD
'Tigard,Oregon 97223-8199 ' ❑ Duplicate Affidavit
AFFIDAVIT OF PUBLICATION
STATE OF OREGON,
COUNTY OF WASHINGTON. )sa'
I Kathy„ Sn= dPr
being first duly sworn. depose and say that 1 am the Advertising
Director. or his principal clerk. of thm'i Bard-Ti,aI nt-i n Tames
a newspaper of general circulation as dQfined in ORS 193.010
and 193.020; published at Tictard ~n the
aforesaid county and state; that the -
City Council Business Meeting
a printed copy of which is hereto annexed, was published in the
entire issue of said newspaper for- ONE successive and
consecutive in the following issues:
gn r i l 1R-1996
Subscribed and sworn t fore me thi t' Ay of i 1, £
NG-.. _IC 0= RCN
t
Not Public for Oregon :,MIS! ~N NO. "
My Commission Expires: MY Comm.S; !ON EXPIRES MX -;'l .1997
AFFIDAVIT _
•
EXHIBIT
Page $O of
Pages
= qhe following n as highlights are pablished for yo,a infon~,atian, Fsp .
,:;;.ageadas~,may-be obta,aed.fro,:the City Recorder, 131ZS•S.~{ff ilt
Boulevard. Tigard. 0iegon 97223, ar bycalling 639-4171::'
.r-'..•.fw.~v• ••rsw~ww ~ ~a
COU_NCIpI: BUSINESS MEETING---
TOWN f .ter
_ _ - _?TIGARD
HALL
- HAI I. - - - :y
- ~ 13.125 ..W H g4 BO SM=ARD, OREGON ' :
Study ' awn nzed Rock eek
g oo,n) (6:30 P.M.}=
a = E:iecutive •Session: The Tfgaid gity_CounciI aia", ga into
Executive Session under the provisions of ORS 192.660 (1) (d):
- (e). tit (h) to discuss labor relations, real property transactions.
current and pending litigation issues.' s:: •i ; s.._ , .
-*.-,::Agenda Reviewer 2> -:r=-•.:::,:__ r
.is. ~.:.~...r-~'!«T- 4~ (;•~M~^~ .syywa~ ~zRxre..tWi,a...•v, - ..r -~-•:r-
Business Meetin (Town
g H811)`~J;30P.M.ju;r' 'r•t ttr'=S',~~Y,a"
Update - lra, Valley. Economic Developmen*t Corporation
7$,.__'i;;b.:i. ai-•.-: ,rPi#; `7:A.~--T4 .,'ss,a~.~...nijl'.i 'f'~'* :ii:
Cou,i* Considers ,on,.,~,.
_ _ • -Discuss Washington County Cooperative Library-Service
-+~-•-5-.;_aw :_vi.. s~:~_►-+.w
Ordinance-=!mr.
Public Hearings: mow= J,...>sa
C9nidgTatonro~,Pgior,tiiaJtion ot,Greegspaces. ects
Coritir,ded ft+om theEApril,_„~„1996 Counc7~meeung .inuat,oa
o tigYec~greea a proje igard_,s a t`ttred to
_iff ~shate lii,ds 5~om~6e'Metro Greenspaces
• _ a,eBSnIC.' _ ~e~.-+w~aw•_..ss w.-: r:.:...
_ "ssr~.ski &u'
•:~Cliaagee ,nneaat,o~Z(:A 96=0001 Slroltz ?Y '
: .REQUEST=fAnne:r°°~vna rceli'of 6 Zacres hitothe'c,ty and
• _ - - = -change the`coinpiehe'asiire plnn froni-Washington County R-6 to
i m Density'$es,dentiarand change thazane
_frarrt-Washiag6on R=6 to •of Tgard R-7 LOCATION:
Nasthof Bull Mo~,tair,
.ec,oss.fr6ia.S.W,1J33rtis :
Riar
MUM
- -
Zone Change Annexation CA) 96-W2';;--_
44_ Ak UEST: T hOapplicant d'ownemrequest annexiidon of one - ;
• L_ . arc e I 'Q
' =cpomprehens`i plan and zoning &66 tWasWngtn County R-9 to
City of Tigard Medi,urii Density Residential/R-12.
921 LOCATION: 7
='Property is locaied a[ 5 Locusf Street j„- *ist of S.W. 92nd'
_ -1 :.:L. _ 7~' a'.:::.Sj7 c,%•."'._»C:i is -r:+ .
• '.:Proposed Land Use Application Fees/City of Tigard
* The-TigardRity-Council.wilLconduct a public hearing to hear ;
tesdaidaybmtbe proposed land use application fee changes. Please
contact RichaM Bewersdorff in the Planning Division if you have
r-
• Zone Ordinance' Amendment^(ZOA) 96-0001=j City of Tigard
'Un- dei'grouriding_Jtilitks Exception-(Set over from April 9,
. , .`1996-C66ocil" n,eetiag) AP ' roPosal to' amend the Tigard
~Y '.Coniraunit)rPevelopment Code Section 18.164.120'fo'add
"SeciionsCand D:provide for :exceptions to.the nndeig:ound
ilea o£unings °
.~.c.~.:_:;:..._ tea; :~Tr
=~'--~Albe'slaeJDoncombe LUBA Tk ~7
_ Remand =.Comprehen`s,ve _
Plan Aaieadmeint:(CPA) 93-0009fLOie Change (ZON) 93-0003. _
Site Dey9eIopineat Reviewi(SDR) 93=0014/Mmor Land Paititition'
228458 Puliliih Agrif $;=1.996:`_
- - - ~ mow. _ i - _ _ . -
EXHIBIT
PageELC of
Pages
COMMUNITY NEWSPAPERS, INC. Legal
P.O. BOX 370 PHONE (503} 684-0360 Notice TT' 8 4 5 3
BEAVERTON. OREGON 97075
k 1 ( iQQ
1. Legal Notice Advertising
G
*City of Tigard • E3 Tearsheet Notice
13125 SW Hall Blvd.
•Tigard,Oregon 97223-8199 • ❑ Duplicate Affidavit
•Accounts.Payable-Terry •
IL evo~a tw
AFFIDAVIT OF PUBLICATION n ar
STATE OF OREGON, 4'^_'f
COUNTY OF WASHINGTON, )as'
I- Kathy Snyder
being first duly sworn. depose and say that I am the Advertising
Director, or his principal clerk, of theTiQarA-Tun 1 at in Times
• a newspaper of general circulation as defined in ORS 193.010 ,
and 193.020: published at Tictard in the
aforesaid county and state; that the
CPA 93-Onn9 A1thPrtcpn1c
a printed copy of which is hereto annexed, was published in the
entire issue of said newspaper for ONE successive and
consecutive in the following issues:
April 11,1996
Qti
ri1,1946-
sworn -r-
Subscribed and t afore me thisl1th day of AIL
r- .o
Nota blic for Oregon NO My Commission Expires: MY COM`,i°;S'^'V .::PIRES 3ri.4; ' . ~?97
AFFIDAVIT
EXHIBIT Z
Page F-c'L of
Pages
The fo~lowrng will be considt~ by theN Ti City Coun
1M, at 7:30 P.M.. at the.Tigkd Civic Ceatt> Town Hall,13125 S.Vif:
Hall Blvd:. Tigaidt Oregoa 97223. Both p~ic-oral and written tesd n6hy
-is invited: The public bearing;-"Ithis_matter-will be conducted in
-accordance With the Lure of Chipter'28:32 of the Tigaarrd Mumspal Code;-=-.'~'•
and any rules and procedures adopted bg the Tigard City Couiicr _o iilia
of procedure set forth in Chapter 18.30.
Failure to-raise an. issue in person or by letter at some point prior to`the
close of the hearing accompanied by statements or evidence sufficient to
allow the Hearings authority and all the parties to respond on the request;--.
precludes an appeal to the Land Use Board of Appeals based on that issue,
-and failure to specify the criterion from toe Community, Development~=
Code or Connpreheiiir d Plan at which a comhunt is directed precludes an.-
,-appeal based on that criterion. Further information is available at City Hall
and may be obtained from the Community Development Director or City -
ReCoiderder at ttie sam ocaa., r,o or by calling (~03) 639-4171 _ = ° i
•~+h .a....~:~..:....a.••::•a• ~w;.°srrss..r<1..<n~ ~:Hw.aaac~[w~u+: •s.~.:
PUBLIC BEARING _ . ~V ~r~<` 1 ..r.R
:.:.iex~•' . -~+'i.:.P+--~-~ ~ "4-.ei..Sa r... i» ...NrDM -~.~.ENT (CPA.:t,~ -f• r: 93-0_
OMPREHENSI`lE-PLAN AME009/-
" '.--ZONE CHANGE (ZO*03-0003"--;;Z7V
i SITE-DEWCOPMEIYT.REVIEW (SDR) 93-0014/
i rWMO1FfLAND.PARTMON (M1.P) 93-0013,
`'~~ORTSOWS ItN MNCOMBE LUBA'
_ .1.rMtdk. _P~~ •ae!3'. ~►:~+!r'~iK[eY4`t.Yw.~..rr,-., _•p*__'.
~A'request to onsider a ~iegori Land U"se ~oar~' ofApW(LUBA) ;
remand forGe16Ucw- p develoY"'enta1'!""vals;* via'
<rg
1. Comprehensive Plan and.'Zone Change approval to redesignate -
. ;apPIyVSht,.acregof an T 195 acra parcel from Medium-Hrgh
Dens Rest aal to Commuiuty"Comriiercial & Tax Lot 200 and to~'~~ r
' -
- redesignate an 'i0--- 6.93 acre pan=e1 from Nei8hboy666d
Y_
~r::
Commercial`to Medium=High De~s'i -Residential on Tax Lot100:
t
Zo'tief~nges acca jutg"Ou above'plan changes inclade a
"Change from`-, , 2 EPD)~ Residential; 12 uniti.'IWt acre; Pli ntred=_a^ - -
Deve opniit) and R-25 (PD) (Residential; ?S units acre, Punned
Developineat) to C-C (Community CommerciM!* j'i 1k.x- '
_(Neighborhood Commercial) to-R-25 (Residential, 25 imits.per acre}
2. Site Development Review approval to allow the cbn§triiction of a.
40,000 square foot stand-alone tenant pad and three smaller tenant
pads of 2,200. 2,400 and 5,950 square feet adjoining the anchor pad.
The applicant-also proposes two-4,000 square foot stand-alone tenant : -
Y _ -
`pads; and ~nA- . r, q a
3. Minor Land Partition approval to divide the 11.95 acre parcel into two--.
parcels of approximately eight acres and 3.95 acres each.
The October 20, 1995 LUBA remand required City Council to receive and
make additional findings on the following issues:
1. = Transportation Tigard Comprehensive Plan Policy (TCP) 8.13 (f}(h)
and 8.4.1
22- Air/%I& Quality- LCDC Goa16 " _ = . - _ -
- _ - -
3. -Air Quality Impact TCP Policy 411
4. 'Water Quality Compliance: TCP Pblicy
5. Comniercial. Compatibility:•TCP Policy 5.4
6. Buffering: TCP Pblicy 6.6.1.•.~ti.
• 7. 'Scoria Drainage Facilities Feasibility-. TCP Pblicy 7.1.2
8. • _Design Criteria: CommunityDevelopment Code 18.61.055 ; .
EXHIBIT`Z_
Page 23- of
Pages
•
..-The City Council will open the record the'express purpose==R~ ;
for
" of addressing the above eight items and will not take evidence
: .i c+,fti or argument on any. 7other Issues.'
i.1 ~L~X~' ~U }'lt•..~ ....i:::..... ..e7 • °_c ww. , .t.. yo.."kw.._.a i
LOCATION;: 4inheast and N6rt eas't:giiadianMU the inteisectionrof
-S.W. Schoils Ferrj+ Road and S.W..Walnnt.Street. (WCTM) 2S I'4BS; Tai
Lots 100 and 200). APPLICABLE REVIEW CRITERIA: 'St tewide
Planning Goal 6; Comprehensive Plan Policies 1.1.1, 1.1.2, 4.1.1,4.2.1;. 4
:5.4, 6.6.1'",;-1A and-84'3,&.(h)_and 8.4:1: Community Development.: '
Code:Chapters1g.22'18.32:and 18.41'.055. ZONE: Tha.existtng
Neighborhood Commercial zone peimits~a Tanga of coavenience'goods ~
,
and .services'whicfi are' urchased at least a+eekty: 'I~picat risei would-
include coriverir cep ` es:aiid peisorial s~ivices, children~4 aa~►'cai4;
financia?'~a§~riancaand realtstate services,~food and beveiagemarl sales,-~-..--, •I
eic:.Neig'C6or'h6$,; d~onfirri' cial ester's have'g'S 000 sgrfa-lodi Io
Mr-~tr pwucco~tc~ -dsrnaR~ ,n4~•-. ~
The proposed~~ommunit)r Commer
~craPzone'ermrts~aranSe of
coriverueaee~goods"arid~e6~ice~s~irhicharn'designed:>~_,,s-etvlh~ag''-_L-: ~
e
• needs of res~detuif riearb residential aei hborlioods::Commnm'`
:'Couemecciai:cei~oers typicallX range sizc'froni a miriininrri of twvact
to eighUacres:'In terms of building square footaget These centers range
from 30 000 00 100 000_squaie feet`
i .--...fit:+:•t. _:..:R~-%i-.r~.+--tAte+~Tr~•-.~-_a• , ..~;.tr.=".-.
The existingR•25 (PD) zone.permits a range of single-fahwy hW--cfied,_
low and medium rise multiple-family residential iirnts; foi.W6ftia=higTi"'.
residential development. 71eR=25 lone permits resideatiardeasities nP OD
25 units-per acre. The Planned Development zoning district overlay
designed. to encourage ev
properties to be deloped as a single unit in 0erms=
of design, access, 'e0c:--9=-^~x~
• - : <-.Y. a~ - i ..~•:.-'sue . -c~ti,~;:~" -
TT8453- Publish April 11,1996.
•
EXH18ii-0-f
Page Pages
• TIGARD CITY COUNCIL
MEETING MINUTES - APRIL 23, 1996
• STUDY SESSION
> Meeting was called to order at 6:30 p.m. by Mayor Jim Nicoli
> Executive Session: The Tigard City Council went into Executive Session at 6:30
p.m. under the provisions of ORS 192.660 (1) (d), (3), & (h) to discuss labor
relations, real property transactions, current and pending litigation issues.
> Executive Session adjourned at 7:20 p.m.
> Council Present: Mayor Jim Nicoli, Councilors Brian Moore, Paul Hunt, Bob
Rohlf, and Ken Scheckla.
> Staff Present: City Administrator Bill Monahan; Asst. to the City Administrator Liz
Newton; City Recorder Catherine Wheatley; Ed Wegner, Maintenance Services; Jim
Hendryx, Community Development Director; Gary Alfson, Consultant; Wayne
Lowry, Finance Director; Jim Coleman, Legal Counsel; Terry Mahr, City Attorney,
Pro Tern; Nadine Smith, Senior Planner; Dick Bewersdorff, Senior Planner, and
Sandy Zodrow, Human Resources Director.
> Agenda Review
City Administrator Monahan reported that Legal Counsel Jim Coleman would step
down from the Albertson's remand hearing to preserve the record against the
possibility of a conflict of interest. Terry Mahr, the City Attorney for the City of
Newberg, would fill in for him.
Mr. Monahan suggested that the Council either consider agenda items 13 and 14
prior to agenda item 12 (Albertson's hearing) or continue those items to another
meeting. This would allow the Council to dismiss Mr. Coleman for the evening
once item 12 was reached.
Mr. Mahr noted that one issue of concern on the remand hearing was the possibility
that the participants would submit a lot of new documents into the record. He said
that if that was the case, the City might want to take the position that they would not
accept new documents into the record until staff had a chance to review those
documents and make sure that they only addressed the remand .issues.
Mr. Mahr stated that he has spoken with the applicant about the statutory provisions
allowing him seven days to rebut.
Mayor Nicoli asked if the applicant's attorney would write the findings, should the
Council make a positive decision. Mr. Mahr said that the applicant's attorney has
already written the findings which were contained in Exhibit A. Mr. Monahan said
that if other findings were needed because of new evidence, staff would send them
out to the applicant's attorney.
CITY COUNCIL MEETING MINUTES - APRIL 23, 1996 - PAGE 1
EXHIBIT.
Page ~ ~0-f
Pages
• Mayor Nicoli asked if he could assign time limits to the testimony. Mr. Monahan
said yes.
Councilor Scheckla asked if it was possible to "appeal" on the appeal. Mr. Mahr
said that passing an ordinance was an appealable decision to LUBA, the Court of .
Appeals and the Oregon Supreme Court. He commented that the applicant has told
him that he expected the decision to be appealed.
Councilor Scheckla asked Mr. Mahr if he saw anything in the findings that looked
out of the ordinary. Mr. Mahr said that he thought everything looked good.
Mr. Monahan reviewed the revised language on Item 3.6 on the Consent Agenda,
(the resolution on the waiver of processing land use applications).
Mr. Hendryx pointed out that staff sent notices to every property owner in the
Triangle informing them that this issue was on the agenda tonight. Nadine Smith
received about six calls from people interested in what was going on.
Planning Commission applications were distributed to Council. Mr. Monahan asked
that Council comment to staff by May 2 to allow Mayor Nicoli and Councilor Rohlf
time to review them before the May 20 interviews.
Mr. Monahan reviewed additional agenda changes, The Mayor of Durham
requested that Item 6 be withdrawn from consideration. He explained (on the
• Willamette River option) that the City of Tualatin wanted to be included on the next
level of that study at a cost of $15,000 to each of the now seven participants; it
would cost Tigard approximately $2000 more with the funds coming out of the water
budget. He said that they needed to sign a memo of understanding to continue the
process.
Mr. Hendryx reported that there was a letter for the Mayor to sign supporting the
recommendations of the Committee regarding folding the Boundary Commission into
Metro's process and streamlining the process. He said that one concern staff had
was that a lot of the procedural detail and criteria for approving has not been worked
out yet; Tigard wanted to remain involved in that process.
Councilor Hunt asked if this was giving more power to Metro. ' Mayor Nicoli
commented that this cut back the entire process. Mr. Hendryx said that he thought
this gave more control at the local level.
Mayor Nicoli asked if they could still refine the RFP criteria for the study at Cook
Park even if they passed that item this evening. Mr. Monahan said yes. Mr.
Hendryx asked the Council to give staff direction to approve the request subject to
input from the other agencies.
EXHIBIT
CITY COUNCIL MEETING MINUTES - APRIL 23, 1996 - PAGE 2 Page of
Pages
• Motion by Councilor Hunt, seconded by Councilor Rohlf, to approve Ordinance
No. 96-19.
The City Recorder read Ordinance No. 96-19 by number and title.
ORDINANCE NO. 96-19, AN ORDINANCE ADOPTING THE FINDINGS AND
CONCLUSIONS TO APPROVE THE ZONE CHANGE AND DECLARING AN
EFFECTIVE DATE ZCA 96-02.
The motion was approved by a unanimous roll call vote of the Council present.
(Mayor Nicoli, Councilors Hunt, Moore, Rohlf and Scheckla voting "yes.
The Council considered Items 13 and 14 at this time.
12. PUBLIC HEARING (QUASI-JUDICIAL) - ALBERTSON'S INC./DUNCOMBE Land
Use Board of Appeals (CUBA) Remand - Comprehensive Plan Amendment (CPA) 93-
0009/Zone Change (ZONE 93-0003; Site Development Review (SDR) 93-0014/Minor
Land Partition (MELP) 93-0013
A request to consider an Oregon Land Use Board of Appeal (LUBA) remand for the
following development approvals:
1. Comprehensive Plan and Zone Change approval to redesignate approximately eight
acres of a 11.95 acre parcel from Medium-High Density Residential to Community
Commercial on Tax Lot 200 and to redesignate an approximately 6.93 acre parcel
from neighborhood Commercial to Medium-High Density Residential on Tax Lot
100. The Zone Changes accompanying the above plan changes include a change
• from R-12 (PD) (Residential, 12 units per acre, Planned Development) and R-30
(PD) (Residential, 25 units per acre, Planner Development ) to C-C (Community
Commercial) and from C-N (Neighborhood Commercial) to R-25 (Residential, 25
units per acre);
2. Site Development Review approval to allow the construction of a 40,000 square foot
stand-alone tenant pad and three smaller tenant pads of 1,200, 2,400 and 4,950
square feet adjoining the anchor pad. The applicant also proposes two 4,000 square
foot stand-alone tenant pads; and
3. Minor Land Partition approval to divide the 11.95 acre parcel into two parcels of
approximately eight acres and 3.95 acres each.
The October 20, 1995 LUBA remand required City Council to receive and make additional
findings on the following issues:
1. Transportation Tigard Comprehensive Plan Policy (TCP) 8.1.3 (f)-(h) and 8.4.1
2. Air/Water Quality: LCDC Goal 6
3. Air Quality Impact: TCP Policy 4. 1.1
4. Water Quality Compliance: TCP Policy 4.2.1
5. Commercial Compatibility: TCP Policy 5.4
6. Buffering: TCP Policy 6.6.1
7. Storm Drainage Facilities Feasibility: TCP Policy 7.1.2
8. Design Criteria: Community Development Code 18.61.055
CITY COUNCIL MEETING MINUTES - APRIL 23, 1996 - PAGE 14
EXHIBIT
Page of
Pages
• LOCATION: Southeast and northeast quadrants of the intersection of SW Scholls Ferry
Road and SW Walnut Street. (WCTM 2S1 4BB, Tax Lots 100 and 200); APPLICABLE
REVIEW CRITERIA: Statewide Planning Goal 6; Comprehensive Plan Policies 1.1.1,
1.1.2, 4.1.1, 4.2.1, 5.4, 6.6.1, 7.1.2 and 8.1.3 (f)-(h) and 8.4.1; Community Development
Code Chapters 18.22, 18.32 and 18.61.055. ZONE: The existing Neighborhood
Commercial zone permits a range of convenience goods and services which are purchased
at least weekly. Typical uses would include convenience sales and personal services,
children's day care, financial, insurance and real estate services, food and beverage retail
sales, etc. Neighborhood Commercial centers have a 5,000 square foot lot minimum.
The proposed Community Commercial zone permits a range of convenience goods and
services which are designed to serve the regular needs of residents of nearby residential
neighborhoods. Community Commercial centers typically range in size from a minimum
of two acres to eight acres. In terms of building square footage, these centers range from
30,000 to 100,000 square feet.
The existing R-25 (PD) zone permits a range of single-family attached, low and medium rise
multiple-family residential units, for medium-high residential development. The R-25 zone
permits residential densities up to 25 units per acre. The Planned Development zoning
district overlay is designed to encourage properties to be developed as a single unit in terms
of design, access, etc.
