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LUBA1994-211 - Mitchel Gensman O'DONNELL RAMMIS CREW CORRIGAN & BACHRACH JEFF H. BACHRACH ATrORNEYS AT LAW CLACKAMAS COUNTY OFFICE THEODORE W. BAIRD 1727 N.W. Hoyt sheet 181 N. Grant. Suite 202 PAMELA J. BEERY Portland. Oregon 97209 Canby, Oregon 97013 MARK L BUSCH TELEPHONE. (503) 266-1149 222-4402 DOMWIC G. COLLETTA•• TELEPHONE: (503) at CHARLES E. CORRIGAN• FAX (503) ~a3 2944 STEPHEN F. CREW VANCOUVER WASHINGTON OFFICE GARY F. FIRESTONE* First Independent Place WILLIAM E. GAAR PLFASE RErr.Y TO PORTtAND OFFICE 1220 Main Street. Suite 570 G. FRANK HAMMOND• Vancouver, Washington 98660-2964 MAL.COLM JOHNSON' TELEPHONE (360) 699-7287 MARK P. O'DONNELL FAX (360) 696-2051 TIMOTHY V. RAM1S July 31, 1995 n ~r WILLIAM J. STALNAKER TY K WYMAN MES M. COLEMAN ~r i iSUSAN J. WIDDER 1 C i A U G 19 c: i j SPECIAL ALSO ADMMED TO PRAL11 3IN WASHIN(TON 1 L I { 1 1 ALSO ADMrrrM TO PRAMCE IN CALLFORNIA L.1 William A. Monahan City Administrator 13125 SW Hall Blvd. Tigard, OR 97223 Re: LUBA Cases - Status Dear Bill: Last week LUBA requested an extension for issuing the final order in Gensman v. City of Turd and Marcott Holdings. Inc. v. City of Tigard. I accepted the extension request. The final order for Gensman v. City of Ti ag_rd will be issued on August 10 and the final order for Marcott Holdings, Inc. v. City of Tigard on August 28. If you have any questions regarding these cases, please give me a call. Sincerely, Pamela J. Beery PJB/ach p1b\ech\900'1.4\ca wW". me3 OTONNELL RAMIS CREW CORRIGAN & BACHRACH ATTORNEYS AT LAW 1727 N.W. Hoyt Street Portland, Oregon 97209 TELEPHONE: (503) 222-4402 FAX: (503) 243-2944 DATE: January 16, 1995 TO: Mark Roberts, Planning/Code Enforcement Cathy Wheatley, City Recorder FROM: Pamela J. Beery, City Attorney's Office RE: Gensman v. City of Tigard I am enclosing for your information a copy of the record objection filed by the attorney representing Taco Bell in this case. I will be responding to the record objection and just wanted you to be aware of the status of the case. Please call me if you have any questions. 90024/j Ih/TACOBELL.MM2 o JAN 1 ~a ~iuu - STOE~L 1RIV~`ES BOLEY O'DONNELL RAMIS CREIV JOl V ESVGREY CORRIGAN & BACH;RACH ATTORNEYS AT LAW r~~i9 J SUITE 2300 13 1995 STANDARD INSURANCE CENTER 900 SW FIFTH AVENUE PORTLAND, OREGON 97204-1268 Telephone (503) 224-3380 Telecopier (503) 220-2480. Cable Lawport Telex 703455 Writer's Direct Dial Number (503) 294-9194 January 11, 1995 Ms. Jan Zwenke Office Manager Oregon Land Use Board of Appeals 306 State Library Building 250 Winter Street, NE Salem, OR 97310 Re: Gensman v. City of Tigard, LUBA No. 94-211 Dear Jan: Please find enclosed the original and one copy of an Objection to the Record. Very truly yours, Michael C. Robinson MCR:kmf Enclosures cc (w/encl.): Mr. Mike Randles Mr. Dave Kimmel Ms. Pamela J. Beery Mr. Gregory G. Lupje PDX1-163168.1"72523 0009 PORTLAND, SEATTLE" BELLEVUE. VANCOUVER, BOISE, SALT LAKE CITY, WASHINGTON, OREGON WASHINGTON WASHINGTON WASHINGTON IDAHO UTAH DISTRICT OF COLUMBIA ® py BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON O'DONNELL RAMIS CREW CORRIGAN & BACHRACH MITCHEL GENSMAN, ) JAM 13 1995 Petitioner, V. ) CITY OF TIGARD, ) LUBA NO. 94-211 Respondent, ) and ) TACO BELL,-INC., ) Intervenor-Respondent ) OBJECTION TO THE RECORD I. Intervenor-respondent received the supplemental record on January 2, 1995.. Pursuant to OAR 661-10-026(2), intervenor has until January 12, 1995 to file a record objection. II. Pursuant to OAR 661-10-026(1), intervenor-respondent attempted to resolve the matter with the governing body's legal counsel by telephone on January 3 and 5, 1995. III. Intervenor-respondent objects to Item S-1 at pages S- 1 and S-2 of the supplemental record pursuant to OAR 661-10- 1 - OBJECTION TO THE RECORD PDX1-161856.1 72523 0009 026(2)(b) because the_September 24, 1994 letter from Gregory Lutje was not submitted to the-Tigard Planning-commission and was, therefore, not physically before the Planning Commission for purposes of inclusion in the official record of the proceeding. TV. The letter is not properly part of the record for three reasons. A. The Letter Was Not Submitted to the Planning Commission. Petitioner's attorney wrote the September 24, 1994 letter. However, petitioner's attorney did not submit it to the Planning Commission at its September 26, 1994 meeting. City Planner Mark Roberts had the letter and began to read from it until stopping because of an objection from a member of the audience. (Record ("Rec.") S-3.) Exhibit 1, Affidavit of,. David P. Kimmel. Mr. Roberts did not give the letter to the Planning Commission, either. Id. In fact, Mr. Roberts said that the letter was."not new evidence." Exhibit 2, Partial Transcript of 9/26/94 Tigard Planning Commission Meeting. The conclusion that the letter was not physically before the Planning Commission is logical because otherwise Mr. Roberts would not have needed to read it to the Planning Commission members. Ordinarily, items displayed and discussed by staff are part of the record. See Redland/Viola/Fisher's Mill CPO v. 2 - OBJECTION TO THE RECORD PDX1-161856.1 72523 0009 Clackamas County, 27 Or LUBA 645, 647 (1994). This case does not fit the rule because Mr. Roberts said he was not offering the letter as evidence. (Rec. S-3.) He simply referred to the letter. Referring to a document in testimony does not place it before the decisionmaker. Mannenbach v. City of Dallas,._ 24 Or LUBA 618, 619 (1992). Because the September 24, 1994 letter was not submitted to the Tigard Planning Commission, it was not physically before the Tigard Planning Commission and is, therefore, not part of the record. B. The Planning Commission Expressly Rejected the Letter. Mr. Kimmel objected when Mr. Roberts began to read the letter to the Planning Commission. Exhibits 1 and 2. Mr. Roberts then stopped reading and said that the letter was "not new evidence. [The letter] is merely information concerning the process. . . " Planning Commission Chairman Milt Fyre then stated: "So we disregard." Exhibit 2. Mr. Roberts said: "So the City Attorney's recommending that we disregard that and deliberate and hopefully reach a decision tonight on the appeal." Id. Petitioner's attorney did not respond to Mr. Kimmel's objection nor did he object when Mr. Fyre said: "So we disregard." Mr. Fyre's statement is an express rejection of the letter, so it is not part of the record. See Bloomer v. Baker 3 - OBJECTION TO THE RECORD PDX1-161856.1 72523 0009 County, 19 Or LUBA 482, 484 (1990). The Planning Commission's rejection of the letter was uncontested. C. The Letter Was Not Submitted in the Manner Required by the Tigard Community Development Code. Tigard Community Development Code ("TCDC") 18.32.200(A) provides that "[a]ll evidence offered and not objected to may be received unless excluded by the approval authority on its own motion.". TCDC 18.32.230(C)(1) provides as follows: "The official record shall include: 111. All materials, pleadings, memoranda, stipulations and motions submitted by any party to the proceeding and recorded or considered by the approval authority as evidence;" TCDC 18.32.200(A) and .230(C)(1) mean that the September'24, 1994 letter is not part of the record for three reasons. First, no party submitted the letter.' Mr. Roberts did not offer the letter as evidence. Exhibit 2; see also Rec. S-3. Second,. the September 24, 1994 letter was not "recorded or considered by the approval authority as evidence." Nothing in the record indicates that-the Planning Commission recorded or considered the letter. Because Mr. Roberts did not submit the letter as evidence to the-approval authority, it cannot be part of the official record pursuant to TCDC 18.32.230(C)(1).1 1TCDC 18.32.230(C)(6) provides that the official record also includes all correspondence. However, correspondence must (continued...) 4 - OBJECTION TO THE RECORD PDX1-161856.1 72523 0009 Third, Mr. Kimmel objected to the record and the Planning Commission excluded the letter. LUBA has consistently held that whether an item is part of the record is determined by the local government's rules or customs for placing an item before the decisionmaker. See Blatt v. City of Portland, 20 Or LUBA 5721 (1991) (item not in record even if in possession of staff before the decisionmaker if document not submitted according to custom). In this case, TCDC 18.32.200(A) and .230(C)(1) specify what the official record shall include and how documents are to be submitted in order to be included in the record. The TCDC requires that for a document to be part of the official record, it (1) must be submitted by any party to the proceeding, (2) must not be objected to, and (3) must be either recorded or considered by the approval authority as evidence. Because no party to the proceeding submitted the letter to the Planning Commission, it was objected to, the letter was neither recorded nor considered as evidence and the 1(.... continued) still be submitted as required by TCDC 18.32.230(C)(1) for all materials. 5 - OBJECTION TO THE RECORD PDX1-161856.1 72523 0009 Planning Commission rejected it, the letter is not part of the c official record. DATED: January 11, 1995. STOEL RIVES BOLEY JONES & GREY giu e" U"~' Michael C. Robinson, OSB No. 91090 Of Attorneys for Intervenor-Respondent 6 - OBJECTION TO THE RECORD PDX1-161856.1 72523 0009 BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON MITCHEL GENSMAN, ) Petitioner, ) V. ) CITY OF TIGARD, ) LUBA NO. 94-211 Respondent, ) and ) TACO BELL, INC., ) Intervenor-Respondent ) AFFIDAVIT OF DAVID P. KIMMEL STATE OF OREGON ) ss. County of Multnomah ) I, DAVID P. KIMMEL, do hereby state: 1. I am a representative of Taco Bell, Inc. and was present at the September 26, 1994 Tigard Planning Commission hearing. 2. I did not observe Attorney Gregory.Lutje give his September 24, 1994 letter to the Tigard Planning Commission members while I was in the meeting room. 3. I did not observe City Planner Mark Roberts distribute the September 24, 1994 letter to the members of the Tigard Planning Commission while I was in the meeting room. I PDX1-161865.1 72523 0009 EXHIBIT 1 did hear Mr. Roberts begin to read the letter to the Planning commission members. However, Mr. Roberts stopped when I objected to the letter. 4. Mr.'Roberts did not submit the letter to the Planning Commission after I objected to it. DAVID P. KI-,-U-ffL SUBSCRIBED AND SWORN to before me this day of January, 1995. OFFlCIAL SEAL DEBORAH L McFALL NOTARY PUBEGON Nip N ary Public for Oregon htYC lMIS8*NWMRESAPR.2]IOMM my commission expires: 2 - AFFIDAVIT OF DAVID P. KIMMEL PDX1-161865.1 72523 0009 TRANSCRIPTION OF PORTION OF 9/26/94 TIGARD PLANNING COMMISSION MEETING FYRE: You stated your opinion. Let's go on with the staff, unless you have another question. Okay. ROBERTS: I'd like to also read additional information submitted by the applicant's attorney today, summarize it. The attorney is saying that the documents or evidence relied by the applicant must be submitted to the City and available to the public at.least 20 days prior.to evidentiary hearing, that any party is entitled to a continuance of the hearing if additional documents or evidence is provided on support of the application after the 20-day cut-off period. I think that Mr. Robinson's materials were supplied seven days after the hearing. KIMMEL: Mr. Fyre, I have to object if that's from the appellants. They're not allowed to submit additional information at this point. If that's from ours, we followed the. rules and I have to object, even though that's against the rules, because that's not allowed information at this point in time. ROBERT: What we're saying, though, is this is not new evidence. This is merely information concerning the process. The City Attorney has opined that this continuance is not applicable in this instance basically because the public hearing part of the meeting last time was continued for a specific period of time, a specific period of time was allowed for applicant's response to any new materials that were submitted. FYRE: So we disregard. ROBERTS: So the City Attorney's recommending that we disregard that and deliberate and hopefully reach a decision tonight on the appeal. BEWERSDORFF: One thing that you need to do since you haven't had the opportunity to look through the applicant's rebuttal which he requested the opportunity to rebut and you granted that for the continuance. It should take probably 15 minutes to read through that information so have--Mark summarized somewhat what it is--but PDX1-161783.1 72523 0009 Exhibit 2 TRANSCRIPTION OF PORTION OF 9/26/94 TIGARD PLANNING COMMISSION MEETING FYRE: You stated your opinion. Let's go on with the staff, unless you have another question. Okay. ROBERTS: I'd like to also read additional information submitted by the applicant's attorney today, summarize it. The attorney is saying that the documents or evidence relied by the applicant must be submitted to the City and available to the public at.least 20 days prior to evidentiary hearing, that any party is entitled to a continuance of the hearing if additional documents or evidence is provided on support of the application after the 20-day cut-off period. I think that Mr. Robinson's materials were supplied seven days after the hearing. KIMMEL: Mr. Fyre, I have to object if that's from the appellants. They're not allowed to submit additional information at this point. If that's from ours, we followed the. rules and I have to object, even though that's against the rules, because that's not allowed information at this point in time. ROBERT: What we're saying, though, is this is not new evidence. This is merely information concerning the process. The City Attorney has opined that this continuance is not applicable in this instance basically because the public hearing part of the meeting last time was continued for a specific period of time, a specific period of time was allowed for-applicant's response to any new materials that were submitted. FYRE: So we disregard. ROBERTS: So the City Attorney's recommending that we disregard that and deliberate and hopefully reach a decision tonight on the appeal. BEWERSDORFF: One thing that you need to do since you haven't had the opportunity to look-through the applicant's rebuttal which he requested the opportunity to rebut and you granted that for the continuance. It should take probably 15 minutes to read through that information so have--Mark summarized somewhat what it is--but PDX1-161783.1 72523 0009 Exhibit 2 did hear Mr. Roberts begin to read the letter to the Planning commission members. However, Mr. Roberts stopped when I objected to the letter. 4. Mr. Roberts did not submit the letter to the Planning Commission after I objected to it. DAVID P. KIII-R-Ift AND SWORN to before me this day of January, 1995. OFFICIAL SEAL DEBORAH L WFALL NOTARY PMUCOREGON COMMI8SIONNO.034M N ary Public for Oregon My COMMISSION E)MRESAPA.24.1M My commission expires: 2 - AFFIDAVIT OF DAVID P. KIMMEL PDX1-161865.1 72523 0009 you need to understand, fully understand what that ROBERTS: Okay. We'll take 15 minutes or however long it takes. Let me know on your, if you finish before 15 minutes. You're done. You already read it. No, I'll go back and read it. question. FYRE: both the applicant and appellant and that was in your packet the response from the ROBERTS: To the, right. BEWERSDORFF: read all the rest of it at this next steps and need to become familiar with it. It takes more than 15 minutes to read. Take.your time. [LONG SILENCE] ROBERTS: Okay. We've all ready it. Are you ready? [INAUDIBLE] BEWERSDORFF: Staff? [LAUGHTER; INAUDIBLE] BEWERSDORFF: I think so. If you have questions, we'll try, we'll be happy to . . . ROBERTS: Any questions at staff? Any comments on the new material? FYRE: Since I wasn't here for the other discussion, I feela little bit confused here, but,. if I'.m looking at that picture that's up on the wall, the access, the 14-foot access runs along the right-hand side of the building that's on the, to the right of the E, where it says "site," and it goes all the way up to where the two black lines go parallel across. Up to there. Okay, now, there's a street that comes down from the top of the picture to the two black lines. Okay, is that the 40-foot right-of-way? [INAUDIBLE] PDX1-161783.1 72523 0009 2 KIMMEL ( : Yes. [INAUDIBLE] FYRE: Okay. And the . . . [INAUDIBLE] FYRE: Okay. And the two, the black lines going horizontally across there are supposed to be an illustration of what could be done to provide access? [INAUDIBLE] ROBERTS: Just to point out, for your information, the appellant doesn't own the corner. He would have to purchase a corner of the property where the bend is. He doesn't own that property. He would have to buy that from the adjacent land owner. That's not dedicated street. FYRE: Oh. It just goes down to the upper . . . PDX1-161783.1 72523 0009 3 CERTIFICATE OF FILING I hereby certify that on January 11,'1994, I filed the original of this OBJECTION TO THE RECORD, together with one true copy, to the Land Board Use of Appeals, 306 State Library Building, 250 Winter Street Northeast, Salem, OR 97310, by first-class mail. DATED: January 11, 1994. STOEL RIVES BOLEY JONES & GREY Michael C. Robinson, OSB No. 91090 Of Attorneys for Intervenor-Respondent CERTIFICATE OF FILING PDX1-161856.1 72523 0009 CERTIFICATE OF SERVICE I hereby certify that on January 11, 1995, I served a true and correct copy of this OBJECTION TO THE RECORD by first- class mail on the following persons: Gregory G. Lutje 400 Lincoln Center Tower Portland, OR 97223-5575 Pamela J. Beery O'Donnell, Ramis, Crew, Corrigan & Bachrach 1727 NW Hoyt Street Portland, OR 97209 DATED: January 11, 1995. STOEL RIVES BOLEY JONES & GREY MIJ lam' UL Michael C. Robinson, OSB No. 91090 Of Attorneys for Intervenor-Respondent CERTIFICATE OF SERVICE PDX1-161856.1 72523 0009 O'DONNELL RAMIS CREW + CORRIGAN & BACHRACH JEFF H. BACHRACH ATTORNEYSAT LAW CLACKAMATOUNTYOFFICE THEODORE W. BAIRD 1727 N.W. Hoyt Street 181 N. Grant, Suite 202 PAMELAJ. BEERY Portland, Oregon 97209 Canby, Oregon 97013 MARK L. BUSCH (503) 266-1149 - DOMINIC G. COLLETTA•+ TELEPHONE: (503) 222 4402 CHARLESE..CORRIGAN+. . FAX: (503) 243-2944' ' STEPHEN F. CREW - GARYFIRESTONE - <PLEASEREPLYTO PORTLANDOFFICE VANCOUVER,WASHINGTONOFFICE G. FRANKHAMMOND• MALCOLME. JOHNSON MALCOLME. JOHNSON* First Independent Place MARK P. O'DONNELL 1220 Main Street, Suite 570 TIMOTHY V. RAMIS Vancouver, Washington 98660-2964 WILLIAMJ. STALNAKER January 11, 1995 (206) 699-7287 TY K. WYMAN FAX:(206) 696-2051 JAMES M. COLEMAN • ALSO ADWIMM M PRACnCEIN WASFONOTON 4ml Cool AMOT1EDTO PRAcncmP CAUPOMAONLY Michael Robinson, Esq. VIA FAX AND MAIL Stoel Rives Boley Jones & Gray suite 2300 900 SW Fifth Avenue Portland, OR 97204 Re: Gensman v. City of Tigard, LUBA No. 94-211 Dear Mike: This-"is in response to our numerous telephone conversations "..regarding the record in"this matter.. You are considering filing a-record objection to seek removal of the letter from Greg"Lutje dated September 24, 1994 from the.record. Following is my position on the letter. For the reasons below'. I do believe that the letter is properly part of the record as it was placed before the Tigard Planning Commission and thus. meets LUBA's requirements for inclusion in the record. I have discussed this matter extensively with Mark Roberts who, in turn, has discussed it with Dick Bewersdorff and other staff who were at the Planning Commission hearing on the night that the letter was considered. Though individual copies of the letter were not handed to the Planning Commission members, the letter was in the hearing room, was paraphrased and read from by the City staff to the Commission during the hearing, and thus I believe was placed before them for their consideration. You described a portion of a transcript of the proceeding in which the chairperson noted that the Commission was "disregarding" the letter. I have not yet seen this transcript, of course. My position is that the transcript is not part of the record, at least at this point. In any case, Mr. Fyre's comment about disregarding the request for continuance is very different than rejecting the letter for record purposes. Mr. Fyre's comment was based on advice from the staff and from me, and was in response to Mr. Lutje's procedural request and not to new evidence contained in his letter. O'DONNELL RAMIS CREW CORRIGAN & BACHRACH Michael Robinson, Esq. January 11, 1995 Page 2 The decision to disregard the request for a continuance does not amount to rejection of evidence for record purposes. I wanted the City's position to be clear and I understand that you will take whatever steps you believe are appropriate. Please call me if you have any questions. Sincerely, Pamela J. Beery PJB/jh Enclosure cc: Mark Roberts Cathy Wheatley Greg Lutje 90024/j(h/ROBINSON.LT3 O'DONNELL RAMIS CREW CORRIGAN & BACHRACH JEFF H. BACHRACH ATTORNEYS AT LAW CLACKAMAS COUNTY OFFICE THEODORE W. BAIRD 1727 N.W. Hoyt Street 181 N. Grano Suite 202 PAMELA J. BEERY Portland, Oregon 97209 Canby, Oregon 97013 MARK L. BUSCH (S03) 266-1149 DOMINIC G. COII.ETPA** TELEPHONE: (503) 222-4402 CHARLES E. CORRIGAN* FAX: (503) 243-2944 STEPHEN F. CREW GARY FIRESl)ONE PLEASE REPLY TO PORTLAND OFFICE VANCOUVER, WASHINGTON OFFICE G. FRANK HAMMOND* MALCOLM E. JOHNSON MALCOLM E. JOHNSON* First Independent Place MARK P. O'DONNELL 1220 Main Street, Suite S70 TIMOTHY V. RAMIS Vancouver, Washington 98660-2964 WILLIAM J. STAINAKER (206) 699-7287 TYKWYMAN January 23, 1995 FAX:(206) 696-2051 JAMES M. COLEMAN • ALSO ADM= TO PRACnCE W WASHINGTON SPeda1 Comud ADMn*MD TO PRACTICE IN CALIPORNU ONLY Ms. Jan Zwenke 7JAN Land Use Board of Appeals 306 State Library Building 250 winter Street, NE 1995 Ite Salem, OR. 97310 ,f Re: Gensman v. City of Tigard, LUBA No. 94-211 Dear Jan: Enclosed is an original and one copy of a Response to Record Objection. If you have any questions regarding these documents, please call. Sincerely, Pamela J. Beer PJB/ach Enclosures cc: (w/ encl.): Mr. Michael C. Robinson Mr. Greg Lutje Ms. Cathy Wheatley Mr. Mark Roberts I CE". i THAT THIS IS A TRUE COPY OF rHE 0-.10 ND OF THE WHOLE THEREOF C' Attorr,w3 For 1 BEFORE THE LAND USE BOARD OF APPEALS 2 OF THE STATE OF OREGON 3 MITCHEL GENSMAN, ) 4 Petitioner, ) 5 v. ) 6 CITY OF TIGARD, ) LUBA NO. 94-211 7 Respondent, ) RESPONSE TO RECORD OBJECTION 8 and ) 9 TACO BELL, INC., 10 Intervenor-Respondent. ) 11 12 I. Summary of Arguments 13 In dispute in the record objection filed by intervenor Taco 14 Bell in this case is one item - a September 24, 1994 letter from 15 counsel for the petitioner to the Tigard Planning Commission 16 (Supplemental Record at 1). Intervenor suggests three bases for 17 its position that this document should be excluded from the record 18 herein. 19 Respondent submits that the letter in question is properly 20 included in the record under the standard established by this Board 21 in numerous cases: the letter was placed before the Tigard Planning 22 Commission. 23 Intervenor does not dispute that the letter was in the hearing 24 room on the night of the Planning Commission hearing; that the City 25 staff read from and paraphrased the letter for the Commission; that 26 the Commission considered the contents of the letter but rejected ODONNM RAMIS CREW COMCiAN & BACHRACH 1727 N.W. Hoyt Street Page 1 - RESPONSE TO OBJECTION TO THE RECORD Tdep~6ooe: (500) 2922402 FAX: (500) 2432944 I the procedural argument contained therein. Though there is no 2 documentation that the letter was photocopied and distributed to 3 the individual Planning Commission members, everything short of 4 that was done and the full Commission considered the contents of 5 the letter during their public hearing, as documented by the 6 minutes (R51) and by the transcript prepared by counsel for the 7 intervenor (Exhibit 2, page 1). 8 Intervenor's record objection should be denied. 9 10 II. Points and Authorities 11 For ease of reference, respondent will conform this response 12 to the three points raised by intervenor. 13 A. Physical "Submission" of the document is not required 14 OAR 661-10-025(1) (b) is the requirement that the record 15 include "All written testimony and all exhibits, maps, documents 16 or other written materials included as part of the record during 17 the course of the governing body's proceeding." In almost 18 countless cases interpreting this requirement, this Board has 19 always held that to meet the requirement for inclusion in the 20 record, the item in question must have been "placed before" the 21 decisionmaker below, and not specifically rejected. Bloomer v. 22 Baker County, 19 Or LUBA 482 (1990) ; McCrary v. City of Talent, _ 23 Or LUBA _ (LUBA No. 94-156, Order on Record Objection November 7, 24 1994). Though respondent is aware of no case precisely factually 25 on point with this one, it would be absurd to require physical 26 distribution of each item where, as here, the item in question was ovoMM-M YAMIS CREW oO32 GAN & BACHRACH 1727 N.W. Hoyt S- Page 2 - RESPONSE TO OBJECTION TO THE RECORD r ~(SM) FAX: (503) 1432944 I clearly read from, paraphrased, discussed and considered by the 2 Planning Commission during its public hearing on this application. 3 This is especially true since, as intervenor points out, the Board 4 has not yet required that the decisionmakers read each item to be 5 included in the record. 6 Further, as also noted by intervenor, items displayed and 7 discussed by staff are part of the record. In 8 Redland/Viola) Fisher's Mill CPO v. Clackamas County, 27 Or LUBA 9 645, 646 (1994), LUBA held that maps on the wall in the hearing 10 room which were discussed by staff were part of the record. 11 This case is distinguishable from Mannenbach v. City of Dallas 12 cited by intervenor. Mannenbach simply stands for the well 13 established principle that items merely referred to in record 14 documents do not thereby get "bootstrapped" into the record. The 15 transcript here reflects that the letter in question was read from 16 and paraphrased by staff and was specifically discussed by the 17 Planning Commission during its public hearing. As such, respondent 18 contends it was "placed before" the Commission as required by the 19 board's consistent holdings on this topic. 20 B. The letter was not rejected; the position taken in the letter 21 was. 22 It should be obvious to the Board from the transcript offered 23 by the intervenor and from the Planning Commission minutes at R 51 24 that the Commission, on advice from the undersigned, rejected the 25 procedural claim contained--in the letter; that is very different 26 from rejecting the document itself. The minutes do not reflect OMONNBI.L RAMIS CREW CORRIGAN & BACMUM 1727 N.W. Hoyt Str«t Page 3 - RESPONSE TO OBJECTION TO THE RECORD T z FAX: (500) 2432944 1 that the letter itself was rejected. On this point, the Board has 2 held that the local government must make it clear that it rejects 3 the evidence in question in order to refuse items submitted at 4 local hearings. Bloomer, 19 Or LUBA at 483 and 484. 5 C. The Tigard Community Development Code does not require a 6 different result. 7 Intervenor's final argument is. that the letter was not 8 "submitted" or "considered" and was "objected to" as contemplated 9 in the Tigard Community Development Code, sections 18.32.200(A) and 10 18.32.230(C) (1) (full copies attached hereto for reference). As 11 already described above, the letter in question was mailed to the 12 Tigard Planning Commission by counsel for petitioner. City staff 13 brought it to the hearing. The Commission members considered it 14 and discussed its specific contents during the hearing. 15 The Tigard Community Development Code (TCDC) does not require 16 any particular means of "submittal" of evidence in land use 17 hearings. It is clear from the minutes and transcript submitted 18 by intervenor that the Commission "considered" the letter before 19 rejecting the position argued for therein. The TCDC does not 20 contemplate that merely by objecting to a piece of evidence, a 21 party can keep it out of the record; parallel to LUBA's holdings, 22 the TCDC provides that all evidence shall be received "unless 23 excluded by the approval authority on its own motion" (TCDC section 24 18.32.200(A)). This case is distinguishable from the Board's 25 ruling in Blatt v. City of Portland cited by intervenor. Tigard's 26 development code contains no specific requirement for submission OMONNEU. RAMIE CREW CORMAN & EACHRACH 1727 N.W. Hoyt Suva Page 4 - RESPONSE TO OBJECTION TO THE RECORD Td~e FAX: ($M) 2432944 1 of evidence nor does any party contend that any customary 2 submission method was not followed here. 3 4 III. Conclusion 5 The letter in question is properly before LUBA as part of the 6 record. Intervenor's record objection should be denied. 7 By : /,eE~ , Pamela J. eery,, SB No. 80161 8 Of Attorneys for Respondent 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 OMONNM RAMIS CREW CDMO" & BACHRACH 17V N.W. Hoyt Street Page 5 - RESPONSE TO OBJECTION TO THE RECORD T mz FAX: (503) 2432944 X8.32.180 Continuation of the Hearing A. An approval authority may continue the hearing from time to time to gather additional evidence, to consider the application fully or to give notice to additional persons. B. Unless otherwise provided by the approval authority, no additional notice need be given of the continued hearing if the matter is continued to a date, time, and place certain. (ord. 89-06; Ord. 83-52) 18.32.190 Subpoena or Deposition of witnesses A. Any party to an appeal or petition for review who wishes to subpoena or depose witnesses may do so by application to the Director not less than seven days prior to the hearing and a showing that the witness resides in Oregon, is unable or unwilling to appear and the testimony is material and relevant. B. Upon approval by the Director, application for subpoenas or depositions shall be made after proper completion and payment of those fees applicable to civil cases, to the Washington county circuit court. (Ord. 89-06; ord. 83-52) 18.32.200 Evidence A. All evidence offered and not objected to may be received unless excluded by the approval authority on its own motion. B. Evidence received at any hearing shall be of a quality that reasonable persons rely upon in the conducting of their everyday affairs. C. No person shall present irrelevant, immaterial, or unduly repetitious testimony or evidence. D. Evidence shall be received and notice may be taken of those facts in a manner similar to that provided for in contested cases before state administrative agencies pursuant to Oregon Revised Statute 183.450, except as otherwise provided for in this title. E. Formal rules of evidence, as used in courts of law, shall not apply. (Ord. 89-06; Ord. 83-52) 18.32.210 Judicial Notice A. The approval authority may take notice of the following: 1. All facts which are judicially noticeable. Such noticed facts shall be stated and made part of the record; Revised 1/71/91 Page 63 18.32.230 Record of Proceeding for Public Hearings A. A verbatim record of the proceeding shall be made by stenographic or mechanical means, and: \1 1. It shall not be necessary to transcribe testimony except as provided for in Subsection 18.32.330.A; and 2. The minutes or transcript of testimony, or other evidence of the proceedings, shall be part of the record. B. All exhibits received shall be marked so as to provide identification upon review. C. The official record shall include: 1. All materials, pleadings, memoranda, stipulations and motions submitted by any party to the proceeding and recorded or considered by the approval authority as evidence; 2. All materials submitted by the Director to the approval authority with respect to the application including'-in the case of an appeal taken pursuant to Subsection 18.32.290.A the record of the Director's decision as provided by Section7'18.32.110; 3. The transcript of the hearing, if requested by the Council or a party, or the minutes of the hearing, or other evidence of the proceedings before the approval authority; 4. The written findings, conclusions, decision and, if any, conditions of approval of the approval authority; 5. Argument by the parties or their legal representatives permitted pursuant to Section 18.32.320 at the time of review before the Council; 6. All correspondence relating to the application; and 7. A copy of the notice .which was given as provided by Section 18.32.130, accompanying affidavits and list of persons who were sent mailed notice. (Ord. 89-06; Ord. 83-52) Revised 1/71/91 Page 65 1 CERTIFICATE OF SERVICE 2 I hereby certify that on January 23, 1995, I served a true 3 and correct copy of this RESPONSE TO OBJECTION TO THE RECORD on 4 Michael C. Robinson, Suite 2300, Standard Insurance Center, 900 SW 5 5th Ave., Portland, OR 97204-1268, of attorneys for Intervenor- 6 Respondent and Greg Lutje, 400 Lincoln Center Tower, Portland, OR 7 97223-5575, Attorney for Petitioner, by first class mail. 8 DATED this 23rd day of January, 1995. 9 10 Q U/ 11 Pamela J. B ry, O B No. 80161 Of Attorneys for Respondent 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 o'DONNnL RAMIS cxtv CORRIGAN & BACHRACH lm N.W. Hoyt Stmt Page 6 - RESPONSE TO OBJECTION TO THE RECORD r (50)= FAX- (503) 7432944 1 CERTIFICATE OF FILING 2 I hereby certify that on January 23, 1995, I filed the 3 original of this RESPONSE TO RECORD OBJECTION, together with one 4 true copy, to the Land Use Board of Appeals, 306 State Library 5 Building, 250 Winter Street N.E., Salem, OR. 97310, by first-class 6. mail. 7 DATED this 23rd day of January, 1995. 8 9 ~ 10 Pamela J. eery, RB No. 80161 Of Attorneys for Respondent 11 12 13 pj b\ach\90024\cacobell.mo2 14 15 16 17 18 19 20 21 22 23 24 25 26 ODONNEU RAMIS CREW CORRIGAN & BACHRACH 1717 N.W. Hays Street Page 7 - RESPONSE TO OBJECTION TO THE RECORD r ~ cO(503) 2224402 FAX: (503) 1432944 O'DONNELL RAMIS CREW CORRIGAN & BACHRACH JEFF H. BACHRACH ATTORNEYS AT LAW CLACKAMASVOUNTYOFFICE THEODORE W. BAIRD 1727 N.W. Hoyt Street 181 N. Grant, Suite 202 PAMELAJ. BEERY Portland, Oregon 97209 Canby, Oregon 97013 _ MARK L. BUSCH (503) 266-1149 DOMINIC G. COLT MA** TELEPHONE: (503) 2224402 CHARLESE. CORRIGAN* FAX:(503) 243-2944 STEPHEN F. CREW GARY FIRESTONE PLEASEREPLYTO PORTLANDOFFICE VANCOUVERWASHINGTON OFFICE G. FRANKHAMMOND* MALCOLME. JOHNSON MALCOLME. JOHNSON* First Independent Place WILLIAMA. MONAHAN 1220 Main Street, Suite 510 MARKP.O'DONNELL Vancouver, Washington 98660-2964 TIMOTHY V.RAMIS December 19, 1994 (206) 699-7287 WILLIAMJ. STALNAKER FAX: (206) 696-2051 TY K. WYMAN JAMES M. COLEMAN ALSO ADNUTMD70 PRACnCE1N WASHINO7'ON V..w Caved ADWnMDPO PRACnCE1N CAUFORMAONLY Lanof Appeals 306 ary Building Ms. \WinteStreet, er 250 N.E. Sal10 Re: Gensman V. City of Tigard, LUBA No. 94-211 Dear Ms. Turner: Through mutual agreement the parties in the above referenced matter have agreed that the record be supplemented pursuant to OAR 661- 10-025(5). A supplemental record will follow in due course. Sincerely, Pamela J Beer. PJB/ach cc: Gregory G. Lutje Michael C. Robinson Mark Roberts,.Tigard Plannin Cathy Wheatley, City Recorderr~, OTONNELL RAMIS CREW CORRIGAN & BACHRACH ATTORNEYS AT LAW 1727 N.W. Hoyt Street Portland, Oregon 97209 TELEPHONE: (503) 2 A402 FAX: (503) 243-2944 DATE: November 4, 1994 TO: William A. Monahan, Interim City Administrator Cathy Wheatley, City Recorder FROM: Pamela J. Beery, City Attorney's Offic O RE: Gensman v. City of Tigard Bad news. Mitchell Gensman is appealing the Taco Bell decision; a copy of the Notice of Intent to Appeal is enclosed. The record is due twenty-one days from November 2, 1994, or on November 23. 1994. If you need any assistance in the preparation of the record, please do not hesitate to give me a call. I'd be happy to help in any way I can. I have confirmed with the Taco Bell attorney, Michael Robinson, that Taco Bell does, in fact, intend to intervene in this matter and will carry the great weight of the defense. However, one of the defenses he intends to assert, probably by cross- petition, is that the City erred in its procedural handling of this matter in that it gave Mr. Gensman too long to pursue local remedies. Depending on how this cross-petition is framed, it is an issue that we may want to participate in at LUBA and I just wanted you to be aware of that possibility from the outset. This is especially true in view of our recent code interpretation that appeals of this type of site development review approval will not ultimately go to the City Council. Please let me know if you have any questions. cc: Dick Bewersdorff Enclosure 90024/j Ih/MONAHAN.MM2 i~/-7 , ' - PY NRUkC? 2 RECEIVED 3 NOV 0 3M4 4 0'D0\!,11L Wrs =v 5 6 7 8 9 10 BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON 11 12 MITCHELL GENSMAN, LUBA No. 13 Petitioner, 14 v. 15 CITY OF TIGARD, 16 Respondent. 17 18 NOTICE OF INTENT TO APPEAL 19 I. 20 Notice is hereby given that Petitioner intends to appeal 21 that land use decision of Respondent entitled FINAL ORDER NO. 94- 22 06 PC, SITE DEVELOPMENT REVIEW SDR 94-0003 LOT LINE ADJUSTMENT MIS 23 94-0007 PDG/CORBIN/TYSON, which was executed by the Planning 24 Commission President on October 11, 1994, was mailed by Respondent 25 on October 12, 1994, which became final on October 24, 1994, and 26 which involves the creation of. a Taco Bell Restaurant on the 1 NOTICE OF.INTENT TO APPEAL GREGORY G. LUTJE ATTORNEY AT LAW 400 Lincoln Center Tower • Pordand, Oregon 97223-3375 (503) 293-8347 0 FAX (503) 293-3559 1 subject property located at 11631 and 11635 SW Pacific Highway 2 (WCTM 1S1 36DB, tax lots 700 & 600), City of Tigard, Oregon. 3 II. 4 Petitioner, Mitchell Gensman, is represented by Gregory 5 G. Lutje, Attorney at Law, 400 Lincoln Center Tower, Portland, 6 Oregon 97223-5575, 503/293-8347. 7 Respondent, City of Tigard, has as its mailing address 8 and telephone number: Tigard City Hall, 13125 SW Hall Blvd., 9 Tigard, OR 97223, 503/639-4171, and has, as its legal counsel, 10 Pamela J. Beery, O'Donnell, Ramis et al., 1727 NW Hoyt St., 11 Portland, OR 97209, 503/222-4402. 12 III. 13 Other persons. mailed written notice of the land use 14 decision by the City of Tigard, as indicated in the records of this 15 matter, include: David Kimmel & Jennifer Brion, Planning Design 16 Group, 122 SE 27th Avenue, Portland, OR 97214; Grover Corbin, 4680 17 SW Dogwood Drive, Lake Oswego, OR 97035; Tyson/Larson, 23275 NW 18 Dorland Road, Hillsboro, OR 97124; Michael C. Robinson, Stoel Rives 19 et al., 900 SW 5th Ave., Suite 2300, Portland, OR 97204; Jeffrey 20 Cheyne, Myatt & Bell, 4240 SW Cedar Hills Blvd., Beaverton, OR 21 97005; Ken Watts, P.O. Box 23095, Tigard, OR 97281; Mike Randles, 22 Taco Bell, 597 Industry Drive, Tukwila, WA 98188; Steven Beatty, 23 7702 SW 45th 12, Portland, OR 97219; and Calvin Williams, 14824 SW 24 Old Scholls Ferry Road #5201, Beaverton, OR 97007. 25 Anyone, other than Respondent City of Tigard, who desires 26 to participate as a party in this case before the Land Use Board of 2 - NOTICE OF INTENT TO APPEAL GREGORY G. LUTJE • ATTORNEY AT LAW 400 Lincoln Center Tower • Portland, Oregon 97213-5573 (503) 293-8347 0 FAX (503) 293-3559 1 Appeals must file with the Board•a Motion to Intervene as required 2 by OAR 661-10-050. 3 DATED this 2nd day of November, 1994. 4 Gregory G. Lutje Gregory G. Lutje, OSB #89295 5 Attorney for Petitioner 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3 - NOTICE OF-INTENT TO APPEAL GREGORY G. LUTJE ATTORNEY AT LAW 400 Lincoln Curler Tower • Portland, Oregon 97223-5575 (503) 293-8347 0 FAX (503) 293-3559 1 ' CERTIFICATE OF SERVICE I hereby certify that on November 2, 1994, I served a 3 true and correct copy of this Notice-of Intent to Appeal on all 4 persons listed in Paragraphs II and III of this Notice pursuant to 5 OAR-661-10-015(2) by first class mail. 6 DATED this 2nd day of November, 1994. 7 8 Gregory G. Lutje 9 Gregory G. Lutje, OSB #89295 Attorney for Petitioner 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CERTIFICATE OF SERVICE GREGORY G. LUTJE • ATTORNEY AT LAW 400 Lincoln Center Tower * Portland, Oregon 9 72 23-55 75 (503) 293-8347 • FAX (503) 293-3559 w RECEIVED NOV 0 41994 O T O N ~ + . i L„c; C 7 7 W L A N D U S E BOARD OF November 3, 1994 APPEALS Pamela J. Beery Tigard City Attorney O'Donnell, Ramis, et al 1727 NW Hoyt Street Portland, OR 97209 RE: Gensman v. Tigard LUBA No. 94-211 Dear Ms. Beery: This is to advise you that a Notice of Intent to Appeal was filed on November 2, 1994, 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 decision being appealed. The record is to be prepared by 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 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 Greg Wolf at the Department of Land Conservation and Development, telephone 373-0062. Very truly yours, .Jan Zwemke Office Manager cc: Gregory G. Lutje Enclosure 306 State Library Bldg. 250 Winter Street NE Salem, OR 97310 (503) 373-1265 (Voice/Tdd) LAND USE BOARD OF APPEALS - - - RECORD" SPECIFICATIONS OAR,-- 661-10-025.(4) - - " The record submitted to LUBA; and.any supplement, 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 [-.J Bound. folder.. The record must be in a suitable, folder- and securely fastened on the left side. 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).' . [ J 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,: 661-107025 (4) ('a) (B) [ ] Oversized :Exhibits::- The '7. record -table..:'- of. contents must : list tapeslarge. maps .-or. other.:` items' retained by the local- government which will be submitted at.. oral argument = . - OAR" 661-10-025 2 .,and 4 a B [ J 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) . [ ] Certificate of 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) . GWory G. L.uq% Attorney at Lew MicheR Gensman 400 Us..nodn Center Tower c/o Gregory G. Lutje, AUorne7/ at Lew Portland, CK-,. 97=-5575 400 Lincoln Center Tower Portland, OR 972235575 Pamela Bc:~jR ILEW E Y rd L'v- '9 Lend Use Board of Appals 090ma% Fiqru s uvv, C~igan & Bachrach 306 State UWM Building 1727 HW HoVE 250 Winter Street, HE Portland, WA 2-TWe, Salem, Oregon, 97310 Miduel RoWuLcin Stoel, Rini, r.Q al h:\1og1n\jo\1ubalb1.l 900 SW 5th &w4itue, Suite 2300 Portland, OR 97204, BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON MITCHELL GENSMAN, ) Petitioner, ) LUBA NO. 94-211 vs. ) Index and CITY OF TIGARD, ) Record Respondent. ) O'DONNELL RAMIS CREW CORRIGAN & BACHRACH ATTORNEYS AT LAW 1727 N.W. Hoyt Street Portland, Oregon 97209 TELEPHONE: (503) 222-4402 FAX. (S03) 243-2944 DATE: November 4, 1994 TO: William A. Monahan, Interim City Administrator Cathy Wheatley, City Recorder FROM: Pamela J. Beery, City Attorney's Offic%O RE: Gensman v. City of Tigard Bad news. Mitchell Gensman is appealing the Taco Bell decision; a copy of the Notice of Intent to Appeal is enclosed. The record is due twenty-one days from November 2, 1994, or on November 23, 1994. If you need any assistance in the preparation of the record, please do not hesitate to give me a call. I'd be happy to help in any way I can. I have confirmed with the Taco Bell attorney, Michael Robinson, that Taco Bell does, in fact, intend to intervene in this matter and will carry the great weight of the defense. However, one of the defenses he intends to assert, probably by cross- petition, is that the City erred in its procedural handling of this matter in that it gave Mr. Gensman too long to pursue local remedies. Depending on how this cross-petition is framed, it is an issue that we may want to participate in at LUBA and I just wanted you to be aware of that possibility from the outset. This is especially true in view of our recent code interpretation that appeals of this type of site development review approval will not ultimately go to the City Council. Please let me know if you have any questions. cc: Dick Bewersdorff Enclosure 90024/j1h/MONAHAN.MM2 COPY 1 - 2 RECEIVED 3 NOV O 3M4 4 OW-T.t &vws ^n_ v 5 6 7 8 9 10 BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON 11 12 MITCHELL GENSMAN, LUBA No. 13 Petitioner, 14 v. 15 CITY OF TIGARD, 16 Respondent. 17 18 NOTICE OF INTENT TO APPEAL 19 I• 20 Notice is hereby given that Petitioner intends to appeal 21 that land use decision of Respondent entitled FINAL ORDER NO. 94- 22 06 PC, SITE DEVELOPMENT REVIEW SDR 94-0003 LOT LINE ADJUSTMENT MIS 23 94-0007 PDG/CORBIN/TYSON, which was executed by the Planning 24 Commission President on October 11, 1994, was mailed by Respondent 25 on October 12, 1994, which became final on October 24, 1994, and 26 which involves the creation of. a Taco Bell Restaurant on the 1 NOTICE OF-INTENT TO APPEAL GREGORY G. LUTJE • ATTORNEY AT LAW 400 Lincoln Center Tower • Portland, Oregon 97223-5573 (503) 293-8347 0 FAX (503) 293-3559 1 subject property located at 11631 and 11635 SW Pacific Highway 2 (WCTM 1S1 36DB, tax lots 700 & 600), City of Tigard, Oregon. 3 II. 4 Petitioner, Mitchell-Gensman, is represented by Gregory 5 G. Lutje, Attorney at Law, 400 Lincoln Center Tower, Portland, 6 Oregon 97223-5575, 503/293-8347. 7 Respondent, City of Tigard, has as its mailing address 8 and telephone number: Tigard City Hall, 13125 SW Hall Blvd., 9 Tigard, OR 97223, 503/639-4171, and has, as its legal counsel, 10 Pamela J. Beery, O'Donnell, Ramis et al:, 1727 NW Hoyt St., 11 Portland, OR 97209, 503/222-4402. 12 III. 13 Other persons. mailed written notice of the land use 14 decision by the City of Tigard, as indicated in the records of this 15 matter, include: David Kimmel & Jennifer Brion, Planning Design 16 Group, 122 SE 27th Avenue, Portland, OR 97214; Grover Corbin, 4680 17 SW Dogwood Drive, Lake Oswego, OR 97035; Tyson/Larson, 23275 NW 18 Dorland Road, Hillsboro, OR 97124; Michael C. Robinson, Stoel Rives 19 et al., 900 SW 5th Ave., Suite 2300, Portland, OR 97204; Jeffrey 20 Cheyne, Myatt & Bell, 4240 SW Cedar Hills Blvd., Beaverton, OR 21 97005; Ken Watts, P.O. Box 23095, Tigard, OR 97281; Mike Randles, 22 Taco Bell, 597 Industry Drive, Tukwila, WA 98188; Steven Beatty, 23 7702 SW 45th 12, Portland, OR 97219; and Calvin Williams, 14824 SW 24 Old Scholls Ferry Road #5201, Beaverton, OR 97007. 25 Anyone, other than Respondent City of Tigard, who desires 26 to participate as a party in this case before the Land Use Board of 2 - NOTICE OF-INTENT TO APPEAL GREGORY G. LVTJE • ATTORNEY AT LAW 400 Lincoln Center Tower • Portland, Oregon 97223-5575 (503) 293-8347 0 FAX (503) 293-3559 1 Appeals must file with the Board'a Motion to Intervene as required 2 by OAR 661-10-050. 3 DATED this 2nd day of November, 1994. 4 Gregory G. Lutje Gregory G. Lutje, OSB #89295 5 Attorney for Petitioner 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3 - NOTICE OF-INTENT TO APPEAL GREGORY G. LUTJE • ATTORNEY AT LAW 400 Lincoln Center Tower • Portland, Oregon 97223-5575 (503) 293-8347 0 FAX (503) 293-3559 1 CERTIFICATE OF SERVICE 2 I hereby certify that on November 2, 1994, I served a 3 true and correct copy of this Notice-of Intent to Appeal on all 4 persons listed in Paragraphs II and III of this Notice pursuant to 5 OAR-661-10-015(2) by first class mail. 6 DATED this 2nd day of November, 1994. 7 8 Gregory G. Lutje 9 Gregory G. Lutje, OSB #89295 Attorney for Petitioner 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 26 CERTIFICATE OF SERVICE GREGORY G. LUVE • ATTORNEY AT LAW 400 Lincoln Center Tower • Portland, Oregon 97223-5575 (503) 293-8347 0 FAX (503) 193-3559 RECEIVED Uregon NOV 0 41994 O T O % % 7 - L F _ 0 1 1 1 1 f ^ _ ? ` w L A N D U S E BOARD OF November 3, 1994 APPEALS Pamela J. Beery Tigard City Attorney v O'Donnell, Ramis, et al 1727 NW Hoyt Street Off( Portland, OR 97209 RE: Gensman v. Tigard LUBA No. 94-211 Dear Ms. Beery: This is to advise you that a Notice of Intent to Appeal was filed on November 2, 1994, 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 decision being appealed. The record is to be prepared by 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 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 Greg Wolf at the Department of. Land Conservation and Development, telephone 373-0062. Very truly yours, 90ol .Jan Zwemke Office Manager cc: Gregory G. Lutje Enclosure 306 State Library Bldg. 250 Winter Street NE Salem, OR 97310 (503) 373-1265 (Voice/Tdd) LAND- USE BOARD OF APPEALS RECORD' . SPECIFICATIONS 'OAR-:- 661-10-025(4).--, The record- submitted to LUBA,',`,- and- an_y:._ 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-:requirement s.:-.-of:._. OAR 661-10-025(4), will 1 not be accepted:.- The spec ifications.set:,-.:,_:` out' in OAR 661-10-025 (4)..are -as follows: [ ] Bound folder. The record -must be in a suitable. folder - and securely fastened on the left side. 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, _ -10-025(4)(a) OAR 661 " (A) [ : ] Table of.. Contents . The:. record : must includea . ' : 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) [ J Oversized Exhibits:. - The _ record table..?of.': contents must :list Gapes,'. large maps.' or other`.`..- items'. retained. by the local. government which: will be submitted at`. -oral argument : _ . O661-10-025 (2) AR :and _(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) . [ ] Certificate of 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) . i BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON MITCHELL GENSMAN, ) LUBA NO. 94-211 Petitioner, ) VS. ) Index and CITY OF TIGARD, ) Record Respondent, ) Certified to be a True Copy of EA) \ Original on file C4 I < C-bi EA~ By: City Recorder - of Tigard Date: (a ' a lCit PLANNING DESIGN GROUP SDR 94-0003/MIS 94-0007 TACO BELL RESTAURANT CITY OF TIGARD RECORD FOR LAND USE BOARD OF APPEALS (LUBA 94-211) I, Catherine Wheatley, City Recorder for the City of Tigard, certify that the contents within are a true copy of the record. Ca,74~-~ w Catherine Wheatley, Tigard City Rec der Date: 1 a 1 a~l i TABLE OF CONTENTS Pa e Statement Certifying the Record of Proceeding i Table of Contents ii-iii Exhibit No. Page No. 1 Affidavit of Mailing - Notice of Final Order SDR 94-0003/MIS 94-0007 1-47 2 September 26, 1994 Agenda - City of Tigard Planning Commission 48-49 3 September 26, 1994 Minutes - City of Tigard Planning Commission 50-52 4 Agenda Packet and Additional Material Submitted for the Record (for 9/26/94 hearing 53-73 5 Architectural Site Plan 74 6 Materials Submitted by the Applicant for the Record in Response to More Detailed Concerns Raised by the Applicant at the September 12, 1994 Public Hearing 75-104 7 September 12, 1994 Agenda - City of Tigard Planning Commission 105-106 8 September 12, Testimony Sign-In Sheets - City of Tigard Planning Commission 107-108 9 September 12, 1994 Minutes - City of Tigard Planning Commission 109-120 10 Original Meeting Packet to Planning Commission on the Appeal 121-136 11 Affidavit of Publication for September 12, 1994 Notice of Public Hearings 137 ii Exhibit No. Page No. 12 Affidavit of Mailing - Planning Commission Public Hearing of the Appeal 138-142 13 Materials Submitted by the Applicant in Response to the Appeal 143-278 14 Land Use Decision Appeal Filing Form 279-280 15 Affidavit of Mailing - Notice of Decision - Tigard Planning Director 281-296 16 Affidavit of Publication - Notice of Decision - Tigard Planning Director 297 17 Site Development Review Application 298-299 Audio tapes of the September 26 and September 12, 1994, Tigard Planning Commission Meeting are on file with City of Tigard records and will be • available on the date of oral argument. ii • AFFIDAVIT OF MAILING STATE OF OREGON ) County of Washington ) ss. City of Tigard ) I, VAV)ke being first duly sworn/affirm, on oath depose and say: (Please print) That I am 45..6 C~ for The City of Tig rd, Oregon. J That I served NOTICE OF PUBLIC HEARING FOR: That I served NOTICE OF DECISION FOR: ;City of Tigard Planning Director Tigard Planning Commission Tigard Hearings Officer Tigard City Council A copy (Public Hearing Notice/Notice of Decision) of which is attached (Marked Exhibit "A") was mailed to each named persons at the dress shown on the attached list marked exhibit "B" on the 1741^ day of f n 19-2. , said notice NOTICE OF DECISION as hereto attached, was posted gn an appropriate bulletin board on the IZ day of nr- V, 9 and deposited in the United States Mail on the ► 2-A- day of 1 postage prepaid. --&-Vk/VVN'j vvdt- ay Prepared Notice Sub ibed and sworn/affirmed before me on the 7~ ay of V , 19 :r~_ •:r `.<'L+:': ~j NOTARY PUBLIC OF 'O GON My Commission res. 7 LUBA NO. 94211 Exhibit No. Page No. CITY OF TIGARD Washington, County NOTICE OF FINAL ORDER - BY PLANNING COMMISSION 1. Concerning Case Number(s): SDR 94-0003/MIS 94-0007 2. Name of Owner: Grover Corbin and Tyson/Larson Name of Applicant: Planning Design Group 3. Address 122 SW 29th Avenue City Portland State OR Zip 97214 4. Address of Property: 11631 and 11635 SW Pacific Highway Tax Map and Lot No(s).: 1S1 36DB, tax lots 600 and 700 5. Request: An appeal was filed of a Director's Decision approving a Site Development Review to allow construction of an approximately 1,989 square foot drive-thru restaurant with related site improvements. The appeal concerned access to residential areas to the north of the proposed site. APPLICABLE APPROVAL CRITERIA: Community Development Code Chapters 18.32, 18.62, 18.84, 18.92, 18.94, 18.96, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.144, 18.150, 18.162, and 18.164. Zone: C-G (General Commercial) The C-G zone allows public agency and administrative services, public support facilities, professional and administrative services, financial, insurance, and real estate services, business support services, and eating and drinking establishments among other uses. 6. Action: Approval as requested Approval with conditions X Denial of the appeal 7. Notice: Notice was published in the newspaper, posted at City Hall, and mailed to: X The applicant and owner(s) X Owners of record within the required.distance X Affected governmental agencies 8. Final Decision: THE DECISION SHALL BE FINAL ON October 24, 1994 . The adopted findings of fact, decision, and statement of conditions can be obtained from the Planning Department, Tigard City Hall, 13125 SW Hall Blvd., Tigard, Oregon 97223. 9. Anneal: Any party to the decision may appeal this decision to the Land Use Board of Appeals. Please contact the Land Use Board of appeals concerning filing deadlines. 10. Questions: If you have any questions, please call the City of Tigard Planning Department, 0639-4171. LUBA NO. 94211 Exhibit No. I Page No. CITY OF TIGARD PLANNING COMMISSION FINAL ORDER NO. 94-06 PC CORBIN/TYSON - OWNER PDG DESIGN GROUP - APPLICANT A FINAL ORDER APPROVING REVISIONS TO THE DECISION ISSUED FOR SITE DEVELOPMENT REVIEW 94-0003 FOR A TACO BELL RESTAURANT LOCATED ON A 0.85 ACRE PARCEL AT 11631 AND 11635 SW PACIFIC HIGHWAY. APPLICATION: A request for approval of site development review and a lot line adjustment for a Taco Bell restaurant. Comprehensive Plan: General Commercial (C-G), Zoning: General Commercial (C-G) Location: 11631 and 11635 SW Pacific Highway (WCTM 1S1 36DB, tax lots 600 and 700) SECTION I - DECISION: Notice is hereby given that the Planning Commission has denied the Appeal filed by Mr. Gensman concerning access to adjoining properties and approved the proposal subject to the following recommendations. The findings and conclusions on which the decision is based are noted in Section II and attached as Exhibit A. The findings within Exhibit A take precedence over findings listed within Section II. • Recommendations: PRIOR TO THE ISSUANCE OF A BUILDING PERMIT THE FOLLOWING CONDITIONS SHALL BE SATISFIED OR FINANCIALLY SECURED: 1. A joint use and maintenance agreement shall be executed and recorded on City standard forms for all common driveways. The agreement shall be referenced on and become part of all applicable parcel Deeds. The agreement shall be approved by the Engineering Department prior to recording. STAFF CONTACT: John Hagman, Engineering Department. 2. The applicant shall obtain a permit from the State of Oregon Highway Division, to perform work within the right-of -way of SW Pacific Highway (99W) . A copy of the permit shall be provided to the City Engineering Department prior to issuance of building permit. STAFF CONTACT: John Hagman, Engineering Department. 3. The applicant shall remove and replace the existing driveways and sidewalk as shown on the site plan. The sidewalk shall be eight feet wide as measured from the face of curb. 4. The applicant shall pay the fees as established under the guidelines of Unified Sewerage Agency Resolution and Order • No. ^91-47. NOTE-': This is a two part fee which is paid at dif~erent times. The fi.rSt part 2S paid with anv associated public improvements which is for that portion of the development which increases the impervious area within the LUBA NO. 94-211 Exhibit No. / Paae No. 5 public right-of-way. The second part is paid at Building Permit issuance which is for each individual lot. S. The applicant shall underground the existing overhead utilities along the northerly side of Pacific Highway, or pay the fee in-lieu of undergrounding. STAFF CONTACT: Michael Anderson, Engineering Department. 6. A lot line adjustment survey map and legal descriptions showing the existing and proposed lot lines shall be reviewed and approved by the Engineering Department. STAFF CONTACT: Greg Berry, Engineering Department. 7. a) The applicant shall demolish existing structures on site prior to the recordation of the lot line adjustment. STAFF CONTACT: Mark Roberts, Planning Division. b) The site/landscape plan shall be revised a minimum of two bicycle racks. STAFF CONTACT: Mark Roberts, Planning Division. c) The site/landscape plan shall be revised to provide a minimum of one walkway to SW Pacific Highway. STAFF CONTACT: Mark Roberts, Planning Division. d) The landscape plan shall be revised to provide a minimum of one street tree for each 20 feet along the entire frontage along SW Pacific Highway. The applicant may revise the species which was selected and provide greater distance between each tree. STAFF CONTACT: Mark Roberts, Planning Division. e) The site and/ or landscape plan shall be revised to screen the trash and recycling enclosure from view to the greatest extent possible from SW Pacific Highway. STAFF CONTACT: Mark Roberts, Planning Division. f) The existing billboard sign shall be removed prior to the issuance of an occupancy permit. STAFF CONTACT: Mark Roberts, Planning Division. g) All site improvements shall comply and be maintained in accordance with the revised site plan or as approved by the Planning Division. STAFF CONTACT: Mark Roberts, Planning Division. h) The site and landscape plans shall be revised to provide a six foot minimum height solid wood fence along the northern property. STAFF CONTACT: Mark Roberts, Assistant Planner. • SECTION II. F 13MINGS OF FACT 1. Background : LUBA NO. 94-211 Exhibit No. Page No. L _ The site is presently developed with an older retail building, a motel and a billboard sign. On June 24, 1994 staff recommended approval of Site Development Review #94-0003 subject to Conditions of Approval. On July 13, 1994 the second of two appeals was filed of this approval by Mr. Michell Gensman. Mr. Gensman stated that future development or redevelopment of his property was negatively impacted by the design of the proposed Taco Bell site. This final order addresses the appeal filed by Mr. Gensman concerning access to neighboring residential properties to the north. The appeal stated that the design of the Taco Bell site failed to provide adequate access width to serve future development of residential uses to the north. At the October 12, 1994 Public Hearing the applicant requested that the record remain open for seven days to submit additional evidence. The applicant requested an additional seven days to respond to any new evidence. During the Public Hearing of October 12th the applicant and neighboring property owners requested plan revisions to satisfy Fire District requirements concerning provision for emergency vehicle access to residential properties to the north of the proposed Taco Bell site. Within the seven day period provided for response the applicant submitted information responding to concerns raised at the Public Hearing. The Planning Commission deliberated on this information and denied the appeal of Site Development Review #94-0003 finding that access constraints for residential are an existing condition based on the Level of Service on SW Pacific Highway as demonstrated within the applicants traffic study. The Planning Commission also found that existing patterns of development in the area placed added constraints on development of full service intersection to SW Pacific Highway. The Planning Commission also adopted additional findings within Exhibit A as applicable project approval standards. 2. Vicinity Information: The site is located on SW Pacific Highway to the west of the Fred Meyer Shopping Center. The surrounding properties are zoned for General Commercial and Office Professional use and are developed with a mixture of commercial and residential uses alone SW Pacific Highway. 3. Site Information and Proposal Description: The site is currently two seperate parcels which are developed with a motel and a store which was formerly a NAPA LUBA NO. 94-211 Exhibit No. i Page No. -5 Auto Parts Store of approximately .85 acres in size. The site has direct frontage on SW Pacific Highway. The applicant proposes to construct a Taco Bell restaurant with a drive through aisle. The architectural treatment proposed for the structure is the proto type Taco Bell Restaurant with uses elements of an Early calif ornia/Spanish Mission archtectural treatment with the use of painted oversized masonry block and a tile roof. 4. Agency and CIT Comments: The Engineering Department, General Telephone, the Oregon Department of Transportation, and the Building Department have provided the following recommendations concerning this proposal. The Engineering Department provided the following comments concerning this proposal: STREETS: The applicant has submitted a traffic study prepared by Keech Associates, Inc., dated April 7, 1994. The report is candid in describing the difficulties of accessing the various businesses in the vicinity of the proposed development along Pacific Highway, State 99W. Based on the information provided, the applicant met with representatives of ODOT to discuss alternatives to the proposed access and have submitted a revised site plan. Engineering staff concurs with the new plan that incorporates a single joint use driveway on the westerly side of the property to serve the proposed development and the businesses on the adjacent property located to the west. In addition, the revised site plan shows a curb barrier to separate the proposed commercial use from the 14 foot wide driveway located on the easterly edge of the site, that serves the residential properties to the rear of the site. This driveway will connect to the "jug-handle" drive-through on Pacific Highway that serves as refuge for the southbound left-turn traffic enuring the cinema across the street. The applicant shall obtain an ODOT access permit for their connection to SW Pacific Highway. The highway has been constructed to current State standards and no additional right-of-wav or street construction is recruired. The site plan also proposes to remove two additional existing driveways that previously served the site and restore the sidewalk. However, it is recommended that the sidewalk be re-constructed for the entire length of the property to a minimum width of 7.5 feet, consistent with the sidewalk construction along ocher frontages on SW Pacific Highway. LUBA NO. 94-211 Exhibit No./ Page No. C4 . The existing power poles and overhead lines serving the area are located along both sides of SW Pacific Highway and the applicant should place the facilities located along this frontage underground, or pay the fee in-lieu of undergrounding. SANITARY SEWER: The existing eight inch public sanitary sewer is located in SW Pacific Highway and has sufficient capacity to serve this development. STORM SEWER: The site currently is partially covered by three buildings and asphalt concrete driveways that drain in a southerly direction toward SW Pacific Highway. The proposed site development will increase the amount of impervious area. The Unif ied Sewerage Agency has established and the City has agreed to enforce (Resolution and Order No. 91-47) Surface Water Management Regulations requiring the construction of on-site water quality facilities or fees in-lieu of their construction. Requiring surface water quality facilities on small sites would result in numerous facilities that would become a maintenance burden to the City. Furthermore, the applicant has not proposed any such facilities and there are no natural depressions, or other areas on this site that are particularly suitable for water quality facility design. Regional facilities, funded by fees in-lieu of construction, would provide the required treatment with improved reliability and efficiency. Therefore the applicant should be required to pay the fee in-lieu of constructing an on- site facility for that portion of the site that increases the impervious area. GTE stated that the developer shall coordinate with GTE on removal of existing telephone facilities and placement of new facilities. The Orecon Department of Transportation stated the following concerning this application: The traffic report prepared by :beech and Associates for the relocation of the Taco Bell on SW Pacific Highway i nden- es the lack of access SW Paci fic Highway west bound for a number of commerical properties in the vicinity. HUY 99W is an Access Oregon Highway, with access spacing standards. To assure a quality transportation system and enhanced economic vitality is going to require comprehensive planes i na and ccope_ ation between ODOT and the City of Ti card in the development o~ alternative access. The development of local streets and/or the combination of joint access and LUBA NO. 94-211 Exhibit No. 1 Page No. cross over easements between properties need to be pursued by both ODOT and the City of Tigard. A single shared access on the westerly property line with Tax Lot No. 1800, will provide adequate access to the proposed Taco Bell that provides good internal circulation. As indicated in the report exiting from the proposed driveway will operate at a level of service F which is not uncommon for stop control driveways or intersections along SW Pacific Highway. The access at the easterly property line that provides access to Tax Lot No. 1800 through an existing easement also serves as an access to Taco Bell. This access not only adds an additional conflict point, but because of its proximity to the intersection we would expect a high occurence of conflict/accident potential. Alternative access to Tax Lot 800 through the Taco Bell property to the joint use driveway located on the westerly property line needs to be provided. The subject site circulation appears to be designed to adapt circulation should the theatre access become a typical four way intersection and a roadway extended to the north. Should this occur where an access through a signal is available, the driveway on the west side of the property line could function quite well and more safely as a right- in/right-out. Traffic Operations can support access to this parcel via a single access, allowing all movements centered on the property line of the subject site with provisions for restricting this access at such time as alternative access is available. The Building Department stated that demolition permits are required for removal of existing structures. All existing utlities shall be properly capped off and abandoned. All existing sewer lines shall be removed. SECTION III. ANALYSIS AND CONCLUSION A. COMPLIANCE WITH COMMUNITY DEVELOPMENT CODE SECTIONS: Use Classification: Chapter 18.62. states that the purpose of the General Commercial zoning district is to provide sites for the provision of major retail goods and services. The applicant states that the proposed building is to be used for a drive thru restaurant use which is a permitted use within the General Commercial Zoning District. Minimum Lot Area : Chanter 18.62 states that there is no minimum lot area for parcels in the General Commercial zone. LUBA NO. 94-211 Exhibit No. Page No. Q Section 18.62 requires that the .average lot width shall be 50 feet. The site is the combination two existing parcels. When combined the parcel has an average width of approximately 197 feet which complies with the standard. Condition of Approval #7 requires that the applicant provide proof of parcel consolidation prior to the issuance of building permits. Development proposals within this zoning district may not exceed 85% of the site with impervious structures such as buildings and hard surfaces. The site plan indicates that some 27,237 square feet or 77t of the property is proposed to be developed with impervious structures which complies with the requirement. The General Commercial Zoning District also requires a minimum of 15% of the site be landscaped. The site plan provides approximately 8,121 square feet (23%) of the site with landscaping in compliance with the requirement. Community Development Code Section 18.162.060 contains standards for approval of a lot line adjustment request: 1. An additional parcel is not created by the lot line adjustment, and the existing parcels reduced in size by the adjustment are not reduced below the minimum lot size established by the zoning district; 2. By reducing the lot size, the lot or structure(s) on the lot will not be in violation of the site development or zoning district regulations for that district; and 3. The resulting parcels are in conformity with the dimensional standards of the zoning district. The proposed lot line adjustment is consistent with these standards. The proposed adjustment will reconfigure the lot lines, however no additional parcels will be created by the adjustment. The C-G zone does not have a minimum lot area requirement. Both reconfigured parcels will continue to exceed t-',-..e 50 foot average minimum lot width requirement of the zone. All site development improvements applicable to the aarcels will be consistent with Code requirements ug_on redevelopment of the site. In addition to meeting the above standards, a lot lire adjustment must also meet the following criteria applicable to lots created through the minor land partition process (Code Section 18.162.050): A. Lot Width: The minimum width of the building envelope area shall meet the lot requirement of the applicable zoni _^_g district. LUBA NO. 94211 Exhibit No. f Page No. B. Lot Area: The lot area shall be as required by the applicable zoning district. In the case of a flag lot, the accessway may not be included in the lot area calculation. C. Lot Frontage: Each lot created through the partition process shall front a public right-of-way of at least 15 feet or have a legally recorded minimum 15 foot wide access easement. D. Setbacks: Setbacks shall be as required by the applicable zoning district. E. Front Yard Determination for Flag Lot: When the partitioned lot is a flag lot, the developer may determine the location of the front yard, provided that no side yard is less than 10 feet. Structures shall generally be located so as to maximize separation from existing structures. F. Screening on Flag Lots: A screen shall be provided along the property line of a lot of record where the paved drive in an accessway is located within ten feet of an abutting lot in accordance with Sections 18.100.080 and 18.100.090. Screening may also be . required to maintain privacy for abutting lots and to provide usable outdoor recreation areas for proposed development. G. Fire Protection: The fire district may require the installation of a fire hydrant where the length of an accessway would have a detrimental effect on fire fighting capabilities. B. Reciprocal Easements: Where a common drive is to be provided to serve more than one lot, a reciprocal easement which will ensure access and maintenance rights shall be recorded with the approved partition map. I. Accessway: Any accessway shall comply with the standards set forth in Chapter 18.108, Access, Egress, and Circulation. J. Where landfill and/or development is allowed within or adjacent to the one-hundred-year floodplain, the City shall reauire the dedication of sufficient open land area for greenway adjoining and within the floodplain. This area shall include portions at a suitable elevation for the construction of a pedestrian/bicycle pathway with the flood-plain in accordance with the adopted pedestrian./bicycle pathway plan. LUBA NO. 94-211 Exhibit No. I Page No. 1 0 Criteria A, B, C and D are satisfied through the design of this adjustment. Criteria A is met because both lots comply with the minimum lot area required in the C-G zone. The proposed lot widths for the parcels will continue to exceed the 50 foot average minimum lot width requirement. Criteria B is complied with because each parcel will maintain the same square footage. The C-G zoning district does not have a minimum lot area requirement. Criteria C has been met because the properties will have property direct frontage on SW Pacific Highway. Criteria D has been provided for because the proposed Taco Bell restauarant complies with setback requirements in the C-G zone as it relates to the property configuration. Property access as set forth in Criteria G and I have been met because of the design of the parcels. Each reconfigured property maintains sufficent direct access to the public right-of-way either from SW Pacific Highway. Criteria E, F, H and J are not applicable to the lots because neither proposed lot would be a flag lot, nor are these properties located within the flocdplain. Setbacks: Chapter 18.62 provides setbacks standards for General Commercial sites. The Code permits development at the property line within the Development Code for the front, side, or rear yards provided clear vision and landscape buffering requirements can be met. The site abuts residential property to the north. The site plan provides the 10 foot required buffer area. Properties to the south, east and west are zoned and developed with commercial uses so no setbacks are required to buffer the proposed land uses from other adjoining sites. The proposed structure also complies with the Special Setbacks required for structures on SW Pacific Highway. All structures must be setback a minimum of 50 feet from the centerline of SW Pacific Highway. The structure as proposed is 70 feet from the centerline of SW Pacific Hichwav. Buildinc Heieht: Chapter 18.62 states that no building shall exceed a height of 45 feet. The proposed architectural elevations measure 17.5 feet in height in comaliance with height reauirments. Minimum Off-Street Parkins: Chapter 18.106 requires one parsing space for each 400 square feet of gross floor area. The floor plan for the building provides a dining roam area o.L approximately 1,000 square Beet of gross floor area, eight employees are projected to work the restaurant on the largest shift which reeuires a total of 28 parking spaces. LUBA NO. 94-211 Exhibit No. Panp Mn_ I J The applicant has provided 33 parking spaces which exceeds the minimum parking requirement for this site. Access and Egress: Chapter 18.108 requires commercial development with 99 or less required parking spaces to provide a minimum of one access point with a width of 30 feet. The site plan complies with this requirement by providing a single entrance to the site through SW Pacific Highway at the farthest westerly portion of the site as far away from the intersection of 74th Street as possible given the property configuration. The Americans with Disabilities Act (ADA). Effective January 26, 1992 a minimum of one disabled person parking space for each twenty-five required parking spaces up to 100 hundred spaces. This site is required to provide a minimum of two disabled person parking spaces because a minimum of 28 parking spaces would be required to serve this building. The site plan currently shows two handicapped person parking spaces in compliance with this requirement. Bicvcle Parkincz: Chapter 18.106 requires one bicycle parking rack for each 15 vehicle parking spaces in any development. Due to the parking requirements size of the floor plan proposed for this site a minimum of one bicycle parking rack to serve this development. Condition of Approval tt7 requires that the site plan be revised to provide a minimum of two bicycle racks. Walkway: Chapter 18.108 requires that a walkway extend from the main ground floor entrance of all commercial developments to the streets which provide the required ingress and egress. Condition of Approval tt7 requires that the site plan be revised to include a minimum of one pedestrian walkway from SW Pacific Highway onto the site. Street Trees: Chapter 18.100 states that all development projects fronting on a public street more than 100 feet in length shall be required to plant street trees in accordance with the standards in Section 18.100.035. This site has frontage on SW Pacific Highway in excess of 100 feet. The landscape plan for this site provides five Vine Maple t=ees planted at 20 feet on center. At maturity this species measures an average of 17 feet in height and is considered a small specimen within the Development Code. Condition of Approval T7 requires that the street tree plan shall be revised to provide a minimum one tree for each 20 feet along the lencth of the landscape area which adjoining SW Pacific Highwav. Visual Clearance Areas: Chapter 18.102 requires that a clear vssion area for motorist and pedestrian safety be maintained on the corners or all property adjacent to intersecting right-of-ways or private driveways. A clear LUBA NO. 94-211 Exhibit No. I - Page No. I d vision area shall contain no vehicle, hedge, planting, fence, wall, structure, temporary or permanent obstruction exceeding three feet in height, measured from the top of the curb, or where no curb exists, from the street center line grade. Trees exceeding this height may be located in the clear vision area, provided all branches below eight feet are removed. The site and landscape plan as proposed comply with these requirements. Trash Recycling and Loading Facilities: Chapter 18.120 states that service and areas shall be indicated on the site plan. The applicant has provided a trash and waste recycling area. The receptacle area comply with the dimensional requirements of METRO as stated in the Model Zoning Ordinance for Mixed Solid Waste and Recyclable Storage. The site also provides landscaping to screen these areas from view to the north and west. Condition of Approval #7 requires that the landscape plan be modified to screen the trash and recycling enclosure from view to the greatest extent possible from SW Pacific Highway. Tree Removal: Chapter 18.150 contains standards for obtaining a required permit for removal of trees on site which have a trunk six inches or more in diameter measured four feet above the ground. Prior to removal of any tree on site in excess of six inches in diameter as measured four feet above existing ground level, Condition of Approval #8 requires the applicant to obtain a tree removal permit for removal of any applicable trees as set forth in Chapter 18.150 of the Development Code. Landscaping Plan: Section 18.100 requires that the applicant submit a detailed landscape plan as a part of Site Development Review. The landscape plan provided with this application provides parking lot trees in excess of the required number for the parking lot area. The Development Code requires one tree for every seven parking spaces the applicant has provided one tree for approximately every five parking spaces. The plan also provided a variety of shrubs, and ground cover in satisfaction of the landscaping recuirements for this site. Si crs : Section 18.114 lists the type of allowable signs and sign area permitted in the General Commercial zone. A billboard sign presently exists on the site. The sign as currently located would be within a drive aisle so it must be relocated. Section 18.114.110 (D) states in part that a non-conforming sign which is relocated must be immediately brought into compliance with the Development Code. The Development Code prohibits billboard signs, therefore Condition of Approval #7 requires the existing billboard sign to be removed. All new signage for the site shall be reviewed by the Planning Division trough the sign permit process. LUBA NO. 94211 Exhibit No. I Parma Nn 1 SECTION V. DECISION The Planning Commission concludes that the applicant's site plan complies with applicable site development criteria and denies the appeal based on the findings and conclusions contained within this report. It is further ordered that the applicant and the parties to these proceedings be notified of the entry of this order. PASSED: This /f day of October, 1994 by the Planning Commission of the City of Tigard. Mi o Planning 'ssion President LUBA NO. 94-211 Exhibit No. Page No. r`- E7(13= "A" BEFORE THE PLANNING COMMISSION OF THE CITY OF TIGARD In the Matter of a Director's ) Decision Approving an ) Application for Site ) FINDINGS OF FACT AND Development Review and ) CONCLUSIONS OF LAW Lot Line Adjustment at ) ON THE APPEAL OF 11631 and 16635 SW Pacific ) MITCHELL GENSMAN Highway, Case File No. 94-0003 ) 1. PROCEDIIRE. Taco Bell ("Applicant") applied for site development review approval pursuant to Tigard Community Development Code ("TCOC") Chapter 18.120 and a lot line adjustment approval pursuant to TCDC Chapter 18.162. The Director approved the request on June 24, 1994. The City published notice of the Director's decision on June 23, 1994 and mailed notice of the decision to those parties entitled to it on June 24, 1994. The Director's decision provided that an appeal of the decision could be filed until 5:00 p.m. on July 13. Two appeals were filed of the Director's decision on July 13, 1994. The first appeal was filed by Larry Morris, owner of property adjacent to the Applicant's site on the north. The second appeal was filed by Mr. Gensman, owner of property to the north but not adjacent to the Applicant's property. The Planning Commission held a public hearing on Mr. Gensman's appeal on Seotember 12. The City provided notice of the appeal hearing that conformed to the reCllirements of the ?0X1-1+07:6.1 72523 0009 LUBA NO. 94211 Exhibit No. 1 Page No. / 5 TCDC and ORS 197.763 to all those entitled to it on August 23, 1994. The Planning Commission chairman opened the public hearing by listing the applicable substantive criteria for the application, stated that testimony and evidence must be directed toward the applicable substantive criteria or to other criteria in the TCDC or the Tigard Comprehensive Plan ("TCP") which any person believed applied to the decision, and stated that failure to raise an issue with sufficient specificity to afford the decisionmaker and the parties an opportunity to respond to the issue precludes appeal to the Oregon Land Use Board of Appeals on that issue. The Chairman also announced that if additional documents or evidence in support of the application were submitted after August 23, any party was entitled to request that the hearing be continued. Further, the Chairman announced that if a continuance was not requested, any party could request that the record remain open for at least seven days. Mr. Gensman requested that the record remain open for seven days until September 19 at 5:00 p.m. The Applicant requested that the record remain open for an additional seven days until September 26 at 5:00 o.m. for the Applicant to rebut additional evidence submitted during the first seven-day period. The Planning Commission heard testimony from the Aoolicant's representative and from the attornev representing Mr. Gensman. Mark Roberts, Staff Planner, noted that the case ?9X:-14,0716.'_ 72523 0009 2 LUBA NO. 94-211 Exhibit No. Page No. file containing all documents and evidence relied upon by the Applicant, including the application and a traffic report by Robert Keech in a supplemental letter with additional evidence dated August 23, 1994, was physically before the Planning Commission. The Planning Commission did not reject any evidence. The Planning Commission closed the public hearing on September 12. The Planning Commission tentatively rejected the appeal and upheld the Director's decision on September 26. Planning Commissioner Holland moved to deny the appeal. Planning Commissioner Moore seconded the motion. The motion passed unanimously with an amendment adding Condition 7(h) as follows: "The Applicant shall install a-six- foot high solid wooden fence along the entire northern boundary of the Applicant's site. Staff Contact: Mark Roberts, Planning Division." II. FINDINGS OF FACT. A. Background. The site is presently developed with an older retail building and a motel and a billboard sign. A 14-foot-wide, unpaved access easement runs from Pacific Highway 99W along the eastern edge of the property and serves properties to the north of the Applicant's site. ?DX1-140716 7z5z3 0009 3 LUBA NO. 94-211 Exhibit No. 1 Page No. 17- B. Vicinity Information. • The site is located on SW Pacific Highway to the west of the Fred Meyer Shopping Center. The surrounding properties are zoned General Commercial (C-G) and R-12 and are developed with a mixture of commercial and residential uses. The surrounding land uses are as follows: * to the west, an auto body repair shop * to the north, a single-family residence * to the east, the Mazatlan restaurant C. Site Information and Description of Proposal. The site consists of two separate parcels containing approximately .85 acres. The site fronts on Pacific Highway 99W. The Applicant proposes to construct a Taco Bell Restaurant with a drive-through aisle. The restaurant is proposed to be a single-story wood frame building with-stucco finish in an early California/Spanish mission architectural style with a tile roof. III. APPLICABLE CRITERIA. A. Lot Line Adjustment Application. TCDC 18.162.060 contains the following criteria for approval of a lot line adjustment application: "1. An additional parcel is not created by the lot line adjustment, and the existing parcel reduced in size by the adjustments is not reduced below the minimum lot size established by the zoning district; PCXI -1+0716.1 72523 0009 4 LUBA NO. 94-211 Exhibit No. Page No. N2. By reducing the lot size, the lot or structure(s) on the lot will not be in violation of the site development or zoning district regulations for the district; and 03. The resulting parcels are in conformity with the dimensional standards of the zoning district." Response: The proposed lot line adjustment meets the criteria listed above. The proposed lot line adjustment will not create an additional parcel. The C-G district does not have a minimum lot area requirement. Both adjusted parcels will exceed the 50-foot average minimum lot width requirement of the C-G district. All other site development improvements applicable to the parcels will be consistent with TCDC requirements upon redevelopment of the site. In addition to meeting the above standards, the lot line adjustment must also meet the following criteria applicable to lots created through the minor land partition process in TCDC 18.162.050. These criteria are as follows: "4. The minimum width of the building envelope shall meet the lot requirement of the applicable zoning district. "5. The lot area shall be as required by the applicable zoning district. In the case of a flag lot, the accessway may not be included in the lot area calculation. "6. Each lot created through the partition process shall front a public right-of-way of at least 15 feet or have a legally recorded minimum 15-foot-wide access easement. "7. Setbacks shall be as required by the applicable zoning district. ?CYI-1+0710.1 72523 0009 5 LUBA NO. 94211 Exhibit No. Page No. I C1 "8. When the partitioned lot is a flag lot, the developer may determine the location of the frontyard, provided that no sideyard is less than 10 feet. The structure shall generally be located so as to maximize separation from existing structures. "9. A screen shall be provided along the property line of a lot of record where the paved drive and an accessway is located within 10 feet of an abutting lot in accordance with TCDC 18.100.080 and .090. Screening may also be required to maintain privacy for abutting lots and to provide usable outdoor recreation areas for proposed development. "10. The Fire District may require the installation of a fire hydrant where the length of an accessway would have a detrimental affect on firefighting capabilities. "11. Where a common drive is to be • provided to serve more than one lot, a reciprocal easement which will ensure access and maintenance rights shall be recorded with the approved partition map. "12. Any accessway shall comply with the standards set forth in Chapter 18.108, "Access, Egress and Circulation." "13. Where landfill and/or development is allowed within or adjacent to the 100- year flood plan, the City shall require the dedication of sufficient open land area for greenway adjoining and within the flood plain. This area shall include portions at a suitable elevation for the construction of a pedestrian/bicycle pathway with the flood plane in accordance with the adopted pedestrian/bicycle pathway plan." . Response: Criteria 4, 5, 6 and 7 are met because the minimum width of the building envelope, the lot area and the setbacks meet the applicable requirements of the C-G district. ?DXI-1+0725.1 72323 0009 6 LUBA NO. 94-211 Ex :ibtt No. I Page No. 6~o Neither of the adjusted lots is a flag lot. Each lot either fronts a public right-of-way for at least 15 feet or has a legally recorded minimum 15-foot-wide access easement. Criterion 8 is inapplicable because neither of the, adjusted lots is a flag lot. Criterion 9 is met because a screen is provided adjacent to the abutting lot on the north. No screen is required for the lots abutting on the east or west. Criterion 10 is met because the Tualatin Valley Fire and Rescue District ("Fire District") has not required installation of a fire hydrant. Criterion it is met because a common drive will serve both lots and will be recorded to ensure access and maintenance rights. Criterion 12 is met because TCDC 18.108.080(A) establishes the vehicle access, egress and circulation requirement for commercial uses. The proposed restaurant is a commercial use. The restaurant is proposed to contain 33 parking spaces. Pursuant to TCDC 18.108.080(A), one driveway with a minimum width of 30 feet and a minimum paving width of 24 feet is required to serve the site. Curbs are required and a five-foot sidewalk on one side only when abutting streets with sidewalks are also required. The Planning Commission finds that the applicable standards of TCDC 18.108.080 regarding access, egress and circulation are met. Criterion 13 is inapplicable because the development is not within or adjusted to a 100-year flood plain. MXI -1+0716.1 72523 0009 7 LUBA NO. 94211 Exhibit No. I_ Page No. cD I The Planning Commission finds that the Applicant has satisfied the applicable standards for approval of a lot line adjustment request. Moreover, the Planning Commission notes that the appeal of the Director's decision did not address the lot line adjustment request nor did the appellant raise issues associated with the lot line adjustment request. The Planning Commission finds, therefore, that the appellant has waived issues of compliance with the applicable standards for a lot line adjustment request. B. Applicable Standards for Site Development Review Approval. TCDC 18.120.020(A) requires site development review for all new developments. TCDC 18.120.180 contains the approval standards for site development review. TCDC 18.120.180(A) requires that the Director make a finding on each of the applicable criteria. 1. Chapter 18.84, °Sensitive Lands.^ Response: The sensitive lands provisions contained in TCDC Chapter 18.84 apply to properties within the 100-year flood plain, areas with slopes greater than 25 percent, areas within a drainageway and areas with wetlands. The Applicant's site is a developed property and does not contain any of the conditions applicable to TCDC Chapter 18.84. The Planning Commission finds that TCDC Chapter 18.84 is inapplicable to this request because the site does not contain sensitive lands. ?CX:-340736.1 72523 0009 8 LUBA_ NO. 94-211 Exhibit No. Page No. &a 2. TCDC Chapter 18.94, "Manufactured/Mobile Home Regulations." Response: The Planning commission finds that TCDC Chapter 18.94 is inapplicable to this application because it does not request establishment of a manufactured or mobile home. 3. TCDC Chapter 18.92. "Density Computation." Response: The Planning Commission finds that TCDC Chapter 18.92 is inapplicable to this application because it applies only to residential density computations. The proposed application does not involve residential uses. 4. TCDC Chapter 18.144. "Accessory Structures." Response: TCDC Chapter 18.144 regulates accessory structures in residential zoning districts. The application is in a C-G zoning district. The Planning Commission finds that TCDC Chapter 18.144 is inapplicable because this application is not in a residential zone. 5. TCDC Chapter 18.96, "Additional Yard Area Requirements." Response: TCDC Chapter 18.96.020(B)(1)(a) requires a 50-foot setback from the centerline of SW Pacific Highway for structures. The Applicant's site plan shows that the proposed structure will be 90 feet from the centerline of Southwest Pacific Highway. The Planning Commission finds that this recuirement is met. The Planning Commission finds that other requirements of TCDC Chapter 18.96 are inapplicable to this request. TCDC ?^.Y1-140716.1 72523 0009 9 LUBA NO. 94-211 Exhibit No. ! Page No. Chapter 18.96.030(A) establishes setbacks between multi-family residential structures and other structures on the site. This section is inapplicable because no multi-family residential structures are proposed. TCDC 18.96.040(A) provides that the uniform building code requirement is to be met where a zoning district does not contain a sideyard or rearyard setback. The Planning commission finds that the C-G district requires in this instance a 20-foot rearyard setback but no sideyard is required. The Planning Commission finds that this standard is met based on general note 8 on the Applicant's site plan confirming that"all site work shall conform to U.B.C. requirements. TCDC 18.96.050(A) and (B) is inapplicable because this section applies only to sites with dwellings on them. TCDC 18.96.060 is inapplicable because it applies to storage in the frontyard setback, and the Applicant's proposal does not show any storage. TCDC 18.96.070 governs projections into required yards, and the Applicant's site plan does not. show such projections. TDCD 18.96.080 applies only to'flag lots, and Applicant's lot is not a flag lot. 6. TCDC Chapter 18.98, "Building Height Limitations: Exceptions." Response: The Planning Commission finds that this chapter is inapplicable to this request because the application does not propose exceptions to the C-G district's maximum height of 45 feet. The Planning Commission notes that the site plan proposes a 17.5-foot-high structure. 2DC:-140715.1 72523 0009 10 LUBA NO. 94-211 Exhibit No. I_ Page No. 64 7. TCDC Chapter 18.100, "Landscaping and Screening." Response: TCDC Chapter 18.100.015(C) establishes requirements for a site plan. The Planning Commission finds that the site plan and supplemental application materials meet the requirements of this provision. TCDC 18.100.030(A) requires that developments fronting on a public street more than 100 feet in length be required to plant street trees in accordance with TCDC 18.100.035. The Applicant has proposed to plant five Vine Maple trees at 20-foot intervals. The Planning Commission finds that this meets the requirement of TCDC 18.100.035(B)(1) because, at maturity, this species of tree measures an average of 17 feet in height and is a small specimen as defined by the TCDC. The Planning Commission finds that the Applicant can meet this requirement and imposes Condition of Approval 7 requiring that the street tree plan be revised to provide a minimum of one tree for each 20 feet along the length of the landscaped area adjoining SW Pacific Highway and other requirements of TCDC 18.100.035(B). TCDC 18.100.080 imposes buffering and screening requirements. TCDC 18.100.080(A) requires that a setback meeting the buffering and screening matrix be provided along the property line. The buffer matrix is contained in TCDC 18.100.130(1). The existing abutting use is a detached single- family structure. The Planning Commission finds that the ?0YU-140716.1 72523 0009 11 LUBA NO. 94-211 Exhibit No. Page No. required buffer setback is that imposed on parking lots • containing 4 to 50 spaces. The matrix imposes a 10-foot buffer setback with screening. The Planning Commission finds that the site plan proposes a 10-foot landscape setback to the site's parking areas and drive-through aisle. The Planning Commission also finds that the landscaping plan provided by the Applicant provides a row of trees, shrubbery and area planted in lawn, ground cover or spread with bark.mulch in a 10-foot setback meeting the requirements of TCDC 18.100.080(D) for the buffer area.