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MIS2008-00005
Case Activity Listing • 4:11:26PM . ,GCE 4:11:26PM CL.. !' Case #: MIS2008-00005 Fi p. :'. °A: ..:, ', Assigned;-.',, ;-,Done: Updated :.;rr"� :Activ4 ?:< Descri•tion' "g' Date 1:. "Date 2 Date 3 .Hold x- Disp To ',By: Note§'• ,• ; MIS 1020 Application received 3/14/2008 None DONE ST 10/1/2008 Appeal of a Director's Interpretation PLL of Chapter 18.790. MIS1030 Case created 3/14/2008 None DONE ST 3/14/2008 ST MIS1040 Planner assigned 10/1/2008 None DONE GBP PLL 10/1/2008 • PLL MIS1000 CASE REVIEW 5/13/2008 None HRNG GBP PLL 10/1/2008 5/13/08 public hearing is scheduled MENU PLL before the City Council to consider the appeal. AT THE 5/13/08 PUBLIC . HEARING,THE COUNCIL CLOSED THE PUBLIC HEARING AND SCHEDULED 6/10/08 TO RECONVENE TO REVIEW AND DELIBERATE ON THIS ITEM. MIS1000 CASE REVIEW 6/10/2008 None HRNG GBP PLL 10/1/2008 6/10/08 public hearing is scheduled MENU PLL before the Council,continued from 5/13/08. MIS2020 Approved 6/10/2008 None APRV GBP PLL 10/1/2008 On 6/10/08 the Council reconvened PLL to consider this item and ultimately concluded that the clarity of interpretation of a Code that is I. could be construed as a'judge making law from the bench"and that it is vulnerable to a LUBA challenge. The Council pointed out that the Tigard Tree Code will be completely revised shortly following the Comprehensive Plan update and thatg that would be the proper place to address this matter. A unanimous vote of Coucil present was approved to uphold the appeal. Page 1 of 2 CaseActivity..rpt 10/1/2008 Case Activity Listing 4:11:27PM C,- "CCEL Case #: MIS2008-00005 Assigned Done, , Update& L Activity Description ',Date 1 b'ate :Date 3 Hold D'sp To By By rNotes • MIS2070 Case closed 10/1/2008 None CLSE PLL 10/1/2008 PLL S • Page 2 of 2 CaseActivity..rpt • • Agenda item-No .j g b, : d adr !ri i:4+,,• City of Tigard Meeting of J' ' Tigard Business- Meetiag— Minutes TI.JGAIO QTY.COON0J24 LOtATLICoNtitikOr Ktivit.V130-A0(LCR13;) CITYCENTERDEVELOPMENT AGENCY(CcDA) MEETt.N.QD.ATE/TIKE; June.1Q;200846:50 p.m. Study Session id.73Op. . .1Busi.iess Meeting MEETING LOCATIoN:: City:of Tigard.- Town Hall, 13125 SNIc/Hill.B1*.d.,Tigard, OR :97223: • STUDYSESSION City.Mana- get PEOSSer4iinbiniced„the EXeentiVe Session. • EXECUTIVE SESSION The Tigard.qty Council went go into'Executive:Session at 6:31 p m. under ORS . 192.660(2):dand (h)tip:discuss labor negotiations'and to cotisuk4iiii cOuriSel regaiding,pendinglitigafion. • BUSINESS MEETING ,• 11 :Vayot Dirksen called the City Council and Local Contract ItiVieviBoaititoordetat 738 pm. R011:(7411:. Name . . Present . Absent Mayor.Dirksen V Councilor:Sher,wood , , Councilor linehner Councilor'Ngilson Councilor Woodruff: .Pledge Allegianc.e • 1.4 Council Communications&liaison:Reports Ouncilorpuelmer4illgivealeport at the_ehd:of the agenda regardntban and Tool to oyes. 1.5. -011.to Council-and StafribrNon,Agenda.IternS: -None' 7:18:50.PM. 2. WIZEN COWANICATION alien Communication.-Sign:Up Sheet: No citizens.signedin tospeak. • 'FolloyFup to.Previaus Citizen Communication 7:3934.PM QtYMan- ager-PioSser.iiriOitedthatatthe last:atk.CounCil.busineSS meeting,Mt.j.C.Sherman appedieribefOte the City 'Council who was concerned about negotiations with the Matstitnotos who are oVtiets. of KEI Embroidery. Mr,Sherman is,a,neighborof the Matsurnotos and was conc.emedthat the,negoriltiOns,weremcit TIGARDICITYCOO TE .rNE NQL4CRB/MINU $-_ u 10, 2008 •di-yd.Tiiard, lj i25 SN1/ 1-43-.639,4174 www.tigard,or.gov- '1 Page4 of 25 • being:followed inia.professional manner:. After checking into this., alyMarilager Prosser advised that:the,Oty has been working with the Matsumotos' adult