> Mayor Nicoli noted that Mr. Mahr from the City of Newberg would be serving as the City's
legal counsel on this item because of a conflict of interest with Tigard's City Attorney. Mr.
• Monahan explained that the issue was raised that Mr. Coleman has represented Albertson's
in the past.
Mayor Nicoli briefly recessed the meeting.
Mayor Nicoli reconvened the meeting.
a. Open Public Hearing
Mayor Nicoli read the hearing title and opened the public hearing.
b. Declarations or Challenges: None
C. Staff Report
Mr. Bewersdorff presented the staff report. He stated that the Council approved the
Albertson's comprehensive plan zone map amendments as well as their specific
development plans (subject to numerous conditions) on December 27,1994; the
decision was appealed to LUBA who remanded it to Tigard on October 20, 1995.
He listed the eight issues on which LUBA remanded the appeal to the Council.
Mr. Bewersdorff stated that the applicant has completed his work on the remand
issues. He advised the Council to limit its review to the main findings on the eight
remaining issues before LUBA. Mr. Mahr stated that he spoke with both the
applicant and the appellant, both of whom understood that testimony was limited to
• the eight issues.
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d. Public Testimony
Mayor Nicoli read the hearing procedures and time limits.
PROPONENTS
John Shonkwiler, representing Albertson's, introduced Don Duncombe,
Albertson's; Norm Schoen, Project Architect; Steve Ward, West Tech Engineering;
and Phil Roarth, Kittleson & Associates (traffic analysis).
Mr. Shonkwiler reviewed that this was a request to move the existing neighborhood
commercial designation of approximately seven acres on one corner of Walnut and
Scholls Ferry to a community commercial designation of eight acres on another
corner of Walnut and Scholls Ferry. He stated that the Council approved their site
development plan for a 40,000 square foot grocery store with 17,550 square feet of
other commercial area; this use was appealed by Marcotte & Thriftway but upheld
by LUBA.
Mr. Shonkwiler said that a lot of the consideration here was to clarify the City's
position on the language of the ordinance and how it worked with the
Comprehensive Plan. He pointed out that the total allowable square footage of
commercial in a community commercial zone was 100,100; this proposal was for
57,500 square feet.
Mr. Shonkwiler addressed the first remand issue: Transportation, CP policy 8.1.3
L -(h). He said that all of the provisions of this policy were challenged before
UBA but that LUBA upheld all of them except for subsections (f) through (h)
which LUBA felt needed more specificity in the findings.
In regard to (f), the provision of transit stops, bus turnout lanes and shelters, Mr.
Shonkwiler pointed out that this property was not served by transit, and that Tri-Met
has stated that it did not intend to provide service in the near future. He said that
the Council could find that the Albertson's site and its designated uses did not
generate transit ridership. He reviewed how the plan allowed for the possibility in
the future of bus pullout lanes near the proposed mini-park which could serve as a
bus stop area. He contended that the plan did meet the requirements. However they
were recommending an additional condition of approval on page 4 of the remand
statement allowing the City, through a public process, to make that designation in
the future.
In response to subsection (g), handicapped parking spaces, Mr. Shonkwiler explained
that the appeal on this arose from a conflict between the two sets of findings before
the Council. He said that the mistake was that the second set of findings did not
reflect the changes recommended in the set of findings based on the staff report. He
referred to the revised site and landscape plans that showed the relocation of some
of the handicapped parking spaces as recommended by staff to service all entrances
to the store.
• Mr. Shonkwiler noted that they could not locate the handicapped parking spaces for
the other commercial pads until they knew where the main entrance would be.
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overall the evidence in the record would support that switching from the
neighborhood commercial to community commercial was a rational planning
position.
Mr. Shonkwiler addressed the question of why move the designation across the
street. He stated that community commercial allowed more flexibility in how they
could develop the property. He pointed out that the triangular shape of the
neighborhood commercial property made it difficult to provide both commercial uses
and adequate buffering to eliminate adverse impacts to the abutting property; also
the flat area abutted directly up against the multi family structures, allowing no
latitude for separation.
Mr. Shonkwiler said that by moving the property across the street they could
excavate down so that the surrounding properties would overlooked two-thirds of the
site; it would also shape the property into a rectangle to allow for better buffering.
He noted that the City required 20% open space area around the property; they were
providing 30% which necessitated going from seven acres to eight acres. He said
that he thought that was full justification for why they met the policy.
Mr. Shonkwiler noted that the Council was entitled to make an interpretation on the
two different comprehensive plan polices, 5.4 and the locational criteria, which
should be compatible. He contended that if they met the locational criteria, it should
be presumed that they also met the requirements of 5.4.
Mr. Shonkwiler reviewed the sixth issue: Buffering TCP policy 6.6.1. He noted the
code section 18.100 which implemented the landscaping screening requirements
mentioned in the Comprehensive Plan. He contended that if the applicant has met
the code provisions, then they have satisfied the Comprehensive Plan policy 6.6.1
as well. He stated that the previously adopted findings showed that they have
complied with 18.100; since those findings were not challenged, he said that they
could reasonably rely on them today.
Mr. Shonkwiler reviewed the specifics of the landscaping plan in terms of how they
were providing an air pollution absorber, noise and dust filters and a visual barrier
through excavation and landscaping.
Mr. Shonkwiler referred to the West Tech report as setting out fully how the
applicant met the seventh issue of storm drainage and making the conclusion that the
applicant has met the requirement and could feasibly satisfy the conditions of
approval.
Mr. Shonkwiler noted that, in response to the eighth issue of design criteria, it was
a similar mistake as with the handicapped parking. They submitted a change
between the staff report and the final decision that was not corrected in the findings.
He referred to LUBA 390 (site plan) and LUBA 391 (landscaping plan) that showed
the specifics of the landscaping plan. He said that they have met LUBA's
requirement that they revise their plans to clarify exactly what was happening.
Mr. Shonkwiler requested approval of the application and adoption of the findings.
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• Barbara Collins, resident at Northview & Castle Hill, stated that the neighbors
felt strongly that Albertson's was doing its best to meet all the requirements and to
take the neighborhood into consideration; they were trying to make having a
commercial entity in the neighborhood as livable as possible. She said that they
hoped this could be worked out as soon as possible and that they felt that Albertson's
had a good plan.
Scott Russell, property owner, addressed two issues: transportation and air quality.
He said that neighbors have expressed concern over the potential for a future access
to Northview; he stated that one of the conditions of approval stated that, should the
City decided to put in that access, it would have to go through a public process and
address the neighbors' concerns. He said that he thought air quality had been
compromised by the opposition.
OPPONENTS
Jeff Kleinman, 1207 SW Sixth Ave, Portland, representing Marcotte Holdings,
Inc. and Murray Thriftway who were the appellants at LUBA, commented that
he thought that there was a general belief that if LUBA remanded something and the
applicant threw a "bunch of stuff" at it, then the applicant should automatically
prevail. He said that the "stuff" had to be responsive and address the issues or the
applicant was not entitled to prevail. He said that the appellants felt strongly that
the applicant has not sufficiently addressed two of the eight issues.
• Mr. Kleinman said that they felt that the issue of commercial compatibility was a
fundamental Comprehensive Plan issue that needed to be looked at because the
applicant was asking the Council to make an interpretation that set a dangerous
precedent that did not suit the City's Comprehensive Plan objectives. He noted that
this issue was raised by LUBA and in the proposed order of the City Council
submitted by the applicant.
Mr. Kleinman contended that the neighborhood commercial site that the applicant
said was 6.93 acres was in actual fact a five acre neighborhood commercial site. He
submitted materials into the record obtained from the City which mentioned a five
acre parcel at this site to support his contention (the 1986 City annexation decision,
a 1991 memo from Jerry Offer to Katie Dorsett, and a 1991 letter to Tigard
Planning from the City of Beaverton).
Mr. Kleinman pointed out that LUBA looked at the appellants' objections to
substituting community commercial for neighborhood commercial; LUBA found that
the argument in the findings that a mistake was made in the original designation
during the annexation process was sufficient to justify the zone change (the City's
designation of the parcel as neighborhood commercial when it had a commercial
designation in the County). He stated that the parcel so designated was five acres
only.
Mr. Kleinman cited LUBA's findings that the applicant had not adequately analyzed
the impacts on the different residential natures of the surrounding neighborhoods
resulting from substituting a larger development for a smaller one on the opposite
comer of the same intersection. He contended that the applicant still has not done
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• this but rather relied on the proposition that it was all the same, as supported by its
experts. He stated that the impact was there. He said that while Albertson's might
be able to address this issue sufficiently to allow them to prevail, they have not done
so yet.
Mr. Kleinman stated that he read a different interpretation of the findings than the
applicant presented and summarized to the Council. He said that the applicant urged
the Council to interpret the policy to mean that (since a community commercial zone
had a trade area of a 1.5 mile radius) there was no impact from moving the
commercial from one place within that radius to another, if it already has some
residential in it. He stated that interpreting the code in that manner was doing a
grave disservice to the citizens. He contended that the applicant was avoiding the
analysis required by LUBA by asking for a code interpretation.
Mr. Kleinman stated that the applicant's proposal that policy 5.4 was complied with
simply by meeting the locational criteria was another way of not addressing the
encroachment issue; making that interpretation was also a bad idea for future
proposals. He said that he thought that the Council would be foreclosing the City
from exercising some of its review options down the road.
Mr. Kleinman stated that the differences between the existing neighborhood
commercial and a community commercial site demanded a finding of greater impact
and a measurement of the impacts. He stated that a neighborhood commercial site
was limited in the code and the plan to a two acre development; they could find
• nothing that exempted the existing neighborhood commercial zone from that
requirement.
Mr. Kleinman noted the differences between the neighborhood commercial
designation and the community commercial designation. He cited plan policy
12.2.1, section 1.a (2) that limited the trade area of a neighborhood commercial to
serving 5000 people; community commercial served a trade area within an 1.5 mile
radius. Neighborhood commercial did not permit restaurants, bars, general retail
uses or general office uses; community commercial did. Individual buildings in
neighborhood commercial were limited to 4000 square feet; the Albertson's store
alone was 40,000 square feet.
Mr. Kleinman stated that the Council should consider the total square footage that
could be developed under community commercial (100,000 square feet), contending
that they did not know what would happen on that site in the future. He said that
a development of 57,000 square feet would have a substantially different and far
greater impact than a neighborhood commercial development limited to two acres,
citing the traffic impacts in particular.
Mr. Kleinman reiterated that there has been no analysis of how the impact on the
residential areas differed from moving the site across the intersection. He stated that
they thought that the site impacts should be analyzed in reasonable detail prior to
moving forward on this application. He said that they believed that the end result
was an encroachment under policy 5.4 and an application lacking even the most
• fundamental baseline analysis of the impacts pertaining to the encroachment.
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Mr. Kleinman reviewed Albertson's objectives of securing more space for its store
and rental space but held that that objective in itself was not compliance with the
Comprehensive Plan or code provisions. He contended that Albertson's concerns
that the triangular shaped property would not be a profitable site to develop were
personal economic considerations not permitted in this analysis and could not justify
under the plan a non-existence of impacts of encroachment.
Mr. Kleinman stated that they did not think that the air quality impacts criteria
discussed by LUBA have been successfully addressed. He referred to his memo.
He said that the Plan required the City to ascertain from DEQ the permissibility of
these uses, particularly for the indirect source air pollution permit He contended that
the applicant's statement that they have prepared an application for the permit did
not meet the necessary test of approval required to comply with the Plan.
REBUTTAL-
Mr. Shonkwiler stated that he wanted to review the document submitted by Mr.
Kleinman into the record as he suspected that there might possibly be one issue he
raised that was outside the scope of the remand. He stated that he reserved his right
to submit a written rebuttal within seven days.
Mr. Shonkwiler pointed out that Mr. Kleinman was not involved with this process
from the beginning and might not be aware of all the evidence in the record. He
cited a separate order from the City Council that stated that when Walnut Drive went
• in, the shape and the size of the lot would be neighborhood commercial. He said
that this document resolved the five acre issue - the parcel was 6.93 acres, as
already decided by the Council.
Mr. Shonkwiler noted that Mr. Kleinman admitted that LUBA found that a mistake
was made in the zone designation at the time of the annexation of this property into
the City and that that was a legitimate reason to uphold the zone change and plan
amendment. He contended that the types of uses and size limitations of a
neighborhood commercial had no relevancy in this matter because the zoning should
have been community commercial instead of neighborhood commercial. Therefore
the impacts that Mr. Kleinman contended existed with a major change did not in fact
exist because the zoning designation was wrong from the time of annexation. LUBA
found that this zone change corrected a mistake.
Mr. Shonkwiler stated that he would submit a written rebuttal addressing each of
these issues and submit it within seven days.
e. Staff Recommendation
f. Council Questions
Councilor Scheckla asked about undergrounding facilities. Mr. Shonkwiler said that
they intended to underground all the facilities. He explained that the statement was
on page 18 because undergrounding was a condition of approval.
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g. Close Public Hearing
Mayor Nicoli closed the public hearing.
Mr. Mahr stated that it was appropriate to close the record at this point and allow
the applicant seven days to submit a written argument; the argument could not
consist of any new evidence.
Mayor Nicoli noted that the Council would take no further action on this item this
evening and closed the record.
Mr. Monahan said that staff would set this for the date certain of May 14, 1996 for
Council action.
13. PUBLIC HEARING - LEGISLATIVE: PROPOSED LAND USE APPLICATION
FEES/CITY OF TIGARD
a. Open Public Hearing
Mayor Nicoli opened the public hearing.
b. Declarations or Challenges: None
• c. Staff Report
Jim Hendryx, Community Development Director, commented that staff has been
working for the last year on this update of fees to reflect today's costs. He stated
that the last update was 10 years ago; the report prepared four years ago was not
acted on at the time.
Dick Bewersdorff, Senior Planner, presented the staff report. He said that the
original report prepared four years ago never got to the Council for action. He
stated that the open house staff held for developers was attended only by the
Homebuilders Association; though the Association would not endorse the fees, they
would not oppose them either.
Mr. Bewersdorff noted that these fees related solely to the cost of processing
applications; they did not include any follow up or long range planning efforts. He
said that staff recommended recovering 100% of both direct and indirect costs.
d. Public Testimony: None
e. Staff Recommendation
Mr. Bewersdorff recommended that Council direct staff to prepare a resolution to
recover 100% of the direct and indirect costs of land use applications, including
adding fees for those items listed in Exhibit A that the City did not charge fees for
• at this time.
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CITY OF TIGARD
r ~
a .
PUBLIC NOTICE: Anyone wishing to speak on an agenda item should sign on the
appropriate sign-up sheet(s). If no sheet is available, ask to be recognized by the
Mayor at the beginning of that agenda item. Visitor's Agenda items are asked to
be two minutes or less. Longer matters can be set for a future Agenda by
contacting either the Mayor or the City Administrator.
Times noted are estimated: it is recommended that persons interested in testifying
be present by 7:15 p.m. to sign in on the testimony sign-in sheet. Business
agenda items can be heard in any order after p.m.
Assistive Listening Devices are available for persons with impaired hearing and
should be scheduled for Council meetings by noon on the Monday prior to the
Council meeting. Please call 639-4171, Ext. 309 (voice) or 684-2772 (TDD -
Telecommunications Devices for the Deaf).
Upon request, the City will also endeavor to arrange for the following services:
• Qualified sign language interpreters for persons with speech or hearing
impairments; and
• Qualified bilingual interpreters.
Since these services must be scheduled with outside service providers, it is
important to allow as much lead time as possible. Please notify the City of your
need by 5:00 p.m. on the Thursday preceding the meeting date at the same phone
numbers as listed above: 639-4171, x309 (voice) or 684-2772 (TDD -
Telecommunications Devices for the Deaf).
• SEE ATTACHED AGENDA
COUNCIL AGENDA - APRIL 23,1996- PAGE 1 EXHIBIT
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AGENDA
• TIGARD CITY COUNCIL MEETING
APRIL 23, 1996 - 6:30 PM
• STUDY SESSION
> BUSINESS MEETING EXECUTIVE SESSION: The Tigard City
Council will go into Executive Session under the provisions of ORS
192.660 (1) (d), (e), at (h) to discuss labor relations, real property
transactions, current and pending litigation issues. As you are aware,
all discussions within this session are confidential; therefore nothing
from this meeting may be disclosed by those present.
Representatives of the news media are allowed to attend this session,
but must not disclose any information discussed during this session.
> AGENDA REVIEW
1. 1.1 Call to Order - City Council at Local Contract Review Board
1.2 Roll Call
1.3 Pledge of Allegiance
1.4 Council Communications/Liaison Reports
1.5 Cali to Council and Staff for Non-Agenda Items
2. VISITOR'S AGENDA (Two Minutes or Less, Please)
• 3. CONSENT AGENDA: These items are considered to be routine and may be
enacted in one motion without separate discussion. Anyone may request
that an item be removed by motion for discussion and separate action.
Motion to:
3.1 Approve Council Minutes: March 19, 1996
3.2 Receive and File: April 12, 1996 Memorandum from Human
Resources Director to Mayor at Council Regarding the Employee
Recognition Program
3.3 Terminate Waterline Easement within the Proposed Hillshire Creek
Estates Subdivision
3.4 Extinguish Sewer Easement for Bonita Industrial Park Subdivision -
Resolution No. 96-
3.5 Support Unified Sewerage Agency's (USA) Request for Metro
Greenspaces Funds to Help Them Purchase the Thomas Dairy
Property - Resolution No. 96-
3.6 Waive Processing Requirements for Quasi-judicial Comprehensive
Plan Amendments for Properties Under Study as Part of the
Transportation Update Within the Tigard Triangle - Res. No. 96-
COUNCIL AGENDA - APRIL 23,1996- PAGE 2
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3.7 Enter into a Personal Services Contract wit Spencer at Kupper to
Complete the Scope of Work for the Tigard Transportation Update
3.8 Approve Request for Proposals and Budget for Hiring a Consultant to
Prepare a Plan for the Proposed Expansion of Cook Park
3.9 Approve Oregon Public Employees Union (OPEU) Contract
• Consent Agenda - Items Removed for Separate Discussion: Any items
requested to be removed from the Consent Agenda for separate
discussion will be considered immediately after the Council has voted
on those items which do not need discussion.
4. TUALATIN VALLEY ECONOMIC DEVELOPMENT CORPORATION
UPDATE
a. Mary Tobias, President and CEO
S. CONSIDER PRO-TEM JUDGE APPOINTMENTS: MARC ABRAMS AND
PETER ACKERMAN
a. Staff Report: Administrative Services Manager
b. Council Questions
C. Council Consideration:
Resolution No. 96- Appointing Marc Abrams as Pro Tem
Judge
Resolution No. 96- Appointing Peter Ackerman as Pro
Tem Judge
d. Administer Oaths of Office: Mayor Nicoli
6. COUNCIL DISCUSSION: REPRESENTATION ON INTERGOVERMENTAL
WATER BOARD
a. Staff Report: City Administrator
b. Council Discussion
7. CONSIDER LIBRARY EXCLUSION ORDINANCE
a. Staff Report: Library Director
b. Council Questions
C. Council Consideration: Ordinance No. 96-
8. DISCUSS WASHINGTON COUNTY COOPERATIVE LIBRARY SERVICE
CAPITAL LEVY
a. Staff Update: City Administrator gt Library Director
• b. Council Discussion
COUNCIL AGENDA - APRIL 23,1996- PAGE 3
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• 9. CONTINUATION OF PUBLIC HEARING: CONSIDERATION OF
PRIORITIZATION OF GREENSPACES PROJECTS (Continued from the
April 9, 1996 Council meeting.) Continuation of hearing to select
greenspace projects. Tigard is entitled to receive $758,000 in local share
funds from the Metro Greenspaces bond measure.
a. Continue Public Hearing
b. Update of Council Discussion from the April 16, 1996 Meeting:
Community Development Staff
C. Council Comment
d. Close Public Hearing
e. Council Consideration
10. PUBLIC HEARING (QUASI-3UDICI4,L): ZONE CHANGE ANNEXATION.
- ZCA 96-0001 SHULTZ
Request: Annex two parcels of 6.2 acres into the city and change the
comprehensive plan from Washington County R-6 to City of Tigard Medium
Density Residential and change the zone from Washington County R-6 to
City of Tigard R-7. LOCATION: North of Bull Mountain Road, across
from SW 133rd Avenue, approximately 1000'. APPLICABLE REVIEW
CRITERIA: The relevant review criteria in this case are Comprehensive Plan
policies 2.1.1, citizen involvement; 10.1.1, service delivery capacity;
• 10.1.2, boundary criteria; and 10.1.3, zoning designation. Also,
Community Development Code chapters 18.136, annexation requirements;
and 18.138, land classification of annexed territory. ZONE: Presently,
Washington County R-6.
a. Open Public Hearing
b. Declarations or Challenges
C. Staff Report: Community Development Department
d. Public Testimony (Proponents, Opponents, Rebuttal)
e. Staff Recommendation
f. Council Questions
g. Close Public Hearing
h. Council Consideration: Resolution No. 96- 8Z Ordinance No.
96-
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• 11. ZONE CHANGE ANNEXATION (ZCA) 96-0002 LUNDMARK
ANNEXATION
Request: The applicant and owners request annexation of one parcel of
0.47 acres into the city and a change of the comprehensive plan and zoning
from Washington County R-9 to City of Tigard Medium Density
Residendal/R-12. LOCATION: Property is located at 9275 Locust Street
just west of SW 92nd Avenue. APPLICABLE REVIEW CRITERIA: The
relevant review criteria in this case are Comprehensive Plan policies 2.1.1,
citizen involvement; 10.1.1, service delivery capacity; 10.1.2, boundary
criteria; and 10.1.3, zoning designation. Community Development Code
chapters 18.136, annexation requirements; and 18.138, land classification
of annexed territory. ZONE: Presently, Washington County R-9.
a. Open Public Hearing
b. Declarations or Challenges
C. Staff Report: Community Development Department
d. Public Testimony (Proponents, Opponents, Rebuttal)
e. Staff Recommendation
f. Council Questions
g. Close Public Hearing
It. Council Consideration: Resolution No. 96- at Ordinance No.