- In addition, the Planning Commission imposes a requirement that a six-foot-high solid wooden fence be located along the entire length of the Applicant's northerly property line. The Planning Commission finds that TCDC Chapter 18.100 is met. 8. TCDC 18.102. "Visual Clearance Areas." Response: This chapter requires that a clear vision area for motorists and pedestrians be maintained on the corners of all property adjacent to intersecting rights-of-way or private driveways. A clear vision area shall contain'no vehicle, hedge, planting, fence, wall, structure, temporary or permanent obstruction exceeding three feet in height, measured from the top of the curb, or where no curb exists, from the street centerline grade. Trees exceeding this height may be located in a clear vision area, provided all branches below eight feet are removed. s ?OX-1-1-40716.1 72523 0009 12 LUBA No. 94-211 Exhibit No. Page No. D to The Planning Commission finds that the site plan proposed by the Applicant complies with these requirements and, consequently, the Planning Commission finds that this chapter is met because the site plan shows that hedges, trees, plantings, fences or wall structures are not located within the vision clearance area; the location of all access points, parking and circulation areas, loading areas and pedestrian walkways are shown within the vision clearance area, and that the vision clearance area is maintained as required by TCDC 18.102.020(B). 9. TCDC Chapter 18.106, °Off-Street Parking and Loading Reguirements.° Response: The Planning Commission finds that the Applicant's site plan demonstrates that the vehicle parking requirements, bicycle parking requirements, designated parking requirements for the handicapped, parking dimension.standard and other standards for parking lot and access drive design are satisfied. The Planning commission finds that this chapter is met. The Planning Commission finds that the Applicant has submitted a site plan meeting the requirements of TCDC 18.106.015(C). The Planning Commission finds that the site plan demonstrates that parking conforms to the requirement of TCDC 18.106.020(A)(1). The Planning Commission finds that TCDC 18.106.020(N) is met because the required number of handicapped parking spaces are provided. The Planning commission finds ?MM-1+0716.1 72523 0009 13 LUBA NO. 94211 Exhibit No. J Page No. that the requirements of TCDC 18.106•.050(A) is met because each parking space is accessible from a street or other right-of- way., The Planning Commission also finds that adequate bicycle parking is provided by virtue of an eight-foot wide bike rack where at least three bicycles can be parked pursuant to the requirement in TCDC 18.106.020(P). The Planning Commission finds that the parking lot will be hard surfaced as required by TCDC 18.106. 10. TCDC Chapter 18.108, "Access, Egress and Circulation." Response: The Planning Commission herein incorporates the findings on this chapter from the lot line adjustment portion of the decision and determines that the findings are applicable to the site development review approval. The Planning Commission finds that the application meets the requirements of this chapter. 11. TCDC Chapter 18.114, "Signs." Response: TCDC 18.114.110(d) requires that a non- conforming sign be brought into compliance with the TCDC. A billboard sign that currently exists on the site is prohibited. Therefore, the Planning Commission finds that as a condition of approval, the billboard sign must be removed. The application includes a description of signage. TCDC 18.114.130(c)(1) establishes the requirements for signage in the C-G district. The Planning Commission finds that the applicable TCDC requirements are met because the proposed ?DX1-140716.1 72523 0009 14 LUBA NO. 94211 Exhibit No. Page No. signage conforms with the TCDC provisions and a condition of approval requires a sign permit. 12. TCDC Chapter 18.150. "Tree Removal." Response: This chapter contains requirements for removal of trees on the site having a trunk six inches or larger in diameter measured four feet above the ground. The Planning'Commission finds that this requirement can be met and imposes a condition requiring compliance with this section. 13. TCDC Chapter 18.164, "Street and Utility Improvements Standards." Response: The Planning Commission finds that the site plan demonstrates that the Applicant will meet all applicable requirements of TCDC Chapter 18.164 that apply to non-land division applications. The Planning Commission finds that this chapter is met. 14. TCDC 18.120.180(A)(2)(a) and (b). Response: The Planning commission finds that the proposed site plan meets the requirements of this section. The proposed building is not located in an area subject to ground slumping or sliding. The proposed building is located to provide adequate distance between adjoining buildings providing adequate light, air circulation and firefighting because the setback requirements of the C-G district are met and no adjoining buildings are located near the proposed building. The existing topography of the site and its natural drainage will be largely maintained. Existing trees are not required to ?Dn-140716.1 72523 0009 17 LUBA NO. 94-211 Exhibit No. I_ Page No. & 17 be removed for construction of the building. The proposed building is oriented with consideration for sun and wind. Because of the lot depth and orientation to the north, the site provides for natural heating and cooling opportunities for the proposed restaurant. There is limited existing vegetation on the site. The property is developed with an older motel and retail commercial building. The proposed landscaping plan provides for the installation of new street trees along the site's frontage on SW Pacific Highway. The landscaping plan also provides for parking lot trees and buffer trees adjacent to the property on the north. Any trees on the site having a six- inch caliber or greater are either preserved or will be replaced by new plantings of equal character. The Planning Commission finds that this section is met. 15. TCDC 18.120.180(A)(3). "Exterior Elevations." Response: The Planning Commission finds that this criterion is inapplicable because it applies only to single- family attached and multi-family structures and the proposed structure on this site is a commercial structure. 16. TCDC 18.120.180((A)(4), "Buffering, Screening and ComDatibilitY Between Adjoininc Uses." Response: The proposed buffering and screening between the Applicant's site and the adjacent single-family home meets the requirements of the buffer matrix in TCDC Chapter 18.100. A ten-foot setback is provided to the edge of ?0X1-150716.1 72523 0009 16 LUBA NO. 94-211 Exhibit No. Page No. 3 the drive-through aisle. The proposed restaurant is located at least 135 feet from the single-family home. The speaker box is located approximately 85 feet from the single-family home. Moreover, the location of the garage on the single-family lot provides some additional buffering between the single-family home and the uses on the Applicant's site. The purpose of the buffer is to decrease noise. levels, absorb air pollution, filter dust and to provide a visual barrier. The Planning commission finds that the proposed buffer and screening meets these requirements. A six- foot-high solid wooden fence combined with landscaping will provide a visual buffer. The setbacks of the restaurant and speaker box to the single-family home, the six-foot-high solid wooden fence and the change in elevation of two-and-one-half and three-and-one-half feet from the Applicant's site to the single-family home will.decrease noise levels. The Planning Commission finds that the proposed landscaping screen will absorb air pollution and filter dust. The Planning.Commission also finds that the size of the buffer is adequate in terms of width and height to mitigate adverse impacts from the Applicant's use to the single-family home, as noted above. The density of the buffering, as shown on the landscaping plan and the six-foot-high solid wooden fence, is adequate to buffer the view of a stationary or mobile viewer and the direction from which buffering is needed, i.e., the north. The Planning commission notes that the screening MXI-1+0716.1 72223 0009 17 LUBA NO. 94-211 Exhibit No. Page No. materials in the buffer are intended and designed to provide a year-round buffer between the two uses. The Planning Commission finds that the buffer and screen are adequate to achieve compatibility between the adjoining uses. The Planning Commission notes that compatibility is not defined in the TCDC. The Planning commission interprets the term "compatibility" to mean capable of existing in harmony, but not requiring absolute mitigation of all impacts from one use to another. The Planning Commission finds that, based on the buffering the screening provided, the distance of the activities on the Applicant's site to the single-family home and the location of the single- family home's garage, the buffering and screening will provide compatibility between the two uses. 17. TCDC 18.120.180(A)(5). "Privacy and Noise." Response: The Planning Commission finds that subsection (a) is not applicable because the proposed structure does not include a dwelling unit. The Planning Commission finds that the proposed restaurant is oriented in a manner protecting private spaces on adjoining properties from view and noise. The site plan shows that the proposed restaurant is oriented toward the west, south and east. The adjoining property is to the north. The Planning Commission finds that this means the proposed building meets subsection (b) because its entrances, windows and activities are oriented away from the single-family home. M-2-140716.1 72523 0009 18 LUBA NO. 94-211 Exhibit No. Page No. 3:)_ Because no residential building is proposed on the site, the Planning Commission finds that subsection (c) is met. Subsection (d) requires that on-site uses creating noise, lights or glare shall be buffered from adjoining residential uses. The Planning Commission notes that lights on the site are located at least 45 feet from the adjacent single-family home, so lights and glare are adequately buffered to the adjoining residential use. The Planning Commission finds that this criterion is met. 18. TCDC 18.120:180(A)(6), "Private Outdoor Use: Residential Use." Response: The Planning Commission finds that this standard is inapplicable because the site development review application does not propose a residential use. 19. TCDC 18.120.180(A)(7), "Shared Outdoor Recreation Areas: Residential Use." Response: The Planning'Commission finds that this criterion is applicable because the application does not propose a residential use. 20*. TCDC 18.120.180(A)(8). "100-Year Flood Plain." Response: The Planning Commission finds that this criterion is inapplicable because the site is not within or adjacent to a 100-year flood plain. ?DX11-140716.1 72523 0009 19 LUBA NO. 94-211 Exhibit No. Page No. 21. TCDC 18.120.180(A)(9), "Demarcation of Public, Semi-Public and Private Spaces: Crime Prevention." Response: The Planning Commission finds that public areas on the restaurant site are clearly defined so that it can be easily determined that persons using the spaces have a right to be there. The Planning commission finds that this criterion is met. 22. TCDC 18.120.180(A)(10), "Crime Prevention and Safety.* Response: The Planning Commission finds that windows for the restaurant are oriented toward SW Pacific Highway so that police vehicles can view the interior of the restaurant. Restaurant windows are also oriented toward the parking lot area so that patrons of the restaurant may observe portions of the parking lot area. Security lighting is provided throughout' the site to minimize and eliminate dark areas. The Planning Commission finds that no interior laundry and service areas or mailboxes are provided on the site plan. The Planning Commission finds that this criterion is met. 23. TCDC 18.120.180(A)(11), "Access and Circulation." Response: The Applicant is required to provide a single driveway to the site pursuant to TCDC 18.180.070. The on-site circulation patterns will accommodate emergency vehicles because of the width of Lhe driveways and the restaurant is located immediately adjacent to a 30-foot-wide driveway. The Planning Commission finds that pedestrian ways MI-140716.1 72323 0009 20 LUBA NO. 94-211 Exhibit No. I_ Page No. and bicycle ways are not shown on an adopted plan, but an interior sidewalk is provided and a sidewalk is provided along Pacific Highway 99W. The Planning Commission finds that this criterion is met. 24. TCDC 18.120.180(A)(12). "Public Transit." Response: Tri-Met is not required to provide bus stop-shelters, bus turn-outs or connecting paths to bus shelters. Tri-Met provides service along Pacific Highway 99W. The site plan provides for pedestrian connections from the restaurant site to sidewalk along Pacific Highway, thereby providing for access to transit service. The Planning Commission finds that this criterion is met. 25. TCDC 18.120.180(A)(13). "Parking." Response: The Planning Commission finds that the requirements of TCDC 18.106.050, .090, TCDC Chapter 18.102, and TCDC Chapter 18.108 are met, as described above. 26. TCDC 18.120.180(A)(14). "Landscanina." Response: The Planning Commission finds as noted above that the site plan complies with TCDC Chapter 18.100. The Planning Commission also finds that 20 percent of the gross area of the site is landscaped. 27. TCDC 18.120.180(A)(15). "Drainage." Response: The site complies with all applicable drainage standards. The 1981 Storm Drainage Master Plan dealt wiz_h system improvements along Fanno Creek and water quality issues relating to newly-developing residential areas. The a7Ci-140716.1 72323 0009 21 LUBA NO. 94-211 Exhibit No. 1 Page No., City Engineering Department has reviewed the drainage issues associated with this request. The Unified Sewage Agency requires the construction of on-site water quality facilities or fees in lieu of their construction. The Applicant has shown to chosen to submit fees in lieu of on-site water quality facilities. The Planning Commission finds that this criterion is met. 28.- TCDC 18.120.180(A)(16), ^Provision for the Handicapped." This chapter requires 'that facilities for the handicapped be provided in accordance with ORS Chapter 487. Chapter 487 has been repealed. The Planning commission finds that this criterion is no longer effective. 29. TCDC 18.120.180(A)(17). °Signs.^ Response: As noted above, the Planning Commission has determined that the application complies with the requirements of TCDC Chapter 18.114, "Signs." 30. TCDC 18.120.180(A)(18). Response: The Planning Commission finds that the requirements of the C-G district are met. TCDC Chapter 18.62 contains the requirements for the C-G district. The permitted uses include a restaurant. The C-G zone does not contain a minimum lot area requirement. The average minimum lot width must be 50 feet. The Planning Commission provides that each of the two lots comprising the site will meet this requirement. No minimum frontyard or sideyard setbacks are established. ?7X-:L0716.1 72523 0009 22 LLRA NO. 94-211 E.Vu'btt No. i Page No. ?t f However, TCDC Chapters 18.100 and 18.102 must be met. As noted above, the Planning Commission has found that these chapters. are met. A 20-foot sideyard setback is required where the C-G district abuts a residential zoning district. Neither sideyard of the Applicant's site abuts a residential zoning district. A 20-foot rearyard setback is required where the C-G district abuts a residential zoning district. The Applicant's site abuts an R-12 district on the rear. The Planning Commission notes that the definition of rearyard describes a yard extending across the full width of the lot between the rear main building and the nearest point of the river line. The Planning Commission finds that the proposed site plan provides for the building location approximately 135 feet from the rear lot line. The C-G district establishes a maximum height of 45 feet. The proposed building is to be 17.5 feet high. The maximum site coverage is limited to 85 percent of the site, including all buildings and impervious services with a requirement of 15 percent of the site be landscaped. The site plan demonstrates that this requirement is met. The Planning Commission finds that this criterion is met. 31. Other Issues. a. Interference with Easement Rights. The appellant argues that the site development review application interferes with the access rights on a 14-foot-wide easement provided from the northerly edge of the Applicant's property to ?0X2-140716.1 72523 0009 23 LU6A NO. 94-271 Exhibit No. Page No. the northerly boundary of Pacific Highway 99W. The Planning Commission rejects this ar ent for several reasons. First, 7 9~ the 1946 deed upon which the appellant relies gives him only two rights over the Applicant's property. The first right is to a 14-foot-wide roadway. The second right is to an unspecified access location on the west side of Pacific Highway 99W. The site development review application does not interfere with either of these rights. Moreover, the Planning Commission notes that the Applicant is improving the appellant'.s ability to use his easement by paving it, providing a curb along the westerly edge of the easement so that Taco Bell customers cannot interfere with use of the easement, and providing a better, less congested location for access to Pacific Highway 99W pursuant to a requirement by the Oregon Department of Transportation. The Planning Commission notes that the easement language does not provide that the easement is entitled to a particular access location on Pacific Highway 99W, nor could it. The Planning Commission notes that ODOT controls the location of access points to its highway. The appellant also argues that his property is land lacked. However, the Planning Commission notes that evidence in the record demonstrates that the appellant has alternative access to its property., The Applicant submitted 11 photographs in rebuttal showing that SW 74th Avenue can be extended to the appellant's property if and when it develops. The Applicant ?DX:-1:0716.1 72523 0009 2 4 LUBA NO.94-211 Extfttt No. Page No. also submitted an aerial photograph in rebuttal showing how SW 74th Avenue can be extended to Tax Lot 1000. Access to SW 74th Avenue and to Spruce Street allows access to the major collector of Oak Street/Pine Street/69th Avenue. This access would provide connections for traffic.from the appellant's property to Taylor's Ferry Road, Hall Boulevard and Pacific .Highway 99W. The Planning Commission finds that the appellant's property is not land locked and the Applicant's proposal does not interfere with its easement rights. Moreover, the Planning Commission notes that the Applicant's proposal improves the easement. Further, the Planning Commission notes that evidence submitted by the Applicant demonstrates that the location of the house on the property is immediately to the east of the appellant's property (Tax Lot 2300) and does not interfere with access to SW 74th Avenue. The Planning Commission finds this evidence persuasive that the Applicant has the ability to gain alte-native access to his property from SW 74th Avenue and does not have to rely on the easement to Pacific Highway 99W. The Planning Commission also notes that the* appellant has provided no evidence that ODOT would permit additional trips to enter Pacific Highway 99W from the easement: The appellant also argues that ODOT would permit a- different access point and, alternatively, that the access point cannot be changed. The Planning Commission finds that this record includes an August 19, 1994 letter from Gary McNeel ?=1-140715.1 72523 0009 25 LUBA NO. 94-211 Exhibit No. Page No. of ODOT District IIA, in which Mr. McNeel gave four reasons for requiring the easement access location to be changed and then concluded: "ODOT does not anticipate any negative effects to the proposed realignment of the subject driveway into the existing signal light at the jug handle. The positive attributes (in addition to eliminating the four conditions enumerated above) of this connection will be ingress to the parcel without slowing ORE 99W traffic and egress via the signal." The appellant also argues that the revised access point is unacceptable to both ODOT and Tualatin Valley Fire and Rescue District ("District"). The Applicant submitted an architectural site plan in rebuttal as modified September 20, 1994 for fire access showing condition approval from both the • District's Fire Marshall's office and from Gary McNeel. The architectural site plan shows that an altered curb at the existing access easement will satisfy both agencies' requirements for emergency vehicle access to that easement. Therefore, the Planning Commission rejected the appellant's argument that the revised access location would not be suitable for emergency vehicle use because ODOT and the District have agreed to a revised curb design on the existing access location which continues to permit emergency vehicle use. The Planning Commission finds that TCDC 18.120.180(11), "Access and Circulation," which requires that all circulation patterns within any development shall be designed to accommodate emergency vehicles is satisfied. s ?OX1-1+0716.1 72523 0009 26 LUBA NO. 94-211 ExhWit No. Page No. 4 _ b. The appellant argues that the TCP is applicable to a request for site development review approval. TCDC 18.120.180 contains the•approval standards for site development review. The TCP is not listed among the applicable approval standards. The appellant cites TCDC 18.10.010(A) as authority for his argument. This section, entitled "Consistency with the Plan and Laws," provides as follows: "Each development and use application and other procedure initiated under this - title shall be consistent with the adopted comprehensive plan of the City of Tigard as implemented by this title and with applicable state and federal laws and regulations. All provisions of this title shall be construed in conformity with the adopted comprehensive plan." "Title" is defined as the Tigard Community Development Code. The Planning Commission finds that the plain and unambiguous language of TCDC 18.10.010(A) means that the TCP is implemented through the TCDC. Unless another law requires the Planning Commission to apply TCP provisions to a permit decision, the TCP is inapplicable. The appellant also argues that TCDC 18.08.010(0) requires that the TCP be applied to this decision. The Planning Commission finds that this provision is meant to construe general and specific provisions dealing with the same subject matter in harmony. The TCP provisions cited by the appellant are either irrelevant to the application (such as the TCP Housing Policy) or do not conflict with specific TCDC policies. Therefore, TCDC 18.08.010(C) is inapplicable. ?.^..`C_-1+0716.- 72523 0009 27 LUBA NO. 94211 Exhibit No. I Page No. `f i The appellant argues that TCP Housing Policy 6.1.1 applies to this application. The Planning commission finds that it does not. This policy calls for the City to encourage residential development. The Planning Commission notes that nothing the Applicant is proposing discourages residential development. In fact, the appellant's failure to pursue residential development on his R-12 zoned property is the reason his site is not developed to its maximum density. There is no evidence in the record that the City has failed to meet the metropolitan housing rule. Finally, the Planning Commission notes that the planning staff has indicated that it is willing to work with the appellant to provide appropriate access to his property, but that the access should be from SW 74th Street. The Planning Commission finds that TCP Housing Policy 6.1.1 is not an applicable mandatory approval criteria for this application. The appellant also argues that TCP Policy 8.1.3(a) is applicable. This policy provides that: "The City shall require as'a precondition to development approval that: "a. Development abut a publicly- dedicated street or have adequate access approved by the appropriate approval authoritv." The Planning Commission finds that this TCP policy requires that only the Applicant's property abut a publicly- dedicated street or have adequate access. The application before the Planning Commission is for site development review ?OX_-1-40716.1 72323 0009 28 LUBA NO. 94-211 Exhibit No. Page No. '~Q by the Applicant, not the appellant. The Planning Commission finds that TCP Policy 8.1.3(a) does not require a permit applicant to provide additional access for another property. Moreover, the Planning Commission finds that the appellant abuts SW 74th Street and has legal nonconforming access via the easement to SW Pacific Highway. The appellant also argues that TCP Transportation Policy 8.1.3(d) is applicable to this request. This policy requires developers to participate in improvement of existing streets to the extent of their development impact. The Planning Commission finds that the site development review application before it does not have any impact on the appellant's easement. Finally, the appellant argues that TCP Policy 8.1., Implementation Strategy 5, requires the Applicant to provide additional right-of-way to the appellant's property. The Planning Commission finds that the existing developed access to the appellant's property is nonconforming and may continue. Moreover, the Planning Commission notes that the ultimate development and density of the appellant's property is unknown, so it is impossible to require specific additional right-of- way to be dedicated to the appellant's property at this time. C. The appellant argues that TCDC Chapter 18.164, "Street and Utility Improvement Standards," is not met. The appellant argues that TCDC 18.164.030(C) requires the Applicant to widen the easement across the Applicant's ?D:C_-140716.1- 72523 0009 29 LUBA NO. 94-211 Exhibit No. I_ Page No. Li,____ property. The Planning Commission notes that this section is entitled "Creation of Access Easements." The appellant's access easement is existing, not being created. Therefore, the Planning commission finds that this section is inapplicable. The appellant also argues that TCDC 18.164.030(I) is not satisfied. This section is entitled "Existing Rights-of- Way" and requires that wherever existing rights-of-way are less than standard width, additional width is to be provided at the time of development. The Planning Commission rejects the appellant's argument for two reasons. First, it finds that the provision is intended to apply to the Applicant's property and not other property. In other words, the Planning Commission finds that if the Applicant's property is served by substandard rights-of-way, the Planning Commission may require additional rights-of-way in order to serve the Applicant's property. This section does not require the Planning Commission to impose a requirement that the Applicant dedicate additional right-of- way to serve other properties. Secondly,. the Planning Commission notes that the appellant argues for additional right-of-way-based on future development of his R-12 zoned property. The Planning Commission notes that site development review approval is required for all new developments. TCDC 18.120.020(A). Site development review is required in the R-12 zone. TCDC 18.54.060(A)(4). Because the appellant has neither applied for nor received site development review approval, it ?DX1-1+0715.1 72523 0009 30 LUBA NO. 94-211 Exhibit No. / Page No. 41 Ll ,is impossible to determine what kind of development may occur on its property in the future and, therefore, it is impossible to determine what additional, if any, right-of-way is necessary to serve his property. d. The appellant argues that the Planning Commission should refer the application to the Tigard City Council pursuant to TCDC 18.32.310(8)(3). The Planning commission rejects the appellant's request for two reasons. First, the TCDC provision he relies upon expressly requires that the matter be referred by the Planning Commission upon closure of the hearing. The appellant did not request that the matter be referred to the City Council prior to the public hearing's closure on September 12. Because the appellant made i the request in a September 19 letter, seven days after the Planning Commission closed the public hearing, the Planning Commission finds that the request was untimely. Secondly, the Planning commission finds that there is no policy issue which requires council deliberation and determination. Finally, the Planning Commission notes that the Planning Director gave the appellant 20 days instead of 10 days to file an appeal of the Director's decision in order for the appellant to have a greater opportunity to ask the City Council to call the mater up pursuant to TCDC 18.32.310(A)(1). The appellant did not exercise his right to request that the Council call the matter up. ?O:C1-240716.1 7Z.423 0009 31 LUP:A NO. 94-211 Exhibit No. I Page No. LIU e. The Applicant argues that the appellant filed his appeal too late because there was a city council hearing within the initial 10-day appeal period, thus prohibiting the Director from granting a longer appeal period. The Planning Commission declines to reject the appeal on this basis. e. The Appellant argues that the Applicant should be required to move the driveway to the westerly side of the property. The Planning Commission relies on substantial evidence in the record to find that moving the driveway is not required by the easement and cannot be done according to the Applicant's plans. f. The Appellant also argues that the Applicant requires permission from the property owners to modify the access easement. The Planning Commission finds that the language of the access easement does not require such permission and that, as noted above, ODOT controls the location of all access points to state highways. Moreover, the Planning Commission notes that the only modification of the access by the property owners is paving of the easement and installation of a curb along its westerly boundary to prevent interference with the easement by the Applicant's customers. The Planning commission rejects this argument. g. The Appellant argues that TCDC 18.108.070(A) is applicable and requires an increased easement width to serve his existing single-family structure. The 73523 0009 32 LUBA NO. 94-211 Exhibit No. 1 Page No. ~.S Planning Commission rejects this argument because the existing access serves an existing residential use. It is a nonconforming access and nothing on the Appellant's property is changing which requires the access to be increased. The Planning Commission finds that TCDC 18.132.010(B) provides that the existing access may continue to serve the existing use. IV. CONCLUSION The Planning Commission hereby DENIES the appeal and upholds the Director's decision subject to the conditions of approval contained in the Director's decision, including new Condition of Approval 7(h) requiring the establishment of six- foot-high solid wooden fence along the Applicant's northerly property line. • ?4X1-1+0716.; 72523 0009 33 LUBA NO. 94-211 - Exhibit No. I Page No. 4(r j_.~1,'LI,~J~ } ll MICHAEL C ROBINSON JENNIFER BRION 900 SW 5TH S-2300 PLANNING DESIGN GROUP PORTLAND OR 97204 122 SE 27TH PORTLAND OR 97214 DAVE KIi`M4EL PLANNING DESIGN GROUP 122 SE 27TH AVE PORTLAND OR 97214 GREG LUTJE MIKE RANDLES 400 LINCOLN CTR TOWER 597 INDUSTRY DR TIGARD OR 97223-5575 TUKWILA WA 98188 MITCHELL GENSMAN 963 SW WESTWOOD DR PORTLAND OR 97201 LEE GENSMAN 16840 SW PARRETT MTN RD SHERWOOD OR 97140 KEN WATTS PO BOX 23095 TIGARD OR 97281 A DROVER CORBIN 4680 SW DOG'-OOD DR LAKE OSWEGO OR 97035 46/LARSON 23275 NW DORLk~ RD HILLSBORO OR 97124 LUBA NO. 94-211 Exhibit No. 1 Page No. 7 CITY OF TIGARD OREGON - PUBLIC NOTICE: Anyone wishing to speak on an agenda item should sign on the appropriate sign-up sheet(s). ° Assistive Listening Devices are available for persons with impaired hearing and should be scheduled for Planning Commission meetings by noon on the Monday prior to the meeting. Please call 639-4171, Ext. 356 (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 Wednesday preceding the meeting date at the same phone numbers as listed above. SEE ATTACHED AGENDA LUBA NO. 94-211 PLANNING COMMISSION 9/26/94 - PAGE 1 Exhibit No. Page No. CITY OF TIGARD PLANNING COMMISSION SEPTEMBER 26, 1994 - 7:30 P.M. : AGENDA 1. CALL TO ORDER 2. ROLL CALL 3. APPROVE MINUTES 4. PLANNING COMMISSION COMMUNICATIONS 5. PLANNING COMMISSION DELIBERATION FROM SEPTEMBER 12, 1994 PUBLIC HEARING 5.1 SITE DEVELOPMENT REVIEW SDR 94-0003 PDG/CORBIN/TYSON LOCATION: 11631 and 11635 SW Pacific Highway (WCTM 1 S1 36DB, tax lots 700 & 600). An appeal was filed of a Director's Decision approving a Site Development Review to allow construction of an approximately 1,989 square foot drive-thru restaurant with related site improvements. APPLICABLE APPROVAL CRITERIA: Community Development Code Chapters 18.32, 18.62, 18.84, 18.92, 18.94, 18.96, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.144, 18.150, 18.162, and 18.164. ZONE: C-G (General Commercial) The C-G zone allows public agency and administrative services, public support facilities, professional and administrative services, financial, insurance, and real estate services, business support services, and eating and drinking establishments among other uses. 6. OTHER BUSINESS 7. ADJOURNMENT LUBA No. 94-211 PLANNING COMMISSION 9/26/94 - PAGE 2 Exhibit No. Q Page No. L44 TIGARD PLANNING COMMISSION Regular Meeting Minutes - September 26, 1994 1. CALL TO ORDER President Pyre called the meeting to order at 7:30 p.m. The meeting was held in the Tigard Civic Center-Town Hall-13125 SW Hall Blvd. 2. ROLL CALL Present: President Pyre, Commissioners DeFrang, Holland, Moore, Saxton, Schweitz and Wilson Absent: Commissioners Collson and Saporta Staff: Dick Bewersdorff, Senior Planner; Mark Roberts, Assistant Planner and Leslee Gemmill, Planning Commission Secretary 3. APPROVE MINUTES Commissioner Holland motioned to accept the September 12, 1994 meeting minutes as submitted and Commissioner Wilson seconded the motion. A voice vote was taken and the motion was approved unanimously. Commissioner Saxton abstained. 4. PLANNING COMMISSION COMMUNICATIONS None 5. PLANNING COMMISSION DELIBERATION FROM SEPTEMBER 12, 1994 PUBLIC HEARING. 5.1 SITE DEVELOPMENT REVIEW SDR 94-0003 PDG/CORBIN/TYSON LOCATION: 11631 and 11635 SW Pacific Highway (WCTM 1S1 36DB, tax lots 700 & 600). An appeal was filed of a Director's Decision approving a Site Development Review to allow construction of an approximately 1,989 square foot drive-thru restaurant with related site improvements. APPLICABLE APPROVAL CRITERIA: Community Development Code Chapters 18.32, 18.62, 18.84, 18.92, 18.94, 18.96, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.144, 18.150, 18.162 and 18.164. ZONE: C-G (General Commercial) The C-G zone allows public agency and administrative services, public support facilities, professional and administrative services, financial, insurance and real estate services, business support services, and eating and drinking establishments among other uses. Mark Roberts, Assistant Planner, informed the Commissioners that deliberation was to continue at this meeting for the appeal filed for the Director's Decision to approve the Taco Bell proposed at 11631 SW Pacific Hwy. At the September 12, 1994 hearing, the appellant requested the record be held open for seven days to submit new evidence and the applicant requested seven days to respond to new evidence. Both the applicant and appellant did so and the new evidence was provided in the packet and the applicant provided additional response today to the issues raised by the appellant. Mark Roberts said the Taco Bell site maintained existing access to the residential properties to the north which was the purpose of the appeal and that ODOT and staff comments were indicated in the record. The applicant provided a fire and safety vehicle access plan for the project. He further stated assistance with the LUBA NO. 94-211 Exhibit No. Page No. provision of access to SW 74th to the Gensman properties would be most appropriate upon submission of a detailed development proposal. through Site Development Review or subdivision process. Mark Roberts stated that the City Attorney indicated a further continuance was not required in this instance. He then informed the Commissioners that the appellant asked that this matter be referred to the City Council for review due to policy issues involved with access to residential uses and in conclusion, he stated that staff recommend Planning Commission deliberate and act on the appeal at this meeting. Mark Roberts, using overheads, reviewed for the Planning Commissioners the revised site plans and highlighted information submitted by the applicant. He reviewed the information the applicant submitted that demonstrated how access could be provided from SW 74th. Assistant Planner Roberts answered questions directed by the Planning Commissioners regarding the proposal and again using the overheads, addressed the Commissioners concerns regarding access to the existing properties. Mark Roberts began to read a letter from the applicants attorney that was submitted today that indicated evidence relied upon by the applicant must be submitted to the City and be available to the public at least 20 days prior to the hearing and that any party was entitled to a continuance of the hearing if additional documents were provided that supported the application after the 20 day cut off period. Mark Roberts said Mr. Robinson's materials were supplied seven days after the hearing. At this time, a guest objected stating that even though his objection wasn't appropriate, the letter shouldn't be read at tonights meeting. Mark Roberts responded that the letter was not new evidence but merely information concerning the process and that the continuance was not applicable in this instance because the public hearing portion of the meeting on September 12, 1994 was continued for a specific period of time allowed for the applicants response to any new materials submitted. Mark Roberts then stated that the City Attorney recommended the Planning Commission disregard that, deliberate and hopefully reach a decision on the appeal at this meeting. The Planning Commissioners, at the suggestion of Dick Bewersdorff, took the time necessary to review the applicants rebuttal. Commissioner Saxton, due to his absence at the September 12, 1994 Planning Commission hearing, asked for clarification and additional information on the 14' access and 40' right of way. Using overheads, staff and the other Planning Commissioners addressed his questions and then continued their discussion regarding the appeal. PLANNING COMMISSION MEETING MINUTES - September 26, 1994 - Page 2 LUBA No. 94-211 Exhibit No., Page No. Commissioner Holland said he didn't have a problem with the Taco Bell design but was concerned with the surrounding properties not having access in the future. Commissioner Moore stated that his concern two weeks ago about emergency vehicle access had been worked out and he saw no reason to uphold the appeal. Mark Roberts addressed the Commissioners and said that at the public hearing portion of the September 12, 1994 meeting, the applicant requested to be able to write the findings for this decision. Commissioner Holland motioned to deny the applicants appeal and Commissioner Moore seconded the motion. A voice vote was taken and the motion was approved unanimously with the findings to be prepared by the applicant. 6. OTHER BUSINESS Senior Planner Bewersdorff reminded the Planning Commissioners of the joint meeting with the City Council on Monday, October 3, 1994 and highlighted some of the agenda items for future Planning Commission meetings. Commissioner Holland briefly summarized for the Planning Commissioners the results of the recent Task Force meeting regarding the 99W and Hall Boulevard improvements and other Tigard transportation problems. 7. ADJOURNMENT The meeting adjourned at 8:15 p.m. Leslee Gemmill Planning Commission Secretary T: P re PLANNING COMMISSION MEETING MINUTES - September 26, 1994 - Page 3 LUBA NO. 94-211 Exhibit No. 3 Page No. r MEMORANDUM CITY OF TIGARD, OREGON TO: Planning Commission FROM: Mark Roberts, Assistant Planner a3: DATE: September 20, 1994 SUBJECT: Additional information submitted for the record On Monday September 19th the appellant, the applicant, and the attorney representing Mr. Morris submitted additional information concerning the appeal to the Director's Decision to approve Site Development Review #94-0003. The record was held open for seven-.days from the September 12, 1994 public hearing at the request of the appellant. The appeal concerned site access for adjoining residential properties to the north of the proposed Taco Bell site. LUBA NO. 94-211 Exhibit No. G _ Page No. 5 GREGORY G. LVTJE Attorney at Law 400 Lincoln Center Tower Portland, Oregon 97223-5575 Tel: (503) 293-8347 Fax: (503) 293-3559 September 19, 1994 Tigard Planning Commission 13125 SW Hall Blvd. Tigard, OR 97223 Re: Appellant's Supplemental Materials on SDR 94-0003; Proposed Taco Bell Restaurant at 11631-35 Pacific Hwy Dear Commission: As allowed at last Monday's Hearing and under ORS 197.763(6), these materials are being submitted to provide the Commission with the specific grounds by which the Application of Taco Bell must be denied and the appeal granted. The Approval Standards for a Site Development Review are stated, in part, in CDC 18.120.180. CDC 18.120.180(A)(1)(j) incorporates the provisions of Chapter 18.108-Access, Egress, and Circulation, as an approval criterion. 18.108-Access, Egress, and Circulation. The purpose of the Chapter is "to establish standards and regulations for safe and efficient vehicle access and egress on a site and for general circulation within the site." 18.108.010. The Taco Bell Application should have been referred by the Director to the Commission under 18.108.060(A)(2) and (3) because the proposed altered access to Appellant's property is inadequate for emergency vehicles and constitutes a clear and present danger to the public health, safety and general welfare. See, letters to Mitchell Gensman from Brad Wanamaker, Deputy Fire Marshal, Tualatin Valley Fire & Rescue Department, attached as Exhibits A and B hereto. Under 18.108.070(A), vehicular access for single-family units shall not be less than 25 feet in width, and the pavement shall be at least 20 feet wide. Since tax lots 800 and 900 solely depend upon the subject property for access, and because of the access alteration allegedly being imposed upon Taco Bell by ODOT, this Application fails to comply with the residential use requirements under 18.108.070. Note, the record does not contain any materials from ODOT supporting Taco Bell's allegation that ODOT is imposing the access modification. Additionally, if the R-12, multi-family zoning aspects of tax lots 900 and 1000 are taken into consideration, (they would together allow up to 20 units of housing), 18.108.070(D) mandates that a minimum 30 foot wide access with 24 feet of paving and 5 foot walkways with curbs shall be LUBA NO. 94-211 Exhibit No. Page No..__:- Tigard Planning Commission September 19, 1994 Page 2 provided. The Taco Bell Application fails to comply with this required criterion. 18.120.180(11)-Access and Circulation. 18.120.180(11) covers access and circulation, and states under part (b) that "all circulation patterns within a development shall be designed to accommodate emergency vehicles". As stated in the Fire Marshal's letter of September 8, 1994, the Taco Bell Application must comply with the turn radii, roadway widths and turnaround specifications of the Fire Department. The Application fails to do so and thus must be denied and this appeal granted. 18.164-Street and Utility Improvement Standards Approval Standard 18.120.180(A)(1)(m) incorporates Chapter 18.164-Street and Utility Improvement Standards, as a criterion. Part (I), Existing Rights-of-Way, states that "Whenever existing rights-of-way adjacent to or within a tract are of less than standard width, additional rights-of-way shall be provided at the time of subdivision or development. "Right-of-way" is defined in 18.26 to be a strip of land occupied or intended to by occupied by a street; and "street" is defined to be a public or private way that is created to provide ingress or egress for persons to one or more lots, parcels, areas or tracts of land. These definitions include the existing 14 foot access to Appellant's property. Since the existing 14 foot wide right-of-way within the subject tract that provides the sole access to tax lots 800 and 900 is of less than standard width, this Application cannot be approved until and unless the right-of-way is brought up to standard. Comprehensive Plan Policies 6 and 8. Applicants contend that the Comprehensive Plan Policies are not applicable to this review. Although the purpose of the Community Development Code ("CDC") is to implement the comprehensive plan (18.02.010), Section 18.10.010 mandates that all development applications must be consistent with the comprehensive plan and that the CDC must be construed in conformity with the comprehensive plan, and 18.08.010(C) requires that the more restrictive standards shall govern. Housing Policy 6.1.1 requires the City to provide opportunities for diverse housing types at varying prices and rent levels. Its Implementation Strategies 2 and 5 require the City to comply with the Metropolitan Housing Rule and encourage housing development to occur, to the greatest extent possible, on buildable lands. These are heavy obligations for the City, and the City must determine how the many acres of buildable R-12 zoned property north and west of the subject site will be accessed. Otherwise, the City LUBA NO. 94-211 Exhibit No. Page No. Tigard Planning Commission September 19, 1994 Page 3 will be violating its comprehensive plan. Transportation Policy 8.1.3(d) obligates the City to require as a precondition to development approval that individual developers participate in the improvement of existing streets to the extent of the development's impacts. Here, Taco Bell's proposed development negatively impacts Appellant's access to his property, but the proposal does not require Taco Bell to participate in the improvement of the existing street (see discussion of the definition to "street" three paragraphs above) to Appellant's property. Therefore this Application fails to comply with Policy 8.1.3(d). See, policies 8.1.3(b) and (c) for related issues on street right-of-way widths and construction of streets within the development. Implementation Strategy 5 to Policy 8.1 mandates that the CDC "require developers of land dedicate necessary rights-of-way[s] and install necessary street improvement to the City's standards when such improvements have not been done prior to the developer's proposals." To the extent that the CDC does not already impose such a requirement, this provision of the Comprehensive Plan must be imposed on this development pursuant to 18.10.010. Referral to City Council. If this body agrees with Appellant that significant policy issues exist involving the access and housing matters, then an alternative to granting or denying the appeal is to refer the matter to the Council as allowed under 18.32.3109(A)(3). Thank you for this opportunity to present Appellant's position in this matter. I hope you agree with us that the Taco Bell Application, as currently presented, must be denied because it fails to comply with the Tigard Development Code and Comprehensive Plan. Ve truly yours, ` Gre G. Lu j e YX Encl . cc: Mitchell Gensman Michael Robinson Mark Roberts Pamela J. Beery LUBA NO. 94-211 Exhibit No. 4 Page No.-L-9 Mitchell Gensman September 24, 1994 Page 2 Please submit plans on the proposed roadway alterations for our file. If I can be of any further assistance to you, please feel free to contact me at 526-2469. Sincerely, Bradley Wanamaker Deputy Fire Marshal BNW:kw i LUBA NO. 94-211 Exhibft No. 4 Page No. 5 "7 . TUALATIN VALLEY FIRE & RESCUE AND BEAVERTON FIRE DEPARTMENT 4755 S.W. Griffith Drive • P.O. Box 4755 • Bmtwrunt. OR 97076 • (503) 5264469 • FAX 526-2538 September 8, 1994 Mitchell Gensman 963 S.W. Westwood Dr. Portland, Oregon 97201 Re: Pacific Highway Access Roadway 11623 S.W. Pacific Highway Tigard, Oregon Dear Mr. Gensman: As per our meeting and subsequent discussion, the above mentioned multi-family residential access roadway-needs to be modified. The existing roadway was installed under less restrictive requirements, however, changing the road's entrance will require the road to be updated to comply with the current fire service access standards (enclosure). All inside and outside turn radii, roadway widths, and turnarounds must comply with the standards identified in the enclosure. If I can be of any further assistance to you, please do not hesitate to contact me. Sincerely, Bradley N. Wanamaker Deputy Fire MarshaL BNW:kw Enc. LUBA No. 94-211 Exhibit No. '-j_ "Workint" Sru6ke CwtecLon Save Lives Page No. -J, X t 04 0 TUALATIN VALLEY FIRE & RESCUE AND BEAVERTON FIRE DEPARTMENT 4755 S.W. Griffith Drive • P.O. Box 4755 • Beaverton, OR 97076 • (503) 526-1469 • FAX 526-2538 September 14, 1994 Mitchell Gensman 963 S.W. Westwood Dr. Portland, Oregon 97201 Re: Pacific Highway Access Roadway 11623 S.W. Pacific Hwy. Tigard, Oregon Dear Mr. Gensman: As a follow-up and clarification to my original letter, you are correct on your interpretations. First of all, the access roadway that I referred to is for single family dwellings. The more single family dwellings developed in an area increases both traffic flow, parking patterns, and the likelihood that we will need to respond and access an area,.therefore, wider roadways. Secondly, when we review a site plan, we look at the number of building sites allowed by the building department and require the roadways.to comply with the number of potential residences indicated, even if there are only one or two in existence. Thirdly, our fire department ordinance requires fire hydrants be to within 500 feet of non-commercial buildings, as measured in an approved manner along the route of travel accessible to fire apparatus. The number of hydrants, in this case, does not impact the road design or width requirements. Insofar as the statement that is acceptable for fire and rescue vehicles to jump the curb for necessary access, there are instances and designs which would allow for fire department vehicles to jump a curb, however, these areas are specifically designed to carry both gross and per wheel vehicle weight as covered in the outline. There are also specific curb designs for that type of design. It is rarely less difficult than designing proper turn radii. s LUBA NO. 94-211 Exhibit No. Li Page No. Wprkino'• Smolre r'wer.mri Save Lives RECEIVED SEP 2 6 1994 COMMUNITY DEVELOPMEN► L4yalft ell 11 P.C. ATTORNEYS AT LAW September 19, 1994 Taco Bell Site Development Review SDR94-0003 11623 SW Pacific Hwy. Tigard, Oregon Pacific Hwy. Access Roadway Via Facsimile and First Class Mail Mark Roberts Community Development Assistant Planner City of Tigard 13125 SW Hall Blvd. Tigard, OR 97223 Dear Mark: As you know, I represent the owners of the property at 11621 SW Pacific Hwy., Tigard, Oregon. I am writing this letter to register our concern over the access modification of the fourteen foot easement running along the easterly boundary of the proposed Taco Bell site. This is a sole ingress and egress easement for three properties to the north of the Taco Bell site. The recent letter from Bradley Wanamaker to Mitchell Gensman indicates that moving the access off of 99 and onto the adjacent jug handle may not comply with current fire service access standards. The access onto the easement fro.., the jug handle appears to have too sever of a turning radius to accommodate fire and safety vehicles. Before the Taco Bell Site Development Review can be approved, the following issues need to be resolved: 1. The City of Tigard has neither sought nor obtained the permission from the owners of the three parcels north of the Taco Bell site to modify their access rights. 2. The owners oppose any access modifications which do not comply with fire, police and safety access standards. r, 3. Unless there is a condemnation proceeding, we N J J dispute the authority of the State of Oregon, Department of OZ Z=: 9A 4240 S.W. Cedar Hills Blvd. 0 Beaverton, Oregon 97005 • Telephone 503/641-6262 0 Fax 503/644-1883 J .g t Mark Roberts September 19, 1994 Page 2 Transportation to unilaterally redirect the 14 foot easement off of 99 and onto the jug handle. In closing, I request on behalf of my clients that any further decisions on the Taco Bell site development review be postponed until the access safety issues and the right of the owners not have their easement interfered with can be resolved. If you have any questions, please call me. Ver ru y urs J y JMC:tal cc: Larry and Joan Mo s Salvador and Mercedes Galvan Bradley N. Wanamaker via Fax Michael C. Robinson via Fax g:\c1ient\morris\roberts.1tr MY attt LUBA NO. 94-211 Exhibit No. ~ 4 ell ll Page No. i A STOEL RIVES BOLEY JONES & GREY ATTO R N E YS AT LAZY SUITE 2300 STANDARD INSURANCE CENTER 900 SW FIFTH AVENUE PORTLAND. OREGON 97203-1268 Telephone (503) 733.3380 Telecopirr (503) 220-2480 Cable Lau-port Telex 703455 Writer's Direct Dial Number (503) 294-9194 September 26, 1994 VIA MESSENGER Mr. Milton Fyre, Chairman Tigard Planning Commission 13125 SW Hall Boulevard Tigard, OR 97223 Re: Case File No. SDR94-0003; Appeal by Mitchell Gensman of Director's Approval of Site Development Review Application Dear Mr. Fyre: As you know, the Planning Commission held the record open from September 19 until September 26 at 5:00 p.m. for the applicant to rebut evidence received during the first seven- day period in which the record was open. This letter constitutes the applicant's rebuttal to attorney Lutje's September 19 letter and attorney Cheyne's September 19 letter. 1. A CONTINUANCE OF THE PUBLIC HEARING IS NOT REOIIIRED. Mr. Gensman has requested that the public hearing be continued under ORS 197.763(4)(b). This statute provides as follows: "Any staff report used at the hearing shall be available at least seven days prior to the hearing. If additional documents or evidence is provided in support of the application, any party shall be entitled to a continuance of the hearing. Such a continuance shall not be subject to the limitations of ORS 215.428 or 227.178." Mr. Gensman does not argue that the applicant submitted additional documents or evidence between August 24 LUBA NO. 94-211 PDX1-142124.1 72523 0009 Exhibit No. Page No. (,t _ PORTLAND. SEATTLE. BELLEVUE. VANCOUVER. 8OtSE. SALT LAKE CITY. WASHINGTON. - OREGON WASHINGTON WASHINGTON WASHINGTON IDAHO UTAH DISTRICT OF COLI:MSIA STOEL RIVES COLEY IONES & GREY Mr. Milton FYre September 26, 1994 Page 2 (the date after the City mailed notice of the September 12 hearing) and the September 12 hearing. Mr. Gensman argues that since the applicant submitted additional evidence after the public hearing was closed but during the period in which the record was open, he is entitled to a continuance of the public hearing. Mr. Gensman is incorrect. The City attorney agrees that a continuance of the public hearing is not required. See Exhibit 1, September 23, 1994 letter from Pamela J. Berry to Gregory G. Lutje. The Planning Commission closed the-public hearing on September 12 but held the record open for seven days at the request for Mr. Gensman. Mr. Gensman did not make a motion to continue the public hearing under ORS 197.763(4)(b) while the public hearing was open. Neither did he request the right to rebut evidence submitted by the applicant during the initial seven-day period in which the record was open. Mr. Gensman has, therefore, waived his right to a continuance of the local hearing and to rebuttal of evidence submitted by the applicant. Motions to keep the record open, rebut evidence and continue a public hearing must be made before the public hearing is closed, not afterward. See Citizens for Responsible Growth v City of Seaside, Or LUBA (LUBA No. 93-163, January 31, 1994). Mr. Gensman requested that the record remain open under ORS 197.763(6). This statute provides as follows: "Unless there is a continuance, if a participant so requests for the conclusion of the initial evidentiary hearing, the record shall remain open for at least seven days after the hearing. Such an extension shall not-be subject to the limitations of ORS 215.428 or 227.178." ORS 197.763(4)(b)and (6) are alternatives. Because ORS 197.763(6) expressly provides that a record may not be held open-if there is a continuance request, the clear implication is that where a record is held open, a continuance may not be granted. Because Mr. Gensman chose to keep the record open, he cannot now request a continuance. Moreover, Mr. Gensman never had a right to a continuance under ORS 197.763(4)(b) because the applicant did not submit additional documents or evidence after the City mailed notice of the public hearing. It would also be unfair for the appellant to request that the record LUBA NO. 94-211 PDX1-142124.1 72523 0009 Exhibit No. Page No. 1n 3 S70EL RIVES BOLEY JONES & GREY Mr. Milton Fyre September 26, 1994 Page 3 remain open, thereby allowing the applicant to submit additional evidence, and then request, based on that additional evidence, that the public hearing be continued. Finally, Mr. Gensman has no right to a continuance based upon the evidence submitted by the applicant after the public hearing closed. Not only did he fail to request the right to rebut such evidence, the right to rebuttal is given to the applicant and not the appellant. Tigard Community Development Code ("TCDC") 18.32.160(B)(8). The Planning Commission should reject Mr. Gensman's motion for a continued public hearing. 2. THIS MATTER SHOULD NOT BE REFERRED TO THE CITY COUNCIL. Mr. Gensman has requested that the Planning Commission refer the application to the City Council pursuant to TCDC 18.32.310(B)(3).1 This section provides as follows: "Any decision made by any other approval authority under subsections 18.32.090.B or C may be reviewed by the Council by: * * Referral of a matter under subsection 18.32.090.B by the initial hearing body to the Council, upon closure of the hearing, when the case presents a policy issue which requires Council deliberation and determination, in which case the Council shall decide the application." Mr. Gensman's request to refer the matter to the City Council should be denied for two reasons. First, the TCDC provision that he relies upon expressly requires that the matter be referred by the Planning Commission upon closure of the hearing. The Planning Commission closed the public hearing on September 12 without referring the matter to the City Council. Because Mr. Gensman failed to make his request at that time, it may not now be made. 1 Mr. Gensman's attorney's letter refers to TCDC 18.32.3109 (A) (3) . LUBA NO. 94-211 PDX1-142124.1 72523 0009 r:xhlbit No. 4 Page No. _STOEL KIVES- COLEY JONES & L.REY Mr. Milton FYre September 26, 1994 Page 4 Secondly, the entire reason that the Planning Director gave Mr. Gensman twenty days instead of ten days to file an appeal, as allowed under TCDC 18.32.300(A), was so that he had a greater opportunity to ask the Council to call the matter up pursuant to TCDC 18.32.310(A)(1). It is entirely inconsistent with an extended appeal period for Mr. Gensman to have the right to ask the City Council to hear his appeal now. There is no policy matter to be heard by the City Council and a referral would unnecessarily prolong the City's final decision on the application. The Planning Commission should deny Mr. Gensman's request to refer this matter to the City Council. 3. THE APPLICANT IS NOT REQUIRED TO PROVIDE AN INCREASED EASEMENT AND PAVEMENT WIDTH FOR ACCESS TO MR. GENSMAN'S PROPERTY. The basis for Mr. Gensman's argument that the applicant must provide an additional-right-of-way to serve his property is based upon a theory that the applicant is somehow altering Mr. Gensman's access to Pacific Highway 99W. The applicant is not altering the access easement to Mr. Gensman's property in any way that affects his use of the property. The easement width remains the same and access to Pacific Highway 99W continues. Mr. Gensman will have the same access after the applicant develops the property as he did before. Moreover, Mr. Gensman could have approached the property owners to acquire additional right-of-way prior to this application, but has not done so. Instead, he wants to use the applicant's permit request to provide additional right- of-way free of charge. It is interesting to note that Mr: Gensman now states that the access width is "inadequate for emergency vehicles and constitutes a clear and present danger to the public health, safety and general welfare." In addition to the fact that the letters from the Tualatin Valley Fire and Rescue District do not support Mr. Gensman's argument, Mr. Gensman apparently has not believed that the 14 foot wide access easement was a danger in the past because he has not taken any steps to correct it. What Mr. Gensman wants the City to do is what the United States Supreme Court has held in Dolan v. City of Tigard that the City may not do. The Supreme Court said in Dolan that a dedication requirement must have some "reasonable Poxt-142124.1 M23 0009 LUBA NO. 94-211 Exhibit No.a Page No. i d r:) STOEL KI V ES COLEY ]ONES & GREY Mr. Milton Fyre September 26, 1994 Page 5 relationship" to the needs created by a development and that a city must determine that a required dedication is related both in nature and extent to the impact of the proposed development. Slip Op at 16. The proposed development in this case is the applicant's proposal. The applicant's request has no impact on Mr. Gensman's property. A dedication requirement for Mr. Gensman's benefit would not be roughly proportional to the impact created by the development. Mr. Gensman argues that TCDC 18.108.070(A) requires additional right-of-way and pavement width to serve his property. The existing access serves an existing residential use. It is a nonconforming access and nothing on Mr. Gensman's property is changing which requires the access to be increased. TCDC 18.132.010(B) provides as follows: It is the purpose and intent of this chapter to permit the nonconforming lots, structures, and uses to continue but to • disallow the enlargement, expansion or extension of such uses except that the enlargement or expansion of a single-family residence will be allowed in the CDD only." Because the access and pavement width is nonconforming and because Mr. Gensman has not sought nor has an approval to change the use on his property, it is not necessary that the easement and pavement width be increased. This is made clear by TCDC 18.108.020(B) which requires that when a use is changed which increases access and paving width requirements, such altered use must meet the requirements of TCDC Chapter 18.108. Because Mr. Gensman is not altering his property, the access and pavement width need not be increased. Finally, even if the City agreed that the access easement and pavement width had to be increased, it is impossible to tell at this time how much increase is necessary. Mr. Gensman cites the access requirements pertaining to single- famiiy uses. However, different right-of-way and pavement widths are required for multi-family use. TCDC 18.108.070(D). Because Mr. Gensman does not have an approved site development plan, it is impossible to determine how much width might be required to serve his property. Mr. Gensman also argues that the record does not contain substantiation that ODOT has required the easement POX1-142124.1 72523 0009 LUBA NOS 2l Exhlbit No. Page No. i a I P STOEL KI V E- COLEY ION ES & G BEY Mr. Milton Fyre September 26, 1994 Page 6 access location to be changed. The letter from ODOT is found in the applicant's September 19, 1994 letter to the Planning Commission as Exhibit 3. 4. TCDC 18.120.180(11)(b) DOES NOT REQUIRE WIDER ACCESS TO MR. GENSMAN'S PROPERTY. TCDC 18.120.180(11), "Access to Circulation," provides in subsection (b) as follows: "All circulation patterns within any development shall be designed to accommodate emergency vehicles." The access easement to Mr. Gensman's property is not within the applicant's development. A curb line separates the applicant's parking lot from Mr. Gensman's access easement. Therefore, this provision does not help Mr. Gensman. More importantly, ODOT and the Tualatin Valley Fire and Rescue District have agreed that an altered curb at the existing easement access location will satisfy their requirements. See Exhibit 2, Architectural Site Plan, as modified September 20, 1994 for fire access, showing conditional approval from Tualatin Valley Fire Marshall's Office and approval from Gary McNeel, ODOT Assistant District Engineer. 5. - TCDC 18.164 DOES NOT REQUIRE GREATER ACCESS WIDTH TO MR. GENSMAN'S PROPERTY. The applicant responded to this provision in its September 19, 1994 letter at page 8. The clear purpose of TCDC 18.164.030(I) is to require that an applicant provide additional right-of-way when its application requires additional right-of-way. Because there is no approved development on Mr. Gensman's property that would require increased access and the existing access is nonconforming and may remain, this section does not require the applicant to provide additional easement width to serve Mr. Gensman's property. voX1-142124. 72523 ooos LUBA NO. 94-211 Exhibit No. Page No. U - STOEL KIVES, COLEY 10NES & CKEY Mr. Milton FYre September 26, 1994 Page 7 6. THE TIGARD COMPREHENSIVE PLAN (TCP) IS INAPPLICABLE TO THIS APPLICATION. The applicant addressed this issue at pages 6 and 7 of its September 19, 1994 letter. Mr. Gensman cites TCDC 18.10.010 as authority for his argument that the TCP applies. However, he fails to cite the full language of that section as follows: "Each development and use application and other procedure initiated under this title shall be consistent with the adopted comprehensive plan of the City of Tigard as implemented by this title and with applicable state and federal laws and regulations." (Emphasis added.) "Title" is defined as the Tigard Community Development Code. The TCDC implements the TCP provisions and the TCP is inapplicable to development applications unless the TCDC expressly makes it so. Because TCDC Chapter 18.120 does not apply the TCP to site development review applications, it is inapplicable. Mr. Gensman also argues that TCDC 18.08.010(C) requires that the TCP be applied. That TCDC provision is meant to construe general and specific provisions dealing with the same subject matter. The TCP provisions cited by Mr. Gensman are either irrelevant to the applicant (such as the TCP Housing Policy) or do not conflict with specific TCDC policies. Therefore, TCDC 18.08.010(C) is inapplicable. TCP Housing Policy 6.1.1 does not apply in this application. The application does not discourage residential development. In fact, Mr. Gensman's failure to pursue residential development is the reason his site is not developed to the maximum density allowed by the R-12 district. There is no widence in the record that the City fails to meet the Metropolitan Housing Rule. Finally, the planning staff told the Planning'Commission that it is willing to work with Mr. Gensman to provide appropriate access to his property but that the access should be from SW 74th Street. TCP Transportation Policy 8.1.3(d) does not help Mr. Gensman, either. It only requires developers to participate in Pox1-142124.1 72523 0009 LUBA NO. 94-211 - Exhibit No. Page No. ~n , STOEL RIVES BOLEY ]ONES GREY Mr. Milton Fyre September 26, 1994 Page 8 improvement of existing streets to the extent of their development impacts. In this case, the applicant is not negatively impacting Mr. Gensman's access in any way. Finally, TCP Policy 8.1, Implementation Strategy 5, does not require the applicant to provide additional right-of- way to Mr. Gensman. As noted above, the existing development access is nonconforming. Because the ultimate development and density of Mr. Gensman's property is unknown, it is not possible to require any dedication of additional right-of-way to Mr. Gensman at this time. _ The applicant respectfully requests that the Planning Commission deny Mr. Gensman's request for a continuance and referral of the matter to the City Council, deny the appeal and uphold the Director's decision. Very truly yours, Michael C. Robinson MCR:ipc Enclosures CC: Mr. Mike Randles (w/encl.) (via facsimile) Mr. David P. Kimmel (w/encl.) (via facsimile) Mr. Dick Bewersdorff (w/encl.) (via messenger) Mr. Mark Roberts (w/encl.) (via messenger) Gregory G. Lutje, Esq. (w/encl.) (via messenger) Jeffrey M. Cheyne, Esq. (w/encl.) (via messenger) Pamela J. Beery, Esq. (w/encl.) (via messenger) S iPOX1-142124.1 72523 0009 LUEA NO. 94-211 Exhibit No.0 Page No. 9 STOEL (IVES BOLEY JONES & GREY HXHIBITS 1. September 23, 1994 letter from Pamela J. Beery to Gregory G. Lutje. .2. Applicant's Architectural Site Plan as modified on September 20, 1994 to show revised emergency access. LUBA NO. 94-211 PDX1-142124.1 72523 0009 Exhlbit No. 4 Page No. ' 79 OTONNELL RAMIS CREW CORRIGAN & BACHRACH H. BACHRACH ATTORNEYS AT LAW C ACKAMAS COUNTY OFFICE DCRE W. BAIRD 1727 N.W. Hoyt Stt+eec 181 N. Grant, Suite 202 AMEL 97 MARK A .BEE_Y Portland, Oregon 97209 Ca (n503 266o i l 9013 DOMINIC G. COL ZrrA'* TIIEPHONE. (503) =-4402 CHARLES E. CORRIGAN* FAX (503) 243-2944 S I PHEN P. CREW GARY FIRESTONE PLEASE REPLY TO PORTLAND OFFICE JAMES M. COLEMAN G. FRANK HAMMOND* Special Counsel WILLIAM A. MONAHAN MARK P. OTONNELL TAdOTHY V. RAMIS WILLIAM J. STALNAKER September 23, 1994 TY X WYMAN • AM AOIY= TO MAC= N WASM OM " AMOM TO PRACM N CALMO MA OM.Y Gregory G. Lutje, Esq. VIA FACSIMILE 400 Lincoln Center Tower Portland, OR 97223-5575 Re: City of Tigard Site Development Review, File No. 94-0003 Taco Bell Restaurant Dear Greg: I am out of the office today speaking at a conference, but I wanted to communicate with you concerning how we intend to proceed in the Taco Bell matter. I have spoken with the Tigard Interim City Administrator and reviewed the materials submitted by you and attorney Robinson-on behalf of Taco Bell. It is the City Administrator's direction that the City Attorney's office not become involved in this matter at this point. My own review of those materials confirms that the city is not in a position where it requires legal assistance in this matter. In response to your note on your fax transmittal sheet of September 19, 1994, I interpret ORS 197.763 differently than you do. I do not believe material submitted by parties during a period in which the record is left open by the hearing body under ORS 197.763(6) entitles a party to an additional continuance as contemplated by ORS 197.763(4)(b). I believe the two to be mutually exclusive remedies. I apologize for the delay in communicating this position to you due to my hectic schedule. Sincerely, Pamela J. Beery 18-PJB/jh cc: Bill Monahan, City of Tigard (via mail) Dick Bewersdorff, City of Tigard (via mail) LUBA NO. 94-211 Mike Robinson, Stoel Rives (via mail) Exhibit No. Page No. 90024/UVLUTJE.LTI _ i i i M i ' -10' O - _ ~ 28 p Qf ~a-~~.. • 2V 28 28 _ _ 23 130 ' ' - - EXI5TING CATCH BA51N ! ~ ~~r ~ , \ ~ ~ ~ ~ \ ~ \ ~ ~ ~ ~ ~ ` ~ ~ # ~ \ ice.. AREA F SHAR - r - - - 11 -0 A S ~ 17 I o ~ CCES . 5 U LITY E~SE~ENT ~ 0 14 I 20 - - -------------------~4------- - - E 27 F~ . ~ _ ~ : } . f G 15 41 -1 K ~3 8 UTILITY EASEMENT 15Q ~ w E E .__~_.~_____w_____ E E o - E - 5 R ~2 ` o ~ - ~ „ 5 9 ~ f4o 11 1 8 ~A ~ 1 ~ rn 8 1 0 F ~ 6 ~ s. . a ` ~ ~ ~ a 14 L 9 ~ - ~ ) ~ ~ 16 ~ ~ ~ ~ k. 1 - 19o e 1 , N . JE rr ~ e ~ ,F 1 ~ ~ ~ t J C 2 ~ 17 ?4 o, ~ ,--t, ~ 45 - 9 5 6 6 7 24 - 0 ~4 ~ 18P 1 t ,g p ~s/ F , ~ 3R _ ~....i 23 ~ c., i U ~ - ~ 1 \ i ~ ~.T.~..J l ~ ,1 I t ~t J ,0 1~ 1 24 R f ~ i v'- ANS L~ l ` 2 30 5 i o 14 _ PAD ' " 26 12-0 10 12 18 R C... ?C I 11,_9., Q„ 2 f za t ~ ~ P 20 i ~t f P 5 tab ! ~ d~ o ~ i4 o ~ ~ G I; ~ ~ ~ ~ 9 0 / ~ ~ 5 1 / ~ ~ r O 20 ~ 0 14 \ 5a ~ i 29 ~ C° 7 ~ ~ ae I , h ~ c0 ~ ~ _ Q / O 1o R ~ s -6 / ~ ~ ~ 21 t.fi 6 9 1 I ~ 3 4 5 7 ~ 0 / . 21 E Ilf f - '%i~, V • ~ f ~ i ~ ~ • ~ ~ , ~ ~ ~ ~ 14 t 8 18 i • ~ Y k ' i t ~ 0 ~ , `Yrr ~ 1 R i t. , / / ~ l v • ~ ~ i 9 ~ ~ ~ ~ ~ 1' 1 / ~ _ t4 / r / ~ / ~ ~ a~ a ~ t. , a I 19 33 ~ / 3~. ~i c~ _ , ~ . ~ j ~ 1 / G ~ + ~7 ~y n ' / dr / o R ~ / / , ~ ` ~ _Y ~ Q / , , ~ ~ ~ / \ g t ~ } ~ ~ 9a ' ~ 6 ~ 1 Y. 1. G~ J_r (Note: All details are shown on sheet A1E unless otherwise noted.) ~ ' ~ ` r, t Construct 3 Class C Asphaltic 'Concrete over 6 crushed rock base 'R 2 - e f as s ecified. Refer to detail. P ' , 1)i „ " j 130 8 R o 2 Construct 6 x 18 P.C.C. curb per detoil. 1r• , I -:W -FV ~ ,r''r ` ` J ~ f I 5 Construct P.C.C. sidewalk per detail. (Strike taints of 5' O.C.) ~t 28 ~ ~ k ~ , ~ ;rte` d Construct P.C.C. curb ed a sidewalk er detoil , ~ 5 g p ~ i~ / F ~ X15TING ~ 11 r.. 6 Construct P.C.C. curbed ramp per detail. r, it 7 Construct P.C.C. ramp -max slope t' 12, per detail , , / ~ / ~ ~ , / t ~ i n W " x 1 4 x W 1.4 ~ $ Construc 6 thick black P C..,. pov g / 6 6 W , , ~ i i- W.W.F.(const. joints A 12~ o.c) over 6 crushed rock. ~ ` P / V + Block concrete .shall comply with requirements of applicable ~ nr i n I r divisions ~ sectrons for co c ete mix des g a d qua ity co t o ~ I A. Six 6 to seven 7 ercent air-enlerin admixture re wired. / ; / ' Block concrete to coin I with ASrM C260 and as specified in / , ~ PY , ~ ~ - / I t.... t division 3. ~ ~ ~ " r I k of Portland Cement shoal ~ ~ 2 0 11 B. 5 lbs. of Daws X860 pe 92 b sac ~ ~ ~ n ~ ~ 2 be used to provide intregal color to the concrete pave, g. ~ „ 20 9 Construct trash enclosure on 6 P.C.C. pod per detail. / .r ' J r~= Double faced internals illuminated ale sl n ~Condult ~ ower by / rl 0 10 Y P 9 P ~ ~ / ~ 17 G.C. Sign, sign foundation, sign instollat~on ~C electrical hook-up 33 „ by taco Bell. S /i ~ ~ i rn it illuminated directional sin si n face as noted 11 me o y 9 (9 ~Y i Foundation, conduit, do power by G.C. Sign, sign installation and ' , / electrical hook-up by Toco Bell. See short for sign fpce assignments. '4~ / L7 . r ~ ~ r L6 r and s esker on edestai with sensor loo er detail. ~ ~ 18 12 f~enu boa d p p p P / , ~ Foundation, conduits to building, and power by G.C. Taco Beil to ~ ~ - ~ , ~k _ Ln ker. Toco Bell to su I ~ i% supply and install the menu board, k spec pp y ~ sensor loon. Contractor to install sensor loop. _ / / .a i 4 , t.,a Dnti!--up Wrnd„w a.r'S0~ i0.p, _,JL1C e~, by 510 _ ~ ~ r r r k rtinf r in m~ h ~r- ~°r,~+n ~ _ EX1STjNG t ~ ACCESS EASE►~E^+ 1 O'R r, Gene al Cor+trocto 8 to o c g _s r q ~ ~ G ~ Y - - sl 1 i ~ ~r t ~r ' ~ 13a Prov~dt 400 wait, forward hrow, metal held. Yard fight p, d toil. r C Construct foundation and provide conduit and power per detail ~ ~,k ~a ~ d0 13b Provide 400 watt wide throw, metal halide vord li hk er detail Y ~,k ~ 'x ~ Construct foundation and provide conduit and power per detail ~ ~ 1 p I / f 1 14 Install guard post per detail. Paint to match building color. . ~ ' dQ ~t ff~ 1 li RSN~It OFFiC~ flRE MR 1i~JIlA11~1 15 Construct 58'-0 retaining waH & guardrail per detail Sheet AtF ~ ~ ~ ~ ~ t< r ~ , i f 16 Point 24 high letters, white t ~,t a - ~ ~ . ~1 1 ~ Paint traffic arrows whets. Y ~ ~ ' 1$ Paint handicap symbol white on blue background, ~ ~ ~ Y 2$ 19 Point 4" wide solid stri a white, ~ , P 19a Paint 12" wide solid strl a white. A 4. The location of underground u ~ facilities shown P 1. Prior to starting construction, ~h~ Contractor shall be I iii on these peons are based on het ~ eys and loco ut ty responsible to make, sure than all rtquired permits and , 20 (.andsca a area. See shtets L1, L2, L3. company records. It shall be the con tors full P approvals have bten abtalntd No construct~an or fobncat+on responsibfllty to contact the various utility companies to shall begin until th!~, Contract; has received and thoroughly 21 Install loco Bel! furnished trash race tacle. ►ocate their focNlties prior to starting construction. No , p reviewed all plans and other .~cuments approval by all of f th rmi in th ri i odditlonal campensatian shall be paid to the contractor ar e pe tt g au o t es lama a and re air to these facilities caused b his work 22 Install 1000 gal, grease Interceptor per detail. See also plumbing 9 P Y drawin s. force. g 2. All work shall be performed in accordance with these plans and specifications and the rec.;~airements and standards of the 2~ Construct P.C.C. curb nosing per detail. 5, AH dimensions and grades shown on the pions shall be local governing outh',orlty The sots report and v ri i th on ra r rl r to construction. The k= p f o f ed by e c t cto p o 4 Construct P,C.C. curb at Drive Thru Window er detail. r_commtndatlons sit►orth the,~em are o part o the I 2 P contractor shod not~f the Taco Bel Construction Manager i construction documents and in case of conflict shalt take Y if any discrepancies exist prior to proceeding with 25 Provide ale mounted handico sin er detail, precedence unless specifically noted otherwise on the plans, P P 9 P construction for necessary pion or grade changes, No extra The contractor sholP note y Toco Bell construction manager i h I i h ntro t r f r work to be M ~ 'il n I n t, compensat an s a l be pad to t o co c o 0 26 Furnish and install bike rock, Pedalor s Post" or equal by of any discrepancy between sa; s report a d p a s, e c , r h wn m orre tl on redone due to dimens ons or g odes s o c c y r tide Enterprises, {503) 777-4751. these Ions if such notification has not barn iven. 3. Site radin shall bq erformecl in accordance with these P g 9 9 p 1 27 Existing tree to remain, Ions and s ecllicaf~ons and ti7e recommendations set forth P P 6, The Contractor shall be ros' onslble for rovidin adequate in the soils re art rt~ferenced in this ton set, The p P g + p P soft wards, safet devices, rolectfve t uipment, and safety 2$ Existing uti►~ties, sign, fence, and curbs to remain. contractor shall be 'res onsibte for removin and re lacin g y p q P g P g rocedures and methods to rotect the life, health and all soft 'slain or unstable materials and re locln with P ~ p , ' N g' P g sofet of worker s, subcontractors, su her s, and the 1 29 Install Toco Belt furnished flagpole. See sheet A1F suitable materials as s ecified In the soils re art, All y PP P p ublic on all work related to this ro ct. AN work and P P h excavated or felled areas shall be compacted to 909: of install new model TFD 250M b Lithon~o for fla ►Ilumination. safety procedures shall be In full conformance with OSHA ~ ~0 ~ Y 9 modtlled roctor maximum denslt er A. S. T.M. test D-1557-78. P Y P re uirements and the re uirernenis vt local avernin ' M istur c nt nt a!' lime of tocement shall not exceed 29: q Q g g o e o e P o encles. z Y 31 Install w/ traffic epoxy new 10" white traffic lane button ab yr n r " below' o timum, Cantroctar shall submit a g a o 3 p by traffic Safety Supply Co, or equal, cam action re art 're area b o uolffied Soils En ineer, k_ P ~ ~ P y q g 7, A set of a raved final sits and buildin laps must be on- re istered within the state where the work is erformed, PD g P . 32 Construct new P.C.C. curb per O,D.O.T, detoiL See sheet A1F g P site at all times Burin the construction eriod. verif n that all filled areas aid sub rode areas within g P ~ Yf 9 g n r n w the building pod aria and ore+as to be paved have been ~3 Co st uct a P,C C. sidewalk per O.D.O. T, detail. See sheet A1F 8. AU site work shop canlorm to U,P.C and Clt of Tr and cam acted In accordance with these (ens and s ecificatlons Y g S P P p re uirements, and the recommen~allons set forth In tht Soils report q ~4 Construct new P.C.C, driveway per O.D.O.T. detail. See sheet A1F ,i ~6 Com aat fi~ ed p Z 04 CTS ~Z _ h ~'uon w i tN Z 23 Otto Luykett laurel ~4 ken Laurel 2,~ Otto L h~ Z a) {j . c cn CL 0 ~ 1 ~ • ~ ~ ~ ~ R ~ • ~ ~ _ _ -4 Y Annua! Color' Area ~ 1► ~ • • • • • ~ • • • • • • i • \ ~ 5 ~ ~ ~ • ~ ~ rs 450 Periurinkle ~ Annual Color Area r - - ~ ~ ti . ~ j r-~ ~ i I I ~ ~ \ ~ ~ i I ~ ~ ~7'urf Area ~ : \ ~ ' Annual Color Area :ATea 74/p ~..~~r i h--~ ~ .;i ~ ~ ~ , ~ • ~ ~ ~ ' 3 David Viburnum !1 /rte ..t ~irw~.wM l~• ~i ~ . J 'f 11M~ AMAP1 • • • ~ ~ l _ Z i a 3 Cttitrtson F`N8'7111/ _i j ' Barberry _ E d ~ ; ~ ~ i r~4 r t - 0 +12'~ ~ ~ ~ • \ ~ _j . t~~ \ • ; iii 1 _ F:. wpm . ` 6 Crlm \ ` 2 Jacq • ` 7 David } ~ ~ J f 1~ i T MRAW f . \ ' y/~ \ Annual Color t ~i. r d I Suggested Plant bfaterials Ltisting: ~ • 1 4 eorwtc.~t N.ufa vuuvrrrr sraa CONDITION Ra~u~rs ~ ~ ~ ' . \ coar~roN N.ura \ ~`i~ ~ - ' ~ s \ Acgr ctrotnahtm 9 B y B B Tru+ik V4ttM AfaplA ~K{n ~ 1 1 Aeer ru6rum "Ar►natrond` caL BdtB drnutrong Rid Y~t4 . ii AR d Barisal Yaplt 5untAt , . 8 8" Col. BBB ~ \ \ , ~ Bthtla ~acgwmo+~H4 7 ,t' Cal BBB ~ r 1 ~ Jaagwrnor►tt Birch ` t r- SXflUBS \ ~j F ~ ~ ~ jtevrsrvxs w ~ ~ ~ At~tna Red ~ ~(1 t ~ ,S ~ ~f ie ap Ber6erLs fhunMergt Crt»vort Pygtre~/' B 2 CaL. Can 12- f 6' :4 ~ . \ t , . G'~i»uon Pygmg Barbe»y~ ~ ,:1 i ~ ~ _ ! 4 ~ ~~~L Bvortymw a!a!w 'Compuctd 37 S Gal. Can iB-24" ~ ~ • . ' i ..rrri..~ ~ w w~r~ ~ ..r. r . rrwr.~~ r ~ .r r .r.ir..r r . ~ ` r vr~.,r`~. w wrrrrr...~ ~.r a~11 Ir~rrr~r rr ~ 14MYwi~Y~ w w aw~rr w fr Cofnpact II{ngtd a'uoftynttta ~ ~ 4r . ~ _.r -r IIlA11N'~ ARE M It RSHII~ 1~ tit Attr~t Nattd{~►a domest{ca `Cofnpactd 3 6 Cal. Can 24-3d ` t Co+►e~ract Heavrttly Bamboo - ~ gyn.,,.,. , C . aI~DITI0N1U.i.Y ~~~ovEO, ~ , ~ , Phot{n4a ,/4~asart 2B 6 CoJ. Can E4-90' ~Q~ . . , . . , ~aov~. of ~a Nor ~ ~ar~ov~, a Fraser PhoNx{d 'OIL . ' . ~ ' • . • ' Weis ~f'lam! I~ores~' 3 6 Cal. Can /8-84" ...~I~.1:., - !1a~ru 1►'otes! t~t~ft! i 4 k Pnmua iauroelrtosua "Otto Luykeri 6E f6-1~' BBB _ ; Otto luyken Lau»l i'4Mpnun► da~d4 ! 8 E Cei. C~ f 2- f 6" Da1Kd Yt6unNaM r CROUNOCOYSR r ~ Vin.ca m4~ 460 Pafs Nor Perfwirktt 1 f .tPFROJClYATS LANDSCAPE AREAS: f ~ ~ P[anttnq Aram: 4,B~6 SQ.FT. L ' f1a~f Artm: 8,4SD SQ.FT. 1 1 . i"` ~.i~ f .ir f_ I ~ b. L 1 mommommin STOEL RIVES COLEY JONES & GREY RECEIVED PLANNING ATTORNEYS AT LAN' SUITE 2300 SE P 19 1994' STANDARD INSURANCE CENTER 900 SW FIFTH AVENUE PORTLAND, OREGON 97204-1268 Telephone (503) 224-3380 Telecopier (503) 220-2480 Cable Lawport Telex 703455 Writer's Direct Dial Number (503) 294-9194 September 19, 1994 VIA MESSENGER Mr. 'lton Fyre, Chairman Tigard lanning Commission 13125 SW all Boulevard Tigard, OR 97223 Re: Case File No. SDR94-0003; Appeal by Mitchell Gensman of Director's Approval of Site Development Review Application Dear Mr. Fyre: As you know, the Planning Director approved Taco Bell's ("Applicant") request for Site Development Review approval. Two appeals were filed of that decision. The Planning Commission tentatively voted to deny the appeal by Mr. Larry Morris at its September 12, 1994 meeting. At the request of Mr. Gensman's attorney, the Planning Commission held the record open until September 19 at 5:00 p.m. for parties to submit additional information. The Planning Commission also held the record open for an additional seven days until September 26 at 5:00 p.m. for the Applicant to rebut evidence that comes in during the first seven-day period. This letter constitutes additional evidence on behalf of the Applicant supporting the Director's decision. The Planning Commission closed the public hearing on September 12. Under Tigard Community Development Code ("TCDC") 18.32.160(0)(1), the Planning commission can ask questions before the close of the hearing. Because the hearing is now closed, no additional oral testimony can be taken at the September 26 meeting. City staff may summarize evidence for the benefit of the Planning Commission, but may not provide new evidence. y~ LUBA No. 94-211 PDX1-140714.1 72523 0009' Exhibit No. Ln Page No. 75- PORTLAND. SEATTLE. BELLEVUE. VANCOUVER. BOISE. SALT LAKE CITI. WASHINGTON. OREGON hA5HINGT ON NASHINGTON WASHINGTON IDAHO AH DISTRICT OF COIXXIBIA STOEL RIVES COLEY JONES & VREY Mr. Milton Fyre September 19, 1994 Page 2 The evidence that is in the record in support of the application is as follows: 1. Application dated February 25, 1994. 2. Traffic study by Robert Keech, dated April 7, 1994. 3. Letter with exhibits from Michael C. Robinson to Mark Roberts dated August 23, 1994. The question before the Planning Commission is whether the approval of the Applicant's site development review application in any way limits the development of nearby R-12 property or interferes with easement rights to that property. The answer is no because: • The Applicant not only meets the language of the easement document, but improves the easement by paving it, providing a better location for its access to Highway 99W, and designing it in a way to prevent interference with use of the easement. • The easement access location is not controlled by the deed; it is controlled by the Oregon Department of Transportation. • Development in the R-12 zone is subject to site development review approval and no such approval has been given or even applied for by Mr. Gensman despite his having owned some of the property for as long as 13 years. • Alternative access that is consistent with the Tigard Comprehensive Plan ("TCP") is available to Mr. Gensman's property. The remainder of this letter addresses issues raised in the September 12 hearing. 1. MR. GENSMAN'S FILED HIS APPEAL TOO LATE AND THE PLANNING COMMISSION CAN REJECT THE APPEAL. The Applicant's August 23, 1994 letter explains why the Planning Commission should dismiss Mr. Gensman's appeal as untimely. TCDC 18.32.160(A)(3) provides that the Planning Commission has the authority to "dispose of procedural PDX1-140714.1 72523 0009 LUBA NO. 94-211 Exhibit No. Page No. -71,~7 STOEL RIVES COLEY )ONES &CREY Mr. Milton Fyre September 19, 1994 Page 3 requirements or similar matters." The Planning Commission has the authority to deny the appeal because it was filed too late. At the September 12 hearing, Mr. Gensman's attorney argued that denying the appeal because it was untimely filed would be unfair since Mr. Gensman had relied on the appeal deadline in the City's notice of decision. It is well settled that there is no estoppel against a mistake by a local government. Banks v. City of Brookings, 252 Or 257, 260, 449 P2d 646 (1969) (no estoppel from action by city action exceeding ordinance authority). TCDC 18.32.300(A) is clear that a 20-day appeal period is allowed only where a 10-day appeal period would not include a city council meeting. TCDC 18.32.300(A) describes the appeal period computation: "In computing the length of the appeal period and the effective date for a director's decision, the day the notice is published in the newspaper shall be excluded and the last day for filing the appeal, and the effective date, tenth day, shall be included unless the last day falls on a legal holiday for the city or on a Saturday, in which case, the last day shall be the next business day. The director may extend the appeal period and the effective date to the day following a council meeting when the computed appeal period would not otherwise provide an opportunity for interested parties to appear before council regarding the decision. The appeal period thus computed shall not be greater than 20 days." As the August 23 letter demonstrates, a city council meeting occurred within a 10-day appeal period from the date of the Director's decision. Nothing in the TCDC allows the Director to extend the appeal period from 10 to 20 days where a city council meeting occurs in that 10-day period. 2. THE APPLICANT IS NOT INTERFERING WITH MR. GENSMAN'S EASEMENT RIGHTS. The deed provides as follows about Mr. Gensman's access: PDX1-140714.1 72523 0009 LUBA NO. 94211 Exhibit No. Page No. - STOEL RIVES QOLEY )ONES Gf VREY Mr. Milton Fyre September 19, 1994 Page 4 "Also the right to use as a roadway a strip of land 14 feet in width extending from the southeasterly corner of the property herein conveyed, on and along and adjacent to the easterly boundary of the tract line immediately south of the tract conveyed, said strip to extend to the northerly boundary of the west side Pacific Highway." See Exhibit 1. . . The rights under an unambiguous easement are strictly construed according to the language. See Gorman v. Jones, 232 Or 416, 375 P2d 821 (1962). The 1946 deed gives the easement holder only two rights over the Applicant's property. The first right is to a 14-foot-wide roadway. The second right is to an unspecified access location on the west side of Pacific Highway 99W. The Applicant's site development review application does not interfere with either of these rights. As noted above, the Applicant is improving Mr. Gensman's ability to use his easement by paving it, providing a curb so Taco Bell customers cannot interfere with his use of the easement and providing a better, less congested location for access to Pacific Highway 99W. The easement language does not provide that the easement is entitled to a particular access location on Pacific Highway 99W, nor could it. ODOT controls the location of access points to its highways. See ORS 374.310(2); OAR 734-50-065. Contrary to Mr. Gensman's argument at the September 12 hearing, his property is not landlocked. However, as is explained below, Mr. Gensman has better alternative access available to his property than this easement. Finally, no criteria applicable to the Applicant's request requires consideration of access to other properties through the Applicant's property. The Applicant has also attempted to persuade ODOT to allow a different access point. See Exhibit 21 August 12, 1994 letter from David P. Kimmel to Mr. Bob Doran, ODOT. Mr. McNeel responded on behalf of Mr. Doran in an August 19, 1994 letter. PDX1-140714.1 72523 0009 LUBA NO. 94-211 Exhibit No. (0 Page No. I Z STOEL KI V ES BOLEY )ONES & GREY Mr. Milton FYre September 19, 1994 Page 5 See Exhibit 3. Mr. McNeel, ODOT District 2A Maintenance Supervisor, gave four reasons for requiring the easement access to be changed and stated: "ODOT does not anticipate any negative effects to the proposed realignment of the subject driveway into the existing signal light at the jug handle. The positive attributes (in addition to eliminating the four conditions enumerated above) of this connection will be ingress to the parcel without slowing ORE 99W traffic, and egress via the signal." It is clear that ODOT believes the easement access will be an improvement over the existing access location. Moreover, even if ODOT would allow the easement access to remain in its current location and Taco Bell would grant additional width for the easement, the location of the Morris garage on the property immediately north of the Applicant's site would block a wider easement to Mr. Gensman's property. 3. ALTERNATIVE ACCESS EXISTS TO MR. GENSMAN'S PROPERTY WHICH IS PREFERABLE TO ACCESS ACROSS THE APPLICANT'S PROPERTY. Mark Roberts recommended in a September 12, 1994 memorandum to the Planning commission that access to Mr. Gensman's property be provided from SW 74th Avenue. Mr. Roberts noted that the reason for this is that: "Direct access of additional dwelling units from the existing easement onto SW Pacific Highway has been strongly discouraged by both the Oregon Department of Transportation and city staff due to expected additional impacts to the level of service on SW Pacific Highway." The current level of service at this location on SW Pacific Highway 99W is "F." The staff recommendation is not only feasible, but desirable. Exhibit 4 consists of 11 photographs showing that SW 74th Avenue can be extended to Mr. Gensman's property if and when his property develops. Exhibit 5 is an aerial photograph PDX1-140714.1 72523 0009 LUBA NO. 94-277 Exhibit No. 6- _ Page No. -1q STOEL RIVES BOLEY )ONES & GREY Mr. Milton FYre September 19, 1994 Page 6 showing how SW 74th Avenue can be extended to Tax Lot 1000. Access to SW 74th Street and to Spruce Street allows access to the major collector of Oak Street/Pine Street/69th Avenue. This access would provide connections for traffic from Mr. Gensman's property to Taylor's Ferry Road, Hall Boulevard and Pacific Highway 99W. See Exhibit 4. The TCDC provides authority for the City Council to work with Mr. Gensman to provide access to 74th Avenue through the adjacent property. See TCDC 18.164.030(B)(1)(a). Exhibits 4 and 5 demonstrate that the location of the house on the property immediately to the east of Mr. Gensman's property (Tax Lot 2300) does not interfere with access to SW 74th Avenue. As noted above, ODOT is unlikely to grant access in any event from Mr. Gensman's development through the existing easement because of the impact it would have on Pacific Highway 99W. Finally, the Planning Commission cannot require the Applicant to provide additional access to Mr. Gensman for two reasons. First, conditions imposed on this permit must be reasonably related to the impacts of the Applicant's development. The Applicant is not interfering with Mr. Gensman's rights to his access. Secondly, joint access cannot be required of a property owner. TCDC 18.108.030(A), "Joint Access," provides for joint access only when the owners agree to utilize jointly the same access point. 