children, Aifin and Dana, •who have'been, handling the :negotiations: Staff followed.4 with A/lin and he indicated that things were stillproceeding:tatisfattorily to the :family. his hoped the issue:Will be.resolved soon 7:40:34 PM Mayor Dirksen reViewed-the consent agenda. CONSENT AGENDA: 3.1 Approve Oty Council Aftnuteslor MarCh18,2008 32 Receive and File: a. ContiCil.Calendar b. Tentative Agenda, c: Fifth.TuesdayMeeting Noteslot April 29,2008 3.3 ,Adopt.,Washington County Natural Hazards Mitigation Action: Plan and Tigard's! Natural Hazardtion Plan:Addendinri Receive Annual Solid Financial Report, 35 Appoint Three Ne*Members.:and OpePiltertiate,to the CtyCenter Advisory Commission(CCAQ: Resoltition No.08-26 A'RESOLUTION APPOINTING IYIARTHA WONG,IcEYINKPIPiEl ,AND PETER LOUW As 'VOTING MEMBERS TO THE ctrY 'CENTER ADVISORY COMMISSION; AND API?OINT .1INLI PAO AS AN ALTERNATE Ta THE 'CITY. :CENTER :ADVISORY . COMMISSION 3.6 Aiftlthiiit 51.1bl-tidal of a Grant AppliCatiOntOrinproye TiaffiC Signal Calitiollers and Coordination 4104:1-1lgh*dy 99W- scdüdonNo.08-27 A.RESOLUTION AUTHORIZING STAFF'TO.PREPARE AND SUBMIT'A Taw'GRANT APPLICATION WITH THE OREGON DEPARTMENT OF TRANSPORTATION REGION 1 FOR STATE FUNDING TO UPGRADE THE TRAFFIC SIGNAL,CONTRO1:1-.F.R.S ALONG HIGHVAY 99WINTHE CITY OF TIGARD 37 Local-Contract Review Board: :37..a AwarCl.a Contract forCraCk Sealing Services. 3J b Award a Contrattifof Mo:wingRight-ofMayAreas'Maiht-iiried by die Otybfliga.td 137.c Award an Entetprise License'Agreement for Iylicrosoft S,eryices 71422,1PM Motion by taiiiitki Wilson;seconded by CounCilor:Bueliner;th appnive the consent agenda. Thelnotion was approved by a unanimous'vote:of Council present: ,Mayof Darsen. Yes, :.C.Ountilor'Bueliner Yes Couneiloi4ilsOn Yes! TIGARD CITYCOIJNCILiLCRB/'MINUTES-JUNE.10;2008_ _ . ./MINM.11,00101.M.1.0•1110,111•W „ . - -• „ - • . ' Cliy of Tig4rd 13125 SW,Hall tlircL,Tigard,iOR 97n3 503-639-4171 .1 viw*.t.igard-oi.gtiv! 'Page 2'of 15 • , • 74230 P/v1 4. PUBLIC HEARING CPNSIDERA RESOLUTION CERTIFYING 114.-CITY PROVIDES, SERVICES; QUALIFYING FOR STATE SHARED REVENUES :a.. Mayor Dirlcsen opened the hearing: City Manager presented the staff report. Acopy is on file Iiiihe.,dt-yReOtder's Offite, c. Public-Testimony: .NOne d. Mayor Dirksen closed the poblitieating., 6.. City Cotiotilrotitideratioti: Motion byCounCilorThiehriet;seconded by 0:ititloot-wits04„t9,44optIze..5.0ptiook: RESOLUTION NO -A RESOLUTION CERTIFYING THAT THE.CITY OF TIGARD PROVIDES SERVICES QUALIFYING FOR:STATE SHAREDiUVENUES The motion was approved by a:unanimous vote of Gtyt...ouncilpreserit:. 'Mayor Dirksen. Yes -Councilor 13nelliner Yes Coundlor*Ion • YeS... J45:40 PM FUBLICHEARING.r:CONSIDER A-RESOLUTION DECLARING THE CITY'S ELECTION TO RECEIVE STATE SHARED REVENUES a. Mayor Dit-ltsen-opened the public hearing:. b. City Manager presented the staff report: A copy is on file in the City Recorder's office c. Public Testimony.: None mAyoebiiitsett:ciogd,t.he public hearing: e. Qtyincilcoisidemdon: .Mdtion by COUhtbt:Wilson;seconded by councilorBtielineritp,aclopt Resolution No 08-29. -RESOLUTION NO.08-29 -KREsoLunoN DEaARINQ-T1:1E'cITY'S ELEcnoN TO :RECEIVE STATE,REVENL1ES: The motion was approved by a unanimous VOte,Of c4:5141iil MayorDirksen Yes CouncilOr:Buehner Yes Councilor Wilson Yes 6. PUBLIC HEARING,- ADOPT CAPJTAL:INIPROVEMENT PROGRA4FOR2008:,2013 748:10 PM $44yDr.r)iiicsen opened the7pUbliC.:hearing. 