96-
12. PUBLIC HEARING (QUASI-JUDICIAL) - ALBERTSON'S
INC./DUNCOMBE Land Use Board of Appeals (LUBA) Remand -
Comprehensive Plan Amendment (CPA) 93-0009/Zone Change (ZON) 93-
0003; Site Development Review (SDR) 93-0014/Minor Land
Partition (MLP) 93-0013
A request to consider an Oregon Land Use Board of Appeal (LUBA)
remand for the following development approvals:
1. Comprehensive Plan and Zone Change approval to redesignate
approximately eight acres of a 11.95 acre parcel from Medium-
High Density Residential to Community Commercial on Tax
Lot 200 and to redesignate an approximately 6.93 acre parcel
from Neighborhood Commercial to Medium-High Density
Residential on Tax Lot 100. The Zone Changes accompanying
the above plan changes include a change from R-12 (PD)
(Residential, 12 units per acre, Planned Development) and R-
25 (PD) (Residential, 25 units per acre, Planned
Development) to C-C (Community Commercial) and from C-N
(Neighborhood Commercial) to R-25 (Residential, 25 units
per acre);
•
COUNCIL AGENDA - APRIL 23,1996- PAGE 5
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2. Site Development Review approval to allow the construction of -
• a 40,000 square foot stand-alone tenant pad and three smaller
tenant -pads of 1,200, 2,400 and 5,950 square feet adjoining
the anchor pad. The applicant also proposes two 4,000 square
foot stand-alone tenant pads; and
3. Minor Land Partition approval to divide the 11.95 acre parcel
into two parcels of approximately eight acres and 3.95 acres
each.
The October 20, 1995 LUBA remand required City Council to
receive and make additional findings on the following issues:
1. Transportation Tigard Comprehensive Plan Policy (TCP) 8.1.3
(f)-(h) and 8.4.1
2. Air/Water Quality: LCDC Goal 6
3. Air Quality Impact: TCP Policy 4. 1.1
4. Water Quality Compliance: TCP Policy 4.2.1
5. Commercial Compatibility: TCP Policy S.4
6. Buffering: TCP Policy 6.6.1
7. Storm Drainage Facilities Feasibility: TCP Policy 7.1.2
8. Design Criteria: Community Development Code 18.61.055
The:: City . Councit. will' open. the .record for the express purpose:::: of
addressing the above 'eight items' and will not. ..take-*:" vidence : `or
or
argument. on any other- issues.:
LOCATION: Southeast and Northeast quadrants of the. intersection
of SW Scholls Ferry Road and SW Walnut Street. (WCTM 2S 1 4136,
Tax Lots 100 and 200). APPLICABLE REVIEW CRITERIA:
Statewide Planning Goal 6; Comprehensive Plan Policies 1.1.1,
1.1.21 4.1.11 4.2.1, 5.4, 6.6.1, 7.1.2 and 8.1.3 (f)-(h) and 8.4.1;
Community Development Code Chapters 18.22, 18.32 and
18.61.055. ZONE: The existing Neighborhood Commercial zone
permits a range of convenience goods and services which are
purchased at least weekly. Typical uses would include convenience
sales and personal services, children's day care, financial, insurance
and real estate services, food and beverage retail sales, etc.
Neighborhood Commercial centers have a 5,000 square foot lot
minimum.
The proposed Community Commercial zone permits a range- of
convenience goods and services which are designed to serve the
• regular needs of residents of nearby residential neighborhoods.
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Community Commercial centers typically range in size from a
• minimum of two acres to eight acres. In terms of building square
footage, these centers range from 30,000 to 100,000 square feet.
The existing R-25 (PD) zone permits a range of single-family
attached, low and medium rise multiple-family residential units, for
medium-high residential development. The R-25 zone permits
residential densities up to 25 units per acre. The Planned
Development zoning district overlay is designed to encourage
properties to be developed as a single unit in terms of design, access,
etc.
a. Open Public Hearing
b. Declarations or Challenges
C. Staff Report: Community Development Department
d. Public Testimony (Proponents, Opponents, Rebuttal)
e. Staff Recommendation
f. Council Questions
g. Close Public Hearing
h. Council Consideration: Ordinance No. 96-
13. PUBLIC HEARING - LEGISLATIVE: PROPOSED LAND USE
• APPLICATION FEES/CITY OF TIGARD The Tigard City Council will
conduct a public hearing to hear testimony on the proposed land use
application fee changes.
a. Open Public Hearing
b. Declarations or Challenges
C. Staff Report: Community Development Department
d. Public Testimony (Proponents, Opponents)
e. Staff Recommendation
f. Council Questions
g. Close Public Hearing
h. Council Consideration
14. ZONE ORDINANCE AMENDMENT (ZOA) 96-0001 - CITY OF
TIGARD - UNDERGROUNDING UTILITIES EXCEPTION (Set over
from April 9, 1996 Council meeting.) A proposal to amend the Tigard
Community Development Code Section 18.164.120 to add Sections C.
and D. to provide for exceptions to the underground utility requirement
and a fee in lieu of undergrounding.
a. Open Public Hearing
b. Declarations or Challenges
C. Staff Report: Community Development Department
• d. Public Testimony (Proponents, Opponents)
e. Staff Recommendation
COUNCIL AGENDA - APRIL 23, 1996- PAGE 7
EXHIBIT C?
Page _IQ I of
Pages
f. Council Questions
• g. Close Public Hearing
h. Council Consideration: Ordinance No. 96-
IS. NON-AGENDA ITEMS
16. EXECUTIVE SESSION: The Tigard City Council will go into Executive
Session under the provisions of ORS 192.660 (1) (d), (e), ex (h) to
discuss labor relations, real property transactions, current and pending
litigation issues. As you are aware, all discussions within this session are
confidential; therefore nothing from this meeting may be disclosed by those
present. Representatives of the news media are allowed to attend this
session, but must not disclose any information discussed during this session.
17. ADJOURNMENT
is\adm\cca\960423.doc
COUNCIL AGENDA -APRIL 23,1996- PAGE 8
EXHIBIT C1.
Page L al of
Pages
pending on the number of person wishing to testify, the Chair of the Council may limit the amount of
e each person has to speak. We ask you to limit your oral comments to 3 - 5 minutes. The Chair may
further limit time if necessary. Written comments are always appreciated by the Council to supplement
oral testimony.
PUBLIC HEARLNG (QUASI-JUDICIAL) - ALBERTSON'S LNC.IDUNCOMBE Land Use Board of
Appeals (LUBA) Remand - Comprehensive Plan Amendment (CPA) 93-0009/Zone Change (ZON)
93-0003; Site Development Review (SDR) 93-0014/Minor Land Partition (MLP) 93-0013
A request to consider an Oregon Land Use Board of Appeal (LUBA) remand for the following
development approvals:
1•. Comprehensive Plan and Zone Change approval to redesignate approximately eight acres
of a. 11.95 acre parcel from Medium-High Density Residential to Community
Commercial on Tax Lot 200 and to redesignate an approximately 6.93 acre parcel from
Neighborhood Commercial to Medium-High Density Residential on Tax Lot 100. The
Zone Changes accompanying the above plan changes include a change from R-12 (PD)
• (Residential, 12 units per acre, Planned Development) and R-25 (PD) (Residential, 25
units per acre, Planned Development) to C-C (Community Commercial) and from C-N
(Neighborhood Commercial) to R-25 (Residential, 25 units per acre);
2. Site Development Review approval to allow the construction of a 40,000 square foot
stand-alone tenant pad and three smaller tenant pads of 1,200, 2,400 and 5,950 square
feet adjoining the anchor pad. The applicant also proposes two 4,000 square foot stand-
alone tenant pads; and
3. Minor Land Partition approval to divide the 11.95 acre parcel into two parcels of
approximately eight acres and 3.95 acres each.
The October 20. 1995 LUBA remand required City Council to receive and make additional
findings on the following issues:
1. Transportation Tigard Comprehensive Plan Policv (TCP) 8. 1.37 (f)-(h) and 8.4.1
2. Air/`Water Quality: LCDC Goal 6
3. Air Quality Impact: TCP Policy 4. 1.1
4. Water Quality Compliance: TCP Policy 4.2.1
5. Commercial Compatibility: TCP Policy 5.4
6. Buffering: TCP Policy 6.6.1
• 7. Storm Drainage Facilities Feasibility: TCP Policv 7.1.2
8. Design Criteria: Community Development Code 18.61.055
EXHIBIT 1'
Page 03 of
Pages
The City Council will open the record for the express purpose of addressing the above eight
items and will not take evidence or argument on any other issues.
LOCATION: Southeast and Northeast quadrants of the intersection of SW Scholls Ferry Road
and SW Walnut Street. (WCTM 2S1 4BB, Tax Lots 100 and 200). APPLICABLE REVIEW
CRITERIA: Statewide Planning Goal 6; Comprehensive Plan Policies 1.1.1, 1.1.2, 4.1.1,
4.2.1, 5.4, 6.6.1, 7. 1.2 and 8.1.3 (f)-(h) and 8.4.1; Community Development Code Chapters.
18.227, 18.32 and 18.61.055. ZONE: The existing Neighborhood Commercial zone permits a
range of convenience goods and services which are purchased at least weekly. Typical uses
would include convenience sales and personal services, children's day care, financial, insurance
and real estate services, food and beverage retail sales, etc. Neighborhood Commercial centers
have a 5,000 square foot lot minimum. .
The proposed Community Commercial zone permits a range of convenience goods and services
which are designed to serve the regular needs of residents of nearby residential neighborhoods.
Community Commercial centers typically range in size from a minimum of two acres to eight
acres. In terms of building square footage, these centers range from 30,000 to 100,000 square
feet.
• The existing R-25 (PD) zone permits a range of single-family attached, low and medium rise
multiple-family residential units, .for medium high residential development. The R-25 zone
permits residential densities up to 25 units per acre. The Planned Development zoning district
overlay is designed to encourage properties to be developed as a single unit in terms of design,
access, etc.
PLEASE SIGN IN TO TESTIFY ON THE ATTACHED SHEETS
EXHIBIT
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Pages
PLEASE PRINT
Proponent - (Speaking In Favor) Opponent - (Speaking Against)
Name, Address and Phone No. NameAddress and Phone No.
140
Name, Address and Phone No. f Name, Address and Phone No.
~64M fill
13-441-5 15 4&;6(
T ccr4&t) Ore Y7 a;L 3 17
Name, Address ~ajnd Phone No. Name, Address and Phone No.
S C- o7-tr ~l u SS tF~- L
' / 29/ /3A-f'wx-,o eR , Ra
SCA-PPoc- 5,;F' 0~ 9~c~sb
5~3 y3'~
Name, Address and Phone No. Name, Address and Phone No.
e, Address and Phone No. Name, Address and Phone No.
Name, Address and Phone No. Name, Address and Phone No.
i
1 Name. Address and Phone No. Name, Address and Phone No.
Name. Address and Phone No. Name, Address and Phone No.
I
I
Name. Address and Phone No. Name, Address and Phone No.
i
I ~
EXHIBIT 10
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Pages
AGENDA ITEM #
• For Agenda of n I qV
CITY OF TIGARD, OREGON
COUNCIL AGENDA ITEM SUMMARY
ISSUE/AGENDA TITLE ComorPhensive Plan Amendment CPA 93-0009. Zone Change ZON
93-oool - AlbeY son's Tnc - -
PREPARED BY: Dick B DEPT HEAD OK CITY ADMIN OK LVXYY\'
TSSUF. BEFORE THE COUNCIL
Should the City Council adopt the attached ordinance and findings approving
the Albertson's Inc. Comprehensive Plan and Zoning Map Amendment?
STAFF RECOMMENDATION
Staff recommends that the City Council adopt the attached ordinance and
findings.
TNFO MATTON SUMMARY
The City Council approved the Albertson's Comprehensive Plan and Zone Map
amendments as well as development plans subject to numerous conditions on
December 27, 1994. The decision was appealed to the State Land Use Board of
eals. On October 20, 1995, LUBA remanded the application back to the
Wgard City Council for further review and findings on eight issues. No
other issues of error were reversed by LUBA. The applicant's attorney has
been working on responding to the remand issues. Upon completion of that
work, the applicant's attorney requested that the City schedule the remand
hearing.
The City Council should limit its review and make findings on the eight
remaining issues remanded by LUBA. These eight issues are listed and
explained in the attached Albertson's Inc. Remand Statement. Also attached
is an ordinance and final order including findings and conclusions with
reca_d to the remand prepared by the applicant.
O^='R ALT=R- ,ATTV S CONSIDERED
Make =et+ S.ons to the attached ordinance and findings.
FISCAL. • NOTES
~7o c_recz =_sca! 1Tivacts
•
EXHIBIT It
Page o(~ of
Pages
ALBERTSON'S, INC.'S
- REMAND STATEMENT
1. INTRODUCTION.
A. History of the Application.
Albertsons oriuinally sought approval to construct a medium-sized shopping center with
an Albertson's grocery store by applying for a comprehensive plan amendment and zoning
change for their 8 acre parcel from medium-high density residential to "Community
Commercial."
The application included replacing the existing Neighborhood Commercial (C-N) located
on the northeast corner of Scholls Ferry Road and Walnut Street with multi-family residential
zoning , and moving the commercial to the 8 acre parcel at the southwest corner of Scholls Ferry
Road and Walnut (and change the zoning to "Community Commercial"). In addition.
Albertson's also applied for a "Site Development Plan" approval for a shopping center with a
total of 57,550 square feet of commercial space. and a minor land partition. A conditional use
permit for a vehicle fuel sales and a request to allow 24 hour operation of the grocery store were
both %Nithdravm by Albertsons during the review process.
• After numerous public hearings before both the Planning Commission and City Council,
the Citv Council approved the applications, with conditions, on December 27, 1994. Marcott
Holdings, Inc.. Matt Marcott and Murrayhill Thriftwav, Inc., appealed that approval to LUBA
seeking reversal of the approval by raising 11 principal assignments of error Aith 51 sub-
assignments of error. LUBA refused to reverse the City's approval and. instead, remanded for
additional findings on 8 issues. Marcott Holdings, Inc., Matt Marcott and Murravhill Thriftway,
Inc., did not appeal LUBA's denial of their other 43 sub-assignments of error. As a result, all 43
of those sub-assignments of error cannot be re-raised by them (or others) during this remand
hearing process.
B. LUBA's Remand Decision.
On October 20. 1995. LUBA issued its opinion which remanded Albertson's application
arrroval back to the TiL-ard City Council for further revi,-x and additional findings necessary for
the followimu issues:
1. Transportation: Tigard Comprehensive Plan (TCP) Policv 8.1.3 (f)-(h). LUBA
found that the City's prior order included conditions adequately addressed TCP Policy
S.1.3- (a)-(e). but failed to include conditions or adequate findings covering TCP Polic.,
8. 1.3 (f)-W. Sub-policies (f)-(h) deal «ith transit Stops and transit-related improvements,
parking. and land dedication for the City's bicyclzipedestrian corridor. LLBA
• disable .4
Opinion at 12-15. Correspondingly. TCP Police 8.4.1 must also be addressed in the
1 - ..L5ERTSON-S. INC. - REMAND STATEMENT EXHIBIT
Page IM of
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Pages
findings as the policy relates to the locating of the bicycle!pedestrian corridor. LUBA
• Opinion at 14.
2. Air/Water Quality: LCDC Goal 6. LUBA held that the City must make additional
findings addressing the feasibility of compliance with LCDC Goal 6 for "discharges"
from this future development; and in particular to solid waste, thermal. noise,
atmospheric or water pollutants, contaminants, or products therefrom. LUBA Opinion at
14-16.
3. Air Quality Impacts: TCP Policy 4.1.1. The City's findings must be modified to
adequately address the criteria of TCP Policy 4.1.1 as they apply to the potential air
quality impacts described. LUBA Opinion at 16-17.
4. Water Quality Compliance: TCP Policy 4.2.1. The findings need to be modified to
identify the "applicable federal, state and regional water quality standards", whether they
are discretionary standards, and the feasibility of Albertsons complying with those
standards. LUBA Opinion at 17.
5. Commercial Compatibility: TCP Policy 5.4. LUBA held that the findings related to
this policy were deficient "because the finding does not even acknowledge the proposed
shift in location" (substitution of "CC" for "C-N" and shifted across Walnut Street to the
southwest). LUBA Opinion at 20-22.
•
6. Buffering: TCP Policy 6.6.1. The City's findings need to be modified to specifically
address the criteria set forth under TCP Policy 6.6.1, and whether satisfying the
applicable code provisions for "buffering" also satisfy the criteria under TCP Policy
6.6.1. LUBA Opinion at 24-28.
7. Storm Drainage Facilities Feasibility: TCP Policy 7.1.2. The City's findings must
be modified to identify that the specific requirements of the policy can be satisfied by the
imposition of the proposed conditions of approval. , This requires findings on' the
feasibility of compliance and these findings must be supported by substantial evidence.
LUBA Opinion at 28-29.
3. Design Criteria: CDC 15.61.055. LUBA held that the City's findings unacceptably
defe,ned compliance xvith discretionary- standards by imposing conditions of approval that
did not ensure public involvement. The offending finding ["in some cases design
conc:pts need to the amended and in others more detailed information needs to be
provid:: (as conditions of approval) to ensure compliance with this Code section"]
pertained primarily- to Cite staff recommended additional details in the landscape plan,
and changes in pedestrian pathways and accesses on the site development plan. LUBA
Opinion at -',1-31
EXHIBIT
~L3ERT~'JN's. r`c. - RE\:A\D STATE`•tEN-T Page ~ of
Pages
11. ISSUES REVIEWABLE ON REMAND.
• The Citv may restrict the remand hearing to the eight (8) sub-assignments of error
identified above. The City's Community Development Code does not require review beyond the
issues remanded by LUBA. As a result, the City may restrict testimony and submittal of
evidence to onlv these eight remanded issues. Von Luhken v. Hood River Co., 19 Or. LUBA
404, 419 (1990), affirmed 106 Or.App. 226, revielu denied 311 Or. 349 (1991). Albertsons, as
the applicant. requests that the Cite accept testimony and e,, ide:ice only on these eight remanded
issues, and then adopt new findings.
Since Albertsons is not modifying their application. all other issues previously raised or
issues that could have been raised at the prior City hearings and on appeal to LUBA are legally
precluded from re-review. Marcott Holdings, Inc., Matt Niarcott and Murrayhill Thriftway,
Inc., failed to appeal any of LUBA's denial of their 43 sub-assignments of error and, therefore,
these are now waived and cannot be re-raised before the City on remand. Colhouer v. Union
Pacific R.R. Co.. 975 Or. 559 (1976); Beck v. City of Tillamook. 3I3 Or. 148 (1992).
III. ALBERTSON'S RESPONSES TO THE REMAND ISSUES.
A. Transportation: TCP Policy 8.13 (f)-(h).
TCP Policy 8.1.3 (f) provides that "The City shall require as a precondition to
• development approval that: Transit stops, bus turnout lanes and shelters be provided when the
proposed use (is) of a n-pe which generates transit ridership."
The subject property and the intersection of SW Scholls Ferry Road and Walnut Street
are not currently served by transit ridership. Nor is the site in close enough proximately to be
served by transit ridership. The property is approximately 1/2 mile from the nearest Tri-Met
route. This bus stop is served by Tri-Met bus line No. 62. Therefore, TCP Policy 8.1.3 (f) does
not require the Albertson's application to provide transit stops, bus turnout lanes, or bus shelters
associated xith the site. The City Council can find that the Albertson's site and use is not of a
ripe which will generate transit ridership for Tri-Met. Tri-Mot's evaluation letter supports these
determinations. LUBA Record 127S.
Ho,vever. SW Scholls Ferry Road and Walnut Streit are logical routes for expansion as
the demand for bus services increases. The Albertson's application includes provision for future
p':acl-mleni of" bus lanes and a bus stop near the "mini-park" at the intersection of Scholls Ferry
Ro:au an. Walnut Street. LUBA Record 1556 (paragraph i l). A traffic study conducted by
Kittleson & Associates. Inc., transportation planners and traffic engineers, determined that the
application site and uses do not currentl% qualify for transit service. and therefore, TCP Policy
.3 , (f) does not require the transit precondition. Further. the hittleson Report also identifies
tear future provision of these transit requirements are "feasible" due to the adequacy of the site
development pian. See the Kittles6n Report attached hereto as Exhibit "A".
The Ciiv Council could assu-e future comrliance by approving Albertson's application
EXHIBIT II
3 - at.sEhrsoN s. INC. EtEtii AND STATEMENT
Page _LCE Of
Pages
with an additional condition such as:
"In the future when transit ridership is extended to the subject property, the applicant
may be required to provide transit stops, bus turnout lanes and/or shelters at or near the
"mini-park" in accordance with the design specifications of the City's Engineering
Department. The City may elect to require such construction after duly providing notice
to all landowners within 250 feet of the site and conducting a scheduled public hearing
for such decision."
TCP Policy 8.1.3 (b) provides "The City shall require as a precondition to development
approval that: Parking spaces be set aside and marked for cars operated by disabled persons and
that the spaces be located as close as possible to the entrance designed for disabled persons."
The proposed development provides handicapped parking spaces in compliance with the
Americans with Disabilities Act (.FDA) requirements, and these parking spaces are located in
close proximity to the access points for the proposed grocery store, attached shop spaces, and the
two outlying commercial buildings. The attached Kittleson Report confirms that compliance by
the existing application. Exhibit "A" at page 2. The site development plan identifies the
handicap parking locations. LUBA Record 390. In addition, condition of approval No. 3 in the
previous City order identified that two of the proposed handicapped parking spaces must be
moved adjacent to the building. To better clarify that condition, it should be modified as
follows:
"3. Two of the proposed handicapped parking spaces in front of the grocery store (the
northwesterly spaces) shall be moved to the parking area immediately in front of Building
"A" next to the Albertson's grocery store location. In compliance with TCP Policy 8.1.3,
standard handicapped parking spaces shall be required for all commercial uses throughout
the site as they are constructed. The Applicant has provided a traffic report and a site plan
that identifies adequate area to satisfy the feasibility of the Applicant complying with the
requirements of TCP Policy 8. 1.31 (g)."
TCP Policy 3.1.3 (h) provides "The City shall require as a precondition to development
approval that: Land be dedicated to implement the bicycle/pedestrian corridor in accordance with
the adopted plan."
The _applicant's site does not adjoin a designated or proposed bicycle. 'pedestrian corridor
as identified in the Cit\-'s adopted plan. Exhibit "C''. The attached Kinleson Report identifies the
ab_erce of any application of the City's bicycle'pedestrian corridor plan to the Applicant's site.
Exhibit **A'' at page 2. As a result, the Cite' Council may interpret TCP Policy 8.1.3 (h), and the
corresponding application of TCP Policy 8.4.1. as only requiring land to be dedicated for a
bicycle'pedestrian condor when the applicant's property is designated in the adopted plan as
being a location for the proposed corridor. Clark: v. Jackson County. 313 Or. 508. 836 P .2d 710
(1992). Here. the . lbenson's site is not designated for a :or*dor in the Cit%•'s adopted plan.
i T'nerefore. TCP Policy- S.l.: (1:) and 8.4.1 do not require a dedication. and the Albertson's plan
does not conilic: with these policies.