4. THE TIGARD COMPREHENSIVE PLAN ("TCP") DOES NOT APPLY TO AN APPLICATION FOR SITE DEVELOPMENT REVIEW APPROVAL. Mr. Gensman argued at the September 12 hearing that the TCP is applicable to a request for site development review approval. TCDC 18.120.180 contains the approval standards for site development review. The TCP is not listed among the applicable approval standards. Mr. Gensman cited TCDC 18.10.010(A) as authority for his argument that the TCP applies to this request. The section, entitled "Consistency with the Plan and Laws," provides as follows: "Each development and use application and other procedure initiated under this title shall be consistent with the adopting PDX1-140714.1 72523 0009 Lit' BA NO. 94-211 Exhibit No. e3 Page No. 0 STOEL RIVES COLEY JONES C-f GREY Mr. Milton Fyre September 19, 1994 Page 7 .comprehensive plan of the City of Tigard as implemented by this title and with applicable state and federal laws and regulations. All provisions of this title shall be construed in conformity with the adopting comprehensive plan." (Emphasis added.) The plain language of TCDC 18.10.010(A) means that the TCP is implemented through the TCDC. Unless another law requires the-Planning Commission to apply TCP provisions to a permit decision, the TCP is inapplicable. See Miller v. City of Dayton, 22 Or LUBA 661, 665 (1992) (plan policy is not applicable to individual city actions where it is to be implemented by legislation); cf. Shelter Resources. Inc. v. City of Cannon Beach, Or LUBA (LUBA No. 93-229, May 16, 1994), slip op 7, 8 (even if plan policy is relevant, it may not apply to development application where it is implemented through land use regulations)'. Even if the TCP were applicable, TCP Policy 8.1.3(a) does not help Mr. Gensman. The policy provides that: "The City shall require as a precondition to development approval that: "a. Development abut a publicly dedicated street or have adequate access approved by the appropriate approval authority." This TCP policy clearly requires that only the Applicant abut a publicly-dedicated street or have adequate access. TCP Policy 8.1.3(a) does not require a permit applicant to provide additional access for substandard access from another property. The Applicant abuts a publicly- dedicated street, Pacific Highway 99W, and has adequate access to that street approved by ODOT. Moreover, the remaining subsections of TCP Policy 8.1.3 apply only to the impacts of the'Applicant's request on the Applicant's site. s PDX1-140714.1 72523 0009 LUBA NO. 94-211 Exhibit No. I c)_ Page No. Fj_ STOEL RIVES COLEY )ONES (f-,GREY Mr. Milton Fyre September 19, 1994 Page 8 5. TCDC PROVISIONS DO NOT REQUIRE ADDITIONAL WIDTH FOR THE ACCESS FOR A MULTI-FAMILY DEVELOPMENT. Mr. Gensman argued that TCDC 18.164.030(c) requires the Applicant to widen the easement across the Applicant's property. However, this section is entitled "Creation of Access Easements." The access easement is existing, not being created. Therefore, this section is inapplicable. Mr. Gensman also cited TCDC 18.164.030(I). This section requires that wherever existing rights-of-way are less than standard width, additional width is to be provided at the time of development. The best reading of this provision is that it applies to the Applicant's proposal and not another piece of property. In other words, if the Applicant's property is served by substandard right-of-way, the Planning Commission may require additional right-of-way in order to serve the Applicant's proposal. This section does not allow or require the Planning Commission to require additional right-of-way on the Applicant's property to serve other properties. This is especially true in this case where Mr. Gensman's property has not been approved for development in the R-12 zone. It is impossible to tell how much right-of-way would be required to serve his property. Two provisions in TCDC Chapter 18.164 support the Applicant's argument. First, TCDC 18.164.030(D)(1) regulates street locations not shown in an approved street plan. It is undisputed that access to Mr. Gensman's property is not shown in an approved street plan. This section does not provide for an additional right-of-way on the Applicant's property to serve Mr. Gensman's property. Secondly, TCDC 18.164.030(F) provides that private streets are permitted within planned developments and mobile home parks. By implication, this section prohibits private streets in other types of development. Since the easement to Mr. Gensman's property is a private street, it cannot serve an R-12 development. PDX1-140714.1 72523 0009 LUBA NO. 94-211 Exhibit No. Page No. STOEL KI V ES 6OLEY )ONES & CKEY Mr. Milton Fyre September 19, 1994 Page 9 6. MR. GENSMAN'S PROPERTY MAY NOT BE ABLE TO DEVELOP AT A HIGHER DENSITY. Mr. Gensman's argument is premised on the assumption that his property will develop for multi-family use. This is not a given, however. Site development review approval is required for all new developments. TCDC 18.12.020(A). Site development review is required in the R-12 zone. TCDC 18:54.060(A)(4).1 Mr. Gensman is not assured of approval for a multi-family project at this site. Mr. Gensman purchased the property in 1981 and 1989 with knowledge of the access limitations, but has done nothing to correct those limitations. As noted above, there are better options for access to his property than across the Applicant's property. Moreover, Mr. Gensman and his father met with Michael Anderson, the City Engineer, and Mark Roberts in June, 1994 to discuss access. According to Dave Kimmel, who was present at the meeting, city staff offered to assist Mr. Gensman with acquisition of a right-of-way to his property. 7. THE TUALATIN VALLEY FIRE AND RESCUE DISTRICT DOES NOT REQUIRE GREATER ACCESS TO THE PROPERTY. Exhibit 6 is a letter from Rex Jeffries, Assistant Fire Marshall for the Tualatin Valley Fire and Rescue District ("Fire District"). The Fire District indicates that the proposed access point cannot comply with its requirements. However, the Fire District will accept a modified curb design at the current access location. The Applicant has revised its plan to comply with the Fire District's requirements in order to provide a curb at the current access point on Pacific Highway 99W that will allow Fire District vehicle access in an emergency. Private residential access drives are to be provided and maintained according to the provisions of Section 10.207 of the Uniform Fire Code. TCDC 18.108.070. Because Mr. Gensman is not changing his residential use, the residential access drive is a "nonconforming" access drive and need not conform to 1The TCDC contains a typographical error by listing the R- 7 district instead of the R-12 district. PDX1-140714.1 72523 0009 LUBA NO. 94-211 Exhibit No. Page No. ; STOEL RIVES BOLEY )ONES & GREY Mr. Milton Fyre September 19, 1994 Page 10 the current Uniform Fire Code provision. Further, the absence of reference to the Uniform Fire Code in other parts of the TCDC indicates that it is not an applicable approval standard. Based on the above, the Applicant respectfully requests that the Planning Commission deny the appeal by Mr. Gensman and uphold the Director's decision. The Applicant further requests that it be allowed to prepare the findings of the decision. Very truly yours, gai e - W,4" Michael C. Robinson MCR:ipc Enclosure cc: Mr. Mike Randles (w/encl.) (via messenger) Mr. David P. Kimmel (w/encl.) (via messenger) Mr. Dick Bewersdorff (w/encl.-) (via messenger) Mr. Mark Roberts (w/encl.) (via messenger) Gregory G. Lutje, Esq. (w/encl.) (via messenger) Jeffrey M. Cheyne, Esq. (w/encl.) (via messenger) Pamela J. Beery,.Esq. (w/encl.) (via messenger) PDX1-140714.1 72523 0009 LUBA NO. 94-211 Exhibit No. Page No. EXHIBITS 1. Deed containing reservation of access 2. August 12, 1994 letter from David P. Kimmel to Robert Doran 3. August 19, 1994 letter from Gary McNeel to David P. Kimmel 4. 11 photographs of Tax Lot 2300 adjacent to Mr. Gensman's property, Tax Lot 1000 5. Aerial photograph showing how SW 74th Avenue can be extended to Tax Lot 1000 6. TCP Transportation Map, Figure 3 7. September 15, 1994 letter from Rex H. Jeffries, Assistant Fire Marshall of the Tualatin Valley Fire and Rescue District PDX1-140714.1 72523 0009 LUBA NO. 94-211 Exhibit No. Page No. 1 uv THU 1 3 ,3 i iAi ---.r *t_ a ti•; w.-r.. sa... r"~'s~ da` , - . ~rsn.:a w,A.>'~1. srw~•* Jlnaiy nwt~ 1wie.'' I !~~wIi+ lettt~L.~_ AA, ~A: ` Os, tiea?id%aii•tiliisj iwtyrgpni~. to" tru tau- , awwtt. A.>. .seems s.S ead•Stati e1 .i-•nd~t.aad ialw~iai:si r• The Nor" PM =aas.o! 8e61a»iaa at a stone -at thevaoe taeait eet!~is,.bt the Goo. iLLeitardson D. L: 0. Noe 56 in VsabLeff i TeimsV.~.•1 6oath.•1itM9 1 wart of the ttl*aiwtta Meridian, Raahi>?gtow"%wty, ltata=of 0 { thanes Borth So 0o@ vest 84e1 teen a3ens••th►••sws4h. idae• at Said . L. C• to a st:aa 1 on; fheaoe South 0 for west 4308d roes-'am s or lass to a 10 pip. US the trAO poL,at er twainnieta of the tlaet•hedvia aessrLtreat shesee continuing Soria 0 !0r West nBeZ4 to" to &.3 4a pipe in the nertherg rSP~t of War lino or the Twat Sias 7asifis Z w- theme Borth K 01t t 4205 alit sight of way flaw 199.90 feat to 4 6)4- 'area prow; theBCe 1 ortri 0 891 MSt 393.34 Swat to t 1/Ee IM pipe= thwtteo earth 89 1 We at 160.6 feed to the %me point of b"ana ag. ' Also *be right to We to a aeadMW a strip at land 14 feet in riath astonaing from tae sowth"0ei'1,y can" of the preparty bsrain con- veyed, on aad along and a4iaa4nS to Us auterly aeundary line of they treat 171&6 IMM"Satal7 204%% of the U406 eoatsy A; said Strip 'to eztsad -to the •aortII6t~jr touatart. 6r IM tart Me patina 8ighvay. • L ~ re move 44 t1 Natl. tar obese datwiiod Brad tad P oxim .eta AR §riJ..=v6U -Mri-• ~ i .wA Zwx Xxx2 ! h-%eftA "A ~_„«ri~7a1L••,.«•»Aeal 114 eiriyrrr I.ryrC/. . 3rr~,..htitDoa!!: o+se,. ebaeo sts:,ad de,.r. ea>tt a. Aad WIQ OW a eet~rd I...tJ+a-r thalS.rr•Ad.s OW rutt,t+ta r ii tr+s/....._.Sha3Xe..~..JsWltdtr fret i/a #N* N the Over orawta6 prow (tu. Mat the at,ew ' prweted pleated ere fiat freer. 03 oaattetbtewau.._~_____.- _ i wr•.•...••w.wr...rww•~r.rrr«.~.,..r.,_«•rrw....r•rr.. _ .•r•....r -•..r..•.....=-r.r..-_ _.....»r....~ww•- r.._~~.«_.r. ~....~.~.yr,r...w...•r.rr« :..~r~..iowrwwwn•.. •r«, . • ..r•r..rr•+ ~ uwd tAAt.«S ~S.~8,ea~L.~14 fire. asad"M wd odraiaiotret+n, iAog wrarrant and /everev da/srrt the slow prasbs 9nrRi-q.•eei` a.rrr.pt+rt It 'dama~tiaa/eASrr.oa.w~ast.o:..:. .,,~.;~!!W p._..s_._.rtA...t. wt00"w" AAi kvN 91air+4 Owl. • Wi6W1 TtK.S~r' al~dl0i'~tr•-~s1 s/.~tiL.Dh.4L.;«...---• J9.4Q r r. 4'N1~ltsititiiie `"a~~ :L.;ry~~;».~~: ~•/~i~ /f~ N .YY~:. : •i:r : . r. r .l:s'~y~. /ate a ~ .I• ..l ~{G. W r 0) r•• -04 I nu 13 ;:)4 r. 04 •4I 3633 t ^.:a Earth 288 feet at the ro21oviag tract, to-wit: 3egi=ing at a stone at the northeast corner of tae Geo. Richardson D. L. C. No. 55 in Section 36, To=s$ip 1 South, Eange 1 fast or the Ueridian, i sstizg:on County, State or Oregon; t'he=e North 89D001 last 811.7 feet a1o=g the north line of said D. I.. C. to a 3`.rap i*oa; t'rs=as Sout3 0 291 Test 460.5 feet zero or less to a 1" pips at the ( tree po~zt at beginning or the tract herein described; thence .;ant !24 t South 0 29' last 713.14 test to a 3/40 pips in the norther'? right of wx7 14.zs o: the West Side Pacific E!Shwar; :,hence Forth 54°022* Ust along said right of way line 149.9E root to a 3/4" iron pipe; thence tdorth 0 29• Saar 593.54, feet to a 1/2• iron pipe;: thence North 89 00• Ileac 160.0 feet to the true point of .beginning. i Also the right to use an a roadalay a strip of '1--A 16 :Cast JA VddtIL ex%endi_nr rroei the Southeasterly corner of the property herein con- ; veyed, on and along and adjacent to the easterly bounda 7 li=e of the ; tract lying iza- ediately south or the tact conveyed; said strip to artood to the northerly boundary or the :test 5138 BaCifie 8=¢hray. subject to ' Also./ a parpetual easement to the Southerly twenty (20.0) feet of the northerly 288.54 feet of the weetorty fifteen- (15.0) feet of that parcel of land in Section 36, T1S„ It W, U.N.. Washington County, Oregon conveyed to Gary L. and Fay M. Lawson as described in DooA 514, page 79. Deed Records of said Washington County. r i j i i J i=2 rT '.1' VrATL OF aRMON Cernn a waehirq~a+ 1. R.pn TMna,..+. D~na~ d R.e~ •wl ekeuom and 4.Officio R.cerd,. d Cr. •waeo far said cawtti. do m m e~ r Ur"#V ~7w ib"wINn ipwrW-ow of MA&V w wsei.ad and Hooded in bsi of r•earr • , W:nru• w.,w., lr.d o,d for arfi..d I RCa[K TNOKSSpJ, Oi anon d f r R.esr i [letter f OewA 4 09 rK'It- eaex 899 P,~980 N i .r..: ' 01 .Deputy z = Z r_ - Ada OWN iidw4V. S" "ad too" .11t•"'~"^i.A ?•j•• T,tri.• a.:.~".,.~y t'•.x•• .~~,Vt~. 7J~;'•'~/T~ ~"'.r~•• i4 Ab x.11 rr .M ~`•i: 1. %SO ' N • Z Q cc 122 S.E. 27th Planning/Design Portland, Oregon 97214 ~ Group Phone: (503) 236-6000 Fax: (503) 232-2357 August 12, 1994 Mr. Bobert Doran ODOT P.O. Box 25412 Portland, Oregon 97225 RE: Taco Bell 11635 SW Pacific Highway (99W) Tigard, Oregon Dear Bob: Enclosed is a revised site plan which shows the existing residential access remaining as is on highway 99W. We have shown a 6" curb separating the residential easement access from the Taco Bell, similar to the previously approved plan. In order to minimize attempted commercial access we would propose to install a sign stating "Private Drive". Additionally, we would not improve this access with paving to further hinder commercial use of the access. As you may know, one of the property owners affected by the relocation of the access, has filed an appeal with the City of Tigard. We are making this proposal to satisfy the appellant and the City that ODOT has considered this as a possible solution. I have also included a copy of the ODOT approved access relocation to the jug handle for comparison. I would like to have ODOTs comments on this proposal by August 19, 1994 to submit to the City of Tigard. Thank you for your help and consideration of the proposal. Sincerely, David P. Kimmel R E-: SIDEL :Ivr= ' ~i__`.' E Y Ay LUBA NO. 94-211 Exhibft No. LP Page No. Exhibit 2 i -1 Uregon August 19, 1994 DEPARTMENT OF David P. Kimmel TRANSPORTATION Planning/Design Group 122 SE 27th Ave. Dlsulcc Z► Portland, OR 97214 Maintenance supervisor Subject: Taco Bell/Adjacent Driveway 11635 SW Pacific Highway (ORE 99W) FMEC0DE: City of Tigard, Washington County Dear Dave, 2 have reviewed the proposed revision of access submitted in your letter of August 12th with Bob Doran, Acting District Manager. We understand your desire to mediate the impact on the private residence that.is relying on the 14' easement for access, however ODOT cannot support this plan due to following: 1. The driveway will appear to some motorists to be a point of access to the Taco Bell (even with curbed separation and the "Private Drive" signing). 2. The skew of the driveway from the alignment of the highway makes it difficult for the user to see oncoming traffic. 3. Location of a driveway in close proximity to a signal without being part of the signal makes it difficult for some motorists to determine which movements will occur when. 4. Maintaining' the driveway as a separate approach to ORE 99W when there is alternative access available (by tying into the jughandle) is contrary to ODOT's approach to access management. Pacific Highway West (ORE 99W) is an Access Oregon highway and is a route of Statewide significance. ODOT does not anticipate any negative effects to the proposed realignment of the subject driveway into the existing signalized jughandle. The positive attributes (in addition to eliminating the 4 conditions enumerated above) of this connection will be ingress to the parcel without slowing ORE 99W traffic, and egress via the signal. Sincerely, C..n ~A4A.-{ Gary McNeal LUBA No. 94-211 Actinq Assistant District Manager Exhlbtt No. G Page No._ Exhibit 3 PO Box 25412 Pordand, Olt 97IZ5-0412 IF9~ 11U-71 f'+ f.,!+r-cti~rr~ rtM~ ~~o.crv+~ i • • ""tea- :::a, ' .a 7 4th S j ° : . _ t. I \Y Mr. ~r r' Tax Lot 230p. Tax Lo t y xOpp 74th St. 'xhib LUBA IVO t 4 1:':Jhibit N * 1 Page No`-- 't . Tax Lot 1000 t 300 ~.e : , ~t: Tax Lot 2 IT• '~"<•.TA!~~w" ~.f l'~T• ,r.~ ~ t ~ .1 .It.• 11 _ ''~'4<•• • .•r } •T'i • • ti:~•' 'mot r4 i • S.. 7sb • . l /~J~ Tax`Lo_t il,•': ,Z r.,c• ~.t, ra,a ~+;e. •f1~_. e•~>' 't/;•".i'.. _ 4gW :~~I1 ...:P'•►i:,' '`.''~~'1' y,i K. i1 I ~l~ ~ i~ 'tb•Z ~ ~ f f S ono Tax Lot 1 00 r r 50 ME i Lot 1p0~. Tax II~ } h L Tax eZd i ~i Tax lot 1000 r J y R _ L Tax Lot 1100; r t4 2300 ~ . Tax Lot LUBA NO. 94-211 Exhibit No. +"I ~-Jc I Ex-hib i t 4 Page No. 2 !Ry"s 74tll St' • Tax Lot 23dd iI I F y i 4th S Tax Lot 230.E LUBA No* - F Mibit No, page No. . - ~L ' ~ 4.9:.••. [ it PAM, •1~rsl~rr 'fir p; R.,!ff"wi' fix: s.• p +c: ' rt , . rw 10, M { N"i r SW 74th Ave I,',, Ei 'Q- I ) '~y~ a• 5 a ry • •1 ~ 1l ~ LUBA NO. 94211 Exhibit No. Panp Mn. '1''+ The City 0f `t fAYI.(R'S See NOTES on T I GARD back of p a g y I ` Comprehensive P 1 a n NVI Transportation 71ST A_ \ SEE NOTE F1. ~X- Map \ r DIROiA F i ll r e 3 L*<E as ' a T1GMU ~ ~ \ ' 5 X ` Li Q h t Rai 1 [R DR Corridor j SEE NOT 4\\\\\\ M\\\\\\\\11 Stud Area Study Area v; ki EE E 2. Q SE 6, ST Arterial SEE 0 T E 3, SEE N Ma'or Co~Iector w P S,- Co11ector aG ® FreeKayy f f ST Interchan g e ~"rUfF 1G~+ Digital data A map representa- z tion compiled by the City of figard etilitleg Geographic Information Systen (GIS) EEEF 1 s6111aIe. Information portrayed here may be O r d i n a n e e N o. 91-13 j G indented to heed 1i Ih additional technical ✓ UO ? ' ' 1 N 0 R T H and/or inIarpreIatlee • M a p adopted J u n e > > 1991 data as determined by the C i I y of Iigord. See back for revision schedule (YPTRNS) S N T E D 3600 (]I 19/91 ) LUBA N0.94.211 Exhibit No. _(Q Page No. I 'DL TUALATIN VALLEY FIRE & RESCUE AND BEAVERTON FIRE DEPARTMENT 4755 S.W. Griffith Drive • P.O. Box 4755 • Beaverton, OR 97076 • (503) 526-2469 • FAX 526.2538 September 15, 1994 PDG Dave Kimmel 122 S.E. 27th Portland, Oregon 97214 Re: Taco Bell (Store 106-817) 11635 S.W. Pacific Hwy. 5990C-169-000 Dear Mr. Kimmel: After reviewing plans for the proposed new Taco Bell restaurant, and fire department apparatus access to the properties located at the rear and north of the new building, we cannot accept the access design from the "jug handle" theater road as meeting the requirements of our fire apparatus for turning radius. Nor does it appear that sufficient area is available to develop a turning radius. We would, however, accept a driveway for emergency use which would allow access from Pacific Highway via a "rolled curb" and Grasscrete to the easement (see redline drawing). We would be happy to discuss this with you and if we may be of any further assistance, please do not hesitate to call. Very t yours, ex f s sist t F* e Marshal RHJ:kw LUBA NO. 94-211 Exhibit No. to Exhibit 7 Page No. !oq CITY OF TIGARD OREGON PUBLIC NOTICE. Anyone wishing to speak on an agenda item should sign on the appropriate sign-up sheet(s). Assistive Listening Devices are available for persons with impaired hearing and should be scheduled for Planning Commission meetings by noon on the Monday prior to the meeting. Please call 639-4171, Ext. 356 (voice) or 684-2772 (TDD - Telecommunications Devices for the Deao. 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 Wednesday preceding the meeting date at the same phone numbers as listed above. SEE ATTACHED AGENDA LUBA NO. 94-211 PLANNING COMMISSION 9/12/94 - PAGE 1 Exhibit No. 7 Page No. I 0 CITY OF TIGARD PLANNING COMMISSION SEPTEMBER 12, 1994 - 7:30 P.M. AGENDA 1. CALL TO ORDER 2. ROLL CALL 3. APPROVE MINUTES 4. PLANNING COMMISSION COMMUNICATIONS 5. -PUBLIC HEARING 5.1 SITE DEVELOPMENT REVIEW SDR 94-0003 PDG/CORBIN/TYSON LOCATION: 11631 and 11635 SW Pacific Highway (WCTM 1S1 360B, tax lots 700'& 600). An appeal was filed of a Director's Decision approving a Site Development Review to allow construction of an approximately 1,989 square foot drive-thru restaurant with related site improvements. APPLICABLE APPROVAL CRITERIA: Community Development Code Chapters 18.32. 18.62, 18.84, 18.92, 18.94, 18.96, 18.100, 18.102, 18.106,18.108,18.114,18.120,18.144, 18.150,18.162, and 18.164. ZONE: C-G (General Commercial) The C-G zone allows public agency and administrative services, public support facilities, professional and administrative services, financial, insurance, and veal estate services, business support services, and eating and drinking establishments among other uses. 5.2 SITE DEVELOPMENT REVIEW SDR 94-0003 PDG/CORBIN/TYSON LOCATION: 11631 and 11635 SW Pacific Highway (WCTM 1S1 36DB, tax lots 700 8 600). A second appeal was filed of a Director's Decision approving a Site Development Review to allow construction of an approximately 1,989 square foot drive-thru restaurant with related site improvements. APPLICABLE APPROVAL CRITERIA: Community Development Code Chapters 18.32, 18.62, 18.84. 18.92, 18.94, 18.96, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.144, 18.150, 18.162, and 18.164. ZONE: C-G (General Commercial) The C-G zone allows public agency and administrative services, public support facilities, professional and administrative services, financial, insurance, and real estate services, business support services, and eating and drinking establishments among other uses. 6. OTHER BUSINESS 7. ADJOURNMENT LUBA NO. 94-211 PLANNING COMMISSION 9/12/94 - PAGE 2 Exhibit No. 7 Page No. ! o(o I T I G A R D P L A N N I N G C O M M I S S I O N NOTICE: ALL PERSONS DESIRING TO SPEAK ON ANY ITEM MUST SIGN THEIR NAME AND NOTE THEIR ADDRESS ON THIS SHEET. (Please PRINNT) 'I AGENDA ITEM : CASE NUMBER (S) ce%"?) OWNER/APPLICANT: kJ~• (.Orel V\ LOCATION: 4 I Ito S 51-J C, cop j DATE OF HEARING: PLEASE PRINT YOUR NAME, ADDRESS, AND INCLUDE YOUR ZIP CODE t FAVOR OPPOSE Name &o C • Qt01 nson Name Address CIC)O 'i W 56b 2300 Address Poez(,AiJ0,0R ~J7Z c~ Name 1 0 4<'r Pm Ij Name j 6r- C Add ei Z Z - -Z-W74 A-v. - Address /~/U-5 ~oc-~a.+. ~ O2 9-7?~ 1 gEil v~i(~PW ~ ~iQ ~~~5^ Name Name Address Address Name Ey Name Address CAS Address Q Name /vi t &:~•6 K4,•~ n fL4s-z Name Address S47 1N0a67?eY,0e Addre: Ai ~K~v~c.9lI 9 . 99188 Name C.4 tq ~ h W`. Q K t Name Address tt{$1(~S(-1d~dS(L ttSUk Address y Name L n tz"Ji- - Name Address ~~V Z S~,✓ tai ~Z Address Name Name Address Address Name Name Address Addres LUBA NO. 94^211 Exhibit No. Page No. :%~1 T I G A R D P L A N N I N G C O M M I S S I O N NOTICE: ALL PERSONS DESIRING TO SPEAK ON ANY ITEM MUST SIGN THEIR NAME AND NOTE THEIR ADDRESS ON THIS SHEET. (Please PRINT) AGENDA ITEM: . Z CASE NUMBER (S) :.SCR q Li - L^,00TJ- OWNER /AP PLICANT: ii V" • C^. ~C)r(,o V\ - r _ LOCATION i - q Q Npe NUMBER: DATE OF HEARING: 12 PLEASE PRINT YOUR NAME, ADDRESS, AND INCLUDE YOUR ZIP CODE ! FAVOR OPPOSE Name C • ROb l l'1 O (Y Name Q~• u7 Address q00 SW 561 % S 2:~S O Address ~oD U Lva Pof~1~N0 , c~ `l7 Zoo- ~ ~ ~ ~ ~ n~ c17 ~3 _S~S7s Name Zqill-c &v Name (TC l SN)Rr~ Address 5~7 !f/CJ .S Toe Address q (P 3 SW VdeSTWOOZ -D 7Gf KINiL !f, WA - q Q~ -Fb frfi A7-4 D., d R- q 72-0 f i Name Name L- Q - ►n R Address Address I G o S~J PArz-RZ~ -r7 oKIv FZ/) S;+c- woo D, OP- Z t 4} v f Name Name a Address Address Name Name Address Address ~<L1V Name Name Address Address Name Name - Address Address Name Name Address Address Name Name LUBA NO. 94-211 Exhibit No. 7 Address Address Page No.~ i - TIGARD PLANNING COMMISSION Regular Meeting Minutes - September 12, 1994 1. CALL TO ORDER: President Fyre called the meeting to order at 7:30 p.m. The meeting was held in the Tigard Civic Center - Town Hall - 13125 SW Hall Boulevard. 2. ROLL CALL Present: President Fyre, Commissioners DeFrang, Holland, Moore, Schweitz and Wilson Absent: Commissioners Collson, Saporta and Saxton Staff: Dick .Bewersdorff, Senior Planner; Mark Roberts, Assistant Planner and Leslee Gemmill, Planning Commission Secretary 3. APPROVE MINUTES Commissioner Moore motioned to approve the August 22, 1994 meeting minutes as submitted and Commissioner Wilson seconded the motion. A voice vote was taken and the motion was approved unanimously. Commissioner Schweitz abstained. 4. PLANNING COMMISSION COMMUNICATIONS Senior Planner Dick Bewersdorff requested this agenda item be brought up after the public hearings. 5. PUBLIC HEARING 5.1 SITE DEVELOPMENT REVIEW SDR 94-0003 PDG/CORBIN/TYSON-LOCATION: 11631 and 11635 SW Pacific Highway (WCTM 1S1 36DB, tax lots 700 & 600). An appeal was filed of a Director's Decision approving a Site Development Review to allow construction of an approximately 1,989 square foot drive-thru restaurant with related site improvements. APPLICABLE APPROVAL CRITERIAS: Community Development Code Chapters 18.32, 18.62, 18.84, 18.92, 1.8.94, 18.96, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.144, 18.150, 18.162, and 18.164. ZONE: C-G (General Commercial) The C-G zone allows public agency and administrative services, public support facilities, professional and administrative services, financial, insurance and real estate services, business support services and eating and drinking establishments among other uses. Mark Roberts, Assistant Planner, informed the Planning Commissioners that on June 24, 1994, staff recommended approval of Site Development Review #94-0003 subject to Conditions of Approval. On July 13, 1994, an appeal was filed by Larry Morris, the property owner to the north of the proposed Taco Bell site. Using an overhead projector, Mark Roberts pointed out for those present, the existing land uses adjoining the Taco Bell site. Mark Roberts said the appeal stated the design of the Taco Bell site failed to address the mitigation of sound from the menu board speaker in the drive-thru and also that the noise and exhaust fumes coming from traffic waiting in the drive-thru lane was not sufficiently addressed through the design of the site. Mark LUBA NO. 94-211 Exhibit No. Page No. _ Roberts pointed out a typographical error on the memo dated September 12, 1994 addressed to the Planning Commission and asked the Commission to note that Condition of Approval #7 should read "The site and landscape plans shall be revised to provide a 6' or higher solid wood fence along the property line". Mark Roberts addressed the applicant's statement in the appeal that staff exceeded its authority as it related to the appeal period for recommendation of approval. The applicant stated the appeal period provided was from June 23 to July 13, 1994 and that because the City Council met on June 28, 1994 - within the ten day period - the appeal period should have expired on July 5, 1994. Mark Roberts also addressed the applicants concern addressed in the appeal that additional findings were applicable with respect to Site Development Review #94-0003 that related to the mandatory findings applicable to all site development review applications. APPLICANTS PRESENTATION Michael C. Robinson, Attorney at Law, 900 SW Fifth Avenue, Suite 2300, Portland, OR 97204, introduced to the Commissioners, Dave Kimmel, NW Manager of Taco Bell and Mike Randles, PDG President. Mr. Robinson said the applicant would comply with the 6' or higher fence then addressed Mr. Morris' appeal regarding the issue of mitigation of sound and exhaust fumes from the menu board speaker and traffic in the drive-thru lane. He stated that Mr. Morris, in his appeal, failed to list any applicable criteria making sound or air quality relevant to the decision however, Taco Bell did submit evidence that demonstrated the restaurant would not adversely impact adjacent properties through sound or exhaust fumes. Mr. Robinson then addressed the timeliness of the appeals and quoted TCDC 18.32.300(A). He said it provided the Director the discretion to extend the appeal period from 10 to 20 days only when necessary to allow a person to appear before the City Council and an extension of the appeal period in this case was unnecessary because any person could have appeared before the Council on June 28, well within the appeal period. Mr. Robinson said that because the Planning Director exceeded its authority, the Gensman and Morris appeals were filed late and the Planning Commission should dismiss the appeal. Mr. Robinson reviewed the four points raised in the Gensman and Morris appeals: air quality; noise, the timeliness of appeals and the Tigard Comprehensive Plan Policy 8.1.1 each of which was outlined in Mr. Robinson's August 23, 1994 letter addressed to Mark Roberts. Dick Bewersdorff addressed the Commissioners concern regarding the timeframe of the appeal and whether the Planning Commission had the jurisdiction to rule on this appeal. President Fyre called upon the following individuals that signed up to speak in favor of the agenda item. Each of the individuals PLANNING COMMISSION MEETING MINUTES - September 12, 1994 - Page 2 LUBA NO. 94-211 Exhibit No. q Page No. I i D Mr. Kimmell, Mr. Randalls, Mr. Williams and Mr. Beatty declined to speak unless the Commissioners had any questions. Jeff Cheyne, 4240 SW Cedar Hills, Beaverton, OR 97005, attorney, representing the Morris family, asked the Planning Commission to consider not allowing Taco Bell to build a restaurant at this relatively quiet and peaceful location. He said the addition of a restaurant would be a radical change for the property. He complimented Taco Bell for the location of the loud speaker and addressed the day and night sound levels associated with a drive- thru restaurant. He talked about the data gathered from the noise level test done July 27, 1994 and his clients concern about the impact of cars waiting in the drive-thru 10-20' from the property line. Commissioner Wilson asked Mr. Cheyne to be more specific about the test and his response was that the test was performed from inside the bedroom and in the yard between the house and garage and lasted for 24 hours from noon July 27 through noon July 28, 1994. APPLICANT'S REBUTTAL Mr. Robinson addressed the issues raised by Mr. Cheyne. He said the uses on the site now are quite old and it was unlikely that the motel would remain and that no matter what the change, a Taco Bell or anything else that goes in at that location, change on 99W was evident. Mr. Robinson stated that the Tigard noise code and DEQ noise standards were not applicable approval criteria and pointed out the study Mr. Morris submitted was not a noise study of a Taco Bell. He addressed the concern about the amount of noise generated from the drive-thru lane and said Taco Bell agreed to construct a 6' high solid wooden fence, a 10' set back, landscaping and with the change of grade between the Morris property and the restaurant, the location of the speaker board 90' from the property line and then asked what more could be done. Mr. Robinson noted that the noise study submitted by Mr. Morris did not include the fact that there would be a 6' high fence and did include a great deal of noise from Pacific Highway that wouldn't go away. In response to Commissioner Holland's question regarding the capacity of the drive-thru lane, Mr. Robinson said it had a 10 car capacity from the service window to the end of the drive-thru lane. President Fyre asked how close the cars in the drive-thru lane would be to the northern property line and Mr. Kimmel responded that the distance would be between 12 and 13 feet if the drive- thru lane was at capacity. Commissioner Moore asked about the elevation change between the two sites and Mr. Kimmel said it varied between 2-1/2 and 3-1/2 feet with the Morris property being higher and that the elevation would be in addition to the 6' high fence. Commissioner Wilson asked if there were any studies that showed how much a 6' wooden fence would cut back on sound and Mr. Kimmel said he was told by an acoustical engineer that it could reduce the dBA's anywhere from 2 to 5 depending on the type of fence. PLANNING COMMISSION MEETING MINUTES - September 12, 1994 - Page 3 LUBA NO. 94-211 Exhibit No. ! Page No. Commissioner Schweitz asked about other noise buffers. Mr. Kimmel said there was a proposed hedge that would eventually grow together and be 6' from grade and depending on the area could be as high as 11-1/2 feet. In addition, there would be a substantial number of full size trees along the back side that would also help control emissions and dust. PUBLIC HEARING CLOSED Commissioner Holland agreed with the nature of the project and said it probably was going to be as good as any project for this location and therefore in favor of denying the appeal. Commissioner Moore said he hadn't heard anything that would change his mind and agreed with Commissioner Holland that something commercial would eventually go in at that location. He said Taco Bell had done a good job with its proposal. Commissioner DeFrang agreed with Commissioner Moore and said she was satisfied with the proposal and saw no reason to accept the appeal. Commissioner Schweitz concurred. President Fyre expressed his concern about the nearby residents to the proposed Taco Bell site and said he thought if the motel was not there, the noise from 99W would increase at that site dramatically and was pleased to hear Taco Bell agreed to put in the 6' fence. The fence, along with the different elevation level, would defer the noise from 99W and the cars in the drive- thru and he concurred with the other Planning Commissioners. Commissioner Holland motioned to deny the appeal with the additional findings as applicable. Commissioner Schweitz seconded the motion. A voice vote was taken and the motion was passed unanimously. 5.2 SITE DEVELOPMENT REVIEW SDR 94-0003 PDG/CORBIN/TYSON LOCATION: 11631 and 11635 SW Pacific Highway (WCTM 1S1 36DB, tax lots 700 & 600). A second appeal was filed of a Director's Decision approving a Site Development Review to allow construction of an approximatley 1,989 square foot drive-thru restaurant with related site improvements. APPLICABLE APPROVAL CRITERIAS: Community Development Code Chapters 18.32, 18.62, 18.84, 18.92, 18.94, 18.96, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.144, 18.150, 18.162, and 18.164. ZONE: C-G (General Commercial) The C-G zone allows public agency and administrative services, public support facilities, professional and administrative services, financial, insurance and real estate services, business support services and eating and drinking establishments among other uses. Mark Roberts, Assistant Planner, highlighted for the Planning Commission, the appeal filed by Mitchell Gensman on July 13, 1994 concerning site access to the vacant parcel located two properties to the north of the subject property. He said the appeal indicated the proposal negatively impacted access to the property PLANNING COMMISSION MEETING MINUTES - September 12, 1994 - Page 4 LUBA NO. 94-211 Exhibit No. Page No. and failed to comply with section 18.108 of the development code; it violated an easement right to the property; the proposed development failed to adequately consider the impacts of the proposed development of the surrounding properties and the site design failed to consider access to multi family zoned areas. Mark Roberts said presently there were four existing driveways along the two parcels and with the development of the Taco Bell site they would be reduced to one driveway with full service access. He said the existing easement access was a mixture of gravel and unpaved surfaces and Taco Bell had agreed to pave the entire length. Mark Roberts then said the City of Tigard Planning and Engineering Departments and the Department of Transportation all concurred that providing additional multi-family access via the jug-handle access there now, was not recommended. In conclusion, Mark Roberts asked the Planning Commission to uphold the staff decision and deny the appeal. APPLICANTS PRESENTATION Michael C. Robinson, Attorney at Law, 900 SW Fifth Avenue, Suite 2300, Portland, OR 97204 representing Taco Bell, asked that his comments regarding the validity of the Morris appeal and hearing be incorporated for the Gensman appeal. He noted Mr. Gensman's appeal listed four reasons he believed the decision should be overturned but didn't list specific grounds for the appeal based on applicable approval criteria as required by Tigard Community Development Code 18.32.290.A3. He cited that the referenced section of the Development Code required the appellant to focus on the applicable approval criteria that governed an application and required the individual to outline exactly how the decision failed to meet that approval criteria. Mr. Robinson reviewed for the Planning Commission the four concerns submitted by Mr. Gensman. Regarding Mr. Gensman's concern that the proposed Taco Bell development negatively impacted access to his property and failed to comply with section 18.108 of the development code, Mr.Robinson replied it was an applicable approval criteria for site development review. He asked the Planning Commission to keep in mind that the Taco Bell application had met its requirement for access pursuant to TCDC Chapter 18.108. The site still provided a 14' drive from 99W to the property and the only change was the access point from in the traffic lane to the jug-handle for less interference on the Oregon highway per the recommendation of ODOT and the City of Tigard Planning and Engineering Departments. The second basis for the appeal was the traffic analysis prepared by Taco Bell. Mr. Robinson referred the Planning Commission to the traffic study included in their packet and said it met with ODOT and City Engineer and Planning Department requirements. Mr. Robinson talked about the third basis for the appeal-that the proposal violated an easement right to the appellant's property. He said this was not an applicable approval criteria, that the easement had not changed and would be paved. PLANNING COMMISSION MEETING MINUTES - September 12, 1994 - Page 5 LUBA NO. 94-211 Exhibit No. Page No. The fourth basis for appeal was that the City failed to adequately consider the impact of the proposed development on the surrounding properties and access to the R-12 properties. Mr. Robinson said section 18.108.120 did not make Comprehensive Plan policies mandatory applicable criteria and pointed out that Mr. Gensman did not give any grounds for this argument. Mr. Robinson said he concurred with Mark Roberts' recommendation as outlined in his memo dated September 12 that explained the R-12 areas could be served by other means. In conclusion, he said nothing would be changed on the Gensman property or access easement by virtue of the Taco Bell application that the only change would be the access location with the same easement rights to continue to the properties. Mr. Robinson asked the Planning Commission to reject the appeal and uphold the Director's approval of the Taco Bell site development review application. APPELLANT Greg Lutke, 400 Lincoln Center Tower, Tigard, OR 97223-5575, distributed documents to be entered into the record and introduced Mitchell Gensman, 963 SW Westwood Drive, Portland, OR 97201. The documents included a letter from Mr. Bradley Wanamaker, Deputy Fire Marshal dated September 8, 1994 with an attachment outlining current fire service access standards; a record of a telephone conversation between Mitchell Gensman and Lee Gunderson of ODOT dated June 22, 1994 and a letter from property owner, Ken Watts. Mr. Lutke pointed out that his client, Mr. Gensman, owned tax lots 900 and 1000 and was concerned about access to both pieces of property and then discussed how the jug-handle access would affect the properties. Mr. Lutke referred the Commissioners to Code 18.10.010A that required consistency with the Comprehensive Plan and state and federal laws and 18.164.030 (c) regarding the creation of access easements and uniform fire code compliance and also 108.071.080 (i) - existing rights of way. At this time, Mr. Lutke reviewed and summarized the handouts from Deputy Fire Marshal Wanamaker and commented on emergency vehicle access and said he believed they'd mandate denial of this application as proposed because a minimum of a 20' radius was needed. Mr. Lutke continued to cite code requirements that included 18.120.180 - approval standards for site development that related to fire fighting that he said could be interpreted to include fire vehicle access; 18.108.06 - inadequate or hazardous access for emergency vehicles; Comprehensive Plan Policy 8.1.3 - regarding the impact of the proposed development to his clients property, Mr. Lutke stated Taco Bell should be required to participate in the necessary roadway improvements to bring them up to standard. In conclusion, regarding the timeliness of the appeal, Mr. Lutke stated he relied upon the document provided by the City that indicated an appeal needed to be filed by a certain date and it was. Mr. Lutke, entitled under ORS 197.763, requested the written record be left open for 7 days. PLANNING COMMISSION MEETING MINUTES - September 12, 1994 - Page 6 LUBA NO. 94-211 Exhibit No. c7 Page No. Mitchell Gensman, 963 SW Westwood Drive, Portland, OR 97201, informed the Planning Commission he purchased tax lot 900 in 1981 and in 1989 purchased tax lot 1000 with the intent to develop the properties into multi-family housing. Mr. Gensman reviewed for the Planning Commission the steps he'd taken since 1989 when he first met with the City and learned there was no way to access the property for multi-family development. He outlined his involvement with the City and ODOT, his CIT involvement, meetings and conversations with Taco Bell and Mr. Kimmel all regarding the further landblock of his property by the development of the restaurant. Mr. Gensman said he'd been very involved with this process and felt he hadn't received any results from the City or developer. He talked about the fire service access standards stating that the inside and outside turn radii, roadway widths and turnarounds needed to comply with the standards identified in the document distributed by Mr. Lutke. He said he felt Taco Bell hadn't shown clearly to him they could provide the required turning radius and said he thought a reasonable solution to the matter would be to relocate the 14' easement from the east to west side of the property which he felt would have little impact on Taco Bell. Mr. Gensman then referred to his telephone conversation on June 22, 1994 with ODOT representative, Lee Gunderson. In conclusion, Mr. Gensman said the appeal was not about Taco Bell but about meeting the objective of the Tigard Comprehensive Plan and it was not about creating hardship on the fast food restaurant but to promote low income housing and development of multi-family housing in the City of Tigard. He said if he was not successful with the appeal, he intended to pursue the matter with LUBA and circuit court options he may have. Mr. Lutke brought to the Commissioners attention, the letter from Ken Watts and said it indicated Mr. Watts was unable to attend the hearing and was not in favor of any further development on Pacific Hwy or elsewhere that could cause roadblocks for the development of his property. Mr. Lutke suggested staff prepare an aerial photo for better examination of the area. Mr. Gensman said over the years he had worked with the motel owner, auto parts store and other adjacent owners to get access to the property and said it was a travesty to have that much available land within the city limits be not available for development and that it was a wonderful site, one with access to the movies, shopping, bus lines, fast foods, etc. Lee R. Gensman, 16840 SW Parrett Mountain Road, Sherwood, OR 97140 addressed the Planning Commissioners next. He said he and his son, Mitchell, had studied the Comprehensive Plan at great length and believed the City had a requirement to support something that could be done with the property zoning. He said money was available to develop the property for low income families and the location was ideal. Mr. Gensman said they had met with no spirit of cooperation, as required by the Comprehensive Plan, at the PLANNING COMMISSION MEETING MINUTES - September 12, 1994 - Page 7 LUBA NO. 94-211 Exhibit No. G Page No. 71 various meetings with the Planning Department over the last 10 years in the matter of access and asked for assistance in improving this situation. In conclusion, he voiced his concerns about the associated noise level of the crowds as they gathered at Taco Bell following a football game or a movie and the hinderance to the property owners wanting access to their residences during these busy times at the restaurant. Jeff Cheyne, 4240 SW Cedar Hills, Beaverton, OR 97005 asked to address the Planning Commission on some of the issues raised during the hearing. He referred the Commissioners to the site plan and talked about the garage on the Morris property needing to be relocated if the decision was made to change the location of the easement. He also pointed out the impact of the ODOT decision to jug-handle access with respect to fire trucks and said both properties could be put in serious danger in the event of a fire. Finally, he said any of the three properties could be denied application for single family residences because of the access issue. Mr. Cheyne said he was generally supportive of Mr. Gensman but asked that the issues that related to the Morris property be sorted out. APPLICANTS REBUTTAL Mr. Mark Robinson said Mr.Gensman failed to prove how the Taco Bell site affected access to his property. He said he felt the important issue here was whether or not the Planning Commission could impose some requirement on Taco Bell because of a property owner's speculative desire. He said it was clear from the site plan submitted that the access issue existed when Mr. Gensman purchased the properties and not one Taco Bell placed him in. He said he didn't think that under existing law it was appropriate for the City to consider to impose a condition on Taco Bell that was not caused by the impact of the development being reviewed. Mr. Robinson commented on the TCDC provisions cited by Mr. Lutke and the letter distributed from Mr. Wanamaker. Mr. Robinson commented that Mr. Lutke had no right to rely on the City regarding the deadline to appeal. Mr. Robinson concurred with Mr. Lutke's request to keep the record open for seven days and asked that Mr. Lutke serve Mr. Robinson in person, with any submittal to the City and said he'd do the same. Mr. Robinson then asked for an additional seven days to respond to Mr. Lutke's submittal. Mr. Robinson asked Mr. Kimmel, PDG, to explain why Taco Bell could not provide access on the west side of the restaurant. Mr. Kimmel said there was a significant elevation difference between the sites - up to as much as 4' on the west side rear of the property. He said Taco Bell informed Mr. Gensman to acquire appropriate easements and to date thought this had not been done. Mr. Kimmel then addressed Mr. Gensman's comments about the design of the easement and the substantial time and money that went into the design making it more difficult to accommodate those grade elevations. PLANNING COMMISSION MEETING MINUTES - September 12, 1994 - Page 8 LUBA NO. 94-211 : Exhibit No. q _ Page No. Mr. Robinson concluded the applicants rebuttal and asked the Planning Commission to accept the staff recommendation that there was adequate evidence that access to surrounding properties was adequate. PUBLIC HEARING CLOSED Commissioner Schweitz agreed that fire and police vehicles should be allowed to come straight in from a highway and it was not the Commission's responsibility to require Taco Bell to move an easement. He said that should be negotiated by property owners and an application be made to the City to move it. Commissioner Holland pointed out that the Comprehensive Plan policies were set up to give direction to the Planning Department and the burden should not be put on the developer because the City had failed to provide that direction. Commissioner Moore said he couldn't allow tax dollars to become money used for development of property and it was not the City's fault. He agreed with Commissioner Schweitz regarding the access to 99W and said he sympathized with Mr. Gensman's problems and didn't think it was appropriate for the State to make it a problem for existing properties. Commissioner Moore said he saw no criteria to uphold this appeal. Commissioner DeFrang talked briefly about the volume of traffic and said that what was before the Commission tonight was not • appropriate at this time to deal with. She said it was regrettable for Mr. Gensman, but Taco Bell had satisfied the applicable criteria for development. Commissioner Wilson said he thought the problem was substandard from the beginning and the proposed development did not make it any worse but perhaps better and improved with the paving. He then commented on the letter from the fire department and turning radius for emergency vehicles and said Taco Bell should not be required to upgrade something that's been substandard for 40 years. Commissioner Holland suggested the City Planning Department take a look at the Comprehensive Plan. He said he liked the design of the Taco Bell but did not like ODOT's tight turning radius requirements. The Commissioners continued to discuss the easement, emergency vehicle access to the properties, potential access to properties from the west and other future possibilities. President Fyre commented that when a developer bought property, there was a certain amount of responsibility that went along with it and that access was a matter of public record and up to the developer to come to the Planning Department to research the public information. He said sometimes there may be a problem when staff tried to be helpful and sometimes people hear what they want to hear for instance, commitments on behalf of PLANNING COMMISSION MEETING MINUTES - September 12, 1994 - Page 9 LUBA NO. 94-211 Exhibit No. 0'I Page No. ; staff that may or may not be made. He said it would be helpful if some things were put in writing. President Fyre said this was an unfortunate situation where the development of this property needed to go hand in hand with the adjacent properties. Commissioner Holland said it was the Planning Department and Planning Commission's responsibility to properly zone land and the Comprehensive Plan stated that when a new development goes in, access must be provided to adjoining properties. Dick Bewersdorff reminded the Commissioners they could reconvene the deliberation based on the information provided them by the September 26, 1994 deadline. Commissioner Holland asked that the Planning Commission be able to look at further evidence and continue deliberation. Dick Bewersdorff said the information would be made available to the Planning Commission and may be the evening of September 26th. PLANNING COMMISSION COMMUNICATIONS Dick Bewersdorff asked the Commissioners to, upon receipt of their agenda packet, let the Planning Department secretary know whether or not they'll be present at that meeting. Dick Bewersdorff informed the Commissioners that the tree ordinance had again been revised and should be ready for presentation to the City Council in October. He reviewed some of the incentives of the proposal and said copies would be available to the Commissioners when completed. Staff and the Commissioners discussed briefly other access isues within the City of Tigard. 6. OTHER BUSINESS None 7. ADJOURNMENT The meeting adjourned at 10:12 p.m. Leslee Gemmill, Planning Commission Secretary AT Pr ~ re PLANNING COMMISSION MEETING MINUTES - September 12, 1994- Page 10 LUBA NO. 94-211 Exhibit No. Page No. AGENDA ITEM 5.2 MEMORANDUM CITY OF TIGARD, OREGON TO: Planning Commission FROM: Mark Roberts, Assistant Planner DATE: September 12, 1994 SUBJECT: Access Issues Appeal of SDR #94-0003 On June 24, 1994 staff recommended approval of Site Development Review #94-0003 subject to Conditions of Approval. On July 13, 1994 an appeal was filed by neighboring property owner Mitchell Gensman concerning site access to a vacant .95 acre parcel located two properties to the north of the subject property. Mr. Gensman requested that the proposed site improvements be modified to address existing access constraints by widening or relocating the access easement to SW Pacific Highway. As proposed, the design of the Taco Bell site maintains the current 14 feet of access width to residential properties to the north. The traffic study prepared for this site found that traffic congestion levels on this portion of SW Pacific Highway are presently at Level of Service F during peak periods. Because no alternative access is available to serve the Taco Bell site, a single driveway access design was required to serve as the primary access for the restaurant use. This driveway was provided along the westerly property line. The limitation to access removes three of four existing driveways to the site while maintaining a separated "flag lot" type access to existing residential uses to the north. Direct access of additional dwelling units from the existing easement onto SW Pacific Highway has been strongly discouraged by both the Oregon Department of Transportation and City staff due to expected additional impacts to the level of service on SW Pacific Highway. Two adjoining parcels in this area have split zoning with existing commercial uses located towards SW Pacific Highway and vacant residentially zoned areas along the northern portion of each lot (see enclosure). For this reason additonal review was conducted of provision of a joint access driveway serving several DroDerties in this area. Due to development constraints adjoining the Taco Bell site and level of service issues along SW Pacific Highway future direct vehicular access to the vacant or underutilized parcels in the area should be provided from streets other than SW Pacific Highway. Local Collector Street SW 74th presently partially adjoins Mr. Gensman's property and is recommended as a street access point for future development of the property and adjoining areas. LUBA NO. 94-211 Exhibit No. I- Page No. + Taco Bell Access Appeal Page 2 Staff recommends that the Planning Commission deny the appeal and uphold the staff decision finding that area and regional access issues are addressed through Site Development Review #94-0003 as previously designed. LUBA NO. 94-211 Exhibit No. Page No. 4 N C 'on r wN ~ l • 1 ; «r ~`M! 1 ~1 ~ TM WOO x t~~ 1 ~ 1 s ~ ~ , Td polo 0 03 woo 44, V t tA U. A 41 ~ ~ t ►g ~a .e 1 i .Ot tl~ iii r , NS Oat ~,..q- - ~ rot N ►b ~ c'' , N ~i; ; 1 ' H d N Id N a a ~ DE ozo PL~► ~ ~ RD TOGA ~~i~1~ ~ ►T Y pF CITY OF TIGARD NOTICE OF DECISION SITE DEVELOPMENT REVIEW SDR 94-0003 LOT LINE ADJUSTMENT MIS 94-0007 CORBIN/TYSON - OWNER PDG DESIGN GROUP - APPLICANT APPLICATION: A request for approval of site development review and a lot line adjustment for a Taco Bell restaurant. Comprehensive Plan: General Commercial (C-G), Zoning: General Commercial (C-G) Location: 1163.1 and 11635 SW Pacific Highway (WCTM 1S1 36DB, tax lots 600 and 700) SECTION I - DECISION: Notice is hereby given that the Planning Director's designee for the City of Tigard has recommended approval of the proposal subject to the recommendations. The findings and conclusions on which the decision is based are noted in Section II. Recommendations: PRIOR TO THE ISSUANCE OF A BUILDING PERMIT THE FOLLOWING CONDITIONS SHALL BE SATISFIED OR FINANCIALLY SECURED: 1. A joint use and maintenance agreement shall be executed and recorded on City standard forms for all common driveways. The agreement shall be referenced on and become part of all applicable parcel Deeds. The agreement shall be approved by the Engineering Department prior to recording. STAFF CONTACT: John Hagman, Engineering Department. 2. The applicant shall obtain a permit from the State of Oregon Highway Division, to perform work within the right-of-way of SW Pacific Highway (99W). A copy of the permit shall be provided to the City Engineering Department prior to issuance of building permit. STAFF CONTACT: John Hagman, Engineering Department. 3. The applicant shall remove and replace the existing driveways and sidewalk as shown on the site plan. The sidewalk shall be eight feet wide as measured from the face of curb. 4. The applicant shall pay the fees as established under the guidelines of Unified Sewerage Agency Resolution and Order No. 91-47. NOTE: This is a two part fee which is paid at different times. The first part is paid with any associated public improvements which is for that portion of the development which increases the impervious area within the public right-of-way. The second part is paid at Building Permit issuance which is for each individual lot. NOTICE OF DECISION - SDR 94-0003WS 94-0007 - PDG/TACO BELL Page 1 LUBA NO. 94-211 Exhibit No. Page No. 5. The applicant shall underground the existing overhead utilities along the northerly side of Pacific Highway, or pay the fee in-lieu of undergrounding. STAFF CONTACT: Michael Anderson, Engineering Department. 6. A lot line adjustment survey map and legal descriptions showing the existing and proposed lot lines shall be reviewed and approved by the Engineering Department. STAFF CONTACT: Greg Berry, Engineering Department. 7. a) The applicant shall demolish existing structures on site prior to the recordation of the lot line adjustment. STAFF CONTACT: Mark Roberts, Planning Division. b) The site/landscape plan shall be revised a minimum of two bicycle racks. STAFF CONTACT: Mark Roberts, Planning Division. c) The site/landscape plan shall be revised to provide a minimum of one walkway to SW Pacific Highway. STAFF CONTACT: Mark Roberts, Planning Division. d) The landscape plan shall be revised to provide a minimum of one street tree for each 20 feet along the entire frontage along SW Pacific Highway. The applicant may revise the species which was selected and provide greater distance between each tree. STAFF CONTACT: Mark Roberts, Planning Division. e) The site and/ or landscape plan shall be revised to screen the trash and recycling enclosure from view to the greatest extent possible from SW Pacific Highway. STAFF CONTACT: Mark Roberts, Planning Division. f) The existing billboard sign shall be removed prior to the issuance of an occupancy permit. STAFF CONTACT: Mark Roberts, Planning Division. g) All site improvements shall comply and be maintained in accordance with the revised site plan or as approved by the Planning Division. STAFF CONTACT: Mark Roberts, Planning Division. SECTION H. FINDINGS OF FACT 1. Background: The site is presently developed with an older retail building, a motel and a billboard sign. 2. Vicinity Information: The site is located on SW Pacific Highway to the west of the Fred Meyer Shopping Center. The surrounding properties are zoned for General Commercial and Office NOTICE OF DECISION - SDR 94-0003MIIS 94-0007 - PDG/TACO BELL Page 2 LUBA NO. 94-211 Exhibit No. ~ Page No. ► i Professional use and are developed with a mixture of commercial and residential uses along SW Pacific Highway. 3. Site Information and Proposal Description: The site is currently two seperate parcels which are developed with a motel and a store which was formerly a NAPA Auto Parts Store of approximately .85 acres in size. The site has direct frontage on SW Pacific Highway. The applicant proposes to construct a Taco Bell restaurant with a drive through aisle. The architectural treatment proposed for the structure is the proto type Taco Bell Restaurant with uses elements of an Early California/Spanish Mission archtectural treatment with the use of painted oversized masonry block and a tile roof. 4. Agency and CIT Comments: The Engineering Department, General Telephone, the Oregon Department of Transportation, and the Building Department have provided the following recommendations concerning this proposal. The Engineering Department provided the following comments concerning this proposal: STREETS: The applicant has submitted a traffic study prepared by Keech Associates, Inc., dated April 7, 1994. The report is candid in describing the difficulties of accessing the various businesses in the vicinity of the proposed development along Pacific Highway, State 99W. Based on the information provided, the applicant met with representatives of ODOT to discuss alternatives to the proposed access and have submitted a revised site plan. Engineering staff concurs with the new plan that incorporates a single joint use driveway on the westerly side of the property to serve the proposed development and the businesses on the adjacent property located to the west. In addition, the revised site plan shows a curb barrier to separate the proposed commercial use from the 14 foot wide driveway located on the easterly edge of the site, that serves the residential properties to the rear of the site. This driveway will connect to the "jug-handle" drive- through on Pacific Highway that serves as refuge for the southbound left-tum traffic entering the cinema across the street. The applicant shall obtain an ODOT access permit for their connection to SW Pacific Highway. The highway has been constructed to current State standards and no additional right-of-way or street construction is required. The site plan also proposes NOTICE OF DECISION - SDR 94-00031MIS 94-0007 - PDG/TACO BELL Page 3 LUBA NO. 94-211 Exhibit No. 1 Page No. I -Z$42 to remove two additional existing driveways that previously served the site and restore the sidewalk. However, it is recommended that the sidewalk be re-constructed for the entire length of the property to a minimum width of 7.5 feet, consistent with the sidewalk construction along other frontages on SW Pacific Highway. The existing power poles and overhead lines serving the area are located along both sides of SW Pacific Highway and the applicant should place the facilities located along this frontage underground, or pay the fee in-lieu of undergrounding. SANITARY SEWER: The existing eight inch public sanitary sewer is located in SW Pacific Highway and has sufficient capacity to serve this development. STORM SEWER: The site currently is partially covered by three buildings and asphalt concrete driveways that drain in a southerly direction toward SW Pacific Highway. The proposed site development will increase the amount of impervious area. The Unified Sewerage Agency has established and the City has agreed to enforce (Resolution and Order No. 91-47) Surface Water Management Regulations requiring the construction of on-site water quality facilities or fees in-lieu of their construction. Requiring surface water quality facilities on small sites would result in numerous facilities that would become a maintenance burden to the City. Furthermore, the applicant has not proposed any such facilities and there are no natural depressions, or other areas on this site that are particularly suitable for water quality facility design. Regional facilities, funded by fees in-lieu of construction, would provide the required treatment with improved reliability and efficiency. Therefore the applicant should be required to pay the fee in-lieu of constructing an on-site facility for that portion of the site that increases the impervious area. GTE stated that the developer shall coordinate with GTE on removal of existing telephone facilities and placement of new facilities. The Oregon Department of Transportation stated the following concerning this application: The traffic report prepared by Keech and Associates for the relocation of the Taco Bell on SW Pacific Highway indentifies the lack of access SW Pacific Highway west bound for a number of commerical properties in the vicinity. HWY 99W is an Access Oregon Highway, with access spacing standards. To assure a quality transportation system and enhanced economic vitality is going to require comprehensive planning and cooperation between ODOT and the City of Tigard in the devlopment of alternative NOTICE OF DECISION - SDR 94-0003/MIS 94-0007 - PDG/TACO BELL Page 4 LUBA NO. 94-211 Exhibit No. ;'D Page No. 1 access. The development of local streets and/or the combination of joint access and • cross over easements between properties need to be pursued by both ODOT and the City of Tigard. A single shared access on the westerly property line with Tax Lot No. 1800, will provide adequate access to the proposed Taco Bell that provides good internal circulation. As indicated in the report exiting from the proposed driveway will operate at a level of service F which is not uncommon for stop control driveways or intersections along SW Pacific Highway. The access at the easterly property line that provides access to Tax Lot No. 1800 through an existing easement also serves as an access to Taco Bell. This access not only adds an additional conflict point, but because of its proximity to the intersection we would expect a high occurence of conflict/accident potential. Alternative access to Tax Lot 800 through the Taco Bell property to the joint use driveway located on the westerly property line needs to be provided. The subject site circulation appears to be designed to adapt circulation should the theatre access become a typical four way intersection and a roadway extended to the north. Should this occur where an access through a signal is available, the driveway on the west side of the property line could function quite well and more safely as a right-in/right-out. Traffic Operations can support access to this parcel via a single access, allowing all movements centered on the property line of the subject site with provisions for restricting this access at such time as alternative access is available. The Building Department stated that demolition permits are required for removal of existing structures. All existing utlities shall be properly capped off and abandoned. All existing sewer lines shall be removed. SECTION III. ANALYSIS AND CONCLUSION A. COMPLIANCE WITH CONWUNITY DEVELOPMENT CODE SECTIONS: Use Classification: Chapter 18.62. states that the purpose of the General Commercial zoning district is to provide sites for the provision of major retail goods and services. The applicant states that the proposed building is to be used for a drive thru restaurant use which is a permitted use within the General Commercial Zoning District. Minimum Lot Area: Chapter 18.62 states that there is no minimum lot area for parcels in the General Commercial zone. Section 18.62 requires that the average lot width shall be 50 feet. The site is the combination two existing parcels. When combined NOTICE OF DECISION - SDR 94-000YMIS 94-0007 - PDG/TACO BELL Page 5 LUBA NO. 94-211 Exfiibft No. V Page No. the parcel has an average width of approximately 197 feet which complies with the standard. Condition of Approval #7 requires that the applicant provide proof of parcel consolidation prior to the issuance of building permits. Development proposals within this zoning district may not exceed 85% of the site with impervious structures such as buildings and hard surfaces. The site plan indicates that some 27,237 square feet or 77% of the property is proposed to be developed with impervious structures which complies with the requirement. The General Commercial Zoning District also requires a minimum of 15% of the site be landscaped. The site plan provides approximately 8,121 square feet (23%) of the site with landscaping in compliance with the requirement. Community Development Code Section 18.162.060 contains standards for approval of a lot line adjustment request: 1. An additional parcel is not created by the lot line adjustment, and the existing parcels reduced in size by the adjustment are not reduced below the minimum lot size established by the zoning district; 2. By reducing the lot size, the lot or structure(s) on the lot will not be in violation of the site development or zoning district regulations for that district; and 3. The resulting parcels are in conformity with the dimensional standards of the zoning district. The proposed lot line adjustment is consistent with these standards. The proposed adjustment will reconfigure the lot lines, however no additional parcels will be created by the adjustment. The C-G zone does not have a minimum lot area requirement. Both reconfigured parcels will continue to exceed the 50 foot average minimum lot width requirement of the zone. All site development improvements applicable to the parcels will be consistent with Code requirements upon redevelopment of the site. In addition to meeting the above standards, a lot line adjustment must also meet the following criteria applicable to lots created through the minor land partition process (Code Section 18.162.050): A. Lot Width: The minimum width of the building envelope area shall meet the lot requirement of the applicable zoning district. B. Lot Area: The lot area shall be as required by the applicable zoning district. In the case of a flag lot, the accessway may not be included in the lot area calculation. NOTICE OF DECISION - SDR 94-0003/MIS 94-0007 - PDG/TACO BELL Page 6 LUBA NO. 94-211 Exhibit No. ► o Page Nu. C. Lot Frontage: Each lot created through the partition process shall front a public right-of-way of at least 15 feet or have a legally recorded minimum 15 foot wide access easement. D. Setbacks: Setbacks shall be as required by the applicable zoning district. E. Front Yard Determination for Flag Lot: When the partitioned lot is a flag lot, the developer may determine the location of the front yard, provided that no side yard is less than 10 feet. Structures shall generally be located so as to maximize separation from existing structures. F. Screening on Flag Lots: A screen shall be provided along the property line of a lot of record where the paved drive in an accessway is located within ten feet of an abutting lot in accordance with Sections 18.100.080 and 18.100.090. Screening may also be required to maintain privacy for abutting lots and to provide usable outdoor recreation areas for proposed development. G. Fire Protection: The fire district may require the installation of a fire hydrant where the length of an accessway would have a detrimental effect on fire fighting capabilities. H. Reciprocal Easements: Where a common drive is to be provided to serve more than one lot, a reciprocal easement which will ensure access and maintenance rights shall be recorded with the approved partition map. I. Accessway: Any accessway shall comply with the standards set forth in Chapter 18.108, Access, Egress, and Circulation. J. Where landfill and/or development is allowed within or adjacent to the one- hundred-year floodplain, the City shall require the dedication of sufficient open land area for greenway adjoining and within the floodplain. This area shall include portions at a suitable elevation for the construction of a pedestrian/bicycle pathway with the floodplain in accordance with the adopted pedestrian/bicycle pathway plan. Criteria A, B, C and D are satisfied through the design of this adjustment. Criteria A is met because both lots comply with the minimum lot area required in the C-G zone. The proposed lot widths for the parcels will continue to exceed the 50 foot average minimum lot width requirement. Criteria B is complied with because each parcel will maintain the same square footage. The C-G zoning district does not have a minimum lot area requirement. NOTICE OF DECISION - SDR 94-0003/MIS 94-0007 - PDG/TACO BELL Pale 7 LUBA No. 94-211 Exhibit NO. L°, Page No. i -%D Criteria C has been met because the properties will have property direct frontage on SW Pacific Highway. Criteria D has been provided for because the proposed Taco Bell restauarant complies with setback requirements in the C-G zone as it relates to the propoerty configuration. Property access as set forth in Criteria G and I have been met because of the design of the parcels. Each reconfigured property maintains sufficent direct access to the public right-of-way either from SW Pacific Highway. Criteria E, F, H and J are not applicable to the lots because neither proposed lot would be a flag lot, nor are these properties located within the floodplain. Setbacks: Chapter 18.62 provides setbacks standards for General Commercial sites. The Code permits development at the property line within the Development Code for the front, side, or rear yards provided clear vision and landscape buffering requirements can be met. The site abuts residential property to the north. The site plan provides the 10 foot required buffer area. Properties to the south, east and west are zoned and developed with commercial uses so no setbacks are required to buffer the proposed land uses from other adjoining sites. The proposed structure also complies with the Special Setbacks required for structures on SW Pacific Highway. All structures must be setback a minimum of 50 feet from the centerline of SW Pacific Highway. The structure as proposed is 70 feet from the centerline of SW Pacific Highway. Building Height: Chapter 18.62 states that no building shall exceed a height of 45 feet. The proposed architectural elevations measure 17.5 feet in height in compliance with height requirments. Minimum Off-Street Parking: Chapter 18.106 requires one parking space for each 400 square feet of gross floor area. The floor plan for the building provides a dining room area of approximately 1,000 square feet of gross floor area, eight employees are projected to work the restaurant on the largest shift which requires a total of 28 parking spaces. The applicant has provided 33 parking spaces which exceeds the minimum parking requirement for this site. Access and Egress: Chapter 18.108 requires commercial development with 99 or less required parking spaces to provide a minimum of one access point with a width of 30 feet. The site plan complies with this requirement by providing a single entrance to the site through SW Pacific Highway at the farthest westerly portion of the site as far away from the intersection of 74th Street as possible given the property configuration. The Americans with Disabilities Act (ADA). Effective January 26, 1992 a minimum of one disabled person parking space for each twenty-five required parking spaces up to 100 hundred spaces. This site is required to provide a minimum of two disabled NOTICE OF DECISION - SDR 94-0003/MIS 94-0007 - PDG/TACO BELL Page 8 LUBA No. 94-211 Exhibit No. _ Page No. T:_ person parking spaces because a minimum of 28 parking spaces would be required to serve this building. The site plan currently shows two handicapped person parking spaces in compliance with this requirement. Bicvcle Parking: Chapter 18.106 requires one bicycle parking rack for each 15 vehicle parking spaces in any development. Due to the parking requirements size of the floor plan proposed for this site a minimum of one bicycle parking rack to serve this development. Condition of Approval #7 requires that the site plan be revised to provide a minimum of two bicycle racks. Walkway: Chapter 18.108 requires that a walkway extend from the main ground floor entrance of all commercial developments to the streets which provide the required ingress and egress. Condition of Approval #7 requires that the site plan be revised to include a minimum of one pedestrian walkway from SW Pacific Highway onto the site. Street Trees: Chapter 18.100 states that all development projects fronting on a public street more than 100 feet in length shall be required to plant street trees in accordance with the standards in Section 18.100.035. This site has frontage on SW Pacific Highway in excess of 100 feet. The landscape plan for this site provides five Vine Maple trees planted at 20 feet on center. At maturity this species measures an average of 17 feet in height and is considered a small specimen within the Development Code. Condition of Approval #7 requires that the street tree plan shall be revised to provide a minimum one tree for each 20 feet along the length of the landscape area which adjoining SW Pacific Highway. Visual Clearance Areas: Chapter 18.102 requires that a clear vision area for motorist and pedestrian safety be maintained on the comers of all property adjacent to intersecting right-of-ways or private driveways. A clear vision area shall contain no vehicle, hedge, planting, fence, wall, structure, temporary or permanent obstruction exceeding three feet in height, measured from the top of the curb, or where no curb exists, from the street center line grade. Trees exceeding this height may be located in the clear vision area, provided all branches below eight feet are removed. The site and landscape plan as proposed comply with these requirements. Trash. Recycling and Loading Facilities: Chapter 18.120 states that service and areas shall be indicated on the site plan. The applicant has provided a trash and waste recycling area. The receptacle area comply with the dimensional requirements of METRO as stated in the Model Zoning Ordinance for Mixed Solid Waste and Recyclable Storage. The site also provides landscaping to screen these areas from view to the north and west. Condition of Approval #7 requires that the landscape plan be modified to screen the trash and recycling enclosure from view to the greatest extent possible from SW Pacific Highway. NOTICE OF DECISION - SDR 94-0003/MIS 94-0007 - PDG/TACO BELL Page 9 LUBA NO. 94-211 Exhibit No. 1 Page No. ( Tree Removal: Chapter 18.150 contains standards for obtaining a required permit for removal of trees on site which have a trunk six inches or more in diameter measured four feet above the ground. Prior to removal of any tree on site in excess of six inches in diameter as measured four feet above existing ground level, Condition of Approval #8 requires the applicant to obtain a tree removal permit for removal of any applicable trees as set forth in Chapter 18.150 of the Development Code. Landscaping Plan: Section 18.100 requires that the applicant submit a detailed landscape plan as a part of Site Development Review. The landscape plan provided with this application provides parking lot trees in excess of the required number for the parking lot area. The Development Code requires one tree for every seven parking spaces the applicant has provided one tree for approximately every five parking spaces. The plan also provided a variety of shrubs, and ground cover in satisfaction of the landscaping requirements for this site. Signs: Section 18.114 lists the type of allowable signs and sign area permitted in the General Commercial zone. A billboard sign presently exists on the site. The sign as currently located would be within a drive aisle so it must be relocated. Section 18.114.110 (D) states in part that a non-conforming sign which is relocated must be immediately brought into compliance with the Development Code. The Development Code prohibits billboard signs, therefore Condition of Approval #7 requires the existing billboard sign to be removed. All new signage for the site shall be reviewed by the Planning Division through the sign permit process. SECTION IV. PROCEDURE: 1. Notice: Notice was published in the newspaper, posted at City Hall and mailed to: XX The applicant and owners XX Owners of record within the required distance XX The affected Citizen Involvement Team Facilitator XX Affected government agencies 2. Final Decision: THE DECISION SHALL BE FINAL ON V UNLESS AN APPEAL IS FILED. 3. Appeal: Any party to the decision may appeal this decision in accordance with Section 18.32.290(A) and Section 18.32.370 of the Community Development Code which provides that a written appeal must be filed with the City Recorder within 10 days after notice is given and sent. Appeal fee schedule and forms are available at Tigard City Hall, 13125 SW Hall Blvd., Tigard, Oregon. The deadline for filing of an appeal is 3:30 p.m. r~ , l y NOTICE OF DECISION - SDR 94-00031MIS 94-0007 - PDG/TACO BELL Page 10 LUBA NO. 94-211 Exhibit No. ' Page - No. I 4. Questions: If you have questions, please contact the Planning Division at 639- 4171, City' of Tigard, City Hall, 13125 SW Hall Blvd., Tigard, Oregon. PREPARED BY: Mark Roberts DATE Assistant Planner APPROVED BY: Richar ewersdorff DATE Senior Planner NOTICE OF DECISION - SDR 94-0003/1MIS 94-0007 - PDG/TACO BELL Page I I LUBA NO. 94-211 Exhibit No. ! Page No. ± ' ' e HIL s 4 W h M F i F M E ST T /W~ rr- Lc y - L ' z - jil r , C__... X25 s - - E S SITE > = Q a PFAFFLE Q ~.C TLM t -41 1 i r12 W LUBA NO. 94-211 Exhibit No. i l CASE NO. Page NO- -L - PLOT PLAN REVIEW #94-00 SITE DEVELOPMENT MAP LOT LINE ADJJSTMET #94-0007 EXHIBIT 00•o0I aw, d a uj a.s3 IT C.~ s 00 _ r _ o wl f _r r Q CL ON 0 U LUBA NO. 94-211 Exhibit No. / G VICINITY CASE NO. Page No. MAP SITE DEVELOPMENT REVIEW #94-000- EXHIBIT LOT LINE ADJUSTMENT #94-0007 V_ r COMMUNITY NEWSPAPERS, INC. Le 1t , o P.O. BOX 370 PHONE (503) 684-0360 R F. C I ryo'tll~e TT 7 9 91 Z Z Z BEAVERTON. OREGON 97075 j(l Jnt m t~ Legal Notice Advertising ~F ~a ~11Y OF 11GARP .I d *City of Tigard • ❑ Tearsheet Notice 13125 SW hall Blvd. ''Pigard,Oregon 97223 ❑ Duplicate Affidavit • i.. The following will be considered by the Tigard Planning Commission on ti Se ttember 12. 1994, at 7:3Q P.M. at the Tigard Civic Center - Town HaI1~43=-SSW: -Hall Blvd., Tigard, Oregon. Both public oral and written . testimony is invited. The public hearing on this matter will be conducted ,t in accordance with the rules of Chapter 18.32 of the Tigard Municipal AFFIDAVIT OF PUBLICATION Code; and rules and procedures of the.Planning Commission. Failure to:;` raise an i9ttie in person or by letter preclud6s an appeal; and failure to STATE OF OREGON, )se ::specify the criterion from the Community;DByeloppment Code or Com COUNTY OF WASHINGTON, ) prehensive Plan at which a comment is directed`precludes an appeal based. Kathy Snyder -on that criterion. Further information maybe"obtained from the Planning I. Division at 13125 S.W. Hall Blvd., Tigard, ,Oregon .97223,'or by calling.- being first duly sworn, depose and say that I am the Advertising 6394171:+~',.;.::5,;. Director, or his principal clerk, of thdri CIA rd -Trial at; n T; me a newspaper of general circulation as defined in ORS 193.010 and 193.020; published at T~~a rd in the PUBLIC HEARINGS aforesaid countyy and state; that the SITE DEVELOPMENT REVIEW SD 94'0003'LOT LINE'ADJUST Site Develai 94-0003/MTS A4-Onn7 P W/-Coxbi MENT MIS 94-0007 PDG/CORBIN/TYSON:LOCATION: 11631 and a printed copy of which is hereto annexed, was published in the '0., 11635.S±W: Pacific Highway (WCTM 1S1,36DB tax lots 700 & 600).'.,:- entire Issue of said newspaper for ONE successive and :Y~Two appeals:~vere filed of a Director's Decision 'approving the following t'. developmer0pplications: 1) Site Development Review approval to allow consecutive in the following issues: F..:.constrtictldfi'o .an approximately 1,989 squitie~foot driveahru restaurant with rel' W'site improvements; 2) Lot Lipd Adjlistment'tipproval to adjust' 1 September 1,19 9 4 two pai'cel§ of approximately 0.23 and 0.60:'acres.i ito two~parcels of ap- proximately the same square footage• APPL:ICA13LE;,APPROVAL. ' CRITERIA:, Community fDevelopment; CodeiCtiaptefs'1'8:32; 18.62; , 18.84, 18:92,' 18.94, 18.96. 18.100, 18:102; 18:106; 18:108, 18.114, 7 . 18.120, 18.144, 18.150, 18.162, and 18.164:'ZONE:`'C-d (General'Com- J .9,vljj ;;-.merciW) The C-G zone allows public agency,and administrative services;'-~ public support facilities, piofessional and administiative'seryices, finan st day of Septemb, :cial; insurance, and real estate services; liustnes..s'support services, and Subscribed and sworn to tore me thist eating and drinking establishments among , othei. t1SCS.,` f, A, i- A Notary P c for Oregon TT'7991-Publish September 1, 1994. My Commission Expires: AFFIDAVIT - AFFIDAVIT OF MAILING STATE OF OREGON County of Washington ) ss. City of Tigard ) I,~ being first duly sworn/ af firm, • on oath depose and say: (Please print) That I am aAX~ cLf for The City of Tig d, Oregon. That I served NOTICE OF PUBLIC HEARING FOR: That '-served NOTICE OF DECISION FOR: 1ty of Tigard Planning Director ✓ Tigard Planning Commission Tigard Hearings Officer Tigard City Council A copy (Public Hearing Notice/Notice of Decision) of which is attached (Marked Exhibit •A•) was mailed to each named perso s at.th addrgss shown on he attached list marked exhibit •B• on the y of ft St' 19 9 , said notice NOTICE OF DECISION as hereto ttached, was posted on an appropriate bulletin board on the day of 194 and deposes}' in the United States Mail on the r day of S~ 19 postage prepaid. KK' PAWV----' Prepared Notice Subsc bed and sworn/affirmed before me on the olG day of , 19_rT- OfF SEAL DIANE M. lELDE rKS NOTARY PUBLIC O N kOTARYPUBl1iC1A1COREGOtI, Commission res: 7 COM!AISStON NO.008977 MY CONB► moN EXPIRES SEPT. 7. IS" - s_ LUBA NO.94-211 EXhIbit No. ~ Page No. N O T I C E O F P U B L I C H E A R I N G - - t NOTICE IS HEREBY GIVEN THAT THE TIGARD PLANNING CoWaSSION, AT ITS MEETING ON MONDAY, September 12, 1994, AT 7:30 PM, IN THE TOWN HALL OF THE TIGARD CIVIC CENTER, 13125 SW HALL BLVD., TIGARD, OREGON, WILL CONSIDER THE FOLLOWING APPLICATION: FILE NO: SDR 94-0003/MIS 94-0007 FILE TITLE: PDG/Corbin/Tyson APPLICANT: Planning Design Group OWNERS: Grover Corbin 122 SW 29th Avenue 4680 SW Dogwood Dr. Portland, OR 97214 Lake Oswego, OR 97035 (503) 236-6000 Tyson/Larson 23275 NW Dorland Rd. Hillsboro, OR 97124 REQUEST: SITE DEVELOPMENT REVIEW SDR 94-0003 LOT LINE ADJUSTMENT MIS 94- 0007 PDG/CORBIN/TYSON Two appeals were filed of a Director's Decision approving the following development applications: 1) Site Development Review approval to allow construction of an approximately 1,989 square foot drive-thru restaurant with related site improvements; 2) Lot Line Adjustment approval to adjust two parcels of approximately 0.23 and 0.60 acres into two parcels of approximately the same square footage. LOCATION: 11631 and 11635 SW Pacific Highway (WCTM 1S1 36DB, tax lots 700 & 600). APPLICABLE APPROVAL CRITERIA: Community Development Code Chapters 18.32, 18.62, 18.84, 18.92, 18.94, 18.96, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.144, 18.150, 18.162, and 18.164. ZONE: C-G (General Commercial) The C-G zone allows public agency and administrative services, public support facilities, professional and administrative services, financial, insurance, and real estate services, business support services, and eating and drinking establishments among other uses. THE PUBLIC HEARING ON THIS MATTER WILL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF CHAPTER 18.32 OF THE COMMUNITY DEVELOPMENT CODE AND RULES OF PROCEDURE ADOPTED BY THE TIGARD CITY COUNCIL AND AVAILABLE AT CITY HALL, OR RULES OF PROCEDURE SET FORTH IN CHAPTER 18.30. _ ASSISTIVE LISTENING DEVICES ARE AVAILABLE FOR PERSONS WITH IMPAIRED HEARING. THE CITY WILL ALSO ENDEAVOR TO ARRANGE FOR QUALIFIED SIGN LANGUAGE INTERPRETERS AND QUALIFIED BILINGUAL INTERPRETERS UPON REQUEST. PLEASE CALL 639-4171, EXT. 356 (VOICE) OR 684-2772 (TDD - TELECOMMUNICATIONS DEVICES FOR THE DEAF) NO LESS THAN ONE WEEK PRIOR TO THE HEARING TO MAKE ARRANGEMENTS. ANYONE WISHING TO PRESENT WRITTEN TESTIMONY ON THIS PROPOSED ACTION MAY DO SO IN WRITING PRIOR TO OR-AT THE PUBLIC HEARING. ORAL TESTIMONY MAY BE PRESENTED AT THE PUBLIC HEARING. AT THE PUBLIC HEARING, THE PLANNING COMMISSION WILL RECEIVE WBA NO. 94-211 Exhibit No. !d Page No. ' ' A STAFF REPORT PRESENTATION FROM THE CITY PLANNER; OPEN THE PUBLIC HEARING;-AND INVITE BOTH ORAL AND WRITTEN TESTIMONY. THE PLANNING COMMISSION MAY CONTINUE THE PUBLIC HEARING TO ANOTHER MEETING TO OBTAIN ADDITIONAL INFORMATION, OR CLOSE THE PUBLIC HEARING AND TAKE ACTION ON THE APPLICATION. IF A PERSON SUBMITS EVIDENCE IN SUPPORT TO THE APPLICATION AFTER August 23, 1994 , ANY PARTY IS ENTITLED TO REQUEST A CONTINUANCE OF THE HEARING. IF THERE IS NO CONTINUANCE GRANTED AT THE HEARING, ANY PARTICIPANT IN THE HEARING MAY-REQUEST THAT THE RECORD REMAIN OPEN FOR AT LEAST SEVEN DAYS AFTER THE HEARING. INCLUDED IN THIS NOTICE IS A LIST OF APPROVAL CRITERIA APPLICABLE TO THE REQUEST 3 FROM THE TIGARD COMMUNITY DEVELOPMENT CODE AND THE TIGARD COMPREHENSIVE PLAN. APPROVAL OR DISAPPROVAL OF THE REQUEST BY THE COMMISSION WILL BE BASED UPON THESE CRITERIA AND THESE CRITERIA ONLY. AT THE HEARING IT IS IMPORTANT THAT COMMENTS RELATING TO THE REQUEST PERTAIN SPECIFICALLY TO THE APPLICABLE CRITERIA LISTED. FAILURE TO RAISE AN ISSUE IN PERSON OR BY LETTER AT SOME POINT PRIOR TO THE CLOSE OF THE HEARING ON THE REQUEST OR FAILURE TO PROVIDE SUFFICIENT SPECIFICITY TO AFFORD THE DECISION MAKER AN OPPORTUNITY TO RESPOND TO THE ISSUE PRECLUDES AN APPEAL TO THE LAND USE BOARD OF APPEALS BASED ON THAT ISSUE. ALL DOCUMENTS AND APPLICABLE CRITERIA IN THE ABOVE-NOTED FILE ARE AVAILABLE FOR INSPECTION AT NO COST OR COPIES CAN BE OBTAINED FOR TEN CENTS PER PAGE. AT LEAST SEVEN DAYS PRIOR TO THE HEARING, A COPY OF THE STAFF REPORT WILL BE AVAILABLE FOR INSPECTION AT NO COST, OR A COPY CAN BE OBTAINED FOR TEN CENTS PER PAGE. FOR FURTHER INFORMATION PLEASE CONTACT THE STAFF PLANNER Mark Roberts AT 639-4171, TIGARD CITY HALL, 13125 SW HALL BLVD., TIGARD, OREGON. IF 114 1 . r r LLkJdJLLlR_r • T 1 L Ise 1 I "L HA EFIEH La v E R _ • SITS a _ o LUBA NO. 94-211 Exhibit No. Page No. 11S136DC-00500. 1S136CA-01o00 TOM MOTER•THEATk= SAM, DONALD W & BALL, C RACE L & 03 SP40ADWAY.-SU . ITE 605 BALL, JOHN G & qmFAN COUVBR WA 98660 PARKER, CAROL J 1300 SW STS AVE, STE 3009 PORTLAND OR 97201 1S136CA-0160,1-'.: 1S136CA-01700 HALL, DONALD WAND- GRACE L WATTS, XENNETS GILEBRT HALL, JOHN G ET AL 11645 SW PACIFIC HWY 1300 SW STS AVE #3009 TIGARD OR 97281 PORTLAND OR 97201 1S136M-01800 1S136DB-00200 SILNE REALi.PROPERTIES, INC FRANCESC X, KENNETH AND JERiOME P O SOS 2740- 600 3RD ST POv= AND • OR 97208 SAN FRANCISCO CA 94107 1313608-00201 IS136DB-00500 DUBR Z COl~ANT OO L ATTN: TAX DEPT t GALVAN.& GUITRON PARTIffitSSIP PO SOX 42121- 11619 SW;PACIFIC HWY PORTLAND OR 97242 TIGaRD OR 97223 1S336DB-00501 1S136DB-00800 UNION GOSPEL MINISTRIES OF PTLD !!ORRIS, JOHN C DAISY E % FRANCESCHI, JEROME & GENEVIEVE TR 11621 SW PACIFIC 8WY FRANCESCSI, NTH & BARBARA TRS TIGARD OR 97223 -00 3RD ST ~N FRANCISCO CA 94107 ISI36DB-00900 1S136DB-01000 Gam, 2ITCeEL EDWARD GBNSMAN, LEE R & ALICE L 963 SW WESTWOOD DR t GBNSMAN, MITCHELL E & DEBORAH PORTLAND OR 97201 963 WESTWOOD pORZL~ OR 97201 1S336DB-02400 IS136DB-02500 CHAMPION, RONALD V AND PISRCB, GILBERT/GRACE ET AL ROBERTA E TACO BETS #1091 F 11642 SW PACIFIC HIGHWAY' BY GEORISE HAMMERSMITH TIGARD OR 97223 5989 SE JENNE LANE _ PORED OR 97236 lS136DB-02502 IS136DB-02600 PIERCE, GILBERT E STEWART, PHYLLIS T AND - BY SUBWAY TIGARD INC STEWART TRUST 4840 SW SCE=,LS PERRY-RD 621 SW ENGLEWOOD DR PORTLAND OR 97225 LAEB OSWEM OR 97034 1513608-02601 IS136DB-02602 ALPROP CO STEWART, is 6149 SW SHATTUCK RD 621 SW DRIVE PORTLAND OR 97221 LASE OR- 97034 qLM,GDESIGN GROUP GROVER CORBIN 122 SE 29RS AVE ~ 4680 SW DOGWOOD DR TIGARD OR 97214 LAKE OSWDGO OR 97035 LUBA NO. 94-211 Exhibit No. Page No. tF► • L,,. • t. M Grp STOEL RIVES COLEY JONES & GREY ATTORNE1 i AT LAk% SUITE 2300 STANDARD INSURANCE CENTER 400 SN' FIFTH AVENUE PORTLAND. OREGON Q7204-1268 Telephone 15031 2_3-3380 Telecopier 13031 220-2480 Cahle Lax-port Telex 7 03453 Wnter'c Direct Dial.'Jumber (503) 291-9191 August 23, 1994 VIA MESSENGER Mr. Mark Roberts, Planner City of Tigard Planning Department 13125 SW Hall Boulevard PO Box 23397 Tigard, OR 97223 Re: Application by Taco Bell; SDR 94-003; MIS 94-0007 Dear Mark: The purpose of this letter is to supplement the record with respect to issues raised in the Ginsman and Morris appeals. First of all, neither appeal challenges the City's approval of MIS 94-0007. Both appeals raise issues concerning only SDR 94-0003. Therefore, the Planning commission should reject both appeals of MIS 94-0007 because of the appellant's failure to comply with Tigard Community Development Code ("TCDC") 18.32.340(A)(21)-(4) by failing to list specific grounds for appeal. Mr. Morris' appeal raises the issue of mitigation of sound and exhaust fumes from the menu board speaker and traffic in the drive-through lane. Mr. Morris fails to list any applicable criteria making sound or air quality relevant to the decision. Nevertheless, Taco Bell is submitting evidence demonstrating that the Taco Bell restaurant will not adversely impact adjacent property through sound or exhaust fumes. 1. Air Ouality. • Exhibit 1 is a summary analysis of a report describing air quality impacts of drive-through service lane. Exhibit 2 is the complete analysis. The study was conducted in southern California for the California Restaurant Association. The study concludes that "drive-through restaurant facilities do not pose a threat to ambient air quality LUBA NO. 94-211 PDXI-135789.1 72523 0009 Uhibit No. 13 _ Page No. 114 3 PORTLAND. SEATTLE, BELLEVUE. VANCOUVER. BOISE, SALT LAKE CITY. WASHINGTON. OREGON WASHINGTON WASHINGTON WASHINGTON IDAHO UTAH DISTRICT OF COLUMBIA ~T1EL (DIVE; 60LEY J0NE_5 ~ f- CREY . Mr. Mark Roberts August 23, 1994 Page 2 standards." In fact, the study notes that an efficiently operated drive-through service lane actually mitigates air quality degradation. While quite complicated, the study supports a conclusion that automobiles in drive-through lanes are preferable to autos stopped for short or longer periods of time for eat-in or take-out service. The study demonstrates that the drive-through lane will not have a negative effect on adjacent property because of air quality. 2. Noise. Exhibit3 is a study by VGO, Inc. Engineers addressing the question of whether the Taco Bell restaurant will violate applicable noise standards. Tigard has adopted the noise regulations adopted by the Oregon Department of Environmental Quality ("DEQ"). Tigard Community Code ("TCC") 7.40.170. The DEQ rules that apply to this site are found in OAR 340-35-030(1)(b)(A), "New Sources on Previously Used Sites." This section provides that noise shall not exceed the levels found in Table 8. OAR 340-35.035(3)(b)(A) describes how noise levels are to be measured. In this case, the measurement will be 25 feet toward the noise source from that point on the "noise sensitive building" toward the noise source. A "noise sensitive building" is defined to include a single-family dwelling unit used for living, sleeping or eating. TCC 7.40.130(b). The DEQ rule includes several exemptions. Among them are sounds created by tires or motors of road vehicles. OAR 340-35-035(5)(c). The applicable TCC provisions and DEQ noise rules are found in Exhibit 4. The VGO study concludes that: [s]ound levels from the restaurant rooftop equipment are predicted to be negligible. The noise from the drive-through ordering loudspeaker is predicted to be 42-47dBA at the north property line. Drive-through traffic noise is estimated to be about 65dBA at the north property line. Traffic noise (tires/motor noise) is exempt from the Oregon Department of Environmental Quality (DEQ) regulation." n=-135789.1 72523 0009 LUBA NO. 94-211 Exhibit No. I_3 Page No. l4- 5-TOEL RIVES BOLEY JONES & GREY Mr. Mark Roberts August 23, 1994 Page 3 Study at page 1.1. The study measured noise levels at two locations on the property. Based on a comparison with a nearby drive-through lane, the study concluded that noise will be below the level established in the applicable DEQ rules. 3. Timeliness of Appeals. The appellants filed their appeals on July 13, 1994. The City published notice of the decision on June 23 and mailed notice of the decision on June 24. TCDC 18.32.300(A) provides that the appeal period is ten days, but: [t]he Director may extend the appeal period and the effective date to the day following a Council meeting when the computed appeal period would not otherwise provide an opportunity for interested parties to appear before Council regarding the decision. The appeal period thus computed shall not be greater than 20 days." (Emphasis added.) The Director apparently provided a 20-day appeal period (from June 23 to July 13) pursuant to TCDC 18.32.300(A). Exhibits 5 and 6. However, the Tigard City Council met on June 28, Exhibit 7, so interested parties could have appeared before the City Council prior to the expiration of a ten-day appeal period from June 23 to July 3 (or July 5, because Monday, July 4 was a holiday). TCDC 18.32.300(A) provides the Director discretion to extend the appeal period from ten to 20 days only when necessary to allow a person to appear before the City Council. An extension of the appeal period in this case was unnecessary because any person could have appeared before the City Council on June 28, well within an appeal period terminating on July 5. In a similar case, LUBA has ruled that where a code provision limits discretion to a certain period of time, the local government errs by exceeding that period of time. Rochlin v. Multnomah County, 25 Or LUBA 637 (1993). In Rochlin, the Multnomah County Board of Commissioners voted to i rehear a matter after the ten-day period to do so had expired. P=1-135789.1 72523 0009 LUBA NO. 94-211 Exhibit No. 13 Page No. /4-5 ISTOEL RIVES BOLEY JONES & GREY Mr. Mark Roberts August 23, 1994 Page 4 LUBA said that the Board of Commissioners lacked authority to make a decision on rehearing after the ten-day period ran. LUBA also rejected an argument that the defect was procedural. LUBA relied on Century 21 Properties. Inc. v. City of Tigard, 99 Or App 435, 437-39, 783 P2d 13 (1989). Similarly, the Planning Director lacked authority in this case to extend the appeal period beyond ten days where a city council hearing occurred within the ten-day appeal period because TCDC 18.32.300(A) allows the extension only if a council meeting does not occur within the ten-day appeal period. Because the Planning Director exceeded his authority, the Ginsman and Morris appeals were filed late. The Planning Commission should dismiss the appeals despite the fact the Tigard Community Development Code does not contain a jurisdictional defect provision. See Rochlin, 25 Or LUBA 642. 