'b. eityManager Prosserpresented the staff report and a PowerPoint presentation on this program . A. Copy is on file in the City Recorder's office. The OP is the City's attempt to identify all.of the projects to be undertaken to deal-with the capital inftittnie.Of the: ty. TIGARD CITY COUNCIL/LCRB/ MINUTES—JUNE 10, 2008 _ . Gtyqftigard I 13125 SI,V Tips-diOR 97223 I 503639-4171 I www.tigand-onsoy .1 Page 3 of 15 41 Qty Manager Prosser noted the Capital Itiiiiro■fr.ertiefitPiligiaiii.dbArridAt'nee-dt to be reorganized and requested OtyCOuncil4uthorization:for staff to do this at the time it considers.the adoption the Capital IMprovement Program. 7:57:28 inq Couneilor'Buehnerreferred.tosomequeStions she had regarding Items 95870;95560 and 95$30 and requested atyManagerPrOsser send het additional infotin:ation.. 7:57:45.PNI 'Mayor Dirltsentrotedthat Councilor Woodruff could not attend tonight's meetinand.fetefied:tO.a: question Councilor Woodruff had regarding making changes to the public works facility City Manager Prosser said this is in the 09-10 project LIST This project is fOrthe:relOcation'or.:acquisition:of a,-new facility for the public works department This is an unfunded project of about$4 niilhon dtyMariager- ProsSer.noted Councilor Woodruff's expressed,dohceritthit,lie:h4d not specifically heard piojett. aty.Managet.Pfosset,4aiii.it was placed in Capital Improyernent Program because it a . future need of the City The Public Works Department is-currently in two locations The plan with downtown redevelopment has been that the City make the land where the old public works yard is on Ash Avenue aV..A6blefor'.roilovOlivrooc--;-'0*,D4V49V1,111PIPY11144'1-1514-41 that to be, available for higher density housing.; If yef.,a;e.gOing to make-that.aleality,--we need to start,planningiot a single facility for'ourpublicwoiks operation_ A public works operation is not an appropriate use in the Downtown,ig.,heavy trucks,workshops,etc.. Having this project identified in the Capital IMptoven-ient Program allo.Ny5.staff.tpstart:cletqnxiiriii-g:wh4t altematiVes,are.available.. 8,61;o9fIvi Councilor Wilson commented on the Washington Square Regional',Center Trail Project said he Was a member of the Task F6rce for this project about seven years ago-and,,at that time,$200,000,000 of public improvements were needed in this regional Center. He said the Trail,ProjectiS the first project and was to see that something was getting started In addition,he thinks'prOgreSS:fdrthe Center has beenslow,,inpart,because the Otylia:s thosen to focus:on the downtown. so2:29-rm Public Testimony • John Ftewing,,7i IP-SW Lola Lane,Tigard OR said that a year ago when the 07-08 Capital. Improvement Program was under consideration he urged that the amount of money for sidewalks and bikeways be increased He believes it hadbeenincreased from$100,000 to$200,000,but because of the expense at Eininharn-Street;,thiS was removed entirely He said City Manager Prosser advised that this year there is $450,000 for sidewalks,but that ioheietheitT are street improvementS-WhereAhe-Sidewalk goes'along with the street. In Tadt;this,,year:there is only .$ 0,000 budgeted for sidewalks and bikeviay .:(95420, Heleferred tohis-testimony tattle Budget. . . .Committee requesungimcreaSMgtheamountfor Sidewalks and bikeways. .As gaspiitd go.up,-Nkt need alternatives.. He.stiggeSte&that monies in the street portion of the budget'be shifted solO percent more go to bikeways And sidewalks.:It.-dotn't 04ke.e.sc..4.5.0,to him to cut the sidewalk and bikeway budget.by.50percenvwhen ga.sprices have gone up sa,much•overthe,lastyeat He asked the City Council to-direct,atystafflo,shift, onle hiohy.