EXHIBIT 11
4- ALBERTSO1'S. INC. - REMAND S T ATEMIENT Page Lt? of
Pages
B. Air/NVater Quality: LCDC Goal 6.
This requirement necessitates an analysis of the "discharges" that are projected to result..
from the Albertson's development, including air quality. solid waste, thermal. noise, atmospheric
or water pollutants, contaminants. or products therefrom. Attached hereto as Exhibit "B" is a
dischar-e analvsis by Westech Engineerine. Inc. The Westech Report identifies that the
Albertson's application will not violate or threaten to violate applicable city, state or federal
environmental quality statutes, rules and standards.
Solid waste shall be stored and removed in compliance with all applicable regulations for
desitn, construction and location of solid waste storage areas and equipment. Westech Report at
1-3 (Exhibit "B"). The Applicant's plan does not violate anv city, state or federal thermal
discharge regulations because atmospheric thermal discharges are not regulated for the proposed
type of use. Regulations relating to waterway thermal discharges do exist, but the proposed
application does not involve their application. Westech Report at 3. With the Applicant using
evaporative condensers for its building, all applicable regulations for noise shall be satisfied by
the site development plan. Westech Report at 3-4.
Similarly, all atmospheric or air quality requirements are satisfied by the proposed
development. Westech Report at 4-5. The water pollutants regulations are also satisfied.
Nvestech Engineering has incorporated in its report the design requirements for water discharge
facilities adequate to satisfy all City, state and federal requirements for water quality and quantity
control. Westech Report at 5-9. As a result, the applicant has shown substantial evidence to
identify the feasibility of Albertson's compliance with LCDC Goal 6 requirements.
C. Air Quality Impacts: TCP Policy 4.1.1.
The Westech Report (Exhibit "B") describes the applicable criteria of TCP Policy 4.1.1
as they apply to the potential air quality impacts of the Albertson's application. The report
identifies that an Indirect Source Construction Permit Application is presently being prepared
and will be submitted to the DEQ. Westech identifies that this application complies with all
applicable standards and has a very high feasibility- of being approved by the DEQ. Westech
Report at 4-5. The City Council should modify its findings to identify these criteria and the
applicant's feasibility of compliance.
D. NVater Quality Compliance: TCP Police 4?.1.
This policy requires "All development within the Tigard urban planning area shall
comply with applicable federal. state and regional water quality standards." The attached
Westech Report (Exhibit "B'') identifies at pages 5 through 9 that the water quality facilities
designed for the Albertson's site are intended to comply with all applicable federal, state and
regional %vater quality standards. The r-loom further describes these standards, how they are
being complied with and that Albertson's compliance with these standards is feasible.
EXHIBIT L
- .LBERTSON'S. INC. - REMAND STATEMtENT Page I I I of
Pages
• E: Commercial Compatibility: TCP Policy 5.4.
TCP 5.4 provides: "The City shall ensure that new commercial and industrial
development shall not encroach into residential areas that have not been designated for
commercial or industrial uses."
Albertson's application affects a "residential area' that includes the residential lands
surrounding the intersection of Scholls Ferry Road and Walnut Street. This "residential area"
includes the existing Neighborhood Commercial located at the northeast corner of this
intersection. the 3 acre parcel proposed for community commercial and the Castlehill residential
subdivision located in the southeast corner of the intersection and the multifamily designations
located to the west, northwest, south.
The application also proposes to replace the existing designated commercial use(N-C) in
this residential area with a "Community Commercial" designation. The City Council should
interpret "residential area" referred to in TCP 5.1.4, to include the area and uses identified in the
above paragraph. In particular, this would include an area potentially up to 1'/~ mile radius of
this site in accordance with the market or neighborhood area supporting a "community
commercial" location under TCP 12.2.1.4.A. See Exhibit "D." As a result, the proposed CC
designation in this residential area will not create new commercial where no commercial
• previously existed. The N-C designation already existed in this designated "residential area";
and the CC designation will replace it and shift is across Walnut Street to the other corner (all
within the same "residential area").
In addition. the City Council should identify that TCP 5.1.4 does not restrict different
types of commercial, changes in size or chances in type of commercial under this policy. The
policy is intended to address restricting the encroachment of new commercial in residential areas
where no commercial previously existed. Since the Applicant's proposal changes one type of
commercial to another type where a commercial designation already existed in this residential
area. Albertson's application complies with TCP 5.1.4. These interpretations are reasonable
and should be upheld if appealed. Clark v. Jackson County. supra.
Nevertheless. the Albertson's proposal replaces approximately i acres of N-C with 3
acres of Community Commercial within the same residential area. The Kinleson Traffic study
submitted in the earlier land use hearings identified that the traffic impacts between 8 acres of
CC use and 6.93 acres of N-C are nearly equivalent. The net impact to surrounding residential
uses is not sieniticant.
klovine the commercial from the northeast corner of the Scholls Ferry Road and Walnut
Street intersection to US southeast corner will alloxv the commercial use to be excavated into the
hillside. This new location v.-ill provide better buffering and the opportunity to greatly
• diniinl-shed ad%•er-,;e impacts to st_': roundin= re.sidentlai uses. As a result. Albenson*s proposal
provides a better compatibility between commercial designations and residential uses in this
"area' than the previously desiLnated X-C use and location. Moreover, the Albertson s
EXHIBIT S1-_
6 - ALBERTSON'S. ^C. - REMAND STATEMENT Page Ul of
Pages
application complies with the locational criteria identified in the comprehensive plan for
• "Community Commercial" designations. The City Council can clarify that an applicant
satisfying these locational criteria correspondingly satisfies the requirements of TCP 5.1.4. Clark
v. Jackson County, a ra.
F. Buffering: TCP Policy 6.6.1.
TCP Police 6.6.1 pertains to buffering and screening between different types of land uses
and imposes factors to be considered in deternininu the type and extent of the required buffer or
screen. The City has also adopted CDC 18.100 to implement this comprehensive plan policy for
landscaping and screening. The City Council may interpret TCP Policy 6.6.1 as being
implemented by CDC 13.100. and the findings that satisfied CDC 18.100 will also satisfy the
requirements of TCP Policy 6.6.1. In the prior decision, the City Council adopted findings that
found Albertsons in compliance with the buffering and screening requirements under CDC
18.100. LUBA Record at 45-46. These specific findings on buffering and screening were not
challenged during the prior appeal to LUBA. As a result, these findings, presently, cannot be
challenged and are deemed legally valid.
In any event, Albertson's site development plan fully complies with the specific
provisions of TCP Policy 6.6.1. Under TCP Policy 6.6.1.a.1, the City is to determine the
"purpose of the buffer". In this case, the potential buffering or screening factors for "noise" and
`'air pollution" are either not significant or are effectively resolved by the design plan. The
NVestech Report (Exhibit "B-) at 3-4 identifies that the Albertson's application complies with all
applicable noise emission regulations and will not create off-site noise problems for surrounding
neighborhoods. Similarly, there are no atmospheric pollution emissions generated from the
proposed use. Western Report (Exhibit "B") at 4-5. Nevertheless, Albertson's proposed
landscaped buffer and screening will provide an effective buffer for any potential noise and air
pollution that might be generated by the proposed commercial use.
As a potential "air pollution absorber", "noise filter", "dust filter" and "visual barrier",
the proposed Albertson's landscape plan satisfies and exceeds City requirements. For the
purposes of the buffer. the v-idth and height are defined in CDC 18.100. The applicable matrix
under the CDC 13.100.070.13 and 18.100.130 establishes that the applicant must provide at least
10 feet of buffer and/or screening between the proposed shopping center site and nearby
residential uses. The site development plan provides for excavation of the site to lower the grade
an-L roximatel- 24 feet near the sin_le-family residential area on the southeast and the multi-
family area on the south. This excavation will also reduce the noise associated with the loading
area designed for the rear of the `rocen- store structure b%- screenin_ the loading area Aith the
large building and the 1.4 foot deep landscaped slope. Between these residential uses and the
proposed commercial uses ,vill be landscaped areas that range in %%idth between 37 to 60 feet on
the southeast and between 1-0 to 82 feat on the south. The Albertson's landscape plan designates
these buffer areas as also providing an "Evergreen Screen" to provide a year-around buffer and
screened area. Tne types and sizes of plants are specifically identified on the "Landscape Plan"
and they comrly with the City*s requirements. LUBA Record at 391.
EXHIBIT - ALBERTSON'S. IN C. - REMAND STATEMENT Page 11 of
Pages
• In addition to landscape buffering and screening along the Northview Drive, the applicant
is also providing a brick wall the entire length of the subject property. Landscaping widths
between the parking lot and Northview Drive on the southeast range between 30 to 45 feet.
Again, the types and sizes of the plants are identified on the "Landscape Plan." Landscaped
buffers along Walnut Street and Scholls Ferry Road (the northeast, north and northwest borders
of the site) ranee in width between 26 to 135 feet. The overall landscaping plan exceeds the City
Code's 20°'o requirements by providing almost 30° o landscaped buffers and screens around the
perimeter of the site. LUBA Record 0077.
The landscaped buffer and screening plan surrounds the entire site and thereby provides
adequate buffering and screening between the proposed commercial use and the single-family
residential to the southeast, the multi-family residential to the northeast, north, northwest and
south. The buffer and screening is also sufficient for both stationary and mobile viewers along or
abutting Scholls Ferry Road, Walnut Street and Northview Drive. The multi-family residential
designated property to the south will provide stationary viewers, and the proposed landscaped
area separating these uses will provide an effective buffer and screen. The "Landscape Plan"
calls for a solid year-around "Evergreen Screen" along this entire perimeter. This screening is
also extended for the length of the building along Northview Drive. A solid ornamental brick
wall is also proposed along Northview Drive to provide an additional and adequate screen
between the proposed commercial use and the single-family residential area to the southeast.
LUBA Record 332. Screening is not necessary along Scholls Ferry Road and Walnut Street.
The neighboring uses are separated by at least 45 feet of roadway in addition to the depth of the
proposed landscaping. Also, the traffic impacts alone Scholls Ferry Road and Walnut Street, not
associated with the proposed development, are substantial and mask impacts created at the
Albertson's site.
Finally, LUBA noted that the original findings included a clause identifying "the issue of
noise impact needs further evaluation". This clause was left over from the original staff report
and should have been deleted from the findings. The Applicant submitted additional evidence of
a noise stud- pertaining to the evaporator machinery for the grocery store. LUBA Record 352-
,56. This report was discussed before the City Council and was used as a basis for determining
that "noise impacts- ,,vere no longer, an issue for the Albertson's application.
G. Storm Drainage Facilities Feasibility: TCP Policy 7.1.2.
LUBA remanded the prior de::sion on the basis that TCP Policy 7.1? "requires at least a
determination, at the time of site plan approval &m its specific requirements can be satisfied b"
the in:oosition of conditions." Essentualh, the City Council must make a determination that the
compliance for storm drainage is "feasible" and such feasibility is based on substantial evidence.
Albz^son's has design: ted a potion of the landscaped area along Scholls Ferry Road as
the locatior, for the storm drainage faculties that wi;fll sati:n• a!! applicable water qualivy and
quantity requirements under TCP Mic 7.1.2. LUBA Record 1330.2. In addition. Vresteeh
Enrineeri:t~=. linc.. has completed a stain drainag: facilities analysis and designed a system to
EXHIBIT 11
S - .zLKR T SON-s. INC. - REMAND sTATENIEN7 Page J1L of
Pages
satisfy all these requirements. Westech Report (Exhibit -B-) at 3-9. The report identifies
• specific requirements. calculations for compliance and design characteristics for both water
quality and quantity.. The report concludes that: "Both of these requirements are met b}'
stormwater facilities we have designed and presented in detail in the report'. Exhibit "B", page 2
of the cover letter. The Westech Report establishes the "feasibility" of Albertson's ultimate
compliance with the previously approved conditions of approval (2. "i", "j", and "1" at LUBA
Record 0023). and constitutes sufficient substantial evidence for a respective finding.
H. Design Criteria: CDC 18.61.055.
The prior findings addressing application of CDC 18.61.053 reflected the City staff's
concerns for additional chances and imposition of conditions of approval to require those
chances. These proposed changes and conditions related to insufficiency in the original Site Plan
and Landscape Plan (see LUBA Record .1330 and 1330.1 dated for the .12/13/94 hearing)
However, Albertson's a`;reed to those chances in the City's staff report at the final public hearing
and submitted some revised plans to incorporate the changes. See LUBA Record 390 and 391
which are. respectively, a revised "Site Plan" and a "Landscape Plan". The findings need to the
modified to replace the "staff report concerns" since these issues have been satisfactorily
incorporated in the revised Site Plan and Landscape Plan. This will essentually base the remand
decision upon applicable design standards at the current public hearing and not defer review of
discretionary standards to a future date.
The following are changes that were incorporated into the revised Site Plan and
Landscape Plan that satisfy CDC 18.61.055 requirements and correspond to certain conditions
of approval set forth in the prior order:
1. _Condition 2.a.1-a walkway system for SW Scholls Ferry Road driveways. The revised plan
shows to a new sidewalk along the southern side of the central driveway access. The northern
most driveway access already has a sidewalk paralleling the driveway through the "mini-park".
The condition needs to be modified to specify the adding of another walkway along the northern
side of the drivew?av entrance located at the southern end of the property. Therefore, the walkway
portion of this condition is substantially satisfied by the revised Site Plan, with the condition
modification for the driveway at the southern end of the property; and the findings should reflect
that status.
2. .additional wvalkw ivs throwuh the narking lot-the revised Site Plan includes new walkways
through the center of the parking lot (norh and south) and a cross-walkway between the
commercial pads (east and wves:). These walkways are raised where adjacent to parking stalls
and consistinc of distinctive materials or markings where located across driving condors. These
additional w-alkwa%-s. a!onR with added walkways associated with the driveways along Scholls
Fe-7y Road. satisf,- the requirements in CDC 15.61.033. and the findings should be modified to
re:iect that status.
EXHIBIT 1i
9 - ALBERTSON'S. INC. - REMAND STATZMELT Page 115 of.
Pages
3. Condition 1a.2-a staircase sidewalk from the grocery store to SW Northview Drive. The
revised Site Plan (LUBA Record 390) incorporates that proposed staircase. Again, the new
tindinss should reflect this status of compliance.
4. Condition 1a.5- cooling units (evaporator condensers) and related noise study. The applicant
provided a noise study calling for use of "quiet" evaporator units placed behind the building at
ground level. See LUBA Record 352-356. The findings should be revised to show that the
.applicant's provision of evaporator units will comply with the noise requirements in the City's
Code.
5. Condition 2.a.6-more detail for the landscaping plan showing sizes and species of landscaping
material. The revised Landscape Plan (LUBA Record 391) specifically identifies all the plant
materials, and their sizes and locations on the landscape design. See the section entitled "Plan
Legend'' depicting the type of species and their designated locations. The revised findings
should reflect this compliance status.
6. Condition 2.a.8-use of cut-off shields on lighting fixtures. Albertson's provided details on
lighting cut-off shields prior to the final public hearing before the City Council. See LUBA
Record 353-359, 629. Again, the revised findings should reflect this compliance status.
IV. CONCLUSION
With the additional reports submitted with this Remand Statement and the proposed
modifications to the existing conditions of approval, Albertsons has complied with all applicable
requirements for approving its application. Also, Albertson respectfully requests that this
remand hearing be limited to testimony and evidence only on the issues remanded by LUBA.
Respectfully submitted,
O W
. SHONKWI R, P.C.
r
For the ApplicM M Albertson's. Inc.
EXHIBIT
10 - ALBER TSON's. rNC. - REMAND STATEMENT Page I I In of
Pages
KITTELSON & ASSOCIATES, INC.
TRANSPORTATION PLANNING/TRAFFIC ENGINEERING
610 SW ALDER. SUITE 700 - PORTLAND. OR 97:.`05 (503) 2:8.5,130 • FAX (503) Z73-8169
L K31
February 16. 1996 Project 1050-3
Mr. John Shonk,viler, P.C.
Attorneys at Law
13425 S. W. 72nd Avenue
Tigard. OR 97223
RE. Tigard Alberisons - Remand Hearing Responses
Dear John:
The follo«ing information on transportation-related issues is provided in response to the Land Use
Board of Appeals (LUBA) decision and the required Remand Hearing Responses for submittal.
Please acknowledge and review this information and provide return comments to me at your earliest
convenience.
Responses are required for Tigard Comprehensive Plan Policies 8. 1.3 (f) - (h), as sited in the LUBA
No. 95-011 Final Opinion and Order of Remanding to the City of Tigard, dated October 20, 1995.
TCP Polic~• 8.1.3
The City shall require as a precondition to development approval that:
Transit stops, bus turnout lanes and shelters be provided when the proposed use (is)
of a type which generates transit ridership;
Response
There is no transit service curre, dy provided along S.W. Scholls Fem• Road or S.W. Murray
Boulevard adjacent to or in proximay of the proposed site. The transit provider does not
plan to extend sen-ice on either of these roadway facilities, to or beyond the proposed site,
within the planning horizon. Therefore. this proposed development is not required to
provide transit stops. bus turnout lanes. or bus shelters associated with this site. However,
should future tr-,o.si; planning identify either of these roadway facilities as transit corridors.
it -%vould be feasible to provide transit stops adjacent to the proposed site frontage. The
provision of sidewalks aiong the entire site frontage of these t\vo roadway facilities would
provide good intemiodal connectivity and promote transit as a feasible alternate mode for
azcess.
E",-ix'1S.1T A EXHIBITL._.
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Mr. John shonkwrler Project: 1050-3
Febryarv 16. 1996 Page: 2
TCP Policy 8.1.3 (g)
The City shall require as a precondition to development approval that:
Parking spaces be set aside and murked for cars operated by disabled persons and
that the spaces be located as close as possible to the entrance designed for disabled
persons:
Response
The proposed development provides sufficient handicap parking spaces in compliance with
the Americans with Disabilities Act (ADA) requirements and are located in close proximity
to the access points for the proposed grocery store. the attached shop spaces, and the two
outlying pad buildings. The site also provides ramped access from the adjacent
neiehborhood, via a connection to Northview Drive as well as access from both S. W.
Walnut Boulevard and S.W. Scholls Ferry Road. An internal cross-site access is also
provided, in compliance with ADA requirements.
TCP Policy 8.1.3 (h)
The City shall require as a precondition to development approval that: -
Land be dedicated to implement the bicycle/pedestrian corridor on accordance with
the adopted plan.
Response
Discussions with City of Tigard staff verify that there is no bicycle!pedestrian corridor
(existing or planned) adjacent to or in proximity of the proposed site. Therefore, this
requirement does not apply. However, the proposed development does provide the
following amenities, in compliance with the ADA:
• Multiple points of entry for bicycles and pedestrians
• Three driveways and two walkways on S.W. Scholls Ferry Road
• One driveway and two walkways on S.W. Murray Boulevard _
• One ramped access and one staircase on S.W. Northview• Drive
Bicycle parking facilities associated with each building on site
These responses to the TCP Policies should satisfy the requirements of LUBA and the City of
Tigard. Should you need additional information which I may be able to provide. please do not
hesitate to call.
Since-eiy.
Kirte!son & .associates. Inc.
hillip SI-D. Worth
Tran- sporation Planner
K: 2 B :ssx,ale5. Inc. Portland, Oregon
EXHIBIT
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WESTECH ENGINEERING, INC.
. CONSULTING ENGINEERS 8 PLANNERS
February 5, 1996
Mr. John Shonkwiler
Attorney at Law
13425 SW 72nd Avenue
Tigard, OR 97223
RE: Albertson's Tigard (Walnut) Store Site Design Issues Report
JO 1896.000.0
Dear John:
Please find attached our letter report addressing the site design issues resulting from the
Land Use Board of Appeals (LUBA) Final Opinion and Order No. 95-011. In this report
we summarize our findings on the requirements governing stormwater run-off, solid waste
management, and thermal, atmospheric, and noise emissions. We then present the
appropriate actions required, if any, to respond to the applicable requirements. A summary
or our findings are as follows:
For thermal emissions there are no requirements directed toward the development
or operation of a site for the intended uses.
Atmospheric emission requirements involve obtaining an Indirect Source emissions
permit from the State of Oregon Department of Environmental Quality. We are not
aware of any such applications ever being denied, and were told by the DEQ that
they intended to seek a change this year to the parking space threshold from 250
spaces to 1,000 spaces in which case the 305 space Alberstons lot would not even be
required to apply.
The State of Oregon Department of Environmental Quality requires that noise levels
not increase more than 10 dBA, and with the store using evaporative condensers all
DEQ none requirements will be met.
'With the solid waste, Citv of Tigard regulations require design and construction of
the solid waste storage area to meet certain criteria for size, location, and
accessibility. We have noted in our report the relevant aspects of the design and
reiterated to shoe that all specified criteria %k:11 be met.
~j
EXHIBIT EXHIBI
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.
Mr. John Shonk--wiler
February 5, 1996
Page 2
The stormwater run-off is regulated with respect to two different characteristics,
quantity and quality. The quantity requirement, established by the City of Tigard,
dictates that no more water may be discharged from the site during a 25-year design
storm event than is discharged by the undeveloped site for the same design storm
event. To meet the City of Tigard quality requirement for water quality, 65 % of the
total phosphorus must be removed from 100 % of the newly constructed impervious
surfaces during a mean summertime storm event totalling 0.36 inches of precipitation
falling in 4 hours. Both of these requirements are met by stormwater facilities we
have designed and presented in detail in the report.
We have endeavored to be thorough and complete in researching and preparing this report
and hope that our findings satisfy the interests and concerns of all parties. If you have any
questions or require any additional information regarding this matter, please call us at (503)
585-2474.
Sincerely,
• NN TECH ENGINE ING, INC.
.,Steven A- Ward, P.E.
rce
copy: Norm Schoen, MPR Architects
Jeremy Jeffers, Albertsons
a
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ALBERTSON'S TIGARD (WALNUT) STORE SITE DESIGN
• LUBA ISSUES AND RESPONSES
February 5, 1996
1.0 IN-I-RODUCTION AND BACKGROUND
Albertson's Inc. has proposed to develop the site on the southeast corner of SW Walnut
Street and SW Scholls Ferry Road in Tigard. This development was appealed to the Land
Use Board of Appeals (LUBA) of the State of Oregon citing, in part, potential
non-compliance with certain environmental standards and regulations governing solid waste,
thermal, noise, atmospheric or water pollutants, contaminants or products therefrom. [1]
The most general requirement addressed in the LUBA is Oregon's Planning Goal 6, again
quoting from the LUBA decision states, 'All waste and process discharges from future
development, when combined with discharges from existing developments shall not threaten
to violate, or violate applicable state or federal environmental quality statutes, rules or
standards" [1] In order to answer the concerns for each of these issues we have researched
the applicable rules and requirements. For each issue where applicable regulations exist for
the type of development planned we present a proposed design response which will mitigate
the potential impacts such that all requirements are satisfactorily met.