4. Tigard Comprehensive Plan Policy 8.1.1. This Plan Policy provides: "The City shall plan for a safe and efficient street and roadway system that meets current needs and anticipated future growth and development." This policy is not applicable to quasi-judicial requests such as this. TCP Policy 8.1.1 calls for legislative action. Please feel free to call me if you have any questions regarding this submittal. Very truly yours, Michael C. Robinson MCR:ipc Enclosures cc: Mr. Mike Randles (w/encl.) Mr. Dave Kimmel (w/encl.) Pamela J. Beery, Esq. (w/encl.) PMa-135789.1 72523 0009 LUBA NO. 94-211 Exhibit No. ' Page No. ) 4 Lo L Robert Kahn, John Kain ' & Associates, Inc. Transportation Planning • Traffic/ Acoustical Engineering April 14, 1993 Mr. Ronald L. Faris, Construction Manager TACO BELL CORPORATION 2300 Valley View Lane, Suite 400 Irving, TX. 75062 Subject: Air Quality Impacts of Drive-Thru Service Lanes Dear Mr. Faris: ROBERT KAHN, JOHN KAIN & ASSOCIATES, INC. is pleased to submit the _ enclosed summary analysis of air quality impacts of drive-thru service lanes. Both a single page summary sheet and multi-page discussion has been prepared for your distribution to TACO BELL CORPORATION staff. ROBERT KAHN, JOHN KAIN & ASSOCIATES, INC. has reviewed two primary resources in developing the attached material. These sources include: • An Analysis of the Effect on Emissions of Eliminating Drive-Thru Service Lanes, Sierra Research, Inc., 1521 "I" Street, Sacramento, CA 95814; July 25, 1991 and • Impact of Drive-Thru Facilities on Air Quality - State of the Art Knowledge and Direction for Further Study, VERSAR, Inc. 1520 Kensington Road, Suite 115, Oak Brook, IL 65021, February 21, 1990 The conclusions of these studies are that drive-thru restaurant facilities do not pose a threat to ambient air quality standards. In fact,. based upon updated emission data, regional air quality could be reduced by a ban in drive-thru service lanes. This conclusion is based upon efficiently operating drive-thru service lanes. Data reviewed indicated that a ban on drive-thru service lane operations is projected to actually increase emissions level, theref,pre, there is no justification at this time to prohibit drive-thru service lanes at restaurants. UBA NO. 94-211 Exhibit No. „j~_ Exhibit 1 Page No. IL4 g 4101 Birch Street. Suite 100, Newport Beach, California 92660 (714) 474-0809 • FAX (714) 474-0902 Mr. Ronald Alverez Faris TACO BELL CORPORATION April 14', 1993 Page 2 ROBERT KAHN, JOHN KAIN & ASSOCIATES, INC. appreciates this opportunity to work with TACO BELL CORPORATION. If you have any questions regarding this information or need further review, please do not hesitate to give me a call at (714) 474-0809. Sincerely, /ROBERT KAHN, JOHN KAIN & ASSOCIATES, INC. I, , It,. F ESW Robert Kahn, P . E . yQ Q~~R y Principal 9 NO. 0555 RK: nad/3241 EXP. 12/31/93 JN:451-93-001 st lAAFT- 4lE Attachments OFCA LJBA NO. 94-211 Exhibit No. Page No. 4 South Coast AIR QUALITY MANAGEMENT DISTRICT 21865 E. Copley Drive. Diamond Bar. CA 91765-4182 (714) 396-2000 May 4,1992 Mr. Gerald Breitbart: Consultant Business Issues/Local Government California Restaurant Association 3435 Wilshire Boulevard, Suite 2606 Los Angeles, CA 90010 Dear Mr. Breitbart: In answer to your question concerning the District's present position on banning drive-through facilities as an air quality measure, we have removed this measure from our Air Quality Management Plan (AQ MP). In the late 1970s, based on data for the existing fleet of cars, the District, along with many other agencies around the country, concluded that the extended idling of automobiles sitting in drive-through retailing facilities contributed to air pollution. Thus, up through the District's 1989 AQMP, plans were announced to eliminate or otherwise control drive-through facilities. In the development of the District's updated 1992 AQMP, we reviewed the issue of banning drive-through lanes as a means of improving air quality. Our initial results indicated that banning drive-throughs provided little or no air quality benefit. We thus removed this measure from our AQMP. Subsequent studies by the California Restaurant Association further substantiate our decision to remove the drive-through ban from our air quality improvement program. Thank you for your interest. Y, James M. Lents, Ph.D. Executive Officer JML:Idw cc: Paul Mitchell, Chairman, Ad-Hoc Air Quality Committee Carl Karcher Enterprises Inc. John Dunlap, Public Advisor, SCAQMD LUBA NO. 94-211 Exhibit No. I Page No. 150 , v^ CKE / V CARL KARCHER ENTERPRISES. INC. Corporate Headquarters 1200 Noun Haroor Boulevard P.O. Box 4349 • Anaheim. California 92803-4349 • (714) 774.5796 FAX (714) 778-7183 Mav 21, 1992 Mr. James A. Chronley Taco Bell Corp. 17901 Von Karman Irvine, CA 92714 Dear Mr. Chronley: Here is a letter from Dr. James M. Lents of the South Coast Air Quality Management District. It specifically states that the SCAQMD has no intention of banning drive-thrus in the district and, further, they agree with studies showing "that banning drive-thrus provides little or no air quality benefit". The District has also agreed to write city officials in any • specific community that is considering such a ban. We have prepared a similar letter for that purpose and when we have their approval on it (which should be by mid-June) we'll send you a copy of that as well. So, we have this letter which you take to any city that is questioning drive-thrus. Soon we'll send you a copy of a letter which the District will send to any city official you request. Yours very truly, CARL KA CHER ENTERPRISES, INC. ail J. Mitchell Assistant to the Chairman of the Board PJM:PB Enc. LUBA NO. 94-211 Exhibit No. 1 Page No. 151 AIR QUALITY IMPACTS OF DRIVE-THRU SERVICE LANES FACT OR FICTION ■ There is a perception that drive-thru service lanes for restaurants have more adverse air quality impacts than simply providing this service within the facility. However, this perception is not supported by technical evidence and in fact, facilities with good design criteria can actually reduce total emissions, as compared with servicing the same customers within the restaurant. ■ Drive-thru restaurant facilities do not pose a threat to the ambient air quality standards. In fact, as a result of many studies, based upon updated emissions data, regional air quality could be reduced by a ban in drive-thru service lanes. ■ While the prohibition of drive-thru service lanes have been proposed in some areas, these requirements have not actually been adopted by any local air pollution control district in California Air Quality Considerations ■ The two major local mobile source related non-attainment pollutants in California are CO (carbon monoxide) and ozone. ■ The primary mobile source pollutant as related to localized air quality conditions at a site is CO (carbon monoxide). ■ Overall regional air quality impacts from mobile sources is generally evaluated in terms of total pollutants, including CO (carbon monoxide), nitrous oxide (NOx) and ROG (reactive organic gases). In California, nonmethane hydrocarbons are also referred to as ROG. ■ Ozone, the principal ingredient of photochemical "smog" is formed in the atmosphere from a complex reaction between ROG and NOx emissions in the presence of sunlight. Study Results ■ Based upon air quality measurements and modeling of localized CO concentrations at drive-thru facilities, neither the one (1) hour standard of 35 ppm or eight (8) hour standard of 9 ppm would be exceeded for CO. Modeling studies for drive=thru facilities indicate that one (1) hour CO concentrations of 6.1 ppm and eight (8) hour levels of 4.1 ppm would be expected. Both of these results are substantially below state and federal carbon monoxide standards. LUBA NO. 94-211 Exhibit No. 13 Page No. ■ Local air quality within restaurants which contain drive-thru service lanes are not projected to exceed state and federal CO standards. In fact, local CO concentrations are more influenced by adjacent roadways and local meteorological conditions than • whether the facility includes a drive-thru service lane. ■ Studies by Sierra Research for restaurants with drive-thru service lanes indicate that by Year 2000 on-site ROG emissions are projected to be 45 - 50% of average drive and park takeout emissions and 11- 12% of average eat in emissions. Exhibit A indicates that for a typical restaurant visit. both off-peak and peak conditions on-site ROG emissions are substantially greater with eat-in and takeout operations versus drive-thru operations. ROG emissions being a primary component of photochemical "smog" is projected to be considerably less with the use of drive-thru service lanes. ■ Restaurants without drive-thru service lanes generate significantly more total trip emissions than either drive-thru service lanes or drive in and take out trips. Data collected by Sierra Research demonstrates that a prohibition on drive-thru service lanes in the Los Angeles region is projected to result in a significant increase in ROG emissions through the 1990's and Year 2000. No significant changes are expected for either CO or NOx emissions as a result of a ban on drive-thru service lanes. Exhibit B indicates that for the total visit to the restaurant (both on and off-site) ROG emissions are less with drive-thru lanes than without drive-thru lanes, while CO and NOx levels are about the same. ■ If air quality improvement is to be realized from the regulation of drive-thru windows the primary benefits will result from the design of an efficient drive-thru lane operation to provide reduced service times of 13 minutes or less. ■ The current state of knowledge does not support the conclusion that restaurants with drive-thru service lanes result in more air pollution from vehicles than would be produced by the same restaurant without drive-thru service lanes. In fact, available data indicates that restaurants with drive-thru operation with efficient operations will result in a lower volume of air pollutants as compared to alternatives where customers park and enter the restaurant (see Table 1). Studies indicate that the operation of drive-thru service lanes does not result in the degradation of ambient air quality levels to levels that are in violation of either state or federal air quality standards. Table 1 Emission Changes Resulting From Drive-thru Prohibition of Projected Baseline Emissions) Changes in Daily Emissions/'Typical Restaurant" Year ROG CO NOx 1991 +7% -3% 0% 2000 +17% 0% 0% LUBA NO. 94-211 Exhibit No. 13 Page No. 1 53 EXHIBIT A S On Site ROG (Reactive Organic Gases) Emissions for the Year 2000 ~ 1; - EsNUSt Rw" Ergo. .86 .83 ® Hal San Evoo E 0 rn c 0.6 Tom'' 0 .y N W 0.4 .23 - • 0.18 0.21' .10 _ .09 a ;a Dr*04ft TWO Out Eat In Drwo4hru Tab Out Eat to Oft Peak Peak Hour Sous: shm PANGWC4 Jury 1991 EXHIBIT B Daily Total. Trip Emissions per Restaurant With and Without Drive-thru Windows Z3 With Drive-tnro Without Drive•thru 10-4 200 9 180 8.2 162.5 162.5 N 8 . i 160 140 a c 7 6.3 6.3 N 6 i 120 C = 100 5 t E 1 z W 80 O 4 -f-I 3.5 v 0 3 Cr 3 -60 2 32.4-32.4- 40 it t ' 20 0 0 ROG co NOx ROG co NOx 1991 2000 Based on a 'typical' restaurant with 1.000 daily customer vehicle tnps. LUBA NO. 94-211 13 Source: Sierra Research, July 1991 Exhibit No. Page No. ■ The conclusion that "drive up" windows generate substantially more air pollution than simply parking one's car and walking into the effective business is simply not founded based upon fact. ■ Historical data for typical fast food restaurants indicate that 50% of th the customers use the drive-thru, 30% park and eat within the restaurant and 2096 park and pick up their order. Studies indicate that on average customers that have parked and eat within the restaurant take approximately 22 minutes. This is composed of 7 minutes of waiting and service time and 15 minutes in the dining area. ■ For NOx emissions, the break even time between a drive-thru service lane and eat in service using an emissions generation model is 20 minutes. In other words, for NOx emissions a vehicle that parks and restarts produces significantly more emissions than a vehicle that efficiently goes through a typical drive-thru lane. ■ Studies by Volvo (car manufacturer) indicates that for a catalyst restart, emissions can be significantly greater than running time emissions. ■ Atmospheric dispersion models which have been reviewed to analyze local concentrations of CO for restaurant facilities with drive-thru lanes indicate that these facilities do not cause or threaten a violation of any applicable ambient air quality standards. i ■ California Air Resources Board (CARS) studies indicate when total emissions loading in the air quality basins is of concern and drive-thru facilities are actually more favorable than serving the same number of customers through the use of park and restart operations. CARB's study also indicates that the longer the car is parked, therefore cooled, the greater emissions are upon restarting. ■ Restaurants with drive-thru service lanes do not pose a threat to ambient air quality standards. In fact, facilities with strict design criteria including dual service windows can actually reduce total emissions as compared with servicing the same customers in a park and restart restaurant. ■ A detailed analysis of the effect of a ban on drive-thru service lanes for restaurants prepared by Sierra Research clearly demonstrates that the ban would result in an increase in overall "smog" levels. The emissions of ROG would increase by nearly 17% by the Year 2000 with a ban on drive-thru lanes. No significant changes in CO or oxides of nitrogen NOx would occur with such a ban. Exhibit C shows that for the Year 2000 a ban on drive-thru lanes would actually increase ROG emissions per day without any reduction in either CO or NOx emissions. ■ A ban on drive-thru service lanes operations for the year is projected to actually increase emissions levels which directly contribute to the production of "smog". There does not appear to be sufficient justification at this time to warrant an attempt to . prohibit drive-thru service lanes. LUBA NO. 94-211 Exhibit No. 15 Page No. !.55 r EXHIBIT C Effect of a Ban on Drive-thru Windows on Average Daily Restaurant Emissions 10= i +7% ROG 9 With Drive-thru Windows Without Drive-thru Windows w 6. o T"1 _3r 5+17%a ~ r s H 41 3 0' 1991 ROG 2000 ROG 200 -3%0 180t ; 163 158 co C3 With Drive•thru Windows 160 Without Drive-thru Windows z; 40 N 120 0 100 .4_ 80 0% 60. = om i : 32 32 ; 40 20 0 1991 CO 2000 CO 10-`i 9 x t Q With Drive-thru Windows i 8 ; 0% 0 Without Drive-thru Windows - 7 i~-6.3 6.3 y 6 0% y 5 ; 3.8 3 8 E 4; m 3 x o z ; 1y{ 0 1991 NOx 2000 NOx Source: Sierra Research, July 1991 LUBA NO. 94.211 Exhibit No. 13 - Page No. _►5to ■ The current state of knowledge does not support the conclusion that restaurants with drive-thru service lanes result in more air pollution from vehicles than would be produced by the same restaurant without a drive-thru service lane. In fact, available data indicates that restaurants with drive-thru operation with efficient operations will result in a lower volume of air pollutants as compared to alternatives where customers park and enter the restaurant. Studies indicate that the operation of drive-thru service lanes does not result in the degradation of ambient air quality levels to levels that are in violation of either state or federal air quality standards. ■ The conclusion that "drive up" windows generate substantially more air pollution than simply parking one's car and walking into the effective business is simply not founded based upon fact. ■ Restaurants with drive-thru service lanes do not pose a threat to ambient air quality standards. In fact, facilities with strict design criteria can actually reduce total emissions as compared with servicing the same customers in a park and restart restaurant. ■ Atmospheric dispersion models which have been reviewed to analyze local concentrations of CO for restaurant facilities with drive-thru lanes indicate that these facilities do not cause or threaten a violation of any applicable ambient air quality standards. ■ A detailed analysis of the effect of a ban on drive-thru service lanes for restaurants prepared by Sierra Research clearly demonstrates that the ban would result in an increase in overall "smog" levels. The emissions of reactive organic gases (ROG), a primary component of photo chemical "smog", would increase by nearly 17% by the Year 2000 with a ban on drive-thru lanes. No significant changes in carbon monoxide (CO) or nitrous oxide (NOx) would occur with such a ban. ■ A ban on drive-thru service lanes operations is projected to actually increase emissions levels. Therefore, there is no justification at this time to prohibit drive4hru service lanes at restaurants. LUBA NO. 94-211 Exhibit No. _1?Z_ Page No. ~Sl L_ I SR91-07-03 An Analysis Of The Effect On Emissions Of Eliminating Drive-thru Service Lanes Q prepared for. Q California Restaurant Association O July 25, 1991 Q Q prepared by: Sierra Research, Inc. i 15211 Street Sacramento, California 95814 (916) 444-6666 s LUBA NO. 94-211 Exhibit No. 13 Page No. S y An Analysis Of The Effect. On Emissions Of Eliminating Drive-thru Service Lanes prepared for. California Restaurant Association July 25., 1991 prepared by: Sierra Research, Inc. 15211 Street Sacramento, California 95814 (916) 444-6666 LUBA NO. 94-211 Exhibit No. 13 Page No. I lyc AN ANALYSIS OF THE EFFECT ON EMISSIONS OF ELIMINATING DRIVE-THRU SERVICE LANES Table of Contents page 1. Summary and Conclusions 1 2. Overview 3 3. Introduction 9 3.1 Purpose and Scope of This Study 10 : 3.2 Guide to the Remainder of the Report I1 4. Emissions Modeling Methodology 13 4.1 Modal Emissions Description 13 4.2 Standard Mobile Source Modeling Approach 16 4.3 Modeling of Exhaust Emissions 20 4.4 Modeling of Evaporative Emissions 45 5. Vehicle Operations at Convenience Restaurants 52 5.1 Collection and Analysis of Representative Data 53 6. Relative Emissions Analysis 55 6.1 Average On-Site Vehicle Emissions 55 6.2 Average Total Trip Vehicle Emissions 58 6.3 Effect of a Drive-'Ihru Prohibition 62 7. References 66 Appendix A. Emission Calculations - LUBA NO. 94-211 _ Exhibit No. 13 Page No. 1 0 1 List of Figures page 1. Effect of a Ban on Drive-Thru Windows on Average Daily Restaurant Emissions 2. On-Site ROG Emissions by Scenario and Mode Calendar Year 1991 6 3. Total Trip ROG Emissions by Scenario and Mode Calendar Year 1991 7 4. Daily Total Trip Emissions Per Restaurant With and Without Drive-Thru Windows 8 5. Catalyst Temperature vs. Time Correlation During 75 Degree FTP Cold Start (Eight Data Vehicle Set) 28 6. Catalyst Temperature vs. Time Correlation During 75 Degree FTP Cold Start (Two Chrysler Data Vehicles) 29 107. Catalyst "Efficiency" M vs. Time 30 8. Starting CO Emissions (g/min) Calendar Year 1991 33 9. Starting ROG Emissions (g/min) Calendar Year 1991 34 10. Starting NOx Emissions (g/min) Calendar Year 1991 34 11. Catalyst Temperature vs. Time Correlation During 75 Degree FTP Hot Soak (Ten Data Vehicle Set) 35 12. Time vs. Normalized Temperature of First Catalyst Biscuit During FT? Hot Soak Period (Ten Data Vehicle Set) 36 13. Catalyst Temperature on the FTP for Toyota Celica with New Catalyst (75 Degrees F) 37 (continued) LUBA NO. 94211 Exhibit No. i_ Page No. I(, a- list of Figures (continued) page 14. On-Site ROG Emissions by Scenario 56 15. On-Site ROG Emissions by Scenario and Mode Calendar Year 1991 56 16. On-Site ROG Emissions by Scenario and Mode Calendar Year 2000 57 17. On-Site CO Emissions by Scenario 59 18. On-Site NOx Emissions by Scenario 59 19. Total Trip ROG Emissions by Scenario and Mode Calendar Year 1991 60 20. Total Trip ROG Emissions by Scenario and Mode Calendar Year 2000 60 21. Total Trip ROG Emissions by Scenario 61 22. Total Trip CO Emissions by Scenario 61 23. Total Trip NOx Emissions by Scenario 62 24. Effect of a Ban on Drive-Tluv Windows on Average Daily Restaurant Emissions 64 t LUBA NO. 94-211 Exhibit No. 13 Page No. ~3 list of Tables page 1. Emission Changes Resulting from Drive-Thru Prohibition 8 2. Los Angeles Area Mean Idle Emission Rates 23 3. Test Vehicle Descriptions 26 4. ARB Hot Soak Emission Correction Factors 45 5. Hot Soak Emission Correction Factors Based on GM Data 46 6. Running Loss Emission Rates 49 7. Summary of Results from Survey of Quick Service Restaurant Owners 54 8. Time-In-Model for Each Model/Domain Scenario Evaluated 54 9. Emission Changes Resulting from Drive-Thru Prohibition 63 LUBA No. 94-211 Exhibit No.: 3 Page No. L,(_ 1. SUMMARY AND CONCLUSIONS In response to the problems of continued air pollution throughout California's urban areas, some local air pollution control officials have proposed to ban the use of drive-thru service lanes at locations such as banks and convenience restaurants. Proponents of such a measure argue that drive-thru lanes generate more air pollution than park-and-stop activities. A detailed analysis of the effect of a ban on drive-thru lanes clearly demonstrates that the ban would result in an increase in overall smog levels. Emissions of reactive organic gases (ROGs, one of the two main ingredients of smog) would increase by 7% if a ban were put into effect in 1991, by the year 2000, the increase in ROG emissions due to a ban on drive-thru lanes would rise to 17%. No significant changes in carbon monoxide (CO) or oxides of nitrogen (NOx) benefits are projected to result from a ban on drive-thru lanes. (NOx emissions are the second main ingredient of smog.) The results of the analysis for a typical Southern California convenience restaurant are shown in Figure 1. Previous analyses which have led to other conclusions have suffered from two principal errors. First, none of the earlier analyses looked at the "evaporative" emissions from cars. These emissions, which consist of gasoline vapors coming from the gas tank and fuel system, are responsible for the majority of the ROG emissions in convenience restaurant parking lots. Second, none of the earlier analyses used an accurate method for evaluating the minute-by-minute emissions of cars in restaurant parking lots and for a short time after they leave the restaurant. In this analysis, both "hot soak" and "running loss" evaporative emissions were included in the calculations. In addition, existing motor vehicle emissions models were supplemented with a mare accurate technique to predict parking lot and drive-off emissions on a minute-by-minute basis. This technique is described in detail in the main body of the report In conclusion, there are no emission benefits to be gained by a ban on drive-thru windows at either existing or new convenience restaurants. In fact, there is likely to be an increase in smog forming emissions of reactive organic gases if a ban on drive-thru windows is enacted. While this analysis is based on data collected for Southern California convenience restaurants, the same general conclusions are likely to hold true for similar restaurants in other locations. LUBA NO.9_ 4-211 _ 1. Exhibit No.l 3 Page No. (r,5 . Figure 1 Effect of a Ban on Drive-thru Windows on Average Daily Restaurant Emissions 10- -+700 6.6 6.2 R O 9= With Drive-thru Windows 8~ - Without Dnve•tnru Windows r H 71 y 61. , 5.+17% Q'i 3 E m 0 1 - i 0 1991 ROG 2000 ROG 20 . ! -3% 163 act; C I s e With Drive-thru Windows 16 i Without Drive-thru Windows m '•iE'r v 1 N ~ 1n C 10 O ~ N 80-, t O% m W7 . 2 '2 0 t U - j 1991 CO 2000 CO 1 M0 94 © With Drive-thru windows _ 8.: 000 Without Drive-thru Windows 7 -6.3 N 0% N _ C 0 5 • 3.8 3.8 z 2 0 1991 NOx 2000 NOx LUBA NO. 94-211 -2- Exhibit No. "3 Page No. Cp C 2. OVERVIEW The purpose of this study is to provide an estimate of projected emissions at an "average" drive-thru restaurant located in Southern California, both currently (i.e., in 1991) and in the future (i.e., in the year 2000). The analysis includes as accurate an assessment as possible of all emission sources (including evaporative emissions) resulting from the different types of operations that normally occur at convenience restaurants. Three types of operations are modeled: drive-dim, stop and take-out, and stop and eat in. Actual activity data for each type of operation were used to model each operation type. 2.1 Emissions Modeling Methodology To assess the impact of convenience restaurant operations on motor vehicle emissions, it is necessary to accurately model motor vehicle emission rates under each type of operation. This modeling requires the determination of the modes of engine operation that are occurring during each type of vehicle visit to a convenience restaurant, the emissions behavior from the vehicle during each engine operating mode, and the length of time that the vehicle spends in each mode. This analysis focuses on three pollutants: CO, ROG or non-methane hydrocarbons (NMHC), and NOx. These are the pollutants that result in the two major mobile source-related air quality problems in California: ozone and carbon monoxide. The quantification of these emissions involves the determination of emission rates for two fundamentally different types of emission-producing processes: those emitted from the vehicle's exhaust system during engine start up and on-road operations, and those leaking from the fuel storage and delivery system due to evaporation. To model these emissions, both the U.S. Environmental Protection Agency (EPA) and (within. California) the California Air Resources Board (ARB) provide standardized mobile source emission models. However, an examination of the methods used by the models to calculate emissions indicates that the models will not produce accurate results when analyzing the emissions resulting from numerous vehicle starts and extremely short trips. In particular, the existing models do not accurately depict emissions during start ups following hot soak periods of less than 1 hour (the so-called "hot transient" starts). Therefore, a more accurate approach to modeling starting emissions was developed for the current analysis. LUBA NO. 94-211 - 3 - Exhibit No.1; Page No. 1 Ca 1 Modeling Approach -The first step in the development of the modeling approach used for this effort included a review of available emissions data This review indicated a total absence of any real time (second-by-second) exhaust emissions data that could be used to directly calculate stantaneous emissions from the specific modes of operation to be investigated in this analysis. ~!4s an alternative, real time catalyst temperature data were found to have been collected by EPA through an ongoing catalyst thermal activity test program. Because catalyst temperature affects catalyst efficiency, and because catalyst efficiency is directly related to exhaust emissions, a decision was made to use the available catalyst temperature data set as a surrogate for emissions data. EPA catalyst temperature data measured from 10 vehicles during standard test cycles run at 757 were used to develop approximate curves of catalyst efficiency over time. Based on the fact that emissions are inversely proportional to catalyst efficiency, second-by-second curves of emission rates after start up for each pollutant were developed. Exhaust Emissions Calculations -The emission rate curves represent emission performance under both cold and hot start conditions, and during the transitional period in between the two extremes. Based on these curves and the use of certain assumptions, one can compute emissions for a given start * The assumptions include the following: 1. As soak (parking) time increases, initial emission rates at start up are assumed to increase non-linearly at a rate equal to the change in initial catalyst temperature at start up. (This is counter to the manner in which ARB's and EPA's existing mobile source models treat start emissions; these models assume that all hot soaks of less than one hour would have the same hot start emissions factor, regardless of the actual period of soak.) 2. It is also assumed that relative catalyst efficiency Cm percent of maximum operating efficiency) at any time during start up is roughly equal to catalyst temperature (in terms of percent of maximum operating catalyst temperature). Using these assumptions, emissions at start up were calculated from the emission rate curves by determining the point on each curve corresponding to that start up. This was accomplished by using the EPA catalyst temperature data during the 10 minute FI'P hot soak to construct a representative trace of catalyst temperature decay during engine-off conditions. The formula used to construct the decay curve was used to develop an equation for initial catalyst efficiency at restart as a function of soak time. This equation was used to calculate the initial position of a start (for a particular soak period) on the emission rate curves. Exhaust emissions for each pollutant were calculated by first computing the area (in grams of pollutant) under the emission rate curve between start up and fully warmed up operation. This Q alue was divided by each pollutant's warmed up operating emissions (based on the EMFAC7E missions model) for that same period of time to determine the percentage increase in emissions LUBA NO. 94-211 -4- Exhibit NO. 13 Page No. I t caused by the particular degree of "cold" start associated with the start point, and then multiplied by the appropriate idle mass emissions rate. This analysis assumes that idle emission rates are valid for all engine operations that occur on the premises of the drive-thru facilities being analyzed. This assumption is based on the extremely low vehicle speeds and engine loads that would be experienced on-site at the facilities. Additional simplifying assumptions were also made to enable similar calculation of emissions during the remainder of the drive cycle (after exiting from the restaurant) for vehicles visiting the facilities. In order to account for all of the emissions that could be affected by the drive-thru, vehicle emissions were tracked to trip conclusion after exiting the restaurant premises. Evaporative Emissions Calculations - Available ARB hot soak evaporative emission factors (contained in the EMFAC7E emissions model) are based on a standard one-hour soak time, and therefore had to be adjusted to analyze the emissions effect of varying periods of soak times shorter than one hour. A substantial data set of real time hot soak evaporative emissions data, from testing of 2,037 General Motors vehicles, was used to develop the necessary temporal adjustment factors. Emission rates for running loss emissions on a per unit time basis were obtained from an analysis of the data used by ARB and EPA to develop the running loss factors contained in EMFAC7E and MOBILE4, and additional data recently collected by ARB. 2.2 Analvsis of Restaurant Activities Average restaurant activity levels for each of the three service types (drive-thru, stop and eat in. and stop and take-out) were collected by surveying quick service restaurant owners in the Los Angeles- area during the spring of 1991. The seven replies received accounted for activity levels at over 1,400 such restaurants in the LA area. A summary of data obtained from the survey is contained in section 5 of this report. These data were used to determine the average time-in-mode for each scenario for five specific modes of operation: drive-on (time to enter the site and either park or pull into the drive-thru waiting queue), engine idle, engine-off, drive-off and drive-away. Data were collected for both peak-hour and off-peak activities. The analysis was structured to provide adequate data in response to a potential requirement to eliminate current drive-thru service lanes at existing convenience restaurant facilities. To fully evaluate the relative emissions impact of such a regulation, two "areas" were modeled. The first "area" consists of premises-only (i.e., parking lot) vehicle operations, thus providing the detailed assessment of on-site emissions needed to evaluate the microscale emissions effect of a possible drive-thru lane prohibition. The second, larger area included the addition of the vehicle trip after exiting the site, to reflect the impact of extended idle and parking operations on emissions after the vehicle leaves the restaurant. • LUBA NO. 94.211 -5- Exhibit No. ^I Page No. to 9 The analysis also includes an evaluation of the emissions impact of both an "average" and "peak hour" visit (in terms of length of time spent on-premises) for each type of facility. The results for both types of visits are used to project average daily emissions at a typical convenience restaurant. Emissions Analvsis - The time-in-mode estimates were used to compute estimated emissions on both a trip and a daily basis. Current (1991) and future year (2000) analyses were conducted to assess (1) existing differences in estimated emissions between the three service categories, and (2) the effect of future emission trends on these differences. A summary of the analytical results of the study is presented below, with a focus on ROG emissions, since that is the primary pollutant of concern in the study area (Southern California). Figure 2 shows a comparison of on-site ROG emissions resulting from an "average" vehicle trip in 1991 to each of the three types of convenience restaurant operations: stop and eat in, stop and take-out, and drive-thru service. The data presented in Figure 2 show that an average drive-thru visit to a restaurant is estimated to generate 0.5 - 0.6 gram of ROG while on the site. These estimates are slightly higher than take-out emission projections, but considerably less than emissions from eat in visits. Figure 2 On Site ROG Emissions by Senario and Mode Calendar Year 1991 r•- 2 ' t V Exhaust Rummnq Ev=. 1.66 Q Hot Soak Evap. 1.60 i' E 1.5 N I i'r E w I 0.59 1 0S1 _ 0.49 0.41 0.5 7; . r O Drive-thru Take Out Eat In Drive-thru Take Out Eat in Ott Peak Peek Hour LUBA NO. 94-211 Exhibit No. ~ 3 - 6 - Page No. 1 n 0 1 It can also be seen from this figure that most of the on-site ROG emissions are not exhaust emissions, but are either evaporative running losses that the vehicle emits while it is waiting in the drive•thru line, or evaporative hot soak emissions that accumulate while the vehicle's engine is shut down and are then released upon start up. Figure 3 provides a similar breakdown for ROG emissions for the total vehicle trip (including travel from the restaurant) for each scenario. Examination of these data show that, when the off-site portion of the trip is also considered, emissions from drive-thru and take-out operations are nearly equal, with less than a 3 percent difference in estimated total trip emissions. (As discussed later in this report, for the year 2000, average take-out ROG emissions for the total trip are projected to be about 10% higher than average drive-dim emissions.) Figure 3 also shows that, when the entire trip is modeled, exhaust rather than evaporative emissions are dominant. Figure 4 provides an overall summary of the emissions effect of the imposition of a drive-thru service ban. Figure 4 shows that the elimination of drive-dum service at a typical quick service restaurant would result in an increase in ROG emissions, and no significant change in CO or NOx emissions. This is because the replacement of existing drive-thru operations with a combination of take-out and eat-in visits will cause increased hot soak emissions and elevated starting exhaust Figure 3 Total Trip ROG Emissions by Scenario and Mode Calendar Year 1991 s Exhaust I - Running Evap. 5.5 4,80 4.70 E3 Hot Soak Evap. 5 N r E 4.5 4 iI 3.39 3.31 ~ 3.29 3.21 3.5; I i in 3 J 2.5 4 2I ` 1.5 I I 0.5 ' 0 ANEW Drive-thnr Take Out Eat In Drlvrthru Take Out Eat In Oft Peak Peak Hour LUBA NO. 94-211 -7- Exhibit No. 13 Page No. ~ 7 Figure 4 Daily Total Trip Emissions per Restaurant With and Without Drive-thru Windows Won Drive•Inru Witnout Drnve•tnru 10- 200 9- fi.e 180 8.2 162.5 8 157.9 160 N ~ a 7 140 N c , j 6.3 6.3 o ; l „ N 6- 120 c E 1 N W 6 100 E 0 W z 4- 3.5 3.8-3. 80 p = ; I 1 3 3 60 i 2 " l j ' 32 4-32.4' 40 I 1 --:7 20 0 0 ROG CO NOx ROG CO NOx 1 9 9 1 2 0 0 0 Based on a 'typical- restaurant with 1.000 daily customer vehicle trips. 0 emissions due to the engine-off periods of these types of operatins. This is particularly true of the longer soak periods resulting from an increase in eat in customers. Table 1 summarizes the percentage change in the emission totals shown in Figure 3. The data presented in the table show a substantial increase in ROG emissions for both the 1991 and 2000 analysis years. No significant changes in CO or NOx emissions are projected for either year. Table 1 Emission Changes Resulting from Drive-Thru Prohibition of Projected Baseline Emissions) Changes in Daily Emissions per "Typical" Restaurant Year ROG CO NOx 1991 +"1 % -3% 0% 2000 +17% 0% 0% • LUBA NO. 94-211 - 8 - Exhibit No. Page No. t a _ c 3. INTRODUCTION Considerable attempts have been made over the last twenty years to control and reduce air pollution levels throughout California. In spite of these efforts, many areas in the state continue to experience pollutant concentrations in excess of applicable state and federal ambient air quality standards. In particular, ozone concentrations in a majority of the state's air pollution control districts remain well above allowable standards. During the early 1980s, all California nonattainment areas were faced with federal Clean Air Act requirements to develop air quality attainment plans for submittal to the U.S. Environmental Protection Agency (EPA) which demonstrated attainment by December 31, 1987. Although comprehensive plans were developed as a result of this requirement, attainment by this date was not achieved. For most areas in the State, air quality attainment remains only a long-term goal. The most extreme example of this is the South Coast Air Quality Management District (SCAQMD), the district that covers the Los Angeles area. Despite the past adoption of a wide range of control measures designed to reduce emissions from both stationary and mobile sources, air quality concentrations in the Los Angeles area continue to exceed state and federal standards by a wide margin. In response to the widespread problem of continued nonattainment of the ambient air quality standards, the California Legislature enacted the California Clean Air Act (CCAA) of 1988. The intent of the CCAA is to ensure that ambient air quality standards be attained throughout California at the earliest practicable date. The Act includes numerous provisions designed to achieve this objective. Included in the provisions are requirements for each district designated as an air quality nonattainment area to prepare and submit a plan to the California Air Resources Board (ARB) by December 31. 1990, for attaining and maintaining state air quality standards. Districts that are receptors or contributors of transported air pollutants (i.e., ozone precursors) have until June 30, to submit such plans to ARB. Each district plan is required to be designed to achieve the state standards at the earliest practicable date, and must achieve a reduction in district-wide emissions of 5 percent or more per year for each nonattainment pollutant or its precursors, averaged every consecutive three-year period.* All plans must contain certain specified measures, including reasonably available transportation control measures and provisions to develop indirect source control programs. Additional measures are also required for more severely polluted areas. LUBA NO. 94-211 -9- Exhibit No. 13 Page No. M3 The passage of the CCAA has increased pressure on all of California's nonattainment districts to control both existing and new sources of air pollutant emissions to the maximum extent technologically feasible. Because motor vehicle emissions are responsible for a majority of the emissions in urban areas throughout California, the districts are evaluating the potential for additional emission reductions from mobile sources. Within California, only ARB has legal authority to adopt regulations to control emission rates from individual motor vehicles. Therefore, in order to achieve further reductions in motor vehicle emissions beyond those resulting from ARB standards, the districts must reduce vehicle. activity levels, rather than emission rates. One measure that has been considered in the past by some districts in California, including the SCAQMD, is a prohibition on the operation of drive-thru service lanes at facilities such as banks or convenience restaurants. Supporters of this measure have argued that "drive-up windows generate substantially more emissions than simply parking one's car and walking into the affected business."' This position appears to result from the perception of excessive emissions from idling vehicles in the drive-duu service lanes coupled with limited air quality monitoring and dispersion modeling studies. Little technical data are actually available to support this conclusion. 3.1 Purpose and Scope of This Study The prohibition of drive-thru service lanes, although proposed, has not actually been adopted by any local air pollution control districts in California. However, it appears that the CCAA On equirements mentioned above will result in renewed interest by many districts in the possible doption of a drive-thru service prohibition as one potential method to reduce mobile source emission levels. Given the lack of available data regarding projected air quality impacts of these facilities, there is a need for a more rigorous analysis designed to accurately quantify such impacts. Therefore, the purpose of this study is to provide an assessment of the projected emissions effect of drive-thru restaurant facilities both currently (i.e., in 1991) and in the future (i.e., in the year 2000). As an example, this analysis focuses on emissions projected to occur at an "average" drive-thru restaurant located in Los Angeles County. Prior to the commencement of this analysis, a review of available literature was undertaken to determine the suitability of the methodology used in previous air quality studies of drive-thru facilities. That evaluation indicated that all the studies reviewed suffered from one or more of the following defects: 1. Most analyses were conducted several years ago, and are thus outdated, since there have been significant subsequent changes in both the magnitude and the methods of calculation of motor vehicle emission factors. 1) Superscripts denote references provided in Section 7 LUBA NO. 94-211 -10. Exhibit No. I'~-~- Page No. ' t 4 c Some analyses focused either exclusively or primarily on projected carbon monoxide (CO) emissions and ambient concentrations, rather than examining the effect on ozone precursors as well. 3. None of the previous analyses examined the relative effect of drive-thru versus stop-and-park service on automotive evaporative emissions. This is a large source of non-methane hydrocarbon (NMHC) emissions, an ozone precursor. It is therefore essential that any complete analysis include these emissions. As a result of this review, it was determined. that the current analysis should include as accurate an assessment as possible of all emission sources (including evaporative emissions) resulting from the different types of operations that normally occur at convenience restaurants. Accordingly, it was decided that three types of operations should be modeled: drive-thru, stop and take-out, and stop and eat in. Actual activity data for each type of operation were used to model each operation type. This analysis considers emissions exclusively, and does not attempt to model actual air quality concentrations. This approach was used for two reasons. First, air quality concentrations are dependent on several factors in addition to emission levels, including micro- and mesoscale meteorological conditions and other emission sources in the surrounding area. As a result, it is impossible to conduct a "generic" analysis of air quality concentrations resulting from an average drive-thru restaurant. Projections of air quality concentrations are specific to a particular location and period of time. Second, for this analysis the comparison of emissions provides sufficient information to determine the relative air quality impacts of alternative restaurant operations. Thus, it is unnecessary to actually model air quality concentrations expected to result from each type of operation. 3.2 Guide to the Remainder of the Report This report included seven sections, of which this introductory section is the third. Section 1 provides a summary of the conclusions and methodology of the study. Section 2 provides a broader overview of the analysis methodology and results. Section 4 contains the methodology used to"perform the emission modeling conducted as part of the analysis. This section also presents the analysis of the vehicle emission data collected in the study, and discusses the resultant emission rates. LUBA NO. 94-211 11- Exhibit No. r -i_ Page No. Section presents a discussion of the type of convenience restaurant operations, and the collection and analysis of vehicle operation data for each type of restaurant Section 6 discusses the relative emissions resulting from each restaurant type, and the projected effect of a Oohibition on drive-thru restaurant operations. Section 7 presents the references cited in the report Following section 7, there is a technical appendix containing the emission calculations that were generated as part of the analysis. LUBA NO. 94-211 12 " Exhibit No. /3 Page No. / r7 Co C 4. EMISSIONS MODELING METHODOLOGY In order to assess the impact of various types of convenience restaurant operations on motor vehicle emissions, it is first necessary to accurately model motor vehicle emission rates under each type of operation. In turn, the modeling of vehicle emission rates requires the determination of the modes of engine operation that are occurring during a vehicle visit to each type of convenience restaurant, the quantification of the emissions behavior of the vehicle during each engine operating mode, and the length of time that the vehicle spends in each mode. An emissions modeling approach was used to quantify the necessary information as accurately as possible for an "average" vehicle fleet, based largely on emission data already projected for that fleet. This section discusses the methodology used in this analysis. 4.1 Modal Emissions Description Motor vehicle emissions consist of a large number of chemical species that primarily result from combustion within the engine and from fuel evaporation at various locations throughout the fuel delivery and storage system. (Crankcase emissions are small enough to be ignored in this analysis.) The current analysis will focus on three particular emission components: CO. non-methane hydrocarbons (NMHQ and oxides of nitrogen (NOx). In California, non-methane hydrocarbons are also referred to as reactive organic gases (ROG). These are the emission components that result in the two major mobile source-related nonattainment pollutants in California: ozone and carbon monoxide. Ozone, the principal ingredient of photochemical "smog", is formed in the atmosphere from complex reactions between ROG and NOx emissions in the presence of sunlight ROG from vehicles are unburned or partially burned fuel constituents (and, to a lesser extent, lubricating oils) that are emitted as either exhaust or evaporative emissions. NOx emissions are formed when nitrogen and oxygen in the combustion air is exposed to the very high temperature of the flame. The ozone formation process occurs over relatively long periods of time and distances. In California, many violations of the ambient ozone standard are usually the result of emissions that were previously emitted in "upwind" areas. ROG and NOx emissions from vehicular and stationery sources, in combination with daytime wind flow patterns, mountain barriers. a persistent temperature inversion, and intense sunlight, result in high ambient ozone concentrations. Peak hour ozone concentrations typically occur during the late summer months when long days allow the reactions to take place-for a longer duration. LUBA NO. 94-211 -13- Exhibit No. I~_ Page No. rc?T'? Carbon monoxide is a product of incomplete combustion. resulting from partially burned fuel within vehicle engines. Elevated CO concentrations result mainly from motor vehicle activity. However, unlike ozone. high CO emissions in California primarily result from relatively localized 0 CO clouds" usually associated with congested traffic conditions and colder wintertime emperatures. The quantification of emissions involves the determination of emission rates for two fundamentally different types of emission-producing processes: emittance from the vehicle's exhaust system, and evaporation from the fuel storage and delivery system. Emissions from each of these basic types of emission-producing processes, exhaust an d evaporative, can be further categorized, as discussed below. 4.1.1 Exhaust Emissions Cold Start - Under cold start conditions, the vehicle engine has been turned off for some time and the catalytic converter (if the vehicle is so equipped) is cold. CO and ROG emissions are higher when a cold engine is first started than after the vehicle is warmed up. This is because catalytic emission control systems do not provide full control until they reach operating temperature (i.e.. light-off) and a richer fuel-air mixture must be provided to the cylinders under cold operating conditions to achieve satisfactory engine performance (e.g., startability and driveability). Rich mixtures are necessary to achieve smooth combustion during warm-up because gasoline does not fully vaporize and mix with the air in a cold engine. Extra fuel is added to ensure that an 0 equate amount of fuel is vaporized to achieve a combustible mixture. Complete vaporization ventually occurs in the engine cylinder as a result of the high temperatures created by combustion. However, the excess fuel that was needed to ensure adequate vaporization to start the combustion process.cannot be completely burned due to a lack of sufficient oxygen in the cylinder. The result is that partially burned fuel and unburned fuel are emitted in relatively high concentrations from a cold engine. Elevated emissions of these pollutants in this cold transient phase occur from the time a cold engine starts until it is fully warm. While NOx emissions tend to be low during rich operation of a cold engine, the lack of catalyst activity to control this pollutant results in elevated cold start NOx emissions as well. Hot Start - Under hot start conditions, the vehicle engine has been turned off for such a short time that the catalyst has not had time to cool to ambient temperature. Thus, the warm-up period is shorter (if present at all) than that required under cold start conditions. For that reason, CO and HC hot start emissions are significantly lower than under cold start operations. Under the standard test pj-ocedures used by ARB and EPA, a "hot start" is a test that begins exactly 10 minutes after a fully warmed up engine has been shut off. After only 10 minutes, no mixture enrichment is required to achieve a reliable restart and the catalyst is usually still above its "light-off' temperature. A re-start that occurs before the engine and catalyst reach ambient temperature, but after more than 10 minutes could called a "warm start", but there is no dardized test procedure for measuring such "warm start" emissions. OM LUBA NO. 94-211 -14- E~Mibit No. 13 Page -No. M r ~~'arm Start - When a vehicle engine is turned off. the emission control system (e.g., the catalyst) immediately begins to cool down. When an engine is started, it takes some period of time for the catalyst to reach light-off temperature and for all emission control system components to attain optimum operation. This period of time is referred to as "wane-up." The length of the warm-up period varies, depending upon several factors, including: - how long the engine was turned off, and, consequently, the temperature of the emission control system at start up; - the size and configuration of the vehicle engine; - the type, chemical composition and location of the catalyst; - the possible presence, and timing, of air injection into the catalyst; and - ambient temperature. For modeling purposes, EPA and ARB have defined a start up as cold if a catalyst-equipped vehicle has been sitting for more than 1 hour prior to start up or a non-catalyst vehicle for more than 4 hours. This analysis will focus on catalyst-equipped vehicles due to their overwhelming preponderance in current and future vehicle fleets. The agencies' use of a 1 hour cold start delimiter for such vehicles assumes that all starts of less than 1 hour (called the hot soak period) for anv individual vehicle will result in an identical level of start emissions, regardless of the actual time of hot soak. Because there is a large difference in magnitude between cold and hot start emissions in catalyst-equipped cars, this step-function approach to modeling hot and cold start emission differences is not appropriate to studies (such as the current analysis) that involve vehicle operations with various hot soak periods of less than 1 hour. Therefore, one of the key objectives of this analysis is to more accurately model so-called "warm start" emissions for hot soak periods of less than one hour. Hot Stabilized After warm-up has occurred, and the engine and emission control systems have reached full operating temperatures, the vehicle is considered to be in the hot stabilized mode. Generally, emissions are relatively low (compared to cold start emission rates) under hot stabilized conditions. However, emissions are also highly dependent on vehicle speed and engine load. Recent analysis by Sierra has revealed that varying off-cycle load conditions (i.e., under conditions not tested on the standard automotive driving cycle used for vehicle certification purposes) can have a dramatic impact on emissions. LUBA NO.94-21 1 -15 - Exhibit No. la - Page No. n I 4.1.2 Evaporative Emissions Evaporative emissions consist entirely of hydrocarbon emissions. These emissions can be categorized into the three groups discussed below. Hot Soak - When a hot engine is turned off, fuel exposed to the engine (e.g., in carburetor float bowls or in fuel injectors) may evaporate and escape to the atmosphere. Emission rates for these so-called "hot soak" emissions are contained in EMFAC7E the-current version of ARB's mobile source emission factor model. However, these emission factors (expressed in grams per trip) are also based on a 1-hour soak time, and must therefore be adjusted for varying soak periods. Diurnal - Diurnal temperature fluctuations occurring over a 24-hour period cause "breathing" to occur at the gasoline tank vent. To prevent the escape of fuel vapor, the vent is routed to the charcoal canister where the vapor can be absorbed and later purged into the running engine. These emissions are calculated by EMFAC7E in terms of grams per vehicle-day. The estimation of diurnal emissions is complicated by "partial day" events (e.g., a park between lunch and an evening commute). Given the comparatively short parking periods (i.e., less than 1 hour) that will be- modeled in the current analysis, it is assumed that differences in diurnal emissions between the various convenience restaurant scenarios will be insignificant. Therefore, this emission category was not considered. Running Losses - Running loss emissions are those resulting from vapor generated in gasoline fuel tanks during engine operation. Running losses are especially a problem on vehicles that h 0 ave exhaust systems in close proximity to the gasoline tank. Running loss emissions occur when the vapors emitted from the tank vent exceed the rate at which they are being purged from the canister by the engine. This HC emission category has long been assumed'to be insignificant, but recent research has shown this assumption to be incorrect Running loss emissions are substantially affected by high ambient temperatures and high volatility fuels. Based on limited available test data, EPA has concluded that average running losses from passenger cars already equipped with current U.S.-type evaporative emission control systems are 0.5 g/km at 35'C (0.8 g/mi at 95'F). Emissions are considerably lower at lower ambient temperatures. In this analysis, running loss emissions will occur during all modes of vehicle operation, including under engine idling during queuing in drive-thru service lanes. 4.2 Standard Mobile Source Modeling Approach As part of the regulatory development process, standardized mobile source emission factor models (i.e., ARB's EMFAC7E and EPA's MOBILE4) are used to estimate the effect of proposed control measures on current and future fleetwide emissions. These models have been used for several reasons, including the following: LUBA NO. 94-211 -16- Exhibit No. I B Page No. 9D C - They represent the best available data regarding the projected emission behavior of future-vear vehicle fleets. - The models contain a range of assumptions which can be used to generate emissions projections. (When applying MOBILE4, the user has the ability to alter inputs to reflect local conditions. In contrast, an EMFAC7E user has almost no flexibility to alter the inputs to reflect local conditions; a "post-processor" model, BURDEN7C, allows for a specified range of local conditions to be used. However, the range of local conditions are pre-selected by ARB for users.) - Their use has been sanctioned by ARB and EPA, respectively, and the model results are therefore acceptable to these agencies. - Significant resources would be required to develop an adequate alternative approach to the use of these models. The basic emission data contained in both emission models were collected in the same manner. Vehicles were tested using a standardized driving cycle called the Urban Dynamometer Driving Schedule (UDDS), or "LA4 cycle." This chassis dynamometer test cycle involves the duplication of a speed-time profile from an actual road route identified in the Los Angeles area that was chosen to represent the typical urban area driving pattern. The driving cycle was then incorporated into EPA's Federal Test Procedure (Fl?), the testing process used by all motor vehicle manufacturers to certify that their vehicles are capable of meeting federal emission standards. The LA4 has been the standard driving cycle for the certification of light-duty vehicles since the 1972 model year. It is approximately 7.5 miles in length with an average speed of 19.6 mph. The cycle includes 18 segments of non-zero speed activity (at varying engine loads) separated by idle periods. Since the 1975 model year, the initial 505 seconds of the cycle have been repeated following a 10 minute hot soak. It is believed that after cold/hot start weighting factors are applied to the first 505 seconds of the cold start and the 505 second hot start portion, the test provides a more accurate reflection of typical customer service than running just one 7.5 mile cycle from a cold start.`' As part of the FTP, aggregated mass emissions generated during the test are collected in three "bags", corresponding to the following periods: Bag 1- the first 505 seconds, or cold transient phase; Bag 2 - the remainder of the first LA4 driving cycle, referred to as the stabilized phase: and Bag 3 . the hot 505 second cycle, called the hot transient phase All FTP testing is conducted at (2) Because of concerns that highway NOx emissions at extended higher speed operation are not adequately modeled by the LA4. ARB also requires manufacturers to demonstrate that NOx emissions would not be substantially higher on a second standardized driving cycle, the EPA Highway cycle. LUBA NO. 94-211 -17- Exhibit No. 1 Page No. IS I standard test conditions (e.g., an ambient temperature range of 68% 867. etc.). It should also be pointed out that. irrespective of what the various portions of the test cycle are called. different vehicles can take significantly varying lengths of time for the engine and emission control ystems to reach their normal operating temperature. EMFAC7E and MOBILE4 do operate somewhat differently, primarily in the manner in which they treat starting emissions. Because this analysis is being done specifically for the Los Angeles area, the discussion will focus on the use of EMFAC7E in California. Under the standard California emissions modeling approach, fleetwide emission rates are calculated by a combined emission factor model package of EMFAC7E/BURDEN7C. EMFAC7E produces emission factors by vehicle class and technology for a range of vehicle speeds and ambient temperatures. BURDEN7C then combines the emission factor outputs from EMFAC7E with travel data (in vehicle miles traveled, trips, etc.) to produce county-wide emission estimates ('in tons/day). Based on a minimum number of user inputs. including the desired calendar year of analysis and an identification of the air basin and county to be analyzed, the model package can be operated to output composite emission factors, based on the pre-selection by ARB within the program of a number of parameters, including ambient temperature, vehicle age and mix, vehicle speed, and percentage of hot and cold starts. Use of the default values built into the model provides the ability to generate area-specific emission factors even in the absence of locally available data. It can, however, be relatively difficult to operate the models with user-specified inputs in a more customized fashion. "These models are complicated programs to run and are not thoroughly ocumented. No detailed user's guide has been prepared by ARB and no menu-based interface 'sts in the programs. In addition to being virtually inoperable by novice users, the models produce various types of output emission estimates that are often misused. For these reasons, extreme care must be taken when attempting to use the EMFAC7E/BURDEN7C package for a specialized analysis. The model package produces a number of emission factors based on the input parameters discussed above. Emission factors (for CO, ROG and NOx emissions) that are produced include the following: - running exhaust emission rates for ROG, CO and NOx (in g/mile); - incremental cold start emission rates for ROG, CO and NOx (in g/trip); - incremental hot start emission rates for ROG, CO and NOx (in g/trip); diurnal emission rates for ROG (in g/vehicle-day); - hot soak emission rates for ROG (in g/trip); and running loss emission rates for ROG (in g/mile). LUBA NO. 94-211 Exhibit No. 13 -18 - Page No. I F5& By splitting trip-related incremental start and hot soak emission factors out from mileage-dependent running emission rates, this methodology appears on the surface to allow users considerable flexibility in manipulating model results to assess the impact of various control measures. In particular, it could provide a means for easy evaluation of the relative benefits of strategies that reduce trips versus those designed to reduce vehicle miles traveled (VMT) . However, an examination of the methods used by the model to calculate incremental starting emissions raises considerable questions regarding the accuracy of the methodology (and thus the emission factors generated). EMFAC7E calculates the cold start increment by subtracting Bag 1 (cold start) minus Bag 2 (stabilized) emissions. Similarly, incremental hot start emissions are assumed to equal Bag 3 (hot start) minus Bag 2 emissions. There are several problems with EMFAC7E's incremental start approach. First. the model's incremental start calculations are based on the assumption that all of the difference between cold start/hot start and stabilized operation is reflected in the difference between Bag.1 or Bag 3, and Bag 2 of the FTP. Bag 2 is called the "hot stabilized" bag, but it is not intended to represent all hot stabilized operation. A careful review of the development of the FTP shows that the sum of Bags 2 and 3 is intended to represent "stabilized" vehicle operation over the LA4 driving cycle. Bag 3 was never intended to represent "hot start" emissions - it is just a way to avoid running two full 7.5 mile cycles back-to-back. The original cold/hot weighting procedure involved running two full 7.5 mile cycles and weighting the first cycle by 0.43 and the second by 0.57. EPA determined, by trial and error, that virtually all vehicles are fully warmed up after 3.59 miles. That allowed two full cycles to be represented by one full cycle + 3.59 miles (i.e., 505 seconds) of the second cycle. With appropriate weighting factors applied, 0.43 x 3.59 (Bag 1) 0.43 x 7.5 (Bag 1 + 2) + 1.00 x 3.91 (Bag 2) + 0.57 x 7.5 (Batt 3 + 4) became + 0.57 x 3.59 (Batt 3) Therefore, "incremental hot start" emissions do not exist as defined by the FT?, Bag 3 minus Bag 2 as used above in EMFAC7E simply represents the difference in emissions between the 505-second trace and the remaining 875-second trace of a stabilized vehicle. Thus, the EMFAC7E methodology is flawed with respect to "hot start" emissions. Second, the EMFAC7E/BURDEN7C methodology discussed above that separates running exhaust emission factors (in g/mile) from starting emission factors (g/trip) converts these factors to emissions before adding them in BURDEN, rather than converting the starting emission factors to a glmile basis using an average trip length and then aggregating them with the running factors. We presume the reasoning behind this technique is that a "composite" emission factor produced by the latter method would represent an average gram per mile emission rate over the length of the trip and would not account for higher gram per mile emissions that occur during the start portion of the trip in preparing gridded emission LUBA NO. 94-211 -19- Exh[bit No. 13 Page No. ) 9 3 estimates for an area In employing the former approach, however, the model assumes that 3.59 miles of cold start travel occur for every trip modeled. While this assumption is reasonable for an aggregation of vehicle trips, this approach cannot be used for computing emissions from a subset of short trips with trip lengths less than 3.59 miles. As a result, ENFAC7E/BURDEN7C can grossly overestimate the emissions during short trips. Finallv, as indicated previously, while the driving cycles for Bags 1 and 3 are identical, a completely different cycle is used in the measurement of Bag 2 emissions. Given Sierra's recent findings regarding the effect of varying engine loads on emissions, it is clear that significant inaccuracies would also be introduced by subtracting emission rates collected under different driving cycles. It is apparent from the above discussion that EMFAC7E's incremental start emission rates are simply artifacts of the calculations contained in the model, and should not be used for any customized modeling approach involved in evaluating starting emissions (as required in the current analysis). Instead, a more accurate approach to starting emissions must be developed. 4.3 Modeling of Exhaust Emissions The discussions contained in the preceding sections have highlighted two separate elements that must be addressed in any emissions modeling analysis involving a significant fraction of starting emissions. These issues are: - The lack of data regarding the effect of various hot soak periods of less than 1 hour on actual starting emissions, both evaporative and exhaust; and - The inadequate treatment of incremental start emission factors in EMFAC7E. Because the current analysis centers around the issue of idling versus starting emissions for the various types of convenience restaurant operations, it is crucial that the issues identified above be adequately addressed in the modeling methodology to be used. Accordingly, Sierra has developed a customized non-standard modeling approach for this effort. The approach to modeling exhaust emissions is outlined below. 4.3.1 Available Emissions Data As described previously, most motor vehicle exhaust emission test programs are based on the collection of mass emission data from specific parts of a standard driving cycle (e.g., the I.A4) into a series of collective "bags." While EMFAC7E is constructed as if the three bags of the FTP each represent a specific mode of operation (cold start, stabilized and hot start), each segment actually incorporates several operating modes, including widely varying engine loads and vehicle LUBA NO. 94-211 -20- Exhibit No. 13 Page No. l speeds. Because these tests do not provide data for individual modes. nor are emission rates continuously measured during the test. the data obtained from such testing cannot be used directly to calculate instantaneous emissions from the specific modes of operation to be investigated in this analysis. Instead. Sierra investigated the availability of other sources of data and of possible computer modeling for the development of mode-specific exhaust emissions estimates. Contact with ARB staff revealed that ARB has conducted limited work to characterize direct, continuous measurement of emissions during vehicle operation from start up. ARB staff has undertaken a study to better characterize cold start emissions and to optimize the emission sampling equipment to collect data over very short intervals (e.g., 1-2 seconds). The test procedure used in this study includes a comparison of two start up modes (Bags 1 and 3, known as hot and cold "505's", based on the fact that the driving cycle for each of these bags is 505 seconds long) that is intended to provide a fairly direct measurement of emissions during engine cranking and warm-up. However, only one test has produced results that are useful for the current analysis. This test provides a quantitative measure of real time emissions and time to catalyst light-off (approximately 210 seconds) after cold start for the vehicle tested (a 1989 BNM. Although ARB intends to test a number (more than 15) of vehicles using this procedure, and to incorporate the procedure into their surveillance testing programs in the future, it does not appear that additional data will be available in time for use in the present study. Nor can the BMW data be used to represent the 1A area vehicle fleet, since individual vehicles may have widely varying warm-up patterns. 4.3.2 Idle Emission Rates In addition to the need for start emissions data for hot soak periods of less than 1 hour, additional emission factors that are crucial to the accuracy of this analysis are idle emission rates representative of vehicle performance during queuing in drive-thru service lanes. Sierra initially investigated the possibility of calculating such emission rates from available EMFAC7E factors. ARB staff had used such a methodology previously in a limited analysis performed for the City of Fresno as part of Fresno's assessment of the emissions impact of drive-thru service lanes.' The methodology used by ARB consisted of multiplying EMFAC7E's 5 mph (.e., the lowest speed-related estimate produced by the model) running exhaust emission factors by that speed to obtain idle emission factors in grams per minute, as shown below. Emissions (g/mile) x 5 miles/hr x I hr/60 min - emissions (g/min) This methodology is apparently based on the assumption that a 5 mph vehicle speed is close enough to idle conditions that the emission rates would be very similar, thus allowing the use of the 5 mph emission rates, expressed as a function of time, to also represent idle emission rates. ! UBA NO. 94-211 .21- Exhlhit No. I. - Page No. 195 However, it must be remembered that the running exhaust emission factors contained in EMFAC7E are based on the emissions testing of vehicles on the FTP driving cycle. adjusted to different speeds based on data obtained from other cycles. the "slowest" of which has an average speed of about 10 mph. Therefore, the 5 mph emission rates produced by EMFAC7E are aggregate factors that represent a range- of engine load conditions, including both periods of engine idle and periods of significant load. Conceptually, it thus appears unlikely that the ARB methodology would provide an accurate approximation of idle emission rates. Existing Idle Emissions Data - To address this concern, Sierra conducted a review of available idle emission data (measured on a mass rather than a concentration basis) that could be compared to the results of this estimation technique. Sierra's search for available data revealed that a limited amount of such data was collected as part of an analysis6 that Sierra conducted for the California Bureau of Automotive Repair (BAR) in 1988 on the potential for loaded mode I/M testing at service stations. As part of that analysis, 18 different vehicles were recruited and subjected to emissions testing on a wide variety of test cycles. This included the measurement of mass emissions under idle conditions for all 18 vehicles. In addition, raw emissions on a concentration basis were also measured under the same conditions. The availability of both mass and concentration data for this data set allowed Sierra to develop a correlation between these measurements under idle conditions. Under idle test conditions, fuel consumption during the test, and therefore the exhaust flow rate, is primarily related to the size of the engine. Because of this relationship, it was determined that mass emissions of CO, HC and NOx during idle operation are well correlated with the product of the respective pollutant 0.oncentration and the cubic inch displacement (CID) of the engine in the vehicle. As a result, a least squares regression analysis was used to develop correlation equations between mass and concentration measurements for each pollutant. The equation to convert CO concentration (in percent) to grams/minute at idle is: CO grams/minute - (CO% x CID x 0.01209) + 0.01908 (1) Using the above equation, a vehicle with a 150 cubic inch engine that emits 2% CO at idle is estimated to emit 3.65 grams per minute of CO. The r^ value for the CO equation is 0.86. (A value of 1.0 for the "coefficient of determination", or "r-squared", indicates perfect correlation. Values approaching zero indicate no correlation. This value represents the proportion of total variation in the data set accounted for by linear regression.) For HC emissions, the relationship between idle concentration and mass emissions is: HC grams/minute - (HC ppm x CID x 7.46410-7) + 2.575x10'3 (2) Using this equation, a vehicle with a 150 cubic inch engine that emits 500 ppm HC at idle is estimated to emit 0.059 grams/minute of HC. The r' for this equation is 0.94. LUBA NO. 94-211 -22- Exhibit No. 13 Page No. ► $ Cv For NOx emissions. the relationship between idle concentration and mass emissions is: NOx grams/minute - (NOx ppm x CID x 3.661x10-5) - 1.84x10'3. (3) Using the preceding equation, a vehicle with a 150 cubic inch engine that emits 100 ppm NOx at idle is estimated to emit 0.053 grams/minute of NOx. The r? for this equation is 0.90. Smog Check Data - The equations shown above for CO and HC provide an analytical means of converting concentration data routinely measured from in-use vehicles during the California's Smog Check inspection into gram per minute values. Accordingly, Sierra performed an analysis of data collected by the Test Analyzer Systems (TAS) at all Smog Check stations within the fA area. TAS data from September 1990 were chosen to represent average "current year" values. To more accurately represent average in-use emissions, only initial tests were used. After this screening process was completed, a total of 171,387 records were selected for analysis. Mean concentrations were calculated, and converted into gram/minute values using the above equations. Table 2 presents the results of that analysis. Table 2 Los Angeles Area Mean Idle Emission Rates (September 1990 TAS Data) Idle HC Idle CO (ppm) (g/min) M (g/min) 138.7 0.026 0.89 2.516 It should be pointed out that, because of their derivation from TAS data, the mean mass emission rates shown in Table 2 are weighted by vehicle registration, rather than by VMT as are the EMFAC emission factors discussed in this-report. Given the uncertainty surrounding the exact mix of vehicles patronizing convenience restaurants in the study area, additional uncertainties introduced by the use of the above registration-weighted emission rates are believed to be insignificant.. NOx Data Because NOx data are not recorded by the TAS, there is no large data set of idle NOx emission rates available for use in this analysis. To develop an estimate of NOx idle rates, Sierra conducted an analysis using the limited data that were available from the 18 vehicles tested in Sierra's loaded mode analysis. This analysis yielded a mean idle NOx emission rate for those 18 vehicles of 24.6 ppm, or 0.017 grams/minute (g/min). The median emission rate of the data set is O.Org/min. The mean value of this data set is believed to represent a reasonable estimate of average in-use NOx emission rates, due to the mix of vehicles included in the BAR analysis. Fifteen of the 18 vehicles were 1981 and later models equipped with 3-way catalysts. These "50- -LUBA NO. 94-211 Exhibit No. 13 -23- page No. i `'7 State" vehicles included both passenger cars and light-duty trucks, certified to meet California emission certification standards. The remaining three vehicles were late-1970's vintage models equipped with oxidation catalysts. All vehicles had accumulated at least 30.000 miles of use. Thus, based on the limited available data, an average NOx idle emission rate of 0.017 g/min (equal to the mean value) was assumed for the current analysis. Future Emission Rates - As part of this analysis, emission estimates for calendar year 2000 v. ~e computed, as well as for the current analysis year (1991). Accordingly, emission rates for bc,Lh 1991 and 2000 were required to be developed. For those rates based on EMFAC7E, future year emission factors were simply output from the model. (In developing these emission factors, the use of 7.8 RVP fuel was assumed for the year 2000.) However, no such method exists for projecting future year idle emission rates. While advances in emission controls may not reduce warm idle emissions of new vehicles by a significant amount between 1991 and the year 2000, fleet turnover during this period will result in continued reductions in fleet average idle emissions. To obtain a reasonable projection of future year emission rates, the September 1990 TAS data used previously to compute the 1991 idle mass HC and CO emission rates were disaggregated by model year, and examined to determine approximate trends in average idle concentrations. The mean weighted idle CO and HC emission rates for the last five model year vehicles (Model Years 1986-90) contained in this data set were 0.189% and 49.2 ppm (0.397 and 0.009 g/min), respectively. Given that the average mileage of these vehicles is in excess of 40,000 miles, it is believed that these averages represent a reasonable projection of the estimated average idle emission rates of vehicles patronizing convenience restaurants in the year 2000. In the absence of TAS NOx data, an estimate (based on 1991 and 2000 NOx factors contained in EMFAC7E) of 60% of the 1991 idle NOx emission rate was used to represent the average NOx idle rate in the year 2000. Comparison of this percentage to equivalent 1991/2000 ratios of 41% and 16% for HC and CO, respectively, generated by the above methodology shows that the resulting idle emission rate of 0.010 gpm is a reasonably conservative estimate of NOx emissions in the year 2000. 4.3.3 Analvsis of Catalvst Temperature Data Given the lack of real time emissions data discussed previously, Sierra conducted a search of :,ther possible theoretical means of estimating changes in emission rates over time during vehicle and catalyst warm-up. Contact with EPA Certification Division staff revealed that EPA had collected considerable real time data on catalyst temperatures during warm-up through an ongoing catalyst thermal activity test program related to determining changes in catalyst efficiency over time. A decision was therefore made to use the available catalyst temperature data set as a surrogate for emissions, based on the use of certain assumptions (which are discussed later in this section) relating catalyst temperature to catalyst efficiency and thus to xhaust emissions. LUBA NO. 94-211 -24- Exhibit No. Page No. I q1 1 Sierra obtained data from EPA. for one portion of the test program in which temperature sensors were attached to various positions (e.g., converter inlet. first and second biscuits, outlet. etc.) on the catalysts of ten vehicles (five matched data sets). Descriptions of the vehicles are contained in Table 3. All vehicles are either 1983 or 1984 model year passenger cars or light duty trucks. As indicated in Table 3 after testing of the vehicles' original catalysts, some of the vehicles were also tested with new catalysts. Catalyst temperatures were measured during standard FTPs conducted at a variety of test temperatures. (Only results from the 757 tests were used in the current analysis.) Some vehicle catalyst temperatures-were also monitored during a 10 minute idling period after completion of the hot start 505. Because these are real time rather than aggregate measurements, they present a time and mode-specific picture of catalyst operation that can be used to construct representative curves of catalyst efficiency over time under FTP conditions. Given the assumption that real time emissions are proportional to catalyst efficiency, emission curves can be developed in turn. The test data were collected in analog (strip chart) rather than digital form. Sierra has digitized these data for use in this analysis. Although the EPA catalyst temperature data set includes many additional data vehicles tested under the same program during different periods, time and resources did not permit the digitizing of additional EPA data as part of this study. While some of the additional data appear to include real time emissions measurements as well, those data are currently unavailable for use in the present analysis. Therefore, the data analyzed by Sierra represent the sum-total of currently usable real time EPA data on catalyst temperature during warm-up. The first step in analyzing the EPA data base involved the development of a single representative temperature trace for the vehicles tested in the program. Although it is recognized that there could be substantial differences in catalytic converter system characteristics (e.g., distance of catalyst from engine, physical design, chemical composition, etc.), the scarcity of the available data precluded any possibility of disaggregating the data set by vehicle manufacturer, technology grouping, etc. However, analysis of the data did result in the rejection of one manufacturer's vehicles from the data set used to construct the final "representative" cold start temperature trace. As stated above, the analytical methodology created by Sierra for this study assumes that real time emissions are directly related to catalyst efficiency. This assumption is based on a key premise that, because of the relatively short hot soak periods and low load conditions modeled, the effect of variance in engine-out emissions is insignificant. In addition, a second implicit assumption is that, over the narrow range of operating conditions considered in this analysis, measurement of catalyst temperature can be used to approximate catalyst efficiency. LUBA NO. 94-211 -25- Exhibit No. 13 Page No. 189 Table 3 Test Vehicle Descriptions Veh Engine and No. MY. Make. Model Control Svstem Odometer 1. 83 Plymouth Horizon 2.2 L - Carb 44.000 Original 3-Way + Ox-Cat New 3-Way + Ox-Cat 2. 84 Plymouth Horizon 2.2 L - Carb - New 3-Way + Ox-Cat 3. Ford Escort 1.6 L - Carb - No Oxygen Sensor New 3-Way + Ox-Cat 4. 83 Ford Escort 1.6 L - Carb 38.800 No Oxygen Sensor Original 3-Way + Ox-Cat New 3-Way + Ox-Cat _ 5. Olds Firenza 2.0 L - TBI - New 3-Way/Pulse Air 6. Olds F'u-enza 2.0 L - TBI - New 3-Way/Pulse Air - 7. Buick Regal 3.8 L - Carb New 3-Way/Air 8. Buick Regal 3.8 L - Garb - Original 3-Way/Air. New 3-Way/Air 9. Toyota Celica 2.4 L - MPI - New 3-Way/No Air 10. Toyota Celica 2.4 L MPI - New 3-Way/No Air Glossary. Carb Carburetor TBI Throttle-Body Fuel Injection MPI Multi-point (Intake Port) Fuel Injection 3-Way Three-Way Catalyst Ox-Cat Oxidation Catalyst UJBA NO. 94-211 Exhibit No. i_~- -26- Page No. ► 40 Temperature Trace Curve -.An initial analysis of the individual cold start temperature traces of the remaining data set revealed that the traces appeared to follow a sigmoid-shaped curve. The equation for this type of curve can be expressed as follows: T_ K 1 + e a-R (4) where: T = temperature of the first catalyst biscuit; K = maximum temperature reached by the biscuit, or "upper asymptote"; r - rate of temperature increase; e = base of the natural logarithm; and a = constant of integration defining the position of the curve relative to the origin. The first biscuit's temperature was used for two reasons; it was believed to be the location in the catalyst where maximum oxidation of emissions occurs, and its temperature was consistently higher than those recorded elsewhere in the catalyst at a given time. Because of the curvilinear nature of the equation, curvilinear regression software was required to determine the values for K, r and a that best fit the data set Accordingly, the NLIN procedure of SAS was used to fit the equation to the data set. SAS is a powerful computer software system that is routinely used for the statistical analysis of large data sets. Figure 5 illustrates the correlations that were established. For curvilinear regressions, a slightly different function is used to indicate the degree of correlation between the data. This function is referred to as the correlation index, or R2, and represents the proportion of the total variation accounted for by the regression equation of the curve being fitted to the data When linear regression accounts for all the significant variability, R2 rz: Unlike r?, R2 is usually referred to as a percentage (e.g., 83.7%). The R2 value of 68.1% shown for the curve presented in Figure 5 indicates fair correlation, especially considering the wide grouping of vehicle manufacturers (and thus catalyst characteristics) represented in the data set. As indicated by the constants contained in the equation displayed on the figure, the average maximum temperature achieved during cold start - conditions for the vehicles tested was equal to 978°F (with 95% confidence intervals of 915° and 1,040°M. The average initial catalyst temperature (at t= 0) predicted by the equation would be 96°F, with actual initial test temperatures of 75°F (i.e., actual ambient test cell temperature) well within the 95% confidence limits. The average catalyst light off temperature shown on Figure 5 was determined by averaging the times when the temperature of the first biscuit in the catalyst was higher the inlet temperature (i.e., the beginning of an exothermic catalytic reaction). CUBA NO. 94-211 -27- Exhibit No. Page No. !9/ Figure 5 Catalyst Temperature vs. Time Correlation During 75 Degree FTP Cold Start (Eight Data Vehicle Set) 2000 Temperature = 977.77 [1 +e12.218-3.370 1500 N ' m m ! m m 1000 7 I l9 2 1 m R - 68.1% Q. 500 4Ca/talySt Light ott Temperature - 550 degrees F 0 0 1 2 3 4 5 Time (minutes) Nora: Dora not urcru0a CArybi Data. During the initial analysis of the data, it was apparent that the temperatures measured from catalysts installed on the two Chrysler vehicles were significantly greater under cold start conditions, both in terms of catalyst light off temperature and the maximum temperature experienced. Therefore, the Chrysler cold start data were discarded, and not included in the data set used to construct a representative cold start temperature trace. (However, data collected from the Chryslers was used in constructing a catalyst temperature trace under hot soak conditions, since these data were unaffected by the cold start temperature issue.) For reference, a similar curve is presented in Figure 6 based on data collected from the Chrysler vehicles only. The equation contained in the figure shows an average maximum temperature of 1.579°F. As expected, the R2 value of 88.8% for this curve is significantly higher, due to consistency is catalytic system design. This R2 value provides solid evidence of the suitability of fitting a sigmoid curve to the data set. However, use of the same methodology as discussed above for the computation of an average light off temperature results in a temperature (800°F) in excess of that considered reasonable. It is believed that the air being injected into these catalysts to speed up light off is cooling the front biscuit, thereby masking the true start of the exothermic *eactions. LUBA NO. 94-211 - 28 - Exhibit No. 13 Page No. /,'Q G Figure 6 Catalyst Temperature vs. Time Correlation During 75 Degree FTP Cold Start (Two Chrysler Data Vehicle) 2000 1500- l m 1000 m - m a 4 500 _ 1,578.84 Temperature = [1 + e (2281 - 0.02760 ] 2 R . 88.8% 0 0 1 2 3 4 5 Time (minutes) Catalvst Efficiencv Curve -The equation displayed in Figure 5 can be used to construct a representative catalyst efficiency curve for the data set that declines with increasing efficiency, to create a normalized curve with the same,general shape as a start up emissions curve. The catalyst efficiency curve can be represented by the following equation: = K'[1 - 1 /(1 + e" (5) Catalyst efficiency = (p(o = K'- 1 K# where: K = normalization constant calculated by setting (p(t) equal to 1.0 and t equal to 0; r = rate of temperature increase; e = base of the natural logarithm; and a = constant of integration defining the position of the curve relative to the origin. This normalization is required to account for the fact that the catalyst temperature curve shown in Figure 5 does not begin at a temperature of zero at t (time) = 0, but rather at an elevated ambient temperature. The calculation of K is shown below: . K' [1 - 1/(1 + e(2.218-3.37x0))] = 1.0, or K'= 1.109 LUBA NO. 94-211 -29- Exhibit No. l - Page No. 1 q 3 Figure 7 presents the resulting catalyst efficiency curve, as calculated according to the equation displayed on the figure. The point corresponding to the average time of catalyst light off is also shown on Figure 7 as the point labeled "B". Point "A" equals zero catalyst efficiency and point "C" the point at which maximum efficiency occurs. Figure 7 can also be examined to assess the relative validity of the assumption that catalyst temperature can be used to approximate catalyst efficiency. Review of the "catalyst efficiency" curve (which is actually a trace of catalyst temperature) presented in Figure 7 shows a fairly rapid increase in efficiency centered around point "B", the light off point. In actuality, catalyst efficiency can be expected to rise even more rapidly from near zero at the light off point to maximum efficiency in a very short time period. Given the steepness of the "efficiency" curve presented in Figure 7, it appears that this curve provides a fair approximation of that efficiency behavior. Thus, the error introduced by the use of catalyst temperature as a surrogate for catalyst efficiency in this analysis is relatively minor, particularly when modeling time periods of three minutes or more after a cold start Starting Emissions Curves - The curve shown in Figure 7 can be used to estimate starting emissions for the current analysis. Initial catalyst efficiency at start up is assumed to decrease non-linearly from right to left starting at point "C" along the curve as soak (parking) time Figure 7 Catalyst "Efficiency" vs. Time 100 . C 80 rt Normalized Catalyst Efficiency = 0 1 - 1.109 [1 - 1/(1 + e^(2.218 - 3.37t)j so- B I W 40 - ( 20 - A ( .0 0 1 2 3 4 5 7 9 Time (minutes) Catalyst 'light-off, time (44 sec) indicated as vertical dotted line. LUBA NO. 94-211 -30- Exhibit No. /3 Page No. I qt y r increases. Start emission rates are assumed to increase at the same non-linear rate. This is counter to the manner in which ARB's and EPA's existing mobile source models treat start emissions (i.e., the assumption that all hot soaks of less than one hour would have the same start emissions, regardless of the actual period of soak). Instead, this methodology is based on the presumption that "warm start" emissions are better represented by a matter of degree, ranging from a value equal to emissions generated from a cold start (at point "A") to a hot start emissions value (at point "C"), depending upon the point at which the start falls on the curve presented in Figure 7. Based on these assumptions, the equation displayed in Figure 7 can be used to create a series of starting emissions curves, for CO, HC and NOx. This is done by first integrating the equation to determine the area under the curve. The following integral form can be used for this purpose: dx X = In eX X 1+e 1+e (6) This derivation is performed over 505 seconds (8.42 minutes), corresponding to the length of . time for each of Bags 1 and 3. The area under the curve cp(t) would then be calculated as follows: e.42 K [ 1 - 1 a-n, dt = K 8.42 - K 8.42 dt 0 1+ e 0dt 0 1+ ea-n (7) where: K = maximum temperature reached by the biscuit; r = rate of temperature increase; e = base of the natural logarithm; and a = constant of integration defining the position of the curve relative to the origin. The first term in this equation can be solved thusly: 8.42 K dk = W (8.42-0) = 8.42K o (8) The second term is solved as follows, by substitution, according to the integral form shown previously: Let x ='a-rt, then dx = -rdt, or dt = -dx/r, therefore: 8.42 8.42 K df - K dx - K [In a s-s•a2r - In e a a-rf a-rf a-8.42r a J 0 1 +e 0 1 +e r 1 +e 1 +e (g) LUBA NO. 94-211 -31- Exhibit No. / ; _ Page No. 1G-5 The values shown in Figure 5 for K, a, and r (which are 978'F, 2.22 and 0.056, respectively) can be substituted into each of the two terms, and the equation solved. The value of r must be expressed in terms of minutes in this calculation, rather than in seconds, so r would be equal to 0.0562 x 60, or 3.37 minutes. Solving this equation yields: First term = 8.42K= 8.42 x 978 = 8,230 °F- min K e 12.22-8.424.371 a 2.22 Second term In --In r 1+ e (2.22-8.424.37) 1+ e 2.22 978 978 [(-26.15) - (-0.103)] _ -7,556 °F - min 3.37 Total area of cp = 8,230 - 7,556 = 674 OF - min Because the curve is a surrogate for emissions performance during start conditions, the area under the curve represents the starting emissions increment for each pollutant To convert the efficiency curve into a series of emissions curves, emission units (in g/min) were assigned to the y axis for each pollutant and the cp function was rescaled from temperature to emissions for each pollutant. This was done by setting the area under each emissions curve equal to the proper cold start increment. Rather than using the incremental cold start emission factors available from EMFAC7E, Sierra believes that the proper method for computing these start increments would be to subtract Bag 3 from Bag 1 emissions. Since emissions in both bags are collected under identical driving cycles, this methodology would eliminate the effect of different engine loads on emissions. With Bag 1 emissions being collected under cold start conditions and Bag 3 after hot f start, this methodology would provide a more accurate estimate of incremental cold start emissions. To estimate total start emissions, each incremental cold start emissions curve was placed on top of the rectangular area representing an "average" emissions rate for a hot start (equal to the average Bag 3 emission rate (in g/min) over the 505 seconds of the hot start portion of the FTP) for that pollutant. The resulting curves thus equal the starting emission rates (hot + incremental cold start rates) at any given time. The equation for each of these curves can be described as follows: Total starting. emission rate = [cp(t) x F] + E (10) where: cp (t) = area under the catalyst efficiency curve; F = "scaling" factor converting the area under the cp curve from temperature-time to emissions; and E = Bag 3 emissions rate. For example, estimates of average 1991 CO emissions for the vehicle fleet modeled in this analysis include a Bag 1 minus Bag 3 "area" equal to 47.27 g, and a Bag 3 rate of 5.41 g/min. The final equation for total 1991 start CO emissions is therefore written as follows: LUBA NO. 94-211 -32- Exhibit No. Page No.> L CO emissions cp(t) X 47674.277grrams mini + 5.41 g/min = K (1 - 1 /(1 + e a-"] (0.0701) + 5.41 = (978T) (0.0701) ( 1 -1 /(1 + e a-rt ] + 541 =68.54(1 -1/0 -e(2.22-3.37n]+5.41 = 73.95 - 68.54/(1 + e 2.22-3.37t ) Resulting curves (labeled as IT curves") for CO, HC (ROG) Figure 11 and NOx (for 1991) are shown in Figures 8 -10, respectively. The point corresponding to catalyst light off is shown on each curve, as well as the average idle emission rate, as calculated in section 4.3.1. As explained below, both these data are required to calculate actual start emissions from the curves for a start up after a given hot soak period. Similar curves were also generated for each pollutant for calendar year 2000. Calculation of Catalyst Efficiency - The first piece of information required to calculate emissions for a given start is the determination of what point on each of the E curves presented above represents that start This point can be identified by calculation of the initial catalyst efficiency for Figure 8 Starting CO Emissions (g/min) Calendar Year 1991 80 , ECW" 70 - 60 Bsp 5o - 40+ o 30 W 20-;- 10- 0 0 .5 1 1.5 2 2.5 3 3.5 4 4.5 5 Time (minutes) Catalyst -light-on• time (44 sec) indicated as vertical dotted line. LUBA NO. 94-211 -33- Exhibit No. /5 Page No. t a11 Figure 9 Starting ROG Emissions (g/min) Calendar Year 1991 6 E Curve 5- Sag 3 4- ' BEN 'e e 3 0 W 2- I 1 - 0-- 0 0.5 1.0 1.5 2.0 2.5 3.0 3.5 4.0 4.5 5.0 Time iminutes) Catalyst "light-off' time (44 sec) indicated as vertical dotted tine. Figure 10 Starting NOx Emissions (g/min) Calendar Year 1991 2.5 E Curry 2 Sag 7 O I O 1 - I W I 0.5 l 0 0 1.0 2.0 3.0 4.0 5.0 6.0 7.0 8.0 Time (minutes) Catalyst 'lrgnt-ott• time (aa sec) indicated as vertical dotted line. LUBA NO. 94-211 Exhibit No. 1 -34 ' Page No. P ?2' G the start. Accordingly, catalyst temperature data during the 10 minute FTP hot soak were obtained from the EPA data set. and used to construct a representative trace of temperature decay in the first catalyst biscuit during engine off conditions. The results of a regression analysis of the hot soak data are shown in Figure 11. The exponential curve presented in Figure 11 thus takes the form: Tsoak«=ae"/c+b (11) where: t = time (min); Toaak = soak temperature ('F); a = difference between the maximum and minimum temperatures; b = minimum temperature; and c = rate of temperature change. The constants a, b and c are equal to 826.3'F, 75.0'F and -716.1, respectively. Two constraints were placed on the curve; the maximum temperature was assumed to occur at t = 0, and the minimum temperature was assumed equal to 75'F (i.e., test cell temperature). An le value of Figure 11 Catalyst .Temperature vs. Time Correlation During 75 Degree FTP Hot Soak (Ten Data Vehicle Set) 900 . 