-fivittotheettanSpciitatidif projects to impren.re sidewalks attcr bikovayt.iiithe Ow. TIGARD CITY COUNCILILCRB/.MINUTES—JUNE-10, 2008: Gry of ligard I 13I25SWHll Bhid.,Tikard,OR 97223 I 503-639-4171, .1 •■Www.dgard,ot.gov. I Page4 of 15 . _ . S • Mr.Fi *ing commented on Ashvenue...,There-were two.items in the:Capital:Improvement; 'Program under transportation that appear to be an effort to end-run-the:downtown-planning effort. Atone-time,the bowritawri Plan showed Ash Avenue extending across Parino Creek toward Walnut Street .Fle.,..eloes not'want to see anything in UP that would extend Ash Avenue across FannOCieekPark toward Walnut Street Maytir-Pirltsenand Couneilorl3uelmer indicated:that.: this Was not in the ctp:. me:Frewing cOrturierited.thatthe-WOrding,WaS:verygeneral.and he wanted to make surethat.thereWAS-rio,Such effait. Mayor Dirkstit!Saidtheiteins:that ate:iiithe-CEP are to iMptove.Mh:Avenne in both directions from 13..urriliarn:: from the commuter rail station to proVide another access and the other is to improve the eldsting.right of way Buni.hatnto.atrailhead when it conies to,Farnicil CreekPark This'is.shOWitakpart:Of thefatin o.Creek Master-Plan. Mr; Frewing the wording says.'"to.Fanno,Creele'fand,suggested it hesihgtod:to read•"-to.Fatmo'Creek- . Park!' cbuneilor.Wilson commented on.Mr...Frewing'•S'tertriiiiologrend-run"".artinild the downtown Plan: Hel.recalled.the;Ash Avenue Extension.actoss:Fanno Creek was the bowiito,iiiPlari,but that does tiatinean that itwaszwitlidrawn:frOrn eirery..planthitthe City has. The extension:remains in the Trafispdttoiori,SysteiriPlatiliis ttill.*:_potibility. The UP is a five- year plan and now there is no project identified in the UP for Asir Avenue to cros .Faritio.Creek. Mayor DiaiSeri Clarifiedthatthe:Transportation SystemPlanshows the extension of-Ask Avenue across the creek as part of the long-t4hge-Elan;but,there'ha...scrieer.beed.:4nyfiltidihg.-foritot,ahy discussion to place it on atirneline. It was again pointed out it was removed front:the Downtown Plan Mayor Dirksen said that at.Somepdintin'the.filture,,the City might want to reconsider this as weloOkfor transpbrtation-accesS;it is„noton.the five-yea t(21P-.at thititTie. Councilor Wilson commented onMr.,Frewing's-testimonyregarding funding for sidewalks He said he agreed With Mr.Frewing that it is inipoitant.inctstiggestedthatan alternative to the dP. might he to look at the Street Maintenance Fee fund. When this fund was the City considered the possibility that once.wegot through-thebacklog,of street repaving projects,that we Might CotisidefiiiSitig this:teVenuelOr.otheethings:stiChaS.sideWalkS. MiFrewing indicated he recalled that discussion. MtsFrewing,said he also.:reCalled.thatit was a poliot.thoice::tegaing..vihot the Street Maintenance Fee should be used for .street pavement or sidewalks The..pplicyafter, hearn' bjectionS&Writhe Oregiin Grocers Association was far street pavement only. :COuneilor- Wilson said he tliought:the concern was that the-ifse.s'.fdr.5tteet.A/lintel-10h•(&,Fee fund not be expanded. This'waiModeled:after the:OtyofTualatin's.fee and Tualatin expanded this eventually to irielude:sideWalliS. 8:11:19-ip" m d. Staff Recommendation QtYManagetProsserreedmitiended approve the Fiscal 09-13 Capital Ithprovement.Prograni-With thetic.tefor staff to,testmotnr:e:Andc.lean.npthe dortoeht: e. :MOtion,byCouriCilor Buehrier,Secorided by:CouncilorVilson,.io,approsvelte prOgiarhiOr CapitatImprovernent:with direction to-gaffto:tleo.lify the:o iizátidiof ihe;aticument., f. Mayor Diiic.en advised before-the.dty uncivotes on the:dOcument,he would-closethe puble 'heating. TIGARD CITY COUNCIL/LOU:IL MINUTES—JUNE '10; 2008 aqi:of.Titaid I 13125 SW1-141 Bk.