2.0 ENVIRONMENTAL ISSUES: REQUIREMENTS AND PROPOSED DESIGN
RESPONSES
2.1 SOLID WASTE
2.1.1 REQUIREMENTS
Solid waste management in the City of Tigard is conducted under the guidance of the
Metropolitan Service District (Metro). The specifics of handling solid waste for commercial
activities are addressed by " ne -Model Zoning Ordinance for Mixed Solid Waste and
Recyclabies Storage in New Multi-Unit Residential and Non-Residential Buildings". [21
Under this ordinance retail activities are required to provide a. minimum of 10 square feet
plus 10 additional square feet of space for each 1,000 square feet of gross floor area. This
space requirement may be reduced if the activity develops a valid analysis showing its
operations will generate less need for solid waste storage than the stated minimum. The
ordinance also sets forth specific criteria for location, design, and accessibility of the solid
waste storage arras. The pertinent items from these standards are set forth below.
A. Location
1. The storage area for source separated recyclables shall be co-located with
the storaze area for residual rr:ixed solid waste.
1
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2. Storage areas shall comply with Uniform Building and Fire Code
. requirements.
3. Storage area space requirements can be satisfied with a single location or
multiple locations, and can combine both interior and exterior locations.
4,5,6. N/A (Relate to exterior storage areas).
7. The storage area shall be accessible for collection vehicles and located so
that the storage area will not obstruct pedestrian or vehicle traffic movement
on the site or on public streets adjacent to the site.
B. Design
1. The dimensions of the storage area shall accommodate containers
consistent with current methods of local collection.
2. Storage containers shall meet Uniform Fire Code standards and be made
and covered with waterproof materials or situated in a covered area.
3. N/A (Relates to exterior storage).
4. Storage area(s) and containers shall be clearly labeled to indicate types of
materials accepted.
C. Access
1. Access to storage areas can be limited for security reasons. However, the
storage area shall be accessible to users at convenient times of the day, and
to collection service personnel on the day and approximate time they are
scheduled to provide collection service.
2. Storage areas shall be designed to be easily accessible to collection trucks
and equipment, considering paving, grade and vehicle access. A minimum of
20 feet horizontal clearance and 8' vertical clearance is required if the storage
area is covered.
3. Storage areas shall be accessible to collection vehicles without reouiring
backing out of a driveway onto a public street. If only a single access point
is availanle to the storage area, adequate turning radius shalt be provided to
allow collection vehicles to safely exit the site in a forward motion.
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2.1.2 DESIGN RESPONSE
The proposed solid waste storage area is an interior area providing complete containment
of the solid waste until removal by the collection service. It is located at the rear of the
proposed building, which will be designed to Uniform Building and Fire Code standards.
It will have sections for both mixed solid waste as well as separated recyclables. The
configuration and marking of the area, as well as the containers used will be specifically
designed to meet the stated standards. The storage area will be accessible to store
employees at all times they are on duty, and will be open so as to allow collection service
based on agreements to be developed between the store management and the collection
service management. The location at the rear of the store meets all requirements for
horizontal and vertical clearance and provides access without backing onto a public street,
and permits so that the collection vehicle may turn and exit the site in a forward motion.
2.2 THERMAL
2.2.1 REQUIREMENTS
Thermal waste requirements govern activities which generate heat as a byproduct of their
operations, such as a power generation plant or other energy intensive operation. Inquiry
of personnel at the Oregon State Department of Environmental Quality into the scope of
such regulations revealed that there are no regulations governing discharge of beat into the
atmosphere. [3) Regulations do exist with regard to discharge of heat into a waterway, but
• they are not applicable to this type of operation.
2 .2.2 DESIGN RESPONSE
None Required.
2.3 NOISE
23.1 REQUIREMENTS.
The State of Oregon Department of Environmental Quality rules on noise emissions
require that "the new store on a pre,~;ousl`• unused site not produce noise that exceeds the
maximum allowable hourly L10 or L50 noise levels at any noise sensitive receiver by more
than 10 dBA. The hourl} L10 and LSO noise leveis are defined as that level equalled or
exceeded 10~"c and 50C'c of an hour respectively." 14J
The Cite of Ticard has further required th-t "the applicant and all tenants of the shopping
center shall restrict the use of mechanical parking lot sweepers, auxiliary generators, truck
loading activities and other similar excessive noise generating activities to the hours of
operation from 6:00 a.m. to 11:00 p.m. daily." [`J
• 3
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23.2 DESIGN RESPONSE
• A study of the existing and potential noise conditions was performed by Daly-Strandlee
and Associates, Inc. in which both site generated noise and traffic generated noise was
analyzed. Their findings were that "if an evaporative condenser instead of roof mounted
air cooled condensers is used for refrigeration and HVAC equipment at the store, the noise
radiating from the store will meet all DEQ noise regulations," and "the increase in
traffic noise will be well within the 10 dBA allowed by the DEQ noise regulations." [4]
Furthermore, the report also adds that "the fact the site will be graded to allow the store
to be set into the hillside helps control noise radiating from sources such as the compactor,
the loading dock and traffic in the parking lot." [4]
With regard to the conditions established by the City of Tigard, Albertson's intends to fully
comply with each condition set forth.
2.4 ATMOSPHERIC
2.4.1 REQUIREMENTS
The governing requirement with regard to air quality is set forth in Tigard's Comprehensive
Plan Policy 4.1.1. TCP Policy 4.1.1 states, "The City shall:
a. Maintain and improve the quality of Tigard's air quality and coordinate with other
jurisdictions and agencies to reduce air pollutions within the Portland-Vancouver Air
Quality Maintenance Area. (AQMA).
b. Where applicable, require a statement from the appropriate agency, that all
applicable standards can be met, prior to the approval of a land use proposal.
c. Apply the measures described in the DEQ Handbook for 'Environmental Quality
Elements of Oregon Local Comprehensive Land Use Plans' to land use decisions
having the potential to affect air quality." [6]
Thus, the language of TCP Policy 4.1.1 generally mirrors Goal 6 in mandating
comprehensive and coordinated air pollution control program. This mandate is addressed
through Oregon's Indirect Source Review Program. In relevant part this program requires
developments within 5 miles of Portland, Salem, or Eugene that are proposing to construct
250 or more parking spaces to apply for an Indirect Source Construction Permit. [7] In
addition to information on the project owner and contact information, the permit application
requires submission of:
L A map showing the location of the site.
2. Adescription of the proposed and prior us: of the site.
EXHIBIT r-t) EXHIBITS
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3. A site plan showing the location and quantity of parking spaces at the Indirect
• Source and Associated Parking area, points of motor vehicle ingress and egress to
and from the site and Associated Parking.
4. A ventilation plan if the parking is subsurface or enclosed.
5. An estimate of the annual average and annual maximum daily (24 hours) vehicle
trips detailed in the highest one and eight hour periods of the day, generated by the
movement of mobile sources to and from the Parking Facility and/or Associated
Parking Facility for the first and fifth years after completion of each planned
incremental phase of the Indirect Source.
6. A description of the availability and type of mass transit recently serving or
projected to serve the proposed Indirect Source. This description shall only include
mass transit operating within 1/4 mile of the boundary of the Indirect Source.
7. A completed DEQ Land Use Compatibility Requirements and Statement form.
2.4.2 DESIGN RESPONSE
An Indirect Source Construction Permit Application is presently being prepared and will be
submitted in the near future. To the best of our knowledge, no application for this type of
construction permit has ever been denied. Furthermore, the DEQ is planning to seek a
• change in the threshold from 250 vehicles to 1,000 vehicles sometime towards the end of
1996. [8J Since the proposed lot contains 305 spaces it would no longer require a permit
if the new threshold is adopted. Given these circumstances it is anticipated that no
difficulties will arise precluding the issuance of the construction permit.
2.5 WATER
Water discharges may be regulated in two different manners, one with respect to the
quantity of water allowed to be released from a site, and the other addressing the quality
of the water released. In the following sections each of these issues will be addressed
separately, with quantity being addressed in Sections 2.5.1 and 2.5.2, while quality will be
cov.-rcd in Sections 2.5.3 and 2.5.4.
2.5.1 REQUIREMENTS
Tine env-rninc ree•.:i-ements for cuantity are set fonh in Tiga: d's Comprehensive Plan Policy
7.1 .2 whic'n sates. "City steal! require as a pre-condalon to development approval that:
a. Development coincide with the availability of adequate service capacity including:
5
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3. Storm drainage.
• b. The facilities are:
1. Capable of adequately serving all intervening properties and the proposed
development; and
2. Designed to city standards.
c. All new development utilities to be placed underground." [9]
In Tigard, due to the specific hydraulics of the Fanno Creek Basin, detention to control the
quantity of release is not required or desired. [101 For this project, the water is released
from the site stormwater system to a culvert crossing under Scholls Ferry Road which is
under the jurisdiction of the Washington County Roads Department. This culvert was
designed to carry the 25 year storm event for its entire drainage area in its post development
condition and. [11] It is therefore adequate to carry the post-development run-off for this
site.
The facilities on site are required to be sized to carry flows from a 25-year storm, including
the overflow system for the water quality system described below. [12]
2.5.2 DESIGN RESPONSE
As stated above, the off-site system (the culvert under Scholls Ferry Road and downstream
elements) was designed by Washington county to handle post-development flows. The' on-
site system has been designed as an underground system and will incorporate all other city
standards for materials, pipes slopes, etc. when the project proceeds to final design.
2.5.3 REQUIREMENTS
Water quality is regulated by Tigard's Comprehensive Plan Policy 4.2.1 which states, "All
Development within the Tigard urban planning area shall comply with applicable federal,
state, and regional water quality standard." [131 The LUBA decision further states that, "If
an exercise of discretion is required to determine if the 'applicable federal, state and
regional water quality standards' are met, the city must pro%ide for notice of the local
proceedings and an opportunity for a public hearing. [131
Based on the rules for stormwater aualitv° established by the Unified Sewerage Agency
(USA) and adopted by the City of Tigard, which in all cases either meet or exceed Federal
and State standards. Tigard's stormwater run-off quality is regulated with respect to the
Total Phosphorus content. The applicable requirement states "ne stormwater quality
facilities shall be designed to remove 651"c. of the phosphorus from the run-off from 100%
of the ne,.k-lv constructed impervious sur;aces. " [121 Several different options are allowed
• 6
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to meet this requirement. The one selected for this application is the extended dry
• detention pond in combination with a trapped flow control manhole. The pond is accorded
a removal efficiency of 5001o when design according to specific criteria, and the additional
1517c is achieved with the trapped flow control manhole. The design requirements for the
pond are as follows:
a. Compute the run-off from 10001o of the impervious surface of the proposed
development during a 0.36 inch in 4 hour storm event, this is the basis for the Q into
the pond. Storm everts in excess of the above should bypass the facility and
discharge directly into the downstream storm conveyance.
b. The volume of the pond is calculated by multiplying the site impervious surface
by the 036 inch rainfall. The volume of the pond is equal to the volume of water
falling on the impervious surface during the storm event.
Orifice size is calculated using mannings equation for pipe flow or using the orifice
formula Q=C,'A'2`g`h where C, is the discharge coefficient (C, for sharp edge
orifice or short tube equals 0.61, if tube length exceeds 1.5 diameters C, equals 0.82),
A = area of orifice.
c. Pond Outfall is calculated by dividing the required volume of the pond by
required treatment time of 48 hours. The outfall orifice must be protected from
plugging.
• d. The extended dry detention pond must have an overflow device or spillway to
carry away flows in excess of the outfall orifice capacity or in case of blockage of the
orifice outlet.
e. Vehicular access to the pond, orifice outlet, and the overflow device is required.
L The interior slopes of the pond shall be 4:1 if grass is planted and 2.5:1 if shrubs
and trees are planted. Other pond design criteria requires approval by the Agency
or City.
25.4 DESIGN RESPONSE
The total new impervious surface for this site is computed to be 252,650 square feet. This
results in a required pond volume of 7580 cubic feet, and a release rate of 0.97 cubic feet
per second.. T'he pond for the site has been des:r.ed to provide 78S0 oubic feet of storage
and to release at the stated rate. Tn_~ oudlet control structure selected for the design is a
standard flow control manhole (See attached Figure 1). This structure has the orifice
oriented horizontally at the bottom of the entrance pipe to preclude plugging, and an open
pipe above to prop ide the necessary overflow protection. Additional overflow protection is
provided by a T`?e III catch basin ~-I.ich dischar_es into the storm drain downstream of the
• 7
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manhole. All other criteria of the design specification presented above have been
incorporated into the design of the pond for this site. Finally, since the proposed design
. explicitly follows the City's design standards for all features, no exercise of discretion is
required in the determination of whether or not the federal, state, or regional water quality
standards are met.
3.0 CONCLUSIONS
As stated in the introduction, a thorough search has been conducted to determine all
applicable regulations governing the management of solid waste, thermal, noise,
atmospheric, and water discharges from the proposed development. Where applicable
regulations exist, a corresponding design response has been presented. In all cases the
proposed design response is simple and easy to implement ensuring that all applicable
regulations can and % kill be met.
4.0 REFERENCES
1. State of Oregon Land Use Board of Appeals Final Opinion and Order 95-011, p.15.
2. The Model Zoning Ordinance for Mixed Solid Waste and Recvciables Storage in
New Multi-Unit Residential and Non-Residential Buildings, Metro Solid Waste
Department, August 1992
• 3. Telephone conversation with Randy Bailey, State of Oregon Department of
Environmental Quality, Air Quality Division, January 23, 1996.
4. Environmental Noise Studv for the Albertson's Grocery Store on Walnut Street,
Tigard. Oregon, Daly-Strandlee & Associates, September 29, 1994.
5. City of Tigard's Final Order, Condition of Approval c.2.s.
6. State of Oregon Land Use Board of Appeals Final Opinion and Order 95-011, p.16.
7. Oregon's Indirect Source Re,6ew _Program, State of Oregon Department of
En,6ronrnental Quality, Air Quality Division, February 1987.
8. Telephone conversation with Howard Harris, State of Oregon Department of
EmironmentaI Qualin•, Air Quality Division, January 22, 1996.
9. State of Ore_on Land Use Board of tippeals Final Opinion and Order 95-011, p.28.
10. Telephone conversation with Grea Berry, City of Tigard, Engineering Division,
Januan• 22. 1996.
fi
EXHIBIT EXHIBIT ► t
Page ~ of
p r. R , . /0 0 F Z Pages
•
11. Telephone conversation with Rick Raetz, Washington County Roads Department,
Engineering Division, January 22, 1996.
i12. Draft Rules (Revision 1) for City of Tigard Stormwater Management, Chapter 3,
Design for Stormwater Management, pp 31-33.
13. State of Oregon Land Use Board of Appeals Final Opinion and Order 95-011, p.17.
•
9
EX,4f 161 T EXHIBIT 11
r OF Page 1st-
Pages
MANHOLE ACCESS FROM ABOVE
MANHOLE STEPS PER STD. MH DETAIL.
11
FLOW
INFLOW
LINES
WHERE
APPLICABLE '
PLAN
SET FRAME IN
NON-SHRINK 30" STANDARD MANHOLE FRAME
GROUT AND COVER
GRADE RINGS (VARIABLE)
18" MAX.-TOP OF CONE
TO RIM
1/8" STAINLESS _ 1/2" ST. STEEL BOLT (TYP)
STEEL CHAIN. = °0
SLACK WHEN 6' MIN OVERFLOW ' VI GATE IS DOWN. SEE NOTE 2
BOLT CHAIN TO W FABRICATED 14 GAUGE CORRUGATE
CONCRETE cak: ALUMINUM CROSS WITH TURNOUT
' GATE, SIZE AS REQUIRED
15" PIPE
• o OR SMALLER
ARMCO MODEL STORM PIPE
160 TURNOUT
GATE. FLEXIBLE COUPLING
5" 48' MIN' GROUT ALL OPENINGS AND
SEE NOTE 3 INSIDE JOINTS AFTER ASSEMBL
COMPACTED GRANULAR
MATERIAL
PRECAST BASE, 6- MIN THICKNESS
6" MIN COMPACTED
GRANULAR BEDDING
CONTROL ORIFICE PLATE. VELD TO l~C, C L F
1.=:: FLIP:. C"*, T ROL.
-41: +i wy0% ()ATE miY•
IN C, T SECTION A-A ,•o. Lo Lu .c
JA,",'. 1"6
1. ALL PRECAST SECTIC~S SHALL CONFORM TO
rrE REO-',IFEtii-hTS C- A.S.T.M. C-»,~';. POLLUTION/FLOW CONTROL
2 DISTANCE FP,OM TOP OF OVFRFLOY; TO M• i PiM MANHOLE
• SHALL EE EASED ON OVERFLOW C.;pACIT CALC'S
EY DES.SN' CN-3! ;EFR. ASSUME ORI' ICE CONTROL
3. EC" )XN':WjM DIA. MANHOLE REC•~11PE0, F0=
aU; LE P1=E LARGEF THAN 1S 320
FIGURE 1 EXHIBIT 46 EXHIBIT LL
FCC OF / z Page _Lla Paaes
APPENDIX III
TIGARD AREA
COMPREHENSIVE PEDESTRIAN-BICYCLE
PATHWAY PLAN
• Prepared by
Tigard Area Pedestrian-Bicycle
Pathway Committee
;%dzpteQ Ma_C . 25, 1974
•
266 EXHIBIT II
EXHIBIT Page 131 of
PAGE OF Pages
oD N
! SSx cm
THE CITY OF TIGARD W ~
AND VICINITY FIGURE 6
TIGARD AREA PEDESTRIAWBIKE
PATH MAP
: Z = TICAIlD AREA
PEDESTIUAN/I31KE=
PATH MAP
IIEGIONAL I'LDUS I IIIAI.UUIKL:
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A
CITY OF TIGARD, OREGON
ORDINANCE NO. 96-
AN ORDINANCE ADOPTING FINDINGS AND CONCLUSIONS TO APPROVE A
COMPREHENSIVE PLAN MAP AMENDMENT AND ZONING MAP AIMENDMENT
REQUESTED BY ALBERTSON-S INCORPORATED (CPA 93-0009 AND ZON 93-0000.
WHEREAS. the applicant has requested a Comprehensive Plan Map Amendment from vledium-
Hiah Density Residential to redesignate approximately 3 acres of a 11.95 acre parcel from
Medium-High Density Residential to Community Commercial and a Comprehensive Plan
approval to redesignate a 6.93 acre parcel from Neighborhood Commercial to Medium-High
Density Residential. The Applicant's requests also include accompanying Zone Chanaes which
propose to redesignate the property from R-12 (PD) and R-25(PD) (Residential, 12,125 units per
acre, Planned Development) to C-C (Community Commercial) and C-N (Neighborhood-
Commercial) to R-25 Residential, 25 units per acre).
NOW, THEREFORE. THE CITY OF TIGARD ORDANS AS FOLLOWS:
• SECTION 1: The proposal is consistent with all relevant criteria based upon the facts. findings
and conclusions, noted in the attached final order, additional findings and vicinity maps
identified as Exhibits A. B. C, D-1, D-2. and D-3 (Albertson's, Inc. Remand Statement with
attachments). Exhibit A is the facts, findings and conclusions pertaining to the remand decision,
and where conflicting shall take precedence over Exhibits B and C (the facts, findings and
conclusions pertaining to the prior approval dated December 27, 1994).
SECTION 2: This ordinance shall be effective 30 days after its passage by the Council,
signature by the %Mavor. and posting by the Cite Recorder.
PASSED: By vote of all Council members present after being read
by number and title only. this day of .I996.
Catherine Wheatley, City Recorder
i
ORDINANCE N0. 96 - EXHIBIT
Pa_Te 1 Page .L35 of
Pages
APPROVED: By Tigard City Council this day of ,1996.
James Nicoli, Mayor
Approved as to form:
City Attorney
Date
•
ORDINAINCE NO. 96 - EXHIBIT I~
Page 2 Page 4-11a of
Pages
. EXIIIBIT "A"
CITY OF TIGARD CITY COUNCIL
FINAL ORDER
A FINAL ORDER INCLUDING FINDINGS AND CONCLUSIONS WITH REGARD TO
A REMAND OF AN APPLICATION FOR A COMPREHENSIVE PLAN AMENDMENT,
ZONE CHANGE, SITE DEVELOPMENT REVIEW AND MINOR LAND PARTITION
APPLICATIONS REQUESTED BY ALBERTSON'S, INC.
The Tigard City Council reviewed the application below at a public hearing on April 23, 1996.
The City Council approves the request. The Council has based its decision on the facts, findings
and conclusions noted below.
A. FACTS:
1. General Information
Comprehensive Plan Amendment CPA 93-0009
Zone Change ZON 93-0003
Site Development Review SDR 93-0014
Minor Land Partition MLP 93-0013
A request for the following development approvals:
(1) Comprehensive Plan and Zone Change to redesignate eight acres of a 11.95 acre
parcel from Medium-High Density Residential to Community Commercial on Tax Lot
200 and to redesignate a 6.93 acre parcel from Neighborhood Commercial to Medium-
High Density Residential on Tax Lot 100. Proposed zone changes accompanying the
above plan changes includes request for a zone change from R-12 (PD) and R-25 (PD)
(Residential, 25 unitslacre, Planned Development) to C-C (Community Commercial) and
C-N (Neighborhood Commercial) to R-25 (Residential, 25 unitslacre);
(2) Site Development Review approval to allow the construction of a 40,000 square foot
Albertson's Grocery Store and three smaller tenant pads of 5,950; 2,400 and 1,200 square
feet. The applicant has also proposed two 4,000 square foot retail pads.
(3) Minor Land Partition approval to divide an 11.95 acre parcel into two parcels of
approximately eight acres and 3.95 acres each.
Applicant: Albertson's. Inc. (Don Duncombe)
• 17001 NE San Rafael
Portland, OR 97230
EXHIBIT It
FINAL REMAND ORDER - CPA 93-09,20N 93-03/SDR 93-14 - ALBERTSON'S - I Page L-1-T of
Pages
Agent: John W. Shonkwiler, P.C.
• Attorney at Law
13425 SW 72nd Ave.
Tigard, OR 97223
Owner: Margery Christ, et al.