800- Temperature = 826.25 e (t 2/-716.055) + 75 700- 0 m m 600- 500 500 m 400 Time to Catalyst _ R m Light Off = 20 minutes a 300 - E m -200- = 100 0 0 10 20 30 40 50 60 Time (minutes) LUBA NO. 94-211 -35- Exhibit No. /3_ Page No. t,Oq 16.4% was obtained when the data were fitted to the curve. This indicates a very poor degree of correlation among the data. Figure 12 presents a scatter diagram of the data (which have been normalized to reduce the effects of vehicle-to-vehicle variability in absolute catalyst temperatures) which demonstrates the read 1 for this poor correlation - a widening spread of data points over time. Both the scatter diagram presented in Figure 12 and the regression analysis graphically depicted in Figure 11 provide evidence of the result of two major flaws in the available data set. First, the size of the data set is insufficient either to determine the representativeness of the data to the overall in-use vehicle fleet or to disaggregate the data by manufacturer or other grouping. Second, the length of the hot soak period (i.e.,10 minutes) is very short relative both to the time required to drop below catalyst light off temperature (shown on Figure 11) and to the average soak time of vehicles modeled under the stop and eat in restaurant scenario. It is unknown whether additional data (for either a larger vehicle base or for a longer soak period) would reduce this degree of variability. However, at this time, these data represent the best available estimate of catalyst temperature decay over time after engine shut off. In addition, there are two other factors that tend to support, in a general sense, the shape and direction of the curve shown in Figure 11. These factors are as follows: Figure 12 Time vs. Normalized Temperature of First Catalyst Biscuit During FTP Hot Soak Period (Ten Data Vehicle Set) 1.2. • • 0.8- o • - - • A e ' 0.6 - n E ' Chrysler Points a 0.4- E 1 0.2 O Z 0 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Time Iminutesl LUBA NO. 94-211 -36- Exhibit No. /3 Page No. .0y0 1. A review of basic heat transfer physics supports the use of a curvilinear function to calculate the trend in temperature decay over time within the catalyst. Of the three potential heat transfer processes (e.g., conductive, convective and radiative). most of the monitored decline in temperature is believed to result from radiative cooling. The Stefan-Boltzman law states that the time rate of radiative heat flow of a perfect radiator (i.e.. a so-called "black body") is proportional to the 4th power of its absolute temperature. While the catalyst biscuits obviously cannot be considered black bodies, and the exact nature of the cooling processes is unknown. it is apparent that the temperature decay of the catalyst should occur in some curvilinear fashion. 2. A comparison of the curve shown in Figure 11 to temperature decay over time of soak. as measured at the catalvst inlet and outlet. provides support for using an exponential function to represent temperature decay in the biscuits. Figure 13 demonstrates this point. Figure 13 presents temperature data collected over the entire test cycle at all monitored temperature points. The data show that catalyst inlet and outlet temperatures during the 10 minute hot soak period (from 22 to 32 minutes after initial start up) appear to decay at an Figure 13 Catalyst Temperature on the FTP for Toyota Celica with New Catalyst (75 Degrees F) 1200 N 900- ;'nj~!`~~~r:.~T•.._.:,•:•:•... ''i~! Fast sisewt a 1 t~ 600- 1 j • • OWN ; ~ 1 iniat 300- mat Stag 7 Engine ShuVft Cdd &4" shutoff -.110, Met Soar i , stag Panda 0 0 10 20 30 40 s0 60 Time immute5l LUBA NO. 94-211 - 37 - Exhibit No. 1 Page No. c-DU exponential rate. However, it is clear that there is a "dampening" effect on the decay rate of the biscuit temperatures. It is believed that the major reason for this decreased decay rate is due to the composition of the materials used in the biscuits (i.e., they would "hold" the heat better). However, it is not clearly understood what other combination of factors may also be affecting the temperature decay rate in the biscuits. For these reasons, the curve shown in Figure 11 will be used to represent the relationship between parking time and catalyst temperature. The "range" (i.e., the Y-axis variation) of this curve can be normalized using the exponential part of the equation: Cs= a t& (12) where: CS = Y-axis variation of the soak curve (ranging from 1.0 at t = 0 to 0 at t = infinity for all negative values of c); and c = rate of temperature change. Presently, by definition, "hot start" exhaust emissions are based on a 10-minute shutdown period immediately before the restart. Therefore, the range of the soak curve was modeled not from 1.0 (at t= 0) to 0 (at t = infinity), but instead from CS, at t=10 minutes to 0 at t=infinity. *Solving for CS, Cs (10) = e 102 /c = e 1 o2 / (-716. 1) = 0.870 The "final" form of the soak curve, which accounts for the fact that a hot start represents a soak of 10 minutes or less, is given by the following equation: Csoak M = 0.870 e r /Gz (13) where the adjustment factor 0.870 represents the assumption that start emissions for all soak times of 10 minutes or less equal hot start emission levels. Catalyst efficiency at start up has been previously expressed in Equation (5) as follows: Catalyst efficiency = cp(O = K' - 1 e'a-rt = K'[1 - 1 /(1 + e r LUBA NO. 94-211 -38- Exhibit No. 1 Page No. a 0 34. r where: K' = normalization constant calculated by setting cp(t) equal to 1.0 and t equal to 0: r = rate of temperature increase: e = base of the natural logarithm: and a = constant of integration defining the position of the curve relative to the origin. This equation was used to describe emissions as: Estart (0 = KF C 1- 1 a-ft I +E 3 1 + e (14) where: K = maximum temperature reached by the biscuit; F = (Bag,-Bag3 area) /area of cp; r = rate of temperature increase; e = base of the natural logarithm; a = constant of integration defining the position of the curve relative to the origin; and E3 = Ba93 emissions (g/min). Similarly to the soak curve, the range of cp can be normalized as: 1 C l stan(o - 1- 1+ e a-rt (15) where: C'Swrr = Y-axis variation of the start curve (ranging from 0.902 at t = 0 to 0 at t = infinity for all positive values of r); and r = rate of temperature increase; e = base of the natural logarithm; and a = constant of integration defining the position of the curve relative to the origin. This equation can also be normalized to range from 1.0 to 0, by dividing by (0.902) [1 - 1 / (1 +ea) J . The resulting equation, as shown below, calculates the range of the curve identical to the catalyst efficiency curve previously presented in Figure 7. Cstan(tl = 1 L 1- 1 a-rt C 0.902 l+e The X-axis points on the start curve can then be translated from the soak curve using the normalized forms Cso,,k and cs., described above, assuming that the point on the Et. curve is accurately represented by the "equivalent" relative temperature or catalyst "efficiency" on the LUBA NO. 94-211 -39- Exhibit No. V~o 3- Page No. 5) Csoa curve. For example, for a 15-minute soak, Csoak (15) = 0.73 (e.g., the catalyst temperature is 73% of its fully warmed temperature). This can be restated as the point where the catalyst temperature has dropped 27% from its warmed up value, and therefore the equivalent starting 0 point on the E.. curve would be set at 0.27 (27961) of its "range" from totally hot to fully cold. Mathematically, this relationship can be expressed as follows: i - Csoak - Cstart Because of this relationship, any position on the hot soak curve (i.e., length of parking time) can be translated into an equivalent point on each of the emissions curves by calculation of the applicable catalyst efficiency rate corresponding to the two points. Finally, it is necessary to modify this translation process to reflect the fact that all start emissions that occur after soak times of 10 minutes or less are considered "hot starts" under the standard test procedures used by EPA and ARB. This means that all parking times of 10 minutes or less are assumed to have a position on the "flat" portion (equal to the Bag 3 emission rate) of each of the starting emission curves (e.g., in Figures 8 -10), and to have starting emissions rates equal to the Bag 3 rates. Exhaust Emissions Calculation - Once start up after a certain hot soak period has occurred, catalyst warm-up will again commence, along the same temperature path as detailed in Figure 7. Calculation of actual exhaust emissions from the emission rate curves contained in Figures 8 -10 Ofor such a start up must therefore account for constantly changing emission rates due to both increases in catalyst efficiency and variations in engine load (if the vehicle is driven under varying load conditions). Because engine load can be highly variable and have a dramatic effect on emission rates, the following two simplifying assumptions were used to allow the use of the emission rate curves derived above: 1. It was assumed that the idle emission rates calculated in section 4.3.1 are valid for all engine operations that occur on the premises of the drive-thru facilities being analyzed. This assumption is based on the extremely low vehicle speeds and engine loads that would be experienced on-site at the facilities. 2. It was assumed that, for the purpose of calculating the "incremental" start emissions that occur after vehicle restarts at convenience restaurants, the average driving cycle of all such vehicles is equal to the cycle used during the Bag 1 and 3 portions of the Fl? (i.e., the LA4), and that the baseline emissions rate (in g/mile) for all vehicles leaving such restaurants is based on the Bag 3 driving cycle. Using these two assumptions allows the calculation of start emissions for two distinct modeling domains: on-premises only and the portion of the trip after exiting from the restaurant whose e 0 missions are affected by the type of facility. The methodologies for each of these calculations are presented on the next page. LUBA NO. 94-211 -40- - Exhibit No. 13 Page No. -2~k- r On-Premises Emissions - Because all on-site emissions are assumed to occur at the same rate as at idle. it is possible to calculate incremental start emissions as a percentage of idle emissions for each point on the emission rate curves. Using this methodology, the start up point on the rate curves would be determined by the time difference between hot soak and light off times, as discussed above. The actual incremental start emission rate at start up for each pollutant would be calculated according to the following equation (with all emission rates in grams per minute): ER (ER i nt - ER3) x ERat ER3 .d where: ERat = initial incremental start emission rate at time t; El~int = emission rate predicted by the emission curve for that particular point; ER3 = average Bag 3 emission rate; and End = idle emission rate. To calculate the total incremental start emissions occurring on-premises for a given hot soak period, areas under each emission rate curve are first computed. The bounds of these areas would be set by the start up point identified on each curve (left bounds) and a point (right bounds) to the right of the first point equivalent to the time required to exit the premises. Similar to the methodology described above, the same function of proportionality (only using the two-dimensional areas under the curve rather than one-dimensional emission rates) is then used to calculate total incremental start emissions (in grams) for the period of time the vehicle remains on the premises. Total incremental on-site start emissions for each pollutant would thus be calculated according to the following equation (with all emission rates in grams) : (Eat- Ea3l Einc = E x Eaid a3 where: Einc = total on-premises incremental start emissions; Eat = total area under the emission rate curve between the start up point and the site exit point; Ea3 = Bag 3 emissions for that period (i.e., ER3 x time remaining on premises after start up); and Eai = ER;d x time remaining on premises after start up. 1 The incremental emissions must then be added to total baseline (i.e., idle rate) emissions to compute total on-site emissions, as shown in the following equation: LUBA NO. 94-211 -41- Exhibit No. Page No. X05 Et.5 = (Enid X 6) + Einc where: is Ets = total on-site emissions (in grams); ERid = idle emission rate (in gpm); tso = time (in minutes) of engine-on operation on the site: and Ei= = total on-premises incremental start emissions. This equation can be used to calculate total on-premises emissions from a single average vehicle, or multiplied by the total number of vehicles visiting the site on an average day to obtain total vehicular emissions. For vehicles utilizing drive-thru service, the second term in the equation (i.e., Ein,) would drop off, since no start ups would occur at the facility. Total Trim Emissions - Total trip emissions for visits to convenience restaurants can be disaggregated into three categories: drive-to, on-site and drive-from. This analysis is complicated by the fact that. as previously discussed, the methodology utilized by EMFAC7E cannot accurately calculate emissions from short trips. However, the type of convenience restaurant service would not affect the magnitude of emissions generated while enroute to the facility. Because of this. "drive-to" emissions can be simply ignored for this comparison, since these emissions are independent of the type of restaurant service (i.e., they are identical for all types). "Drive-from" emissions would be affected by the type of service patronized, due to resulting .differences in the degree of engine warm up that would occur prior to exiting the site. To account for the effect of these differences, emissions were calculated similarly to the method detailed previously (i.e., taking the area under the emission rate curves) for on-premises emissions. However, there were several changes made to that methodology for this modeling domain. For computation of total exit trip emissions, the left bounds of this area was set equal to the exit point from the site (as determined by moving toward the right along the curves from the start up point identified on each curve for a time equivalent to that required to reach the exit). The right bounds was set equal to the point equivalent to the time required to complete the assumed length of trip (set equal to 2 miles, based on the results of the survey of restaurant owners conducted as part of the current analysis) - This time tdf was computed according to the following equation: t is x m _ 505 sec x 2miles x ~ me = 4.69 min m3 df 3.59 mi 60 sec where: td f = travel time from the restaurant; t3 = length of time for the Bag 3 portion of the FTP; M3 = total Bag 3 mileage; and mdf = assumed trip length of vehicles exiting the site. LUBA NO. 94-211 -42. Exhibit No. 13 Page No. A major difference from the on-premises calculation method was the assumption that vehicles exiting the site would be better modeled using the Bag 3 emissions rate, rather than the idle mass emissions rate. as the baseline emissions rate. This change was made to account for the increased load conditions that would be encountered by a vehicle after exiting the site onto the urban transportation network. This makes the simplifying assumption used in the on-premises modeling effort (i.e., all engine-on emission rates assumed to equal the mass idle emissions rate) unacceptable for use in this larger modeling domain. The methodology used to model emissions from the drive-from trip was therefore changed slightly from that detailed above for the on-premises emissions. To calculate total vehicle drive-from emissions for vehicles restarting at the restaurant, the ratio of the total area under the curve divided by the Bag 3 area (ESt/Ea3) for the segment of the curves representing the drive-from portion of the trip was multiplied by total Bag 3 emissions for those segments (i.e., Ea). The mathematical form of this computation can be expressed by the following equation: Est ERS = Ea3 x ERa3 = Est where: ERS = total drive-from trip emissions for restarting vehicles; Est = total area under the emission rate curve between the exit point from the site and trip completion; and Ea3 = total Bag 3 emissions for that period. Therefore, total drive-from emissions for vehicles restarting at the restaurant can be computed as simply the sum of the area under each emissions curve for the drive-from period. For vehicles using the drive-thru windows, drive-from emissions were assumed equal to the average Bag 3 emission rates multiplied by the period of time from the point of exiting the premises to the end of the trip, since these vehicles are assumed to be operating in a fully stabilized (i.e., warmed up) emissions mode. This computation can be expressed as follows: EDT = ER3 X tdf where: EDT = total drive-from trip emissions for drive-thru vehicles; ER3 = average Bag 3 emission rate (in gpm); and td= travel time from the restaurant (in minutes). • The remaining emissions included in total trip emissions for both categories of vehicles (drive-thru and restarting) are those produced at the site itself. This would include vehicles idling at drive-thru service window queues, as well as emissions from vehicles utilizing all three types of restaurant services, as they move around the site itself. LUBA NO. 94-211 -43- Exhibit No. 1 ~ Page No. These emissions have previously been quantified under the on-premises modeling domain, by simply multiplying the idle mass emission rates by the period of engine-on operation at the site. 0 In summary, total relevant trip exhaust emissions (including travel from, but not to, the facility) can be calculated as follows: EFF = on-site + drive-from emissions Thus, for restarting vehicles, total trip emissions are: EMS = Ets + ERS = [(ERid x tao) + Einc I + [Est = (ER;d x tao) + (Est x E Eaid) +E st ' a3 = (ERid x tao) + (Esr x ER ER;d) + Est, 3 where: ETRS = total trip emissions for restarting vehicles; Ets = total on-site emissions; ERS = total drive-from trip emissions for restarting vehicles; El,d = idle emission rate; tao = time of engine-on operation on the site; Einc = total on-premises incremental start emissions; Est = total area under the emission rate curve between the start up point and the site exit point; Eaid = idle emissions between the start up point and the exit point; Ea3 = Bag 3 emissions between the start up point and the exit point; ER3 = average Bag 3 emission rate; and Est. = total area under the emission rate curve between the exit point from the site and trip completion. Similarly, for drive-thru vehicles, total trip emissions can be computed according to the following equation: ETDT = Ets + EDT (ERid x tao) + Einc ] + [ER3 x tdf ] =(ER,dxtao)+(ER3xtdf) LUBA NO. 94211 -44- Exhibit No. Page No. where: EMT = total trip emissions for drive-thru vehicles; ETS = total on-site emissions; EDT = total drive-from trip emissions for drive-thru vehicles: Elid = idle emission rate; tao = time of engine-on operation on the site; Einc = total on-premises incremental start emissions (equal to 0 for drive-thru vehicles); ER3 = average Bag 3 emission rate, and tdf = travel time from the restaurant. 4.4 Modeling of Evaporative Emissions As mentioned previously, available EMFAC7E hot soak emission factors are based on a standard 1-hour soak time, and must therefore be adjusted when analyzing the emissions effect of varying periods of soak times. Sierra's review of available documentation regarding the development of the EMFAC hot soak emission factors revealed only one short summary table of correction factors for varying soak periods supposedly used by ARB in developing the 1-hour EMFAC emission factor. This table, which is reproduced below as Table 4, is contained in documentation supporting a separate emissions model, DTIM. DTIM was developed by Caltrans to combine detailed emission factors and area and date-specific vehicle projections from the EMFAC/BURDEN model package with link-specific data provided in a standard transportation model-related format. ARB staff was contacted regarding the validity of these data, but were not able to provide additional information on their source or accuracy. Table 4 ARB Hot Soak Emission Correction Factors (Expressed as % of the 1-Hour EMFAC7E Emission Factor) Time (min) Percent M 0 0 .30 70 60 100 120+ 130 To develop emission rates for other periods of hot soak less than one hour, a regression analysis was performed on the data listed in Table 4. Almost perfect correlation (r~ = 0.99) was achieved when the data were fitted to a power curve function. However, because Sierra was unable to determine the source or accuracy of these data points, ARB staff was approached regarding available real time hot soak emission test data. Upon referral to General Motors, Sierra was able to obtain a substantial data set of real time hot soak evaporative emissions data, including test data from 2.037 GM vehicles. The minute-by-minute means of these data were normalized to 100% -1 hour, to provide an analytically based temporal correction curve for the EMFAC emission factors. Table 5 presents a summary of the GM-based correction factors. LUBA NO. 94-211 -45- Exhibit No. 1:5 - Page No. (-'4 Table 5 Hot Soak Emission Correction Factors Based on GM Data (Expressed as % of the EMFAC7E Emission Factor) • Time (min) Percent M 0 0 10 30.0 20 51.2 30 68.1 40 82.2 50 93.8 60 100.0 A comparison of the data contained in Tables 4 and 5 shows fairly reasonable correlation between the two data sets. Both sets show that the 30-minute emission rate is.projected to equal approximately 70% of the total hourly EMFAC7E rate, although the steepness of the curve is less pronounced for the GM data Because the second set of correction factors is based on actual test data, a decision was made to use that set for the current analysis. _ These correction factors were used to factor the 1-hour EMFAC7E hot soak rate for the hot soak periods of analysis. For example, use of EMFAC7E produces a hot soak ROG emissions rate of 2.30 g/trip for the 1991 LDV/LDT fleet in LA County. (The current analysis assumes that vehicles arriving at convenience restaurant facilities will be comprised entirely of passenger cars [i.e., light-duty vehicles, or LDV] and light-duty trucks [LDT], on a VMT weighted basis.) Use of the correction factor shown in Table 5 would provide an estimate that a vehicle parked for 20 minutes prior to restart would emit 51.2% of that rate, or 1.18 grams of ROG as a result of the restart For the year 2000, the same set of correction factors was used to factor the 1-hour EMFAC7E hot soak rate for that year. As with the calculation of exhaust emissions, the use of 7.8 RVP fuel was assumed for the year 2000. 4.4.1 Running Loss Emissions As discussed in section 4.1, there is another category of evaporative emissions that must also be accounted for in the current analysis. Emission rates for these running loss emissions can be obtained from EMFAC7E, where they are expressed in terms of grams per mile. EMFAC7E's basic running loss emission rates are based on 47 vehicles tested in a special EPA running loss project. Review of documentation10 supporting EMFAC7E reveals that the actual data used to generate the running loss emission factors included in the model were normalized to an average vehicle speed of 22.5 mph. According to the model documentation, EMFAC's 22.5 mph emission LUBA NO. 94-211 -46- Extdbit No. i --t~ Page No. 8 ? 0 r factors can be converted to per unit time basis through use of the following equation: ERet = ERe22.5 x 22.5 mph x 1 hr/60 min x c where: EReL = evaporative running loss emission rate (in g/min); ERe22.5 = emission rate in g/mi at 22.5 mph; and c = speed correction factor. To convert the 22.5 mph emission rate into an idle emissions rate requires the use of a speed correction factor of 1.90. Thus, the resulting equation becomes: ERe$1 = 0.7125 ERe22.5 where: EReS1= evaporative running loss emission rate at idle (in g/min); and ER,22.5 = emission rate in g/mi at 22.5 mph. The basis for this speed correction factor is the availability of running loss emissions data from a limited subset of the EPA test vehicles which were tested on the New York City Cycle (NYCC) and the Highway Fuel Economy Test (HFED. Because these two test cycles have different average speeds (7 mph for the NYCC and 50 mph for the HFET) than the 1A4, ARB used the differences in emissions between the cycles to develop the EMFAC7E speed correction factors. However, Sierra questions the validity of this methodology for two reasons. Fast, in addition to differences in average speeds, the three test cycles also vary significantly in modal splits (e.g., engine loadings and periods of idle). Assigning the entire emissions differences between the cycles to variance in average vehicle speeds appears to be of questionable validity. (EPA apparently recognized this concern, since a "bag correction factor", rather than a speed correction factor, was incorporated into MOBILE4 to account for the differences between test cycle results.) Second, the EPA data base has extreme vehicle-to-vehicle variability. (The reasons for this variability are discussed in greater detail in the next section of this analysis.) The degree of this variability is sufficient to result in a near bimodal distribution of emissions within the data set, representing vehicles in the set identified by ARB in the EMFAC7E documentation as "normals" or "high-emitters." Due to this distribution, it appears that an insufficient number of data vehicles were tested on the NYCC and HFET cycles to ensure statistically significant results. Thus, the differences in emissions identified between the test cycles may actually be due to the distribution of normals and high-emitters tested under each cycle, and not to any vehicle speed effect LUBA NO. 94-211 -47- EAMbit No. 3 Page No.. Sierra was unable to identify quantitative data that confirmed the validity of the above methodology for conversion of the 22.5 mph running loss emission rates contained in EMFAC7E into per unit time idle emission factors. Therefore, a review was undertaken of both the original EPA data set and any additional available data that could be used to develop an independent estimate of running losses at idle. Additional ARB Running Loss Data - A limited amount of additional running loss emissions data collected as part of ARB's technical analysis in support of recent revisions to their evaporative test procedures was supplied to Sierra by ARB11. These data consisted of both mass emission (for each bag) and concentration (continuously recorded on strip charts) data for three separate late-model vehicles that were each subjected to three consecutive IA4's. These data were collected for separate SHED test cycles run at both 95'F and 105'F, using 9.0 RVP fuel. Sierra's analysis of these limited data resulted in the following conclusions: 1. At 95°F, instantaneous running loss emissions appear to be relatively independent of engine load or vehicle speed (over the LA4). Review of the strip.chart data, particularly during the idle periods of the LA4, did not reveal any indication of a significant increase in the concentration of running loss emissions within the SHED during those periods. The data do not support the need to use a speed correction factor in the development of an idle running loss emission rate. Thus, in the absence of better available data, the most valid approach to development of an idle emissions rate appears to be to simply use the average emission rate for the test cycle (computed by dividing total mass emissions by the length of the test period). 2. Actual running loss emissions from the vehicles tested were considerably lower than the running loss emission factors contained in EMFAC7E. It is believed that a partial cause of this difference is related to the age and emissions performance of the three test vehicles. In addition to the vehicle-to-vehicle variability issue noted above, the EPA data used to construct the running loss emissions modeling methodologies contained in EMFAC7E and MOBILE4 show significantly lower emission rates for 1983 and newer model year vehicles. Based on these conclusions, it was decided to develop a per unit time idle running loss emission rate independent of the EMFAC7E factors, by simply dividing the sum of the mass emissions collected during the test cycle (e.g., the 3 LA4's) by the total test time. These data for the ARB test vehicles, and the resulting average emission rate, are presented'in Table 6. LU13A NO. 94-211 ExhIM No. - 48- Page No. • " Table 6 Running Loss Emission Rates (For 9.0 RVP Fuel at 95'F) Emisions/Test Segment (grams) Cumulative Emission Vehicle* Bag 1 Bag 2 Bag 3 Bag 4 Bag 5 Bag 6 Emissions Rate (g/min) 1989 Ford Probe 0.19 0.29 0.19 0.24 0.21 0.21 1.34 0.0195 1989 Nissan Sentra 0.21 0.37 0.26 0.42 0.26 0.37 1.90 0.0277 Average 0.20 0.33 0.23 0.33 0.24 0.29 1.62 0.0236 *Mass emission data were available for only two of the three test vehicles. There are several factors that affect the degree to which these data are representative of the existing vehicle fleet operations at convenience restaurant facilities. As discussed above, running losses from late-model vehicles are believed to be considerably lower than earlier model years. The question of vehicle-to-vehicle variability would also have a significant impact on this issue. In 1989, Sierra conducted an analysis of the test data used by EPA to construct the running loss module of MOBILE4 for the U.S. Congressional Office of Technology Assessment (OTA)12. As part of that review, Sierra calculated that the average running loss (a rate of 0.06 g/mile) from a four-vehicle subset of the EPA data set for 1981 and later models was over 90% lower than the overall average of 0.76 g/mile at 95'F for 9.0 RVP fuel. Sierra concluded that this 0.06 g/mile rate was a conservatively high emission factor for late. model vehicles if control strategies (such as a properly designed I/M program) were implemented to reduce such emissions. It was also concluded that, for such clean vehicles, running loss emissions would be only 0.03 g/mile in the 72-90'F operating range. It appears that the two ARB test vehicles fall into this clean (or "normal") vehicle category. Based on the above discussion, it appears that the following factors will substantially influence both current and future running loss emissions: 1. Vehicle-to-vehicle variability. This is partially caused by differences in exhaust • system and fuel tank design and location which result in highly variable rates of heat transfer from the exhaust system and roadway to the fuel tank. Regulation of running loss emissions would cause heat source/fuel tank proximity to become a design constraint, leading to a substantial reduction in overall running loss emissions from the regulated vehicle fleet. LUBA NO. 94-211 Fxhlblt No. 13 -49- Page No. a 2. Future regulation of running losses. ARB has adopted a running loss emission standard of 0.05 g/mile over a standard evaporative emissions test cycle of three consecutive LA4's, conducted at 1057, which will begin to be phased in with the 1995 model year. This will cause a dramatic improvement in future year running losses. 3. Ambient temperature. The data contained in Table 6 were collected at 95'F. As indicated by the prior Sierra analysis, it can be expected that running losses during average temperatures experienced in the study area (e.g., in Los Angeles) would be approximately 50% of the 95'F emission rates. 4. Vehicle fleet mix. Based on the limited data available, it appears that late model vehicles have substantially lower average running loss emissions than older vehicles. Thus, the age distribution of vehicles patronizing convenience restaurants would have a significant effect on average emission rates at these facilities. 5. Fuel RVP. Available data also demonstrate a strong correlation between lower fuel RVP and reduced running loss emissions. This effect will have a major impact on the projections of running loss emissions for the year 2000, due to the use of 7.8 RVP fuel by that time. Sierra's review of the EPA data led to the conclusion that running loss emissions will be reduced by 50% as a result of the change from 9.0 to 7.8 RVP fuel. *l7he net result of these factors appears to be contradictory for the current (1991) analysis year. The average emission rate presented in Table 6 is based on data collected from two late-model vehicles. Use of this emissions rate to represent all current vehicle operations at convenience restaurants would lead to a downward bias in the results, due to higher actual emission rates for older model vehicles. Because of vehicle-to-vehicle variability, it appears that these data are not even representative of late model vehicles in general. However, the fact that these data were collected at 95'F would bias the emission rate shown in Table 6 upwards by about 50%. when compared to actual average operating temperatures in the study area. Because of the contradictory nature of these trends, it was not deemed acceptable to use the Table 6 running loss rate for the 1991 analysis scenario. Instead, a decision was made to simply drop the speed correction factor incorporated into EMFAC7E for the reasons stated previously. This allows the use of the larger, more representative EPA test vehicle data set, but eliminates the concern over the validity of correcting for vehicle speed. Based on these data, the resulting 1991 runningbloss emission factor equals 0.0935 g/Min. Calendar Year 2000 Emission Rates - The use of the ARB two-vehicle data set to represent the calendar year 2000 analysis scenario is much clearer. Vehicle fleet turnover, coupled with the advent of ARB's stringent running loss emission standard, will greatly reduce average running LUBA NO. 94-211 -50- Exhibit No. 13 Page No. - Q► g I losses from the vehicle fleet in operation in the year 2000. As a result, it is believed that use of the Table 6 emission rate provides a conservatively high estimate of running loss emissions in that vear. In addition, this rate must also be adjusted downward to account for the change in fuel RVP, from 9.0 to 7.8 psi. The resulting running loss emission factor of 0.0118 g/min for the year 2000 is considered to be a conservatively high estimate due to the fact that it is based on data collected at 957. For the on-premises emission analysis, the resulting per minute emission factor for each scenario was multiplied by the number of minutes of engine-on operation for each modeled scenario, in order to calculate total on-site running loss emissions. For the analysis of total trip emissions, running loss emissions from travel exiting from the facilities were based on the same modeling assumptions as identified in section 4.3.3 (i.e., a trip length of 2 miles from the restaurant, at the average vehicle speed contained in the IrA4 for Bag 3). This allowed computation of total travel time in the drive-from segment, which was then multiplied by the per minute emission factor. LUBA NO. 94-211 _51- Exhibit No. I I Page No. Q 15 5. VEHICLE OPERATIONS AT CONVENIENCE RESTAURANTS The previous section described the methodology used to model vehicle emissions at convenience restaurants. This section contains a description of the scenarios evaluated in the analysis, and of the methodology used to portray the different vehicle operating modes for each scenario. The first step in beginning this assessment was to select the most appropriate scenarios for . analysis. Review of convenience restaurant operations revealed that there are three basic types of service offered: stop and eat in, stop and take-out, and drive-thru. Depending upon the facility, a convenience restaurant usually offers a combination of at least the first two, and often all three, types of service. While the first two types are fairly similar (e.g., they both require the customer to park and enter the restaurant), substantial differences in average parking times were expected to result in significant differences in emissions produced by the two types of activities. In addition, it was believed that there would be even greater differences in emissions from drive-thru facilities relative to the other two types. Therefore, a decision was made to model emissions from an "average trip" to each of the three service types. Current (1991) and future (2000) analysis years were selected to provide an assessment of (1) current differences in emissions between the three service categories, and (2) the effect of future emission trends on these differences. The analysis covered two separately defined domains: on-premises vehicle operations, and a second. larger domain that includes the vehicle trip made after exiting the restaurant. to capture continuing vehicle restart impacts. It was also concluded that the analysis should include an evaluation of the emissions impact of both "off-peak" and "peak" hour visits for each type of service. The results for both types of visits would then be used to project average daily emissions at a typical convenience restaurant. LUBA NO. 94-211 -52- Exhibit No. , Page No. I h r The modeling scenarios and domains evaluated in the current study are as follows: • Types of Service - Drive-thru - Stop and take out - Stop and eat in • Analvsis Years - 1991 - 2000 • Modeling Domains - On-premises - Entire trip • Time of Visit - Off-peak - Peak hour • Status of Drive-Thru Windows - Current - Prohibited A total of 24 separate evaluations (3 service types x 2 analysis years x 2 modeling domains x 2 times of visits) were conducted for this analysis. Four daily emission scenarios (with and without a drive-thru prohibition for both calendar year 1991 and the year 2000) were also evaluated. 5.1 Collection and Analvsis of Representative Data To collect representative data regarding typical levels of activity at convenience restaurants, a survey was conducted of quick service restaurant owners in Los Angeles during the spring of 1991. The seven replies received accounted for activity levels at over 1,400 such restaurants in the LA area. Table 7 provides a summary of pertinent data that were obtained from the survey results. Driving Cvcle Selection Basedon the data contained in Table 7, it is possible to construct representative driving cycles (or modes of vehicle operation) for each of 12 model/domain scenarios (3 service types x 2 modeling domains x 2 times of visit) discussed previously. Table 8 shows the average time-in-mode for each scenario for five specific modes of operation: drive-on (time to enter the site and either park or pull into the drive-thru waiting. queue), engine idle, engine-off, drive-off and drive-from. LUBA NO. 94-211 -53- Exhibit No.. 13 Page No. chi'? Table 7 Summary of Results from Survey of Quick Service Restaurant Owners Time Study Information Time (min) Drive Thru Take Out Eat In Activity Off Peak Peak Off Peak Peak Off Peak Peak Queuing Counter n/a n/a 5.17 3.78 5.17 3.78 Lane 4.09 3.25 n/a n/a n/a n/a Eating n/a n/a n/a n/a 22.84 22.84 Activity Level and Trip Information Percent of Orders M Aver. Daily Distance to Veh./Facility Drive Thru Eat In Take Out Facility Weighted Average 1,000- 44.9 24.6 30.5 1-2 miles Table 8 Time-In-Mode for Each Model/Domain Scenario Evaluated (in minutes) Mode of Drive-thru Take-out Eat in Operation Off Peak Peak Off Peak Peak Off Peak Peak Drive-on* 0.5 0.5 0.5 0.5 0.5 0.5 Engine idle* 4.09 3.25 -0- -0- -0- -0- Engine-off* -0- -0- 5.17 3.78 28.01 26.62 Drive-off* 0.5 0.5 0.5 0.5 0.5 0.5 Drive-from* ; 4.69 4.69 4.69 4.69 4.69 4.69 * The times shown for these modes apply to both modeling domains. This mode of operation is only relevant to the total vehicle trip. LUBA NO. 94-211 -54- Exhibit No. 3 Page No. a 13 6. RELATIVE EMISSIONS ANALYSIS The data collected in the survey of convenience restaurants in the Los Angeles area, and presented in Tables 7 and 8 were combined with the emissions modeling methodology detailed in section 4 to generate a series of emissions estimates related to the issue of emissions from drive-thru service windows relative to the other type of services (e.g., take-out and eat in services) available at the restaurants. The results of the relative analyses are presented in this section. Thev are divided into three levels of analysis, and build on one another to ultimately quantify the expected effect on emissions from the adoption of a prohibition on drive-thru service windows. In addition to the data presented in this section, Appendix A contains more detailed computations. 6.1 Average On-Site Vehicle Emissions The first level of analysis is a comparison of on-site emissions resulting from an "average" vehicle trip to each of the three types of restaurant operations: stop and eat-in, stop and take-out and drive-thru service. Figure 14 provides the results of this "per trip" analysis for ROG emissions. This figure shows on-site per trip emission estimates for average and peak hour queue times in both 1991 and the year 2000. The data presented indicate that, for the two analysis years, per trip emissions from both drive-thru and take-out service are estimated to be considerably less than eat in emissions, for both average and peak hour queue times. Average and peak hour take-out emissions are roughly equivalent to drive-thru emissions in 1991, but significantly more (by 2-3 times) in the year 2000. Examination of the distribution of ROG emissions by operating mode, as shown in Figure 15 for the 1991 data, reveals that this emissions gradation is caused by two separate effects. 1. Generally, both off-peak and peak hour engine-off periods during take-out service are short enough to result in very low starting exhaust emissions. Although there are considerably longer engine-off periods associated with eat in service than with take-out operations, the starting exhaust emissions remain below the extended idle emissions resulting from the two drive-thm scenarios. • LUBA NO. 94-211 _55- Exhibit No. 13 Page No. a q Figure 14 On-Site ROG Emissions by Scenario S 2- Drive Thru 1.66 Take-Out Eaton 1.5 N C N y 1 0.86 0.83 N E 1 i , `U 0.59 111--0.51 0,49 0 .5 0.41 0.23 ; 0.18: _ 0.1 0.09 1991 Ott Peak 1991 Peak Hour 2000 Ott Peak 2000 Peak Hour Scenario Figure 15 On-Site ROG Emissions by Scenario and Mode - Calendar Year 1991 2 E:must Running Evan. 1.66 1.60 0 Hot Soak Evap. E .1.5~ 0.59 w OSt 0.49 . z ms .41 _ 0.5 O DrW*4hru Tab Out Eat in Drive-thru Tab Out Eat In Off Peak Peak Hour LUBA NO. 94-211 -56- Exhibit No. I Page No. a o 2. The hot soak emissions for eat in scenarios are much higher (by a factor of 3) than the drive-thru running loss emissions. However, the period of soak during take-out service operations is sufficiently short to keep take-out evaporative emissions (running losses + hot soak emissions) at approximately the same level as drive-dum running loss emissions. It is obvious from Figure 15 that, for the on-site modeling domain, evaporative emissions account for the large majority of total 1991 ROG emissions (about 80% of average drive-thru emissions and 95% of average take-out emissions), thus greatly influencing the relative magnitude of overall emissions for each scenario. Figure 16 provides a distribution of ROG emissions for the year 2000. Examination of the data contained in this figure shows that emissions in all categories are projected to decrease substantially from 1991 levels. However, this decrease is not expected to be proportional- across all categories, with the hot soak emission rate (down 47%) projected to decrease less than either the idle exhaust (down 59%) or running loss emissions rates (down 86%). Therefore, Figure 16 demonstrates that estimated drive-thru emissions are expected to drop significantly below take-out emissions (and even further below eat in emissions) as running loss rates shrink at a faster projected rate than hot soak emission rates. By the year 2000, the disproportionate changes in the various types of ROG emissions are estimated to result in average drive-thru emissions equal to 45 - 50% of average take-out emissions and 11-12% of average eat in emissions. Figure 16 On-Site ROG Emissions by Scenario and Mode - Calendar Year 2000 2 I r- I Exhaust Rummnq Evap. i N I I Not Sou Evap. i E N _ C O ~ H 0.86 0.83 I w 0.5 0.23 0.18 i I 0.10 0.09 0 Drlw-thru Take Out Eat In DrWrttuu Take Out Eat In Off Peak Peak Hour LUBA NO. 94-211 -57- Exhibit No. 13 Page No. as As shown in Figures 17 and 18, CO and NOx emissions are affected quite differently by the three types of convenience restaurant service. For CO, it is clear from Figure 17 that extended idle emissions during drive-thru are much higher than starting emissions occurring after short engine-off periods. However, the figure also indicates a substantial increase in CO emissions under cold (or near-cold) start conditions resulting from extended soak periods during eat-in operations. This increase acts to raise total on-site eat-in CO emissions to a level much closer to that of drive-thru emissions. Figure 18 shows that drive-thru NOx emissions, on the other hand, are much higher than either take-out or eat in emissions. This is due to the fact that NOx emissions are not as sensitive to cold start effects or the length of the hot soak period. Thus, NOx emitted under extended idle in the drive-thru service lanes dominates the relative comparison between the three restaurant scenarios presented in Figure 18. All of these NOx levels are extremely small, however. 6.2 Average Total Trim Vehicle Emissions The next level of analysis involves the modeling of emissions from the entire vehicle trip (including travel from the restaurant) for each scenario. Figures 19 - 23 present data similar to those shown in Figures 14 -18, except for total trip rather than site-only emissions. Figures 19 and 20 present a breakdown of total trip ROG emissions in 1991 and 2000, respectively, for each scenario. These figures reveal that, when drive-from emissions are included in the modeling domain, exhaust rather than evaporative emissions tend to dominate the domain. This results in a significant narrowing of the percentage difference in emissions between the drive-thru and take-out scenarios. Average 1991 drive-thru ROG emissions for the total trip are less than 3% higher than take-out emissions. Eat-in emissions for the total trip remain much higher than from either of the other two scenarios, due to the contribution from hot soak evaporative emissions previously mentioned during the discussion of on-site emissions as well as elevated starting exhaust emissions resulting from the extended soak period occurring prior. to restart. For the year 2000, average take-out emissions from the total trip are projected to be about 10% higher than average drive-thru emissions. Average eat in emissions for the total trip are projected to be about double drive-thru emissions. Figure 21 provides a summary of total trip ROG emissions for both analysis years, 1991 and 2000. Although the absolute differences in emissions shown in Figure 21 between the take-out and drive-thru scenarios are identical to those presented in Figure 14, it can be seen that the relative differences are much less significant when considered over the total trip. While these differences are still significant, particularly at the lower overall emission levels projected for the year 2000, the 0.1- 0.2 gram difference between projected drive-thru and take-out total trip emissions in 2000 may be largely due to uncertainties resulting from the modeling methodologies used in the LUBA NO. 94-211 -58- Exhibit No. 13 Page No. a&5. Figure 17 On-Site CO Emissions by Scenario 15 y. :3 Drive Thru 12.81 M Take-Out Eat-In 10.69 10 ' 8.21 - - 7.68 o, - N C O .y N E 5 2.52: 2.52 ! 2.02 _1.38_ 1.69 1.29 r 0.4 0.4 0 1991 Ott Peak 1991 Peak Hour 2000 Oft Peak 2000 Peak Hour Scenario Figure 18 On-Site NOx Emissions by Scenario 0.1 Drive Thru 0.091 M Take-Out 0.08 = Eat-In 0.08 _ 0.07 " 0.07 ' 0.06 - 0.05 0 0.05'- y i_. ; 0.04 E 0.04 - - u, _ 0.03 V.-O.03 r'.. 0.03 0.02' 0.02' 0.02 1 0.02 0.02 '`=w~•'" _ 0.01 ! 0.01 _ 0.01 I . 0 - ~'-7 1991 Ott Peak 1991 Peak Hour 2000 Off Peak 2000 Peak Hour Scenario LUBA NO. 94-211 -59- Exhibit No. Page No. 3 . Figure 19 Total Trip ROG Emissions by Scenario 0 and Mode - Calendar Year 1991 6 E=naust Running Evao. Hot Soak Evao. 4 80 4.70 N 5 1 E 44 3.39 3.31 3.29 3.21 N / I i to E r w 2.' I " I ~ 1 1 1 .pry fir. , V Drive-thru Take Out Eat in DNve4hru Take Out Eat In Off Peak Peak Hour Figure 20 Total Trip ROG Emissions by Scenario and Mode - Calendar Year 2000 E■naust M Running Evao. i Hot Soak Evao. , 2.5 - E 2.0T 2.00 v, 24" i ; . N 1.5 1.16 ~ 1.03-~ 1.02 1.11 E ' W ti 0.5 Drive•thru Take Out Eat In Drivewthru Take Out Eat In Ott Peak Peak Hour LUBA NO. 94-211 -60- Exhibit No. I? Page No. 0a1 Figure 21 ns by Scenario OG Emissio -total Trip R 3 Drive Tt%ru -rox -Out 6 ~ ~ Eet-in 4.7^ 4.8. N 4 3.29 3,21, E 3.39 3.31 A t 2.07 3 - 1.11 o , 1.02 N - 1.03 1.16 Y: c 2 st 2000 Peak Hour ' 1 -SFr it Peak 2000 0 1991 Peak Hour 0 "991 Ott Peak Scenario F+guCe 22 • ns by scenario Ernissio a' Tr~P CO Tpt Drive "ru :n 100 6 75.12 801--77.2? x.95 66.95 70 j N 60 50 m 40-~ yet I 16.48 14.45 13.16 .r 14.79 13.16 30 20 1 ! r+ 2000 Peak Hour 2000 Ott Peak 10 - 11 1991 Peak Hour 0 1991 Off Peav. SDeriario 84-211 . ~~;7BA NO. E,MinIt oo• N a~ . -61. Page Figure 23 Total Trip NOx Emissions by Scenario 4- ZD Drive Thru M Take-Out Eat-In 3 -_2.88 g,-2.92 -2.82.91 1 2 i ; 1.72 1.88 1.79 1.71 1.68 1.78^ uJ 1 i rTai I I I 1 1991 OH Peak 1991 Peak Hour 2000 OH Peak 2000 Peak Hour Scenario analysis. For both years, emissions are highest under eat in scenarios. Figures 22 and 23 show the comparison of total trip emissions for CO and NOx, respectively. For CO, Figure 22 shows that emissions from takeout operations are somewhat lower than either drive-thrv or eat in activities, in both 1991 and 2000. Since the average parking time for take-out scenarios is less than 10 minutes, the methodology used in the analysis assumes a completely "hot" start for both drive cycles. Thus, the extended idle CO emissions modeled for the drive-thru scenarios will exceed take out emissions for all analysis years. Conversely, the eat in scenarios, because of their elevated start emissions, will continue to have the highest projected emission totals of the three scenarios. Figure 23 reveals that for the total trip, all three scenarios result in essentially the same level of NOx emissions. A comparison of Figures 18 and 23 also shows that the off-site trip emissions completely dominate the trip emission totals, accounting for anywhere from 97 - 99% of total trip NOx emissions. Thus, the significance of any differences in on-site NOx emissions is minimal. 6.3 Effect of a Drive-Thru Prohibition The final level of analysis regarding emissions from drive-thru restaurants relates to the possible ban of drive-thrv service lanes in the Los Angeles area. An evaluation was performed of the emissions impact of prohibiting such lanes, based on current activity levels and patterns. LUBA NO. 94-211 -62- Exhibit No. I Page No. ~ t_p r For this analysis, the results of the survey of LA restaurant owners, as shown in Table 7 in section 4, were used to determine current operational data These data provided an estimate of activity levels for the "typical" convenience restaurant in LA. which was visited by 1,000 vehicles per day, with a weighted service split of 45% drive-thru. 25% take-out and 30% eat in. Three assumptions were then made, to assess the impact of a complete prohibition on drive-thru lanes in Southern California. These assumptions are as follows: 1. The overall level of activity at the convenience restaurants would remain the same (i.e., there would still be 1,000 vehicles arriving per average day at the typical restaurant). 2. The percentage split between eat in. and takeout service would remain the same as at current restaurants that do not have drivethru service available, excluding restaurants in "captive" locations (e.g., indoor shopping malls). 3. Seventy percent of each of the three types of activities (drive-thru, take-out, and eat in) occurs during peak hours, while 30 percent occurs under off-peak conditions. This assumption is also based on survey data received from the restaurant owners. Using these assumptions allowed the calculation of the data presented in Figure 24. These data compare the level of daily emissions projected to result from current operations versus a total prohibition on drive-thru windows. The modeling of the drive-duu prohibition assumes that 51% of the resulting traffic will stop and take-out, and 49% will stop and eat in. The data presented in Figure 24 demonstrate that, for the assumptions stated, a prohibition on drive-thru service lanes in the LA area is projected to result in a significant increase in ROG emissions for both analysis years (1991 and 2000). No significant change is expected for either CO or NOx emissions as a result of a ban on drive-duti service lanes. A summary of the emission changes projected to result from such a ban is shown below in Table 9. Table 9 Emission Changes Resulting from Drive-Thru Prohibition of Projected Baseline Emissions) Changes in Daily Emissions per'"rypical" Restaurant Year ROG CO NOx 1991. +7% -3% 0% 2000 +17% 0% 0% UBA NO. 94-211 Exhibit No. F~ -63- Page No. Figure 24 Effect of a Ban on Drive-thru Windows on Average Daily Restaurant Emissions 10- 8.2 RO = With Drive-thru Windows v 8'. Without Drive•thru Windows _ 7_:: 41 H 0 5 +17% 4. - 3.5 1 . ~ 3 0 7. 0'/- 1991 R OG 2000 R OG 200` ' -3% 180.' 163 C 158 16 0 With Drive-thru Windows Without Drive-thru Windows 100! 0 2- i 1991 CO 2000 CO tOf: NOx 9 With Drive-thru Windows 8.` 3 0% 1O 6.3 - Without Drive-thru Windows _ ~ •~-8. ' H 7`. a O% o~ 51i N 3.8 3.8 4i E °z 2-` i - . 11 O 1991 NOx 2000 NOx LMBA NO. 94x211 -64xhibit it No. a_ " Page No. aa% It is impossible at this time to quantify the level of uncertainty surrounding the assumptions made regarding activity levels and splits that would occur in the event of the adoption of a drive-thru prohibition. However, certain qualitative judgments are possible. First given the small contribution of on-site emissions to the total trip NOx loadings, and the relatively uniform NOx emission levels modeled for all scenarios, it is clear that there will be a relatively insignificant change in NOx emissions due to such a prohibition unless the prohibition results in a significant decrease in vehicle tries to such convenience restaurants. Second, the analysis shows that the decrease in average vehicle emission levels between now and the year 2000 will result in ever-decreasing absolute emission impacts due to such a prohibition. For all scenarios, absolute ROG and CO levels are projected to decrease by 50% or more by the year 2000. Third, there are many conflicting factors that make an accurate determination of the emissions impact of a prohibition very difficult. These include the possibility of significant changes in the distribution of eat in and take-out service, significant changes in waiting times due to the changes in these distributions, possible decreases in the number of vehicles visiting the restaurants, and individual factors peculiar to a single restaurant or group of restaurants. Fourth, and finally, even given all of the uncertainties listed above, it is clear that there are no overwhelming emission benefits to be gained by pursuing such a prohibition. A ban on drive-thru operations is projected to actually increase emission levels. There does not appear to be sufficient justification at this time to warrant attempts to prohibit drive-thru service lanes. LUBA NO. 94-211 -.65- ExhlbR No. 13 Page No.~1 7. REFERENCES Staff report on the air quality effect of drive-up window city of Fresno Development Department, December 14,1989. 2. "Estimating the Effect of Driving Pattern on Exhaust Emissions Using a Vehicle Simulation Model," draft report, prepared for the U.S. Environmental Protection Agency, Mobile Source Certification Division. Sierra Research, Inc.. October 22. 1990. 3. TA Huls, "Evolution of Federal Light Duty Mass Emission Regulations," U.S. Environmental Protection Agency, SAE Paper No. 730554, May 1973. 4. Telephone conversations with Jim Lyons and Mark Carlock, ARB Mobile Source Division. November 1990. 5. Letter from K.D. Drachand. Chief. ARB Mobile Source Division, to Heather Collier. Planner, City of Fresno, dated December 1989. 6. "An Evaluation of Loaded Mode I/M Testing at Service Stations," prepared for the California Bureau of Automotive Repair, Sierra Research, Inc., Report No. SR88-12-02. December 1988. 7. Meeting with Ken Zerafa, EPA Certification Division, November 1, 1990. 9. "Coding Instructions: Direct Travel Impact Model (DT1M) California Department of Transportation, November 1989. 10. "Derivation of the EMFAC7E Emission and Correction Factors for On-Road Motor Vehicles," Technical Support Document, California Air Resources Board, July 1990. 11. Running loss SHED test data transmitted from Mark Yoshida, ARB Mobile. Source Division, March 6,1991. 12. "The Potential for Reducing On-road Vehicle Emissions Through Amendments to the Clean Air Act." prepared for the U.S. Congress, Office of Technology Assessment. Sierra Research, Inc., Report No. SR89-08-02, September 11. 1989. WBA NO. 94-211 -66- EA dbit No. 13 Page No. 25 L) APPENDIX A Emissions Calculations LUBA NO. 94-211 Exhibit No. 13 Page No. 3 EMFAC7E DATA Tech. Fractions (%VMT) Passenger Cars Light-Outy Trucks 0 Year Neat Cat Dsl Neat Cat Dsl 1991 4.10 93.70 2.20 4.26 93.45 2.29 2000 0.10 99.61: 0.29 0.16 99.54 0.30 Vehicle Class Fractions (%VMT) Reactive Fractions (ROG) Year PC's LDrs Neat Cat Dsl 1991. 82.42: 17.58 , 92.40. 86.05 95.60 2000 80.87 19.13: EMFAC7E Emission Factors Passenger Cars Light-Duty Trucks PC+LDT ROG Year Pollutant Mode Units Neat Cat Dsl Neat Cat Dsl Composite Composite 1991 TOG Run Exh gimile 5.77 0.55 0.44. 5.69 0.78 0.44. 0.80. 0.70 Cold St gitnp 16.93 5.69 0.63 17.69 6.49 0.90' 6.18 5.36 Hot St grthp 11.70' 1.22: 0.18 12.04 1.58 0.25 1.69' 1.49 Hot Soak grt hr soak 10.32 1.96: 0.00 9.82 2.19 0.00: 2.30: 2.30 Run Evp g/mile 1.37 0.24 0.00: 1.29: 0.24 0.00 0.28: 0.28 CO Run Exh g/mile 46.81' 7.06: 1.50: 45.96. 9.30' 1.54 8.94 Cold St. gmip 131.77 56.95 5.36: 130.40 68.14 4.95' 60.72 Hot St g/trip 2723' 12.69' 2.73' 26.97 15.00• 3.33' 13.45• NOx Run Exh gimile 2.17 0.80' 1.36' 2.15 0.98 1.30! 0.90 Cold St g/trip 4.31 2.96. 0.18• 4.20' 2.96 1.08 2.96' Hot St gimp 5.69 1.62: 0.11 5.65 1.80 0.74 1.79 2000 TOG Run Exh g/mile 2.42' 027' 0.49 2.45: 0.39: 0.48, 0.30 0.25 Cold St gmip 19.50 4.20' 0.57- 19.71 4.72 1.00 4.31 3.71 Hot St gttrip 2.92! 0.68' 0.18. 2.95. 0.92. 0.35. 0.73 0.63 Hot Soak 9/1 hr soak 7.82' 1.22: 0.00. 7.32! 1.27 0.00. 1.23: 1.23 Run Evp gimile 0.53: 0.03. 0.00: 0.46. 0.03. 0.00 0.04 • 0.04 CO Run Exh g/mile 32.37 4.06' 1.83: 33.12 5.01 1.83: 4.27 Cold St g1trip 90.13 32.36- 7.32 91.00: 38.90- 5.99; 33.60 Hot St g/tnp .17.78 7,.27 3.57 18.00 9.00 4.08 7.60 NOx Run Exh gimile 1.77 0.49. 1.40. 1,78. 0.73 1.34 0.54 Cold St g/trip 4.61 2.09; 0.11 4.75 2.83 1.05. 223' Hot St gimp 4.37 0.99. 0.07' 4.50 1.36, 0.73 1.06. LUBA NO. 94-211 Exhibit NO. ( 3 Page NO. a__ 3 a r ' t BAG-SPECIFIC RATES 1991 2000 Bag Units ROG CO NOx ROG CO NOx Bag 3 Increment g/mile 0.41 3.75 0.50 0.17 2.12 0.30 Ba92 gimile 0.70 8.94 0.90 0.25' 4.27 0.54 Total Bag 3 gimile 1.12 12.69 1.40 0.43. 8.38 0.84 gimin 0.48• 5.41 0.60 0.18 2.72' 0.36 Bag 1 Increment g/mile 1.49, 16.91: 0.82. 1.03; 9.36+ 0.62: Bag 2 g/mile 0.70i 8.941 0.90, 0.25 i 4.27: 0.54 . Total Bag 1 g/mile 2.201 25.85 i 1.72 1.291 13.62! 1.16 g/min 0.941 11.031 0.73: 0.55! 5.81! 0.50! Bag 1 -Bag 3 9/min 0.46, 5.62! 0.14' 0.37' 3.09! 0.14: Bag 1 - 3 'Area' grams 3.88! 47.27' 1.17 3.08: 26.00; 1.17: IDLE RATES AND START FRACTIONS Idle Emissions t9/min) Start Fractions (X) Year ROG CO NOx Cold Hot 1991 0.022: 2.5161 0.017' 51.97' 48.03; 2000 0.009; 0.397 i 0.010: 52.97' 47.03 ! OTHER MISC DATA 'J-Curve' Coefficients Power Curve Coefficients 'J-Curve' Area (deg F-min) = 674: K 977.770 a = 826.282: Running Loss SCF (20 mph idle) = 1.00 a = 2218 b = 0.0001 Light-off Temperature (deg F) = 550' r= 3.370 c=: -716.055! "Maxi 0' S Curve 'Efficiency' 0.87, Stan Time to Light-off (min) = 0.73' 'Max' E Curve *Efficiency' = 0.90 SCENARIO ACTIVITY DATA Scenario Mode Number Description Number Description 1 Drive-thru (off-peak) 1 Idle 2 Drive-thru (peak) 2 Drive on (use Idle rates) 3 Stop and take out (off-peak) 3 Engine off 4 Stop and take out (peak) 4 Drive off 5 Stop and eat in (off-peak) Drive up (off-site) 6 Stop and eat in (peak) Drive away (off-site) Time-in-mode (min) Scenario Distribution of Customers Mode 1 2 3 4 5 6: 1 4.09' 3.25, 0.001 0.001 0.00' 0.00! Drive Thru 44.9 2 0.50. 0.50; 0.50: 0.50 0.50! 0.50: Take Out 24.6 3 0.00 0.00 5.17 3.78' 28.01: 26.62 Eat in 30.5 4 0.50 0.50. 0.50 0.50: 0.50 0.50 LUBA NO. 94-211 EXhibit No. f 3 - Page No. C~ EMISSION CALCULATIONS 1991 PREMISES Pollutant Mode Quantity Units 1 2 3 4 5 6 ROG Drive On Idle Exh grams 0.011 0.011 0.011 0.011 0.011 0.011 Run Loss grams 0.047 0.047 0.047 0.047 0.047 0.047 Idle Idle Exh grams 0.092 0.073 N.A. N.A. N.A. N.A. Run Loss grams 0.383 0.304. N.A. N.A.. N.A. N.A.: Engine OH Hot Soak grams N.A.. N.A.; 0.390' 0.292! 1.493 1.439; Sk Curve min N.A. N.A. 0.000 0.000 0.616. 0.573 . Drive Off Start at - N.A. N.A. 8.417' 8.417 0.592. 0.639 El - N.A. N.A.: 0.000! 0.000; 0.555 0.516. E2 - N.A. N.A. 0.000' 0.000: 0.188 0.165. E3 - N.A. N.A. .2.812 -2.812 -1.808 -1.901 E Curve gimin N.A. N.A. 0.477' 0.477' 2.486 2.299 Exhaust grams 0.011 0.011 0.011 0.011 0.058 0.054 Run Loss grams 0.047 0.047' 0.047 0.047 0.047 0.047 Total ROG grams 0.590 0.493' 0.506 0.408 1.656 1.597 _ CO Drive On Idle Exh grams 1.258 1.258: 1.258 1.258: 1.258 1.258. Idle Idle Exh grams 10.290 8.177 N.A. N.A.- N.A. N.A. Engine Off Sk Curve (frac) N.A. N.A. • 0.000: 0.000: 0.616- 0.572' Drive Off Start pt min N.A. N.A. ! 8.417. 8.417 0.592- 0.639 E1 - NA NA.: 0.000! 0.000 0.555 0.516 E2 - N.A. N.A. + 0.000 0.000, 0.188 0.165. E3 - NA N.A.. -34.289 -34.289, -22.041' -23.182 E Curve g/min N.A. N.A.. 5.411 5.411 29.906 27.624 Exhaust grams 1.258 1.258. 1.258' 1.258 6.953 6.422 Total CO grams 12.806 10.693. 2.516? 2.516 8.211 7.680 NOx Drive On Idle Exh grams 0.008 0.0881 0.008. 0.008 0.008 0.008 Idle Idle Exh grams 0.067 0.0541 NA.: N.A. N.A. N.A. Engine Off Sk Curve (frac) N.A. • N.A. - 0.000. 0.000 0.616 0.573 Drive Off Start pt min N.A. _ N.A.: 8.417 8.417 0.592 0.639. El - NA N.A.; 0.000. 0.000 0.555 0.516- E2 - N. A- N.A.- 0.000' 0.000 0.188: 0.165- E3 - N.A. N.A. -0.849- -0.849 0.546 -0.574 E Curve grmin N.A: N.A. 0.595 0.595 1.202. 1.145 Exhaust grams 0.008 0.008! 0.008 0.008. 0.017 0.016 Ask Total NOx grams 0.084- 0.070' 0.017' 0.017' 0.025 0.024 LUBA NO. 94-211 Exhibit No. Page No. a3' r . EMISSION CALCULATIONS 2000 PREMISES Pollutant Mode Quantity Units 1 2 3 4 5 6 ROG Drive On Idle Exh grams 0.004, 0.004: 0.004' 0.004. 0.004 0.004: Run Loss grams 0.0061 0.006; 0.006. 0.006: 0.006 0.006 Idle Idle Exh grams 0.036 i 0.028: N.A.: N.A. # N.A. N.A. Run Loss grams 0.0481 0.0381 N.A.: N.A.: N.A., N.A.a Engine Off Hot Soak grams N.A.I N.A.: 0.2091 0.157 0.802! 0.7731 Sk Curve min N.A. I N.A.1 0.0001 0.0001 0.616 i 0.573: Drive Off Start pt - N.A. i N.A.1 8.4171 8.417' 0.5921 0.6391 E1 - N.A.i N.A. 0.0001 0.0001 0.555: 0.516; E2 - N.A.1 N.A.1 0.0001 0.0001 0.1881 0.165! E3 - N.A 1 N.A.; =22351 -2235: -1.437! -1.511: E Curve g/min NA.1 N.A. i 0.1831 0.1831 1.7801 1.631 Exhaust grams 0.004i 0.004: 0.0041 0.0041 0.042; 0.039: Run Loss grams 0.0061 0.0061 0.0061 0.006: 0.006: 0.006 i Total ROG grams 0.1041 0.0871 0.2301 0.177' 0.8601 0.8281 CO Drive On Idle Exh grams 0.199! 0.1991 0.1991 0.199! 0.1991 0.1993 Idle Idle Exh . grams 1.6241 1.2911 N.A. I N.A. - N.A. i N.A. + Engine Off Sk Curve (frac) N.A, I N.A.I 0.0001 0.0001 0.6161 0.573' Drive Off start pt min N.A. ! NA.; 8.417' 8.417' 0.592; 0.639 E1 - NA.i N.A.1 0.0001 0.0001 0.555: 0.5161 E2 - N.A. I NA I 0.0001 0.000i 0.188f 0.165 E3 - N.A.1 N.A.~ -18.8561 -18.8561 12.121: •12.7481 E Curve g/min N.A.1 N.A.; 2.7231 2.7231 16.193' 14.938 Exhaust grams 0.1991 0.1991 0.1991 0.1991 1.1811 1.089' Total CO grams 2.0211 1.6881 0.397: 0.397' 1.379:1 1.288; NOx Drive On Idle Exh grams 0.0051 0.0051 0.0051 0.0051 0.0051 0.0053 Idle Idle Exh grams 0.041i 0.032! N.A.i N.A.. N.A.: N:A.i Engine Off Sk Curve (frac) N.A.I N.A.1 0.0001 0.0001 0.616+ 0.573; Drive Off Start pt min N.A.I N.A. 8.4171 8.417! .0-592! 0.639 E 1 - N.A. i N.A. ! 0.0001 0.0001 0.555: 0.516' E2 - N.A. i N.A. i 0.0001 0.0001 0.188: 0.165 E3 - N.A.I N.A., -0.8461 -0.8461 -0.544: -0.572' E Curve g/min N.A. i H.A.: 0.356 i 0.356' 0.961, 0.905 : Exhaust grams 0.005 i 0.005: 0.005 i 0.005; 0.0131. 0.013', Total NOx grams 0.0501 0.050' 0.042: 0.010' 0.018. 0.018: LUBA NO. 94-211 Exhibit No. 13 Page No. 5 1991 TOTAL TRIP Pollutant Mode Quantity Units 1 2 3 4 5 6 ROG Drive On Idle Exh grams 0.011 0.011 0.011 0.011 0.011 0.011 Run Loss grams 0.047 0.047 0.047 0.047 0.047 0.047 Idle Idle Exh grams 0.092 0.073 N.A. N.A. N.A. N.A. Run Loss grams 0.383 0.304 N.A. N.A. N.A. N.A. Engine Off Hot Soak orams N.A. N.A. 0.390: 0.292 1.493. 1.439 Sk Curve min N.A. N.A. 0.000' 0.000 0.616 0.573': Drive Off Start pt - N.A.! N.A. 8.417' 8.417' 0.592: 0.639, E1 - N.A. N.A. 0.000' 0.000' 0.555i 0.516. E2 - N.A. N.A.: 0.0001 0.0001 0.188i 0,1654 E3 - N.A.1 N.A.: -2.812' -2.812' -1.808! -1.901, E Curve g/min N.A.. N.A. 0.477; 0.477' 2.486 i 2.299; Exhaust grams 0.011: 0.011 ' 0.0111 0.011, 0.058 i 0.054 Run Loss grams 0.047• 0.047; 0.047! 0.047: 0.047' 0.047 b Drive away: E1 - N.A.i N.A.1 0.0001 0.0001 0188° 0165' (2 miles)! E2 - N.A.. N.A.. 0.000+ 0.000! 0.000! 00004' E3 N.A.+ N.A.. -26.375' -26.375 -26.027. -26.073 E Curve gamin N.A.: N.A. 0.477' 0.477' 0.551. 0.541 ! Exhaust grams 2.238' 2.238! 2.238' 2.238 2.585 i 2 5391 Run Loss grams 0.561 0.561 0.561- 0.561' 0.561, 0 561 4 Total ROG grams 3.389i 3.292' 3.305: 3.207' 4.802! 4.698 CO Drive up Exhaust grams 39.058 i 39.058, 39.058: 39 058 39.0581 39.058 Drive On Idle Exh grams 1.258' 1.258' 1258! 1.258' 1.258i 1.258 i Idle Idle Exh grams 10.290- 8.177' N.A.: N.A. N.A. N.A. 3 Engine Oft Sk Curve (frac) N.A. • N.A.; 0.000! 0.000: 0.616: 0.573" Drive Off Startpt min N.A.: N.A.: 8.417' 8.417' 0.592; 0.6391 E1 N.A:; N.A.: 0.000! 0.000! 0.555: 0.5164 E2 N.A., N.A.! 0.0001 0.0m! 0 188; 0.165" E3 N.A. i N.A.: -34.2891 -34.289.; -22.041, -23.182' E Curve glmin N.A. ! N.A.1 5.411! 5.411' 29.906; 27 624 ; Exhaust grams 1.2581 1.2581 1.2581 1.258; 6.953: 6.422' Drive Away E 1 N.A. i N.A.: 0.0001 0.000: 0.188. 0.165 (2 miles) E2 N.A.: N.A. 0.0001 0.0001 0.000! 0 000 E3 N.A. N.A. 1 -321.562 -321.562; -317.327! -317.887' E Curve g/min N.A.' N.A.: 5.411: 5.411 6.314; 6.195'• Exhaust grams 25.372' 25.372' 25.372' 25.372 29.608. 29.0484 Total CO grams 77.236, 75.123 66.946: 66.946- 76.877 75 786 NOx Drive On Idle Exh grams 0.008 0.008' 0.008- 0.008' 0.008 0.008 Idle Idle Exh grams 0.067: 0.054 N.A. ; N.A. - N.A. N.A. ; Engine Off Sk Curve (frac) N.A.; N.A. ; 0.000! 0.0001 0.616' 0.573'. Drive Off Start pt min N.A.' N.A. 8.417 8.417' 0.5921 0.6391 E1 N.A.' N.A. 0.000; 0.000? 0.555' 0.516 E2 N.A. N.A.. 0.000' 0.000! 0AB8! 0.1653 E3 N.A.' N.A. -0.8491 -0.849, -0.546: -0.574' E Curve g/min N.A.: N.A. • 0.595: 0.5951 1.202; 1.1451 Exhaust grams 0.008! 0.0081 0.008 0.008i 0.017' 0.016= Drive Away E1 N.A. • N.A. 0.000: 0.000: 0.188 0.165- (2 miles) E2 - N.A.: N.A. 0.000! 0.000 0.0001 0.000 E3 - N.A. - N.A. ; -7.963: -7.963' -7.858: -7.875 E Curve gimin N.A.. N.A.; 0.595; 0.595: 0.618: 0.612 Exhaust grams 2.791, 2.791 2.7921. 2.792 2.896: 2.883: Total NOx grams 2.875' 2.862, 2.8081 2.808! 2.921, 2.907' LUBA NO. 94-211 Exhibit No. 1.3 Page No. a3cv J EMISSION CALCULATIONS 2000 PREMISES Pollutant Mode Quantity Units 1 2 3 4 5 6 ROG Drive On Idle Exh grams 0.004. 0.004 0.004• 0.004 0.004; 0.004 Run Loss grams .006; 0.006: 0.006: 0.006• 0.006: 0.006 Idle Idle Exh grams 0.036! 0.028 N.A. N.A. N.A.. N.A. Run Loss grams 0.048' 0038! N.A.. N.A. • N.A. ; N.A. , Engine Off Hot Soak grams N.A. N.A. - 0.209! 0.157' 0.802! 0.773: Sk Curve min N.A. - N.A.. 0.000; 0.000, 0.6161 0.573? Drive Off Start pt N.A.: N.A. ! 8.417' 8.417' 0.592 i 0.639 Et N.A.i N.A.1 0.0001 0.0001 0.5551 0.516# E2 N.A.I N.A.. 0.0001 0.000; 0.1881 0.165: E3 N.A.! N.A. -2235i -22351 -1.4371 -1.5111 E Curve atmin N.A.I N.A.! 0.1831 0.183! 1.7801 1.6313 Exhaust grams 0.0041 0.004; 0.0041 0.004, 0.0421 0.0391 Run Loss grams 0.0061 0.006i 0.0061 0.006i 0.0061 0.006i Drive away E1 N.A.I N.A. 0.0001 0.000, 0.188! 0.1651 (2 miles) E2 N.A.; N.A.1 0.0001 0.0001 0.0001 0.0001 E3 N.A.I N.A.; •20.9581 -20.9581 -20.6821 -20.7181 E Curve Wmin N.A. - N.A. ; 0.183 i 0.183! 0.242' 0.234! Exhaust grams 0.858: 0.8581 0.8581 0.8581 1.135; 1.0981 Run Loss grams 0.071! 0.071: 0.071 0.071, 0.0711 0.071 Total ROG grams 1.0341 1.0161 1.1591 1.107 2.0661 1.997 CO Drive On Idle Exh grams 0.1991 0.1991 0.199! 0.1991 0.1991 0.199! Idle Idle Exh grams 1.6241 1.2911 N.A.{ N.A.1 N.A.I N.A.i Engine Off Sk Curve (frac) N.A. I N.A. + 0.0001 0.0001 0.6161 0.573' Drive Off Start pt min N.A. I N.A.! 8.417' 8.417: 0.592' 0.639' El N.A. I N.A. 1 0.0001 0.0001 0.555 i 0.516i E2 N.A.I N.A.1 0.0001 0.0001 0.1881 0.1651 E3 N.A.I N.A.! -18.8561 -18.8561 -12.121: -12.748; E Curve cimin N.A.; N.A.1 2.7231 2.723! 16.1931 14.9381 Exhaust grams 0.1991 0.1991 0.1991 0.199! 1.1811 1.0891 Drive Away E1 N.A.I N.A.1 0.0001 0.000! 0.1881 0.165' (2 miles) E2 N.A.; N.A.i 0.0001 0.0001 0.0001 0.000' E3 N.A.: N.A. i -176.8301 -176.8301 -174.5011 -174.809: E Curve g/min N.A. ! N.A. ; 2.7231 2.723: 32191 3.154+ Exhaust grams 12.7671 12.767 12.7671 12.7677 15.0961 14.788. Total CO drams 14.7881 14.4541 13.1641 13.164: 16.475. 16.076 NOx Drive On Idle Exh grams 01005 i 0.0051 0.0051 0.005: 0.005; 0.005: Idle Idle Exh grams 0.0411 0.032! N.A.1 N.A.' N.A.: N.A. Engine Off Sk Curve (frac) N.A.! N.A.1 0.0001 0.000: 0.6161 0.573' Drive Off Start pt min N.A.I N.A.1 8.4171 8.417' 0.592!_ 0.639' E1 N.A.I N.A.1 0.0001 0.000! 0.555i 0.516' E2 N.A.I N.A.: 0.0001 0.0001 0.1881 0.165: E3 N.A. i N.A. t -0.846; -0.846! -0.5441 -0.572 ' E Curve g/min N.A.1 N.A.+ 0.356i 0.356i 0.961! 0.9051 Exhaust grams 0.005i 0.0051 0.0051 0.0051 0.013! 0.013-- J Drive Away E1 N.A.I N.A.1 0.0001 0.0001 0.1881 0.165: (2 miles) E2 N.A.! N.A.1 0.0001 010001 0.000! 0.0001. E3 N.A.~ N.A.: •7.935i -7.935; -7.8311 . -7.845-- E Curve Wmin N.A. I N.A.1 0.3561 0.356!. 0.379: 0.376; Exhaust grams 1.6711 1.671: 1.671! 1.671: 1.776 1.762 Total NOx grams 1.722! 1.713! 1.6811 1.681, 1.794! 1.779' LUBA NO. 94-211 Exhibit No. 13 Page No. EMISSIONS SUMMARY Emissions (grams) Scenario Pollutant Period/Domain 1 2' 3 4 S 6 ROG 1991 - Premises 0.590 0.493 0.506 0.408. 1.656 1.597 2000 - Premises 0.104 0.087' 0.230' 0.177 0.860' 0.828- 1991 - Total Trip 3.389' 3.292. 3.305: 3.207 4.802' 4.6984 2000 - Totat Trip 1.034 : 1.016; 1.159! 1.107 2.066- 1.997 1991 - Trip From Site 2.799' 2.7991 2.799. 2.799 3.146, 3.101 2000 - Trip From Site 0.9291 0.929! 0.929 0.929: 1.205; 1.1694 CO 1991 - Premises 12.806: 10.693; 2.516 i 2.516 1 8.211 7.6801 2000 - Premises 2.021: 1.6881 0.397' 0.397' 1.379 1.288: 1991 - Total Trip 77.236! 75.1231 66.946 66.946, 76.877' 75.786 t 2000 - Total Trip 14.7881 14.4541 13.1641 13.164; 16.475 i 16.076 3 1991 - Trip From Site 64.430' 64.430! 64.430' 64.430; 68.666, 68.106: 2000 - Trip From Site 12.7671 12.767! 12.767' 12.767' 15.096: 14.7884 NOx 1991-Premises 0.084, 0.070' 0.017' 0.017' 0.025: 0.024, 2000 - Premises 0.050; 0.042' 0.010: 0.010 0.018' 0.018; 1991 -Total Trip 2.8751 2.862: 2.808 t 2.808 t 2.921. 2.907, 2000 - Total Trip 1.722: 1.713! 1.681: 1.681: 1.7941 1.799, 1991 - Trip From Site 2.7911 2.791: 2.792: 2.7921 2.896: 2.8831 2000 - Trip From Site 1.6711 1.6711 1.671: 1.6711 1.7761 1.7621 ROG EMISSIONS BREAKDOWN Emissions (grams) Scenario Period/Domain Process 1 2- 3 4 5 6 1991 - Premises Exhaust 0.114. 0.0951 0.022' 0.022 0.070' 0.065- Run Evap 90.476' 0.3981 0.0941 0.094: 0.094 0.094; Soak Evap NAI NA. 0.3901 0292! 1.493 1.439 2000 - Premises Exhaust 0.0441 0.037, 0.009! 0.009' 0.047 0.0431 Run Evap 0.060! 0.050'• 0.012 0.0121 0.012 0.012 Soak Evap NAI NAI 0.2091 0.157! 0.802. 0.773 1991 - Total Trip Exhaust 2.3521 2.3331 22601 2.2601 2.655. 2.604 Run Evap 1.0381 0.959; 0.655. 0.655: 0.655: 0.655' Soak Evap NAI NA i 0.3901 0.292: 1.493: 1.4391 .2000 - Total Trip Exhaust 0.9031 0.895 1 0.867! 0.867' 1.181; 1.141' Run Evap 0.131' 0.121' 0.0831 0.083! 0.083' 0.083 Soak Evap NA1 NA; 0.209! 0.157: 0.802. 0.773' 1991 - Trip From Site . Exhaust 22381 22381 2.238, 2.2381 2.585' 2.539 Run Evap 0.561: 0.561, 0.561! 0.561; 0.561: 0.561 1 Soak Evap NA: NAI 0.000, 0.0001 0.000: 0.000 2000 - Trip From Site Exhaust 0.8581 0.858! 0.858: 0.8581 1.135; 1.098' Run Evap 0.071: 0.0711 0.071' 0.071: 0.071 0.071 Soak Evu NA! NAI 0.0001 0.000! 0.000. 0.000'; LUBA NO. 94-211 Exhibit NO. Imo! Page No. r L "TYPICAL" DAILY EMISSIONS ANALYSIS Percent of modes which Daily Trips = 1000 are peak operations 1°i°) = 70 Eat in % without drive thrus = 49 Scenario Weightings (0 of trips) Scenario 1 2 3 . 4 5 6 Total ' I With Drive Thrus 134.70 314.301 73.801 172.201 91.501 213.501 1000.001 i Without Drive Thrus NA I NA I 147.001 343.001 153.001 357.501 1000.001 Daily Emissions per 'Typical' Restaurant (lbs) Promises Total Trip Trip From Site i ROG CO NOx ROG I CO NOx ROG CO NOx 1991 1.8401 17.8471 0.0991 8.2231 162.4741 6.3171 6.3831 144.6271 6.218 d With Drive Thrus 22681 11.5321 0.0451 8.8141 157.8981 6.3061 6.5251 146.3641 6.2619 s ! Without Drive Thrus i ! I 2000 i With Drive Thrus 0.7591 2.8691 0.0621 2.9761 32.4361 3.8091 2.217! 29.56711 3.7481 Without Drive Thrus 1.1501 1.9081 0.0311 3.4811 32.4301 3.8221 2.3301 30.5221 3.791 q Emission Change Resulting from Drive Thru Prohibition of "With Drive Thru' Baseline) ) i Premises Total Trip Trip From Site ROG CO NOx ROG 1 CO NOx ROG CO NOx 1 1 1991 24.36%1 -35.39%! -54.270/o! 7.190/61 -2.820/o1 -0.170/61 223%; 1.200/9! 0.69%1 2000 51.51%! -33.51%1 -50.10%1 16.94%1 -0.020/61 0.32%1 5.11%: 3.23%1 1.14%~ LUBA NO. 94-211 - Exhibit No. 13 Page No. NOISE IMPACT ANALYSIS Taco Bell Store #06-0817 11635 S.W. Pacific Highway Tigard, Oregon August 18, 1994 Prepared For: Planning/Design Group (PDG) Portland, Oregon Our Project No. 94070 Milk VGO, Inc. ENGINEERS 54 Third Street Lake Oswepo. OR 97034 Tel: (503) 635.3734 Fax: (503) 6364178 LUBA NO. 94-211 Exhibit No. I I Page No. L l N rAdik ilk 40 VGO, Inc Erginem 0 TABLE OF CONTENTS PAGE 1.0 EXECUTIVE SUMMARY 1.1 2.0 INTRODUCTION 2.1 3.0 STUDY METHODOLOGY 3.1 4.0 SOUND LEVEL CRITERIA 4.1 5.0 AMBIENT NOISE LEVEL 5.1 6.0 FINDINGS 6.1 7.0 CONCLUSION 7.1 8.0 FIGURES 8.1 A APPENDIX A.1-A.13 LUBA NO. 94-211 Exhibit No. Page No. y'a IV INN IR/ VGO, Inc Engineers August 18, 1994 File: 94070 1.0 EXECUTIVE SUMMARY This study covers predicted noise impact on residential homes adjacent to the proposed Taco Bell restaurant site at 11635 S.W. Pacific Highway in Tigard, Oregon. The study addresses predicted noise generated by food order loudspeakers, drive- thru traffic, and heating/ventilating/air conditioning (HVAC) equipment on the restaurant roof. The predicted noise exposure to the residential houses north of the restaurant was studied. There are no other residences bordering the restaurant. The one house, immediately adjacent to the north property line, at 11620 S.W. Pacific Highway will shield the other home directly north of ft. Sound levels from the restaurant rooftop equipment are predicted to be negligible. The noise from the drive-thru ordering loudspeaker is predicted to be 42-47 dBA at the north property line. Drive-thru traffic noise is estimated to be about 65 dBA at the north property line. Traffic noise (tire/motor noise) is exempt from the Oregon Department of Environmental Quality (DEQ) regulation. Predicted noise levels for the Taco Bell restaurant will be in compliance with the City of Tigard and State of Oregon DEQ sound regulations. :hibit LUBA NO. 94-211 1.1 Exhibit NO. 1-3 - Page No. Q4J VGO, Inc 6igineers August 18, 1994 File: 94070 2.0 INTRODUCTION The proposed Taco Bell Store #06-0817 (restaurant) site is located at 11635 S.W. Pacific Highway, Tigard, Oregon. The site property is bounded on the North by residences, on the East by a restaurant, the West by an auto body shop, and the South by the highway. This study was made primarily to determine what the noise levels will be at the North and East property lines and to determine if they are within those levels allowed by the City of Tigard, Oregon and the State of Oregon DEQ regulations. New noise sources generated because of the proposed Taco Bell Store will consist of entering, parking, and exiting motor vehicles, radios and tape players, customers in the parking lot, drive-thru motor vehicles idling, food order loudspeakers, and HVAC units on the roof of the restaurant. The fire and motor noise from motor vehicles and customers in the parking lot are exempt from the-City of Tigard and State DEQ. LUBA NO. 94-211 2.1 Exhibit No. Page No. a`-4 VVE VV VGO, Inc Engineers August 18, 1994 File: 94070 3.0 STUDY METHODOLOGY All noise sources, the HVAC equipment on the roof of the proposed Taco Bell store, the drive-thru ordering loudspeaker, and drive-thru traffic are estimated from utilization of typical examples. The power levels of these noise sources, generated by the restaurant, their distance from the closest residence, and calculation of the noise level at the closest home are shown. 3.1 Figure 1 on page 8.1 shows the proposed location of the restaurant with respect to the homes nearby, the drive-thru food order loudspeakers, and highway and drive-thni traffic. Existing location of the Foothill Motel and other buildings that will be demolished are also shown. 3.2 The sound coming from the rooftop equipment at this proposed Taco Bell is assumed to be similar to existing fast food restaurants. VGO, Inc. used data taken from the roof of the Burger King restaurant located at 1330 N.E. Highway 99 in Salmon Creek, Washington. The sound pressure level was measured on the roof of the Burger King restaurant; and these measurements were used to project the noise impact on the closest residence to the proposed Taco Bell restaurant, located at 11620 S.W. Pacific Highway. 3.3 Measurements of the sound levels near a menu and order "drive-thru" loudspeaker were taken 30' from the menu board at the Burger King restaurant, to establish the noise level from the food ordering process. This included engine idling noise which is exempt from the regulations. We also took into account information from Dynatech in their letter of 6/3/93 to Planning/Design Group (PDG); see page A.13. 3.4 Traffic noise analysis was made for drive-thru traffic. VGO, Inc. took traffic noise data from an idling vehicle for calculation purposes. An assumption was made that eight idling vehicles are waiting to be served at any one time. LUBA NO. 94-211 3.1 Exhibit No. ) 3 _ Page No. dQ~ V rAdh Aft VE M/ VGO, Inc Engineers August 18, 1994 File: 94070 4.0 SOUND LEVEL CRITERIA 4.1 The State of Oregon DEQ Noise Control Regulations for Industry and Commerce No. 340-35-035 allows statistical noise level in any one hour to be as shown in Table 4.1 (see complete regulation on pages A-1 through A-6. Table 4.1 Allowable Statistical Noise Level in Any One Hour, in dBA 7AM - 10PM 10PM - 7AM L50 55 50 L10 60 55 L, 75 60 L,, 1-10, and L50 is the sound level exceeding 1 10%, and 50% of the time, respectively. Sound created by tires and motors of road vehicles is exempt from the City of Tigard and State DEQ regulations. (See Section (5)(c) in the Appendix, page A.3.) 4.2 The City of Tigard Environmental Performance Standard 18.90.030 adapted the DEQ regulations (see A.7 and A.8). LUBA NO. 94-211 Exhibit No. 4.1 Page No. 40 M/ VGO, Inc IV Engineers August 18, 1994 File: 94070 5.0 AMBIENT NOISE LEVEL On August 12, 1994, VGO, Inc. conducted an ambient noise level survey at two locations (see Figure 1). Location #1 is at the north end of the property, west of the Foothill Motel; Location #2 is at the south end of the motel, where the barber shop was formerly located. Feld notes and calculations are shown on pages A.9 through A.12. Table 5.1 is a summary of the statistical noise levels measured. Table 5.1 Measured Statistical Noise Levels Location Time L, L,o 1-50 L90 L q 1 03:00-03:20 57 51 48 42 49 2 03:40-04:00 73 66 61 53 63 The source of the ambient noise is traffic on Pacific Highway, and welding, pounding, impact wrenches, air compressors, and grtnding in the body shop west of the site. The ambient noise at location #1 is within the allowable levels. LUBA NO. 94-211 5.1 Exhibit No. 1 Page No. Q4 `J FAdh VGO, Inc Engineers August 18, 1994 File: 94070 6.0 FINDINGS 6.1 The HVAC sound from the restaurant rooftop equipment is predicted to be about 30 dBA, which is below the ambient level of the traffic on Pacific Highway; it is negligible. 6.2 Measurements of typical drive-thru ordering loudspeaker sound levels at the Burger King location indicate there will be a level of 55-63 dBA at a distance of 30' from the loudspeaker. Most of the noise measured was generated by idling vehicles (which are exempt from the regulations), not the speaker system. The noise at the property line 80' from the loudspeaker on this basis would be 47-52 dBA. Based on the information contained in the Dynatech letter to PDG, 6/3/93, (A-13), the sound pressure level, emanating from the ordering loudspeaker, will be in the order of 42-47 dBA at the North property line, 80' from the loudspeaker. 6.3 Traffic noise level for drive-thru traffic on the north property line is calculated to be about 65 dBA. This is exempt, based on Section (5)(c) of the State of Oregon DEQ regulations, as indicated on page A.3. 6.4 Noise generated from sound systems in motor vehicles in the drive-thru and parking lot, vehicle passengers and walk-in customers, cannot be predicted, and therefore no attempt was made to analyze them. LUBA NO. 94-211 6.1 Exhibit No. I- Page No. l~r N rAgh Alk VGO, Inc Engineers August 18, 1994 File: 94070 7.0 CONCLUSION The predictable noise levels of the proposed Taco Bell Store #06-0817 will be in compliance of the City of Tigard and State of Oregon DEC) noise control regulations for industry and commerce. LUBA NO. 94-211 Exhibit No. I 7.1 Page No. ""0.90 L "6!~ ww.n W .Y.. \ .1 M Y. EXISTING AUTO BODY SHOP WM IY \ I I I I I I I \ DRIVE-THRU \ - - - - LOUDSPEAKER too ..r. ` ` OO 1 ~ ~ PROPOSFD 8 ~ pso \ • 1 TACO BELL % 1111 G ` , 1 m 1 M-70-H O yea \ , - 1.: RES. c 4A p 0fm ~y~L a I I y 1 5 D mvr \ 2 I l l lI I I i 1 3 ROES. 00 r- a s (n \ ` I 11 T .-i-r J 1 00 q -A -0 Z:n rmn m 1 L. GAR. V = I? :E c r z COMMERCIAL RESTAURANT iiR-Mi l i1r g s 1 SHEET NOTES: M/ O1 NOISE SURVEY POSITION No. 1 o O2 NOISE SURVEY POSITION No. 2 ACOUSTICAL SITE PLAN - Figure 1 OO Exrsn►+c foonuu MOTEL TO BE DEwOUSHED. ~QU SCALE! 1*-&W 4O Exam COMMERCIAL BUILDING TO BE DEMOLISHED. U 1610 O5 EXISTING STRUCTURE LOCATIONS APPROXIMATED FROM AERIAL O PHOTOGRAPH. i 4 LUBA NO.94211 Exhibit No. _0 Page No. a.,sn V r/lk Ark MS VGO, Inc 6~neers August 18, 1994 File: 94070 APPENDIX LUBA NO. 94-211 A Exhibit No. Page No. .M_ ise'_iC t o !rYB nu atlidn'dW.o'i.Zrid"aa7'r and!~Fmer- Fe 340-35-035 (1) "`Stand'a'rds''°'abd-Regulation's (a) Existing Noise Sources. No person owning or controlling an existing industrial or commercial noise source shall cause or permit the operation of that noise source if the statistical noise levels generated by that source and measured at an appropriate measurement point, specified in subsection (3)(b) of this section, exceed the levels specified in Table 7, except as otherwise provided in these rules. (b) New Noise Sources. (;A rNew~,Sources Located on.--Previously:-,,Used Sites.. No person owning or controlling a new industrial or commercial noise source located on a previously used industrial or commercial site shall cause or permit the operation of that noise source _ if the statistical noise levels generated by that new source and measured at an appropriate measurement point, specified in subsection (3)(b) of this section, exceed the levels specified in Table 8, except as otherwise provided in these rules. (B) •~i-Nev Sources=-Located c:onrPrevlouslyuIInused •Sitefr (i) No person owning or controlling a new industrial or commercial noise source located on a previously unused industrial or commercial site shall cause or permit the operation of that noise source if the noise levels generated or indirectly caused by that noise source.inerease the ambient statistical noise levels L10 or L50, by more than 10 dBA in any one hour, or exceed the levels specified in Table 8, as measured at an appropriate measurement point, as specified in subsection (3)(b)-of this rule. (ii) The ambient statistical noise level of a new industrial or commercial noise source on a previously unused industrial or commercial site shall include all noises generated or indirectly caused by or attributable to that source, including all of its related activities. Sources exempted from the requirements of section (1) of this rule, which are identified in subsection (5)(b), (5)(c), (5)'(d), (5)(e), (5)(f)', (5)(J), and (5)(k) of this rule, shall not be excluded from this ambient measurement. (c) Repealed (d) Quiet Areas. No person owning or controlling an industrial or commercial noise source located either within the boundaries of a Quiet Area or outside its boundaries shall cause or permit the operation of that noise source if the statistical noise levels generated by that source exceed the levels specified in Table 9 as measured within the Quiet Area and not less than 400 feet (122 meters) from the noise source. (e) Impulse Sound. Notwithstanding the noise rules in Tables 7 through 9, no person owning or controlling an industrial or commercial noise source shall cause or permit the operation of that noise source if an impulsive sound is emitted in air by that source which exceeds the sound pressure levels specified below, as measured at an appropriate measurement point, as specified N P 13 9 2. C LUBA NO. 94-211 Exhibit No.1 A.1 Page No. in subsection (3)(b) of this rule: (A) Blasting. 98 dBC, slow response, between the hours of T am and 10 pm and 93 dBC, slow response, between the hours of 10 pm and T am. (B) All Other Impulse Sounds. 100 db, peak response, between the hours of T am and 10 pm and 80 dB, peak response, between the hours of 10 pm and T am. (f) Octave Bands and Audible Discrete Tones. When the Director has reasonable cause to believe that the requirements of subsections (1)(a), (1)(b), or (1)(d) of this rule do not adequately protect the health, safety or welfare of the public as provided for in ORS Chapter 146T, the Department may require the noise source to meet the following rules: (A) Octave Bands. No person owning or controlling an industrial or commercial noise source shall cause or permit the operation of that noise source if such operation generates a median octave band sound pressure level which, as measured at an appropriate measurement point, specified in subsection (3)(b) of this rule, exceeds applicable levels specified in Table 10. (B) = One-third Octave Bands. No person owning or controlling an industrial or commercial noise source shall cause or permit the operation of that noise source if such operation generates a median one-third-octave band sound pressure level which, as measured at an appropriate measurement point, specified in subsection (3)(b) of this rule, and in a one-third octave band at a preferred frequency, exceeds the arithmetic average of the median- sound pressure levels of the two adjacent one-third octave bands by: (1)- 5 dB for such one-third octave band with a center frequency from 500 Hertz to 10,000 Hertz, inclusive. Provided: such one-third octave band sound pressure level exceeds the sound pressure level of each adjacent one-third octave band, or; (ii) 8 dB for such one-third octave band with a center frequency from 160 Hertz to 1400 Hertz, inclusive. Provided: such one-third octave band sound pressure level exceeds the sound pressure level of each adjacent one-third octave band, or; (iii) 15 dB for such one-third octave band with a center frequency from 25 Hertz to 125 Hertz, inclusive. Provided: such one-third octave band sound pressure level exceeds the sound pressure level of each adjacent one-third octave band. This rule shall not apply to audible discrete tones having a one-third octave band sound pressure level 10 dB or more below the allowable sound pressure levels specified in Table 10 for the octave band which contains such one-third octave band. (2) Compliance. Upon written notification from the Director, the owner or controller of an industrial or commercial noise source operating in violation of the adopted rules shall submit a compliance schedule acceptable to the Department. The schedule will set forth the dates, terms, and conditions by which N P 13 9 2. C LUBA NO. 94-211 Exhibit No. 3 2 Page No. ~3 . A. the person responsible for the noise source shall comply with the adopted rules. `~(~~3):~:2ieasur~ement::. (a) Sound measurement procedures shall conform to those procedures which are adopted by the Commission and set forth in Sound Measurement Procedures Manual (NPCS-1) or to such other procedures as are approved in writing by the Department. (b) Unless otherwise specified the appropriate measurement point shall be that point on the noise sensitive property, described below, which is further from the noise source: (A) 25 feet (7.6 meters) toward the noise source from that point on the noise sensitive building nearest the noise source, (B) That point on the noise. sensitive property line nearest the noise source. (41 .Monitoring and Reporting:. (a) Upon written notification from the Department, persons owning or controlling an industrial or commercial noise. source shall monitor and record the statistical noise levels and operating times of equipment, facilities, operations, and activities, and shall submit such data to the Department in the form and on the schedule requested by the Department. Procedures for such measurements shall conform to those procedures which are adopted by the Commission and set forth in Sound Measurement Procedures Manual (NPCS-1). (b) Nothing in this section shall preclude the Department from conducting separate or additional noise tests and measurements. Therefore, when requested by the Department, the owner or operator of an industrial or commercial noise source shall provide the following: (A) Access to the site, (B) Reasonable facilities, where available, including but not limited to electric power and ladders adequate to perform the testing, (C) Cooperation in the reasonable operation, manipulation, or shutdown of various equipment or operations as needed to ascertain the source of sound and measure its emission. '(5) Exemptions. Except as otherwise provided in subsection (1)(b)(B)(ii), the rules in section (1) of this rule shall not apply to: (a) Emergency equipment not operated on a regular or scheduled basis. (b) Warning devices not operating continuously for more than 5 minutes. --)Pl- (c) Sounds created by the tires or motor used to propel any road vehicle complying with the noise standards for road vehicles. (d) Sounds resulting from the operation of any equipment or facility of a surface carrier engaged in interstate commerce by railroad only to the extent that such equipment or facility :s regulated by preemptive federal regulations as set forth in Part 201 of Title 40 of the Code of Federal Regulations, LUBA NO. 94-211 N P 13 9 2. C Exhibit No. I 3 A. 3 Page No. Ar-14 " S promulgated pursuant to section 17 of the Noise Control Act of 1972, 86 Stat: 1248, Pub. L. 92-576; but this exemption does not apply to any standard, control, license, regulation, or restriction necessitated by special local conditions which is approved by the Administrator of the EPA after consultation with the Secretary of Transportation pursuant to procedures set forth in section 17(c)(2) of the Act. (e) Sounds created by bells, chimes, or carillons. (f) Sounds not electronically amplified which are created by or generated at sporting, amusement, and entertainment events, except those sounds which are regulated under other noise standards. An event is a noteworthy happening and does not include informal, frequent or ongoing activities such as, but not limited to, those which normally occur at bowling alleys or amusement parks operating in one location for a significant period of time. (g) Sounds that originate on construction sites. (h) Sounds created in construction or maintenance of capital equipment. (i) Sounds created by lawn care maintenance and snow removal equipment. (J) Sounds generated by the operation of aircraft and subject to preemptive-federal regulation. This. exception does not apply to aircraft engine testing, activity conducted at-the airport that is not directly related to flight operations, and any other activity not preemptively regulated by the federal government or controlled under OAR 340-35-045. (k) Sounds created by the operation of road vehicle auxiliary equipment complying with the noise rules for such. equipment as specified in OAR 340-35-030(1)(e). (1) Sounds created by agricultural activities. (m) Sounds created by activities related to the growing or harvesting of forest tree species on forest land as defined in subsection (1) of ORS 526.324. lb'). Mxureptloa=. Upon written request from the owner or controller of an industrial or commercial noise source, the Department may authorize exceptions to section 340-35-035(1), pursuant to rule 340-35-010, for: (a) Unusual and/or infrequent events. (b) Industrial or commercial facilities previously established in areas of new development of noise sensitive property. (c) Those industrial or commercial noise sources whose statistical noise levels at the appropriate measurement point are exceeded by any noise source external to the industrial-or commercial noise source in question. (d) Noise sensitive property owned or controlled by the person who controls or owns the noise source. (e) Noise sensitive property located on land zoned exclusively for industrial or commercial use. LUBA NO. 94-211 NP1392.C Exhibit No. 13 A.4 Page No. Q SS TABLE 8 (340-35-035) New Industrial and Commercial Noise Source Standards Allowable Statistical Noise Levels in Any One Hour 7 a. m. 10 p.m. 10 p.m. 7 a.m. L50 - 55 dBA L50 - 50 dBA L10 - 60 dBA L10 - 55 dBA L 1 - 75 dBA L 1 - 60 dBA 1 TABLE 9 (340-35-035) Industrial and Commercial Noise Source Standards for Quiet Areas Allowable Statistical Noise Levels in Any One Hour 7 a.m. 10 p.m: 10 n.m. 7 a.m. LSp - 50 dBA L50 - 45 dBA L10 - 55 dBA L10 - 50 dBA L 1 - 60 dBA L 1 - 55 dBA r LUBA NO. 94-211 N P 13 9 2. C Exhibit No. 13 Page No. Q 5u A.5 1 TABLE 10 (340-35-035) Median Octave Band Standards for Industrial and Commercial Noise Sources Allowable Octave Band Sound Pressure Levels Octave Band Center Freauencv. H2 7 a.m. - 10 p.m. 10 o.m. 31.5 68 65 63 65 62 125 61 56 250 55 50 500 52• 46 1000 49 43 2000 46 40 4000 43 37 8000 40 34 LUBA NO. 94-211 N P 13 9 2. C Exhibit No. 13 A.6 Page No. a51 08/11/94 15:38 $503 684 7297 CITY OF TIGARD Q001/003 Chapter 18.90 ENPIROMMUTAL PERFORMANCE STANDARDS Sections: I8.90.010 Purpose 18.90.020 General provisions 18.90.030 Noise 18.90.040 Visible Emissions 18.90.050 Vibration 18.90.060 Odors 18.90.070 Glare and Heat 18.90.080 Insects and Rodents 18.90.010 Purpose A. The purpose of this chapter is to apply the federal and state environmental lags, rules, and regulations to development within the City of Tigard. (Ord. 89-06; Ord. 83-52) 18.90.020 General Provisions A. In addition to the regulations adopted in this chapter, each use, activity. or operation within the City of Tigard shall comply with the applicable state and federal standards pertaining to noise, odor. and discharge of matter into the atmosphere, ground, sewer system, or stream. S. Prior to issuance of a building permit, the Director may require suhmission of evidence demonstrating compliance with state, federal, and local environmental regulations and receipt of necessary permits. Air contaminant Discharge Permits (ACDP) or Indirect Source Construction Permits (13CP). C. Compliance with state, federal, and local environmental regulations is the continuing obligation of the property owner and operator. (Ord. 89-06; Ord. 84-24; Ord. 83-52) 18.90.030 Noise A. The followias additional restrictions are incorporated with the State Department of Environmental quality (DEq) standards for purposes of city noise regulation: 1. For purposes of measuring permitted sound levels from noise Generating sources under the provisions of DEQ rules any point where a noise sensitive building could be constructed under the provisions of this title shall apply as if such point contained a noise sensitive building; Post-It' Fax Note 7671 Out J wgo To PnpeR ~V.) PhM* . Revised 02/27/89 F1xW _ Fnon.. Page 196 LUBA NO. 94-211 Exhibit No. ( 3 A.7 Page No.