*,Tig*ci,;OR 97223- I 503-639-4171 1 --irviei■:tigaid-of.p* I Rdge:5 bf./.5 . . • • Councilor Buettner commented that:the CapitatIrriprovernentProgrammas difficukto.do this year. because the City was implementing a.masSiire new computer prograrkWhiclytailsed widespread .prObletris. MayurDirkseti,added that het3 ithe aty:Countil:appripved about4:$20 Million Capital Improvement.Program,which-was the largest,seen in the::Gty for quite awhile Evexne Everyone knows there.. are:a lot-of infrastructure needs;this year we are:doingalinost-$3a-inam. The ability to:find money has been.due to._Gty COUriCilatid Staff w.orking-WithiiiiisdietiOnalpartners:, He hOped,thataSiie gitieS by the City of Tigard Will.continue to do as well eyen bctter.. h. The-.moiion.wasupproved'hy a unanimous vote ciftouncil present: Mayor Dirlcsen Yes, Councilor Buehner. Yes: Councilor Wilson Yes 8:14:COTNI APPROVE A.RESOLUTION ADOPTING CITYWIDE MASTER FEES AND CHARGES SCHEDULE --RESOLUTION NO.08,30: .01134141401.-PiPss. r.PV.Segtcc141:4ff-f.xyciiT,Tigard Mv*ipl-.CoOp.5- 10.5(YrCrtPliresnanTlual 6tY ,„. Councilreviewof the citywide fees and charges. 'The:fees and.Charges-sChedule is,UPdated each jnne to • streamline the xeview.process,have one document containing all fe-eSi,ailid:Chatges,.and minimize the number Of resolutions•and.ordinances-relating to:fees and charges. .X.summary of the proposed fee changes,additions,or 4:101etions-is contained in:the Staff report,.whiehis:on;file inthe:GtyRecorder'i.office. After brief tliscussion,-the City Council the proposed.resolution, Motion by Councilor Wilson,seconded by COinkilor.BUehrier;toadOpt Resolution RESOLUTION NO.'08-;'30'.—:ARESOLUTIONADOPIING`THE CITYWIDE:MASTER FEES AND CHARGESSCHEDULE WHICHIREPLACIS RESOLUTION NO...0705 AND ALLSUBSEOUENT AMEIOMEN".rv.rorbATE The motion was.approved by a,unanimous vote ofroluicitpreSent. Mayor Dirksen Yes Councilor Buehner. 'yes, Ccithicilof'Wilson Yeti: PUBLIC BEARING, CXDN5IDER A RESOLUTION OF THE CITY OF TIGARD.,ADOPTING THE BUDGET,MAKING APPROPRIATIONS,DECLARING THE AD VALORItaTAx'LEVy,,410 ,cLAssiFYIN: l'HE LEVY ASPROVIDEDBYQ 310060 (21T O (78.2009 a. •Mayor Dirksen opened tbe.public heantig... b. City Manager Prosser presented the staff report. He,aCknowledged.the.bardworkby.not.onlyilie: Finance staff hutistaft from all departments, ChyManager Prosser reviewed the budget process The budget is a piiblic-documenr and is aVailable:forCitiiensio review online. A topyolthe PoWerniiiit presentation for this-.agenda item is on file in the GtyRecorclees office. fa' TIGARD CITY COUNCILILCRBI-MINUTES:—JUNE 104 2008 Qtydfligakci. _I 13.125SWHall.131yd.,-Tigateli QR,:77223 -93-.639-4171 1 j ,Page 6;44:5. • • -atyManager.:ProsserrevieWed several technical amendments inacie;bytheaudgeeCamniiitee, .including: • capyoverfun ding of some:projects • Additional stipend for eitherthP'MaYor.or the aycop./16i president: City Manager advised that the budget represents the authorization to spend,if not:a requirement 'spend.-The additional stiperiddisciisSibii and healing:Will beheltiblijiily.8,2081 e. A one-time.contribution to theSroadwayRose capitalcarnpaign. otyMan4gerTrosser.adviscd.the proposed resolution not only adopts the budget,it declares the ad valorem-tailey,y(propertytax:levh. Two tieviiiiiids'tvere createatliiS;*in 1. Tree Replacetnentiund,rwhich will contain$575,000. 2: 'Trust Fund rerriairiing fimirbalance of the GraceTigard.HOUglitoti Ofa large‘bequett several years ago arida bequest from Neva Root. This fitnd.:C.,an only be :improvements-and amenities aftheLibrary, Councilor Wilson notecLthere were soite.::signifieglt projects.or programs that:did not.make it into the 'budget., Op/Manager Prosser rcpcgce.4.