Route 1, Box 792
Beaverton, OR 97007
Location: Southeast and northeast quadrants of the intersection of SW Scholls Ferry Road
and SW Walnut Street. (WCTM 2S1, 4BB, Tax Lots 100 and 200).
Applicable Review Criteria:
(1) Generally: Statewide Planning Goals 1, 2, 6, 9, 10, 11, 13 and 14; Comprehensive
Plan Policies 1.1.1, 1.1.2, 4.1.1, 4.2.1, 6.1.1, 6.4.1, 6.6.1, 7.1.2, 7.2.1, 7.4.4, 7.5.2, 7.6.1,
8.1.1, 8.1.3, 8.2.2, 8.4.1, 9.1.3, 12.1.1, 12.2, and 12.2.1 and 12.2.4; and
Community Development Code Chapters 18.22, 18.32, 18.56, 18.60, 18.61, 18.98,
18.100, 18.102, 18.108, 18.114, 18.120, 18.130, 18.162, and 18.164.
• (2) On Remand: Statewide Planning Goal 6; Comprehensive Plan Policies 4.1.1, 4.2.1,
5.4, 6.6.1, 7.1.2, 8.1.3 (f)-(h), 8.4.1; and Community Development Code Chapter
18.61.055.
2. Background Information
An area that included the subject property was annexed to City of Tigard on June 12,
1983. In August 1983, the City approved a variety of plan and zone designations for the
area, including Medium-High Density Residential (R-20, now R-25 zone), Medium
Density Residential (R-12 zone), and Neighborhood Commercial (C-N zone).
The City subsequently approved the relocation of the C-N designation in a number of
locations in the vicinity between 1983 and 1986 (Case files CPA 18-83/AC 14-83, CPA
4-85/ZC 4-85, CPA 1-86/ZC 3-86). The current C-N designation is located on Tax Lot
100. A summary of past City actions pertaining to the commitments to the size and
location of the N-C designation is presented in the staff report for an earlier
Comprehensive Plan Amendment proposed by Albertson's for this property (Case CPA
91-000:/ZCA 91-0006).
A number of single family and multi-family residential developments have been proposed
for all or a portion of the subject property between 1986 and 1990 (Case Files SDR 4-86,
S 87-04N 87-04, S 87-07,SUB 90-04,20N 90-04/ VAR 90-08). Development has
recently occurred following the approval of Castle Hill Subdivision.
EXHIBIT II
FINAL REMAND ORDER - CPA 93-09/ZON 93-03/SDR 93-14 - ALBERTSON'S - 2 Page 1U of
Pages
• In 1991, Albertson's applied for a Comprehensive Plan Amendment and Zone Change
(CPA 91-0003/ZCA 91-0006) to establish an 8 acre Commercial General (C-G) site on
Tax Lot 200. The request also involved the redesignation of the existing C-N site on Tax
Lot 100 to Medium-High Residential (R-25). A final decision by the City Council was
stayed at the request of the applicant.
Following this application, the City considered including a new Community Commercial
zoning designation as part of the Comprehensive Plan and Community Development
Code. After lengthy review, the City adopted the Community Commercial designation in
December 1992.
On November 15, 1993 the Planning Commission recommended that the City Council
approve the application with the inclusion of conditions for an automobile access
driveway to SW Northview Drive, a pedestrian staircase to SW Northview Drive,
conceptual building design details which are consistent with the grocery store design, the
Planning Commission also recommended that an access plan for the 3.95 acre parcel
south of the site and an improved interior parking lot pedestrian pathway system.
On January 25, 1994 the City Council remanded the application back to the Planning
Commission due to concerns related to property owner notification, the findings within
o the staff report and the appropriateness of proposed development within the Community
Commercial Zoning District.
Subsequently, the applicant made the following revisions to the proposal as a result of
concerns raised at neighborhood meetings and issues raised by the City Council at the
January 25, 1994 Public Hearing:
(1) The proposed commercial uses on the pads opposite to the Albertson's pad have been
modified. The gas station and Shari's uses have been eliminated as prospective tenants.
The pads are shown as 4, 000 square foot retail sites.
(2) A new brick wall has been proposed along portions of the proposed 8 acre parcel's
property frontage on SW Northview Drive.
(3) The staircase entrance from SW Northview Drive has been modified to include a
series of 90 degree turns to obscure the staircase entrance.
(4) The applicant has agreed not to develop the site with tenants which would have 24-
hour commercial operations due to potential impacts to adjoining residential areas.
(5) The applicant revised the site plan to provide a separate staircase from SW Northview
Drive to the grocery store building and separated pedestrian pathways for internal
circulation between all buildings and through the center of the parking area.
(6) The site has been posted with a sign showing the proposed site development plan for
the shopping center.
• (7) The applicant has also discussed transferring ownership of the multi-family area south
of the Albertson's site to the Castle Hill Neighborhood Association.
(8) The applicant has provided a history of the application, a synopsis of the changes
EXHIBIT J_I
FINAL REMAND ORDER - CPA 93-09/ZON 93-03/SDR 93-14 - ALBERTSON'S - 3 Page 135L of
Pages
which have been made to the plan, a security lighting plan, a noise study; and conceptual
plans for Albertson's store, the site plan, the wall proposed along SW Northview Drive.
On November 7, 1994 the Planning Commission recommended that the City Council
approved the application without the inclusion of conditions for an automobile access
driveway to SW Northview Drive. A portion of the Commission felt that the Council
should consider provision of a one-way driveway which allows ingress but not egress
onto SW Northview Drive. Commission felt that the improved interior parking lot
pedestrian pathway system was sufficient as proposed.
The City Council reviewed the application, as modified, on December 13, 1994 and
approved the application, with conditions, on December 27, 1994. An appeal of the City
Council's decision was subsequently filed with the Land Use Board of Appeals (LUBA).
On October 20, 1995, LUBA filed a Final Opinion and Order (Order) remanding the
decision to the City. The LUBA remand sustained eight assignments or sub-assignments
of error relating to the following:
1. Transportation: Tigard Comprehensive Plan (TCP) Policy 8.13 (f)-(h) and 8.4.1.
LUBA Opinion at 14.
2. Air/Water Quality: LCDC Goal 6. LUBA Opinion at 14-16.
• 3. Air Quality Impacts: TCP Policy 4.1.1. LUBA Opinion at 16-17
4. Water Quality Compliance: TCP Policy 4.2.1. LUBA Opinion at 17.
5. Commercial Compatibility: TCP Policy 5.4. LUBA Opinion at 20-22.
6. Buffering: TCP Policy 6.6.1. LUBA Opinion at 24-28.
7. Storm Drainage Facilities Feasibility: TCP Policy 7.1.2. LUBA Opinion at 28-29.
8. Design Criteria: CDC 18.61.055. LUBA Opinion at 31-33.
3. Vicinity Information
Sinale family residential development in the Castle Hill Subdivision lies to the east and
south. To the northeast is the Cotswald Subdivision which is of a similar character and
density. A day school is on the west. side of SW Scholls Ferry Road. A few large lot
single family residences also exist to the north, south and west of the subject area. A
quarry operated by Morris Brothers Inc. is located to the southwest, across SW Scholls
Ferry Road.
• R-25(PD) zoning surrounds the parcel currently designated C-N. The area south of the
proposed C-C designation is zoned R-12 (PD) and R-25(PD). The area across SW
FINAL REMAND ORDER - CPA 93-09/ZON 93-03/SDR 93-14 - ALBERTSON'S - 4 EXHIBIT 1L-
Page lqf).of
Pages
Scholls Ferry Road from this area is zoned by the City of Beaverton as R-2 (multi-family,
2,000 square feet lot area/unit). The average allowable density within a 12 mile radius of
the site is approximately IS units per acre.
Other commercial sites within the general vicinity of the proposal include: Murray Hill
Shopping Center located approximately 3/4 mile north on Murray Boulevard; Greenway
Town Center Shopping Center located approximately I'/. mile east on Scholls Ferry
Road; Washington Square located approximately 2%: miles east; several commercial
centers along Pacific Highway, including the Tigard Central Business District, located
approximately two or more-miles to the southeast.
4. Site Information
There are two properties involved in this application. Tax Lot 100 is 6.93 acres in size,
zoned C-N, and located on the northeast quarter of SW Scholls Ferry Road and Walnut
Street. This parcel is a vacant, grassy field with a relatively moderate grade.
Tax Lot 200 is 11.95 acres in size, zoned R-12 (PD) and R-25(PD), and located on the
southeast quarter of SW Scholls Road and Walnut Street. This property is also vacant, a
grassy field; but it slopes significantly downward away from the Castle Hill Subdivision
to Scholls Ferry Road.
5. Proposal Desc ' lion
The applicant has submitted a packet of materials which relate to the issues remanded by
LUBA. The materials include studies related to transportation/traffic, and engineering
analysis/designs for treatment and compliance with regulations for "discharges"
associated with the proposed development.
The application includes the following four separate components:
a. CPA 93-0009/ZCA 93-0003
A proposed change of the C-N designation on Tax Lot 100 to R-25, and change the R-12
(PD) and R-25(PD) designation for 8 acres of Tax Lot 200 to C-C, leaving the remaining
land use designations on the property as they are (see Applicant's Statement, Exhibit
XLIII). This change is proposed to be consistent with the requirements associated with
the City's C-C designation and the obligations of the City to maintain an adequate
inventory of multi-family residential plan.
b. SDR 93-0014
• The applicant proposes to develop a shopping center with a total of 57,550 square feet of
floor space. This space includes a 40,000 square foot grocery store, 9,550 square feet of
additional commercial space adjacent to the grocery store and two separate pad sites
FINAL REMAND ORDER - CPA 93-09/ZON 93-03.'SDR 93-14 - ALBERTSON'S - 5 EXHIBIT 11
Page 1141 of
Pages
totaling 8,000 square feet (see Applicant's Statement, Exhibit XLIII). The applicant has
• provided preliminary site, grading, utility, and landscaping plans. Conceptual building
elevations providing detail of proposed design features for the Albertson's and a model
for future structures have also been provided.
A 40,000 square foot Albertson's Grocery Store and 9,550 square of commercial space
are proposed for the southern portion of the site. A truck access and loading area is
proposed along the south side of the building. The southern and eastern portions of the
site are proposed to be graded extensively and the south side of the main building would
have a floor elevation that ranges from 8 to 24 feet below the existing grade.
A freestanding tenant pad site is proposed towards the southeast quarter of SW Scholls
Ferry Road and SW Walnut Street, a second freestanding pad is intended for the
southwest comer of SW Walnut Street and SW Northview Drive. The applicant has
revised the application to indicate both pads are intended to be developed with retail uses.
The applicant has withdrawn a conditional use permit portion of this application.
The applicant has not submitted development plans for approval on any of the residential
areas on the subject properties. Conceptual development plans for the residential area has
been previously entered into the record.
In addition to the specific uses shown on a site plan and referred to in the Applicant's
statement, approval of other uses is requested. This is because all tenants of the center
have not been committed. It is also expected that tenants will change over time. The
additional uses which may be located at the site and are permitted in the C-C zone for
which the applicant requests approval are:
Animal sales and services;
Consumer repair services;
Convenience sales and personal services;
Children's day care;
Eating and drinking facilities;
General retail sales (less than 10,000 square feet);
General offices (medical, dental, financial, insurance, real estate, professional and
administrative services); and
Indoor participant sports and recreation.
Three driveways are proposed on SW Scholls Ferry Road and one driveway is shown on
SW Walnut Street. Internal sidewalks are shown immediately adjacent to the commercial
buildings. Sidewalks link the two pad sites with the public sidewalks on the perimeter of
the project, a sidewalk and staircase connections are proposed between the grocery store
and SW Northview Drive, and sidewalks_ are permitted through the parking area to the
• main building.
c. MLP 93-0013
,
FINAL REMAND ORDER - CPA 93-092ON 93-03/SDR 93-14 - ALBERTSON'S - 6 EXHIBPageIT 1.~ of
Pages
F
•
The applicant wishes to create a separate 8 acre parcel for the shopping center.. The other
3.95 acre parcel is to retain its existing designation for future residential development.
6. Agency and Neighborhood Comments
The applicable agency and neighborhood comments have been received and included in
the record for consideration.
7. Remand Hearing
The remand hearing on the, application was limited to the assignments and sub-
assignments of error sustained and requiring remand by LUBA's Order. This limitation
was included in the public notice for the remand hearing.
B. FINDINGS:
1. Transportation: Tigard Comprehensive Plan (TCP) Policy 8.13 (I)-(h) and 8.4.1.
.LUBA Opinion at 14.
TCP Policy 8.13 (i) provides that "The City shall require as a precondition to
development approval that: Transit stops, bus turnout lanes and shelters be provided when the
proposed use (is) of a type which generates transit ridership."
The subject property and the intersection of SW Scholls Ferry Road and Walnut Street
are not currently served by transit ridership. Nor is the site in close enough proximately to be
served by transit ridership. The property is approximately 1/2 mile from the nearest Tri-Met
route. The policy phrase "the proposed use of a type which generates transit- ridership" is
interpreted to mean that it is a use which transit ridership facilities, such as Tri-Met bus routes,
are already available to serve the site, and thereby necessitating the need for on-site'
improvements, such as transit stops, bus.turnout lanes, etc. Therefore, TCP Policy 8.1.3 (f) does
not require the Albertson's application to provide transit stops, bus turnout lanes, or bus shelters
associated with the site because transit ridership facilities are not currently available, nor
expected in the reasonably near future, to serve this site. The Applicant's statement, traffic study
(Kittleson Report dated February 16, 1996) and Tri-Net's evaluation letter supports these
determinations. This policy is satisfied.
However, SW Scholls Ferry Road and Walnut Street are logical routes for future
expansion as the demand for bus services increases. The Albertson's application includes
provision for future placement of bus turnout lanes, bus stop and/or shelter near the "mini-park"
at the intersection of Scholls Ferry Road and Walnut Street. A traffic study conducted by
Kittleson & Associates, Inc., transportation planners and traffic engineers, determined that the
future provision of these transit requirements are "feasible" due to the adequacy of the site
development plan. Although not currently required by the policy, the applicant has agreed to
EXHIBIT 11
FINAL REMAND ORDER - CPA 93-09/ZON 93-03.'SDR 93-14 - ALBERTSON'S - 7 Page N3 of
Pages
condition approval upon providing the area near the "mini-park" to accommodate such transit
stop, bus turnout lanes and shelters as required for future needs. Any potential application of
the policy is satisfied.
TCP Policy 8.13 (g) provides "The City shall require as a precondition to development
approval that: Parking spaces be set aside and marked for cars operated by disabled persons and
that the spaces be located as close as possible to the entrance designed for disabled persons."
The proposed development provides handicapped parking spaces in compliance with the
Americans with Disabilities Act (ADA) requirements, and these parking spaces are located in
close proximity to the access points for the proposed grocery store, attached shop spaces, and the
two outlying commercial buildings. This determination is supported by the Kittleson Report
(Exhibit D-3). The site development plan identifies the handicap parking locations. Policy S. 1.3
(g) . will be satisfied with the condition of approval pertaining to re-locating two handicapped
parking spaces and provision for additional spaces within the existing parking lot plan area for all
other building sites throughout shopping center. The Applicant has provided a traffic report and a
site plan that identifies adequate area to satisfy the feasibility of the Applicant complying with
the requirements of TCP Policy 8. 1.3 (g) and its related condition of approval.
TCP Policy 8.1.3 (h) provides "The City shall require as a precondition to development
approval that: Land be dedicated to implement the bicyclelpedestrian corridor in accordance with
the adopted plan."
•
TCP Policy 8.13 (h) is interpreted to mean that an applicant is only required to dedicate
land for a bicyclelpedestrian order when the applicant's property is designated in the City's
adopted plan as being a location for the proposed corridor. Here, the Applicant's site does not
abut, nor is it traversed by, a designated or proposed bicyclelpedestrian corridor as identified in
the City's adopted plan. Therefore, TCP Policy 8.1.3 (h) does not require a dedication, and the
Albertson's plan complies with this policy.
TCP Policy 8.4.1. provides "The City shall locate bicycle./pedes Tian corridors in a
manner which provides for pedestrian and bicycle users, safe and convenient movement in all
parts of the City, by developing the pathway system shown on the adopted pedestrian/bikeway
plan."
The subject property does not abut, nor is it traversed by, a designated bicycle/pedestrian
corridor in accordance with the City's adopted plan. In accordance with the adopted plan, a
bicycle!pedestrian corridor is designated to the west of SW Scholls Ferry Road and is intended to
cross the future extension of ?Murray Boulevard. Since the actual route of the future
transportation improvement is determined, the City is not required to designate a study area
under TCP Policy 8.4.1. Further, the Applicant's proposed development provides sidewalks
along each property frontage with access to cross-walks at the intersections of SW Scholls Ferry
Road at Walnut Street, and Northview Drive and Walnut Street. The Applicant has satisfied this
policy by providing transit and pedestrian orientation throughout the development of a walkway
system to and from adjoining streets. This will, in turn, link bicycle!pedestrian access to
EXHIBIT 11
FINAL REMAND ORDER - CPA 93-09/ZON 93-03/SDR 93-14 - ALBERTSON'S - 8 Page 1L(V of
Pages
• sidewalk connections along SW Scholls Ferry Road and the future extension of Murray
Boulevard; thereby eventually linking to the proposed bicycle/pedestrian corridor located
immediately west of SW Scholls Ferry Road when it is constructed. The Applicant has also
proposed to provide*a potential bus turnout lane, bus stop and/or shelter location on SW Scholls
Ferry Road near the intersection of SW Scholls Ferry Road and SW Walnut Street in anticipation
of future transit service. This policy is satisfied.
2. Air, Water and Land Resources Quality: LCDC Goal 6. LUBA Opinion at 14-16.
The air, water and land resources quality requirements under LCDC Goal 6 are satisfied
by the proposal. This requirement necessitates an analysis of the "discharges" that are projected
to result from the Albertson's development, including air quality, solid waste, thermal, noise,
atmospheric or water pollutants, contaminants, or products therefrom. The Applicant has
provided an engineering study analyzing and providing design details to satisfactorily address all
waste and process discharges from the proposed development. This study, the Westech Report,
identifies that the Albertson's application will not violate or threaten to violate applicable city,
state or federal environmental quality statutes, rules and standards.
In accordance with the Westech Report, solid waste shall be stored and removed in
compliance with all applicable regulations for design, construction and location of solid waste
storage areas and equipment. The Applicant's plan does not violate any city, state or federal
• thermal discharge regulations because atmospheric thermal discharges are not regulated for the
proposed type of uses. Regulations relating to waterway thermal discharges do exist, but the
proposed application does not involve their application. With the Applicant using evaporative
condensers for its building, all applicable regulations for noise shall be satisfied by the site
development plan.
Similarly, all atmospheric or air quality requirements are satisfied by the proposed
development. The water pollutants regulations are also satisfied. The Westech Report. has
incorporated the design requirements for water discharge facilities adequate to satisfy all city,
state and federal requirements for water quality and quantity control. As a result, the applicant
has shown substantial and reliable evidence to establish the feasibility of Albertson's compliance
with LCDC Goal 6 requirements.
3. Air Quality Impacts: TCP Policy 4.1.1. LUBA Opinion at 16-17
The Westech Report describes the applicable criteria of TCP Policy 4.1.1 as they apply to
the potential air quality impacts of the Albertson's application. The report identifies that an
Indirect Source Construction Permit Application is presently being prepared and will be
submitted to the DEQ. The Westech Report identifies that this application complies with all
applicable standards and has a high feasibility of being approved by the DEQ. In addition, the C-
C zone and the surrounding residential properties will result in fewer and shorter automobile trips
• to obtain commercial goods and services: The proposed center, as designed and conditioned,
will provide for ease of access to the surrounding neighborhoods. This in turn will help satisfy
EXHIBIT II
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• Policy 4.1.1 by reducing potential air quality impacts from the new residents and their
automobiles.
This policy is satisfied by the Applicant's submittal and plan, and the Applicant has provided
.substantial evidence of its feasibility of compliance with the associated conditions of approval.
4. Water Quality Compliance: TCP Policy 4.2.1. LUBA Opinion at 17.
This policy requires "All development within the Tigard urban planning area shall
comply with applicable federal, state and regional water quality standards." The Applicant's
engineering study, the Westech Report, establishes that the Applicant complies with all the
requirements of this policy. In particular, the report identifies at pages 5 through 9 that the water
quality facilities designed for the Albertson's site are intended to comply with all applicable
federal, state and regional water quality standards. The report further describes these standards,
how they are being complied with and that Albertson's compliance with these standards is
feasible.
. _ Also, this policy will be satisfied through the development review and building permit
processes at which time a development proposal for this site must be shown to comply with
applicable federal, state, and regional water quality requirements including implementation of the
• non-.source pollution control plan in compliance with the Oregon Environmental Quality
Commission's applicable rules for the Tualatin River Basin. The proposed redesignation would
not by itself affect compliance with this plan policy. The Applicant has complied with TCP
Policy 4.2.1 and has established feasibility for compliance with all associated conditions of
approval.
5. Commercial Compatibility: TCP Policy 5.4. LUBA Opinion at 20-22.
TCP 5.4 provides: "The City shall ensure that new commercial and industrial
development shall not encroach- into residential areas that have not been designated for
commercial or industrial uses."
Albertson's application affects a "residential area" that includes the residential and
commercial lands surrounding the intersection of Scholls Ferry Road and Walnut Street as more
particularly described above in Paragraph 3 entitled "Vicinity Information". This "residential
area" includes the existing Neighborhood Commercial located at the northeast corner of this
intersection, the 8 acre parcel proposed for community commercial, the Castlehill residential
subdivision located in the southeast of the intersection, and the multifamily designations located
to the west, northwest, south.
The application also proposes to replace the existing designated commercial use (N-C) in
• this residential area with a "Community Commercial" designation. The phrase "residential
area," referred to in TCP 5.4, includes the area and uses identified in the above paragraph. This
area is also consistent with an area potentially up to 1'/z mile radius of this site in accordance
EXHIBIT III._
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with the market or neighborhood area supporting a "community commercial" location under. TCP
• 12.2.1.4.A. As a result, the proposed C-C designation in this residential area will not create new
commercial where no commercial previously existed. The N-C designation already existed in
this designated "residential area"; and the C-C designation will replace it and shift it across
Walnut Street to the other corner (all within the same "residential areal.
TCP 5.4 does not restrict different types of commercial, changes in size or changes in
type of commercial under this policy. The policy is intended to address restricting the
encroachment of new commercial in residential areas where no commercial previously existed
Since the Applicant's proposal changes one type of commercial to another type where a
commercial designation already existed in this residential "area", Albertson's application
complies with TCP 5.4.