~`~ vo/tt/V4 15:39 2T503 884 7297 CITY OF TI &RD Q002/003 2. Within the industrial perk (I-P) zoning district, each property or building under separate ownership from a noise generating source shall be considered a noise .sensitive property under the provision of DEQ rules with the exception that the allowable noise levels may be increased by five db; and 3. The construction including excavation, demolition, alteration, or repair of any building, except where a special permit has been issued by the Director under the provisions of Section 18.90.020, other than between the hours of seven a.m. and nine p.m. which involves any load, disturbing or unnecessary noise in the city, shall be deemed disorderly conduct and therefore unlawful. (ord. 89-06; Ord. 83-52) 18.90.040 Visible faissions A. Within the commercial zoning districts and the industrial park zoning district, there shall be no use, operation, or activity which results in a stack or other point source emission, other than an emission from space heating. or the emission of pure uncambined water (steam) which is visible from a property line. Department of Environmental Quality rules for visible emissions (340-21-015 and 340-28-070) apply. (Ord. 89.-06; Ord. 84-24; Ord. 83-52) 18.90.050 Vibration A. No vibration other than, that caused by highway vehicles, trains, and aircraft is permitted in any given zoning district which is discernible without zastrssmeats at the property line of the use concerned. (Ord. 89-06; Ord. 83-52) 18.90.060 Odors A.. The emission of odorous gases or other matter in such quantities as to be readily detectable at any point beyond the property line of the use creating the odors is prohibited. DEq rules for odors (340-028-090) apply. (Ord. 89-06; Ord. 84-24; Ord. 83-52) 18-90.070 Glare and Heat A. No direct or sky-reflected glare, whether from floodlights or from high temperature processes such as combustion or weldiaa or otherwise, which is visible at the lot line shall be permitted. and: 1. There shall be no emission or transmission of heat or heated air which is discernible at the lot line of the source; and wised 02/27/89 Page 197 LUBA No. 94-211 Exhibit No. r2 A.8 Page No. '40 IR/ VGO, Inc Er4rxws Statistical Sound Reading Project: "I cz r Project 4 v 0 7~ Type of Instrument: L (i pate: Wind Condition: T~hY M1 Site I Operator: X1( Ir Y 1 :00 21 :00 41 :00 -,4 61 :00 = 3 2 :15 5 22 :15 42 :15 S) 62 :15 v 6 3 :30 23 :30 43 :30 s y' 63 :30 Z 4 :45 24 :45 44 :45 64 :45 L 5 :00 ~-I C1 25 :00 ~J 9 45 :00 L I y 65 :00 6, 6 :15 L1 26 :15 46 :15 `a ? 66 :15 7 :30 ~-A 27 :30 47 :30 7 67 :30 8 :45 1 28 :45 p 48 :45 68 :45 v `I :00 -I 29 :00 y 49 :00 L17 69 :00 10 :15 Ll c 30 :15 50 :15 70 :15 11 :30 S 31 :30 y 51 :30 S 71 :30 12 :45 Li 1 32 :45 ~-l 52 :45 72 :45 13 :00 -1 33 :00 S; 53 :00 S U 73 :00 14 :15 34 :15 i 54 :15 74 :15 15 :30 1-1 35 :30 55 :30 `A `l 75 :30 y 16 :45 j 36 :45 5 % 56 :45 76 :45 17 :00 L1 37 :00 57 :00 77 :00 18 :15 > 38 :15 58 :15 78 :15 > L 19 :30 -~I 39 :30 59 :30 79 :30 20 :45 40, :45 60 :45 = 80 :45 n Comments: v' i li Zi] > j ( f y 4i vi W O° Z t Z22 ~ Qa~ ?Z t A.9 AC 385 J W C VGO, INC. Project #94070 For: Taco Bell Date: August 15, 94 Date of Data: August 12,94 Time Taken: 3:00 PM Position: Near 1162 SW Pacific Hwy 37 100.00% 80 38 98.75% 79 39 97.50% 78 40 97.50% 78 41 95.00% 76 42 91.25% 73 43 87.50% 70 44 85.00% 68 45 80.00% 64 46 73.75% 59 47 65.00% 52 48 53.75% 43 49 41.25% 33 50 26.25% 21 51 12.50% 10 52 8.75% 7 53 5.00% 4 54 3.75% 3 55 2.50% 2 56 1.25% 1 57 1.25% 1 A Percent Frc. Each Is One Reading dBA Average = 47.3 S.D. = 3.674 Error of Mean = 0.411 Leq = 49. L10 = 51. L50 = 48. L90 = 42 LUBA NO. 94-211 Exhibit No. 1._ A.10 Page No.-4~ 1 r VGO, Inc 0 ErKjw*ws Statistical Sound Reading Project: Project Type of Instrument: Date: 2 ? % 4 Wind Condition: Site Z operator: 1 :00 y 21 :00 Z 41 :00 ~Q 61 :00 v 2 :15 22 :15 S 42 :15 62 :15 r 77 3 :30 G 23 :30 V ^ 43 :30 63 :30 -71 4 :45 24 :45 L 44 :45 7 64 :45 5 :00 ~25 :00 45 :00 3 65 :00 ~6 :15 5 26 :15 46 :15 66 :15 6-1 7 :30 y 27 :30 (p j 47 :30 3 67 :30 3 8 :45 G ! 28 :45 48 :45 y 68 :45 L ~l 9 :00 29 :00 C 49 :00 c 69 :00 6 Z C1- J" 10 :15 L• ~I 30 :15 } 50 :15 (,7 70 :15 11 :30 31 :30 y 51 :30 6-1 71 :30 j 72 :45 ij 12 :45 • Z 32 :45 52 :45 t? 13 :00 33 :00 ; ~i 53 :00 73 :00 j 14 :15 ff °I 34 :15 ~v 54 :15 5 74 :15 15 :30 35 :30 55 :30 75 :30 16 :45 36 :45 ( 56 :45 G 76 :45 17 :00 37 :00 57 :00 5(, 77 :00 t, Li 18 :15 6 38 :15 j 58 :15 6.1-1 78 :15 19 :30 39 :30 i 7 59 :30 L; ; 79 :30 20 :45 40 :45 Z 60 :45 7 80 :45 I` ✓ Comments: ✓ ti~ c P1 rr' e(: N r • O Z C AC 385 J A. 1 _1 VGO, INC. Project #94070 For: Taco Bell Date: August 15, 94 Date of Data: August 12,94 0 Time Taken: 3:20PM Position: 50 ft from Hwy 99W 42 100.00% 80 43 98.75% 79 44 98.75% 79 45 98.75% 79 46 98.75% 79 47 98.75% 79 48 98.75% 79 49 98.75% 79 50 98.75% 79 51 97.50% 78 52 97.50% 78 53 92.50% 74 54 87.50% 70 55 83.75% 67 56 82.50% 66 57 78.75% 63 58 77.50% 62 59 71.25% 57 60 67.50% 54 61 53.75% 43 62 47.50% 38 63 37.50% 30 "4 30.008 24 18.75% 15 6 12.50% 10 67 8.75% 7 68 5.00% 4 69 3.75% 3 70 2.50% 2 71 2.50% 2 72 1.25% 1 73 1.25% 1 dbA Percent Frc. Each Is One Reading dBA Average = 60.5 S.D. = 5.145 Error of Mean = 0.575 Leq = 63. L10 = 66. L50 = 61. L90 = 53 • LUBA NO. 94-211 Exhibit No. 13 A.12 Page No. 3 AX UG-17-94 WED 15:10 P. 02 r . DYbPTECH WIRG-MS PttOC Ido. 629 753 5020 Jun.64 1993 7:eSW Pal .4 winot.Eaa TG'CNNOto~l~g June Z, 1993 Don Hardy PDC 122 S.E. 27th Portland, OR 97214 Dear Don, Per your requaat loot month, Y am nddroaaing the specific audio lcvol ioaues on the cito in Portland, Oregon. Aa a preface, all Dynatech Wirelece Communication Syatoma arc aqufppad with an outbound volumo control on the base atation/amplifLQr. In addition to the volume control, which is houSOd inside the unit, there is a switch marked Day - Night for use by the store employees. What this switch does is in the day position produce the standard outbound volume, in the night position tho sound pressure level is lowered by 5 decibels. Don, all our systems are set at the factory to what has been determined to be the optimum volume/sound pressure level for a car sitting three feet from the speaker, 65 decibels during the day or in the night setting 60 decibels. The specific site plan you provided shows the property line at 19 feat from the speaker post or 16 feet from where we measure sound levels. 'it iG my opinion based on experience that the sound pressure level in decibels ac it reaches the property line would be approximately 52 decibels in the Day setting and 47 decibels with the switch in the night position. Here is a bit of a chart for your future reference utiliZing the ~ "Inverse Square Law". Distance from 5f'-~*~ `U''~ P~ f"~~'• sound source aft 6ft 12ft 24ft 48ft 96ft Day setting 65dB 59da 53dB 47d5 41dS 35dB Wight setting 60dL 54dD 48db 42dB 36dS 30db Feel free to call me if 1 can be of further assistance. Sincerely, LUBA NO. 94-211 _ Brad King Exhibit No. 15 Director of Saluq A.13 Page No. SILL-1 7.40.110--7.40.130 to any one.automobile, truck, bus, trailer or piece of ve- hicular equipment; (c) Used or dismantled household appliances, furniture, other discards or junk, for more than five days. (Ord. 86-20 §4 (Exhibit C (5) (4) ) , 1986) . 7.40.110 Attractive nuisances. (a) No owner or re- sponsible party shall permit on the property: (1) Unguarded machinery, equipment or other devices which are attractive, dangerous, and accessible to children; (2) Lumber, logs, building material or piling placed or stored in a manner so as to be attractive, dangerous, and accessible to children; (3) An open pit, quarry, cistern, or other excava- tion without safeguards or barriers to prevent such places from being used by children; or (4) An exposed foundation or portion of foundation, any residue, debris or other building or structural remains, for more than thirty days after the destruction, demolition or removal of any building or portion of the building. (b) This section shall not apply to authorized con- struction projects with reasonable safeguards to prevent injury or death to playing children. (Ord. 86-20 §4(Exhibit C(5) (5)) , 1986). 7.40.120 Scattering rubbish. No person shall deposit upon public or private property any kind of rubbish, trash, debris, refuse, or any substance that would mar the appear- ance, create a stench or fire hazard, detract from the clean- liness or safety of the property, or would be likely to injure a person, animal, or vehicle traveling upon a public way. (Ord. 86-20 §4(Exhibit C(5)(6)), 1986). ARTICLE IV. NUISANCES AFFECTING THE PUBLIC PEACE 7.40.130 Noise--Definitions. For purposes of this section and Sections 7.40.130 through 7.40.210, the follow- ing mean: (a) "Ambient noise" means the all-encompassing noise associated with a given environment, being usually a com- posite of sounds from many sources, near and far. For the purpose of this article, ambient noise level is the level obtained when the noise level is averaged over a minimum -period of fifteen minutes at a specific location without inclusion of noise from isolated identifiable sources. a (b) "Commercial land use" means any use which is a permitted or conditional use in the C-F, C-G, CBD, and C-N zoning districts, as identified in Title 18. N (c) "Industrial land use" means any use which is a permitted or conditional use in the I-P, I-L, and I-H zoning districts as identified in Title 18. ' a Z?Z 87-1 (Tigard 4/15/90) xC CM 5Wa EX-hibit 4 7.40.140--7.40.180 (d) "Noise-sensitive land use" means any portion of a { church, children day care, hospital, residential group care, school, single or multifamily dwelling unit, and mobile home that is intended for living, sleeping or eating. This def- inition includes areas or structures such as yard.areas, patios, and garages as well as commercial and industrial land uses. (Ord. 90-03 51(part), 1990). 7.40.140 Motor vehicle noises. (a) Motor vehicles shall operate in a manner which complies with applicable state motor vehicle noise regulations. (b) The idling of engines and auxiliary equipment on motor vehicles on private property, which exceed the noise standards specified in Sections 7,40.170 and 7.40.180, shall not be permitted for a.period greater than five minutes. (Ord 90-03 51(part), 1990). 7.40.150 Jake brakes prohibited. No person shall oper- ate within the city limits of the city a motor vehicle ex- haust-braking system commonly known as a "jake brake." For the purposes of this section, the exceptions set forth in Section 7.40.190 shall not apply and this section shall be read as an absolute prohibition'of the operation of such motor vehicle braking systems within the city. (Ord.'90-03 51(part), 1990). 7.40.160 Noise emanatina from certain property. Ex- cept as may be expressly allowed pursuant to the provisions of Sections 7.40.140, 7.40.190 and 7.40.200, no person shall cause or permit noise to emanate from the property under his or her control so as to cause the ambient noise level at the nearest noise sensitive land use to exceed the levels speci- fied in Sections 7.40.170-and 7.40.180. (Ord. 90-03 51(part), 1990). 7.40.170 Allowable noise limits. For the purposes of this section, the regulations and maximum noise level stan- dards contained in Chapter 340, Oregon Adminstrative Rules, Division 35, Noise Control Regulations for Industry and Com- merce shall apply. (Ord. 90-03 51(part), 1990). 7.40.180 Standard for measurement. (a) Measurements shall be made with a calibrated sound level meter meeting the requirements of a Type I or Type II meter, as specified by the American National Standard Specification for Sound 'Level Meters (ANSI Standards 1.4-1971). For purposes of this article, a sound level meter shall contain at least a recording calibration curve for an "A" weighing network, and both fast and slow meter response capability. r (b) Persons conducting sound level measurements shall N have received training in the techniques of sound measure- ment and the operation of sound measuring instruments from OZ 87-2 (Tigard 4/15/90) m a I C .40.190--7.40.200 the Department of Environmental Quality, a registered acous- tical engineer or other competent body prior to engaging in any enforcement activity. (c) Noise measurements shall be taken in accordance with Chapter 340, Oregon Adminstrative Rules, Division 35, Noise Control Regulations for Industry and Commerce. (Ord 90-03 §1(part), 1990). 7.40.190 Noise--Exemptions to restrictions. The re- strictions imposed by Sections 7.40.130 through 7.40.180 shall not apply to the following: (a) Emergency equipment not operating on a regular or scheduled basis; (b) Noise emanating from all public streets; (c) Sounds originating on construction sites and rea- sonably necessary to the accomplishment of work in progress; provided, however, that no construction work may be darried out between the hours of nine p.m. and seven a.m. Monday through Friday, nine p.m. and eight a.m. on Saturday, and nine p.m. and nine a.m. on Sunday except for bona fide emer- gencies where the public health or safety is threatened or for which a special permit, granted by the city administra- tor, has first obtained in accordance with the procedures contained in Section 7.40.200; and (d) Lawn, garden or household equipment associated with the normal repair, upkeep or maintenace of property. (Ord. 90-03 Sl(part), 1990). 7.40.200 Permits required for exceeding allowable noise levels. (a) The use of amplified voice and music or cre- ation of noise at levels which would otherwise exceed those permissible under Section 7.40.130 through 7.40.190 may be allowed upon application to the city administrator. Applica- tion for an amplified sound permit shall be made to the city administrator on forms prepared by the city. The applicant shall identify the date, location and time of the event for which the permit is sought, and shall provide an estimate of the duration of the event. (b) In the case of a series of similar events to be conducted at the same location, the city administrator may, at his discretion, issue the permit in a form extending to cover the entire series. (c)' The city administrator shall grant a permit in any instance in which the event and its accompanying noise will not, in his judgment, interfere unreasonably with the peace of those likely to be affected by the noise. In making this judgment, he shall take into account the nature of the sur- rounding properties and the benefit to the community of the event for which the application is made. The permit shall be subject to immediate revocation by the administrator if any conditions of the permit are violated. 87-3 (Tigard 4/15/90) LUBA NO. 94-211 Exhibit No. _ Page No. T' 0 7.40.210 (d) The city administrator may submit any question arising with respect to this section to the city council, and if any member of the city council requests its submis- sion to the council, any such question shall be heard by the council. In either event, the decision of the city council shall be final. (Ord. 90-03 51(part), 1990). ARTICLE VI. VIOLATION--PENALTY 7.40.210 Penaltv for chanter violations. (a) A vio- lation of this chapter shall constitute a Class 1 civil infraction, which shall be processed according to the proce- dures established in the civil infractions ordinance, set out at Chapter 1.16 of this code. Notice to abate the nui- sance shall be a prior contract. (b) Each violation of a separate provision of this chapter shall constitute a separate infraction, and each day that a violation of this chapter is committed or permitted to continue shall constitute a separate infraction. (c) A finding of a violation of this chapter shall not relieve the responsible party of the duty to abate the vio- lation. The penalties imposed by this section are in addi- tion to and not in lieu of any remedies available to the city. (d) If a provision of this chapter is violated by a firm or corporation, the officer or officers, or person or persons responsible for the violation shall be subject to the penalties imposed by this chapter. (Ord. 90-03 51(part), 1990). 87-4 (Tigard 4/15/90) LUBA NO. 94-211 Exhibit No. 1. Page No. (Publication: The Publication(s) referred to or incorporated by reference in this rule are available from the office of the Den_artment of Environmental Quality.) Stat. Auth.: ORS Ch. 467 Hist.: DEQ 75, f. 7-25-74, ef. 8-25-74; DEQ 119, f. & ef. 9-1-76; DEQ 135, f. & ef. 6-7-77; DEQ 147(Temp), f. & ef. 12-1-77; DEQ 2-1978, f. & ef. 3-1-78; DEQ 7-1983, f. & ef. 4-22-83 (ED. NOTE: The text of Temporary Rules is not printed in the Oregon Administrative Rules Compilation. Copies may be obtained from the adopting agency or the Secretary of State.) Noise Control Regulations for Industry and Commerce 340-35-035 (1) Standards and Regulations: (a) Existing Noise Sources. No person owning or controlling an existing industrial or commercial noise source shall cause or permit the operation of that noise source if the statistical noise levels generated by that source and measured at an appropriate measurement point, specified in subsection (3) (b) of this rule, exceed the levels specified in Table 7, except as otherwise provided in these rules. (b) New Noise Sources: (A) New Sources Located on Previously Used Sites. No person owning or ontrolling a new industrial or commercial noise source located on a _reviously used industrial or commercial site shall cause or permit the operation of that noise source if the statistical noise levels generated by that new source and measured at an appropriate measurement point, specified in subsection (3)(b) of this rule, exceed the levels specified in Table 8, except as otherwise provided in these rules. (B) New Sources Located on Previously Unused Site: (i) No person owning or controlling a new industrial or commercial noise source located on a previously unused industrial or commercial site shall cause or permit the operation of that noise source if the noise levels generated or indirectly caused by that noise source increase the ambient statistical noise levels, L10 or L50, by more than 10 dBA in any one hour, or exceed the levels specified in Table 8, as measured at an appropriate measurement point, as specified in subsection (3)(b) of this rule. (ii) The ambient statistical noise level of a new industrial or commercial noise source on a previously unused industrial or commercial site shall include all noises generated or indirectly caused by or attributable to that source including all of its related activities. Sources exempted from the requirements of section (1) of this rule, which are identified in subsections (5) (b) - (f) , (5) (j) , and (5) (k) of this rule, shall not be excluded from this ambient measurement. 0 (c) Quiet Areas. No person owning or controlling an industrial or commercial noise source located either within the boundaries of a quiet area or outside its boundaries shall cause or permit the operation of that LUBA NO. 94-211 Exhibit No. 12-D~ Exhibit 4 Page No. noise source if the statistical noise levels generated by that source exceed the levels specified in Table 9 as measured within the quiet area and not less than 400 feet (122 meters) from the noise source. 0 (d) Impulse Sound. Notwithstanding the noise rules in Tables 7 hrough 9, no person owning or controlling an industrial or commercial noise source shall cause or permit the operation of that noise source if an impulsive sound is emitted in air by that source which exceeds the sound pressure levels specified below, as measured at an appropriate measurement point, as specified in subsection (3)(b) of this rule: (A) Blasting. 98 dBC, slow response, between the hours of .7 a.m. and 10 p.m. and 93 dBC, slow response, between the hours of 10 p.m. and 7 a.m. (B) All Other Impulse Sounds. 100 db, peak response, between the hours of 7 a.m. and 10 p.m. and 80 dB, peak response, between the hours of 10 p.m. and 7 a.m. (f) Octave Bands and Audible Discrete Tones. When the Director has reasonable cause to believe that the requirements of subsections (1)(a), b), or (c) of this rule do not adequately protect the health, safety, or welfare of the public.as provided for in ORS Chapter 467, the Department may require the noise source to meet the following rules: (A) Octave Bands. No person owning or controlling an industrial or commercial noise source shall cause or permit the operation of that noise source if such operation generates a median octave band sound pressure level which, as measured at an appropriate measurement point, specified in subsection (3)(b) of this rule, exceeds applicable levels specified in ~le 10. (B) One-third Octave Band. No person owning or controlling an industrial or commercial noise source shall cause or permit the operation of that noise source if such operation generates a median one-third octave band sound pressure level which, as measured at an appropriate measurement point, specified in subsection (3)(b) of this rule, and in a one-third octave band at a preferred frequency, exceeds the arithmetic average of the median sound pressure levels of the two adjacent one-third octave bands by: (i) 5 dB for such one-third octave band with a center frequency from 500 Hertz to 10,000 Hertz, inclusive. Provided: Such one-third octave band sound pressure level exceeds the sound pressure level of each adjacent one- third octave band; or (ii) 8 dB for such one-third octave band with a center frequency from 160 Hertz to 400 Hertz, inclusive. Provided: Such one-third octave band sound pressure level exceeds the sound pressure level of each adjacent one- third octave band; or (iii) 15 dB for such one-third octave band with a center frequency from 25 Hertz to 125 Hertz, inclusive. Provided: Such one-third octave band sound pressure level exceeds the sound pressure level of each adjacent one-third octave band. i This rule shall not apply to audible.discrete tones having a one- third octave band sound pressure level 10 dB or more below the allowable sound pressure levels specified in Table l0 for the octave band which LUBA NO. 94-211 Exh(bit No. + 2, Page No. DI contains such one-third octave band. (2) Compliance. Upon written notification from the Director, the wner or controller of an industrial or commercial noise source operating violation of the adopted rules shall submit a compliance schedule cceptable to the Department. The schedule will set forth the dates, terms, and conditions by which the person responsible for the noise source shall comply with the adopted rules. (3) Measurement: (a) Sound measurements procedures shall conform to those procedures which are adopted by the Commission and set forth in Sound Measurement Procedures Manual (NPCS-1), or to such other procedures as are approved in writing by the Department. (b) Unless otherwise specified, the appropriate measurement point shall be that point on the noise sensitive property, described below, which is further from the noise source: (A) 25 feet (7.6 meters) toward the noise source from that point on the noise sensitive building nearest the noise source; (B) That point on the noise sensitive property line nearest the noise source. (4) Monitoring and Reporting: (a) Upon written notification from the Department, persons owning or S ntrolling an industrial or commercial noise source shall monitor and cord the statistical noise levels and operating times of equipment, facilities, operations, and activities, and shall submit such data to the Department in the form and on the schedule requested by the Department. Procedures for such measurements shall conform to those procedures which are adopted by the Commission and set forth in Sound Measurement Procedures Manual (NPCS-1). (b) Nothing in this rule shall preclude the Department from conducting separate or additional noise tests and measurements. Therefore, when requested by the Department, the owner or operator of an industrial or commercial noise source shall provide the following: (A) Access to the site; (B) Reasonable facilities, where available, including but not limited to, electric power and ladders adequate to perform the testing; (C) Cooperation in the reasonable operation, manipulation, or shutdown of. various equipment or operations as needed to ascertain the source of sound and measure its emission. (5) Exemptions: Except as otherwise provided in subparagraph (1)(b)(B)( ii) of this rule, the rules in section (1) of this rule shall not apply to: (a) Emergency equipment not operated on a regular or scheduled basis. (b) warning devices not operating continuously for more than 5 minutes. LUBA NO. 94-211 Exhibit No. Page No. ~*~_L. (c) Sounds created by the tires or motor used to propel any road vehicle complying with the noise standards for road vehicles. (d) Sounds resulting from the operation of any equipment or facility Of a surface carrier engaged in interstate commerce by railroad only to the extent that such equipment or facility is regulated by pre-emptive federal regulations as set forth in Part 201 of Title 40 of the Code of Federal Regulations, promulgated pursuant to Section 17 of the Noise Control Act of 1972, 86 Stat. 1248, Public Law 92-576; but this exemption does not apply to any standard, control, license, regulation, or restriction necessitated by special local conditions which is approved by the Administrator of the EPA after consultation with the Secretary of Transportation pursuant to procedures set forth in Section 17(c)(2) of the Act. (e) Sounds created by bells, chimes, or carillons. (f) Sounds not electronically amplified which are created by or generated at sporting, amusement, and entertainment events, except those sounds which are regulated under other noise standards. An event is a noteworthy happening and does not include informal, frequent, or ongoing activities such as, but not limited to, those which normally occur at bowling alleys or amusement parks operating in one location for a significant period of time. (g) Sounds that originate on construction sites. (h) Sounds created in construction or maintenance of capital ivment. W Sounds created by lawn care maintenance and snow removal equipment. (j) Sounds generated by the operation of aircraft and subject to pre- emptive federal regulation. This exception does not apply to aircraft engine testing, activity conducted at the airport that is not directly related to flight operations, and any other activity not pre-emptively regulated by the federal government or controlled under OAR 340-35-045. (k) Sounds created by the operation of road vehicle auxiliary equipment complying with the noise rules for such equipment as specified in OAR 340-35-030 (1) (e) . (1) Sounds created by agricultural activities. (m) Sounds created by activities related to the growing or harvesting of forest tree species on forest land as defined in subsection (1) of ORS 526.324. % (6) Exceptions: Upon written request from the owner or controller of an industrial or commercial noise source, the Department may authorize exceptions to section (1) of this rule, pursuant to rule 340-35-010, for: (a) Unusual and/or infrequent events; (b) Industrial or commercial facilities previously established in areas of new development of noise sensitive property; • LUBA NO. 94-211 Exhibit No. 1h Page No.. a? (c) Those industrial or commercial noise sources whose statistical noise levels at the appropriate measurement point are exceeded by any noise source external to the industrial or commercial noise source in ~estion; . (d) Noise sensitive property owned or controlled by the person who controls or owns the noise source; (e) Noise sensitive property located on land zoned exclusively for industrial or commercial use. [ED. NOTE: The tables referenced in the above rule may be obtained from the adopting agency or the Secretary of State.] [Publication: The Publication(s) referred to or incorporated by reference in this rule are available from the office of the Department of Environmental Quality.] Stat. Auth.: ORS Ch. 467 Hist.: DEQ 77, f. 9-5-74, ef. 9-25-74; DEQ 135, f. & ef. 6-7-77; DEQ 8-1980, f. & ef. 3-11-80; DEQ 7-1983, f. & ef. 4-22-83 Noise Control Regulations for Motor Sports Vehicles and Facilities 340-35-040 (1) Statement of Purpose: (a) The Commission finds that the periodic noise pollution caused by Oregon motor sports activities threatens the environment of citizens siding in the vicinity of motor sports facilities. To mitigate motor _orts noise impacts, a coordinated statewide program is desirable to ensure that effective noise abatement programs are developed and implemented where needed. This abatement program includes measures to limit the creation of new noise impacts and the reduction of existing noise impacts to the extent necessary and practicable. (b) Since the Commission also recognizes the need of Oregon's citizens to participate in recreational activities of their choice, these rules balance those citizen needs which may conflict when motor sports facilities are in operation. Therefore, a policy of continuing participation in standards development through the active cooperation of interested parties is adopted. The choice of these parties is to limit the noise emission levels of racing and recreational vehicles, to designate equipment requirements, and to establish appropriate hours of operation. it is anticipated that safety factors, limited technology, special circumstances, and special events may require exceptions to these rules in some instances; therefore, a mechanism to accommodate this necessity is included in this rule. (c) This rule is designed to encourage the motor sports facility owner, the vehicle operator, and government to cooperate to limit and diminish noise and its impacts. These ends can be accomplished by encouraging compatible land uses and controlling and reducing the racing vehicle noise impacts on communities in the vicinity of motor sports ~cilities to acceptable levels. (d) This rule is enforceable by the Department and civil penalties ranging from a minimum of $25 to a maximum of $500 may be assessed for LUBA NO. 94-211 Exhibit No. Y3 _ Page No. 07/18/94 14:37 V303 683 7297 CITY OF TIGARD ®001/001____ PLACE UNDER CITY OF TIGARD LOGO SITE D PMENT R TLV SDR 94-0003 LOT L STMENT MIS 94-0007 PDG/CORBIN/TYSON LOCATION: 11631 and 11635 SW Pacific Highway (WCTx 1S1 36D8, tax lots 00 z 0.0). The Director has approved subject to conditions, a Site Development Revise request to allow construction of an approximately 1,989 square toot drive-thru restaurant with related site improvements. APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.32, 19.62. 18.100, 18.102, 18.106, 18.108, 18.114, 18.116. 13.120. 18.160, 18-162, sad 18.164; Comprehensive Plan Policy 8.1.1. ZONE: C-G (General Commercial) The C-G zone allows public agency and administrative services, public support facilities, professional and administrative services, financial, insurance. and real estate services. business support services, and eating and drinking establishments among other uses. i The adopted finding of facts, decision, and statement of conditions cau "be obtained from the Planning Department, Tigard Civic Center, 13125 SW Hall Blvd., P.O. Box 23397. Tigard, Oregon 97223. The decision shall be final on July.13, 1994. Any party to the decision may appeal this decision in accordance with-Section 18.32.290(A) and Section 18.32.370 of the Community Development code. which provides that a written appeal may be tiled within 10 days after notice is given and sent. The deadline for filing of an appeal is 3:30 PH Julv 13. 1994. T TT PUBLISH June 23, 1994 N eo ~ past-4r Fax Note 7671 Dew 7j- to Ffwh C << O Z coio"L Z . - Q wren. • Fromm m = 1 -1 '01 i Z~ Q~Z FAX r -72-41 J t t,h_Y _L LAND USE DECISION APPEAL FILING FORM I I - The City of Tigard supports the Citizen's right to participate in local government. Tigard's Land Use Code therefore sets out specific requirements for filing appeals on certain land use decisions. CITY OF TIGARD The following, for-in has been dev* Mped to- assist you in OREGON filing an appeal of a land use decision in proper for-in. To determine what filing fees will be required or to answer any questions you have regarding the appeal process, please contact the Planning Division or the City Retarder at 639-4171. 1. APPLICATION BEING APPEALED: SL1F 94=0003; MIS 94-0007 Taco Bell along 99W 2. HOW DO YOU QUALIFY AS A PARTY: Affected property owner 3. SPECIFIC GROUNDS FOR APPEAL OR REVIEW: The proposal negatively impacts the access to my property and fails to adequately comply with City Code Section 18.108. The traffic analysis fails to take into consideration the alternative T have spoken to Staff., the Developer and OnOT ahn»t _ The proposal V].013tec an e3SiQUIr®nt sight appu tenan to m: = rn= ertT The ri ty_has failed to of OgUatOly cons i-diexr---the imnaCts Of this 3 roj used development upon the sliri ounding pr9iertie and dealt with the Comp reahenci ve iean aonsidera:h i ong €ng aeeess to the multi-family zoned areas. 4. SCHEDULED DATE DECISION IS TO BE FINAL: J „1: 1-I., jq_94 5. DATE NOI-ICE OF FINAL - S AS GIVEN: June 24, 1994 6. SIGNATURE(S): i jc-x~c-x-x~-x-x-x-~-x-x x-x~t-x~-x~t•~t~t-x-x-tt-x~x -x-~t-xx-x-~x•xx vY~tx. FOR OFFICE USE ONLY: Received Date: x- Time: Approved As To Form By: Date: / Time Denied As To Form By: Date: Time: Receipt No. Amounts ~(x ~(~E 3E x~E x ~(aE ~F X .X x-x x-x~t x x x ~f x-x *x . x- -IE**X- c x )E x x x-x-***x** x ~f x x x x~f~f ~t x~(x -)E-x X *X-X-*iE-`(* 13125 SW Hall Blvd., P.O. Box 23397, Tigard, Oregon 97223 (503) 639-4171. LUBA NO. 94-211 Exhibit No. 14 Page No. = lk' ..G•~~: -....•.~i'Q i iL'.~:-it,-yY'S`_b7C►'~~:•` :Yt ~~.......,.'....:a . - _ - :'5:1•Txr,y^.l: jrT~i 1~ .-'rt}r~-2:'sti`w • ` e rt ,r:t t L I l' Y Of' •1 I GA-'W T Pl oF• PAYMENT kF CE Y ~'l hi 1. 4 CHECK NMUl1NT • . CASH AMOUNT NAME GREGORY C. LUTJC-. PAYMENT UNTF 01> 1 `4 ADDRESS 400 LINCOLN CTR. TOWER SUBDIVISION - PORTLAND, OR 97223-5775 AMt?iJiV ;.,,-,;.i~.~;-° t:A. ::'~.~Ri='•~~;~... C.IF PAYMENT 10 k7f APPFAL TOTAL AMOUNT PAID - - - 235.00 bra - r ~i3r''~`•'r'~Z~'r'' w''' _ _ J fir 44" 17 LUBA NO. 94-211 Exhibit No. t - Page No. ;;ED AFFIDAVIT OF MAILING STATE OF OREGON ) County of Washington ) ss. City of Tigard( I, I"1,~IVl((~~ being first duly sworn/affirm, on oath depose. and say: (Please print) That I am a Y~ tD E_C.fAftk for The City of Tiga d, Oregon. That I served NOTICE OF PUBLIC HEARING FOR: hat I served NOTICE OF DECISION FOR: City of Tigard Planning Director Tigard Planning Commission Tigard Hearings Officer Tigard City Council A copy (Public Hearing Notice/Notice of Decision) of which is attached (Marked Exhibit •A•) was mailed to each named ~al ns at the address shown othe attached list marked exhibit •B• on the day of \1ILV4 0 194q said notice NOTICE OF DECISION as here o attached, was posted,Qn an appropriate y and deposited bulletin board on the Z H"da of C 19 in the United States Mail on the day of 199LI, postage prepaid. Prepared Notice r f Sub'c ibed and sworn/affirm to me on the e2_100611k day of 19. OFFICIAL BEAL OMILE ILO. JELDEM NOTARY PUBLIC OF - IT N, ARYauBLIC-0REOOPt Commission i ,s. COiMiMIMON NO.OQ8977 My MY COMklWON EX?IRE$ $EM. 7.1996 t Post-it* Fax Note 7671 Date pages► To KI &4.,d . From CoJDepL Co. L i- Phone # _2,3/ Phone* Fax # Fax # LUBA No. 94-211 LVV Exhibit No. - Page No. 1 L- vT- CITY OF TIGARD NOTICE OF DECISION SITE DEVELOPMENT REVIEW SDR 94-0003 LOT LINE ADJUSTMENT MIS 94-0007 - CORBIN(rYSON - OWNER PDG DESIGN GROUP - APPLICANT a APPLICATION: A request for approval of site development review and a lot line adjustment for a Taco Bell restaurant. Comprehensive Plan: General Commercial (C-G), Zoning: General Commercial (C-G) Location: 11631.and 11635 SW Pacific Highway (WCTM 1S1 36DB, tax lots 600 and 700) SECTION I - DECISION: Notice is hereby given that the Planning Director's designee for the City of Tigard has recommended approval of the proposal subject to the recommendations. The findings and conclusions on which the decision is based are noted in Section H. Recommendations: PRIOR TO THE ISSUANCE OF A BUILDING PERMIT THE FOLLOWING CONDITIONS SHALL BE SATISFIED OR FINANCIALLY SECURED: 1. A joint use and maintenance agreement shall be executed and recorded on City standard forms for all common driveways. The agreement shall be referenced on and become part of all applicable parcel Deeds. The agreement shall be approved by the Engineering Department prior to recording. STAFF CONTACT: John Hagman, Engineering Department 2. The applicant shall obtain a permit from the State of Oregon Highway Division, to perform work within the right-of-way of SW Pacific Highway (99W). A copy of the permit shall be provided to the City Engineering Department prior to issuance of building permit STAFF CONTACT: John Hagman, Engineering Department 3. The applicant shall remove and replace the existing driveways and sidewalk as shown on the site plan. The sidewalk shall be eight feet wide as measured from the face of curb. 4. - The applicant shall pay the fees as established under the guidelines of Unified Sewerage Agency Resolution and Order No. 91-47. NOTE: This is a two part fee which is paid at different times. The first part is paid with any associated public improvements which is for that portion of the development which increases the impervious area within the public right-of-way. The second part is paid at Building Permit issuance which is for each individual lot NOTICE OF DECISION SDR 94-0003/MIS 94-0007 - PDG/TACO BELL Page 1 LUBA NO. 94-211 Exhibit No. ► 5 Page No. 5. The applicant shall underground the existing overhead utilities along the northerly side of Pacific Highway, or pay the fee in-lieu of undergrounding. STAFF CONTACT: Michael Anderson, Engineering Department. 6. A lot line adjustment survey map and. legal descriptions showing the existing and proposed lot lines shall be reviewed and approved by the Engineering Department. STAFF CONTACT: Greg Berry, Engineering Department. 7. a) The applicant shall demolish existing structures on site prior to the recordation of the lot line adjustment. STAFF CONTACT: Mark Roberts, Planning Division. b) The site/landscape plan shall be revised a minimum of two bicycle racks. STAFF CONTACT: Mark Roberts, Planning Division. c) The sitellandscape plan shall be revised to provide a minimum of one walkway to SW Pacific Highway. STAFF CONTACT: Mark Roberts, Planning Division. d) The landscape plan shall -be revised to provide a minimum of one street tree for each 20 feet along the entire frontage along SW Pacific Highway. The applicant may revise the species which was selected and provide greater distance between each tree. STAFF CONTACT: Mark Roberts, Planning Division. e) The site and/ or landscape plan shall be revised to screen the trash and recycling enclosure from view to the greatest extent possible from SW Pacific Highway. STAFF CONTACT: Mark Roberts, Planning Division. f) The existing billboard sign shall be removed prior to the issuance of an occupancy permit STAFF CONTACT: Mark Roberts, Planning Division. g) All site improvements shall comply and be maintained in accordance with the revised site plan or as approved by the Planning Division. STAFF CONTACT: Mark Roberts, Planning Division. SECTION H. FINDINGS OF FACT 1. Background: The site is presently developed with an older retail building, a motel and a billboard sign. 2. Vicinity Information: The site is located on SW Pacific Highway to the west of the Fred Meyer Shopping Center. The surrounding properties are zoned for General Commercial and Office NOTICE OF DECISION - SDR 94-0003/MIS 94-0007 - PDGfrACO BELL Page 2 LUBA NO. 94-211 Exhibit No. Page No. Professional use and are developed with a mixture of commercial and residential uses along SW Pacific Highway. 3. Site Information and Proposal Description: The site is currently two seperate parcels which are developed with a motel and a store which was formerly a NAPA Auto Parts Store of approximately .85 acres in size. The site has direct frontage on SW Pacific Highway. The applicant proposes to construct a Taco Bell restaurant with a drive through aisle. The architectural treatment proposed for the structure is the proto type Taco Bell Restaurant with uses elements of an Early California/Spanish Mission archtectural treatment with the use of painted oversized masonry block and a tile roof. 4. Agency and CIT Comments: The Engineering Department, General Telephone, the Oregon Department of Transportation, and the Building Department have provided the following recommendations concerning this proposal. The Engineering Department provided the following comments concerning this proposal: STREETS: The applicant has submitted a traffic study prepared by Keech Associates, Inc., dated April 7, 1994. The report is candid in describing the difficulties of accessing the various businesses in the vicinity of the proposed development along Pacific Highway, State 99W. Based on the information provided, the applicant met with representatives of ODOT to discuss alternatives to the proposed access and have submitted a revised site plan. Engineering staff concurs with the new plan that incorporates a single joint use driveway on the westerly side of the property to serve the proposed development and the businesses on the adjacent property located to the west. In addition, the revised site plan shows a curb barrier to separate the proposed commercial use from the 14 foot wide driveway located on the easterly edge of the site, that serves the residential properties to the rear of the site. This driveway will connect to the "jug-handle" drive- through on Pacific Highway that serves as refuge for the southbound left-turn traffic entering the cinema across the street. The applicant shall obtain an ODOT access permit for their connection to SW Pacific Highway. The highway has been constructed to current State standards and no additional right-of-way or street construction is required. The site plan also proposes NOTICE OF DECISION - SDR 94-0003/MIS 94-0007 - PDG/TACO BELL Page 3 LUBA NO. 94-211 ExhlbK No. 5 s Page No. to remove two additional existing driveways that previously served the site and restore the sidewalk. However, it is recommended that the sidewalk be re-constructed for the entire length of the property to a minimum width of 7.5 feet, consistent with the sidewalk construction along other frontages on SW Pacific Highway. The existing power poles and overhead lines serving the area are located along both sides of SW Pacific Highway and the applicant should place the facilities located along this frontage underground, or pay the fee in-lieu of undergrounding. SANITARY SEWER: The existing eight inch public sanitary sewer is located in SW Pacific Highway and has sufficient capacity to serve this development. STORM SEWER The site currently is partially covered by three buildings and asphalt concrete driveways that drain in a southerly direction -toward SW Pacific Highway. The proposed site development will increase the amount of impervious area. The Unified Sewerage Agency has established and the City has agreed to enforce (Resolution and Order No. 91-47) Surface Water Management Regulations requiring the construction of on-site water quality facilities or fees in-lieu of their construction. Requiring surface water quality facilities on small sites would result in numerous facilities that would become a maintenance burden to the City. Furthermore, the applicant has not proposed any such facilities and there are no natural depressions, or other areas on this site that are particularly suitable for water quality facility design. Regional facilities, fimded by fees in-lieu of construction, would provide the required treatment with improved reliability and efficiency.. Therefore the applicant should be required to pay the fee in-lieu of constructing an on-site facility for that portion of the site that increases the impervious area. GTE stated that the developer shall coordinate with GTE on removal of existing telephone facilities and placement of new facilities. The Oregon Department of Transportation stated the following concerning this application: The traffic report prepared by Keech and Associates for the relocation of the Taco Bell on SW Pacific Highway indentifies the lack of access SW Pacific Highway west bound for a number of commerical properties in the vicinity. HWY_ 99W is an Access Oregon Highway, with access spacing standards. To assure a quality transportation system and enhanced economic vitality is going to require comprehensive planning and cooperation between ODOT and the City of Tigard in the devlopment of alternative NOTICE OF DECISION SDR 94-0003MIS 94-0007 - PDG/TACO BELL Page 4 LUBA NO. 94-211 Exhibit No. Page No. access. The development of local streets and/or the combination of joint access and cross over easements between properties need to be pursued by both ODOT and the City of Tigard. A single shared access on the westerly property line with Tax Lot No. 1800, will provide adequate access to the proposed Taco Bell that provides good internal circulation. As indicated in the report exiting from the proposed driveway will operate at a level of service F which is not uncommon for stop control driveways or intersections along SW Pacific Highway. The access at the easterly property line that provides access to Tax Lot No. 1800 through an existing easement also serves as an access to Taco Bell. This access not only adds an additional conflict point, but because of its proximity to the intersection we would expect a high occurence of conflict/accident potential. Alternative access to Tax Lot 800 through the Taco Bell property to the joint use driveway located on the westerly property line needs to be provided. The subject site circulation appears to be designed to adapt circulation should the theatre access become a typical four way intersection and a roadway extended to the north. Should this occur where an access through a signal is available, the driveway on the west side of the property line could function quite well and more safely as a right-in/right-out Traffic Operations can support access to this parcel via a single access, allowing all movements centered on the property line of the subject site with provisions for restricting this access at such time as alternative access is available. The Building Department stated that demolition permits are required for removal of existing structures. All existing utlities shall be properly capped off and abandoned. All existing sewer lines shall be removed. SECTION M. ANALYSIS AND CONCLUSION A. COMPLIANCE WITH COMMUNITY DEVELOPMENT CODE SECTIONS: Use Classification: Chapter 18.62. states that the purpose of the General Commercial - zoning district is to provide sites for the provision of major retail goods and services. The applicant states that the proposed building is to be used for a drive thru restaurant use which is a permitted use. within the General Commercial Zoning District Minimum Lot Area: Chapter 18.62 states that there is no minimum lot area for parcels in the General Commercial zone. Section 18.62 requires that the average lot width shall be 50 feet The site is the combination two existing parcels. When combined NOTICE OF DECISION - SDR 94-0003/MIS 94-0007 - PDG/TACO BELL Page 5 LUBA NO. 94-211 Exhibit No. 15._ r Page No. the parcel has an average width `of approximately 197 feet which complies with the standard. Condition of Approval #7 requires that the applicant provide proof of parcel consolidation prior to the issuance of building permits. Development proposals within this zoning district may not exceed 85% of the site with impervious structures such as buildings and hard surfaces. The site plan indicates that some 27,237 square feet or 77% of the property is proposed to be developed with impervious structures which complies with the requirement. The General Commercial Zoning District also requires a minimum of 15% of the site be landscaped. The site plan provides approximately 8,121 square feet (23%) of the site with landscaping in compliance with the requirement Community Development Code Section 18.162.060 contains standards for approval of a lot line adjustment request: 1. An additional parcel is not created by the lot line adjustment, and the existing parcels reduced in size by the adjustment are not reduced below the minimum lot size established by the zoning district; 2. By reducing the lot size, the lot or structure(s) on the lot will not be in violation of the site development or zoning district regulations for that district; and 3. The resulting parcels are in conformity with the dimensional standards of the zoning district. The proposed lot line adjustment is consistent with these standards. The proposed adjustment will reconfigure the lot lines, however no additional parcels will be created by the adjustment. The C-G zone does not have a minimum lot area requirement. Both reconfigured parcels will continue to exceed the 50 foot average minimum lot width requirement of the zone. All site development improvements applicable to the parcels will be.consistent with Code requirements upon redevelopment of the site. In addition to meeting the above standards, a lot line adjustment must also meet the following criteria applicable to lots created through the minor land partition process (Code Section 18.162.050): A. Lot Width: The minimum width of the building envelope area shall meet the lot requirement of the applicable zoning district. B. Lot Area: The lot area shall be as required by the applicable zoning district. - In the case of a flag lot, the accessway may not be included in the lot area calculation. NOTICE OF DECISION SDR 94-00038IIS 94-0007 - PDG/TACO BELL Page 6 LUBA NO. 94-211 Exhlbit No. 15 Page No. t C. Lot Frontage: Each lot created through the partition process shall front a public right-of-way of at least 15 feet or have a legally recorded minimum 15 foot wide access easement. D. Setbacks: Setbacks shaH-be as required by the applicable zoning district. E. Front Yard Determination for Flag Lot: When the partitioned lot is a flag lot, the developer may determine the location of the front yard, provided that ho side yard is less than 10 feet. Structures shall generally be located so as to maximize separation from existing structures. F. Screening on Flag Lots: A screen shall be provided along the property line of a lot of record where the paved drive in an accessway is located within ten feet of an abutting lot in accordance with Sections 18.100.080 and- 18.100.090. Screening may also be required to maintain privacy for abutting lots and to provide usable outdoor recreation areas for proposed development. G. Fire Protection: The fire district may require the installation of a fire hydrant where the length of an accessway would have a detrimental effect on fire fighting capabilities. H. Reciprocal Easements: Where a common drive is to be provided to serve more than one lot, a reciprocal easement which will ensure access and maintenance rights shall be recorded with the approved partition map. I. Accessway: Any accessway shall comply with the standards set forth in Chapter 18.108, Access, Egress, and Circulation. J. Where landfill and/or development is allowed within or adjacent to the one- hundred-year floodplain, the City shall require the dedication of sufficient open land area for greenway adjoining and within the floodplain. This area shall include portions at a suitable elevation for the construction of a pedestrian/bicycle pathway with the floodplain in accordance with the adopted pedestrian/bicycle pathway plan. Criteria A, B, C and D are satisfied through the design of this adjustment. Criteria A is met because both lots comply with the minimum lot area required in the C-G zone. The proposed lot widths for the parcels will continue to exceed the 50 foot average minimum lot width requirement. Criteria B is complied with because each parcel will maintain the same square footage. The C-G zoning district does not have a minimum lot area requirement. NOTICE OF DECISION - SDR 94-0003/MIS 94-0007 - PDG/TACO BELL Page 7 LUBA NO. 94-211 Exhibit No. 15 Page No. '1 Criteria C has been met because the properties will have property direct frontage on SW Pacific Highway. Criteria D has been provided for because the proposed Taco Bell restauarant complies with setback requirements in the-C-G zone as it relates to the propoerty configuration. Property access as set forth in Criteria G and I have been met because of the design of the parcels. Each reconfigured property maintains sufficent direct access to the public right-of-way either from SW Pacific Highway. Criteria E, F, H and J are not applicable to the lots because neither proposed lot would be a flag lot, nor are these properties located within the floodplain. Setbacks: Chapter 18.62 provides setbacks standards for General Commercial sites. The Code permits development at the property line within the Development Code for the front, side, or rear yards provided clear vision and landscape buffering requirements can be met. The site abuts residential property to the north. The site plan provides the 10 foot required buffer area Properties to the south, east and west are zoned and developed with commercial uses so no setbacks are required to buffer the proposed land uses from other adjoining sites. The proposed structure also complies with the Special Setbacks required for structures on SW Pacific Highway. All structures must be setback a minimum of 50 feet from the centerline of SW Pacific Highway. The structure as proposed is 70 feet from the centerline of SW Pacific Highway. Building HeiQ,ht: Chapter 18.62 states that no building shall exceed a height of 45 feet. The proposed architectural elevations measure 17.5 feet in height in compliance with height requiments. Minimum Off Street Parking: Chapter 18.106 requires one parking space for each 400 square feet of gross floor area The floor plan for the building provides a dining room area of approximately 1,000 square feet of gross floor area, eight employees are projected to work the restaurant on the largest shift which requires a total of 28 parking spaces. The applicant has provided 33 parking spaces which exceeds the minimum parking requirement for this site. Access and Egress: Chapter 18.108 requires commercial development with 99 or less required parking spaces to provide a minimum of one access point with a width of 30 - feet. The site plan complies with this requirement by providing a single entrance to the site through SW Pacific Highway at the farthest westerly portion of the site as far away from the intersection of 74th Street as possible given the property configuration. The Americans with Disabilities Act (ADA). Effective January 26, 1992 a minimum of one disabled person parking space for each twenty-five required parking spaces up to 100 hundred spaces. This site is required to provide a minimum of two disabled NOTICE OF DECISION - SDR 94-0003/MIS 94-0007 PDGrTACO BELL Page 8 LUBA NO. 94-211 bMlbit No. Page No. person parking spaces because a minimum of 28 parking spaces would be required to serve this building. The site plan currently shows. two handicapped person. parking spaces in compliance with this requirement. Bicycle Parking: Chapter 18.1 OFrrequires one bicycle parking rack for each 15 vehicle parking spaces in any development. Due to the parking requirements size of the floor plan proposed for this site a minimum of one bicycle parking rack to serve this development. Condition of Approval #7 requires that the site plan be revised to provide a minimum of two bicycle racks. Walkway: Chapter 18.108 requires that a walkway extend from the main ground floor entrance of all commercial developments to the streets which provide the required ingress and egress. Condition of Approval #7 requires that the site plan be revised to include a minimum of one pedestrian walkway from SW Pacific Highway onto the site. Street Trees: Chapter 18.100 states that all development projects fronting on a public street more than 100 feet in length shall be required to plant street trees in accordance with the standards in Section 18.100.035. This site- has frontage on SW Pacific Highway in excess of 100 feet The landscape plan for this site provides five Vine Maple trees planted at 20 feet on center. At maturity this species measures an average of 17 feet in height and is considered a small specimen within the Development Code. Condition of Approval #7 requires that the street tree plan shall be revised to provide a minimum one tree for each 20 feet along the length of the landscape area which adjoining SW Pacific Highway. Visual Clearance Areas: Chapter 18.102 requires that a clear vision area for motorist and pedestrian safety be maintained on the comers of all property adjacent to intersecting right-of-ways or private driveways. A clear vision area shall contain no vehicle, hedge, planting, fence, wall, structure, temporary or permanent obstruction exceeding three feet in height, measured from the top of the curb, or where no curb exists, from the street center line grade. Trees exceeding this height may be located in the clear vision area, provided all branches below eight feet are removed. The site and landscape plan as proposed comply with these requirements. Trash. Recvcling and Loading Facilities: Chapter 18.120 states that service and areas shall be indicated on the site plan. The applicant has provided a trash and waste recycling area. The receptacle area comply with the dimensional requirements of METRO as stated in the Model Zoning Ordinance for Mixed Solid Waste and Recyclable Storage. The site also provides landscaping to screen these areas from view to the north and west Condition of Approval #7 requires that the landscape plan be modified to screen the trash and recycling enclosure from view to the greatest extent possible from SW Pacific Highway. NOTICE OF DECISION SDR 94-0003WS 94-0007 - PDG/TACO BELL Page 9 LUBA NO. 94-211 Exhibit No. I Page No. Tree Removal: Chapter 18.150 contains standards for obtaining a required permit for removal of trees on site which have a trunk six inches or more in diameter measured four feet above the ground. Prior to removal of any tree on site in excess of six inches in diameter as measured four feet above existing ground level, Condition of Approval #8 requires the applicant to obtain a tree removal permit for removal of any applicable trees as set forth in Chapter 18.150 of the Development Code. Landscaping Plan: Section 18.100 requires that the applicant submit a detailed landscape plan as a part of Site Development Review. The landscape plan provided with this application provides parking lot trees in excess of the required number for the parking lot area. The.Development Code requires one tree for every seven parking spaces the applicant has provided one tree for approximately every five parking spaces. The plan also provided a variety of shrubs, and ground cover in satisfaction of the landscaping requirements for this site. Sim: Section 18.114 lists the type of allowable signs and sign area permitted in the General Commercial zone. A billboard sign presently exists on the site. The sign as currently located would be within a drive aisle so it must be relocated. Section 18.114.110 (D) states in part that a non-conforming sign which is relocated must be immediately brought into compliance with the Development Code. The Development Code prohibits billboard signs, therefore Condition of Approval #7 requires the existing billboard sign to be removed. All new signage for the site shall be reviewed by the Planning Division through the sign permit process. SECTION IV. PROCEDURE: 1. Notice: Notice was published in the newspaper, posted at City Hall and mailed to: XX The applicant and owners XX Owners of record within the required distance XX The affected Citizen Involvement Team Facilitator XX Affected government agencies 2. Final Decision: THE DECISION SHALL BE FINAL ON -17- % -1,1 V UNLESS AN APPEAL IS FILED. 3. Anneal: Any party to the decision may appeal this decision in accordance with Section 18.32.290(A) and Section 18.32.370 of the Community Development - Code which provides that a written appeal must be filed with the City Recorder within 10 days after notice is given and sent. Appeal fee schedule and forms are available at Tigard City Hall, 13125 SW Hall Blvd., Tigard, Oregon. The deadline for filing of an appeal is 3:30 p.m. NOTICE OF DECISION - SDR 94-0003/MIS 94-0007 - PDG/TACO BELL Page 10 LUBA NO. 94-211 Exhibit No. /5 Page No. a- 4. Questions: If you have questions, please contact the Planning Division at 639- 4171, Ciy of Tigard, City Hall, 13125 SW Hall Blvd., Tigard, Oregon. PREPARED BY: Mark Roberts DATE Assistant Planner t ; APPROVED BY: Ric eweisdorff DATE Senior Planner NOTICE OF DECISION - SDR 94-0003/MIS 94-0007 - PDG/TACO BELL Page I I LUBA NO. 94-211 Exhibit No. I S Page No. fir=. ~ L ~ I r r r r ~-aw- r Sf f Ji r113-m r-77-1 a. - S il. I I R W WL-L JwA < > Q R a SITE WAFRX- "oZ TLAt- C P LL 0 - U LUBA NO 94-27 1 . Exhibit No. I PLOT PLAN - CASE NO. Page No. SITE DEVELOPMENT REVIEW #94-000 EXHIBIT MAP LOT LINE ADaUSTMENT #94-0007 StAm- _ a Ul t ..s3 f 3 U ~ LUBA Np. 9r Ott N°' S~ No Page N C A ,O~ELOP ~ #94 O S ' PINE ~3UST t~ WA V L7 1S136DC-00500 1S136CA-01o00 TOM MOYER THEATRES HALL, DONALD W & HALL, GRACE L & 703 BROADWAY SUITE 605 HALL, JOHN G & VANCOUVER WA 98660 PARKER, CAROL J 1300 SW 5TH AVE, STE 3009 PORTLAND OR 97201 1S136CA-01601 1S136CA-01700 HALL, DONALD W AND GRACE L WATTS, KENNETH GILEBRT HALL, JOHN G ET AL 11645 SW PACIFIC HWY 1300 SW 5TH AVE #3009 TIGARD OR 97281 PORTLAND OR 97201 1S136CA-01800 1S136DB-00200 MILNE REAL PROPERTIES, INC FRANCESCSI, KENNETH AND JEROME P 0 BOY 2740 600 3RD ST PORTLAND OR 97208 SAN FRANCISCO CA 94107 1S136DB-00201 1S136DB-00500 DUANE COMPANY 0024~tCIAL INVESTMENTS ATTN: TAX DEPT s GALVAN & GUITRON PARTNERSHIP PO BOX 42121 11619 SW PACIFIC MY PORTLAND OR 97242 TIGARD OR 97223 1S136DB-OOS01 1S136DB-00800 UNION GOSPEL MINISTRIES OF PTLD MORRIS, JOHN C DAISY 8 % FRANCESCEI, JEROME & GENEVIEVE TR 11621 SW PACIFIC HWY FRANCESCHI, KENNETH & BARBARA TRS TIGARD OR 97223 600 3RD ST SAN FRANCISCO CA 94107 1S136DE-00900 1S136DB-01000 GENSMAN, MITCHELL EDWARD GENSMAN, LEE R & ALICE L 963 SW WESTWOOD DR % GENSMBN, MITCHELL E & DEBORAH PORTLAND OR 97201 963 WESTWOOD PORTLAND OR 97201 1S136DB-02400 1S136DS-02500 CHAMPION, RONALD V AND PIBRCB, GILBffiX/GRACE ET AL ROBERTA E TACO BELL #1091 F 11642 SW PACIFIC HIGHWAY BY GEORGE HAMMERSMITH TIGARD OR 97223 5989 SE JENNE LANE PORTLAND OR 97236 1S136DB-02SO2 1S136DB-02600 PIERCE, GILBBRT E STEWART, PHYLLIS T AND y BY SUBWAY TIGARD INC STEWART TRUST 4840 SW SCSOLLS FERRY RD 621 SW ENGLEWOOD DR PORTLAND OR 97225 LAKE OSWEGO OR 97034 1S136DB-02601 1S136DB-02602 ALPROP CO STEWART, S = 6149 SW SHATTUCK RD 621 SW DRIVE Y PORTLAND OR 97221 LARK OR 97034 PLANNING DESIGN GROUP GROVER CORBIN Aft~22 SE 29TH AVE 4680 SW DOGWOOD DR- IWIGARD OR 97214 LAKE OSWEGO OR 97035 LUBA NO. 94-211 Exhibit No. - Page No. TYSON/LARSON ~J 23275 NW DORLAND RD HILLSBORO OR 97124 w t - I LUBA -NO. 94-211 Exhibit No. K_ Page No. COMMUNITY NEWSPAPERS, INC. ~~.~d P-M BOX 37'0 PHONE (sue 684-03ti0 R f C~ 1 ~i4`ofiice TT 7925 BEAVERTON.OREGON97075 ~11994 Legal Notice Advertising JVN Of 3K,XRt City of Tigard a Tearsheet Notice 13125-8V Hall Blvd. Tigard,Oregon 97223 • 0 Duplicate At"_ w • LOT LINE ADJUb'I14 E MIS 944XW PDG/CORBINITYSON LOCATION: 11631 and 11635.S.W:.Pacific Highway (WCTM 1S1- i 36DB. tax lots 700 &.600). The Due= has aapp posubject to co m&- timm. a Site Development Review re4oest to allowcaastruction of an R. AFFIDAVIT OF PUBLICATION p'19~'s4P-foot drive-thrarestsmmt with related site ion- m LE REVIEW CRnMRIA: Community :T OF OREGON. ) mentCode Chapters 1832. 18.62.18.100. 18.102. 18.106. 18.108' OF WASMGTON. )m' 1&114, 18.116. 1&12D. 18.160. 1&162. and 18.164: Comp rhmsive Pbm by Snyder Pblicy 8.1.1. ZONE: C-C (General Commatial). The C-G zone allows .seep first duty sworn. depose and say that i am the Adrerdsng cy and l oaf d real itim Director. a his principal clerk. of - es tote services, basinea sappart saviors. aad tatitg aad esrabl'saU newspaper of general circulation as fined in ORS 193.010 inemammgothei i uses. Ad 193.020; published at Tigard in the Joresaid county and state; that the RAyi aw 94-nn12 HcRPn!rj PZPaVe Pro= art-i ac 1 printed copy of which is hereto annexed. was published to the s m*e issue of said newspaper for O1W successive and i :onsecudive in the folbwinp issues: June 23,1994 ;ubsc rihed and sworn to a me this 3rd day of June, l Notary far Oregon ,ty Commission Expires: %FFIDAVIT - of.f LUBA NO. 94-211 With Section I Exhibit No.1(o Ccde;,whicb p~ovrdos ibara writ appeal may be=zwa rtbun:I days after notice is given and sera. The deadline for Page No. (:L'114 Sting of an appeal is 3:30 P.M, 1* 13.1994. _ CITY OF TIGARD OREGON SITE DEVELOPMENT REVIEW APPLICATION CITY OF TIGARD, 13125 SW Hall, PO Box 23397 Tigard, Oregon 97223 - (503) 639-4171 FOR STAFF USE ONLY CASE NO. OTHER CASE NO'S: m is, 9'7--0-007 RECEIPT NO. 9 i-- o L~ APPLI IO VA"ChIn BY. f } _ T : G DA 1. GENERAL INFORMATION Application elements submitted: PROPERTY ADDRESS /LOCATION ( ~jj 35 (A) Application form (1) a TAX MAP TAX LOT NO. 1 5 1 - authorization (C) Title transfer instrument SITE SIZE ✓(D) Assessor's map (1) WNER/D ED HOLDER* COQ Tom450y, ✓ (E) Plot plan (pre-app checklis PROPERTYOWNER/DIED' ✓(F) Applicant's statement ADDRESS PHONE CITY ZIP _1!L1~1 (pre-appichecklist) ( (G) n APPLICANT* 720 12 ADDRESS y~i PHONE' a4dress - CITY ZIP '--(H) Filing fee a -7/s is ) 3~ * ~W Construction Cost Estimate When the owner and the applicant are different people, the applicant must be the purchaser of record it +'?I ";9 or a leasee in possession with written authorization DATE DETERMINED TO BE COMPLETE: from the owner or an agent of the owner with written 8'~ ~______i , authorization. The owner(s) must sign this application in the space provided on page two or FINAL DECISION DEADLINE:,-) '14 submit a written authorization with this application. COMP. PLAN/ZONE DESIGNATION' 2. PROPOSAL SUMMARY ~Et~~Qwc C~iiJytg.~-[~gQ ~C - The owners of record of the subject property request ite de elopme t review ap roval to ^.~--VaW.ver~. c- allow 10 Approval Date: pa---•~( 2 Z Final Approval Date: R Planning n J Engineering 0524P/13P Revd 5/87 3*ist any variance, conditional use, sensitive land , or other land use a tions G o be considered as part of this application: 4. Applicants: To have a complete application you will need to submit attachments described in the attached information sheet at the time 'you submit this application. 5. THE APPLICANT(S) SHALL CERTIFY THAT: A. The above request does not violate any deed restrictions that may be attached to or imposed upon the subject property. B. If the application is granted, the applicant will exercise the rights granted in accordance with the terms and subject to all the conditions and limitations of the approval. C. All of the above statements and the statements iri,"tfe p tin; attachments, and exhibits transmitted herewith, are true; and the applicants so acknowledge that any permit issued, based on. this application, may be revoked if it is found that any such statements are false. D. The applicant has read the entire contents' oil -the application, including the policies and criteria, and understands the requirements for approving or denying the application. . DATED this day of 19 SIGNATURES of each owner (eg. husband and wife) of the subject property. 4 i (KSL:pm/0524P) LUBA NO. 94-211 Exhibit No. 12 Paye No. C1 CERTIFICATE OF FILING I, Catherine Wheatley, hereby certify that on December 2. 1994, 1 filed the original of this SUPPLEMENTAL INDEX AND RECORD in LUBA No. 94-211 with the Land Use Board of Appeals, 306 State Library Building, 250 Winter Street, NE, Salem, Oregon, 97310 by first class mail. DATED: December 2. 1994. Catherine Wheatley Tigard City Recorder CERTIFICATE OF SERVICE 1, Catherine Wheatley, hereby certify that on December 2. 1994 1 served a true and correct copy of this SUPPLEMENTAL INDEX AND RECORD in LUBA No. 94-211 by first class mail on the following persons: DATED: December 2. 1994. Gregory G. Lutje, Attorney at Law 400 Lincoln Center Tower Portland, OR 97223-5575 Michell Gensman c/o Gregory G. Lutje, Attorney at Law 400 Lincoln Center Tower Portland, OR 97223-5575 Pamela Beery, Attorney at Law O'Donnell, Ramis, Crew, Corrigan & Bachrach 1727 NW Hoyt Street Portland, OR 97209 Michael Robinson Stoel Rives, et al 900 S.W. Fifth Avenue Portland OR 97204 cat~~'~ Catherine Wheatley Tigard City Recorder 1 M. io CITY OF TIGARD December 23, 1994 OREGON Jan Zwemke, Office Manager Land Use Board of Appeals 306 State Library Building 250 Winter Street, NE Salem, OR 97310 Re: Gensman vs. City of Tigard - LUBA No. 94-211 Dear Jan: Attached is a Supplemental Record for the above-referenced matter. Objections to the Record were filed by both Gregory Lutje and Michael Robinson. Copies of their letters of objection are attached. The Supplemental Record addresses each of the issues.raised, with the exception of the following: 1. Within Attorney LAe's letter of December 14, 1994, Item 1, he requested that a FAX transmission sent to Pamela J. Beery, City Attorney, be included in the Record. This FAX transmission was not provided to the staff and was not before the Planning Commission. 2. Attorney Robinson raised an issue in his letter of December 13, 1994, Item No. 2, regarding overheads. Each of the transparent overheads used at the September 12, 1994 Planning Commission are duplicates of materials in the record. 3. Item 4 of Attorney Robinson's letter refers to Pages 94-98 of the Record, the reproduction of photographs in the Record. He asked that the original color photographs be submitted to the Board. These photographs are enclosed, (Exhibit 4 of Michael Robinson's letter to Milton Fyre dated September 19, 1994), along with the Supplemental Record. We respectively request the photographs be returned to us, as they are our only copy. 13125 SW Hall Blvd., Tigard, OR 97223 (503) 639-4171 TDD (503) 684-2772 Jan Zwemke December 23, 1994 Page 2 Please contact me if you have any questions regarding this submission. Sincerely, (/L t&w Elizabeth A. Newton Deputy City Recorder EANAh attachments c: Gregory G. Lutie Michael C. Robinson Pamela J. Beery h:\login\jo\wam 1220.1 _ODONNELL RAMIS ET AL 503-243-2944 Dec 16,94 8:47 Na.001 P.02 GREGORY G. LUTJE RE~CElVED Aaotxey at L" 400 ZA%CV & C#A*r ?bwsr PaAgan , Oreaow "22M575 DEC 16 W4 Tel: (503) 2934W7 Fas: (503) 293,Un December 14, 1994 Pamela J. Beerryy O'Donnell, Ramis et al. 1727 NW Hoyt Street Portland, OR 97209 Re: Request for Supplemental Record; agneman v. City of Tigard; LOBA 94-211 Dear Pamela: Thank you for acknowledging my request for minor revisions and inclusions to the Record of the above referenced matter. I am requesting that the following actions be taken: 1. Add my telefax transmission to you dated September 19th (copy attached) to the Record. Since your written response to me dated September 23rd is in the Record as Inhibit 4, p. 72, my request puts the issues in proper context. 2. Add my September 23rd letter to the Planning Commission (copy attached) to the Record. It was presented to the Commission at the Hearing on the 26th, and is mentioned in the Meeting Minutes (Exhibit 3, p. 51). It shows that two of the issues on appeal were raised and not waived. 3. Correct the reference in the first line of the fourth full paragraph of Exhibit 3, p. 51 from "applicants" attorney to "appellants'" attorney. Also, Commissioner Holland!s motion on the next page of the minutes was to deny appellants' appeal,' not the applicants'.. 4. A minor matter is to place Exhibit 4, p. 57 following page 59. Please acknowledge your concurrence with these revisions today if possible. Please call me with any questions or concerns. Bes regards, ~ tje Encl. ODONNELL RAMIS ET AL 503-243-2944 Dec 16.94 8:47 No.001 P.03 GRRCaRY G. LUTlR A amey at r" 400 Zincol a Deter 7bwer Pbrda x4 &Man 97273,5575 . Tei; (503) 2934U7 Paz: (503) 293.JS59 September 24, 1994 Tigard Planning commission 13125 SW Hall Boulevard Tigard, OR 97223 Re: Case File No. SDR94-0003; Taco Bell Site Devel. App. Demand for Continuance and Partial Refund of Appeal Fees Dear Commission: As you are aware, I am the attorney for Mitchell Gensman; one of the appellants in the above referenced matter. On September 19, 1994, I received a copy of s document that •I believe was submitted to you that day by Michael Robinson, legal counsel for Taco Bell, the Applicant in this matter. Pursuant to ORS 197.763(4)(a), all documents or evidence relied upon by the applicant must be submitted to the City and available to the public at least 20 days prior to the evidentiary hearing. Pursuant to ORS 197.763(4)(b), any party is entitled to a continuance of the hearing if additiona3 documents or evidence is provided on support of the application after the '20 day cut off period. Mr. Robinson's materials were supplied 7 days after the hearing. I believe the materials submitted by Hr. Robinson constitute new evidence and/or documents, and consequently entitle my client to a continuance of the hearing for at least 20 days to provide ample time for review and analysis. Please advise me of the date of the continued hearing. { Additionally, pursuant to ORS 227.175(10)(b), the City ! may only impose a foe of up to $100 for requests of initial hearings of matters such as this sphere the City has provided only a notice of the opportunity to request a hearin A copy of the receipt dated July 13, 1994 in the amount of I235 is attached. Please issue a refund in the amount of $235 at your earliest convenience. very truly yours, Gregory G.'Lutje Encl. cc: Mitchell Gensman Hark Roberts Michael Robinson Bill Monahan ODONNELL RAMIS ET AL 503-243-2944 Dec 16.94 8:48-No.001 P,04 GREGORY 0. LUTJB Attorney at Law 400 Lincoln Center Tower Portland, Oregon 97223-5575 Tel:(503) 293-8347 Paxs(503) 293-3559 Date: September 19, 1994 TELECOPY TRANSMITTAL Please Notify the Recipient Immediately TO: Pamela J. Beer~'yy COMPANY: OlDonnell, Ramrnis at al. TELECOPY NUMBER: 243-2944 BUSINESS NUMBER: 222-4402 FROM: Greg Lutje 293-8347 COMMENTS: Attached are materials I left today with Mark Roberts for the file and distribution to the Planning Commission. I presume you received today Michael Robinson's new materials in support of the application which at a minimum should necessitate a "continuance" of the Hearing under 197.763. We need your involvement and assistance ASAP. 1111 call you Tuesday afternoon to discuss and try and set up a meeting. CQNF12ZNTZALIXY NOTICE This facsimile transmission (and or documents accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information Is strictly prohibited. If you have received this transmission in error, please immediately notify us by telephone to arrange for return of the documents. Number of pages being transmitted (including this sheet): 7 Time of Transmittal: a.m. p.m. If you do not receive all of the pages indicated, please call us as soon as possible at (503) 293-8347. Thank you, Telecopy Operator t t ODONNELL RAMIS ET AL -503-243-2944 Dec 16.94 9:40 No.004 P.02/03 STOEL RIVES BOLEY JONES & GREY RECEIVED AMRNRTS AT LAW SUITE:tea DEC 1 b 1994 STANDARD INOVRnNffi CfiNTpR too 6W FIFTH AVHNUS PORTLAND, ourmoN 97204426 MepRome (30.1) 771 1110 i' W^VP(rr(30J) zzm:lso due Lewp,rt Diet 703tss wrNt/s Dtrrct Diol Nilmhvr (303) 294-9194 December 13, 1994 VIA FACSIMILE Ms. Pamela J. Beery O'Donnell, Ramis, Craw, Corrigan Bachrach 1727 NW Hoyt Portland, OR 97209 Re: Gensman V. City 2f TJgGXd- LUBA N2.-94-211 Dear Pam: I received the record on December 6. Pursuant to LUBA's rules, I have until December 16 to file a record objection. I have reviewed the record and have the following questions regarding its content. 1. The Planning Department's file in this matter was with Mark Roberts and was physically before the City Planning Commission at its September 19, 1994 hearing. In that file was an original traffic analysis report prepared for Taco Bell by Robert Reech Associates, dated April 7, 19-94. The record does not contain the traffic report. 2. Mark Roberts used several overheads in his presentation to the Planning Commission on September 12. I see no reference to the transparent overheads in the record. Would you ask Mark whether the overheads are duplicates of materials already in the record? 3. Exhibit 7 to my August 231 1994 letter is the agenda for the Tigard City Council meeting of June 28, 1994. This P= -137606.1 72523 0002 ODONNELL RAMIS ET AL 503-243-2944 Dec 16,94 9:40 No.004 P.03/03 ST U. RIVES SOLEY K"Wf.1;&CREY Ms. Pamela J. Beery December 13, 1994 Page 2 letter and the other exhibits are in the record, but Exhibit 7 is missing., . 4. The record contains several photographs which are Bxhibit 4 to my September 19, 1994 letter. (Rec. 94-98.) I think it miqht be more helpful if the color photographs submitted with my September 19, 1994 letter were also submitted to the Board. One can certainly see more detail in the color photographs than in the reproductions. Please call me regarding this matter. Very truly yours, gj.j C. P44, Michael C. Robinson MCR:cf2 cc: Mr. Mike Randlms (via facsimile) Mr. Dave Kimmel (via facsimile) =Exhibit 6 to the letter is also-missing. Exhibit 6 is the affidavit of mailing of the director's decision by Bonnie Mulhern, but it is included elsewhere in the record. MI-137606.1 72323 0009 ODONNELL RRMIS ET AL 503-243-2944 Dec 16,94 8:46 No.001 P.01 O'DONNELL RAMIS CRRW CORRIGAN & BACHRACH ATMRNEYS AT LAW 1727 N.W. Hoyt Suet Pordand, Oregon 97209 TRIEPIIONE: (608) =-4402 FAX: (503) 343-2944 PLEASE RRPLY 70 PORTLAND O"ICE FACSIKILIZ ZR1sI SMTSSTON COVED SHEET - BELOW, IF THE READER I OF INTENDED ONLY FOR THE USE CONSIST OF THE INDIVIDU L OR ENT ENTITY AND CONFIDETI THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR THE EMPLOYEE OR AGENT RESPONSIBLE TO DELIVER IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIQITED. IF YOU HAVE RECEIVED RETURN THE THIS COMMUNICATION TO US AT THE ABOVE ADDRESS VIAT HE U.S. POSTAL SERVICE. THANK YOU. DATE: December 16, 1994 CLIENT NO.: 90024-07 T0: Cathy Wheatley City Recorder FAX: 684-7297 Phone: 639-4171 FROM: Anja Hackworth FAX # (503) 243-2944 DESCRIPTION OF DOCUMENT TRANSMITTED: Information for Gensman LUBA record. COMMENTSs 3 PAGES TO FOLLOW, EXCLUDING COVER SHEET. IF YOU DO NOT RECEIVE ALL OF THE PAGES, PLEASE CALL THE UNDERSIGNED AT (503) 222-4402 IMMEDIATELY. THANK YOU. SIGNED: Anja Hookworth AN ORIGINAL 19 BEING MAILRn: AN ORIGINN.15 AVAIL%M UPON RIIQUM, VA A 7 ~GY ODONNELL RAMIS ET AL 503-243-2944 Dec 16,94 9:39 No-004 P.01/03 O'DONN$LL RAMIS CRBW CORRIGAN & BACHRACH ATTORNEYS AT LAW 3727 N.W. BOA Sweet Portland, Oregon 97209 TELEPHONE: (503) 112-4402 FAX: ($03) 243-1944 PLF,ASE REPLY TO PORTLAND OFFICE FACSIMI S TRANSMISSION COVER SHEET THIS COMMUNICATION MAY CONSIST OF ATTORNEY PRIVILE0E0 AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED BELOW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE TO DELIVER IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVi RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE U.S, POSTAL SERVICE. THANK YOU. DATE: December 16, 1994 CLIENT NO.i 90024-07 TO: Cathy Wheatley City Recorder FAX , 684-7297 Phone 639-4171 FROM: Anja Hackworth FAX # (503) 243-2944 DESCRIPTION OF DOCUMENT TRANSMITTED: Letter from M. Robinson re: additional information to be included in the Genaman LUBA record. CONSENTS : 2 PAGES TO FOLLOW, EXCLUDING COVER SHEET. IF YOU DO NOT RECEIVE ALL OF THE PAGES, PLEASE CALL THE UNDERSIGNED AT (503) 222-4402 IMMEDIATELY. THANK YOU. SIGNEDI Anja Hackworth AN ORIGINAL IS BEING MAILED: AN ORIGINAL IS AVAIIMLE UPON AEQUB6T: ODONNELL RAMIS ET AL 503-243-2944 Dec 16,94 8:47 No.001 P.02 GREGORY G. LUTY6 RECEIVED Attorney at law *00 Lincoln Center Tower DEC 1 b 1984 Pbr&nd, Oregon 97223.5575 Tel: (503) 293.8347 Fax. (503) 2933559 NMA%W December 14, 1994 Pamela J. Beery O'Donnell, Ramie et al. 1727 NW Hoyt Street Portland, OR 97209 Re: Request for Supplemental Record; °ensman v. City of Tigard; LUBA 94-211 Dear Pamela: Thank you for acknowledging my request for minor revisions and inclusions to the Record of the above referenced matter. I am requesting that the following actions be taken: 1. Add my telefax transmission to you dated September 19th (copy attached) to the Record. Since your written response to me dated September 23rd is in the Record as Exhibit 4, p. 72, my request puts the issues in proper context. 2. Add my September 23rd letter to the Planning Commission (copy attached) to the Record. It was presented to the Commission at the Hearing on the 26th, and is mentioned in the Meeting Minutes (Exhibit 3, p. 51). It shows that two of the issues on appeal were raised and not waived. 3. Correct the reference in the first line of the fourth full paragraph of Exhibit 3, p. 51 from "applicants" attorney to "appellants," attorney. Also, Commissioner Holland's motion on the next page of the minutes was to deny appellants' appeal,' not the applicants'.. .4. A minor matter is to place Exhibit 4, p. 57 following page S9.1 Please acknowledge your concurrence with these revisions today if possible. Please call me with any questions or concerns. Bes regards, S GBgo b: tje Encl. ODONNELL RAMIS ET RL 503-243-2944 Dec 16,94 8:47 No.001 P.03 GJWW RY G. ZAMJR AAWrxeyy at law 800ldnoo& Csakr 7bw9r Pordand, Oregon 97223.S37S Ties: (503 2938347 Fair: (303) 2933SS9 September 24, 1994 Tigard Planning Commission 13125 SW Hall Boulevard Tigard, OR 97223 Re: Case File No. BAR94-0003; Taco Bell Site Devel. App. Demand for Continuance and Partial Refund of Appeal Fees Dear Commission: As you are aware, I am the attorney for Mitchell Gensman, one of the appellants in the above referenced matter. On September 191 19941 1 received a copy of a document that •I believe was submitted to you that day by Michael Robinson, legal counsel for Taco Bell, the Applicant in this matter. Pursuant to ORS 197.763(4)(&), all documents or evidence relied upon by the applicant must be submitted to the City and avacll,able to the public at least 20 days prior to the evidentiary hearing. Pursuant to ORS 197.763(4)(b), any party is entitled to a continuance of the hearing if additiona3 documents or evidence is provided on support of the application after the '20 day cut of f eriod. Mr. Robinson's materals were supplied 7 days after the hearing. I believe the materials submitted by Mr. Robinson constitute now evidence and/or documents, and consequently entitle my client to a continuance of the hearing for at least 20 dAys to provide ample time for review and analysis. Please advise me of the date of the continued hearing. Additionally, pursuant to ORB 227.175(l0)(b), the City may only impose a foe of up to $100 for requests of initial hearings of matters such-as this where the City has provided only a notice of the opportunity to request a hearin A copy of the receipt dated July 13, 1994 in the amount of 235 is attached. Please issue a refund in the amount of $135 at your earliest convenience. very truly yours, Gregory G . ' Lut j e Encl. cot Mitchell Gensman Mark Roberts E Michael Robinson Bill Monahan ODONNELL RRMIS ET RL 503-243-2944 Dec 16,94 8:48 No.001 P.04 GREGORY 0. LUTJE Attorney at Law 400 Lincoln Center Tower Portland, Oregon 97223-5575 Tell(503) 293-8347 Faxs(503) 293-3559 Date: September 19, 1994 TBLECOPY TRANSMITTAL Please Notify the Recipient immediately TO: Pamela J. Beer yy COMPANY: O'Donnell, Ramis et al. TELECOPY NUMBER: 243-2944 BUSINESS NUMBER: 222-4402 FROM: Greg Lutje 293-8347 COMMENTS: Attached are materials I left today with Mark Roberts for the file and distribution to the Planning Commission. I presume you received today Michael Robinson's new materials in support of the application which at a minimum should necessitate a "continuance" of the Hearing under 197.763. We need your involvement and assistance ASAP. I'll call you Tuesday afternoon to discuss and try and set up a meeting. CQNF12ENTZALITY NOTICE This facsimile transmission (and or documents accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying., distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please immediately notify us by telephone to arrange for return of the documents. Number of pages being transmitted (including this sheet): 7 Time of Transmittal: a. m. p.m. If you do not receive all of the pages indicated, please call us as soon as possible at (503) 293-8347. Thank you, Telecopy operator t ODONNELL RRMIS ET RL 503-243-2944 Dec 16,94 9:40 No.004 P.02/03 STOEL RIVES BOLEY JONES & GREY RECEIVED ATTORNEYS AT LAW sUITE2300 DEC 15 1994 STANDARD INSUIRANCS CENTER 900 SW FIFTH AVENUE PORTLAND, OREGON 97204.1268 7kityNoNp (501) 7N 3.180 OMIT" Tilecoyter (503) 220-2480 Cable Laueyorl Telex 703453 Writer's Dlreci Din) Number (508) 904-9194 December 13, 1994 VIA FACSIMILE Me. Pamela J. Beery O'Donnell, Ramis, Crew, Corrigan Sr Bachrach 1727 NW Hoyt Portland, OR 97209 Re: easman v. City of TiQa,.,rd, LUBA No. 94-2.11 Dear Pam: I received the record on December 6. Pursuant to LUBA's rules, I have until December 16 to file a record objection. I have reviewed the record and have the following questions regarding its content. 1. The Planning Department's file in this matter was with Mark Roberts and was physically before the City Planning Commission at its September 19, 1994 hearing. In that file was an original traffic analysis report prepared for Taco Bell by Robert Keech Associates, dated April 7, 1994. The record does not contain the traffic report. 2. Mark Roberts used several overheads in his presentation to the Planning Commission on September la. I see no reference to the transparent overheads in the record. Would you ask Mark whether the overheads are duplicates of materials already in the record? 3. Exhibit 7 to my August 23, 1994 letter is the agenda for the Tigard City Council meeting of June 28, 1994. This PDX1-157606.1 72523 0002 ODONNELL RAMIS ET AL 503-243-2944 Dec 16,94 9:40 No.004 P.03/03 STO EL RIVES BOLEY JONES,& GREY Ms. Pamela J. Beery December 13, 1994 Page 2 letter and the other exhibits are in the record, but Exhibit 7 is missing.' 4. The record contains several photographs which are Exhibit 4 to my September 19, 1994 letter. (Reo. 94-90.) I think it might be more helpful if the color photographs submitted with my September 19, 1994 letter were also submitted to the Board. One can certainly see more detail in the color photographs than in the reproductions. Please call me regarding this matter. Very truly yours, C. A9,4, Mj,j Michael C. Robinson MCR:cf2 cc: Mr. Mike Randles (via facsimile) Mr. Dave Kimmel (via facsimile) 'Exhibit 6 to the letter is also missing. Exhibit 6 is the affidavit of mailing of the director's decision by Bonnie Mulhern, but it is included elsewhere in the record. aax2-157606,1 72523 0009 Froii, FINANCE/MARK_R 'Subject: taco bell To: JO X-To : j o Date: 18 Dec 94 16:54:48 The applicant's rep Dave Kimmel is going to provide 10 more copies of the blueline aerial photo in the back of the traffic study. Could you have office services make 10 more copies of the text of the study? Patty is working on having.the PC Minutes changed and signed by Wednesday. The applicant's rep is checking with Michael Robinson regarding the photos. If he'd like these added Dave Kimmel will provide additional sets. Otherwise we can let LUBA's referree's borrow the original bound set. I don't think they add much to the understanding of the issues. • BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON MITCHELL GENSMAN, ) Petitioner, ) LUBA NO. 94211 vs. ) Index and Supplemental CITY OF TIGARD, ) Record Respondent, ) Certified to be a True Copy of Original on file - 9 2 I / r By: City Recorder - City f igard ®at PLANNING DESIGN GROUP SDR 94-0003/MIS 94-0007 TACO BELL RESTAURANT CITY OF TIGARD RECORD FOR LAND USE BOARD OF APPEALS (LUBA 94-211) I, Elizabeth A. Newton, Deputy City Recorder for the City of Tigard, certify that the contents within are a true copy of the Supplemental Record. 147-d/ 41A~~ ' Elizabeth A. Newto , Tigard City Recorder Date: i TABLE OF CONTENTS Paae Statement Certifying the Record of Proceeding i Table of Contents ii Exhibit No. S-1 September 24, 1994 Letter from Gregory G. Lutje S-1 S-2 Revised September 26, 1994 Minutes - City of Tigard S-2 to S-4 Planning Commission S-3 September 14, 1994 Letter from Bradley N. Wanamaker S-5 to S-6 (Replaces Pages 57 and 59 of Record) S-4 June 28, 1994 Agenda - City of Tigard City S-7 to S-10 Council Meeting S-5 April 7, 1994 Traffic Analysis of Robert Keech.......... S-11 to S-77 Associate ii • GREGORY G. LUTIE Attorney at Law 400 Lincoln Center Tower Portland, Oregon 97223-5575 Tel: (503) 293-8347 Fax: (503) 293-3559 September 24, 1994 Tigard Planning Commission 13125 SW Hall Boulevard Tigard, OR 97223 Re: Case File No. SDR94-0003; Taco Bell Site Devel. App. Demand for Continuance and Partial Refund of Appeal Fees Dear Commission: As you are aware, I am the attorney for Mitchell Gensman, one of the appellants in the above referenced matter. On September 19, 1994, I received a copy of a document that I believe was submitted to you that day by Michael Robinson, legal counsel for Taco Bell, the Applicant in this matter. Pursuant to ORS 197.763(4)(a), all documents or evidence relied upon by the applicant must be submitted to the City and available to the public at least 20 days prior to the evidentiary hearing. Pursuant to ORS 197.763(4)(b), any party is entitled to a continuance of the hearing if additional documents or evidence is provided on support of the application after the 20 day cut off period. Mr. Robinson's materials were supplied 7 days after the hearing. I believe the materials submitted by Mr. Robinson constitute new evidence and/or documents, and consequently entitle my client to a continuance of the hearing for at least 20 days to provide ample time for review and analysis. Please advise me of the date of the continued hearing. Additionally, pursuant to ORS 227.175(10)(b), the City may only impose a fee of up to $100 for requests of initial hearings of matters such as this where the City has provided only a notice of the opportunity to request a hearing. A copy of the receipt dated July 13, 1994 in the amount of $235 is attached. Please issue a refund in the amount of $135 at your earliest convenience. Very truly,,yours, Gre_ory G. I` Encl. _ cc: Mitchell Gensman Mark Roberts Michael Robinson Bill Monahan LUBA NO. 94-211 - Exhibit No. -5-1 Page No. TIGARD PLANNING COlVIiMISSION Regular Meeting Minutes - September 26, 1994 1. CALL TO ORDER President Fyre called the meeting to order at 7:30 p.m. The meeting was held in the Tigard Civic Center-Town Hall-13125 SW Hall Blvd. 2. ROLL CALL Present: President Fyre, Commissioners DeFrang, Holland, Moore, Saxton, Schweitz and Wilson Absent: Commissioners Collson and Saporta staff.- Dick Bewersdoa Senior Planner, Mark Roberts, Assistant Planner and Leslee Gemmill, Planning Commission Secretary 3. APPROVE MINUTES Commissioner Holland motioned to accept the September 12, 1994 meeting minutes as submitted and Commissioner Wilson seconded the motion. A voice vote was taken and the motion was approved unanimously. Commissioner Saxton abstained. 4. PLANNING COMMISSION COMMUNICATIONS None 5. PLANNING COMMISSION DELIBERATION FROM SEPTEMBER 12,1994 PUBLIC HEARING. 5.1 SITE DEVELOPMENT REVIEW SDR 94-0003 PDG/CORBIN/ TYSON LOCATION: 11631 and 11635 SW Pacific Highway (WCTM 1 S 13 6DB, tax lots 700 & 600). An appeal was filed of a Director's Decision approving a Site Development Review to allow construction of an approximately 1,989 square foot drive-thru restaurant with related site improvements. APPLICABLE APPROVAL CRITERIA: Community Development Code Chapters 18.332, 18.62, 18.84, 18.92, 18.94, 18.96, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.144, 18.150, 18.162 and 18.164. ZONE: C-G (General Commercial) The C-G zone allows public agency and administrative services, public support facilities, professional and administrative services, financial, insurance and real estate services, business support services, and eating and drinking establishments among other uses. Mark Roberts, Assistant Planner, informed the Commissioners that deliberation was to continue at this meeting for the appeal filed for the Director's Decision to approve the Taco Bell proposed at 11631 SW Pacific Hwy. At the September 12, 1994 hearing, the appellant requested the record be held open for seven days to submit new evidence and the applicant requested seven days to respond to new evidence. Both the applicant and appellant did so and the new evidence was provided in the packet and the applicant provided additional response today to the issues raised by the appellant. LUBA NO. 94-211 WON No. S- -1 Page No. S- .2 Mark Roberts stated that the City Attorney indicated a further continuance was not required in this instance. He then informed the Commissioners that the appellant asked that this matter be referred to the City Council for review due to policy issues involved with access to residential uses and in conclusion, he stated that staff recommend Planning Commission deliberate and act on the appeal at this meeting. Mark Roberts, using overheads, reviewed for the Planning Commissioners the revised site plans and highlighted information submitted by the applicant. He reviewed the information the applicant submitted that demonstrated how access could be provided from SW 74th. Assistant Planner Roberts answered questions directed by the Planning Commissioners regarding the proposal and again using the overheads, addressed the Commissioners concerns regarding access to the existing properties. Mark Roberts began to read a letter from the appellant's attorney that was submitted today that indicated evidence relied upon by the applicant must be submitted to the City and be available to the public at least 20 days prior to the hearing and that any party was entitled to a continuance of the hearing if additional documents were provided that supported the application after the 20 day cut off period. Mark Roberts said Mr. Robinson's materials were supplied seven days after the hearing. At this time, a guest objected stating that even though his objection wasn't appropriate, the letter shouldn't be read at tonight's meeting. Mark Roberts responded that the letter was not new evidence but merely information concerning the process and that the continuance was not applicable in this instance because the public hearing portion of the meeting on September 12, 1994 was continued for a specific period of time allowed for the applicants response to any new materials, submitted. Mark Roberts then stated that the City Attorney recommended the Planning Commission disregard that, deliberate and hopefully reach a decision on the appeal at this meeting. The Planning Commissioners, at the suggestion of Dick Bewersdorff, took the time necessary to review the applicants rebuttal. Commissioner Saxton, due to his absence at the September 12, 1994 Planning Commission hearing, asked for clarification and additional information on the 14' access and 40' right of way. Using overheads, staff and the other Planning Commissioners addressed his questions and then continued their discussion regarding the appeal. PLANNING CONMSSION MEETING MINUTES - September 26, 1994 - Page 2 LUBA NO. 94-211 Exhibit No. S -A Page No. S-3 Commissioner Holland said he didn't have a problem with the Taco Bell design but was concerned with the surrounding properties not having access in the future. Commissioner Moore stated that his concern two weeks ago about emergency vehicle access had been worked out and he saw no reason to uphold the appeal. Mark Roberts addressed the Commissioners and said that at the public hearing portion of the September 12, 1994 meeting, the applicant requested to be able to write the findings for this decision. Commissioner Holland motioned to deny the appellant's appeal and Commissioner Moore seconded the motion. A voice vote was taken and the motion was approved unanimously with the findings to be prepared by the applicant. 