-fl* T.,Aff.pmentect.severol$stke:papers to the Budget Committee-including one that outlined the possibility of creating a Criminal Q urtfor the City of 'Tigard. -.Presently;our court fOdises,on traffic offenses and we alSd.hayea.juverillecoutt focusing on first-time juvenile offenders Anyctiminatissue must be adjudicated the Countycourt.41-fillsboro. Some cities have a Criminal court;which meansr they=ablethadjudicatemiSderneanortaSes:loCally: This:has.several:advantages:. More victims of crime,:-Under the current.system,.if someone is the victim misdemeanor crime,theymust drive tO.AllSboro,-Waittot the CaSe:tO be called,:by the Court,.and.thenTeturn to the Court on another day his.a significant ontribution of time andlmanybuSiness owners,itt particular„cannot be awayfroin their businesses thatlon&so these cases.do not get prosecuted th the.extent that.they should. 2. 'Otystiff time savings. We have to send a polite..offlor tci:trillsboroi which means time that this o.fficeils not patr011ing thestreets-of Tigard, 3. ..CriminaL.C.Ourtwotild.allow.uS to focus.on thoseerirries diat.areof COriCerir„OrOfiSstie in Tigard. Tines leviedwould help pay for aportiOn.of-the court..Costs.Additional:court Staf...fing:wOUld.be needed as well in the Poke Department because we would need to go to:4 24/7,police records operation and -add:tine:tit two police officers to serve warrants The fines anticipated would not pay*entire cost of the criminal'Court,therewoUld,be somerGeneral Fund contribution. The Budget Committee Was „intrigued withtheprOposal. ThereAvas.Some.inierestinmoving,fOrward,Itit it was felttliat*.it*Oied :mote oblic-dis.cu-ssion and examination befbreitrioiOg'forwarcl., Thc,Rocigq,compiitr.e!.ipstr4c.tec'i, staff,through the Copuppici41.r..iimesVrikcp.contact local businesses to talk about this;program to determine if there was interest in this program. Alsoisstaff.:.-Will,solicit.inpiiffrOm the general public._ The Budget.COmmittee walieView this' prograin againinruidlear., TIGARD.aTY COUNC11:4/L:CRB/ MINUTES—JUNE 10, 2008 Eiw of Tigard I '13125-SW Hail 131vCi., Ok9i223, 1 5034630.4iii 1 .tyviw.tigArcl;or:gov 'Page 74 15.: • • • "s:',l l:tYI'M • b. Public Testimony . • Linda.Monahan,;10248 SWKentVourt,Tigard,OR.presente&testimony noting concerns about the proposed$45,250;stipend.for the:Mayor or a Council member: A copy of Ms..Monalhari's.June 10, 2008,:letter to the:.Mayor and City Councl:is on;file in the City Recorder's office. :Ms z Monahan: advised that the$4525.0 stipend;is an,ill-conceived proposal:and those;resources:could bebe"tter orili?pd"to serve,the community. Discussion"amongthe Mayor,Council members.and Ms;:Monahan-followed:. Councilor Wilson,advised_this:;proposal.had been the subject of an editorial in:the.'Tigard Times last ;He:said,the=intent:of this;proposal=was not well represented";in this article: He said this is intended to be a part:time,professional position:. The.Gtyis;proposinga hybrid of`.a Council_Manager form vs.a strong Mayor form:of government because°over the:ye_ars we have: :seen Gty business become.complex and,requires more'time:, The,02,141 l felt:that.the City Tigard is-not'getting:the representation in other levels of government where funding is found: federal,:state;:county,and regional agencies,(Metro,T'nUet). .All.of these,different levels of; government have substantial amounts of money",for'which'they:control-the:distribution:,°City, officials have:observed that•when the`professio i4mayoris prresent,lobbying:for-funds,they tend to get:noticed:; When,Gtyof Tigard wants to express.our opinion;we send a'letter. We were looking:for a-way-to,achieve a Hybrid between:a:mayorsand a professional mayor:;_ We,:riecognize that;is;fraught.:with problems either way;` It.is:iimportant that a mayor be.a citizen, "just as the rest of us" The spirit of:volunteerism•°•is agoodthing-in government. Once a mayor becomes a-fuIl=time politic aa,then something we.agree with that Conversely,if` you.are:looking strictly;:at..the$45;000.