Nevertheless, the Albertson's proposal replaces approximately 7 acres of N-C with 8
acres of Community Commercial within the same residential area. The Kittleson Traffic study
submitted by the Applicant in the earlier land use hearings identified that the traffic impacts
between 8 acres of C-C use and 6.93 acres of N-C are nearly equivalent. The net impact to
surrounding residential uses is not significant.
Moving the commercial from the northeast comer of the Scholls Ferry Road and Walnut
Street intersection to its southeast corner will allow the commercial use to be excavated into the
• hillside. This relocation of the commercial across the street is not precluded by TCP Policy 5.4
since the new location will still be within the same residential area. This new location will
provide better buffering and the opportunity to greatly diminished adverse. impacts to
surrounding residential uses. As a result, Albertson's proposal provides a better compatibility
between commercial designations and residential uses in this "area" than the previously
designated N-C use and location. Moreover, the Albertson's application complies with the
locational criteria identified in the comprehensive plan for "Community Commercial"
designations. TCP Policy 5.4 is intended to be satisfied by the commercial use applicant
complying with all the applicable locational criteria under TCP Policy 12.2.1. Where the
applicant satisfies, as has Albertson, all of the locational criteria for Community Commercial
under TCP 12.2.1.43, the requirements for TCP Policy 5.4 are also satisfied. The findings
pertaining to TCP 12.2.1 were previously appealed to LUBA as the "Eighth Assignment of
Error"; and those findings were found lawfully adequate. The Applicant has satisfied all the
requirements of TCP Policy 5.4.
6. Buffering: TCP Policy 6.6.1. LUBA Opinion at 24-28.
TCP Policy 6.6.1 pertains to buffering and screening between different types of land uses
and imposes factors to be considered in determining the type and extent of the required buffer or
screen. The City has also adopted CDC 18.100 to implement this comprehensive plan policy for
landscaping and screening. In the prior decision, specific findings set forth Albertson's
is compliance with all the applicable requirements of CDC 18.100. These findings were not
appealed to LLTBA from the prior decision. As a result, these findings, presently, are deemed
lesally valid. Since CDC 18.100 was adopted to implement TCP Policy 6.6. 1, a determination of
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• compliance with CDC 18.100 shall be deemed as satisfying the requirements of TCP Policy
6.6.1. The applicant has complied with all the requirements of TCP Policy 6.6.1.
In any event, Albertson's site development plan fully complies with the specific
provisions of TCP Policy 6.6.1. Under TCP Policy 6.6.1.x.1, the City is to determine the
"purpose of the buffer". In this case, the potential buffering or screening factors for "noise" and
"air pollution" are either not significant or are effectively resolved by the design plan. The
Applicant has submitted an engineering study, the Westech Report, which identifies that the
Albertson's application complies with all applicable noise emission regulations and will not
create off-site noise problems for surrounding neighborhoods. Similarly, the report identifies
that there are no atmospheric pollution emissions generated from the proposed use. Nevertheless,
Albertson's proposed landscaped buffer and screening will provide an effective buffer for any
potential noise and air pollution that might be generated by the proposed commercial use and
any prospective changes in use or tenants.
As a potential "air pollution absorber", "noise filter", "dust filter" and "visual barrier",
the proposed Albertson's landscape plan satisfies and exceeds City requirements. For the
purposes of the buffer, the width and height are defined in CDC 18.100. The applicable matrix
under the CDC 18.100.0703 and 18.100.130 establishes that the applicant must provide at least.
10 feet of buffer and/or screening between the proposed shopping center site and nearby
residential uses. The site development plan provides for excavation of the site to lower the grade
• approximately 24 feet near the single-family residential area on the southeast and the multi-
family area on the south. This excavation will also reduce the noise associated with the loading
area designed for the rear of the grocery store structure by screening the loading area with the
large building and the 24 foot deep landscaped slope. Between these residential uses and the
proposed commercial uses will be landscaped areas that range in width between 37 to 60 feet on
the southeast and between 20 to 82 feet on the south. The Albertson's landscape plan designates
these buffer areas as also providing an "Evergreen Screen" to provide a year-around buffer and
screened area. The types and sizes of plants are specifically identified on the "Landscape Plan"
and they comply with the City's requirements.
In addition to landscape buffering and screening along the Northview Drive, the applicant
is also providing a brick wall the entire length of the subject property. Landscaping widths
between the parking lot and Northview Drive on the southeast range between 30 to 45 feet.
Again, the types and sizes of the plants are identified on the "Landscape Plan." Landscaped
buffers along Walnut Street and Scholls Ferry Road (the northeast, north and northwest borders
of the site) range in width between 26 to 135 feet. The overall landscaping plan exceeds the City
Code's 20° o requirements by providing almost 30% landscaped buffers and screens around the
perimeter of the site.
The landscaped buffer and screening plan surrounds the entire site and thereby provides
adequate buffering and screening between the proposed commercial use and the single-family
residential to the southeast, the multi-family residential to the northeast, north, west and south.
The buffer and screening is also sufficient for both stationary and mobile viewers along or
abutting Scholls Ferry Road, Walnut Street and Northview Drive. The multi-family residential
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designated property to the south will provide stationary viewers, and the proposed landscaped
• area separating these uses will provide an effective buffer and screen. The "Landscape Plan"
calls for a solid year-around "Evergreen Screen" along this entire perimeter. This screening is
also extended for the length of the building along Northview Drive. A solid ornamental brick
wall is also proposed along Northview Drive to provide an additional and adequate screen
between the proposed commercial use and the single-family residential area to the southeast.
Special screening is not necessary along Scholls Ferry Road and Walnut Street. The neighboring
uses are separated by at least 45 feet of roadway, additional distance for sidewalks and additional
depth of the proposed landscaping. The Applicant's landscaping in these locations substantially
exceeds the depth requirements of the applicable code. Also, the traffic impacts along Scholls
Ferry Road and Walnut Street, not associated with the proposed development, are substantial and
mask impacts created at the Albertson's site.
The application complies with all applicable requirements of TCP Policy 6.6.1,
including all requirements pertaining to noise impacts. The Applicant has previously submitted a
noise study and a current engineering study that establishes the Applicant's compliance with all
regulations pertaining to noise generation by the proposed uses. The Applicant's buffering and
screening details in its landscape plan provide additional assurances that all potential noise
impacts will be sufficiently mitigated.
7. Storm Drainage Facilities Feasibility: TCP Policy 7.1.2. LUBA Opinion at 28-29.
• Albertson's has designated a portion of the landscaped area along Scholls Ferry Road as
the location for the storm drainage facilities that will satisfy all applicable water quality and
quantity requirements under TCP Policy 7.1.2. In addition, the Applicant's engineers have
completed a storm drainage facilities analysis and designed a system to satisfy all these
requirements (the Westech Report). The report identifies specific requirements, calculations for
compliance and design characteristics for both water quality and quantity. The report concludes
that: "Both of these requirements are met by stormwater facilities we have designed and
presented in detail in the report". The Westech Report also establishes the "feasibility" of
Albertson's ultimate compliance with the applicable conditions of approval, and constitutes
sufficient substantial evidence for a respective finding. The Applicant has complied with the
requirements of TCP Policy 7.1.2.
8. Design Criteria: CDC 18.61.055. LUBA Opinion at 31-33.
Section 18.61.055 contains a number of design guidelines and standards for C-C
development. The basic design concepts presented by the applicant are consistent with these
Code provisions. The Applicant's revised plan shows to a new sidewalk along the southern side
of the central driveveav access alone SW Scholls Ferry Road. The northern most driveway access
along SW Scholls Ferry Road already has a sidewalk paralleling the driveway through the "mini-
park". This Code section will be satisfied with _a condition of development approval requiring
the addition of one more walkway along the northern side of the driveway entrance located at the
southern end of the property alone SW Scholls Ferry Road. The revised Site Plan includes new
walkways through the center of the parking lot (north and south) and a cross-walkway between
EXHIBIT
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the commercial pads (east and west). These walkways are raised where adjacent to parking stalls
• and consisting of distinctive materials or markings where located across driving corridors. The
revised plan also includes a staircase walkway from the grocery store to SW Northview Drive to
satisfy pedestrian connections for that adjoining area. These additional walkways, along with
added walkway associated with the driveway along Scholls Ferry Road, satisfy the requirements
in CDC 18.61.055. Other revisions by the applicant include provision of evaporator units placed
behind the building at mezzanine level to assure compliance with regulations pertaining to noise
impacts; requested details for the landscaping plan showing sizes, locations and species of
landscaping materials; and details of cut-off shields on lighting fixtures; all in compliance with
the applicable provisions under CDC 18.61.055.
Section 18.61.055 A. 1. contains building design guidelines which have been satisfied.
The Applicant has provided a design for the grocery store and a list of required design criteria for
all subsequent structures which are sufficient for assuring compliance with the Code provisions
for all structures on the site. Although the grocery store will have blank walls facing SW
Northview Drive, this building elevation will be screen from view by landscaping and the
excavated embankment, and should result in a pleasing appearance.
. Section 18.61.055. A: 2. discourages loading areas that face.toward residential uses. The
proposed loading area abuts an undeveloped residential parcel and is near Castle Hill
Subdivision. Because of the proposed grading of the site, the loading area will be approximately
24 feet below the existing grade. This design serves to mitigate noise impacts to adjoining
• residential areas along with the landscaping and year-around screening; and will also provide a
satisfactory visual buffer.
Section 18.61.055.B. 1. requires internal walkways to facilitate pedestrian circulation on
the site. The revised site plan shows walkways in the vicinity of the building locations and
throughout the parking area. As identified above and with the condition of approval requiring an
additional walkway along the southern most driveway entrance on SW Scholls Ferry Road, the
revised site plan provides sufficient walkways and accesses to comply with this Code
requirement.
Section 18.61.055.B.2. and 3. are complied with by the Applicant's plan, submittals, and
with the required conditions of approval.
C. DECISION:
1. Approval of CPA 93-0009/ZCA 93-0009 to change the Comprehensive Plan and
Zoning designations on Tax Lot 100 (Washington County Tax Map 2S1, 4BB) from
Neighborhood Commercial (C-N) to Medium-High Residential/Planned Development
[R.-25(PD)], and to change the Comprehensive Plan and Zoning designation for 8 acres of
Tax Lot 200 from Medium and iviedium-High Residential/Planned Development, R-25,
• to Community Commercial (C-Q.
The City Council finds that the change will promote the general welfare of the City and
EXHIBIT I~ I
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will not be significantly detrimental or injurious 'to surrounding land uses. The
• Comprehensive Plan and zoning map amendments shall be finalized at the time a
building or other development permit (e.g., grading) is issued. It is further ordered that
the applicant and parties to these proceedings be notified of the entry of this order.
2. Approve the Site Development portion of the application with the following
conditions (unless otherwise noted, all conditions shall be satisfied prior to issuance of
building permits):
a. A revised site plan shall be submitted for approval which includes the following
modifications:
(1) A walkway along the northern side of the driveway entrance located at the
southern end of the property along SW Scholls Ferry Road shall be provided.
Differing walkway materials shall be used to designate walkway areas. Bicycle
racks shall be provided within or near the columned facade area in front of the
grocery store structure.
(2) A staircase sidewalk from the grocery store shall connect with SW Northview
Drive.
(3) Two of the proposed handicapped parking spaces in front of the grocery store
• (the northwesterly spaces) shall be moved to the'parking area immediately in front
of Building "A" next to the Albertson's grocery store location. In compliance with
TCP Policy 8.1.3, standard handicapped parking spaces shall be required for all
commercial uses throughout the site as buildings are constructed.
(4) Details concerning the screening of all mechanical equipment to be used on
the perimeter of any building or on the roof shall be supplied by the applicant
prior to issuance of building permits for that building.
(5) All cooling units shall be as specified within the noise study dated September
29, 1994. The study recommended the use of quieter evaporative condensers
located within the mezzanine level of the store rather than air cooled condensers
units located on the roof.
(6) The landscaping plan and landscaping shall achieve a minimum of 35%
canopy coverage at maturity over the parking stall areas.
(7) Building design details shall be provided for the entire development consistent
with the model details incorporated in the approved first building. Of key
importance is consistent size and scale of buildings and signs. The applicant shall
create a sign program for the'center identifying the size, location and design of all
• freestanding and wall signage.
EXHIBIT 11
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(8) All lighting fixtures shall use the cut-off shields identified by the Applicant to
prevent the spillover of light to adjoining properties.
(9) If the driveway design is utilized which would intersect with SW Northview
Drive south of the comer pad towards SW Walnut Street, construction of a
driveway along the southern property towards SW Scholls Ferry Road should be
considered to allow for future access between the 3.95 acre parcel and the
Albertson's site.
STAFF CONTACT: Mark Roberts, Planning Division.
b. Two (2) sets of detailed public improvement plans and profile construction drawings
shall be submitted for preliminary review to the Engineering Department. Seven (7) sets
of approved drawings and one (1) itemized construction cost estimate, all prepared by a
Professional Engineer, shall be submitted for final review and approval (NOTE: these
plans are in addition to any drawings required by the Building Division and should only
include sheets relevant to public improvements). STAFF CONTACT: John Hagman,
Engineering Department.
c. Building permits will not be issued and construction of proposed public improvements
shall not commence until after the Engineering Department has reviewed and approved
• the public improvement plans and a street opening permit or construction compliance
agreement has been executed. A 100% performance assurance or letter of agreement, a
developer-engineer agreement, the payment of a permit fee and a sign
installation/streetlight fee are required. STAFF CONTACT: John Hagman, Engineering
Department.
d. Additional right-of-way shall be dedicated to the Public along the SW Scholls Ferry
Road frontage to increase the right-of-way to 37 feet from the centerline. If the existing
right-of-way has been dedicated to the required width, the applicant shall submit survey
and title information to confirm. The description of any additional right-of-way shall be
tied to the existing right-of-way centerline. For additional information contact
Washington County Survey Division. In the future when transit ridership is extended to
the subject property, the applicant may be required to provide transit stops, bus turnout
lanes and/or shelters at or near the "mini-park" in accordance with the design
specifications of the City's Engineering Department. The City may elect to require such
construction after duly providing notice to all landowners within 250 feet of the site and
conducting a scheduled public hearing for such decision.
e. Standard half-street improvements, including concrete sidewalk, driveway apron, curb,
asphaltic concrete pavement, sanitary sewer, storm drainage, streetlights, and
• underground utilities shall be installed along the SW Scholls Ferry Road frontage,
including the frontage of all parcels within the minor land partition. Improvements along
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SW Scholls Ferry Road shall be designed and constructed to Washington County
Uniform Road Improvement Design Standards and shall conform to an alignment
approved by the Washington County Engineering Department. For additional
information contact Washington County Engineering Department.
f. The applicant shall obtain a facility permit from the Department of Land Use and
Transportation of Washington County, to perform work within the right-of-way of SW
Scholls Ferry Road. A copy of this permit shall be provided to the City Engineering
Department prior to issuance of a Public Improvement Permit.
g. Standard half-street improvements, including concrete sidewalk, driveway apron,
streetlights, and underground utilities shall be installed along the SW Northview Drive,
including the 3.95 acre multi-family frontage of SW Northview Drive. Improvements
shall be designed and constructed to local street standards and shall conform to the
alignment of existing adjacent improvements or an alignment approved by the
Engineering Department. STAFF CONTENT: Michael Anderson, Engineering
Department.
h. The applicant shall. submit sanitary sewer plans to the City of Beaverton for their
approval. The plans shall also be submitted for the review and approval of the City of
Tigard Engineering Department. A copy of the approved plans shall be provided to the
City of Tigard prior to the construction of any public improvements.
• i. The applicant shall provide an on site water quality facility as established under the
guidelines of Unified Sewerage Agency Resolution and Order No. 91-47. Submitted
design information shall include an operation and maintenance plan. STAFF
CONTACT: Greg Berry, Engineering Department.
j. The Applicant shall demonstrate that storm drainage runoff can be discharged into the
existing drainageways without significantly impacting properties downstream. STAFF
CONTACT: Greg Berry, Engineering Department.
k. The proposed privately operated and maintained sanitary sewer plan-profile details
shall be provided as part of the public improvement plans; and the storm drainage system
plan-profile details shall be completed in accordance with the Westech Report submit by
the applicant. STAFF CONTACT: Michael Anderson, Engineering Department.
1. The applicant shall obtain a "Joint Permit" from the City of Tigard. This permit shall
meet the requirements the NPDES and Tualatin Basin Emotion Control Program.
STAFF CONTACT: Michael Anderson. Engineering Department.
m. A grading plan shall be submitted shoving the existing and proposed contours. A
soils report shall be provided detailing the soil compaction requirements. STAFF
CONTACT: Michael Anderson, Engineering Department.
-~1 _
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n. The applicant shall provide a geo-technical report that addresses the slope stability
adjacent to SW Northview Drive and the overall grading conditions of the proposed
development, in accordance with the requirements of Chapter 70 of the Uniform Building
Code. STAFF CONTACT: Michael Anderson, Engineering Department.
o. The applicant shall underground the existing overhead facilities along each frontage or
pay the fee in-lieu of undergrounding. STAFF CONTACT: Michael Anderson,
Engineering Department.
p. An erosion control plan shall be provided as part of the improvement drawings. The
plan shall conform to "Erosion Control Plans-Technical Guidance Handbook, November
1989. STAFF CONTACT: Michael Anderson, Engineering Department.
q. The applicant shall provide a construction vehicle access and parking plan for approval
by the City Engineer. All construction vehicle parking shall be provided on-site or within
the SW Northview Drive and SW Walnut Street right-of-way. 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 the site improvements or buildings proposed by application, and shall
include the vehicles of all suppliers and employees associated with the project. STAFF
CONTACT: Michael Anderson, Engineering Department.
r. As a further condition of approval, duly given prior notice(s) and a scheduled public
hearing(s) shall be given for any discretionary decision to allow change(s) in the
approved application, such as for any discretionary decision to allow change(s) in the
approved application, such as for future construction of an automobile access from the
site to Northview Drive, or changes outside there compliance with mandatory code
provisions and regulations affecting compliance with any condition of approval identified
herein. STAFF CONTACT: Mark Roberts, Planning Division.
s. The applicant and all tenants of the shopping center shall restrict the use of mechanical
parking lot sweepers, auxiliary generators, truck-loading activities and other similar
excessive noise generating activities to the hours of operation from 6:00 a.m. to 11:00
p.m. daily. STAFF CONTACT: Mark Roberts, Planning Department.
t. Windows shall be included in the grocery store facade facing SW Walnut Street by
includine at least one window in each bay of the columned facade area (constituting not
less than a total of four windows). STAFF CONTACT: Mark Roberts, Planning
Division.
u. The applicant shall provide a covered walkway in front of the grocery store, and in
particular the entrance way; and the columned facade area may be used to serve this
• purpose. STAFF CONTACT: Mark Roberts, Planning Department.
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• v. The applicant shall maintain a minimum of a five-foot wide unobstructed walkway
area in front of the grocery store that is free of display materials or other pedestrian
obstructions. STAFF CONTACT: Mark Roberts, Planning Department
w. The driveway entrance at the southwestern comer of the site along SW Scholls Ferry
Road shall be moved approximately eighteen (18) feet to the south to comply with
Washington County standards for driveway alignments with the proposed driveway
access across from SW Scholls Ferry Road to the west. STAFF CONTACT: Mark
Roberts, Planning Division.
x. In the future the applicant may be required to provide an automobile driveway, in
accordance with the design specifications of the City's Engineering Department, for
access to and from the parking lot to SW Northview Drive, as follows:
(1) The future driveway would be located south of the building pad situated near
the intersection of SW Walnut and Northview Drive.
(2) The applicant will-provide the City with a permanent easement for such
ingress and egress prior to occupancy.
(3) The applicant will be responsible for payment of costs of construction of such
driveway, if and when it is required to be constructed.
(4) The City may elect to require construction of such driveway access after duly
providing notice to all landowners within 250 feet of the site and conducting a
schedule public hearing for such decision.
3. Final Plat Application Submission Requirements:
A. Three copies of the partition plat prepared by a land surveyor licensed to
practice in Oregon, and necessary data or narrative.
B. The partition plat and data or narrative shall be drawn to the minimum
standards set forth by the Oregon Revised (ORS 92.050), Washington County,
and by the City of Tigard.
C. Copy of boundary survey.
STAFF CONTACT: John Hadley, Engineering Department.
THE FOLLOWING CONDITION(S) SHOULD BE REQUIRED PRIOR TO FINAL OC-
CUPANCY PERMIT:
• 4. Provide the Engineering Department with a recorded mylar copy of the final survey;
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or if not recorded with Washington County but has been approved by the City of Tigard
the applicant shall have 30 days after recording with Washington County to submit the
copy.
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JEFFREY L Kui.Nm. "
• rrowYET AT LAM
THE AMBASSADOR
1207 S.W. St crH AvE.vuz
PoRr"icn. ORScox 97204 ORIGINAL
TFLzPHdNE (300) 248-0808 FAx (303) 228-4329
April 23, 1996
M E M O R A N D U M
To: Mayor and Members of the Tigard city council
From: Jeffrey L. Kleinman
Re: Albertson's, Inc., CPA 93-00091ZON 93-0003
On behalf of my clients, Marcott Holdings, Inc., Matt
Marcott, and Murrayhill Thriftway, Inc., I would like to respond
to two of the key issues addressed by Albertson's in this remand
• proceeding.
1. COMMERCIAL COMPATIBILITY: TIGARD COMPREHENSIVE PLAN
POLICY 5.4.
Perhaps the most important issue for which LUBA remanded
this case to the city is that of "Commercial Compatibility" under
TCP 5.4. TCP 5.4 provides as follows:
"The City shall ensure that new commercial and
industrial developments shall not encroach into residential
areas that have not been designated for commercial or
industrial uses." (Emphasis added)
In this regard, LUBA held as follows:
"The [challenged decision] falls short of describing
what is proposed: the substitution of a larger development
for a smaller one, on an opposite corner of the same
intersection, when both the existing and proposed locations
border residentially zoned property. * Marcott
Holdings. Inc. v. City of Tigard, LUBA (LUBA No. 95-
011, Final Opinion and Order, October 20, 1995, at 21)
1 - OPPONENTS' MEMORANDUM
EXHIBIT
Page Is 9 of
Pages
• The findings proposed by Albertson's in the draft submitted
to the city do nothing to resolve the problem identified by LUBA.