6. OTHER BUSINESS Senior Planner Bewersdorff reminded the Planning Commissioners of the joint meeting with the City Council on Monday, October 3, 1994 and highlighted some of the agenda items for future Planning Commission meetings. Commissioner Holland briefly summarized for the Planning Commissioners the results of the recent Task Force meeting regarding the 99W and Hall Boulevard improvements and other Tigard transportation problems. 7. ADJOURNMENT The meeting adjourned at 8:15 p.m. Leslee Gemmill Planning Commission Secretary C A : Preside t Amended minutes signed by President Milt Fyre on 12/21/94 PLANNING COMMISSION MEETh IG iINID;=S - September 26, 1994 - Page 3 LUBA NO. 94-211 Exhibit No. $ -a Page No. S- q TUALATIN VALLEY FIRE & RESCUE AND BEAVERTON FIRE DEPARTMENT 4755 S.W. Griffith Drive • P.O. Box 4755 • Beaverton, OR 97076 • (503) 526-2469 • FAX 526-2538 September 14, 1994 Mitchell Gensman 963 S.W. Westwood Dr. Portland, Oregon 97201 Re: Pacific Highway Access Roadway 11623 S.W. Pacific Hwy. Tigard, Oregon Dear Mr. Gensman: As a follow-up and clarification to my original letter, you are correct on your interpretations. First of all, the access roadway that I referred to is for single family dwellings. The more single family dwellings developed in an area increases both traffic flow, parking patterns, and the likelihood that we will need to respond and access an area, therefore, wider roadways. Secondly, when we review a site plan, we look at the number of building sites allowed by the building department and require the roadways.to comply with the number of potential residences indicated, even if there are only one or two in existence. Thirdly, our fire department ordinance requires fire hydrants be to within 500 feet of non-commercial buildings, as measured in an approved manner along the route of travel accessible to fire apparatus. The number of hydrants, in this case, does not impact the road design or width requirements. Insofar as the statement that is acceptable for fire and rescue vehicles to jump the curb for necessary access, there are instances and designs which would allow for fire department vehicles to jump a curb, however, these areas are specifically designed to carry both gross and per wheel vehicle weight as covered in the outline. There are also specific curb designs for that type of design. It is rarely less difficult than designing proper turn radii. LUBA NO. 94-211 Exhibit No. S- 3 "Wnrkinc" SmoP~ nl trrtnrc Save Lives Page No.-$: 5 Mitchell Gensman September 14, 1994 Page 2 Please submit plans on the proposed roadway alterations for our file. If I can be of any further assistance to you, please feel free to contact me at 526-2469. Sincerely, Bradley. Wanamaker Deputy Fire Marshal BNW:kw LUBA NO. 94-211 Extibtt No. S- 3 Page No. S- 6 CITY OF TIGARD OREGON 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 istive Listening Devices are available for persons with impaired hearing and should Ass 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, Ext. 309 (voice) or 684-2772 (TDD - Telecommunications Devices for the Deao. SEE ATTACHED AGENDA COUNCIL AGENDA - JUNE 28, 1994 - PAGE 1 LUBA NO.94-211 Exhibit No. -A- -q page No. S- _ TIGARD CITY COUNCIL MEETING JUNE 28, 1994 AGENDA • STUDY MEETING: (6:30 p.m.) Durham Park Tigard Community Youth Services (TCYS) Building Agenda Review 1. BUSINESS MEETING (7:30 p.m.) 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 2. SPECIAL PRESENTATION - RECOGNITION OF JUDY FESSLER FOR HER YEARS OF SERVICE AS A CITY COUNCILOR AND PLANNING COMMISSIONER • Mayor Schwartz 3. VISITOR'S AGENDA (Two Minutes or Less, Please) 4. 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: 4.1 Approve Council Minutes: June 7 and 14, 1994 4.2 Receive and File: June 7 Memorandum from Chief Goodpaster Regarding Forfeited Funds 4.3 Ratify Tigard Police Officer Two-Year Contract - Resolution No. 94- 4.4 Initiate Vacation Proceedings for a 165-Square Foot Portion of Public Pedestrian Easement Along Lot No. 8, Hart's Landing Subdivision - Resolution No. 94- 4.5 Enter into a License Agreement with Property Owners in Cotswald Meadows Subdivision, Adjacent to Walnut Street to Allow Temporary Private Use of Portions of Public Right-of-Way 4.6 Approve Municipal Court Judge's Contract - Michael O'Brien - Resolution No. 94- 4.7 Approve Hearings Officer Contract - Larry Epstein, PC 4.8 Approve Franchise Fee to Support Tualatin Valley Community Access - Resolution No. 94- 4.9 Endorse Mark Cottle as the Eastern Washington County City Representative of the EMS Policy Board 4.10 Local Contract Review Board: Award Contract for Construction of the Main/Commercial Street Storm Drainage Capital Improvement Program to Eudaly Brothers COUNCIL AGENDA - JUNE 28, 1994 - PAGE 2 LUBA NO. 94-211 ExhWlt No. ..S- Page No. S- 9 - 5. PUBLIC HEARING (QUASI-JUDICIAL) - SITE DEVELOPMENT REVIEW SDR 93-0009 PLANNED DEVELOPMENT REVIEW PDR 93-0006 TRIAD Location: 11165 - 11185 S.W. Naeve Street. North side of Naeve Street, west of S.W. 109th Avenue, south of Little Bull Mountain Apartments (WCTM 2S1 10DB, Tax Lots 100 and 200, 2S1 10 AD, Tax Lot 9300, and 2S1 10 AC, Tax Lots 600, 700, 800, and 900). A request for approval of a revised site plan for conceptual planned development/site development review of a 348 unit, 17 building, multi- family residential complex on a 26.2 acre parcel. This hearing is being held as a result of a remand of the decision in Davenport v. City of Tigard, OR LUBA (LUBA No. 93-191, May 19, 1994). The sole matter for decision is whether the revised site plan submitted by the applicant complies with Tigard Community Development Code 18.108.070 (D) concerning the width of the required access driveways. Only evidence and testimony related to this issue will be taken by the City Council. APPLICABLE REVIEW CRITERIA: Community Development Code Section 18.108.070 (D). ZONE: R-12 (PD) (Residential, 12 unit/acre, Planned Development overlay) and R-25 (PD) (Residential, 25 units/acre, Planned Development overlay). a. Open Public Hearing b. Declarations or Challenges C. Staff Report: Community Development Department d. Public Testimony • Applicant • Proponents • Opponents e. Staff Recommendation f. Council Questions g. Close Public Hearing h. Council Consideration: Resolution No. 94-_ 6. PUBLIC HEARING - 1994-95 USES OF STATE REVENUE SHARING • Public Hearing Opened • Declarations or Challenges • Summation by Budget Officer • Public Testimony: Proponents, Opponents, Cross Examination • Recommendation by Budget • Council Questions or Comments • Public Hearing Closed • Consideration by Council: a. RESOLUTION NO. 94- A RESOLUTION CERTIFYING THE CITY OF TIGARD PROVIDES SERVICES QUALIFYING FOR STATE SHARED REVENUES b. ORDINANCE NO. 94- AN ORDINANCE DECLARING THE CITY'S ELECTION TO RECEIVE STATE REVENUES COUNCIL AGENDA - JUNE 28, 1994 - PAGE 3 LUBA NO. 94-211 Exhibit No. S- 4 Page No. S 9 7. PUBLIC HEARING - 1994-95 FISCAL YEAR BUDGET • Public Hearing Opened • Declarations or Challenges • Summation by Budget Officer • Public Testimony: Proponents, Opponents • Recommendation by Budget Officer • Council Questions or Comments • Public Hearing Closed • Consideration by Council: Resolution No. 947-- 8. NON-AGENDA ITEMS 9. EXECUTIVE SESSION: The Tigard City Council will go into Executive Session under the provisions of ORS 192.660 (1) (d), (e), & (h) to discuss labor relations, real property transactions, current and pending litigation issues. 10. ADJOURNMENT =aom.94 COUNCIL AGENDA - JUNE 28, 1994 - PAGE 4 LUBA NO. 94-211 Exhibit No. s_'1 Page No. to TACO BRIE. ?'--"AC,'.'!F;IC HGHWAY TRAFFIC ANALYSIS REPORT ANE 'Q ✓~~r 36. lab G~ ~eFfiT C. E)V Robert Keech Associates, Inc. Consulting Traffic Engineer 1225 NW Murray Blvd. Suite 206 Portland, OR 97229 (503) 641-6333 8 Project 1194.007 LUBA NO. 94-211 Exhibit No. 5-5 Page No. it TACO BELL PACIFIC HIGHWAY TRAFFIC ANALYSIS REPORT April 7, 1994 Table of Contents Traffic Analysis Outline Traffic Analysis Report Appendix A - Vicinity Map Appendix B - Site Traffic Generation Appendix C - Site Traffic Distribution Appendix D - Site Traffic Assignment Appendix E - Existing Traffic Flow Appendix F - Traffic Growth Appendix G - Intersection Analysis Appendix H - Site Layout LUBA NO. 94-211 Exhibit No. s - 5 Page No. j a TRAFFIC ANALYSIS OUTLI-N= Appends E Determination of Determination of Survey of Proposed Surrounding Existing Traffic Land use activity Land use patterns Flow Appendix B Appendix C Estimation of Estimate of Trip Generation Trip Distribution r------- r--TA;;ennft G , j I Existing Traffic Appendix D I Projection I Site Traffic Assignment _ I I Existing + I Site Traffic Appends F I Projections I I Estimation of Traffic Growth 1 I Total Traffic I j Interjection Analyaisj oert R b KEECH ASSOCIATES INC, CONSULTING TRAFFIC ENGINEER 1225 NW MURRAY BLVD., SUIT 206, PORTLAND, ORE. 15031641-6333 LUBA NO. 94-211 Exhibit No. S. S Page No. S- 13 TACO BELL PACIFIC HIGHWAY TRAFFIC ANALYSIS REPORT April 7, 1994 Introduction: This report examines a proposed 1,989 square foot fast food restaurant with a drive-up window (Taco Bell). The site is located on the north side of Pacific Highway, near the signalized access to the Act III Theater (about 450 feet east of SW Pfaffle Street). Access to the site is planned from two driveways, both directly off of Pacific Highway. The east driveway is located within 10 feet of the north approach of the signalized Act III access. The west driveway will be shared with an existing 9,000 square foot commercial building, currently being used as an auto supply store. This site is proposed to replace the existing Taco Bell, which is directly across Pacific Highway from the proposed site. This site is currently being used as a motel and a jewelry store. This proposal will remove one existing driveway. The vehicle trip generation from this site is minimal (less than 10 existing trips per hour). This area along Pacific Highway relies heavily on direct access to the highway. In some cases, lots reaching 1,000 feet deep access directly onto Pacific Highway. Within 800 feet of the site, there are two traffic signals that serve single businesses and provide limited circulation for other property KEECH ASSOCIATES, INC. LUBA NO. 94-211 Exhibit No. S- 5 Page No. S- I TACO BELL PACIFIC HIGHWAY Page 2 owners. Also, there is an absence of public streets that appear feasible for extension to serve this area. Area of Analysis: The analysis area includes that area where the site traffic would increase the existing level of traffic flow by 10 percent. In this case, the magnitude of traffic flow from the site is about 2 percent of existing traffic on Pacific Highway. As a result, only the two driveways serving the site would fall within the criteria. The intersection of Pacific Highway and the Act III access was also analyzed because of its influence within this area. Findings: Observations of the existing traffic flow within the vicinity of the proposed site were done during March of 1994. Table A summarizes these findings. TABLE A EXISTING TRAFFIC LOCATION VEHICLES/HOUR 11 MIDDAY LPM PEAK SATURDAY Pacific Highway 3,100 3,600 2,983 KEECH ASSOCIATES, INC. LUBA NO. 94-211 Exhibit No. 5-5 Page No. S- 15 TACO BELL PACIFIC HIGHWAY Page 3 The trip generation for this site is estimated at 1,257 trips per day. A peak generation of 200 trips per hour is anticipated during the noon peak hour, when the site is in full use. The Pacific Highway at the Act III access currently operates at a "C" level of service or better. However, the eastbound queues are observed and calculated to extend west about 300 feet. The addition of the site is not anticipated to noticeably change the operation of this intersection. The east access is within 10 feet of the Act III access. Both the magnitude of traffic on Pacific Highway and the queue from the Act III access would make left turns out of the east access nearly impossible. Also, the narrowness of the driveway (24 feet) would cause it to be blocked by any vehicle attempting to make this movement. The west access is located about 200 feet west of the Act III access. It would be affected by the magnitude of the traffic on Pacific Highway, and to a lesser extent by the vehicle queues from the Act III access. Our field survey indicated that about 20 vehicles per hour make left turns on to Pacific Highway from the six existing driveways within this area. Our estimate of trips from the site would increase by about 30 vehicles per hour during the midday peak hour. Also, there are currently about 36 vehicles per hour making a left turn into these same six driveways, which would increase by about 46 vehicles per hour. Keep in mind that some of the existing movements are being KEECH ASSOCIATES, INC. LUBA NO. 94-211 Exhibit No. S- s Page No. S- I b TACO BELL PACIFIC HIGHWAY Page 4 generated by the existing Taco Bell on the south side of Pacific Highway. The west access is anticipated to experience long delays for vehicles wanting to make left turns, and less than desirable traffic operations will occur. Conclusion: This is a .difficult site to develop by itself. It is essentially land locked except for direct access on the heavily used Pacific Highway, just west of the Act III signalized access. As proposed, the site would create less than desirable traffic operation on Pacific Highway, including the addition of excessive median use conflicts. A minimal mitigation measure would be to sign both driveways as right turn out only. More desirable measures would be the construction of a center median and/or the construction of a north approach to the Act III access. These latter measures would require a substantial traffic review because they would affect the other properties in this area. Robert Keech, P.E. Traffic Engineer P.E. #8822 KEECH ASSOCIATES, INC. LUBA NO. 94-211 Exhibit No. S- 5 Page No. S- ri 1 APPENDIX A Vicinity Map i LUBA NO. 94-211 Exhibit No. S- V Page No. ~S , a~ \ J(~1 . raj` JY'I - • LU1,IY , IV - J I _ - - : ,r_ ~ I `u = J p su IUVtEEEAr~ siJ~ a '4 W.- T_ CL _ T yr F- SNST Ot ,~0~ -I•~ ~jQ T E^);~ N? V c, < ',dFT .~i = j Q SW H.TlUI4i; Si >~l _ ^ Q► ` - L j ptt,•. N 0 KWAY z _ MAPL __AE ST Fn ~f = _ _ _ ? - a x SW OAK ~ST CO Sbl r ti ►u- '~ii~ S J Sw ~C'cr a< - e 55 . 35 h ~3 9000 _J OAf ST -1 Luc OAK f J tr H Q SW 3 PI,1E ¢ t Ln 900 rT SHADY. •LN - SW f' SPRUCE 3 31 a 7000 O _ ANN SW ` SN THORN. ST I SW j~ 2 p` 115 j " Cl? L NGSTAF sw i Q ¢I_ _ _ N6R ST o c a - ST a - ' - cr_ io o m 0 o, ^ g W ^ N;' rn Q .Q to y vii r. ' ri N SW PFAFFLE 8000 11 3c B ST ^ ' u s PkM%~Ir:an'' iAl rr SW LEWIS IlSO G a ° rlGARn J' ` s -c IN-~ SW T PIAZA PC~ :N Col AT A ST SW L - TANGEU; ST ti A 51~, rn TANGELA..~ G N j Y y _ SW DU $W BAY R ST "tF z r-+►:~IKc N ST r~ ;ul~gr gN~EI " ° ~G 2 VALL 7000 SW CLINTO ° S PK XJ s 1- SW to ~ffu,~., < elpy sl l,S~~ CIO 'r! c Ns~ 0 0,W KNO , SN f URST ELMfIUR$T S = •r x Q z• C~ FS SW HE 7000 a /y; L pv'1~~J , f C I.nr I I 1 -~f _ C4. 'n "r ^ ^ ► c tt ~ _ 1.ST SW- ~E SW( FR,NKLIN s I y• a Ns►►-~ 'S o s, ELAND li_ 3W --WCCO' - ` ; - ~7\cT/T sr IrF MAIN PARK . t'~c~,Q i Z SW GONIAGA $Ti _ c z ;2dAJry C\i Sl 1 ,t RAMP 7000 3 S 3 3 ~~~Slxgvmr _ ST T - SW fir= < _01 IRVING SW PAMELA _~-'•`~_?3~ u Cyf~'' LIBE STVIEW sEq, 'dc►' Zp_ two r IiOTTINGN4N ~I ~ C Syr ~~s Sa MWO fi IRK" F c7?'/ SW a VARNS 3 2 9ARRINGTO . OO N J i = LF~ \N. a Y~ Z VARNS ST LL SF` G Z C?cz sTtF a a ` i w ^ SW FIR • s ST: ST 3 SW 'LA r IV SW ° CHERR SW W EDGEWOOD I - ~t,P., ST f1R SANDBI Ipr, - - z APPENDIX B Site Traffic Generation LUBA NO. 94-211 Exhibit No. s- s Page No. 5:-Q c TACO BELL PACIFIC HIGHWAY PROJECT SITE TRAFFIC GENERATION (BY DISTRIBUTION TYPE) DISTRIBUTION TYPE IN OUT TOTAL NOON "DRIVE BY"(1) 60 T/H 60 T/H 120 T/H "PRIMARY" 40 T/H 40 T/H 80 T/H TOTAL 100 T/H 100 T/H 200 T/H PM "DRIVE BY"(1) 22 T/H 22 T/H 44 T/H "PRIMARY" 15 T/H 15 T/H 30 T/H TOTAL 37 T/H 37 T/H 74 T/H SATURDAY ."DRIVE BY"(1) 45 T/H 45 T/H 90 T/H "PRIMARY" 30 T/H 30 T/H 60 T/H TOTAL 75 T/H 75 T/H 150. T/H T/H = TRIPS PER HOUR (1) 60% "drive-by" (pass-by and diverted linked trips) LUBA NO. 94-211 Exhibit No. S-S Page No. S- a( PROJECT SITE TRAFFIC GENERATION Worksheet SITE NAME: Taco Bell Restaurant SITE USE: Fast Food Restuarant With Drive Up Window SITE SIZE: 1,989 Square Feet (1) UNADJUSTED DAILY VEHICLE TRIP GENERATION RATE: 632.0 trips/KSF ESTIMATED MODAL SPLIT: 0.0 ADJUSTED DAILY VEHICLE TRIP GENERATION RATE: 632.0 trips/KSF TOTAL DAILY GENERATED TRIPS: 1257.0 trips/day(2) PERCENTAGE OF TRIPS OCCURRING DURING NOON PEAK: 16.0% (3) NOON PEAK HOURLY GENERATED TRIPS: 200.Otrips/hour(3) NOON ENTER TRIP SPLIT: 0.50 in/total NOON TRAFFIC VOLUME IN: 100.0 trips/hour NOON TRAFFIC VOLUME OUT: 100.0 trips/hour / PERCENTAGE OF TRIPS OCCURRING DURING PM PEAK: 5.8 °o PM PEAK HOURLY GENERATED TRIPS: 74.0trips/hour(3) PM ENTER TRIP SPLIT: 0.50 in/total PM TRAFFIC VOLUME IN: 37.0 trips/hour PM TRAFFIC VOLUME OUT: 37.0 trips/hour PERCENTAGE OF TRIPS OCCURRING DURING SATURDAY PEAK: 12.0 %(4) SATURDAY PEAK HOURLY GENERATED TRIPS: 150.0trips/hour(3) SATURDAY ENTER TRIP SPLIT: 0.50 in/total SATURDAY TRAFFIC VOLUME IN: 75.0 trips/hour SATURDAY TRAFFIC VOLUME OUT: 75.0 trips/hour (1) PDG drawing number Al A, dated 2/8/94. (2) ITE Trip Generation Report, 1991, Land Use Code 834. (3) Based on field observations of similar existing restaurants. (4) Relative measurement compared to weekday noon field observations. LUBA NO. 94-211 Exhibit No. S- S Page No. S- 1 APP END IX. C Site Traffic Distribution LUBA NO. 94-211 Exhibit No. s-S Page No. S- 3 .J APPENDIX C Site Traffic Distribution Site traffic distribution based on observation of existing traffic flows and general land use patterns. LUBA NO. 94-211 Exhibit No. s- S Page No. S- aAi AOL R 0 b e KEECH ASSOCIA 5 INC. CONSULTING TRAFFIC ENGINEER I 1225 NW MURRAY BLVD. PORTLAND OR 97229 (5031641-6333 Pacific Highway Taco Bell SITU OTQXF~iL 'PISTZI UMDtj L~ s ' SO s r`~ a D7 o ti ti D o z z • o 0 y~ c Amm. Robe KEECH ASSOCIATES INC. CONSULTING TRAFFIC ENGINEER 1225 NW MURRAY BLVD. PORTLAND OR 97229 (503) 641-6333 i.t Pacific Highway Taco Bell s ITC-7 ti A D/D 0 rya 6(D 1 Q P 00 \G m ti ~ N D Qn Z Z 0 L~~s o• j J i S meat of ~ site ~r gq,.2i1 Page Rober1w KEECH ASSOCIATES INC, CONSULTING TRAFFIC ENGINEER 1225 NW MURRAY BLVD, PORTLAND OR 97229 1503) 641-6333 i` Pacific Highway Taco Bell w ~Syti s~~~ `ID~rr-rte kss~~,aw►~~~T ~y~►s 0 \A rte' p a~`~ ~G (D --j r ~,titi titi 0 s n m Cr a ti za o i o ~~s ~z titi 7► o ~L ~ I A .i [lobe KEECH ASSOCIATES INC, CONSULTING TRAFFIC ENGINEER 1225 NW MURRAY BLVD, PORTLAND OR 97229 15031 641-6333 I Pacific Highway Taco Bell S iT L T R~t~ L ~SS I til N~ 1~.~ I ~ y~ sj N a o iJl ~j (Z i q R ~S 8~ !N" 4° o ti 8 a ~ p ~ D r s z Cr Z ~ Ib (P P zp o• .y At ~ J 1 J ~ ~ ~ tG ~ 5031 6416 ~ bOD ~oR~~AN ell Nw MuRR~ QG~ ~ Q VA''ghw y ' ~~"CE , 1~k pJ f ~Z 1 (0 D r DUI ► ~ (OD ti J Y CD Q N C`\ At" '1>o 0 0 , Ado& Rober KEECH ASSOCIATES INC. CONSULTING TRAFFIC ENGINEER 1225 NW MURRAY BLVD. PORTLAND OR 97229 1503) 641-6333 I e Pacif is Highway Taco Bell SiTC- "TpAFF- c-- SI(~~r~w~t -~T ~yv►S ti 000 t, o ~ w a ~ ' H rte' ti 100 > re- c z z ~rS co 0. J Robe KEECH ASSOCIATES INC. CONSULTING TRAFFIC ENGINEER I 1225 NW MURRAY BLVD. PORTLAND OR 97229 (5031641-6333 pacific Highway Taco Bell S ►TE 79A (:K1- ASS ► w~ v' v, s All 13 a ti5 0 p a~`f ` m D •v ` s c Z z ~s 'I 1 7► • 0. L~ T. j be ZA~~ ,mss r • A ~ ~ ~C ~ 503 64163 ~ . Ca T ~ A p OR 91~2g ~ ~ ~+t ~ NW MpRRA'f t a ~ p PJ ~ II ~M ~2\ 2ti 1 1~ ti r 1 ~ 1 ~ r n tD c? Air CD yOf mA q Ar w,~ N. Robel KEECH ASSOCIATES INC. CONSULTING TRAFFIC ENGINEER , 1225 NW MURRAY BLVD. PORTLAND OR 97229 (5031641-6333 i Pacific Highway Taco Bell , y~A3ti SiTE -rgAFFiL Assll.NMe~T ~~V►s SAT(J(zPA-/; Covv\pos %TL \ 1 5 ~ All q 21 ~ _ e B ~G q a D7 o Pa~`~`G (D -3 ,q ~.N, D cD 9orro L y~ s oo0 cp J Ank Bober KEECH ASSOCIATES INC. CONSULTING TRAFFIC ENGINEER 1225 NW MURRAY MO. PORTLAND OR 91229 (5031641-6333 I Pacific Highway Taco Bell ~ S I TG -TV ~ Fi: L &SS )h tJ M ..J S \ 2 SA-To P-W j I~f -1VG y (c At, 0 1 ti 1 ~S pa -o r ~ ti~ ~ .tip D All N J Robe KEECH ASSOCIATES INC. CONSULTING TRAFFIC ENGINEER I 1225 NW MURRAY BLVD, PORTLAND OR 97229 (5031641-6333 pacific Highway Taco Bell S i , ~ TR,~~~ c. Ass i a wt ~T ~;y~► s SIFT R-1 Vh f R s \ S ~ ~ Y Trip ~ ~ 1 16,~ e 1 ti 1 ~nn ti5 D m ? ago ~~S ~ y~ s m cD Q D_ ti 2~ Z;x z 0 -41 J i E APPENDIX 1 1 • Traffic Flow Existing LUBA NO. 94-211 Exhibit No. s ---5- page No. l:.- 'l - APPENDIX E Existing Traffic Flow Existing traffic flow as measured in March, 1994. LUBA NO. 94-211 Exhibit No. S- S Page No. 38 Robe KEECH ASSOCIATES INC. CONSULTING TRAFFIC ENGINEER 1225 NW MURRAY BLVD, PORTLAND OR 97229 15031 641-6333 'I te . 1~~bo3 Pacific Highway Taco Bell tE:x 5 p toy 772. A r F- i c, ('I_) to s 1 N~ r~ J a D7 a~ Q Pa~~f~c ~ _,oo ti L Z Cr Z x\06 r, s ° zO L~ s `S~~ ° A, . ~g~b A46 Repair- Jewelry 0 Old Motel' L I L 5 2 O 0 0 I-In /F1\ /F-l\ /71\ /_71\ 2 ® I I I 6~ I I-F-I R`- 1 > Ib 7 L 2 5 C 7ZZ~3 19 8 Pacific Highway,. Z=D 2 13 z 3 Z 0 0 0 1 ,a Taco I ~P e Z. 2 Subway Trophies ll II pacific Hiway Traf f is Smithy Z,ov I c Flow Start Time ~ End Time 13ia0 Trof f . 3 Zg Date: / ~ '7 Survey By INTERSECTION TURN MOVEMENT COLINT SUMMARY REPORT TIGARD THEATRE ENTRANCE AT HIGHWAY 99W ♦ T= .8o P=.797 N ~67 ♦ DATE OF COUNT: 03/24/94 0 12 DAY OF WEEK: Thu T 13 43 11 _ TIME STARTED: 11:30 TIME ENDED: 13:30 H 4-1603 *-1486 0 J LO T= 3.4% T= 4.30 1351--► 4-1486 P=.920 P=.942 93 TEV=TOTAL ENTRY VOLUME ♦ + T=%TRUCKS BY APPROACH 1444--b. I r-11 1415-0- P=PHF BY APPROACH 104 2 53 Peak Hour 1136 A 12:10-13:10 Traffic.Smithy T= 3.2t P=.662 159 TEV=3156 Traffic Survey Service TIME PERIOD EAST BOUND . SOUTH BOUND NORTH BOUND WEST BOUND FROM - TO 1 41 I L► ( r' r i ALL 11:30-11:35 7 87 0 0 3 0 3 0 3 0 109 0 212 11:35-11:40 9 118 0 0 7 1 3 0 1 0 109 0 248 11:40-11:45 13 108 0 0 0 1 3 0 2 0 95 0 222 11:45-11:50 15 111 0 2 6 0 6 0 3 0 99 0 242 11:50-11:55 18 117 0 1 7 1 5 0 0 0 108 0 257 11:55-12:00 15 93 0 0 4 1 4 0 5 0 97 0 219 12:00-12:05 4 104 0 0 3 1 6 0 2 0 106 0 226 12:05-12:10 6 104 0 0 1 1 4 0 3 0 116 0 235 12:10-12:15 12 95 0 1 2 1 15 2 10 0 137 0 275 12:15-12:20 8 122 0 2 5 1 7 0 4 0 123 0 272 12:20-12:25 12 119 0 0 2 1 16 0 6 0 134 0 290 2.25-12:30 10 121 0 0 4 1 10 0 3 0 115 0 264 12:30-12:35 12 88 0 1 6 0 8 0 4 0 109 0 228 12:3S-12:40 12 90 0 1 1 1 7 0 6 0 113 0 231 12:40-12:45 9 119 0 1 5 1 4 0 2 0 131 0 272 12:45-12:50 7 120 0 0 6 1 9 0 0 0 129 0 272 12:50-12:55 3 111 0 1 4 2 8 0 5 0 125 0 259 12:55-13:00 3 124 0 2 4 0 2 0 0 0 131 0 266 13:00-13:05 4 133 0 4 2 2 3 0 8 0 110 0 266 13:05-13:10 1 109 0 0 2 0 15 0 5 0 129 0 261 13:10-13:15 4 102 0 0 2 1 4 0 5 0 118 0 236 13:15-13:20 4 104 0 0 2 1 4 0 5 0 105 0 225 13:20-13:25 3 113 0 0 4 2 7 0 4 0 104 0 237 13:25-13:30 2 122 0 0 0 0 1 0 5 0 122 0 252 Total Survey 193 2634 0 16 82 21 154 2 91 0 2774 0 5967 PHF .68 92 0 .46 .72 .69 68 .25 66 0 .94 0 .942 Trucks 1 3.6 4 0 0 4.8 2.6 0 4.4 0 4.3 0 3.7 StWped Buses 0 3 0 0 0 0 0 0 0 0 1 0 Peas 0 4 0 0 6 0 0 3 0 0 8 0 1 ly Totals 10-12:30 129 1299 0 6 44 10 82 2 42 0 1348 0 2962 1:512:45 133 1283 0 9 46 10 92 2 48 0 1388 0 3011 H07- 2:00-13:098 1317 0 9 43 11 96 2 45 0 1469 0 3090 12:15-13:15 85 1358 0 12 43 11 93 0 48 0 1467 0 3117 12:30-13:30 64 1335 0 10 38 11 72 0 49 0 1426 0 3005 LUBA NO. 94-211 Exhibit No.S-S . _ Page No. Robe KEECH ASSOCIATES INC. CONSULTING TRAFFIC ENGINEER , 1225 NW MURRAY BLVD. PORTLAND OR 97229 (5031641-6333 I t'e pacific Highway Taco Bell ~,Qbe x I G-11 I R N F T= I C `f' 7 L~ S 0.5 1 000 w 1 gti ~ _ . e 1 a WNB Q P a~~~ \ 3 .o r ~~Sb \alSb D 3 ~ (D mo ti ~o yes ~Lws ( 0 o v~ Ww 7r Y Ad4b a air J e w e I r p y Old Motel' 4, 2' Z O O 3 y )L A77N /177-N /177N o f~ ~ ~ f~~ ~ 2 f~4 Zla 2 CA CA r E c--~ 53 Ac~:7~1 pacific Highway 'err o~Z 2 ~L ~S 2 2- . t ' ~ r ? o ZO Taco t ,@ r,.Subway dell .A Trophies pacific Hiway Traffic SmithyeKP°y l Start Time )1:0 J End Time I $'o Z) Traffic Flow 3 23,9y Date: / Survey By 15 59~ INTERSECTION TURN MOVEMENT COUNT SUMMARY REPORT TIGARD THEATER ENTRANCE AT HIGHWAY 99W . A T= 0% P=.531 N ~51 ♦ DATE OF COUNT: 03/24/94 R 11 34 6 10 TIME ME O STARTED: T16 : 00 T TIME ENDED: 18:00 H *-1966 4► *-1873 0 J LO T= 2.1s T= 1.6% 1534-► 4-1873 P=.925 P=.949 87 ~-0 TEV=TOTAL ENTRY VOLUME ♦ + T=%-TRUCKS BY APPROACH '1 P=PHF BY APPROACH 1621-► 1567-► 82 0 27 Peak Hour 1121 16:50-17:50 Traffic Smithy T= 0% P=.825 1109 TEV=3654 Traffic Survey Service TIME PERIOD EAST BOUND ♦ SOUTH BOUND NORTH BOUND WEST BOUND FROM - TO j .1 I L* .41 L i ALL 16:00-16:05 8 138 0 0 6 0 1 0 2 0 116 0 271 16:05-16:10 1 124 0 0 4 0 5 0 2 0 122 0 258 16:10-16:15 3 117 0 0 4 0 19 0 4 0 141 0 288 16:15-16:20 4 96 0 1 3 0 12 0 10 0 151 0 277 16:20-16:25 9 140 0 1 5 1 5 0 1 0 150 0 312 16:25-16:30 9 107 0 0 7 1 11 0 8 0 143 0 286 16:30-16:35 8 111 0 1 3 0 13 0 8 0 130 0 274 16:35-16:40 8 116 0 0" 7 0 6 0 1 0 145 0 283 16:40-16:45 13 127 0 0 4 0 8 0 9 0 105 0 266 16:45-16:50 9 107 0 1 10 0 7 0 2 0 149 0 285 16:50-16:55 10 123 0 1 2 0 8 0 2 0 175 0 321 16:55-17:00 10 128 0 2 4 0 3 0 2 0 141 0 290 17:00-17:05 5 123 0 2 6 0 8 0 4 0 177 0 325 17:05-17:10 9 146 0 0 7 3 4 0 1 0 148 0 318 17:10-17:15 6 138 0 1 4 1 7 0 3 0 147 0 307 17:15-17:20 6 133 0 2 4 0 8 0 2 0 168 0 323 17:20-17:25 9 135 0 0 3 0 7 0 2 0 134 0 290 _ 17:25-17:30 8 135 0 0 0 0 6 0 2 0 175 0 326 17:30-17:35 2 113 0 1 1 0 6 0 1 0 157' 0 281 17:35-17:40 9 104 0 0 2 1 9 0 1 0 150 0 276 17:40-17:45 4 123 0 0 1 0 7 0 4 0 153 0 292 17:45-17:50 9 133 0 2 0 1 9 0 3 0 148 0 305 17:50-17:55 9 101 0 0 0 0 10 0 4 0 118 0 242 17:55-18:00 3 111 0 1 3 0 3 0 2 0 148 0 271 Total Survey 171 2929 0 16 90 8 182 0 80 0 3491 0 6967 PHF .87 92 0 .55 .5 .38 .82 0 .84 0 95 0 .961 Trucks .6 2.2 0 0 0 0 0 0 0 0 1.6 0 1.7 Stopped Buses 0 3 0 0 0 0 0 0 0 0 3 0 Ped 0 12 0 0 0 0 0 17 0 0 12 0 Hourly Totals 16:00-17:00 92 1434 0 7 59 2 98 0 51 0 1668 0 3411 16:15-17:15 100 1462 0 10 62 6 92 0 51 0 1761 0 3544 16:30-17:30 101 1522 0 10 54 4 85 0 38 0 1794 0 3608 16:45-17:45 87 1508 0 10 44 5 80 0 26 0 1874 0 3634 17:00-18:00 79 1495 0 9 31 6 84 0 29 0 1823 0 3556 LUBA NO. 94-211 Exhibit No. Z - 5 Page No. S__ Robe KEECH ASSOCIA 5 INC. CONSULTING TRAFFIC ENGINEER 1225 NW MURRAY BLVD. PORTLAND OR 97229 (503) 641-6333 1, fe Pacific Highway Taco Bell F-XIS7lNC11 WAFF c `Lz`-J sPVT" pp~,y ~yw ~yo9 ~ a 10 x,530 'k-\0 D cr a 1ti~~° L e, m 0 C O Ly►~S ,any ~40~ cn J A*o e air ~ - - - - - - p Jewelry Old Motel Z 3 _ D-7 1 1 Z S 1 i O 1°789 3 3 , 1 I C ►czz~li bot 1 I-A 7 1 15 3 4 Pacific Highway 2 ~ ~ 3 1 Taco 3 3 i 1 2. Subwa dell z y LU W Trophies ~Cya °ooz pacific Hiwa Trof f Ic Smithy y _ Start Time ' 15 End Time I ~%4uTraffic Flow Date: Survey By v IlVTERSECTION TURN MOVEMENT COUNT SUMMARY REPORT TIGARD THEATRE ENTRANCE AT HIGHWAY 99W • T= 2.2. P=.666 N 48 • DATE OF COUNT: 03/26/94 R 4 34 10 IO T~~STAAR WEEK: Sat TED: 12:00 TIME ENDED: 14:00 H .4--1574 41 ( *-1499 0 i b T= 1.4% T= 1.4% P=.941 1335-► 4-1499 P=.923 74 TEV=TOTAL ENTRY VOLUME Z ;0 T=-TRUCKS BY APPROACH 1409-► .43 I r", 1383-► P=PHF BY APPROACH 71 0 38 Peak Hour 1108 . 12:00-13:00 Traffic Smithy T= .9o P=.736 109 TEV=3065 Traffic Survey Service EAST BOUND SOUTH BOUND NORTH BOUND WEST BOUND TIME PERIOD • • • FROM - TO 3 L ALL 12:00-12:05 7 105 0 0 3 1 3 0 3 0 136 0 258 12:05-12:10 15 119 0 0 2 1 4 0 0 0 117 0 258 12:10-12:15 5 109 0 0 1 0 14 0 3 0 127 0 259 12:15-12:20 6 120 0 0 4 1 7 0 2 0 112 0 252 12:20-12:25 2 108 0 0 2 1 9 0 2 0 141 0 265 12:25-12:30 3 119 0 0 2 0 8 0 1 0 103 0 236 12:30-12:35 9 97 0 0 1 3 7 0 1 0 120 0 238 12:35-12:40 0 118 0 1 4 2 6 0 9 0 107 0 247 12:40-12:45 6 113 0 1 6 0 1 0 3- 0 131 0 261 12:45-12:50 4 96 0 1 1 0 3 0 5 0 141 0 251 12:50-12:55 8 103 0 0 2 1 6 0 3 0 134 0 257 12:55-13:00 9 128 0 1 6 0 3 0 6 0 130 0 283 13:00-13:05 6 99 0 0 2 5 3 0 2 0 107 0 224 13:05-13:10 4 99 0 0 3 1 5 0 4 0 114 0 230 13:10-13:15 4 86 0 2 1 0 2 0 4 0 115 0 214 13:15-13:20 5 101 0 2 0 0 6 0 3 0 108 0 225 13:20-13:25 4 86 0 0 3 0 10 0 2 0 82 0 187 13:25-13:30 1 121 0 0 1 0 3 0 4 0 128. 0 258 13:30-13:35 3 102 0 0 0 1 3 0 2 0 119 0 230 13:35-13:40 5 86 0 0 0 0 4 0 3 0 115 0 213 13:40-13:45 9 112 0 0 2 1 4 0 1 0 100 0 229 13:45-13:50 4 85 0 1 1 1 12 0 5 0 123 0 232 13:50-13:55 9 81 0 0 5 1 18 0 10 0 86 0 210 13:55-14:00 12 98 0 0 10 1 11 0 3 0 141 0 276 Total Survey 140 2491 0 9 62 21 152 0 81 0 2837 0 5793 PHF .69 .96 0 .33 .77 .5 .59 0 .56 0 92 0 .968 Trucks 0 1.5 0 0 1.6 4.8 .7 0 1.2 0 1.4 0 1.4 Pepped Buses 0 1 0 0 0 0 0 0 0 0 4 0 Peas 0 8 0 0 9 0 0 5 0 0 9 0 Hourly Totals 12:00-13:00 74 1335 0 4 34 10 71 0 38 0 1499 0 3065 12:15-13:15 61 1286 0 6 34 14 60 0 42 0 1455 0 2958 12:30-13:30 60 1247 0 8 30 12 55 0 46 0 1417 0 2875 12:45-13:45 62 1219 0 6 21 9 52 0 39 0 1393 0 2801 13:00-14:00 66 1156 0 5 28 11 81 0 43 0 1338 0 2728 LUBA NO. 94-211 Exhibft No. 5 - S Page No. S- q 7 t - f AST-ENIDDZ, Groff o Tr gic t NO• 5 LUBA 5 i ~jchibit No• Page No.' APPENDIX F Traffic Growth No traffic growth was used in this analysis. LUBA NO. 94-211 Exhibit No. .5-5 Page No. S- -q f j 1 APPENDIX G Intersection Analysis* LUBA NO. 94-211 Exhibit No. S- S Page No. S-So _ APPENDIX G Intersection Analysis Traffic Projections: Estimated Existing - Estimated existing traffic flow from field measurements conducted March, 1994. Existing + Site - Existing plus site generated traffic flow. LUBA NO. 94-211 Exhibit No. S - S Page No. S- S SUMMARY OF CAPACITY ANALYSIS TACO BELL PACIFIC HIGHWAY Intersection Existing Existing Total + Site Traffic LOS LOS LOS Pacific Highway at Act III Theater Access (signal control) Noon Peak Hour B B PM Peak Hour C C Saturday Peak Hour F East Access (stop sign control) (1) Noon Peak Hour F PM Peak Hour F Saturday Peak Hour F West Access (stop sign control) (1) Noon Peak Hour F F PM Peak Hour F F Saturday Peak Hour B - LOS = Level of Service (See Level of Service Criteria) (1) The level of service, for stop sign controlled intersections, is calculated for each stop or yielding movement. Generally, the side street left turn movement has the poorest LOS as illustrated in the Summary of Capacity Analysis. This LOS may be experienced by only a few vehicles (those making the left turn), whereas the average LOS of all vehicles entering the intersection would be much better. i - LUBA NO. 94-211 Exhibit No. S - s Page No. S- 54L. LEVEL OF SERVICE CRITERIA FOR SIGNALIZED INTERSECTION Level of service A Describes operations with very low delay, i.e., less than 5.0 sec per vehicle. This occurs when progression is extremely favorable, and most vehicles arrive during the green phase. Most vehicles do not stop at all. Short cycle lengths may also contribute to low delay. Level of service B Describes operations with delay in the range of 5.1 to 15.0 sec per vehicle. This generally occurs with good progression and/or short cycle lengths. More vehicles stop than for LOS A, causing higher levels of average delay. Level of service C Describes operations with delay in the range of 15.1 to 25.0 sec per vehicle. These higher delays may result from fair progression and/or longer cycle lengths. Individual cycle failures may begin to appear in this level. The number of vehicles stopping is significant at this level, although many still pass throught the intersection without stopping. Level of service D Describes operations with delay in the range of 25.1 to 40.0 sec per vehicle. At level D, the influence of congestion becomes more noticeable. Longer delays may result from some combination of unfavorable progression, long cycle lengths, or high v/c ratios. Many vehicles stop, and the proportion of vehicles not stopping declines. Individual cycle failures are noticeable. Level of service E Descibes operations with delay in the range of 40.1 to 60.0 sec per vehicle. This is considered to be the limit of acceptable delay. These high delay values generally indicate poor progression, long cycle lengths, and high v/c ratios. Individual cycle failures are frequent occurrences. Level of Service F Describes operations with delay in excess of 60.0 sec per vehicle. This is considered to be unacceptable to most drivers. This condition often occurs with oversaturation, i.e., when arrival flow rates exceed the capacity of the intersection. It may also occur at high v/c ratios below 1.00 with many individual cycle failures. Poor progression and long cycle lengths may also be major contributing causes to such delay levels. Source: "Highway Capacity Manual"; Special Report 209; Transportation Research Board (1985). LUBA NO. 94-211 Exhibit No. S- Y Page No. S- S 5 LEVEL OF SERVICE CRITERIA FOR UNSIGNALIZED INTERSECTIONS Reserve Capacity(1) LOS Expected Delay to Minor vehicles/hour Street Traffic > 400 A Little or no delay 300-399 B Short traffic delays 200-299 C Average traffic delays 100-199 D Long traffic delays 0-99 E Very long traffic delays * F (1) Reserve Capacity = Adjusted Capacity - Demand LOS = Level of Service *When demand volume exceeds the capacity of the lane, extreme delays will be encountered with queuing which may cause severe congestion affecting other traffic movements in the intersection. This condition usually warrants improvement to the intersection. Source: "Highway Capacity Manual"; Special Report 209; Transportation Research Board (1985). LUBA NO. 94-211 Exhlbft No. J - s Page No. S- 5 s z 4- 4- S F+ Z 135 I ; vn 4- LD 14~- . ® ® E=xisting I F* 12 L_ Site C„ 4- *j®L4 14~ Ln ® E=xisting+Site Traffic Growth ~ F* P i i ,z z Total Traffic m:: J Pacific Highway Taco Bed( Robert KEECH ASSOCIATES INC. r 1-I rA`- 01Cl-414 'x`1 3 CONSULTING TRAFFIC ENGINEER M i D DA 1225 NW MURRAY BLVD. PORTLAND OR 97229 (503) 641-6333 - S?G'~AL17=D --S7GCA^-- VEERS C/1994 19:42:59 =.`:=ERSEr-r-O1. ?ACIFIC !-.Z WAY A- THEATER ACC`"I' z,nT .-.,rc+ v fit.-.., n !1 y T C• . F 1 /n n t 7 Al KEECH ?-_-.SE ! ^fi:.S ! ?HyS ?HOSE ! PHASE ! ?;iAPL C= 120 G=_;Z 'V= 9 I I f ! ! ( ( ;I; a ;r i ;r a ;r ;c a s { t ;t a A. t t:'' ! I ! 1 I 1 ;a; a 7'I' ` T ! ! , ! 1 SERt!I!~ trE LE1~(LL B 1 1 1 I I SATL`RA7y0N 5996 y ' I 1 . 1,_____ ! • _ v w - w.~ a.., w a. a a w a a a a~ i i APPROACH .A_NE GEO~!E?'RI" ! SOUTH NORTH NEST EAST ! MOVE WIDTH `SOL'E NILDTF `•'•t`E WIDTH- `,'OVE WIDTH ! LR. 12.0 RTL 12.0 R.. 12.0 T.. 12.0 ! L.. 12.0 .0 T.. 12.0 12.0 ! `:"VE:`.E`+T VOLUMES ' ~IOVE SA 7"" R 3L--r TO. R TOT ! L T R T R ! _ o. 15 Q- f r r'- 7 r -7 Z-. ZA - ^ n n 0r cn.. n . _ ~T. : .000 .037 .000 .000 ! ;Z I .00C v-J J v nC.n n.~n C) 2", 91 R 'T '7 ! n? !lr~C n{,n vn'1 - C. =t050 r _EC i ti Pr c, er\. _ 1- W ~ 1'1 ~ 3^ R I ii r•~.r Ry (may ^~+T I ^iti 7 !1! 2, ` /vv i W 26 ..'l r_: . . . . . V . .J1V V .L 4 153 ~ N ~ 4- Existing 4 Site L- cn~ '-1878 4141 L► _j existing-Site Tr X4'4 1 afflc Growth __j Nh t Total Traffic cZ z Robert Pacific* Highway Taco Bell I~L N ► ~„A ~l 41 A (K~~CH AS/SOCIAT ~ S INC, ' k ~H 13 CONSULTING TRAFFIC ENGINEER 1225 NW MURRAY BLVD. PORTLAND OR 97229 (5031641-6333 T't ncTj,X g2/ -1/ 6/1992 l9.i _ T 7 ^ 1_•a'T_L L,1 n( J ` EC :rTn\* C IGCA D R S S T _ GNA 6.JFi 7--ERSEC'= ION . PACIFIC I~SA`_ '%T i•. E~ ACCESS OLL~:ES . EXIsTi~~, a% P~~► PFiL - `1ET^O S-ZE : 500 , 000= ANALYST: R i:EECi: FILE N 3:.E . ! ! ! ! '~?-~~S:, E L. PI -ILA. SE FH_, .S.: p?z raSE !P:':ASE !PHASE ! C= I G=111 Y= 9 ~ ~ ~ 1 1 ! a a a a a ;t i W a• a .r a s .r a a i a a a .r I ! Iv I 1 I ! + ~ ~ + ! ! ! • 1 ' ! ! t. SERVICE- LEVEL C t SA:'URATIO 70010 '.P"ROACH T INE GEOMETRY ! SOUTH NORTH WEST E.'.S:' ! T_.:\_ `!O\'E WIDTH `rJ`.`E ;~~DTii _,O\'E WIDTH _.O\ H I 1 ! LR. 12.0 -TT 12.0 R.. 12.0 T.. 12.0 ! 2 '_2.0 .0 T.. 12.0 T.. 12.0 ! 3 .0 .0 T.. 12.0 .0 "?OVE\T \"Oi_L:`1ES ' MOVE SATURATION ! MOVEMENT LOS ! yP^a - T a TOT ! T R! L T R! 1 of _ ^ _ n1- = c,O_ nO~ , 5°• ran- t A-7 n C'7 '.no no 77 n 71 1,17 1 N1r 1 77 tipgninii !I` 1 T'r T. t}vn c28 .000 ^A A T . ^'1A 25 n n ! .000 000 N h bo T~. . 0;~• . !100 . C00 , ^n~ LI 0 16. 1 1 \ 1~ 1 • O 000 . 0 Q ` T ! . clcc . !719 . n r. . ~c ! Z Z L .026 ^0.000 .000 m m i n:: t_ is 1 rnn T/1T? BE' =.0'5 /C=.050 J a T-_i i~~r 1. :•aE T_".E aVr, vi'T!1'(~i LTQ R'\Gr ,-~.,,.rtt cn 1 \ORTL~ n ^ 5.9 ^7^ v 4-11499 M . x'4.4 4- 9 41 4 . ~ Existing Q -1 Z ie ~ S t T 1 o 4-- IS o 8 ~4r4 41®F* cc) 4-1 4r CxI&ting-+SIte -1 o 4- 4- 4 Traffic Growth b~ Total Traffic j'. Robert Pacific Highway ► aco Bell J ~ ~ KEECH ASSOCIATES INC. ?A C; L N' ,1 4T AC_ ~ CONSULTING TRAFFIC EN61NEER SAT IPFA v-- 1225 NW MURRAY BLVD. PORTLAND OR 97229 1503) 641-6333 --SIG\3ALI%'E1.) 1`, RSECTI l`=RS(0_~u_-%) 5/199- 19:?8:23 T TCRC\ n'7 T1 T T .♦t At A _ r r^TERk P•r CnS \_~.,E. _I\. rr~C~ C~:l[s T 1 _H' V o~ s:X1 Tf .7 . ANALYST: F, kEECH METRO SIZE: r-00,000 - FILE NAME: !PHASE !PHASE !PHASE !PHASE !PHASE !PHASE ! C= 120 G=111 Y= 9 1 1 1 I I I 1 ;;a.raa~ia~a.raaaaa~;`a 1 ` ! I ~ I I I 1 y; a ! ! ! ! ! ! SERVICE LEVEL B 1 ! ! ! ! ! ` SATURATION 59°a 1 t 1 I I ! i atttta aia as*a ! %PFROACH - :`;E G=OMETRY ! - y - i vOLT~^F'Tj' .1 n,- AST . E MOVE iC1JT!' VE W10:: LR. X3.0 R"_-L iG 0 i. 12.0 l . . ~G r0~ I . 1 V .0 0 EN_` 'T V 0 T T.!V ! ^inl7r, SA'r :RATIO\ LOS V _0 39% '771 e7 _ , 1- ! r,.1..•. S I :k 77 1/_. D:^_CT:SEFAF...__C5' ! ! ! E/ !i 'NO OE12-AR-1 TE Tu. =p?! f)o~ w s ' SI NORTH W EST E:.: T,- r, n n n 'I nnn n n n r T CM r.nn O z o n-l C13 cm = ca T ` •7- .i ` 07 n c n J .T _ce2 ^^y - -c,, ,y~~` rv i C 0. 7 Q 1 7 3 .0 109.5 100.3 2 8 3 - J z 4j 4- 4 t 5~+ i x+44 ~ T r-► *j 4- y r Existing 9 -1 ~ t54 Site N m 4-I54I *l ~I F* L I~t57~ 4-1 F* Existing+Site ~ Z 4- *j 4- 4 19~ Traffic Growth chi Z ZZ~ Total Traffic 3~6 Pacific Highway Taco Bell Robert EP~5-i A«e:z--s KEECH ASSOCIATES INC. CONSULTING TRAFFIC ENGINEER Y~l I D b 1225 NW MURRAY BLVD PORTLAND OR 97229 15031641-6333 S_CTI01 C'.P ,CiIY ;+.ORK"EET East _"lccezs L Eas: -..~es.s Dame of Cc..t : Exist ng-c-;te X X Time of Dav : Mid day ::1:~::~:~:_:z:~: Pre:'u---^-S` Speed. 40 # of lanes can major street: 4 APPROACH C:RAP.ES. A 0%:B 096:D 056 .ac._-_c E1g?:way SHARED LANES: APPROACH D: all AT AR D_ DT DR CL CT CR BL BT BR VOLUMES .J 1X35 0 3 0 20 0 0 0 15~_ 54 RIGHT TURNS FROM D (DR) CONFLICTING FLOW .5BR=BT= =191 CAPACITY 314 CRITIC :L GAP= 5SEC. IMP_D?' CE •'DiT STMENT= 1 ADJUSTED CA PACITi Sin C:IL PAC I Ty , O o ~..__LACE .._.A_L..:- DEMAND (LC.a-~, T_T--- 71R1C FRO`: A (AL) CO`:FT ICTI:':^ FLOW BR-BT- 1`1_._.?5 CAPACITY 306 f-r_ICAL GAP= 5SEC. I` FED3` r, E ADJUSTMENT 1 ADJUSTED CAPAI-TTY 3^v5 11 C 7-V 7'077-):- CREATED= .97 DEMAND ""=C` , r- IR I'll 7 17 r) f-,( 12 LUBA NO. 94-211 ExhlbR No. S- S Page No. S- b 2- f"I T:. a.:j"_ ti._~'_~c iii _ , _.ir, 1'.~t~.:l; 1.:..:II: L_'' ~C'G~✓..' 1-- ^r- Z 4-196 V 4J 4,4 lq~- h tr► 4-J 4, 4 .4 -t 4- Existing 3 Site ~ N ~-Ig51 4141 L+ lq~ I'll S 4 -l eF* Exisiing+Site ~ Z 4- Traffic Growth S 4-1-t F+ N ~ ^f. z oz Traffic zz 3~a Pacific Highway Taco Bell Robert ~,~sTN«`: KEECH ASSOCIA I ES INC. CONSULTING TRAFFIC ENGINEER P W) 1225 NW MURRAY BLVD PORTLAND OR 97229 15031641-6333 L'\SIG\:.Li2ED iNTERSECTION CAPACITY WORKSHEET East Acce s X D x East Access Date of Count: rlistiry=Site X Dad- of Week: Wee:.da v Time of Dav : P_•i Peak DI"e%ra-; _ Speed. 40 3 " of lanes on ma;or street. 4 APPROACH GRADES. A 0%: S 0*0 . D 0 0 Pacific E1D!::<av SFARED L.I%XES. APPROAC D: all 1CZ., jai. , . . ,•?A<<<<'<< ?>1. D<1 <<<<??; :<<<<?????i?Bj <<<<<<< VO~'E`1 \T AR D' DT DR CL CT CR BL BT BR VOLUMES _6^" C. 2 ^ 7 0 0 ^ 0 11951 20 -r!, n rl O C v v RIG v^' TL~RXIS FROM D (DR) CO`;FLICTI':G FLOW .5BR-BT= 1_470.75 C_.PACTT1' 226 IC,T IMPEDANCE F = ? ADJUSTED CAPACITY 22~ .r. LL• _ 6 ^ L_ ~ ,-.,F*T~L'- U :j L. r'.TT.\' •_D= 3.5_°. IM~.FEDx. .-•7 REA CS=C) S 11.,1. 0- L 7- _7 _7 T 717 14-! RN- 0 (AL CO\7!.Tr ';\r 7LOW BR.:-BT= 1478..:5 CAPACITY 224 C0 _TT T C I T GAP= 5 SEC . IMPEDAN CE AD- STMr_'7= 1 = DJUSTED CAPAC ITY 224 r~D C___ -1_ ;INIP D ' CR.E?.T7D .99 (LOS -C, , r_ L 17 C n~(• mot. ♦"1 1; I'll j!1 `-7 S.-.•r- 12 CAD I TY - LUBA NO. 94-211 Exhibit NO. C, j t* Page No. _*=4 y •a - _ _ _ _ 1; _ .i:::' 1 is C-- , _ _ . _ . ~ z 4 4- 4 CY*) 41 4- 4j 4- 4 ' Existing S4 Site rl y-- x-1542 L Iyl~ 4-14, 4 W1- 4~ ar+ Exisiing+Site a ~ Traffic Growth N~Iv d=; Total Traffic m"r a • Pacific Highway Taco Bell K EECH ASSOCIA ES INC. E rfST )k Ct,tSS CONSULTING TRAFFIC ENGINEER SA"r PC--A \G 1225 NW MURRAY BLVD. PORTLAND OR 97229 15031641-6333 itJu G Jr)lw7CT .~-..i.ii ~'cili is On, L. I 9 9 S *ON aged S'- 'ON pglUx3 L LZ-N 'ON dens i ~.1 .~✓.r4\:.~Qi'ty ,u •.iv.✓J.. .1.....a l'J •r. .~1-Dv C.~r.,D... ;i -„_~.....J.v... u•i .~J~a ~tU3l:.:\~ ~..~v'J _ .iJ~~ir:. r :\./.i r, •'a r.. u...-r.✓ Ja ~.r 1'\- ♦U JrV •~.J .i...r ...i ._..~Vwi~ Q i V ~ VO i) llt\'. •\.~ll ~~J -Cl• W1... liJ 3C.:QI'11 116 Z. L:.=. .i.. ..u.1 ..~f dd - - r.j TTT.~c.7` ~!y♦♦ =^Rf. T T ~7T'T ..1 i.t.~ :1..1.1v~C.tiJ 4 .LS:'iuQ . -.1.11\WS:Z1u~'i 3J~~C3Gnl ✓3'~ .:ti D i V ✓1sL1G.% T IL i 0 • T JJ T T _ 1'. y 1. i T T r` N T "r T^ 3 _ llTT L/T ,Lv t •♦-J ti :1 V`r l:. iJ. .u....: l .7 -Z v L l0-:.)V J u~f :a~u L:! -C3.L~1~7✓ :j CI':GI\~ vv L ...~.~r./C r:.'T ^J ITTW 0 a QY\1 J1,5 _`~ti .J :~✓I:Li V (.G t1u:l JV rZ YJ lia S 1:L /1 L UC _ -u,a4.j Y\W J:LA.Q $5TI =,I;S-~S~' ~i0:1 :~:ILDIrIiI\O~ T v O ti J G OZ Zf. ST 0 0 0 0 CT 0 6 0 ~ 1 T L S:RN. 70:1 d9 :LS 'IS cJ 13 i0 2IQ SAC 'IC u L'%: TV l.X3liC3A0T.11' >>>„>;O<<<<<,.>>>>>..0:,<<<<<>>>,.>>C<<<<<<<>>„>..>.:.<<:< H~tO~dd'; T L2 -u Jfntddv S3\ r : (I32IYHS :i2~~Lti5tH oz; DPd 00 C o0 9:%o S3C 30 Hoyosdd' : gaaags 10CRUI u0 sam-.P-L so # 3 of, paadS 5LiZT rp.,%a zd 1 NXxxxl:i:iN X"-.-X_Xxx .iPp.zr':j aS ..i-t 0 -T I~YOZlnl'v5 'c~-z; :aa~y 30 .~aQ ayt,~,•.SLIZ~ST' ;Li^n7 a,~~; Ssao~~ is-e- s SaD) ;S= ..a rr:A~luO:A .L-7 7" D ",e .L d F.i 'C 3 4-l F* m on V-) rj 4- -7 4-141 4 3 Existing 3 -s Site L 3 v ~ 4-1558 AL 3c~ --j 4l ~i F* -~I~ ISoI M +j 7 IV 'flvF* Existing, site 41 4 lq~ Tra`fic Growih ~ F* CS chi Total Traffic Q~ Robert • Pacific Highway Taco Bell K EECH ASSOCIATES INC. vJ~T N CCt'~~ CONSULTING TRAFFIC RINEER M ID DAX 1225 NW MURRAY BLVD. PORTLAND OR 9722° 15031641-6333 U?.. ' T 7=n- '":TER ECTIC CApACTT-,- t•;OR::S_'- .~es-t Access D 1 West =,ccess Date of Count: EXisting X Day of Week: Weekday X Time of Dav: Mid Day X-*..:XXt:XXX_... Prevailing Speed. 40 B # of lanes on major- street: 4 A APPROACH GRADES: XXXXX4X111X1 A 096:B 0%:C 0%:D 0100- Pacific Highway x 1 SHARED LANES: 1 APPROACH C: none C APPR^AC:: D : none APPROACH MOVEMENT ~.L 31 r AR DL DT DR CL CT CR BL BR VOLUMES 3 1506 7 2 0 5 3 0 3 3 1580 3 PCH 3 2 6 3 RIGHT TURNS FROM C (CR) CAPACITY 337 ..0\FLICTING FLXJW . SAR~AT= 1132-125 17 r•n TTTr• ♦ n1T'\_ Z) C T 1M.tPEDA~7CL' .~._.•U V I_TT'\TT STt~E~\N_ , rL% V TT . S 1 F- L 4 ~1 P ~1 C,1 n__1V LT. :J T-- + T 1 -1037 CT_ Qr r. r\n_p\ 7 r•~n\rTT~' T'17 t--. O r n. T\t T\ C E r•n :AT A. AC .`i vr.. V_'C• l:ii .-,~A_♦L iL nTr•.~.r TTTT,Nn Fnr.Ir -1 (DR) C^Nr-`TC=%G - . `B"-B L 1 86-1-25 C A.'.\'. \.-.Ti ✓1V v. 1. ..1 :J A L ~ - _:~---CAL AP= 5SEC. I: FLLA\C= AD1.US'=' :=N:- = t,T\T`S:rE„ CAP NC ITY rw'.~.~--•-T- _S'ED _ ego. TN! EDA'~R=3_•:•ED= .99 DE. D (LOS =5 RNS c r•- T\.n,-n - - - -TT- p^-V _ '\t?T: n7!` ^ TT\ -~AT E AD .7 T.LT/i•TT\T '/l2 ; •1 \ _ „ C. (7 F :v -T~. -~JV _ . _ it .-l i. _ r _ • _ _ V 7 r • - - ~ 1 - • : ti 17' ' T \I n ~ T\ T 1 '7 S n T T • e7 r \ • _ - _ \ - ' n T t- n _ i . T 7'Y \ _ p .o. r.-n- r- - i•r r•pflrrrr~ n n~\. Tti I_i. I~'TT\.G _Tf-W :1T_.LT ?n\n r,7' v , A :-3^-. ~.`I`?FE3A\C= 3% -r-`?L.'.:- n-:STEM 11) A Y r- -T E .2, -I Iw; 1 / T T~' 1 ^•1\C•t T/TTT.,1 ~•/1f~ ~~~~T- D' 1 -_1T-':RCl-`-1.- l^1 LJ- CR- _ T_CAL GA- n= 6 . 5SEC . I`, EDA. CE ADJ1. STM _ = .97 ':D D AFAC T'!' 1 FCiT.' S 200° iMPEDAY-CE- CREATED= 0 DE`:A\D (LOS=F! 2 LUBA NO. 94-211 Exhibit No. •5-5 Page No. -4 It - F nr'i: ~ Jor _:L._c•et:, n_t ~t 4 !an,--., r'~: Fi _ - \i. ice: .:ii• e.~~ia1s0.75 C_ i \ u •T~. S S T 1T T7f"\ T\•7RS T/\\ r'• *rTT' t,ORIS•HEET ..~_G =C-•^•-,, ,P-%-_~ 1.----- S 1 D lVest ',CC2~s Date of CO' P_t : :_1;Sti::g=$lt@ 1 Da_.r of Week: Weekday x Time of Dav: Mid Day :;1_:1X_:ztti1_._: 1::1_':;_._._._.X Prev .ling Speed: 40 B n of lanes on major street: 4 A APPROACH GRADES: 1xS1.-;Xxxx xx X1:titiX2-:xxxxxx A 0-%:B 0%:C 096:D 0100- Pacific Highway 1 SHARED LA'C'ES: x x APPROACH C: none C APPROACH D : none APPROACH iE:~T AT AR DL DT DR CL CT CR BL BT BR VOi ::MES 3G 1501 7 '29 0 55 3 0 3 3 1558 3 PCH ~0 6' 3 RIGHT TURNS FROM C (CR) CONT LICTING FLOAT . 5AR= AT= 1128. 375 CAPACITY 339 CRI -CAL GA!' 5SEC. _..P=D?Ne-E 3, DJL ST`^EZT= 1 ADJUSTED CAPACITY' '39 C=.'?CITY 'U'SED- .88 RIGHT T IRIS FROX D (DR) CO\F_7CTIX= r! OW . 58:.-BT= 1-1-65.6215 ClAV- kC_TY Zof- • r T r ] 1- T_ IMP Liy.NCL AJ7T Y- .~T= 1 1 DvT r'S'T._~D C1 ~ 17771 T v_.i - SSMC . 1.._ . S1T.. =r. A 0ug r ~ ~.l;•to \CE CljDi~•~D= .87 17- - _ . . . . _ _ ' ' _ J1 i' _ . . _ _ • • _ 1. _ 1 _ _ _ 7 7! a i.. -*..^VT'`TvC T_ 70 \T1` `-C :"f T'~ n.:~1T1 ; C) . . RFITL r rt,- T/ Cam'- \7'?C ' THE\T- - .39 1 ~.JUSTED CAPACIT G. S.,~... FDA\CE TI~T;.S~.1~~ Y J r i. / ^A_... IT 3-2001-, ^A\Cr C_ T-D= UT C`S=F) 32 7 LUBA NO. 94-211 ExhibR No. S- S Page No. g ..L :;u, A- J a" KISS 4- 4 ~p ~ 8 x(022 M ~4 13 -1k Existing Z Site Z 2 'i r* L I c~ 19 M ExisTing+Siie Traffic Growth Total Traffic ~o Pacific Hig~hway Taco Bell Hobert ma a r INC Access C NSU KEECH j ASSOCIFAT=NS~JNE R JE 6 1225 NW MURRAY BLVD. PORTLAND OR 97229 1505 641-6333 UNSIGIALIZED I\TE R SECTION CAPACITY WORKSHEET West 1c.--ess x D x West Access Date of Count: Existing=Site x Dav of Week: Weekdav x X Time of Day: P`1 Peak Hour Prey-a,'.ling Speed. 1-0 B I of lanes on major street: 4 A APPROACH GRADES: XXXXXXXXXXXX XXXXXXXXXXXX A 096:B 0%:C 0%:D 0% Pacific Highway x x SHARED LAVES: x APPROACH C: none 1 C -N APPROACH. D : none •i ~•'~~-T j' A'= AR DL DT D? CL CT CR BL B BR L____ _ 9^_7 0 u 1E15 0 ^ ' 2 3311) 3 0 6 C 11 t'OT.-*'T"' v.. \.r _ V _ n 2J ,3 7 RIG?IT TARNS FROM C (CR) CO`: LOW . SAR-AT= -1.21-1-25 CAPAC30 iC=%' F C~1:.TTTrA• •'/'♦SET•`/'.. T1\..^t-^A\'C~ - j "0T 1.._.._•. T _ - '1 DTU ✓ S - T. _C1./ T CA{~. l• C iTR1\.• 30-4 1 IMPEDANCE LD_._\ PJ~~ 1 CAPr.CT"'i _ E 2.10 ImPEDAYCr ''RE ;TE:;= .903 DEMAND '1'_OS=C) 7 14.1_ i TURNS F RC'! \Lr ) CO\FT TCTr.`•'G FLOW .5BR=BT= 1460^.25 CAPACT-V 22S lmlC r 0L yt-, E yT\- n L'S7_ CAPACITY O Cn A~ GAP= 5 C . I 1rEDANC ADJL . lE\T= 1 A:.J LD ' _'3'7'4 n 1M'?ED NCE CP.E.:^_'_D- .9 DE` IND ('OS=D) -'Y 1 GA°AC_:'1 tS°r - r.T. T4 ♦ FROM 1 /,T " _ _ i-, T(♦-• nib n r• l., n.•t • •lQ W h A7, T : -L'.: DR= ?''*2 5. 5C'_?" :.T % 71 ('T' 7 r r -T T 1 rT ,1T .,.^n -r.:- ..C 21..,701 5C^'. _ _T°r n7, c.c•- -~c_ _Tl~ ,r'r ;_~-`•,•.T ,~♦:T= 91 iDu:•.._D ? Cam....,.--r-, _ _ _ is _..1. ~ . _ LUBA NO. 94-211 Exhibit No. S_5 Page No. S- 't/ _t On h t lanes, f • ' y* n. -n of PCH n:a ;c_ r<-•= ~:_t L':_ IrNAL--7ED INTERSECTION CAP`T Y WORKSHETT West Access .'"Est Access Dale of Count: Esls* ng s N Dav of Week: '.•:eekdav Time of Day: PM Peak Hour Frevai l_ng Speed: -10 S n of lanes on major street: 11 GRADES A APPROACI s l 1s:;:;1.. s s. l taisl A 0%:B 00-:C 0%:D 0% Pacific High av SHARED LANES: _x N X X APPROACH C: none X C APPROACH D: none 1%PPROACH MOVEMENT AL ►T DL DT DR 'CL C"_' CR BL ST BR VOLUMES 8 1622 0 0 12 r3 C 5 0 1955 2 FCI: 9 -1 13 3 7 RIGHT TURNS FRO` C (CR) CONFLICTING FLOW .5AR-AT= 1216.5 CAPACITY 303 CRITICAL GAP= 5SEC. I_MPEDA`"CF ADJUSTMENT- 1 ADJUSTED CAPA',"-TT' 303 CAPACITY USE-'= ').-1 . _T'VPED' N-7 CREATED= .98 DEM Y' ;LOS=111 7 RIGHT TUR\S FROM D ;DR CON FL ICT!_NG ._0W .5_'?-BT= 1i67 CAPACITY 227 CRITICAL GzkP= 5-SEC. I':PEDA\CE ADJUSTMENT= 1 ADJUSTED CAPAC=T'.' 227 CaPACT:Y S.73% IMPEDANCE C^_1Tt"D= .96 DE`"N ('-OS=r.') 13 -*EF7 TURNC i. `(•.T -•p •_7 1 rr. r.1C TTt_ .ter C. c. CA AC_ _Y nr-•-. .11 `•.1`;-NAV - {``\T^T_ 0 r) `\1 y \ n /T - LUBA NO. 94-211 Exhibit No. s - 5 Page No. S- r /1." - L 1.• w , I :i ` 1 1 •r.... • n : \ 7 r: L p r Lt J ~ • _ _ _ l: 1 : C • - - r + C t 4 r y _ _ l ly . In 1..) . _ _ _ ♦ . s fly 44nT~► S ~_~q EX~Sting D ~ 21 s ~At~ ~ s Co 44-- 5tte ~yy ~°f~ 5ite ~ Ex~stinc~- o~ -~raff~c Growth ~,obert A~~~C~A~ EN~1NE ~aco ~e~~ KE~GI~~ TRAFFIC 91229 PORZIAN~ OR 1503 6 poi ~ ~~Le~ c ,z2 boo. . ~('IG H~9hWOy CO NW µURRA ;NS1GNJ77D y\'T'ERSECTiO"~ CAFACIT\ WORKSHEET' West A<_cess D x West Access Date of Count: Existing x x Day of Week: Saturday x x Time of Day: Sat Peak NXXX-XX-%X: XX% Prevailing Speed. 1-10 # of lanes on major street: A APPROACH GRADES: xxx:YXXXXXXxx tixxxx:Cxxxx: ix A 0%:B 0%:C 0%:D 0% Pacific Highway x x SHARED LANES: s x APPROACH C: none C x APPROACH D: none APPROACH AL AT AF. DL DT DR CL CT CR BL BT BF CL =S z~ . z c ; z o _ 0 1525 ~IGV" URNS FROM C iCR) C'?NF:.T_CTiNG F! OW .`AF.-AT= 108.5 C1r3Ci'I'' 356 ....___c?L GAP- I`:_SDI.::CE 0.71ST"iENT= _ AD 7U .~D CAP C _z 56 TURNS F'RO n "DR •1~\7r1CTTNG L_C'.`. .5r!R T- -1==r1.~•,J f` -.CT:: .:J.:. J - L ^•._T-rT_C L- GAP= S~SEC. TMPEDA\CE AD,;;S 1E\T= 1 36DUTUSTEEI CAPACITY 332 .~.,anr•.- =„lc ^ e,p A\.:-^ C1>:.AT^D. h.~ ~~'a\~i: (T QC=R1 +.T(-.1 T r 2. _ C t..r - • _ ~ n ;T._ v L?.n `.r ~.T . v _ T-V 7-i .08 •^T'^~•~ cy fry i^~1- T/-TT -n r. r • _ • .D~ ^j.? _'1T_~1D= .~-_T~ i' f:])- c '-'f- T\:^r'1-,.\•r7= 'yT'\]_\"r= -9r :__^.~:IC.`._ GA?= rI'•]PED'.N- '.D:. ST']ENT= .r8 ~•n'T _ L, r.7- , .-~.~T,. n~~t tll.. r\^~1". •r: r..'l'rC.'l= ^t 1L'0. t. : t... _ . _ _ 0 LUBA NO. 94-211 Exhibit No.-5- 5 Page No. S- -11- 1 :2 J L t'. _ 1 ~ _ an V UNSIG`:ALIZED INTERSECTION CAFACIT:' WORYSH= West Access D x West Access Date of Count: Existing=Site X Dad of Fee::: S-:.urdav x Time of Day: Sat Pea'- t__.~:_.:i~:ti~:_._:1:. :Nx:CNN Pre~'..llJ. Seed. 10 B r of lakes :n major street: z A APPROACH GRADES: X:i :11111~1x1 :txxxtixxxxxax A 0~ . B 0°b : C 0~ : D 0 0 _ c x x SEARED LANES: APPROACH C : none C x APPRO=_CH D : none c.•;O_'-.C =.<<< >D<.<< <<<<<>>>><<< i' A T .T :'N R • D_ • u l DR CL C'_• CR 3 L BT il Trn• T ~Trc• -11. !4_30V " 2%2 4 0 0 1505 5 37 2 52 1 RIGHT TURNS FROM C (CR) r0\7LTCT_TvG FLOti .5AR=AT= 1080 CAPACITY 358 CRITICAL GAF= 5SEC. I'_`^.FEDANCE ADJ:;STM,E\T= = ADJUSTED CAPACITY 358 GAF?1C_T•" ~ SED= . 28° I`:FE^',, •-i CREATED= DE`1AND (T_OC-B) _ i.TGTi 7t T?-RNS FROM D (DR) CO`TFL='-?\G FL OW . SBRyBT= 113= . 3 15 CAPACITY 337 CRITICAL GIP= 5SEC. IMPED=.\CE ADJUSTME1•'_=- 1 ADJUSTED CAPACITY 337 CU AC T .CED_ `5 '+o T~,rTrD~*nr rG+r LI_ oq DE `T1\D (1C~ c21 T: T r1 f: T? rT- .`C /1 ni r Im or rr :St 7, r J ~S ^:i_-._.•_`\?= ~2 :D:?;.ST~~ 1. t.. - 7) r, V LUBA NO. 94-211 Exhibit No. S-3* Page No..S- D r T4 r~ . I ApPENDIX Site Layout d NO.94-211 LUBA Exhibit No. s--5 Page No. CERTIFICATE OF FILING I, Elizabetn A. Newton, hereby certify that on December 23. 1994- 1 filed the original of this SUPPLEMENTAL INDEX AND RECORD in LUBA No. 94-211 with the Land Use Board of Appeals, 306 State Library Building, 250 Winter Street, NE, Salem, Oregon, 97310 by first class mail. DATED: December 23. 1994. f a Elizabeth A. Newton f if Tigard Deputy City Recorder CERTIFICATE OF SERVICE I, Elizabeth A. Newton, hereby certify that on December 23. 1994 1 served a true and correct copy of this SUPPLEMENTAL INDEX AND RECORD in LUBA No. 94- 211 by first class mail on the following persons: DATED: December 23. 1994. Gregory G. Lutje, Attorney at Law 400 Lincoln Center Tower Portland, OR 97223-5575 Michell Gensman c/o Gregory G. Lutje, Attorney at Law 400 Lincoln Center Tower Portland, OR 97223-5575 Pamela Beery, Attorney at Law O'Donnell, Ramis, Crew, Corrigan & Bachrach 1727 NW Hoyt Street, Portland, OR 97209 Michael Robinson c a- Stoel Rives, et al 3 900 S.W. Fifth Avenue s~ e a3~ Portland OR 97204 ~ r Elizabeth A. Newton Tigard Deputy City Recorder O'DONNELL RAMIS CREW CORRIGAN & BACHRACH JEFF H. BACHRACH ATTORNEYS AT LAW CLACKAMAS COUNTY OFFICE THEODORE W. BAIRD 1727 N.W. Hoyt 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) 222402 CHARLES E. CORRIGAN• FAX: (503) 243-2944 ' STEPHEN F. CREW VANCOUVER, WASHINGTON OFFICE GARY F. FIRESTONE' Fast Independent Place WILLIAM E. GAAR PLEASE REPLY M PORTLAND OFFICE 1220 Main Street, Suite 570 G. FRANK HAMMOND• Vancouver, Washington 98660-2964 MALCOLM JOHNSON' TELEPHONE- (360) 699-7287 MARK P. O'DONNELL FAX: (360) 696-2051 TIMOTHY V. RAMIS April 27, 1995 WILLIAM J. STALNAKER TY K. WYMAN JAMES M. COLEMAN SUSAN J. WIDDER SPFiCIAL COUNSEL ALSO ADMMED TO PRACTICE IN WASHINGTON ALSO ADMITTED TO PRACTICE IN CALIFORNIA ,gyp Ms. Jan Zwenke 1 I► Evi L and Use Board of Appeals 306 State Libra Building 250 Winter Street, NE g Salem, OR. 97310 I Re: Gensman v. City of Tigard, LUBA No. 94-211 Dear Jan: Enclosed is an original and four copies of BRIEF OF RESPONDENT - CITY OF TIGARD. If you have any questions regarding these documents, please call. Sincerely, Pamela J. Beery PJB/ach Enclosures cc: (w/ encl.): Mr. Michael C. Robinson Mr. Greg Lutje Mr. Bill Monahan P1b\ach\90024\tacobell.lt3 rcRTIFY THAT THIS IS A TRUE COPY OF ' ORIGIN AND OF THy WHOLE THEREOF Of Attornys For ' BEFORE THE LAND USE BOARD OF APPEALS ' OF THE STATE OF OREGON MITCHELL GENSMAN ) ' Petitioner, ) V. ) LUBA No. 94-211 CITY OF TIGARD ) Respondent, ) and ) ' TACO BELL, INC., ) Intervenor- ) ' Respondent ) BRIEF OF RESPONDENT - CITY OF TIGARD ' Greg Lutje, OSB No. 89295 Michael C. Robinson, OSB No. 91090 10260 SW Greenburg Road Stoel Rives Boley Jones & Grey Suite 400 900 SW Fifth Avenue, #2300 ' Portland, OR 97223 Portland, OR 97223 Telephone: 503-293-8347 Telephone: 503-294-9194 ' Attorney for Petitioner Attorneys for Intervenor-Respondent Pamela J. Beery, OSB No. 80161 O'Donnell Ramis Crew Corrigan & Bachrach 1727 NW Hoyt Portland, OR 97209 Telephone: 503-222-4402 Attorneys for Respondent 1 TABLE OF CONTENTS PAGE ' I. STANDING OF PETITIONER 1 ' 11. STATEMENT OF CASE 1 A. Nature of the Land Use Decision and Relief Sought 1 ' B. Summary of Arguments 2 ' C. Summary of the Material Facts 3 III. LUBA JURISDICTION 3 IV. RESPONSE TO FIRST ASSIGNMENT OF ERROR 4 The procedural requirements of ORS 197.763 do not apply to this limited land use decision; Respondent followed all applicable procedural requirements of statute and its ' own codes; There was no prejudice to petitioner's substantial rights V. RESPONSE TO SECOND ASSIGNMENT OF ERROR 8 The cited statute does not govern this appeal or limit the fee which can be charged; Petitioner waived his opportunity to challenge the appeal fee charged in this case by ' failing to raise it in order to give respondent an opportunity to respond; Any error was procedural in nature, no prejudice to petitioner's substantial rights resulted, and therefore no remedy is available to petitioner. ' VI. RESPONSE TO THIRD AND FOURTH ASSIGNMENTS OF ERROR 10 ' VII. RESPONSE TO CROSS-PETITION FOR REVIEW AND MOTION TO DISMISS 10 ' EXIMITS ' Exhibit 1 Tigard Community Development Code - Chapter 18.120 Exhibit 2 Tigard Community Development Code - Chapter 18.32 ' Exhibit 3 Portions of the City's Charter Council Rules and Administrative Polic Y i BRIEF OF RESPONDENT - CITY OF TIGARD ' Page i TABLE OF AUTHORITIES CASES Boone v. Wright, et al, 314 Or 135, 836 P2d 727 (1992) 8 Caine v. Tillamook County, 25 Or LUBA 209 (1993) 6 Citizens for Responsible Growth v. City of Seaside, 26 Or LUBA 458 (1994) 6 Deschutes Development v. Deschutes County, 5 Or LUBA 218 (1982) 4 Edwards v. City of Portland, 27 Or LUBA 262 (1994) 6 1 Fasano v. Wash. Co. Committee, 264 Or 574, 507 P2d 23 (1973) 7 Gage v. City of Portland, 319 Or 308, 877 P2d 1187 (1994) 10 ' Kankkonen v. Hendrickson 232 Or 49, 374 P2d 393 1962 Larson v. Wallowa County, 116 Or App 96, 840 P2d 1350 (1992) 12 ' Mazeski v. Wasco County, 26 Or LUBA 226 (1993) 7,9 McCoy v. Linn County, 90 Or App 271, 752 P2d 323 (1988) 11 ' ODOT v. Clackamas County and Emmert, 27 Or LUBA 141 (1994) 1 ' Oregon Natural Resources Council v. City of Seaside, LUBA No. 93-228 7 Reed v. Clatsop County, 22 Or LUBA 548 (1992) 6 Tucker v. Douglas County, _ Or LUBA _ (LUBA No. 94-083, October 11, 1994) 7,9 Weeks v. City of Tillamook, 117 Or App 449, 844 P2d 914 (1992) 12 Yamhill County v. Ludwick, 294 Or 778, 663 P2d 398 (1983) 11 BRIEF OF RESPONDENT - CITY OF TIGARD ' Page ii i ADNIMSTRATIVE RULES ' OAR 661-10-075 9 OAR 661-10-075(1)0 9 STATUTES ORS Chapter 92 1 ORS 92.010(7)(b) 1 ORS 174.020 8 ORS 197.015(12) 3 ' ORS 197.015(12)(b) 1 ORS 197.105(12)(a) 1 ORS 197.195 4 ' ORS 197.195(2) 4 ' ORS 197.195(3)(a) 4,5 ORS 197.763 2, 4, 6,7 ' ORS 197.763(4) 6 ' ORS 197.825 and 197.828 3 ORS 197.828 9 ORS 197.828(2)(d) 6 ' ORS 227.160(2) Z 8 ORS 227.173(2) 4 ORS 227.175 8 BRIEF OF RESPONDENT - CITY OF TIGARD ' Page iii ' ORS 227.175(1) 8 1 ORS 227.175(10)(b) 8 TIGARD CONEVIUNITY DEVELOPMENT CODE TCDC section 18.32.110 and 120 4 ' TCDC Chapter 18.120 1 TCDC at Chapter 18.32 4 BRIEF OF RESPONDENT - CITY OF TIGARD ' Page iv I. STANDING OF PETITIONER Respondent concurs that petitioner has standing. H. STATEMENT OF THE CASE ' A. Nature of the Land Use Decision and Relief Sought. ' Petitioner incorrectly characterizes the nature of the land use decision at issue here. It is a limited land use decision. The case is an appeal of the decision of the Tigard Planning Commission on an application for site development review and a lot line adjustment. The Commission heard the matter on appeal of a decision of the Planning Director pursuant to Tigard Community Development Code ("TCDC") sections 18.120.030(E) and 18.32.310(A). ORS 197.015(12)(b) defines "limited land use decisions" to include: "The approval or denial of an application based on discretionary standards designed to regulate the physical characteristics of a use permitted outright, including but not limited to site review and design review. " The proposed Taco Bell restaurant is a permitted use in the General Commercial zone ' which is the location of this application. R-8. The applicable site development review criteria, 1 found at TCDC 18.120, are discretionary standards which regulate the physical characteristics of such uses within the City. Chapter 18.120 is appended to this brief as Exhibit L' ' ORS 197.105(12)(x) provides that the approval or denial of "subdivisions or partitions, as defined in ORS Chapter 92", are limited land use decisions as well. The second application on review, a lot line adjustment, does not even rise to the level of a partition pursuant to ORS 'This Board can take official notice of the ordinances and codes of the City; OEC 202, ODOT v. Clackamas County and Emmert, 27 Or LUBA 141, 143 (1994). BRIEF OF RESPONDENT - CITY OF TIGARD Page - 1 ' 92.010(7)(b) and is not a "permit" under ORS 227.160(2). This decision should therefore be ' reviewed in total as a limited land use decision. The nature of the land use decision is critical here because of the differing procedural requirements which apply to limited land use decisions. This argument will be developed under ' the City's response to the first assignment of error, below. B. Summary of Arguments. ' This is a limited land use decision. As such, the procedural requirements of ORS r 197.763 do not apply. State law requires that local governments follow all applicable local code requirements in processing limited land use decision applications; that is precisely what the City did in this case. No party argues that the City failed to follow any local code provision relative ' to the granting of continuances or leaving the record open. Petitioner complains of a procedural error, i.e., the failure to grant a "continuance" during the period in which the record was open in this case. Petitioner's substantial rights were not violated by the City's failure to grant this continuance where the petitioner had every ' opportunity to rebut the new evidence referenced in his brief. As to the fee charged by the City in this case, the cited statute is not applicable to this limited land use decision. ORS 227.175 applies only to "permits" and "zone changes". Petitioner asks for a refund; LUBA does not have authority to grant that relief. Finally, as to the cross-petition for review relating to the date by which the local appeal ' had to be perfected under the City's code, respondent submits that it made a reasonable and correct interpretation of its code. That interpretation gives meaning to the clear intent of the BRIEF OF RESPONDENT - CITY OF TIGARD 1 Page - 2 ' provision and is consistent with other adopted rules relating to the City's Council agendas. The City staff's interpretation does not deprive LUBA of jurisdiction to review this matter. C. Summary of the Material Facts. Respondent agrees in large measure with the summary of facts submitted by petitioner. ' There are a few exceptions. It should be noted that the public hearing portion of this matter was J closed by the Planning Commission at its September 12, 1994 meeting. R-119. Prior to the close of the public hearing, petitioner did request that the record remain open for seven days, (to September 19) and intervenor requested that the record remain open for an additional seven days (to September 26). R-118. Petitioner did not request that the hearing be continued until September 24, 12 days after the hearing was closed and following the initial seven day period ' to introduce items into the Planning Commission record. Supplemental Record at 1. During each of the two seven day periods, on September 19 and 26, the intervenor submitted letters from its counsel. R-62,75. The letters consist entirely of argument from intervenor's counsel. The September 19 letter also contained exhibits (R-85) and the September ' 26 letter included two sheets of plans showing the architectural site plan and planting plan for the Taco Bell site. R-74. Petitioner's concerns relate to the materials submitted on September ' 19 (Petitioner's Brief at page 4). III. LUBA JURISDICTION Though petitioner characterizes the decision on review as a land use decision, as noted above it is a limited land use decision pursuant to ORS 197.015(12). LUBA has jurisdiction to review this decision pursuant to ORS 197.825 and 197.828. BRIEF OF RESPONDENT - CITY OF TIGARD ' Page - 3 ' W. RESPONSE TO FIRST ASSIGNMENT OF ERROR The procedural requirements of ORS 197.763 do not apply to this limited land use decision; Respondent followed all applicable procedural requirements of statute and its own codes; There was no prejudice to petitioner's substantial rights The procedural requirements of ORS 197.763 do not auuly in this case. ' By statute, ORS 197.195(2), the procedural requirements of ORS 197.763 do not apply to limited land use decisions. In the case of City limited land use decisions, ORS 227.173(2) Provides only a requirement for findings. The Board should therefore disregard the petitioner's argument, and should not make additional arguments for the petitioner, since it is petitioner's burden to identify the correct legal standards governing this Board's review. Deschutes Development v. Deschutes County, 5 Or LUBA 218, 220 (1982). Respondent followed all applicable local code procedural requirements. In limited land use decisions, ORS 197.195 points local governments to the procedural requirements of their own codes; ORS 197.195(3)(a). The applicable local code procedural requirements in this case are found in the TCDC at Chapter 18.32. Relevant sections of that 1 chapter are appended to this brief as Exhibit 2. TCDC section 18.32. 110 and 120 govern the decision in this case. The Director (defined ' in TCDC 18.26.030 as the Director of the City's Community Development Department or ' designee) made a decision, and notice was mailed pursuant to the Code. No hearing is provided for unless an appeal is filed. An appeal was filed in this case, and a hearing was conducted by the Planning Commission. R-279, R-105. The TCDC sets forth procedures for requesting that the record remain open (TCDC 18.32.165) and for requesting a continuance of the hearing (TCDC 18.32.180). BRIEF OF RESPONDENT - CITY OF TIGARD ' Page - 4 ' As required by TCDC 18.32.165, the Planning Commission left the record open at the I request of the petitioner, for seven days from September 12, 1994 to September 19, 1994. R- 116. In addition, based on a request from the applicant, the Commission left the record open for another seven days from September 19 to September 26, 1994. R-118. Deliberations were ' continued to that date; but the public hearing was closed. R-114, 120. Under the TCDC, requests for continuance are governed by section 18.32.180. Such continuances are discretionary with the hearing body; the code provides that "An approval authority may continue the hearing from time to time to gather additional evidence, to consider the application fully or to give notice to additional persons." TCDC 18.32.180A; emphasis supplied. Thus, the decision of whether to grant a requested continuance rests with the Planning Commission. It is clear that the City followed all procedural requirements of its own code as to continuances and open record periods. No party claims otherwise. The local code sets the procedural standards for limited land use decisions pursuant to ORS 197.195(3)(a). ' Petitioner did not request a continuance in a timely manner. When a party requests procedural concessions from the local government hearing body, t it is that party's obligation to do so in a timely manner that affords the decisionmaker an ' opportunity to change its procedure in response to the request. In this case, petitioner did not make his request for continuance until September 24, twelve days after the hearing was closed. ' R-119, SR-1. At that point "continuance" was not technically possible; the Commission would have had to reopen the hearing, and in fairness to all participants to conduct any additional hearing only after full notice was provided. Petitioner failed to request a continuance during the BRIEF OF RESPONDENT - CITY OF TIGARD Page - 5 hearing on September 12, 1994. As a result, he failed to request the appropriate relief and did so far too late in the process. And as noted below, petitioner had ample opportunity to present and rebut any evidence he chose to under the procedure followed by the respondent.' There is no prejudice to petitioner's substantial rights. r As noted above, respondent does not believe the Board should consider these additional theories of the case, since they were not presented by petitioner. However, should the Board decide to consider the respondent's procedures in light of additional arguments not raised by petitioner, respondent submits the following argument. ORS 197.828(2)(d) requires reversal or remand of a local government decision only in the event that a party's substantial rights were prejudiced. The burden of showing that prejudice rests with the petitioner. Edwards v. City of Portland, 27 Or LUBA 262 (1994). No such showing can be made here. Petitioner's substantial right in this situation is the right to rebut new evidence presented while the record was open. Petitioner not only failed to exercise his right of rebuttal, he did not ' request the opportunity and have that request denied. Under Citizens for Responsible Growth v. City of Seaside, 26 Or LUBA 458, 462 (1994) and Caine v. Tillamook County, 25 Or LUBA ' 209, 213-214 (1993), a request for an opportunity to rebut coupled with a denial of that request ' is the showing this Board requires in order to determine that prejudice to this substantial right I has occurred. 'Because this is not a case governed by ORS 197.763, the "inspection" right also created by ' ORS 197.763(4) does not apply. See Reed v. Clatsop County, 22 Or LUBA 548, 555 (1992). BRIEF OF RESPONDENT - CITY OF TIGARD ' Page - 6 ' In this case, the record was left open for two seven day periods as described in detail ' above. The material submitted by the applicant which is of concern to the petitioner was submitted on September 19, 1994. At that point, petitioner still had seven days in which to rebut the additional material. He did not do so. Petitioner could have submitted any documentation he chose to; he lost only the opportunity to make an additional verbal presentation due to the fact that the hearing was closed. All materials submitted by everyone were available ' to the Commission before it rendered its final decision, and are included in the record herein. ' R53-73. This opportunity was more than adequate under Fasano v. Wash. Co. Comm., 264 Or 574, 507 P2d 23 (1973), which is the correct legal standard. See also Mazeski v. Wasco ' Coun 26 Or LUBA 226 (1993); and Tucker v. Douglas Coun Or LUBA UBA No. 94-083, October 11, 1994). Under these facts, it would be wrong to require both the opportunity to present and rebut evidence during an open record period and a continued hearing; no purpose would be served by these duplicative requirements. Nothing in statute, local code, or case law requires such a ' result.3 Conclusion: First Assignment of Error t No purpose would be served by a remand as a result of the City's failure to grant a ' continuance, when the petitioner had the legal right he was entitled to - the opportunity to rebut 3The recent decision of this Board in Oregon Natural Resources Council v. City of Seaside, LUBA No. 93-228, March 19, 1995, does not apply because this is a limited land use decision ' not subject to the requirements of ORS 197.763. BRIEF OF RESPONDENT - CITY OF TIGARD Page - 7 1 new evidence submitted by the applicant. The City followed all required local procedures, and a full and fair process was the result. V. RESPONSE TO SECOND ASSIGNMENT OF ERROR The cited statute does not govern this appeal or limit the fee which can be charged; Petitioner waived his opportunity to challenge the appeal fee charged in this case by failing to raise it in order to give respondent an opportunity to respond; Any error was procedural in nature, no prejudice to petitioner's substantial rights resulted, and therefore no remedy is available to petitioner. ' ORS 227.175 10 establishes among other things, a limit on the fee which can be charged for a hearing where the local government chooses to make a decision first without a ' hearing, and provides the opportunity for a hearing only on appeal. But the statute is further limited by the definitions contained in the statute itself. ORS 227.175 applies, by its own terms, to decisions involving "permits" and "zone changes". ORS 227.175(1). "Permit" is defined in earlier ORS 227.160(2), at the beginning of the section, to exclude limited land use decisions such as the case on review here. It is well settled that when statutes are construed, they must be read in full, and various parts must be read together. ORS 174.020; Boone v. Wright, et al, 314 Or 135, 836 P2d 727 (1992); Kankkonen v. Hendrickson, 232 Or 49, 374 P2d 393 (1962). Since the case on review is excluded from ' ORS 227.175 by definition, the limit on the appeal fee which can be charged by local governments does not apply to those decisions. The record reflects that the appellant paid a fee of $235 at the time his appeal was filed; ' R-279-80. The record does not reflect that the appellant challenged the fee at any time, until BRIEF OF RESPONDENT - CITY OF TIGARD ' Page - 8 ' well after the hearing was closed. The appellant's letter of September 24, 1994 was the first notice the City had that petitioner had a complaint about the appeal fee.' If the respondent charged a fee which was too high, it was at best a procedural error. As noted extensively above, the petitioner has an obligation to raise procedural errors in time ' for the local government to have an adequate opportunity to respond. The hearing in this matter was closed before the issue was raised, though petitioner could have raised the issue at any time between July 13, 1994, when he appealed the decision and paid the fee through the public ' hearing on September 12, 1994, the date of the public hearing. LUBA should not consider this issue at this time. See Mazeski and Tucker, supra. If the Board does determine it should consider this procedural error despite respondent's arguments on this assignment of error, the Board would still have to determine how petitioner's substantial rights were prejudiced by paying the fee charged. Petitioner has made no such showing, though it is his burden to do so, and this Board has never held that the correct fee is ' a "substantial right". The relief sought by petitioner in this assignment of error is a refund of the portion of the fee over $100. This Board does not have authority to award a refund pursuant to ORS 197.828 or 197.835. Refunds such as this are also not authorized by LUBA's administrative rules; OAR 661-10-075 does not provide for refunds as a part of the cost bill, and OAR 661-10- 075(1)(b) provides that "Costs may be recovered only for the items set forth in this paragraph." 'Respondent objects to the inclusion of Exhibit A to petitioner's brief, which is the City staff's letter denying petitioner's objection to the fee. This letter is not part of the record and ' is dated September 30, 1994, four days after the record was closed. BRIEF OF RESPONDENT - CITY OF TIGARD ' Page - 9 VI. RESPONSE TO THIRD AND FOURTH ASSIGNMENTS OF ERROR In the interest of brevity and judicial economy, respondent concurs with the response of intervenor on these two assignments of error. VII. RESPONSE TO CROSS-PETITION FOR REVIEW AND MOTION TO DISMISS ' Respondent made a reasonable and correct interpretation of its own code provision in calculating the appeal deadline at issue in this case. Respondent's decision is good public policy. ' At issue in the cross-Petition for review is the decision by City staff to extend the deadline for appeals of the Director's decision from July 5, 1994 to July 13, 1994. The appeal period was extended to accommodate the July '12, 1994 Council meeting, since TCDC 18.32.300A allows an extension where a ten day period "would not otherwise provide an ' opportunity to interested parties to appear before Council regarding the decision." Nothing in the wording of this provision requires that the next Council meeting following a decision is the only one where Council review could occur. The section in question is intended to accommodate the Council's authority, codified at TCDC 18.32.310, to call up decisions of the Planning Commission for additional review. That review could have occurred no earlier than the July 12, 1994 Council meeting under the Council's own rules. The extension ' allowed by staff in this case was within the maximum 20 days allowed for an appeal period by TCDC 18.32.300A, and was the result of a reasonable and correct interpretation of the code provision in question. ' Since the interpretation in question here was made at the staff level, the City acknowledges that the decision in Gage v. City of Portland, 319 Or 308, 877 P2d 1187 (1994) removes the Board's obligation to grant deference to that local interpretation. There are still, BRIEF OF RESPONDENT - CITY OF TIGARD ' Page - 10 however, limits on the Board's review of local interpretations. Under Yamhill County v. ' Ludwick, 294 Or 778, 663 P2d 398 (1983), and McCoy v. Linn County, 90 Or App 271, 752 P2d 323 (1988), LUBA may review the City's application of its own ordinance for consistency with its intended purpose. The City's interpretation must be reasonable, and not contrary to the ' express language of the ordinance. The rationale supporting the reasonableness of the City's interpretation follows. The City of Tigard is a home rule City. Pursuant to Charter, the Council has authority ' to promulgate rules governing the conduct of its business. The Council Rules, adopted by resolution of the council, provide that the City Recorder prepares the Council Agenda and that items must be submitted ten days in advance of a council meeting. Pursuant to her authority in this regard, the Recorder has promulgated an administrative work plan governing the control of ' agenda items and the timing of the preparation of the agenda. This process affords the Council and the public advance notice of what items will be considered in keeping with the Public ' Meetings Law. Copies of the relevant portions of the Charter, Council Rules and Administrative Policy are attached to this brief as Exhibit 3. Pursuant to the Council rules, the Council generally meets on the second, third and fourth ' Tuesdays of each month. In June and July of 1994, Council meetings were held pursuant to that ' schedule on June 28, 1994 and July 12, 1994. The appeal deadline established in this case was designed to allow for the preparation of agenda materials for the July 12, 1994 agenda. Clearly, since the notice of decision in this case was mailed on Friday, June 24, 1994, scheduling the matter on the Council agenda of the following Tuesday, June 28, 1994, would not have conformed to the City's own agenda rules, would have afforded the parties a very short time in BRIEF OF RESPONDENT - CITY OF TIGARD ' Page - 11 which to prepare, and would not have assured that all interested parties might have had the ' opportunity to be notified and appear before the Council. Therefore, in the interest of encouraging public involvement and fairness to all participants, staff calculated the final appeal ' deadline to be the day following the July 12 Council meeting. The cases cited by intervenor are distinguishable; they interpret very specific limits on the filing of appeals. This is not an interpretation which must be remanded for findings under Larson v. U, 116 Or APP 96, 840 P2d 1350 (1992) and Weeks v. City of Tillamook, 117 ' Wallowa Coun ' Or App 449, 844 P2d 914 (1992). First, the language of the provision is clear, and is not in ' conflict with any other provision of the TCDC. Second, the provision in question is not a standard or criterion applicable to the City's review of the application, but rather is a procedural t requirement. When the provision is read in the context of the other applicable rules in Exhibit ' 3, no purpose would be served by additional findings. Conclusion: Cross Petition for Review ' Under the standard of review for interpretations of local ordinances outlined above, ' LUBA can and should affirm the City staff's interpretation in this case. Such a decision is not only within LUBA's authority, but is good policy in conformance with the structure of the ' Oregon land use system. ' DATED: April 27, 1995 Respectfully submitted, 4 / Sz,-, ' Pamela J. ry, O ##80161 O'Donnell Ramis Crew Corrigan ' & Bachrach Of Attorneys for Respondent p~b\ach\90024\gemmm.brf BRIEF OF RESPONDENT - CITY OF TIGARD ' Page - 12 ' Chapter 18.120 ' SITE DEVELOPMENT REVIEW 'Sections: ' 18.120.010 Purpose 18.120.020 Applicability of Provisions 18.120.030 Administration and Approval Process ' 18.120.040 Expiration of Approval: Standards for Extension of Time 18.120.050 Phased Development 18.120.060 Bonding and Assurances ' 18.120.070 Major Modification to Approved Plans or Existing Development 18.120.080 Minor Modification(s) to Approved Plans or Existing Development 18.120.090 Application Submission Requirements ' 18.120.100 Additional Information Required and Waiver of Requirements 18.120.110 Site Conditions 18.120.120 The Site Development Plan ' 18.120.130 Grading Plan 18.120.140 Architectural Drawings 18.120.150 Landscape Plan ' 18.120.160 Sign Drawings 18.120.170 Exceptions to Standards 18.120.180 Approval Standards ' 18.120.010 Purpose A. The purpose and intent of site development review is to promote the t general welfare by directing attention to site planning, and giving regard to the natural environment and the elements of creative design to assist in conserving and enhancing the appearance of the city. B. It is in the public interest and necessary for the promotion of the ' health, safety and welfare, convenience, comfort and prosperity of the citizens of the City of Tigard: t 1. To implement the City of Tigard's comprehensive plan and other ' approval standards in this code; 2. To preserve and enhance the natural beauties of the land and ' of the man-made environment, and enjoyment thereof; 3. To maintain and improve the qualities of and relationships ' between individual buildings, structures and the physical developments which best contribute to the amenities and attractiveness of an area or neighborhood; ' 4. To protect and ensure the adequacy and usefulness of public and private developments as they relate to each other and to ' the neighborhood or area; and .i ' Revised 02/27/89 Page 29 EXHIBIT I Page I o: I Panoc ' 5. To ensure that each individual development provides for a quality environment for the citizens utilizing that development as well as the community as a whole. C. In order to prevent the erosion of natural beauty, the lessening of environmental amenities, the dissipation of both usefulness and function, and to encourage additional landscaping, it is necessary: 1. To stimulate harmonious design for individual.buildings, groups of buildings and structures, and other physical developments; .11 ' 2. To encourage the innovative use of materials, methods, and techniques and flexibility in building placement; and 3. To integrate the functions, appearances and locations of buildings ' and improvements so as to best achieve a balance between private, prerogatives and preferences, and the public interest and welfare. (Ord. 89-06; Ord. 83-52) ' 18.120.020 Applicability of Provisions A. Site development review shall be applicable to all new developments and major modification of existing developments, as provided in Section 18.120.070 except it shall not apply to: ' 1. Single-family detached dwellings; 2. Manufactured homes on individual lots; 3. A duplex, which is not being reviewed as part of any other development; ' 4. Minor modifications as provided in Section 18.120.070; 5. Any proposed development which has a valid conditional use approved through the conditional use permit application process; or 6. Mobile home parks and subdivisions; 7. Family day care; ' 8. Home occupation; . 9. Temporary use; ' 10. Fuel tank; or t 11. Accessory structures. (Ord. 90-41; Ord. 89-06; Ord. 87-66; Ord. ' 84-61; Ord. 84-50; Ord. 83-52) 18.120.030 Administration and Approval Process ' A. The applicant for a site development review proposal shall be the recorded owner of the property or an agent authorized in writing by the owner. B. A preapplication conference with City staff is required. (See Section 18.32.040.) C. Due to possible changes in state statutes, or regional or local policy, ' information given by staff to the applicant during the preapplication conference is valid for no more than six months: J ' Revised 1/17/91 Page 299 ' EXHIBIT l Pa eZ of Pages ' 1. Another preapplication conference is required if any site development application is submitted six months after the preapplication conference; and ' 2. Failure of the Director to provide any of the information required by this section shall not constitute a waiver of the standard, criteria or requirements applicable to the applications. D. The Director shall approve, approve with conditions or deny any application for site development review as provided by Section 18.32.090. The Director shall apply the standards set forth in Section 18.120.180 when reviewing an application for site development review. ' E. The decision of the Director may be appealed in accordance with Subsection 18.32.310.A. ' F. The Director shall mail notice of any site development review proposal: decision to the persons who may have the right to request a hearing before the Commission in accordance with Section 18.32.120. (Ord. 89-06; Ord. 83-52) ' 18.120.040 Expiration of Approval: Standards for Extension of Time A. Site development review approval by the Director shall be effective for ' a period of one-and-one-half years from the date of approval. B. The site development review approval by the Director shall lapse if: 1. Substantial construction of the approved plan has not begun within a one-and-one-half years period; or 2. Construction on the site is a departure from the approved plan. ' C. The Director shall, upon written request by the applicant and payment of the required fee, grant an extension of the approval period not to exceed one year; provided that: 1. No changes are made on the original site development review plan as approved by the Director; 2. The applicant can show, intent of initiating construction on the site within the one year extension period; and 3. There have been no changes to the applicable comprehensive Plan policies and ordinance provisions on which the approval was based. D. Notice of the decision shall be provided to the applicant. The Director's decision may be appealed by the applicant as provided by ' Subsection 18.32.310.A. (Ord. 90-41; Ord. 89-06; Ord. 83-52) 1 ' Revised 1/17/91 Page 300 ' EXHIBIT _I Page . of -Pages 18.120.050 Phased Development A. The Director shall approve a time schedule for developing a site in phases over a period of time of one year, but in no case shall the 1 total time period for all phases be greater than three years without reapplying for site development review. B. The criteria for approving a phased site development review proposal is that all of the following are satisfied: ' 1. The public facilities are constructed in conjunction with or prior to each phase; 2. The development and occupancy of any phase is not dependent on the use of temporary public facilities: ' a. A temporary public facility is any facility not constructed to the applicable city or district standard; ' 3. The phased development shall not result in requiring the City or other property owners to construct public facilities that were required by approved development proposal; and ' 4. The Director's decision may be appealed as provided by Subsection 18.32.310.A. No notice need be given of the ' Director's decision. (Ord. 89-06; Ord. 83-52) 18.120.060 Bonding and Assurances A. On all projects where public improvements are required the Director shall: 1. Require a bond in an amount not greater than 100 percent or other adequate assurances as a condition of approval of the site development plan in order to ensure the completed project ' is in conformance with the approved plan; and t 2. Approve and release such bonds. ' B. The bond shall be released when the Director finds the completed project conforms to the approved site development plan and all ' conditions of approval are satisfied. C. Landscaping shall be installed prior to issuance of occupancy ' permits, unless security equal to the cost of the landscaping as determined by the Director is filed with the City Recorder assuring such installation within six months after occupancy: ' 1. Security may consist of a faithful performance bond payable to the City, cash, certified check or such other assurance of completion approved by the City Attorney; and J - Revised 02/27/89 Page 301 I EXHIBIT l Page N of 14 Panoc 2. If the installation of the landscaping is not completed within the six-month period, the security may be used by the city to complete the installation. D. The applicant shall ensure that all occupants of the completed project, whether permanent or temporary, shall apply for and receive a City of Tigard business tax prior to initiating business. (Ord. 89-06; Ord. 83- 52) 18.120.070 Major Modification to Approved Plans or Existing Development A. An applicant may request approval of a modification to an approved plan ' or existing development by: 1. Providing the Director with three copies of the proposed modified site development plan; and 2. A narrative which indicates the rationale for the proposed modification addressing the changes listed in subsection B below. B. The Director shall determine that a major modification(s) will result if one or more of the following changes are proposed. There will be: 1. An increase in dwelling unit density, or lot coverage for ' residential development; 2. A change in the ratio or number of different types of dwelling units; ' 3. A change that requires additional on-site parking in accordance with Chapter 18.106; ' 4. A change in the type of commercial or industrial structures as defined by the Uniform Building Code; 5. An increase in the height of the building(s) by more than 20 percent; 6. A change in the type and location of accessways and parking areas where off-site traffic would be affected; 7. An increase in vehicular traffic to and from the site and the increase can be expected to exceed 20 vehicles per day; 8. An increase in the floor area proposed for a nonresidential use by ' more than 10 percent excluding expansions under 5,000 square feet; 1 ' Revised 1/17/91 Page 302 EXHIBIT Page 5 of __Pages t 9. A reduction in the area reserved for common open space and/or usable open space which reduces the open space area below the minimum required by this code or reduces the open space area by more than 10 percent; 10. A reduction of project amenities below the minimum established by this code or by more than 10 percent where specified in the site plan: ' a. Recreational facilities; b. Screening; and/or ' c. Landscaping provisions; and 11. A modification to the conditions imposed at the time of site ' development review approval which are not the subject of B. 1 through: 10 above of this subsection. C. Upon determining that the proposed modification to the site development plan is a major modification, the applicant shall submit a new application in accordance with Sections 18.120.030 and 18.120.090 for site development review prior to any issuance of building permits. ' D. The Directo'r's decision may be appealed as provided by Subsection 18.32.310.A. Notice of the Director's decision need not be given. (Ord. 90-41; Ord: 89-06; Ord. 83-52) ' 18.120.080 Minor Modification(s) to Approved Plans or Existing Development A. Any modification which is not within the description of a major modification- as provided in Section 18.120.070 shall be considered a minor modification. ' B. An applicant may request approval of a minor modification: 1. Providing the Director with three copies of the proposed modified site development plan; and ' 2. A narrative which indicates the rationale for the proposed modification addressing the changes listed in Section 18.120.070.B. ' C. A minor modification shall be approved, approved with conditions or denied following the Director's review based on the finding that: 1. No code provisions will be violated; and 2. The modification is not a major modification. ' D. The Director's decision may be appealed as provided by Subsection 18.32.310.A. (Ord. 89-06; Ord. 83-52) ' Revised 1/17/91 Page 303 ' EXHIBIT Page to of 0S Pages 18.120.090 Application Submission Requirements ' A. All applications shall be made on forms provided by the Director and shall be accompanied by: 1. Copies of the site development plan(s) (number to be determined at the preapplication conference) and necessary data or narrative which explains how the development conforms to the standards, and: a. The site development plan(s) and required drawings shall be drawn on sheets preferably not exceeding 18 inches by 24 inches; b. The scale for a site development plan shall be an engineering scale; and c. All drawings of structure elevations shall be a standard architectural scale, being 1/4 inch or 1/8 inch; 2. A list of the-names and addresses of all persons who are 1 property owners of record within 250 feet of the site; and 3. The required fee. ' B. The required information may be combined on one map. C. The site development plan, data, and narrative shall include the following: 1. An existing site conditions analysis, Section 18.120.110; ' 2. A site plan, Section 18.120.120;- 3. A grading plan, Section 18.120.130; 4. A landscape plan, Section 18.120.150;1 ' 5. Architectural elevations of all structures, Section 18.120.140; 6. A sign plan, Section 18.120.160; and ' 7. A copy of all . existing and proposed restrictions or covenants. (Ord. 89-06; Ord. 86-23; Ord. 83-52) ' 18.120.100 Additional Information Required and Waiver of Requirements ' A. The Director may require information in addition to that required by this chapter in accordance with Subsection 18.32.080.A. B. The Director may waive a specific requirement for information in ' accordance with Subsection 18.32.080.B and C. (Ord. 89-06; Ord. 83-52) r - ' Revised 02/27/89 Page 3AA EXHIBIT.