•investment;:if we were able,toland;a single,grant of'a million dollars;thatwould pay f or it;manytimes over-. 'Councilor W son.said this is regarded.as: a"bit ofan experiment. Councilor Wilson described how the proposal.was struciured:in a way,specifically so:that it would.not,incent people;to<run for:Mayor strictlyfor"the money The budget appropriation gives the C;tyCouncilLthe.abilityto select.whether..or not to"hire-tL a Mayor";that is,go half= time with his riegular"job and half-".ti ne;with the Qty. This would be subject to negotiations. • This;is something the CityCounciltis considering. Input is appreciated;this pr±oposal:will:be_ open to citizeninput for a few<more-weeks. Thisis;:being proposed because the.City,Council thinks,it.could.be in the.best:interests of the City." Ms.Monahan responded.$be,said;shebelieves.in a professionallyrrianaged.eityand ovioiild not. live.in ;City with a strong mayor forin:of"goveininent." `The,strong..mayor,form"of government exarrnples.in"this area,have been;a=disaster and she said would not want to see the:experience repeated. Councilor Buehner,referred to the health plat and:the Couircil`metribers'."parricipation.. The: stipend"for.City Council,;created:manyyears,ago andthe'rate was adjusted sometime!irn the '1990's. The:theory was-to reimburse CtyCouncil members for expenses to attend:meetings. TIGARD CITY COUNCIL/MCRB% MINUTES-JUNE;10, 2008 G o T 13125.:SW Hall Blvd.;1 ,"OR'97223 . 8415. ". ...............�.. , n' � � lgard .. � 503=639=417.1 ! "www.iigard-orgov- J Page • 114.ayor."Dititsen:encouraged-MS-,Monahantoattendthehearing on.tliisitèE 4e Saidthe, iproposal was purposefully traftedSO that it is hot tied to kpaitituto-gotiti -n. The part-time professional,electe:d•rpoitia.th:tould either be the Mayor or thefgouncilPresident. Members of • rCity Counciwill:beappointedashaisons to different group.•If the part-time position is put in Place,:it would-be part of an assignment that is;given to:a person to repitent City state,togiatial,or federal level.„ The.beliefithat.:by ttialtitig thjS,-Srpiaitwestrtienti.Ft'Cquicl get a great return oninyestment,witha net benefit as opposed..to?an'expense to the Councilor'Wilson said-hewould be Open to healifigniole aboUt whys-of-no think the strong mayor form of government not desirable: looking to find'solutionsto.long-term- :problems:. Mende-of ilifiryor carries weightwhermneeting•NVith officials and organizations., Ms MCinahan,Slaid:She was.Sine:that the;City Council did not put the:pfppos 0.1.Togerher with any intent otherthantb better the community She said,:however,,she believes itHhas.unintended .consequencesthe-dty Council should ccinsicier., ii-Manager- Prosto(Ogrifiod an OiliOr: c4PTIPPt...by"councitOrThiehnerregartling.::aty Council participation in insurance benefits, lite:dtY.C.ouricithas the opportunity to participate in the City's group insurance and pays a portion of the costs,the same as qtyeinployqes.do The'Otypa. he.:,majoritybf the costs of the insurance. PM • John,FieWing,7110::S.WLOla,L.ane,,Tiga0:1;QtegOn,said he supports the idea of the increased stipend for an electeclofficial;we need professional representation to helpthe.qtyof:Tigard' He added that he thought ilie.CjounciLshotildtakehalf of this:.money from aqi•Manageatoster's: • - :salary The City Manager's dunes include otternal.repteseritation jor,itte.,:qty of Tigard,and loAentedi the prOposall-Fonld take..away-some of Ole ic4Managees dunes. •, - . " • Mt.Ftesvingasked questions about the Building Division budget area. permits,are.down, - significantly and he said he P:-CCITPP940i4ctirop hi the planned_expense.sfor the city 'staff thgm:pott,5445,program.,.Another item. Over the last year;there-has:been a:realignment of water service areas. '-i-re.Saidthat the viggct:\IVAtet,Disrri.o:has;_left the Tigard administrative Aitribiella. 