Albertson's has chosen to fudge this issue by making use of the
one and one-half mile radius trade area established for Community
Commercial uses by TCP 12.2.1, section 4.A, and stating that if
commercial exists within that radius, moving any commercial
designation within that radius "will not create new commercial
where no commercial previously existed." The proposed findings
state:
"The N-C designation already existed in this designated
'residential area'; and the C-C designation will replace it
and shift across Walnut Street to the other corner (all
within the same 'residential area')."
Both the practical effect of and the dangerous precedent
established by this finding are evident. If you are a resident
• of Tigard living within one and one-half miles of any property
bearing an of the city's commercial designations, you will be
subject to the siting of new or relocated commercial uses any
place up to your doorstep. You will have no protection
whatsoever under TCP 5.4, even though that policy was adopted
specifically to provide protection from an encroachment of
commercial and industrial development into residential areas.
Such an interpretation would violate both the express language of
and the policy behind TCP 5.4.
An analysis of the applicant's proposal under TCP 5.4 can
certainly be performed. Unfortunately, Albertson's apparently
does not wish to perform one. A reasonable analysis would take
into account the factors set out below.
2 - OPPONENTS' MEMORANDUM
EXHIBIT
Page [,:;of
Pages
• The applicant proposes to swap 116.93" acres of Neighborhood
Commercial (actually, just five acres, according-to the staff
report in Case No. CPA 91-0003/ZCA 91-0006, to which the
applicant has referred the City Council) on one side of an
intersection for eight acres of Community Commercial on another
side of the same intersection. Those eight acres are presently
zoned R-12 and R-25.
The applicant states, "the net impact to surrounding
residential uses is not significant." Assuming for the sake of
argument that the two sites are the same size, what would be the
impact of establishing a Community Commercial rather a
Neighborhood Commercial use in light of the following differences
under the Tigard Municipal Code?
A. Neighborhood Commercial site size is limited to two
acres. TCP 12.2.1, section 1.A.(2). Community Commercial sites
start at two acres in size, and have a maximum size of eight
acres: TCP 12.2.1, section 4.B.(3)(a). Hence, the applicant's
proposal is actually for a project four times larger than would
be permitted in the C-N zone.
B. Neighborhood Commercial centers have'a confined
neighborhood trade area,.limited to 5,000 people. TCP 12.2.1,
section l.A.(1) Community Commercial centers are intended to
serve a much larger trade area, within a one and one-half mile
radius. TCP 12.2.1, section 4.A.(1).
C. The Neighborhood Commercial designation does not permit
restaurants, bars, general retail sales, and general office use.
3 - OPPONENTS' MEMORANDUM
EXHIBIT
Page L54 of
Pages
CDC 18.60.030. The proposed community Commercial designation
does. CDC 18.61.030.
D. Individual uses on a Neighborhood Commercial site are
limited to 4,000 square feet. CDC 18.060.045.A.2. The Community
Commercial designation allows 40,000-square-foot super markets,
and general retail uses of up to 10,000 square feet per store.
TCP 12.2.1, section 4.A.(2).
E. The gross commercial floor area permitted by the
Community Commercial designation is 100,000 square feet.. TCP
12.2.1, section 4.A.(2). This is substantially more than the
tots site size of two acres allowed for Neighborhood Commercial
development, regardless of the commercial floor area actually
built.
NO IMPACT? We are compelled to disagree. The traffic
impacts brushed off by the applicant, and every additional impact
associated with large-scale commercial development, will be
several times greater than that produced by the existing,
Neighborhood Commercial designation. The impact on traffic is
confirmed by traffic engineer Robert Bernstein, P.E., in the
letter attached to this memorandum.
Another aspect of the proposed finding under TCP 5.4 also
warrants scrutiny. If one agrees that there must some impact
resulting from moving a community Commercial use onto what is now
an R-12 and R-25 site largely surrounded by developed residential
uses, then both the site and the impact must be described and
discussed in reasonable detail. Clearly, the applicant does not
4 - OPPONENTS- MEMORANDUM
EXHIBIT
Page ILL of
Pages
wish to do this. However, this must be done in order to make the
necessary finding concerning "encroachment" under Policy 5.4.
The "baseline" analysis is missing.
Clearly, a primary motivation for the proposed plan and zone
switch herein is to permit more intensive development on an
eight-acre site, rather than less intensive development on two
acres of a site comprising a total of either five or 6.93 acres.
O
Why else would the applicant be here? This switch may somehow be
feasible under Policy 5.4, but not on the basis of the evidence
in this record or the proposed findings before you.
2. AIR QUALITY IMPACTS: TIGARD COMPREHENSIVE PLAN POLICY
4.1.1.
LUBA also affirmed our assignment of error pertaining to TCP
4.1.1, which provides in material part as follows:
"The city shall:
"a. Maintain and improve the quality of Tigard's
air quality and coordinate with other
jurisdictions and agencies to reduce air
pollutions within the Portland-Vancouver Air
Quality Maintenance Area. (AQMA).
"b. Where applicable, require a statement from the
appropriate agency, that all applicable
standards can be met, prior to the approval of
a land use proposal.
"c. Apply the measures described in the DEQ
Handbook for 'Environmental Quality Elements of
Oregon Local Comprehensive Land Use Plans' to
land use decisions having the potential to
affect air quality."
Implementation Strategy 3 requires the city to "use
measures described in the DEQ Handbook for 'Environmental
Quality Elements of Oregon Local Comprehensive Land Use Plans'
5 - OPPONENTS' MEMORANDUM
EXHIBIT iy
Page ► of
Pages
• when planning any development activities having the potential
to directly (by direct emissions) or indirectly (by increasing
vehicular travel) affect air quality."
Implementation Strategy 5 requires the city to "consult
and coordinate with the Oregon Department of Environmental
Quality to ensure that land uses and activities in Tigard
comply with Federal and State air quality standards."
Even with the new materials with which the applicant has
embellished the record, there is no evidence that any of the
above requirements have been complied with. This is
especially true of Policy 4.1.1(b) and (c), and the two
Implementation Strategies identified above.
The record shows only that an Indirect Source
Construction Permit Application "is being prepared" and will
be submitted to DEQ. (Westech Report, page 5) The
information submitted by the applicant is insufficient to
justify a finding of compliance with TCP 4.1.1 at the present
time.
conclusion
For the reasons set forth above, the applicant has not
yet complied with the approval criteria described in this
memorandum. The application should therefore be denied.
Respectfully submitted,
/77
~f ey K einman
JLK:ay
6 - OPPONENTS, MEMORANDUM
EXHIBIT iZ
Page It, D- of
Pages
ROBERT BERNSTEIN, P.E.
Consulting Tramspurt..uun r ngineer/Ptanner
• 507 - 18th Avenue East (206) 325-4320
Seattle. Washington 98112 fax (206) 325-4318
April 23. 1996
Mr. Jeffrey Kleinman
The Ambassador
1207 SW 6th Ave
Portland, OR 97204 APR 2 3 1996
pFFRBY L. KLHINMAN
A=OBMX AT LAVE
Dear Mr. Kleinman,
Per your request, I have reviewed your description and comparison of the types and intensities
of development allowable in the City of Tigard's "Neighborhood Commercial" and "Community
Commercial" zones. I agree with your conclusion that in the situation you have described, the
traffic-generating potential of the Community Commercial zone significantly exceeds the traffic-
generating potential of the Neighborhood Commercial zone.
If you have any questions, or if you require further assistance, please call me.
Sincerely,
110~u 4 bVWV)
Robert Bernstein, P.E.
EXHIBIT_lm)-_
Page !!e_3 of
Pages
•
CITY OF TIGARD, OREGON
NOTICE OF FINAL DECISION - BY CITY COUNCIL (Sec. 16.32.380)
1. Concerning Case Number(s): CPA 1-96 ZC 3-86
2. Name of Owner: Marne Krueger
3. Name of Applicant: Russ Krueger
Addres33515 SW Barbur Blvd. Y-1 City Portland State OR Zip 97201
4. Location of Property-:
Address Between Scholls Ferry Rd. b 135th Ave. Y mile north of Walnut St.
Legal Description IS1 33C lot 1000
5. Nature of Application: To move the present C-N (Commercial -Neighborhood)
designation from the west side of 135th Ave. to a location on the north side
of the Murray Road extension. Approximately 500 feet west of 135th.
6. Action: The Tigard City Council, on 2/24/86, heard the above noted request.
Council upheld the Planning Commission's recommendation for approval of the
request and approved the commercial designation to be located as shown in
Exhibit "B" attached. The configuration of the five acre C-N designation
may be modified to conform with the final alignment of Murray Blvd. A copy
of Ordinance No. 86-12 is attached for your files.
7. Notice: Notice was published in the newspaper, posted at City Hall
and mailed to-
X The applicant 6 owners
X Owners of record within the required distance
The affected Neighborhood Planning Organization
- Affected governmental agencies .
8. Final Dacision-::.
THE DECISION WAS SIGNED ON."2/26/86' AND BECOMES EFFECTIVE ON 3/29/86
The adopted findings of fact, decision,. and statement of condition can be .
obtained from the Planning. Department, Tigard City.--Hall, 12755 SW Ash.
P.O.* Box 23397, Tigard,-Oregon. 97223.
A review of this decision _may be obtairned.by-,filing:a notice of intent
with the Oregon Land Use Board of-:Appeals (LUBA) .according to their
procedures.
you have: any questions - --please .call-' the- Ti and :City.
9. Questions: If
.Recorder at 639-4171;..:,`. ` -
(0257P) reen R. Wilson, Recorder
EXHIBIT 13
Page IL7 of
Pages
•
CITY OF TIGARD, OREGON
ORDINANCE NO. 86-1-L
AN ORDINANCE ADOPTING FINDINGS AND CONCLUSIONS 10 APPROVE A COMPRCHENSIVE 'PLAN
AMENDMENT (CPA 1-86) AND ZONE CHANGE (ZC 3-86) PROPOSED BY MARGE KRUEGER.
WHEREAS, the applicant has requested A Comprehensive Plan Amendment and Zone
Change to shift the existing area coned C-N (Commercial Neighborhood) from the
side of 135th Avenue to a location on the north side of the proposed Murray
Blvd, extension approximately 500 feet west of 135th Ave. (WCTM•ISI 33C, T.L.
1000);
WHEREAS, the Planning commission reviewed the proposal on February 4, 1986 and
recommended approval with a condition that the C-N designation not exceed four
acres in size; and
• WHEREAS, a public hearing was held before City Council on February 24, 1986 to
consider the Commission recommendation.
THE CITY OF TIGARD ORDAINS AS FOLLOWS:
Section 1: The proposal is consistent with all relevant criteria as
discussed in the February 4, 1986 Planning staff report to
Planning Commission (Exhibit "A").
Section Z: The City Council upholds the Planning Commission's recommendation
for approval of the Comprehensive Plan Land Use Map and Zoning
Map Amendment and the commercial designation. will be located as
shown in Exhibit "B". The configuration of the five acre C-N
designation may be modified to conform with the --final alignment
of Murray Blvd.
Section 3: The area presently zoned C-N shall be designated R-25
(Residential, 25 units/acre). .
Section 4: That this ordinance shall be effective on and after the 31st day
after its passage by the Council, and approval by the Mayor.
PASSED: By LAn00.n;rnOLkS vote of all Council members present after
being read by number and title only, this ;L Tk _ day
of : 1986.
Loreen R. Wilson, Deputy Recorder
APPROVED: This day of 1986.
n' Cook, Mayor
(KSL:pm50)
ORDINANCE NO. 86-_1 1 EXHIBIT
Page q
Pagelbf of
Pages
~,.-s. ~--w•* ,y>~,:lN• ate'^.o.oy~eq►7yisc,awe.+ ~7►a~+°Mw..-'-~..y~.~.,R, ..st~r~„~
:;l Af r I,I. vowl r 0 Nl1r, I I 1-M `i • 7
1'1:0RUARY 4, 1986 - 1:30 P.M.
l jGAk0 PLANN[NG 4:0r'tj1SSION
i I:WI 1{1t JUNIOR 111,;11 ,:14001 1.11
1006') S.W. WALNUT
rIGARD. OREGON 97223
A. FACTS
1. General Information
CASE: Comprehensive Plan Amendment CPA 1-86 and Zone- Change ZC 3-86
REQUEST: To move the present area designated C-N (Commercial
Neighborhood) from the (rest side of 135th Avenue to a
location on the north side of the Murray Road extension,
approximately 500 feet west of 135th Avenue.
• COMPREHENSIVE PLAN DESIGNATION: Medium High Density
Residential/Neighborhood Commercial
ZONING DESIGNATION: R-25 (Residential, 25 units/acre) and C-11
(Commercial Neighborhood)
APPLICANT: Russ Krueger OWNER: Marge Krueger
3515 SW Barbur Blvd Rt. 1, Box 792
Suite Y-1 Beaverton, OR 97007
Portland, OR 97201
LOCATION: Between Scholls Ferry Road. and 135th Avenue, approximately
one quarter mile north of Walnut Street (Wash. Co. Tax Map
1S1 33C, Tax Lot 1000).
2. Backaround
The property was annexed to the City on June 12, 1983 and in August,
1983, the City approved a variety of Plan and Zone designations for the
property which included Medium-High Density Residential (R-20), Medium
Density Residential (R-12) and Neighborhood Commercial (C-N). In
February, 1984, the City approved the relocation of the C-N area from
the west side of 135th Avenue to the northwest corner of the proposed
intersection of the Murray Road extension and 135th Avenue (CPA 16-83/ZC
14-83.
In 1985, shift in the location of the C-N zone to the future Murray
Road/Scholls Ferry Road intersection was proposed (CPA 4-85/ZC 4-85).
Because this request was determined to be premature, due to the
unanswered questions related to Murray Road extension, the four acre C-N
designation was reapplied at the original location on the west side of
135th Avenue. It was also agreed that once the alignment of.Murray Road
was determined, the applicant would be entitled to propose yet another
Murray Road location.
ORD.. S6-~ EXHIBITR
fTArr RritO41 - CPA 1--8e, :and 7C 3-Rt, - PAGr I Page 1/-k of
Pages
3. Vicinity tnoatic*M*
Except fur several scaLtered humesites. thin ..ro:- beLween 135th Avenue
.-r-d r,.holis Forry RI-Ad is undr!vnI•rprtd .-,-I or atilt/r.d ten a limited
eattrnt fur agriculture ur is wurided Itre Ir..rr.••I; t.rj the nurth ere being
developed for single family residences (Crilswald Subdivision). The land
surrounding the present and proposed commercial sites is zoned R-25.
a. Site Information
The existing and proposed commercial sites are undeveloped. The
commercial site is intended to be located on the north side of the
Murray Road extension approximately 500 feet west of 135th Avenue. A
specific development plan has not been formulated.
5. Agency and NPO Comments
The Engineering Division has the following comments:
a. Site Development Review approval will be required prior to
development of the property.
b. Sanitary sewerage and storm drainage provisions will be necessary
in conjunction with development.
C. Participation in the improvement of 135th Avenue and Murray Road
will be required as a condition of development.
The Building Inspection Office has no objection to the request.
The City of Beaverton suggests that the affect this proposal could have
upon the future development plans for tax lot 100 to the east be
carefully evaluated.
No other comments have been received.
8. FINDINGS AND CONCLUSIONS
The relevant criteria in this case are Tigard Comprehensive Plan
policies 2.1.1 and 8.1.1 and Chapter 12, Locational Criteria.
The Planning staff concludes that the proposal is consistent with the
relevant portions of Comprehensive Plan based upon the findings noted
below:
1. Plan Policy 2.1.1 is satisfied because the Neighborhood Planning
Organization and surrounding property owners were given notice of
the hearing and an opportunity to comment on the applicant's
proposal.
2. Policy 8.1.1 is satisfied because the proposed relocation of the
• C-N zone will allow for the appropriate alignment of the Murray
Road extension.
EXHIBIT
Page IL,-7 of
STa► r REPORT - CPA 1-86 and ZC 1-86 - PACE 2 Pages
•
lip,
• • 3 l,u f,., 1. fffhr~ltllrlr,
a The site is proFwsed Lo be erfzargeai t•, is .41.f v all sise
rather than thp. 2 afire gutdoIir-.. ,.!t f..rih in lh•• Flan. A 4
acf-l• Sizv was es tab I1sht•d when %I,- Ifr..l.••r 1y w.. ..tmexed Lv
Lhe City in order to be cfonslst•Snt with that Washingtrsn
County Plan which applied prior to the annexation. Since
this expansion represents a further departure from adopted
Plan Policy, the staff recommends that the 4 acre limit be
retained.
b. There are no other commercial properties within on half mile
of the proposed site.
C. The commercial site will be limited to the north side of
Murray Road.
d. No significant traffic impacts are anticipated from this
move. Specific traffic related issues will be addressed
• during the Site Development Review process.
e. The site will have direct access to a collector street.
f. The eventual development of the commercial center will be
evaluated according to the applicable standards in the
Community Development Code. Since the entire area is
undeveloped, establishing a compatible relationship between
uses should not present a problem.
Although it is not necessary to consider specific provisions of the C-N
zone, it should be noted that Section 18.6Q.045 of the code states that
f, no use shall exceed a gross floor area of 4.000 square feet." A
variance must be approved in conjunction with the Site Development
Review process in order for this standard to be exceeded.
C. RECnrnENDATION
Based upon the findings and conclusions noted above, the- Planning staff
recommends approval of CPA 1-86 and ZC 3-86 subject to the following
conditions:
1. The new C-N zone designation shall be no more than 4 acres in size.
a, 4
PREPARED BT: Keith liden APPROVED Br: uilitam'A. Monahan
Senior Planner Director of Planning b
Development
KSL:bs85)
EXHIBIT I
Page )US of
srArr RCVOR1 - CPA 1-86 and zC 3-86 - PACC I Pages
• S` S :.,mac.....
o;
Jf s
o -
/Y"
- JA
r '
EXHIBIT
Page -ILA of
OR D ~'o - /;2,
_Pages
• - ~xti~ b; f C3
14EMORA UM
. . CITY OF TIGARD, OREGON CITYOF.TIGARD
T0: Rat Dorsett, NPO 7 secretary OREGOPI'
FROM: J ~ fer, Development Review Planner
f DATE: October 18, 1991
- SIIBJECT: Albertson's CPA/ZC
::I have received NPO 7's request for additional information with
regard to ATEP's traffic study in support of the Albertson I s.plan
..amendment. I will forward this request to ATEP and Albertson's
representatives so that they may respond to this'request•'at the
hearing on this matter scheduled for November 4, 1991. -At this
late point in the application review process, we cannot consider
the NPO's letter a request to declare the application incomplete;
instead, these matters can only be considered possible deficiencies
with regard to the support for the application. If in fact these
items are deficient, the applicants may wish to further amend their
traffic study in response to the NPO's and others comments prior to-
the Council hearing -on this matter. That hearing is tentatively
set for December 10, 1991.
With regard to the NPO's request for a determination of the current
size of the C-N designation in the northeastern quadrant of the
future Scholls/Hurray intersection, staff agrees that the C-N
designation covers only 5.0 acres of the total 63.38 acres of tax
lot 101. No reconfiguration or expansion of this area has been
approved since the Council's decision for CPA 1-86. The decision
for SUB 90-0004 only allowed creation of a 6.99 acre parcel in the
northeast quadrant of this intersection without approval of an
expansion of the C-N designated portion of this parcel. This
parcel has yet to be created. In the Planning Division's opinion,
this parcel would be a split zoned parcel upon its creation. The
City's zoning map and Comprehensive Plan Map contain several other
split zoned/split Plan designation parcels. An increase in the
size of a parcel through a lot line adjustment or the division of
a split zoned parcel along other than zoning boundaries does not
automatically result in an enlarged Plan designation or zone
designation. The Council's decision for CPA 1-86 only said that
this 5.0 acre area could be reconfigured, not enlarged. We believe
that the Albertson's applicant's statement is in error when it
refers to a 6.99 acre Neighborhood Commercial/C-N parcel on this
site. Staff will ask the City Council to determine a new
configuration for this 5.0 acre C-N area if the Council fails to
• approve the Albertson's application.
c: John Shonkwiler, representative of Albertson's Inc.
Dick Woelck, ATEP Engineering
Ed Mi..rphy, Community Development Director EXHIBIT r 4
Page 12 of
Pages
13125 SW Hall 8lvd„ P.O. Box 23397, Tigard Oregon 97223 (503J 639-4171
a rw+MILIV% Iv A!►I~
-5u b m~tte.c~
-4 b - iI ~
• T'Ow Kie~r,rn"-\
V - -
RECEIVED OCT 7 1991
QY of Deoverton
October 4, 1991
Ed Murphy
Tigard Planning Department
Post Office Box 23397
13123 S.W. Hall Blvd.
Tigard, Oregon 97223
R C°A 91-0003 - 20N 91 06--`-~
Ed:
Thank you for the opportunity to review the above noted request. I concur with
several points that the applicant has made in their presentation about district
size and marketing changes for supermarkets. The only issue that I find is
associated with need. The area is well served by retail sites on both Murray
Boulevard and Scholls Ferry Roads: If approved, the proposal should be limited
in area to the absolute minimum that is necessary to accommodate the proposed
use. This would be consistent with our joint efforts to limit the expansion of
commercial development in the Murray / Scholls corridors.
If you have any questions, please feel free to contact me at 526-2424.
Sincerely,
James N.P. Hendryx
Planning Manager
F2999
EXHIBIT
4755 S.W. Griffith Drive, P.O. Box 4755, Beaverton, OR 97076, General Information: (503) 526-2222 Page ~ I Of
Pages
An fgwrOown m ty Emdom
CERTIFICATE OF FILING
/
I, Catherine Wheatley, hereby certify that on ~ -&vLe c-) D , 1996, I filed the original of this
INDEX AND RECORD in LUBA No. 96-104 with the Land Use Board of Appeals, 250 Winter
Street, NE, State Library Building, Suite 306, Salem, Oregon, 97310 by first-class mail.
DATED: a0 , 1996.
Catherine Wheatley
Tigard City Recorder
•
CERTIFICATE OF SERVICE
I, Catherine Wheatley, hereby certify that on ~Gh1 c~ 1996, I served a true and
correct copy of this INDEX AND RECORD in LUBA No. 96-052 by first class mail on the
following persons:
Terry Mahr, Acting City Attorney
c/o City of Newberg
414 East First Street
Newberg, OR 97132
John Shonkwiler
Attorney at Law
13425 S.W. 72nd Avenue
• Tigard OR 97223
Tim Ramis, City Attorney
City of Tigard
O'Donnell, Ramis, Crew,
Corrigan and Bachrach
1727 NW Hoyt
Portland OR 97209
Jeffrey L. Kleinman
Attorney at Law
1207 S.W. Sixth Avenue
Portland, OR 97204
DATED: ~v , 1996
Catherine Wheatley
Tigard City Recorder
•
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