~_ Page -7- of ' 18.120.110 Site Conditions A. The site analysis drawings shall include: 1. A vicinity map showing streets and access points, pedestrian and bicycle pathways, transit stops and utility locations; 2. The site size and its dimensions; 3. Contour lines at two-foot contour intervals for grades 0 to 10 percent and five-foot intervals for grades over 10 percent; 4. The location of drainage patterns and drainage courses; 5. The location of natural hazard areas including: a. Floodplains areas (100-year floodplain and flooding); b. Slopes in excess of 25 percent; ' c. unstable ground (areas subject to slumping, earth slides or movement); ' d. Areas having a high seasonal water table within zero to 24 inches of the surface for three or more weeks of the ' year; e. Areas having a severe soil erosion potential; or ' f. Areas having severe weak foundation soils; 6. The location of resource areas as shown on the comprehensive ' plan map inventory data including: a. Wildlife habitats; and b. Wetlands; t ' 7. The location of site features including: a. Rock outcroppings; and b. Trees with six inches caliper or greater measured four feet from ground level; 8. The location of existing structures on the site and proposed use of those structures; and ' 9. The location and type of noise sources on the site or on adjoining property such as traffic ways, mechanical equipment, or noise producing land uses if requested by the Director. ' (Ord. 89-06; Ord. 83-52) ' Revised 02/27/89 Page 305 EXHIBIT J- Page '3- of t$-Paaes ' 18.120.120 The Site Development Plan A. The proposed site development plan shall be at the same scale as the site analysis and shall include the following information: 1. The proposed site and surrounding properties; ' 2. Contour line intervals (see Subsection 18.120.110.A.3); ' 3. The-location, dimensions and names of all: a. Existing and platted streets and other public ways and easements on the site and on adjoining properties; and b. Proposed streets or other public ways and easements on ' the site; 4. The location and dimensions of: ' a. Entrances and exits on the site; b. Parking and circulation areas; C. Loading and services areas; ' d. Pedestrian and bicycle circulation; e. Outdoor common areas; and f. Aboveground utilities; ' 5. The location, dimensions, and setback distances of all: a. Existing structures, improvements and utilities which are located on adjacent property within 25 feet of the site and are permanent in nature; and t b. Proposed structures, improvements and utilities on the site; 6. The location of areas to be landscaped; ' 7. The location and type of outdoor lighting, considering crime prevention techniques; ' 8. The location of mailboxes; ' 9. The location of proposed utility lines; and 10. The location of all structures and their orientation. (Ord. 89-06; Ord. 83-52) ' Revised 02/27/89 Page 3AA EXHIBIT I Page 9 of tS~ Panac ' 18.120.130 Grading Plan A. The site development plan shall include a grading plan at the same scale as the site analysis drawings and shall contain the following information: T. ) ' 1. Requirements in Sections 18.120.110 and 18.120.120; 2. The location and extent to which grading will take place indicating general contour lines, slope ratios and slope stabilization proposals; and 3. A statement from a registered engineer supported by factual ' data substantiating: i a. The validity of the slope stabilization proposals; and b. That all problems will be mitigated and how they will be mitigated. (Ord. 89-06; Ord. 83-52) 18.120.140 Architectural Drawings ' A. The site development plan proposal shall include: 2. Floor plans indicating the square footage of all structures ' proposed for use on-site; and 2. Typical elevation drawings of each structure. (Ord. 89-06; Ord. 83-52) 18.120.150 Landscape Plan A. The landscape plan shall be drawn at the same scale as the site analysis plan, or a larger scale if necessary, and shall indicate: 1. Location of underground irrigation system sprinkler :heads where applicable; t ' 2. Location and height of fences, buffers, and screenings; 3. Location of terraces, decks, shelters, play areas, and common open spaces; and ' 4. Location, type, size, and species of existing and proposed plant materials. B. The landscape plan shall include a narrative which addresses:' ' 1. Soil conditions; and 2. Erosion control measures that will be used. (Ord. 89-06; Ord. ' 83-52) Revised 02/27/89 Page 307 ' EXHIBIT _L Page ID of i $ __Pages ' 18.120.160 Sign Drawings A. Sign drawings shall be submitted in accordance with Chapter 18.114. (Ord. 89-06; Ord. 83-52) ~l 18.120.170 Exceptions to Standards A. The Director may grant an exception to the setback yard requirements in the applicable zone based on findings that the approval will result in the following: 1. An exception which is not greater than 20 percent of the required setback; ' 2. No adverse effect to adjoining properties in terms of light, noise levels, and fire hazard; I. Safe vehicular and pedestrian access to the site and on-site; 4. A more efficient use of the site which would result in more landscaping; and 5. The preservation of natural features which have been incorporated into the overall design of the project. B. The Director may grant an exception or deduction to the off-street ' parking dimensional and minimum number of space requirements in the applicable zoning district based on the following findings: 1. The application is for a use designed for a specific purpose which is intended to be permanent. in nature (for example, senior citizen housing) and which has a demonstrated low ' demand for off-street parking; 2. There is an opportunity for shared parking and there is written evidence that the property owners have entered into a binding agreement to share parking; or 3. There is community interest in the preservation of particular natural feature(s) on the site, public transportation is available to the site, and reducing the standards will not adversely affect adjoining uses, therefore the public interest ' is not adversely affected by the granting of the exception. C. The Director may grant an exception or deduction to the private outdoor area and shared outdoor recreation areas requirements, provided the application is for a use designed for a specific purpose which is intended to be permanent in nature (for example, senior citizen housing) and which can demonstrate a reduced demand for a private outdoor recreational area based on any one or more of the following findings: Revised 02/27/89 Page 308 ' EXHIBIT r Page 11 of -13 Paaes ' 1. There is direct access by a pedestrian path, not exceeding 1/4 mile, from the proposed development to public open space or recreation areas which may be used by residents of the development; 2. The development operates a motor vehicle which is available on a regular basis to transport residents of the development to public open space or recreation areas; or ' 3. The required square footage of either the private outdoor area or the shared outdoor recreation area may be reduced if together the two areas equal or exceed the combined standard for both. D. The Director shall grant an exception to the landscaping requirements of this code, Section 18.120.150, upon finding that the overall landscape plan provides for at least 20 percent of the gross site to be landscaped. E. The Director's decision may be appealed as provided by Section' 18.32.310.A. No notice of the Director's decision need be given. (Ord. 89-06; Ord. 84-37; Ord. 84-29; Ord. 83-52) 18.120.180 Approval Standards A. The Director shall make a finding with respect to each of the following ' criteria when approving, approving with conditions, or denying an application: 1. Provisions of the following chapters: ' a. Chapter 18.84, Sensitive Lands; b. Chapter 18.94, Manufactured/Mobile Home Regulations; ' c. Chapter 18.92, Density Computation; d. Chapter 18.144, Accessory Use and Structures; ' e. Chapter 18.96, Additional Yard Area Requirements; f. Chapter 18.98, Building Height Limitations: Exceptions; ' g. Chapter 18.100, Landscaping and Screening; h. Chapter 18.102, Visual Clearance Areas; 1 i. Chapter 18.106, off-Street Parking and Loading; j. Chapter 18.108, Access, Egress,`and circulation; k. Chapter 18.114, Signs; 1. Chapter 18.150, Tree Removal; and M. Chapter 18.164, street and Utility Improvement Standards. 2. Relationship to the Natural and Physical Environment: 1 Revised 1/17/91 Page 309 ' EXHIBIT ..I Page ..tom of -1-Pages ' a. Buildings shall be: (i) Located to preserve existing trees, topography, and ' natural drainage; `j (ii) Located in areas not subject to ground slumping or 1 sliding; (iii) Located to provide adequate distance between adjoining buildings for adequate light, air circulation, and firefighting; and (iv) Oriented with consideration for sun and wind; and b. Trees having a six inch caliper or greater shall be preserved or replaced by new plantings of equal character; and 3. Exterior Elevations: ' a. Along the vertical face of single-family attached and multiple-family structures, offsets shall occur at a ' minimum of every 30 feet by providing any two of the following: 1 (i) Recesses (decks, patios, entrances, floor area, etc.), of a minimum depth of eight feet; i ' (ii) Extensions (decks, patios, entrances, floor area, etc.) of a minimum depth of eight feet, a maximum length of an overhang shall be 25 feet; and ' (iii) Offsets or breaks in roof elevations of three or more feet in height; 4. Buffering, Screening, and Compatibility between Adjoining Uses: a. Buffering shall be provided between different types of ' land uses (for example, between single-family and multiple-family residential, and residential and commercial), and the following factors shall be ' considered in determining the adequacy of the type and extent of the buffer: (i) The purpose of the buffer, for example to decrease ' noise levels, absorb air pollution, filter dust, or to provide a visual barrier; (ii) The size of the buffer required to achieve the purpose in terms of width and height; l ' Revised 02/27/89 Page 37n EXHIBIT I Page 1~3 of 19 Pages ' (iii) The direction(s) from which buffering is needed; (iv) The required density of the buffering; and (v) Whether the viewer is stationary or mobile; 1 b. on site screening from view from adjoining 'properties of ' such things as service areas, storage areas, parking lots, and mechanical devices on roof tops, i.e., air cooling and heating systems, shall be provided and the following factors will be considered in determining the adequacy of the type and extent of the screening: (i) What needs to be screened; (ii) The direction from which it is needed; (iii) How dense the screen needs to be; (iv) Whether the viewer is stationary or mobile; and (v) Whether the screening needs to b g be year around; 5. Privacy and Noise: a. Structures which include residential dwelling units shall ' provide private outdoor areas for each ground floor unit which is screened from view by adjoining units as provided in Subsection 6.a below; b. The buildings shall be oriented in a manner which protects private spaces on adjoining properties from view and noise; C. Residential buildings shall be located on the portion of ' the site having the lowest noise levels; and A. On-site uses which create noise', lights, or glare shall be buffered from adjoining residential uses; (See Section ' 18.120.180.A.4) 6. Private Outdoor Area: Residential Use: ' a. Private open space such as a patio or balcony shall be provided and shall be designed. for the exclusive use of ' individual units and shall be at least 48 square feet in size with a minimum width dimension of four feet; and: ' (i) Balconies used for entrances or exits shall not be considered as open space except where such exits or entrances are for the sole use of the unit; and r Revised 02/27/89 Page 311 EXHIBIT I Page N of i a Pages- ' (ii) Required open space may include roofed or enclosed structures such as a recreation center or covered picnic area; b. Wherever possible, private outdoor open spaces should be oriented toward the sun; and c. Private outdoor spaces shall be screened or designed to provide privacy for the users of the space, r 7. Shared Outdoor Recreation Areas: Residential Use: a. In addition to the requirements of subsections 5 and 6 above, usable outdoor recreation space shall be provided ' - in residential developments for the shared or common use of all the residents in the following amounts: (i) Studio up to and including two-bedroom units, 200 square feet per unit; and ' (ii) Three or more bedroom units, 300 square feet per unit; b. The required recreation space may be provided as follows: ' (i) It may be all outdoor space; or (ii) It may be part outdoor space and part indoor space; ' for example, an outdoor tennis court, and indoor recreation room; (iii) It may be all public or common space; ' (iv) It may be part common space and part private; for example, it could be an outdoor tennis court, ' indoor recreation room and balconies on each unit; and ' (v) Where balconies are added to units, the balconies shall not be less than 48 square feet; ' c. Shared outdoor recreation space shall be readily observable for reasons of crime prevention and safety; ' 8. Where landfill and/or development is allowed within and adjacent to the 100-year floodplain, the City shall require the dedication of sufficient open land area for. greenway adjoining and within the floodplain. This area shall include portions at a suitable elevation for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted pedestrian/ bicycle plan. ' Revised 02/27/89 Page 31EXHIBIT Page IS of R Pages ' 9. Demarcation of Public, Semipublic, and Private Spaces: Crime Prevention: a. The structures and site improvements shall be designed so that public areas such as streets or public gathering places, semipublic areas and private outdoor areas are clearly defined in order to establish persons having a right to be in the space, in order to, provide for crime prevention and to establish maintenance--responsibility; 1 and b. These areas may be defined by: (i) A deck, patio, low wall, hedge, or draping vine; ! (ii) A trellis or arbor; (iii) A change in level; ' (iv) A change in the texture of the path material; (v) Sign; or (vi) Landscaping; ' 10. Crime Prevention and Safety: a. Windows shall be located so that areas vulnerable to ' crime can be surveyed by the occupants; b. Interior laundry and service areas shall be located in a way that they can be observed by others; C. Hail boxes shall be located in lighted areas having vehicular or pedestrian traffic; d. The exterior lighting levels shall be selected and the angles shall be oriented towards areas vulnerable to crime; and e. Light fixtures shall be provided in areas having heavy ' pedestrian or vehicular traffic and in potentially dangerous areas such as parking lots, stairs, ramps, and abrupt grade changes: ' (i) Fixtures shall be placed at a height so that light patterns overlap at a height of seven feet which is sufficient to illuminate a person; f -1 Revised 02/21/89 Page Ill EXHIBIT Page ►V of I R Panac 11. Access and Circulation: a. The number of allowed access points for a development shall be as provided in Section 18.108.070; j b. All circulation patterns within a development shall be designed to accommodate emergency vehicles; and c. Provisions shall be made for ped6strianways and ' bicycleways if such facilities are shown on an adopted plan; 12. Public Transit: a. Provisions within the plan shall be included for providing for transit if the development proposal is adjacent to existing or proposed transit route; b. The requirements for transit facilities shall be based on: (i) The location of other transit facilities in the area; and (ii) The size and type of the proposal; C. The following facilities may be required after City and_ Tri-Met review: (i) Bus stop shelters; (ii) Turnouts for buses; and (iii) Connecting paths to the shelters; 13. Parking: 1 a. All parking and loading areas shall be designed in accordance with the requirements set forth in Sections 18.106.050 and 18.106.090, Chapters 18.102, visual Clearance, and 18.108, Access, Egress, and Circulation; 14. Landscaping: a. All landscaping shall be designed in accordance with the requirements set forth in Chapter 18.100. b. In addition to the open space and recreation area requirements of subsections 5 and 6 above, a minimum of 20 percent of the gross area including parking, loading and service areas shall be landscaped; and ' c. A minimum of 15 percent of the gross site area shall be landscaped; ' Revised 02/27/89 Page 3?Jk EXHIBIT I Page --Q- of _1 6 Paoes ' 15. Drainage: a. All drainage plans shall be designed in accordance with the criteria in the adopted 1981 master drainage plan; 16. Provision for the Handicapped: a. All facilities for the handicapped shall be designed in accordance with the requirements set forth in ORS Chapter 487; and 17. Signs: a. All sign placement and construction shall be designed in accordance with requirements set forth in Chapter 18.114. 18. All of the provisions and regulations of the underlying zone shall" apply unless modified by other sections or this title (e.g., the Planned Development, Chapter 18.80.; or a Variance granted under ' Chapter 18.134; etc.) (Ord. 90-41; Ord. 89-06; Ord. 84-29; Ord. 83- a 1 1 r Revised 1/17/91 Page 315 EXHIBIT Page J.$__ of IS Pages ' Chaoter 18.32 ' PROCEDURES FOR DECISION MAKING: QUASI-JUDICIAL Sections: 18.32.010 Purpose 18.32.020 The Application Process 18.32.030 Time Period for Decision Making ' 18.32.040 Preapplication Conference Required 18.32.050 Application Submittal Requirements: Refusal of an Application 18.32.055 Applicant's Evidence ' 18.32.060 Duties of the Director 18.32.070 Alternative Recommendation by Director 18.32.080 Additional Information Required, Waiver of Requirements and Report Required 18.32.090 Approval Authority Responsibilities 18.32.100 Consolidation of Proceedings 18.32.110 A Decision by the Director: No Hearing Required 18.32.120 Notice of Decision by the Director 18.32.130 Notice of Hearings officer, Commission and city council Proceedings 18.32.140 Contents of the Notice for Public Hearings 18.32.150 Failure to Receive Notice: Computations 1 18.32.160 Hearings Procedure 18.32.165 Record May Remain Open; Admission of New Evidence 18.32.170 Ex Parte Communications with Approval Authority 18.32.180 Continuation of the Hearing ' 18.32.190 Subpoena or Deposition of witnesses 18.32.200 Evidence 18.32.210 Judicial Notice 18.32.220 Participation in the Decision: Voting 18.32.230 Record of Proceeding for Public Hearings 18.32.250 The Decision Process of the Approval Authority 18.32.260 The Form of the Final Decision 18.32.270 Notice of Final Decision 18.32.275 Amended Decision Process 18.32.280 Denial of the Application: Resubmittal 18.32.290 Standing to Appeal or for a Petition for Review ' 18.32.300 Computation of Appeal Period and Effective Date of the Decision 18.32.310 Determination of Appropriate Reviewing Body 18.32.320 Type of Appeal or Review Hearing: Limitations of Review 18.32.330 Transcripts ' 18.32.340 Notice of Appeal or Petition for Review 18.32.345 Fee Waiver for Appeals 18.32.350 Persons Entitled to Notice on Appeal or Review: Type of Notice 18.32.360 Contents of Notice on Appeal or Review 18.32.370 Action on Appeal or Review: Time Limit and Authority to Change the Decision 18.32.380 Final Action of the Approval Authority: Effective Date 18.32.390 Revocation of Approvals 1 1 1 Revised 1/17/91 Page 46 ' EXHIBIT 2 Page I of 113 Page: ' 18.32.010 Purpose A. The purpose of this chapter is to establish procedures under this title for the consideration of development applications, for the consideration of quasi-judicial comprehensive plan amendments and for appeal or review of decisions. (Ord. 89-06; Ord. 83-52) 18.32.020 The Application Process ' A. Applications for approval required under this chapter may be initiated by: 1. Order of Council; 2. Resolution of a majority of the Commission; ' 3. The Director; ' 4. Application of a recorded owner of property or contract purchasers. B. Any persons authorized by this title to submit an application"for approval may be represented by an agent authorized in writing to make the. ' application. (Ord. 93-19; 90-41; Ord. 89.-06; Ord. 83-52) 18.32.030 Time Period for Decision Making ' A. The City shall take final action on an application for a permit or a zone change, including the resolution of all appeals within 120 days after the application is deemed complete, except: ' 1. The 120-day period may be extended for a reasonable period of time at the request of the applicant; 2. The 120-day period applies only to a decision wholly within the ' authority and control of the City; and 3. The 120-day period does not apply to an amendment to an acknowledged ' comprehensive plan or land use regulation. (Ord. 89-06; Ord. 83-52) 18.32.040 Preapplication Conference Required ' A. The applicant shall be required to meet with the Director for a preapplication conference. B. At such conference, the Director shall: a Revised 7/27/93 Page 47 ' EXHIBIT Z Page Z of Pages 1. Cite the applicable comprehensive plan policies and map designation; 2. Cite the applicable substantive and procedural ordinance provisions; 3. Provide technical data and assistance which will aid the applicant; 4. Identify other policies and regulations that relate to the application; and 5. Identify other opportunities or constraints that relate to the application. C. Due to possible changes in state statutes, or regional or local policy, information given by staff to the applicant during the preapplication conference is valid for not more than six months. 1. Another preapplication conference is required if an application is submitted six months after the preapplication conference. D. Failure of the Director to provide any of the information required by this chapter shall not constitute a waiver of the standards, criteria or requirements of the applications. (Ord. 89-06; Ord. 83-52) 18 32 050 Application Submittal Requirements: Refusal of an Application A. The application shall be made on forms provided by the Director as provided by Subsection 18.32.060.A.1. B. The application shall: ' 1. Include the information requested on the application form; 2. Address appropriate criteria in sufficient detail for review and action; 3. Be accompanied by the required fee; and 4. Include a list of names and addresses of all persons who are surrounding property owners of record as required by the specific application section of this title. The records of the Washington County Department of Assessment and Taxation shall be the official records for determining ownership. C. The Director shall not accept: 1. An incomplete application, except as otherwise provided by Section 18.32.080; or a ' Revised 1/17/91 Page 48 ' EXHIBIT Page -3- of Pages 2. Applications not accompanied by the required fee. D. An application shall be deemed incomplete unless it addresses each element required to be considered under applicable provisions of this code and the application form. E. If an application for a permit or zone change is incomplete, the Director shall: 1. Notify the applicant within 30 days of receipt of' the application of ' exactly what information is missing; and 2. Allow the applicant to submit the missing information. F. The application for a permit or a zone change shall be deemed complete when the missing information is provided and at that time the 120-day time period shall begin to run for the purposes of satisfying state law. G. If the applicant refuses to submit the missing information required for a permit or a zone change application, the application shall be deemed complete on. the 31st day after- the Director first received the application. This in no way negates the applicant's burden of proof, but it is for the purpose of allowing an application to be submitted for hearing. (ord. 90-41; Ord. 89-06; ord. 83-52) 18.32.055 Applicant's Evidence A. All documents or evidence relied upon by the applicant, but submitted ' after the application has been determined to be complete, shall be submitted to the Planning Division staff at least 7 days prior to the time notice is mailed as provided in Subsection 18.32.130.A(1). ' B. When documents or evidence submitted pursuant to Subsection A, above, significantly alter an application previously deemed complete, the Director may recalculate the date the applicant is deemed complete. The recalculated completion date may then be used to determine: ' 1. The 120 day time period for decision making as set forth in Section 18.32.030; and 2. A new decision or hearing date. t C. If additional documents or evidence is provided in support of the ' application after the time set forth in Subsection A, above, any party is entitled to request a continuance of the hearing. Such continuance does not count as part of the 120 day provision in ORS 227.178. (Ord. 90-41) 18.32.060 Duties of the Director A. The Director shall: ' 1. Prepare application forms made pursuant to the standards contained in the applicable state law, comprehensive plan, and implementing ordinance provisions; ' 2. Accept all development applications which comply with the provisions of Section 18.32.050; Revised 1/17/91 Page 49 ' EXHIBIT I Page 44 of 38 Paoes ' 3. Within 60 days after an application is deemed complete pursuant to this chapter, except as provided by Section 18.32.110: a. Give notice as provided by sections 18.32.130 and 18.32.140 except as provided by Section 18.32.120; ' b. Prepare a staff report or notice of decision which shall include: (i) The facts deemed relevant to the proposal and found by the Director to be true; t Revised 1/17/91 Page 49-1 EXHIBIT 2 ' Page 5 of 353 Pages (ii) Until the City's comprehensive plan is acknowledged, those statewide planning goals deemed to be applicable and the reasons why any other goal is not applicable to the proposal. The Director or approval authority need not deal with statewide planning goals ' 15-19, which are not applicable in Tigard; Those portions of the Tigard comprehensive plan and implementing ordinances which the Director deems to be applicable to the proposal. If any portion of the plan or ordinances appear to be reasonably related to the proposal and are deemed not applicable by the ' Director, the Director shall explain why such portion or portions are not applicable; ! (iv) An analysis relating the facts deemed true by the Director to the applicable criteria and a consideration of alternatives open to the approval authority, resulting in a recommendation of denial, approval, or approval with conditions under section ' 18.32.250; and (v) A statement regarding a waiver of information or additional information required by the Director as provided by section 18.32.080; C. In the case of an application subject to a Director's ' decision, make the staff report and all case-file materials available at the time the notice of the decision is given; d. In the case of an application subject to a hearing, make the staff report available 7 days prior to a scheduled hearing date and the case-file materials available when notice is mailed, as provided by Section 18.32.130(A)(1). ' e. Act on the development application pursuant to Subsection 18.32.090.A and Section 18.32.110 or cause a hearing to be held pursuant to subsections 18.32.090.E through D and Sections 18.32.160 through 18.32.230 and Section 18.32.240, unless the applicant has requested or consented to a delay; t 4. Administer the hearings process pursuant to Sections 18.32.130 ' through 18.32.190 and Section 18.32.200; 5. Maintain a register of all applications which have been filed for a decision. The register shall identify at what stage the application is in the process; 6. File notice of the final decision in the records of the Planning ' Division and mail a copy of the notice of the final decision to the applicant and all parties and to those persons requesting copies of such notices who pay the necessary fees therefor as provided by Sections 18.32.120 or 18.32.130; 1 Revised 1/17/91 Page 50 ' EXHIBIT 2 Page ~ of 3f Pages t 7. Maintain and preserve the file for each application. The file shall include, as applicable, a list of persons required to be given notice and a copy of the notice given pursuant to Section 18.32.120 or 18.32.130 and the accompanying affidavits, the application and all supporting information, the staff report, the final decision, including the findings, conclusions and conditions, if any, all correspondence, the minutes of any meeting at which the application ' was considered and any other exhibit, information or documentation which was considered by the hearing body with respect to the application; and 8. Administer the appeals and review process pursuant to Sections 18.32.290 through 18.32.370. (Ord. 90-41; Ord. 89-06; Ord. 84-69; ' Ord. 83-52) 18.32.070 Alternative Recommendation by Director ' A. The Director shall make a recommendation to the initial hearings body on the application; however, in addition, the Director may recommend an alternative or alternatives. ' B. such alternatives shall be considered only if: 1. Notice of such alternative(s) has been given as part of the hearing ' notice in addition to the matters contained in Section 18.32.140; and 2. The staff report prepared as provided by Subsection 18.32.060.A.3.b ' supports such an alternative(s). (Ord. 89-06; Ord. 83-52) 1.8.32.080 Additional information Required, Waiver of Requirements and Report Required ' A. The Director may require information in addition to that required by a specific provision of this title, provided: ' 1. The information is needed to properly evaluate the proposed development proposal; and ' 2. The need can be justified on the basis of a special or unforeseen circumstance. t B. The Director may waive the submission of information for a specific ' requirement subject to the provisions of subsection (C) of this section, provided: 1. The Director finds that specific information is not necessary to properly evaluate the application; or 2. The Director finds that a specific approval standard is not ' applicable to the application. I . Revised 1/17/91 Page 51 ' EXHIBIT 2- Pa e -7- of _Paoes t C. Where a requirement is found by the Director to be inapplicable the Director shall: ' 1. Indicate for the record and to the applicant the specific requirements waived; 2. Advise the applicant in writing that the waiver may be challenged on ' appeal or at the hearing on the matter and may be denied by the approval authority; and ' 3. Cite in the staff report on the application the specific requirements waived, the reasons for the waiver and the specific grant of authority. (Ord. 90-41; Ord. 89-06; Ord. 83-52) ' 18 32 090 Approval Authority Responsibilities A. The Director shall have the authority to approve, deny, or approve with ' conditions the following applications: 1. Minor partition pursuant to Chapter 18.162; 2. Major partition pursuant to Chapter 18.162; 3. Site development pursuant to Chapter 18.120; 4. Temporary use pursuant to Chapter 18.140; 5. Home occupation pursuant to Chapter 18.142; ' 6. Minor modification to approved planned developments; 7. Variance pursuant to Chapter 18.134, with the exception of Sign Code Variances pursuant to Chapter 18.114; 8. Accessory uses and structures pursuant to Chapter 18.144; 9. Flexible setback-standards for developed lots pursuant to Chapter 18.146; 10. Zero lot line setback standards pursuant to Chapter 18.148; 11. A detailed planned development proposal, under Chapters 18.80 and 18.120; ' 12. Determination of parking requirements for unlisted uses pursuant to Subsection 18.106.020.0; ' 13. Tree removal permits; 14. Director's interpretations; and 15. Solar Access Requirements pursuant to.Chapter 18.88. B. The Director may refer an application for review to the Planning Commission or the Hearings officer, depending upon the type of application, as determined by Section 18.32.090. Revised 1/31/91 Page 52 ' EXHIBIT Pa e -8- 01 Pages ' C. The Hearings officer shall conduct a public hearing in the manner prescribed by this chapter and shall have the authority to approve, deny, or approve with conditions the following development applications: 1. Conditional use pursuant to Chapter 18.130; 2. Sensitive land permit within the floodplain pursuant to Subsections ' 18.84.015.B.1 and B.2; 3. Historic overlay district amendments pursuant to"Chapter 18.82; and ' 4. Subdivisions pursuant to Chapter 18.160 when not part of a planned development. 5. Sign code exceptions and sign code variances pursuant to Chapter; 18.114. 6. An appeal of a sensitive lands (steep slope, drainageways) decision ' made by the Director pursuant to Subsections 18.84.015.D and E. 7. An appeal of a sign permit decision or administrative exception made ' by the Director pursuant to Subsections 18.114.030.D and E or Section 18.114.148, respectively. 8. An appeal of a Solar Access Requirements decision by the Director ' pursuant to Chapter 18.88. D. The Commission shall conduct a public hearing in the manner prescribed by this chapter and shall have the authority to approve, deny, or approve ' with conditions the following development applications: 1. Subdivisions pursuant to Chapter 18.160 when requested as part of a planned development and/or in conjunction with a variance to the subdivision standards or a variance to any Title 18 requirement; 2. A quasi-judicial comprehensive plan map amendment except: ' a. The Commission's function shall be limited to a recommendation to the Council; ' b. The Commission may transmit their recommendation in any form and a final order need not be formally adopted; and c. The Council hearing shall be confined to the prior record and ' a final order shall be formally adopted; 3. A quasi-judicial zoning map amendment pursuant to Section 18.22.030 ' except where the zone change application is being heard concurrent with a quasi-judicial plan amendment. In such a situation this zone change shall be decided in the same manner as a quasi-judicial plan amendment; ' 4. A development application referred to the Commission by the Director with the exception of sensitive lands decisions and sign permits; 5. An appeal of a- decision made by the Director under Subsection 18.32.310.A of this section; .6. A conceptual planned development proposal under Chapter 18.80; Revised 1/31/91 Page 53 EXHIBIT 2 ' Page 9 0: -3'- Pages ' 7. Interpretations of the Tigard comprehensive plan or the adopted community development code, if requested by the Director or other interested persons; 1 Page 53-1 Revised 1/31/91 ' EXHIBIT ~ Page ► 0 of _3 Pages a - 8. Aiiy' ;_''her matter not specifically assigned to the Director, the Hearings officer, or City council under this title; 9. The preliminary review of plan designations and formal imposition of zoning district designations made to lands annexed to the City; 10. Recommendations to the City Council on annexations; and 11. Solar Access Requirements pursuant to Chapter 18;88. ' E. The City Council shall conduct a public hearing in the manner prescribed by this chapter and shall have the authority to approve, deny, or approve with conditions the following development applications: 1. The formal imposition of plan designations made to lands annexed to the City; ' 2. Matters referred to the Council by the Commission or Hearings officer for review under Subsection 18.32.310.B.3; 3: Review of decisions of the initial hearings body, whether on the ' Council's own motion or otherwise, as provided by Subsections 18.32.310.B.1 and 2; 4. Quasi-judicial plan amendments; and 5. Resolutions to the boundary Commission for annexations and quasi- judicial zoning designations on property to be annexed. (Ord. 91- 02; Ord. 90-41; Ord. 89-06; Ord. 86-43; Ord. 85-32; Ord. 84-69; Ord. 84-09; Ord. 83-52) 18.32.100 Consolidation of Proceedinas ' A. Except as provided in subsection D of this section, whenever an applicant requests more than one approval and more than one approval authority is required to decide the applications, the proceedings shall be consolidated ' so that one approval authority shall decide all applications in one proceeding. B. In such cases as stated in subsection A of this section, the hearings shall be held by the approval authority having original jurisdiction over one of the applications under Section 18.32.090, in the following order of preference: the Council, the Commission, the Hearings officer, or the ' Director. Revised 1/31/91 Page 54 ' EXHIBIT Z Page _1L of Pages ' C. Plan map amendments are not subject to the 120-day decision making period prescribed by state law and such amendments may involve complex issues; therefore, the Director shall not be required to consolidate a plan map amendment and a zone change or other permit applications requested unless the applicant requests the proceedings to be consolidated and signs a waiver of the 120-day time limit prescribed by state law for zone change and permit applications. D. Where there is a consolidation of proceedings: 1. The notice shall identify each action to be taken; 2. The decision on a plan map amendment shall precede the decision on the proposed zone change and other actions; and, 3. Separate actions shall be taken on each application. (Ord. 89-06; S Ord. 83-52) ' 18.32-110 A Decision by the Director: No Hearing Required A. Pursuant to Subsection 18.32.090.A, the Director is authorized to make certain decisions, and no hearing shall be held unless an appeal is filed ' as provided by Subsection B of this section, or unless: 1. An appeal is filed pursuant to Subsection 18.32.310.A;'or ' 2. The Director has an interest in the outcome of the decision, due to some past or present involvement with the applicant, other interested persons or in the property or surrounding property. In ' such cases, the application shall be treated as if it were filed. under Subsection 18.32.090.C. B. The decision shall be in the form set forth in Section 18.32.120. ' C. The decision shall be based on the approval criteria set forth in section 18.32:250. ' D. Notice of the decision by the Director shall be given as provided by Section 18.32.120 and notice shall be governed by the provisions of Section.18.32.140, Contents of Notice, and Section 18.32.150, Failure to ' Receive Notice. t E. The record shall include: ' 1. A copy of the application and all supporting information, plans, exhibits, graphics, etc.; ' 2. All correspondence relating to the application; 3. All information considered by the Director in making the decision; ' Revised 1/17/91 Page 55 EXHIBIT 2 ' Page of ~$Paaes ' 4. The staff report of the Director prepared under Subsection 18.32.060.A.3.b; 5. A list of the conditions, if any are attached to the approval of the application; and 6. A copy of the notice advising of the Director's decision which was given pursuant to Section 18.32.090, and accompanying affidavits, and a list of all persons who were given mailed notice. .11 F. Standing to appeal shall be as provided by Section 18.32.290. G. The appeal period shall be computed as provided by Section 18.32.300. ' H. The method for taking the appeal shall be as provided by Subsection 18.32.310.A and the notice of appeal submitted by an appellant shall be as provided by Section 18.32.340. I. The hearing shall be confined to the prior record as provided by Subsection 18.32.320.A. J. Notice of the final decision on appeal shall be as provided by Section 18.32.270, Notice of Final Decision, and Section 18.32.260, The Form of the Final Decision. ' K. No decision by the Director may be modified from that set out in the notice except upon being given new notice. L. The action on the appeal shall be as provided by Section 18.32.370, Action ' on Appeal or Review. M. A decision by the Commission on an appeal of a Director's decision is final. N. Resubmittal shall be as provided by Section 18.32.280, Denial of Application: Resubmittal. ' - 0. The provisions of Section 18.32.390, Revocation of Approvals apply to a decision by the Director. (Ord. 89-06; Ord. 83-52) ' 18.32.120 Notice of Decision by the Director s A. Notice of the Director's decision on an application pursuant to Subsection 18.32.090.A shall be given by the Director in the following manner: ' 1. Within five days of signing the proposed decision, notice shall be sent by mail to: ' a. The applicant and all owners or contract purchasers of record of the property which is the subject of the application; J Revised 1/17/91 Page 56 EXHIBIT 2 ' Page 1'-~ of Pages b. All surrounding property owners of record of property within 250 feet of the property for the following types of Director's decisions: (i) Minor Land Partitions; j (ii) Site Development Reviews; and (iii) Sensitive Lands (steep slope, drainageway); (iv) Type II Home Occupations (Chapter 18.142.060.B.3) C. All owners of record of property immediately abutting a site ' subject to the following types of director's decisions: (i) Temporary Uses; ' (ii) Flexible Setback Variances; (iii) Lot Line Adjustments, and ' (iv) Administrative Variances. d. The applicant for a Director's Interpretation or a Director's ' Decision regarding an extension of approval; e. The individual recognized by the affected CIT as contact person; f. Any governmental agency which is entitled to notice under an intergovernmental agreement.entered into with the City which includes provision for such notice; and ' g. Any person who requests, in writing, and pays the required fee established by the Council. 2. Within 10 days of signing the decision, the Director shall-post a copy of each notice of decision at City Hall; and 3. Notice shall be published in a local newspaper of general circulation for site design review, majortland partitions, and minor land partitions a minimum of 10 days prior to the date the decision becomes final. Newspaper notice is not required for other decisions ' by the Director. B. The Director shall cause an affidavit of mailing, posting and publication ' of notice where newspaper publication was required in Subsection A.1 of this section to be filed and made a part of the administrative record. C. Notice of a decision by the Director shall contain: ' 1. The nature of the application in sufficient detail to apprise persons entitled to notice of the applicant's proposal and of the decision; 1 Revised 07/27/93 Page 57 ' EXHIBIT 2 Page ► of _Pages ' 2. The address and legal description of the subject property, with the exception of Director's Interpretations; 3. A statement of where the adopted findings of fact, decision and statement of conditions can be obtained; 4. The date the Director's decision will become final;. 5. A statement that a person entitled to notice or adversely affected or aggrieved by the decision may appeal the decision: ' a. The statement shall explain briefly how an appeal can be taken, the deadlines and where information can be obtained; and ' b. The statement shall explain that if an appeal is not filed, the decision shall be final, except for notice published in the newspaper; 6. F, map showing the location of the property (Director's Interpretations are exempt from this•requirement); and ' 7. A statement that the hearing on an appeal will be confined to the prior record. (Ord. 93-19; 91-32; Ord. 90-41; Ord. 89-06; Ord. 86-08; Ord. 84-61; Ord. 83-52) ' 18.32.130 Notice of Hearings Officer, Commission, and City Council Proceedings ' A. Notice of an impending action pursuant, to Subsections 18.32.090.B, C, and D shall be given by the Director in the following manner: 1. At least 20 days prior to the scheduled hearing date, or if two or more hearings are scheduled, 10 days prior to the first hearing, notice shall be sent by mail to: a. The applicant and all owners or contract purchasers of record of the property which is the subject of the application; b. All property owners of record within 250 feet of the property for the following types of applications: ' t (i) Subdivisions; (ii) Sign Code Exceptions; (iii) Administrative Sign Variances; (iv) Sensitive Lands Permits (100-year floodplain); (v) Conditional Use Permits; and (vi) Planned Developments; Revised 07/27/93 Page 58 ' EXHIBIT 2 Page 15 of - q$ Pages (vii) Comprehensive Plan Amendments; (viii) Zone Changes; (ix) Zone Ordinance Amendments; C. Any affected governmental agency which has entered into an intergovernmental agreement with the City which includes provision for such notice, d. The individual recognized by the affected CIT as the contact person; ' e. Any person who requests, in writing, and pays a fee established by the Council; and f. The appellant and all parties to an appeal or petition for ' review; and 2. Notice of a hearing on a proposed zone change for a mobile home park shall be given to tenants of that mobile home park.at least 20 days ' but no more than 40 days prior to the hearing; and 3. The Director shall cause an affidavit of mailing of notice to be ' filed and made a part of the administrative record. B. At least 10 days prior to the hearing, notice shall be given in a newspaper of general circulation in the City. An affidavit of publication ' shall be made part of the administrative record. (Ord. 93-19; 90-41; Ord. 90-24; Ord. 89-06; Ord. 83-52) 18.32.140 Contents of the Notice for Public Hearings : A. Notice given to persons entitled to mailed or published notice pursuant to Section 18.32.130 shall include the following information: ' 1. The number and title of the file containing the application and the address and phone number of the Director's office where additional information can be obtained; t 2. A description of the subject property, reasonably calculated to give notice as to its actual location which shall include, but not be limited to, the metes and bounds description or the tax map designations of the County assessor's office; 3. Except for notice published in the newspaper, a map showing the location of the property; 4. The nature of the application in sufficient detail to apprise persons entitled to notice of the application's proposal; and 5. The time, place and date of the public hearing, a statement that both public oral and written testimony is invited,.and a statement that the hearing will be held under this chapter and any rules of ' procedure adopted by the Council and available at City Hall. B. When the proceeding is an initial evidentiary hearing before the Hearings Officer, the Planning Commission, or the.City Council the following information shall be included in the mailed notice, in addition to the information required pursuant to Subsection A, above: Revised 07/27/93 Page 59 ' EXHIBIT Page I to of 38 Paaes ' 1. A list of applicable criteria from ordinance and plan; 2. A statement that failure to raise an issue in the hearing, in person or by letter, or failure to provide sufficient specific detail to give the decision maker or hearing body an opportunity to respond to the issue, precludes appeal to the Land Use Board of Appeals on that issue; 3. A statement that all' documents in the file are available for ' inspection at no cost, or copies at a reasonable cost; 4. A statement that a copy of the staff report will be available for inspection at no cost, or copies at reasonable cost, at least 7 days ' prior to the hearing. (Ord. 90-41; Ord. 89-06; Ord. 83-52) w ~ } Revised 1/17/91 Page 59-1 EXHIBIT 2 ' Page C_ of _Pages 18.32.150 Failure to Receive Notice: Computations_ A. The failure of a property owner to receive notice shall not invalidate the ' action provided a good faith attempt was made to notify all persons entitled to notice. B. Personal notice is deemed given when the notice is deposited with the t United States Postal Service, and published notice is deemed given on the date it is published. C. The records of the Washington County assessor's office shall be the official records used for giving notice required by the ordinances codified in this title, and a person's name and address which is not on file at the time the notice mailing list is initially prepared is not a person entitled to notice under Sections 18.32.120 and 18.32.130. ' D. In computing the length of time that notice is given, the first date notice is given shall be excluded and the day of the hearing or the date on which the appeal period or review period expires shall be included unless the last day falls on any legal holiday or on Saturday, in which case, the last day shall be the next business day. (Ord. 89-06; Ord. 83- 52) ' 18.32.1 60 Hearings Procedure A. Unless otherwise provided by the rules of procedure adopted by the Council, the approval authority shall have the authority to conduct a public hearing, and: 1. Determine who qualifies as a party; 2. Regulate the course, sequence and decorum of the hearing; 3. Dispose of procedural requirements or similar matters; 1 4. Rule on offers of proof and relevancy of evidence and testimony; ' 5. Impose reasonable limitations on the number of witnesses heard and set reasonable time limits for oral presentation and rebuttal testimony; ' 6. Take such other action appropriate for ponduct commensurate with the nature of the hearing; and ' 7. Approve or deny applications or approve with conditions pursuant to Section 18.32.250. B. Unless otherwise provided in the rules of procedure adopted by the Council, the approval authority shall conduct the hearing as follows: t ' ' Revised 1/17/91 Page 60 EXHIBIT 7- Page 12 of PLPages t 1. Announce the nature and purpose of the hearing and summarize the rules of conducting the hearing, and if the proceeding is an initial evidentiary hearing before the Hearings Officer, the Planning Commission, or the city council, make a statement that: a. Lists the applicable substantive criteria; ' b. States that testimony and evidence must be directed toward the criteria described in paragraph (a) of this subsection, or to the other criteria in the Comprehensive Code or the Code which ' the person believes apply to the decision; C. States that failure to raise an issue with sufficient specificity to afford the decision-maker and the parties an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue. ' 2. Recognize parties; 3. Request the Director to present the staff. report, to explain any graphic or pictorial displays which are a part of the report, ' summarize the findings, recommendations and conditions, if any, and to provide such other information as may be requested by the approval authority; ' 4. Allow the applicant or a representative of the applicant to be heard; t 5. Allow parties or witnesses in favor of the applicant's proposal to be heard; 6. Allow parties or witnesses in opposition to the applicant's proposal to be heard; 7. Upon failure of any party to appear, the approval authority shall take into consideration written material submitted by such party; 8. Allow the parties in favor of the proposal -to offer rebuttal evidence and testimony limited to rebuttal of points raised. New testimony will not be heard; 9. Conclude the hearing by announcing offcially the public hearing is closed; and ' 10. Make a decision pursuant to Section 18.32.250 or take the matter under advisement pursuant to Section 18.32.180. ' C. Unless otherwise provided in the rules of procedures adopted by the council, the following rules shall apply to the general conduct of the hearing: ' 1. The approval authority may ask questions at any time before the close of the hearing, and the answers shall be limited to the substance of the question; ' 2. Parties or the Director must receive approval from the approving authority to submit questions directly to other parties or witnesses or the Director; Revised 1/17/91 Page 61 I EXHIBIT 2- Page _V~__ of Pages ' 3. A reasonable amount of time shall be given to persons to respond to questions; ' 4. No person shall testify without first receiving recognition from the j approval authority and stating his full name and address; 1 1 1 t Revised 1/1/7/91 Page 61-1 EXHIBIT 2 ' Page 2JD of ?Pages ' S. The approval authority may require that testimony be under oath or affirmation; 6. Audience demonstrations such as applause, cheering and display of signs, or other conduct disruptive of the hearing shall not be permitted. Any such conduct may be cause for immediate suspension of the hearing; and 7. No person shall be disorderly, abusive, or disruptive of the orderly conduct of the hearing. (Ord. 90-41; Ord. 89-06; Ord. 83-52) 18.32.165 Record May Remain Open; Admission of New Evidence A. Unless there is a continuance, the record shall remain open for at least ' 7 days at the request of any participant in the initial evidentiary hearing before the Hearings officer, the Planning Commission, or the city council, if the request is made prior to the conclusion of the hearing. B. When the record is left open to admit new evidence, testimony, or criteria for decision-making, any person may raise new issues which relate to that new material. (Ord. 90-41) ' 18.32.170 Ex Parte Communications with Approval Authority A. Members of the approval authority shall not: ' 1. Communicate, directly or indirectly, with any party or representative of a party in connection with any issue involved ' except upon giving notice and opportunity for all parties to participate; nor 2. Take notice of any communication, report or other materials outside the record prepared by the proponents or opponents in connection with the particular case unless the parties are afforded an opportunity to contest the material so noticed. B. No decision or action of the commission or Council shall be invalid due to an ex parte contact or bias resulting from an ex parte contact with a member of the decision making body, if the member of the decision making body receiving the contact: ' 1. Places on the record the substance of.any written or oral ex parte communications concerning the decision or action; and ' 2. Makes a public announcement of the content of the communication and of the parties' right to rebut the substance of the communication made at the first hearing following the communication where action ' will be considered or taken on the subject to which the communication related. C. Members of the Commission shall be governed by the provisions of Oregon ' Revised Statute 227.035 and the provisions of this section. D. This section shall not apply to Director decisions made under subsection ' 18.32.090.A. E. A communication between the City staff and the Commission or Hearings officer or Council shall not be considered an ex parte contact. ' F. Subsection (B) of this section does not apply to an ex parte contact with a Hearings officer. (ord. 90-41; Ord. 89-06; Ord. 83-52) Revised 1/71/91 Page 62 ' EXHIBIT 2 Page ?-I of S Pages ' 18.32.180 Continuation of the Hearing A. An approval authority may continue the hearing from time to time to gather additional evidence, to consider the application fully or to give notice ' to additional persons. B. Unless otherwise provided by the approval authority, no additional notice need be given of the continued hearing if the matter is continued to a date, time, and place certain. (Ord. 89-06; Ord. 83-52) ' 18.32.190 Subpoena or Deposition of Witnesses A. Any party to an appeal or petition for review who wishes to subpoena or depose witnesses may do so by application to the Director not less than ' seven days prior to the hearing and a showing that the witness resides iri Oregon, is unable or unwilling to appear and the testimony is material and relevant. ' B. Upon approval by the Director, application for subpoenas or depositions shall be made after proper completion and payment of those fees applicable to civil cases, to the Washington County circuit court. (Ord. 89-06; Ord. ' 83-52) 18.32.200 Evidence ' A. All evidence offered and not objected to may be received unless excluded by the approval authority on its own motion. B._ Evidence received at any hearing shall be of a quality that reasonable ' persons rely upon in the conducting of their everyday affairs. C. No person shall present irrelevant, immaterial, or unduly repetitious ' testimony or evidence. D. Evidence shall be received and notice may be taken of those facts in a manner similar to that provided for in contested cases before state administrative agencies pursuant to Oregon Revised Statute 183.450, except as otherwise provided for in this title. E. Formal rules of evidence, as used in courts of law, shall not apply. ' (Ord. 89-06; Ord. 83-52) t 18.32.210 Judicial Notice A. The approval authority may take notice of the following: 1. All facts which are judicially noticeable. Such noticed facts shall be stated and made part of the record; Revised 1/71/91 Page 63 ' EXHIBIT '3-_ Page 11- of Pages ' 2. The statewide planning goals adopted pursuant to Oregon Revised Statutes Chapter 197; and ' 3. The comprehensive plan and other officially adopted plans, implementing ordinances, rules and regulations of the city of Tigard, and the comprehensive plans and implementing ordinances of other planning authorities within the Metropolitan Service District ' boundary. B. Matters judicially noticed need not be established by evidence and may be ' considered by the approval authority in the determination of the application. (Ord. 89-06; Ord. 83-52) 18.32.220 Participation in the Decision: Voting A. In addition to the provision of Oregon Revised Statute 227.035 which applies to commission members or Oregon Revised Statutes Chapter 244 which ' applies to all members of an approval authority, each member of the approval authority shall be impartial. Any member having any substantial past or present involvement with the applicant, other interested persons, the property or surrounding property, or having a financial interest in ' the outcome of the proceeding, or having any prehearing contacts, shall state for the record the nature of their involvement or contacts, and shall either: ' 1. State that they are not prejudiced by the involvement or contacts and will participate and vote on the matter; or ' 2. State that they are prejudiced by the involvement or contact and will withdraw from participation in the matter. B. An affirmative vote by a majority of the qualified voting members of the approval authority who are present is required to approve, approve with conditions, or deny an application or to amend, modify, or reverse a decision on appeal or review. ' C. Notwithstanding Subsections A and B of this section, no member of an approval authority having a financial interest in the outcome of an application shall take part in proceedings on that application; provided, ' however, with respect to the Council only, a member may vote upon a finding of necessity which shall be placed on the record by the presiding officer. t D. Only those qualified members who have reviewed the entire record shall vote. E. In the event of a tie, the decision which is the subject of appeal or ' review shall stand. (Ord. 89-06; Ord. 83-52) Revised 1/71/91 Page 64 EXHIBIT 2 Page 16-- of 3~3 Pages 18.32.230 Record of Proceeding for Public Hearings A. A verbatim record of the proceeding shall be made by stenographic or mechanical means, and: 1. It shall not be ~ necessary to transcribe testimony except as provided for in subsection 18.32.330.A; and ' 2. The minutes or transcript of testimony, or other evidence of the proceedings, shall be part of the record. .11 B. All exhibits received shall be marked so as to provide identification upon review. ' C. The official record shall include: 1. All materials, pleadings, memoranda, stipulations and motions submitted by any party to the proceeding and recorded or considered by the approval authority as evidence; 2. All materials submitted by the Director to the approval authority with respect to the application including in the case of an appeal taken pursuant to Subsection 18.32.290.A the record of the Director's decision as provided by Section 18.32.110; 3. The transcript of the hearing, if requested by the Council or a party, or the minutes of the hearing, or other evidence of the proceedings before the approval authority; ' 4. The written findings, conclusions, decision and, if any, conditions of approval of the approval authority; 5. Argument by the parties or their legal representatives permitted pursuant to Section 18.32.320 at the time of review before the Council; ' 6. All correspondence relating to the application; and 7. A copy of the notice which was given as provided by Section 1.8.32.130, accompanying affidavits and list of persons who were sent mailed notice. (Ord. 89-06; Ord. 83-52) s d Revised 1/71/91 Page 65 ' EXHIBIT Z Pa e -144- of Pages ' 18.32.250 The Decision Process of the Approval Authority A. The decision shall be based on: ' 1. Proof by the applicant that the application fully complies with: `.1 ' a. The City of Tigard comprehensive plan; and b. The relevant approval standard found in the applicable chapter(s) of this title or other applicable implementing ' ordinances; 2. The standards and criteria that were applicable at the time the application was determined to be complete at such time as the City's ' plan and applicable ordinances are acknowledged. B. Consideration may also be given to: ' 1. Proof of a change in the neighborhood or community or a mistake in the comprehensive plan or zoning map as it relates to the property which is the subject of the development application; and t 2. Factual oral testimony or written statements from the parties, other persons and other governmental agencies relevant to the existing conditions, other applicable standards and criteria, possible ' negative or positive attributes of the proposal or factors in Subsections A or B.1 of this section. ' C. In all cases, the decision shall include a statement in a form addressing the requirements of Subsection 18.32.060.A.3.b which refers to the Director's staff report. t 1 1 Revised 1/71/91 Page 66 ' EXHIBIT '7- Page 2-9- of 5P Pages D. The approval authority may: 1. Adopt findings and conclusions contained in the staff report; ' 2. Adopt findings and conclusions of a lower approval authority; 3. Adopt its own findings and conclusions; 1 4. Adopt findings and conclusions submitted by any party provided all parties have had an opportunity to review the findings and comment ' on the same; or 5. Adopt findings and conclusions from another source, either with or without modification, having made a tentative decision, and having ' directed staff to prepare findings for review and to provide an opportunity for all parties to comment on the same. E. The decision may be for denial, approval, or approval with conditions, ' pursuant to subsection 2 of this section. 1. Conditions may be imposed where such conditions are necessary to: ' a. Carry out applicable provisions of the Tigard comprehensive plan; ' b. Carry out the applicable implementing ordinances; and c. Ensure that adequate public services are provided to the development or to ensure that other required improvements are ' made; 2. Conditions may include, but are not limited to; a. Minimum lot sizes; b. Larger setbacks; ' c. Preservation of significant natural features; and d. Dedication of easements; ' 3. Conditions of approval shall be fulfilled within the time limit set forth in the decision or, if no time limit is set forth, within one year. Failure to fulfill any condition of approval within the time ' limitations provided may be grounds for revocation of approval, after notice and an opportunity to be heard as an administrative action; ' 4. Changes, alterations or amendments to the substance of the conditions of approval shall be processed as a new administrative action; Revised 1/71/91 Page 67 ' EXHIBIT 2 Page VO of 3a Pages ' 5. Prior to the commencement of development, i.e. the issuance of any permits or the taking of any action under the approved development application, the owner and any contract purchasers of the property which is the subject of the approved application, may be required to sign and deliver to the Director their acknowledgment and consent to such conditions; 1 6. The conditional approval may require the owner of the property to sign within a time certain or, if no time is designated, within a reasonable time, a contract with the City for dnforcement of the ' conditions and: a. The Council shall have the authority to execute such contracts on behalf of the City; i b. If a contract is required by a conditional approval, no building permit shall be issued for the use covered by the application until the executed contract is recorded in a real ' property record of the applicable County and filed in the County records; and c. Such contracts shall be enforceable against the signing ' parties, their heirs, successors and assigns by the City by appropriate action in law or suit in equity for the benefit of public health, safety, and welfare; and ' 7. A bond in a form acceptable to the Director or, upon appeal or review by the appropriate approval authority, a cash deposit from the property owners or contract purchasers in such an amount as will ensure compliance with the conditions imposed pursuant to the Section, may be required. Such bond or deposit shall be posted prior to the issuance of a building permit for the use covered by the application. ' F. The final decision on the application may grant less than all of the parcel which is the subject of the application. (Ord. 90-41; Ord. 89-06; ' Ord. 83-52) 18.32.260 The Form of the Final Decision ' A. The final decision shall be a decision which is in writing and which has been: t 1. Signed by the Director in the case of a final decision by the Director, and filed as a final decision within 10 calendar days unless extended pursuant to Subsection 18.32.300; 2. Formally adopted and signed by the chairperson of the approving authority other than the Director- and filed with the Director within 10 calendar days of the formal adoption of the decision; or r ' Revised 1/71/91 Page 68 ' EXHIBIT 2 Page ~ of -~S-$_Pages ' 3. Formally adopted by the Council, and signed by the Mayor and filed with the Director and the City Recorder within 10 calendar days of the formal adoption of the decision. B. The final decision shall be filed in the records of the Director within 10 calendar days after the decision is signed, and notice thereof shall be mailed to the applicant and all parties to the action, and shall be available to members of the Council. C. Notice of a final decision shall contain: 1. A statement that all required notices under Section 18.32.130 have been met; ' 2. A statement of where the adopted findings of fact, decision and statement of conditions can be obtained; ' 3. The date the final decision was filed; and 4. A statement of whether a party to the proceeding may seek review of the decision, as appropriate, to wit:..." ' a. In the case of a final decision by the Council, the statement shall explain that this decision is final and how review may be heard by a higher authority; or b. In the case of a final decision by the Hearings Officer or Commission, the statement shall explain briefly how a review ' can be- taken to the Council pursuant to Subsection 18.32.310.B, the deadlines, and where information can be obtained. (Ord. 90-41; Ord. 89-06; Ord. 84-69; Ord. 83-52) 18.32.270 Notice of Final Decision A. Notice of the final decision shall be mailed to the applicant and to all ' the parties to the decision, and shall be made available to the members of the Council. -(Ord. 89-06; Ord. 83-52) 18.32.275 Amended Decision Process A. The Director may issue an amended decision after the notice of final decision has been issued and prior to the end of the 10-day appeal period. B. A request for an amended decision shall be in writing, accompanied with the appropriate fee and filed with the Director not more than eight days after the notice of final decision has been filed. C. A request for an amended decision may be filed by: Revised 07/27/93 Page 69 EXHIBIT ' Page ~ of M_ Pages 1. The City Council; 2. The Commission; 3. An employee of the City's planning staff; i 4. Any party entitled to notice of the original decision; or 5. Any party who submitted comments in writing on the original decision. D. The amended decision process shall be limited to one time for each original application. E. The Director shall make the determination as to issuance of an amended ' decision based on findings that one or more of the following conditions exist: 1. An error or omission was made on the original notice of final decision; ' 2. The original decision was based on incorrect information; and 3. New information becomes available during the appeal period which was not available when the decision was made which alters the facts or conditions in the original decision. F. An amended decision shall be processed in accordance with Section 18.32.120 of this title. (Ord. 93-19; 89-06; Ord. 84-61; Ord. 84-31) 18.32.280 Denial of the Application: Resubmittal A. An application which has been denied or an application which was denied and which on appeal or review has not been reversed by a higher authority, including the Land Use Board of Appeals, the Land Conservation and Development Commission or the courts, may not be resubmitted for the same or a substantially similar proposal or for the same or substantially similar action for a period of at least 12 months from the date the final City action is made denying the application unless there is a substantial ' change in the facts or a change in City policy which would change the outcome. (Ord. 89-06; Ord. 83-52) t 18.32.290 Standing to Appeal or for a Petition for Review 1 A. In the case 'of a decision by the Director, any person entitled to notice of the decision under Section 18.32.120 or any person who is adversely affected or aggrieved by the decision, may file a notice of appeal as provided by Section 18.32.340. 1 ~J Revised 07/27/93 Page 70 ' EXHIBIT Page Q of -Se -Pages ' B. In the case of a decision by the Hearings officer or the Commission, except for a decision on an appeal of the Director's decision, any person shall be considered a party to a matter, thus having standing to seek review, provided: 1. The person appeared before the Commission or Hearings Officer orally i or in writing and: ' a. The person was entitled as of right to notice and hearing prior to the decision to be reviewed; or., b. The person is aggrieved or has interests adversely affected by the decision. (Ord. 89-06; Ord. 83-52 ' 18.32.300 Computation of Appeal Period and Effective Date of the Decision A. In computing the length of the appeal period and the effective date for a Director's decision, the day the notice is published in the newspaper shall be excluded and the last day for filing the appeal, and the effective date, the tenth day, shall be included unless the last day falls on a legal holiday for the City or on a Saturday, in which case, the last day shall be the next business day. The Director may extend the appeal ' period and the effective date to the day following a Council meeting when the computed appeal period would not otherwise provide an opportunity for interested parties to appear before council regarding the decision. The appeal period thus computed shall not be greater than 20 days. Notice published in the newspaper shall be in accordance with Subsection 18.32.120.A.3. ' B. In computing the length of the appeal period and effective date, the day that notice of the decision is mailed shall be excluded and the last day for filing the petition or review shall be included unless the last day falls on a legal holiday for the City or on a Saturday, in which case, the last day shall be the next business day. C. The Director may grant an extension of the appeal period and effective date on a Director's decision for a reasonable time only if requested by the applicant and in the condition where no appeal has been filed to that date, except as described in (A), above. (Ord. 90-41; Ord. 89-06; Ord. 84-69; Ord. 83-52) ' 18.32.310 Determination of Appropriate Reviewing Body s A. All appeals of decisions or interpretations made by the Director may be ' appealed to the Planning commission or Hearings officer pursuant to Subsection 18.32.090, except: 1. The Council may, on its own motion, seek to hear the matter by voice vote prior to the effective date of the notice of the decision. Revised 1/71/91- Page 71 EXHIBIT Z ' Page -3-0 of 55 _Pages ' B. Any decision made by any other approval authority under Subsections 18.32.090.E or C may be reviewed by the Council by: ' 1. The filing of notice of review s provided by Section 18.32.340 by any party to the ecisi 0 p.m. on the effective date of the notice of decision; ' 2. The Council or Commission, on its own motion, seeking review by voice vote prior to the effective date of the notice of decision; or 3. Referral of a matter under subsection 18.32.090.D by the initial hearings body to the council, upon closure of the hearing, when the case presents a policy issue which requires Council deliberation and determination, in which case the Council shall decide the ' application. ' C. Failure to file an appeal or petition for review shall be deemed a failure to exhaust administrative remedies. It is the purpose of this section to ' provide the parties every remedy possible. The filing of an appeal or petition for review is a condition precedent to litigation. (Ord. 90-41; Ord. 89-06; Ord. 86-36; Ord. 84-29; Ord. 83-52) ' 18 32 320 Type of Appeal or Review Hearing: Limitations of Review A. The appeal of a decision made by the Director under subsection 18.32.090.A and Section 18.32.110 shall be confined to the prior record and conducted as if brought under Subsections 18.32.090.E or C. B. The review of a decision by the commission or Hearings Officer by the ' Council shall be: 1. Confined to the record of the proceedings unless Council determines the admission of additional evidence is appropriate; 2. Limited to the grounds relied upon in the notice of review as provided in Subsection 18.32.340.A, and conducted in accordance with ' the provisions of Sections 18.32.160 through 18.32.260 and Section 18.32.310; 3. The subject of written and oral argument. Such written argument ' shall be submitted not less than five days prior to Council consideration; and t 4. Reviews on the record by Council of Hearings officer or commission ' decisions shall be completed within 40 days of when the notice of review is filed. (Ord. 90-41; Ord. 89-06; Ord. 84-69; Ord. 83-52) 1 J ' Revised 1/71/91 Page 72 ' EXHIBIT '2, Page ~31 of ~_PaaeS ' 18.32.330 Transcripts ' A. If a transcript is requested by any party, the City shall provide each Council member, the applicant and the neighborhood planning organization (if requested), a copy of the complete transcript of the hearing and a copy ofthe minutes. B. The appellant or any party who is the first to request 'a transcript shall be responsible to satisfy all costs incurred for prebaration of the ' transcript at a rate of actual costs up to $500 and one-half costs for any amount incurred over $500. Payment shall be made in full at least five days prior to the hearing. C. Any party other than the appellant or the first party to request a transcript shall be charged the actual copy costs. (Ord. 90-41; Ord. 89- t 06; Ord. 84-69; Ord. 84-09; Ord. 83-52) ' 18.32.340 Notice of Appeal or Petition for Review A. The notice of appeal or petition for review shall contain: ' 1. A reference to the application sought to be appealed or reviewed; 2. A statement as to how the petitioner qualifies as a party; ' 3. The specific grounds for the appeal or review; and ' 4. The date of the filing of the final decision on the action or, in the case of a decision by the Director, the date the decision was filed and the date notice of the final or proposed decision was given. B. The appeal or review application shall be accompanied by the required fee except as allowed under Section 18.32.345. (Ord. 89-06; Ord. 85-45; Ord. 83-52) t 1 ' Revised 07127193 Page 73 EXNIBIT 'L Page ~32_- of g Pages 18.32.345 Fee Waiver for Appeals A. Council may, on its own motion and by voice vote, waive the appeal fee for any party, when appropriate. (Ord. 93-19; 90-41; Ord. 89-06; Ord. 85-45) ..18.32.350 Persons Entitled to Notice on Appeal or Review: Type of Notice ' A. Upon appeal or review, notice shall be given to parties. entitled to notice under Sections 18.32.130 and 18.32.290. (Ord. 89-06; Ord. 84-71; Ord. 84-61; Ord. 83-52) ' 18.32.360 Contents of Notice on Appeal or Review A. Notice shall include those matters provided by Section 18.32.140. (Ord. 89-06; Ord. 83-52) 18.32.370 Action on Appeal or Review: Time Limit and Authority to Change the Decision ' A. The approval authority shall affirm, reverse, or modify the decision which is the subject of the appeal; however, the decision shall be made in accordance with the provisions of Section 18.32.250; or B. Upon the written consent of all parties to extend the 120-day limit, the approval authority may remand the matter if it is satisfied that testimony ' or other evidence could not have been presented or was not available at the time of the hearing. In deciding to remand the matter, the approval authority shall consider and make findings and conclusions regarding: 1. The prejudice to parties; 2. The convenience or availability of evidence at the time of the initial hearing; ' 3. The surprise to opposing parties; 4. The date notice was given to other parties as to an attempt to admit; or 5. The competency, relevancy and materiality of the proposed testimony ' or other evidence. (Ord. 89-06; Ord. 84-61; Ord. 83-52) t Revised 07/27/93 Page 74 /27/93 EXHIBIT 2-- Page -n- of --~;--Pages 18.32.380 Final Action of the Approval Authority; Effective Date A. Action by the approval authority on appeal or review shall be known as a ' final order which shall be effective on the day of mailing notice of the final order. B.-.__. Within 10 days of the filing of the final order of Council, the Director ' shall give notice of the final order to all parties to the proceeding, informing them of the date of filing, the decision 'rendered, and where a copy may be found. (Ord. 89-06; Ord. 84-69; ord. 84-61; ord. 83-52) ' 18.32.390 Revocation of Approvals A. The hearings authority may, after a hearing conducted pursuant to this ' chapter, modify or revoke any approval granted pursuant to this chapter for any of the following reasons: 1. A material misrepresentation or mistake of fact made by the ' applicant in the application or in testimony and evidence submitted, whether such misrepresentation be intentional or unintentional; ' 2. A failure to comply with the terms and conditions of approval; 3. A failure to use the premises in accordance with the terms of the approval; or 4. A material misrepresentation or mistake of fact or policy by the City in the written or oral report regarding the matter whether such misrepresentation be intentional or unintentional. ' B. In the case of a decision made by the Director, the hearing on whether to modify or revoke an approval shall be held by the Commission. C. A petition for re ay be filed in the same manner as provided by Sub .32.310.B. (Ord. 89-06; Ord. 83-52) t Revised 1/71/91 Page 75 ' EXHIBIT Page 31- of _Paoes Chapter 18.40 ADMINISTRATION Sections: 18.40.010 Classification of Zones 18.40.020 Zoning District Map 18.40.030 Determination of Zoning Boundaries 18.40.040 Residential Density Transition ' 18.40.010 Classification of Zones A. All areas within the corporate limits of the City of Tigard are divided ' into zoning districts. The use of each tract and ownership of land within the corporate limits is limited to those uses permitted by the zoning classification applicable to each such tract as designated in the ' following table. The zoning districts within the City of Tigard are hereby classified and designated as follows: Dwelling Minimum ' Units Per Lot Size in Zoning District Map Symbol Net Acre Square Feet Low Density Single-family residential-detached R-1 1.2 30,000 Single-family residential detached R-2 1.7 20,000 Single-family residential detached R-3.5 3.5 10,000 ' Single-family residential detached R-4.5 4.5 7,500 Medium Density Single-family residential-- detached/attached R-7 7/12 5,000/3,050 Multiple-family residential R-12 12 3,050 Medium High Density ' Multiple-family residential R-25 25 1,480 High Density ' Multiple-family residential R-40 40+ none Commercial Neighborhood commercial C-N 5,000 ' Community commercial C-C 12 5,000 General commercial C-G none Professional administrative office C-P 6,000 Revised 03/17/93 Page 76 ' EXHIBIT y' Page 36- of I ~_Pages Dwelling Minimum Units Per Lot Size in Zoning District Map Symbol Net Acre Square Feet ' .Central Business District Central business district CBD none r Industrial Industrial park I-P none Light industrial I-L none Heavy industrial I-H none Overlay Zones ' Planned development PD ! Historic district HD Sensitive lands SL Established areas RE, CE, IE Developing areas RD, CD, ID (Ord. 92-34; Ord. 89-06; Ord.-84-46; Ord. 83-52) 18.40.020 Zoning District Map A. The boundaries of each of the foregoing districts listed in the table in Section 18.40.010 and the zoning classification and use of each tract in each of said zoning districts is prescribed to coincide with the identifying zone classifications shown on the map entitled "Tigard Zoning District Map," dated with the effective date of this title and signed by the Mayor and City Recorder and referred to as the 'zoning district map' and the map by this reference is made a part of this title. A certified print of the adopted zoning district map or map amendments shall be maintained in the office of the Planning Division as long as the code remains in effect. ' B. Each lot, tract, and parcel of land or portion thereof within the zone boundaries as designated and marked on the zoning map, is classified, zoned ' and limited to the uses as hereinafter specified and defined for the applicable zone classification. C. Amendments to the City zoning district map may be made in accordance with the provisions of Chapters 18.30 and 18.32. i 1. Copie's of all map amendments shall be dated with the effective date of ' the document adopting the map amendment and shall be maintained without change, together with the adopting documents, on file in the Planning Division; and 2. The Director shall maintain in the office and available for public inspection an up-to-date copy of the City zoning district map to be revised so that it accurately portrays changes of zone boundaries. Revised 03117193 Page 77 ' EXHIBIT ~ Page -1-L2 of ~SXPages ' D. The Director shall maintain on a set of zoning district maps, an index indicating the case number, type of action and location of actions taken under this title. (Ord. 89-06; Ord. 83-52) 18.40.030 Determination of Zoning Boundaries ' A. Where due to the scale, lack of scale, lack of detail or illegibility of the City zoning district map or* due to any other reason, there is uncertainty, contradiction or conflict as to the ' intended location of district boundary lines, the boundary lines shall be determined by the Director in accordance with the following standards: ' 1. Boundaries indicated as approximately following the centerlines ` of streets, highways, railroad tracks or alleys shall be construed to follow such centerlines; ' 2. Boundaries indicated as approximately following platted lot lines shall be construed as following such lot lines; 3. Boundaries indicated as approximately following City limits shall be construed as following City limits; ' 4. Boundaries indicated as approximately following river, stream and/or drainage channels shall be construed as following river, ' stream and/or drainage channels; and 5. Whenever any street is lawfully vacated, and when the lands within the boundaries thereof attach to and become a part of lands adjoining such street, the lands formerly within the vacated street shall automatically be subject to the same zoning district designation that is applicable to lands to ' which the street attaches. (Ord. 89-06; Ord. 83-52) 18.40.040 Residential'Density Transition A. Regardless of the allowed housing densitie* stated in Chapters 18.44. through 18.58, or in Chapters 18.80, 18.92 or 18.94, any property t within 100 feet of an established area shall not be developed at a residential housing density greater than 125 percent of the allowed density in the adjacent established area(s). For purposes of this limitation only, the allowed density is as specified in the ' comprehensive plan land use designation, not as in the zoning district. For example, the property within 100 feet of an established low density residential area (one to five dwellings per ' acre) shall not be developed at residential densities greater than 6.25 dwellings per acre (6.25 = 5 x 1.25). ' B. Subsection A of this section shall not apply with regard to established areas that are separated from the proposed housing development by a major collector road or by an arterial road. Revised 02/27/89 Page 78 EXHIBIT Z Page 37 of 39 Pages ' C. Subsection A of this section shall not apply where the actual density in the abutting established area exceeds the maximum density allowed under the land use plan map designation for the established area. The density transition still will not exceed 125 percent of the actual existing abutting established area density.* (Ord. 89-06; Ord. 83-52) t Revised 02/27/89 Page 79 EXHIBIT '2- Pa ,qff- of 5 6 Pages 10--13 for council positions three and four shall be subject to election in 1974. The candidate-receiving the highest number of votes for each of the council positions shall be deemed ' elected for :a four-year term. (Measure 53, November 2, 1982 elect:ion). ~ rte, Section 10. OTHER OFFICERS. Additional officers of ! n`s .•'r. . O the City shall be a municipal judge, a recorder, a finance officer, and such other officers as the council deems nec- essary. Each of these officers shall be appointed and may be removed by the mayor with the consent of the council. `:=4 The council may combine any two or more appointive city offices. The council may designate any appointive officers 1 to supervise any other appointive officer except the muni- cipal judge in the exercise of his judicial functions. # (Measure 52, November 5, 1985 election). ' Section 11. SALARIES. The compensation for the serv- ices of each city officer and employees shall be the amount fixed by the council. ' Section 12. QUALIFICATIONS OF OFFICERS. A qualified elector within the meaning of the State Constitution, who will have resided continuously for a period of twelve (12) months or more immediately preceding the election in an area which is within the corporate boundaries of the City as the 1 same shall exist as of a date one hundred twenty (120) cal- endar days immediately prior to the date of the election (inclusive of all territory previously effectively annexed to the City), shall be eligible for an elective office of ' the City. The Council shall be final judge of the qualifi- cations and election of its own members, subject, however, to review by a court of competent jurisdiction. ' Chapter IV COUNCIL ' Section 13. MEETINGS. The Council shall hold a regular meeting at least once each month in the City at a time and at a place which it designates. It shall adopt rules for government of its members and proceedings. The Mayor upon his own motion-may, or at the request of three members of the Council shall, by giving notice thereof to all members ' of the Council then in the City, call a special meeting of the Council. In the event of the physical absence of the Mayor from the City, the Council President shall be empowered to call special Council meetings in the same manner as the Mayor may call such meetings. Special meetings of the Council may also be held at anytime by the common consent of all members of the Council C6 (Tigard 8/15/86 EXHIBIT ' Paqe _1 _ of Pages ' 04126 13:03 1995 FROM: 503 684 7297 TO: 5032432944 PAGE: 4 04/26/95 13:55 $503 684 7297 CITY OF TIGARD -1,4 CITY ATTORNEY X1004/006 ' CITY OF TIGARD, OREGON RESOLUTION NO. 94- 35 ' A RESOLUTION ESTABLISHING POLICY OF THE CITY COUNCIL REGARDING COUNCIL, GROUNDRULES CONCERNING COMMUNICATION BETWEEN CITY COUNCIL MMMMZ.S, THE GENERAL PUBLIC, CITY ADMINISTRATOR AND CITY STAFF (SUPERSEDES RESOLUTION NO. 93-05) ' WBERBAS, it has been deemed desirable to the city council to establish policies in written form regarding communication groundrules in performing their duties as elected officials for the city of Tigard. NOW, TSEREFORE, BE IT RESOLVED by the Tigard City council that: Section 1: The City Council hereby adopts the Council ' Groundrules described in Exhibit °A" attached herato. PASSED: This oZ co ~ day of , 1994. 1 141 ' Ma City of Tigard ' ATTEST: C &t4,~U City Recorder - City of and 1 EXHIBIT 3 Page 2 of -Pages ' 04126 13:04 1995 FROM: 503 684 7297 TO: 5032432944 PAGE: 5 04/26/95 13:56 V503 684 7297 CITY OF TIGARD 444 CITY ATTORNEY tm005/006 Exhibit W Counal Groundruies Communications Between Counclors. City Admindstralor an_ d Staff ' Councilors are encouraged to maintain open communications with the city Administrator, both as a group and individu~Ily is one-on-one sessions. • Councilors are encouraged to direct inquiries through the City Administrator, giving as much information as possible to ensure a thorough response. • In the absence of the City Administrator, Councilors are encouraged to contact the. Department Head, realizing that the Department Head will discuss any such inquiries with the City Administrator. • Contacts below the Department Head are discouraged due to the possible disruption of work, ' confusion on priorities, and limited scope of response. • The agenda cycle calls for submittal of items 10 days in advance of a meeting. Add-ons are 3 to be m;~jrni~Pd, and handouts distributed .at the start of meetings,_ except Executive Sessions. r ~ • Staff will schedule items allowing time for staff research and the agenda cycle d deadlines. Do not assume Staff is guilty until proven innocent. r ' Surprises or "plops," should be avoided, especially if they appear intended to embarrass or discredit. Councilors and Staff should prepare in advance of public meetings and issues presented in packets. ' Council is supportive of role staff should play in offering professional recommendations- Staff is aware of Council's right to make final decisions. All recognize the need to respect the messenger Communications Among Counc ilgXs ' Add-on-Agenda items are not "plops," but should be brought up at the start of the meeting and generally considered only if continuing to a later agenda is not appropriate. • Councilors are encouraged to suggest agenda topics at the bench or to contact the City ' Administrator about scheduling an item into the Tentative Agenda. • Requests for legislative action of Council may be initiated by any individual Councilor during ' a Council meeting. The City Administrator will respond to the request consistent with resources and priorities, or refer to Council as a whole. • Try to avoid behavior which tends to embarrass or discredit, even if unintentional. Com 'cations with Community1General Public Councilors and General Public are reminded of the Agenda cycle and cut-off dates. ' Administrative staff is available to explain how public issues are handled and how citizen input may be accomplished. ' "Official" commuuic~ .on should come through City Hall and be provided by the Administrator. Direct submittals or inquiries to the Council or individual. Councilors should be referred to the Administrator, or Councilors may ask the Administrator to look into an ' issue. ' EXHIBIT 3 Page ° of QPages ' 04/26 13:04 1995 FROM: 503 684 7297 TO: 5032432944 PAGE: 6 04/26/95 13:56 '$503 684 7297 CITY OF TIGARD 444 CITY ATTORNEY 10006/006 ' Official "press releases" are encouraged, both to assure accurate reporting and to advise Council and Staff of the official position communicated to the press. Press releases are through the Mayor's Office. S' l ' Councilors are always Councilors in the eyes of the Administration, never simply private citizens. ' Information that "affects" the Council should go to Council. The City Administrator is, to decide on "grey areas," but too much information is preferable to too little. • Budget cuts mean policy decisions. Budgets will not be cut 'Piece meal" or "across the board," but rather should be made in service or program areas, giving Staff full opportunity to provide data clearly de fining impact ' - H Councilors are contacted regarding labor relations during labor negotiations or conflict resolution proceedings, then Councilors have no comment. • Councilors and the City Administrator agree to report and discuss any contact which might affect labor relations with the entire Council in Executive Session. woe+d~~vandK Council Groundn3les - Page 2 EXHIBIT ~ ' Page of CI Pages 04126 13:43 1995 FROM: 503 684 7297 TO: 5032432944 PAGE: 2 04/26/95 14:35 $503 684 7297 CITY OF TIGARD 444 CITY ATTORNEY 10002/004 ' r CITY OF TIGARD, OREGON RESOLUTION NO. 93_ - i " A RESOLUTION ESTABLISHING POLICY OF THE CITY COUNCIL REGARDING COUNCIL GROUNDRULB.S CONCERNING (A iICATION BETWEEN CITY COUNCIL IMMERS, THE ' GENERAL PUBLIC4 CITY MaNISTRATOR AND CITY STAFF (SUPERSEDES RESOLUTION NO. 89-01) i WHEREAS, it has been deemed desirable to the City Council to establish ' policies in written fc= regarding communication groundrU es in performing their duties as elected officials for the City of Tigard. NOW, , BE IT RESOLVED by the Tigard City Council that: Section 1: The City Council hereby adapts the Council Groundrales described in Exhibit "AR attached hereto. i PASSED: This da , 1993. I ' yar - y of Tigard ATTEST: V~ ' Y Recorder City of ' gard _ ' H:\LOGIN\CATHY\CCROLES 1 ' RESOLUTION NO. 93- page 1 EXHIBIT -a- Page ~ 0f ~1 Pages 04/26 13:43 1995 FROM: 503 684 7297 TO: 5032432944 PAGE: 3 ' 04/26/95 14:85 $508 684 7297 CITY OF TIGAn CITY ATTORNEY U003/004 ' Counafl Gr+oundnAw Solommiotions Between CQuna'lors. QU Administrator and Staff Councilors ire-encouraged to maintain open communications with the City Administrator, both as a group and individually in one-on-one sessions. • Councilors are encouraged to direct inquiries through the City Administrator, giving as much infonmti on as possible to ensure a thorough response. In the absence of the City Administrator, Councilors are encouraged to contact the Department Head, realizing that the Department Head will discuss any such inquiries with ' the City Administrator. • Contacts below the Department Head are discouraged due to the possible disruption of work, common on priorities, and limited scope of response. . • The agenda cycle calls for submnittal of items 10 days in advance of a meeting. Add-ons are to be minimized, and handouts distributed at the start of meetings, except Executive Sessions. ' Staff will schedule items allowing time for staff research and the agenda cycle deadlines. • Do peat assume Staff is guilty until proven innocent. Sbrprises or "Mops," should be avoided, especiaally if they appear intended to embarrass or ' discredit. Council= and Staff should prepare in advance of public meetings and issues prwwted in packets. Among CouncOors • Add-on Agenda items are not °Iplops," but should be brought up at the start of the meeting and generally considered only_ if continuing to a later agenda is not appropriate. • Cowmilom are encouraged to suggest agenda topics at the bench or to contact the City i Administrator about scheduling an item-into the Tentative Agenda. ' Requests for legislative action of Council may be initiated by any individual Councilor during a Council meetings The City Administrator will respond to the request consistent with resources and priorities, or refer to Council as a whole. ' Try to avoid behavior which tends to embarrass or discredit, even if unintentional. c ' Commanicati; ons with Community Weneral Publi • Councilors and General Public are reminded of the Agenda cycle and cut-off dates. Ad " e staff is available to explain how public issues are handled and how citizen ' input may be • "OffiCiar communication should come through City Hall and be provided by the Administrator. Direct submittals or inquiries to the Council or individual Councilors should ' be referred to the Administrator, or Councilors may ask the Administrator to look into an issue. • Official 'dress releases° are encouraged, both to assure acciiate reporting and to advise Council and Staff of the official position communicated to the press. Press releases are through the Mayor`s Office. 1 EXHIBIT ~5 Page ko of q Pages 04/26 13:44 1995 FROM: 503 684 7297 TO: 5032432944 PAGE: 4 CITY OF TIGARD 444 CITY ATTORNEY 19004/004 I 04/26/95 14:36 V503 684 7297 - • C.ounaors are. always Coaacclors i a the eyes of the Admnnistsafkw, never sunply pr!Wc ' citizens. Information that waffectsw the Cowel should go to Cauucl. The City Administrator is ;o decide on `grey areas,' but too match k&=nation is preferable to too little. • Budget cuts mean policy decisions. Budgets w.fll not be cut Opiece meaP or wacum the board," but ra*w should be made m service or program areas, giving Staff full opportunity to provide data clearly defining impact • H Caunc ilors am contacted regarding labor relations during labor negotiations or conflict resolution prooeedinA then Councilors have no comment. • Counoclois and the City Administrator agree to report and discuss any contact which might affect labor relations with the entire Couuc it is Executive Session. i i' I r - • r r r r r r r Council Groun&ules • Page 2 EXHIBIT ' Pa e Z of Pages C-;%26 13:03 1995 FROM: 503 684 7297 TO: 5032432944 PAGE: 2 ~f 04/28/95 13:55 %Y503 684 7297 CITY OF TIGARD 444 CITY ATTORNEY 10002/006 Workplan for setting agenda and producing items: Schedule for Agenda (see form attached - if ) preparer notes a ' public hearing is necessary, the preparer is responsible for notification to the newspaper, postings on property (if necessary) and mailings required. • Thurs. - PROPOSED PACKET MATERIAL READY: Items due to Pat by 5 p.m. for following Tuesday packet preparation (12 days prior to the Council meeting date). ' Friday - ADmxuics` 7.ATaR mmxw: Pat reviews packet material; changes are made, if needed. ' Monday - PACISTT ASSEMBLY/FINALIZATION: Final agenda draft is completed. Packet material is assembled. All exhibits are attached and in proper order. Tuesday - PRODUCTION" 9 a.m. - delivered to Office Service for production copy service 3 p.m. - packet review Packet preparation components: All agenda items must have a summary sheet unless it is a ' 'receive and file' or discussion item. Minimum number of extra exhibits needed: 18 If extra copies are desired, the corresponding number of ' exhibits will be needed. Prepares (noted on summary sheet) will receive a copy of the agenda item which will be sent out on packet preparation day. Extra copies of the packet item can be made at the time the packet is prepared (i.e., for applicant, interested party, ' etc.). These copies will be delivered to the preparer for distribution. ' workplsn t EXHIBIT 3 Pa e 3 of Noes 04126 13:03 1995 FIOM: 503 684 7297 TO: 5132432,944 PAGE: 3 04/26/95 13:55 '$503 684 7297 CITY OF TIGMW 444 CITY ATTORNEY 10003/006 ' SCHEDULE OF COUNCIL MEETING DATES January, 1994 - December, 1994 ' Packet Information Due Cguncl Meeting Date IQ Cloy Administration 12 June 30 i 19 July 7 ' 26 July 14 Augu 9 July 28 ' 16 August 4 23 August 11 ' Se mbar 13 September 1 20 September 8 27 September 15 ' October 11 September 29 18 October 6 25 October 13 ' November 8 October 27 15 November 3 22 November 10 December 13 December 1 20 December 8 27 December 15 h.\logln~o\ondrM.dts EXHIBIT 3 Page 9 of ~_Pages CERTIFICATE OF FILING ' I hereby certify that on April 27, 1995, I filed the original of this BRIEF OF RESPONDENT - CITY OF TIGARD, together with one ' true copy, to the Land Use Board of Appeals, 306 State Library ' Building, 250 Winter Street N.E., Salem, OR. 97310, by first-class mail. ' DATED this 27th day of April, 1995. T Pamela J. Be , 0 No. 80161 ' Of Attorneys for R spondent 2 PJb\ach\90024\genamm.cR t 1 CERTIFICATE OF SERVICE I hereby certify that on April 27, 1995, I served a true and ' correct copy of this BRIEF OF RESPONDENT - CITY OF TIGARD on ' Michael C. Robinson, Suite 2300, Standard Insurance Center, 900 SW 5th Ave., Portland, OR 97204-1268, Of attorneys for Intervenor- Respondent and Greg Lutje, 10260 SW Greenburg Road, Suite 400, , t Portland, OR 97223, Attorney for Petitioner, by first class mail. DATED this 27th day of April, 1995. ' Pamela J. Be , OS No. 80161 Of Attorneys for Respondent