'He:asked if there should atorresponding change in the water expenses. 901:55 PM Mayor Dirltsenresponded to Mr Frewing'S.gueStiontegardifigthe-water fund. This is an enterprise fund and it iS---self-SuppOrting;those who'paywaterhilli to the City of Tigard pay the water :services provided. Those Who do not buy water from the City of Tigard'(i.e.,Tigard residents who .purchase water from the Tualatin Valley Witer_Distikt)do not pay for service provided in the City of Tigaid watefehterprise. 'GtyManager.Pro.sSerclaiifiedthat water service areas have not:been,.. adjusted: Tigard still provides water to the Tigard Water,Pistrict'inaddiiion-to two-thirds of Tigard,.King City,and Durham:. The City is no longer providing,staff-,support to the Tigard -Water Distritthoaidfoetheikmeetingi,:--Which occur once:a triOnth. We-cygr.e.providing his service ti:.-scos.t of.about:$10;0000tyeat That-money from the Water...Pi:strict was depoSitedirvthe, Water Fund "Tigaes'r water:Staff is not paid or property taxes;!they-art:paid. for.out of water rates. t,,Frewing asked howitis-detenninedhovrmuchtime:islspent for-each.pettbh on Tigard water matters. CityManager-Prossetsaidatthis tin heSpends notime on watermatters that canhe TIGARD CITY.COUNC1L-/LCRB t MINUTES.—JUNE.102008 city of Tigard. -13125-5W HailBlvd:,Tigard;01072,23 I: 563',639,4171 I ww.w.tigard=br.gov I .Page 9..cif . . • - charged-to the'Waternistrict:, WhenNye...were.providing itiff,support,fOr theVater.DiStritt,.st;aff - wasAeeping records and.charging theWaterDistiitt.drietirtie. Mt,FteNvilig asked.how much time City Manager,Prosser,spent on water activities for the enterprise :activities for water: City Manager said in the TigardSySteiri,we have"a cost allcitotiori:plo. • Forrgener4suppoit.activities (Citymariag&,Fihane and Information Technology,Human .Resources,RiskMariagement;Office Services,etc),we lookat;indicatorsof.benefit. Allocations of charges are made to the enterpri.*fundslqa.sedoda.variety 61:formula . 'These are indirect charges that occupatthe,funti,level. This is tracked,andlaudited.. GbrManager,PrOSSet addressed Mr Frewines,question aboutsth ebuilding v :perMits-and building staff There,are no reductions proposed in the lkiiiding,DiViiion Staffing_In the past,we Attortips.: to.keep-aconStant.leveliof staffing so diiri.o.Kliborntithe ;We-.0I1ke up the difference by using contract inspectors. •wt axe tsitig',10-4,:optra4-itispootio4timp'npvt and this is reflectedin.the, budget. Over the years,we have built up a reserve in the building fund to maintain staffing during periods lower activity If this turns out to an absolute downt.own,we..woulti,do-an adjustment to the building budget. The..ayi...inottitoring. Theproposedbudget does not include areduction ainstIing;hOtveyeri if this,continues;:into.thenext year;we will be.coiisidering,cutbaCks. 909:29 I'M, , • •• c. City Manager'ProssenrecortirrierideCliadoption,of Resoligio4:NO;Q8,3"1,,adopting the bucket: 90938PM d. Maybf-DirItstp.close.4Appiblicliearipg • 9:09:51 PM .„ e. Council Discussion: Councilor flueliner referred to the proposed review of the additional Mayor or Council President, stipend matter to during the,plibliCieStiintiiiy..She noted this was in the btidge by recommendation of a citizen taSk'fOrce;jthelecOrntriendation was supported bythe-:Budget Committee:- She ekplainedshe.believes,thiS deserves to have afuldiscussionand.for the;QtyCianiitil.to give the proposal consideration. 4:i 1:47 Om 'f. CouiilCoñidemtiôn:: Motion.by councilorVilson,.seeolideaby COtineildflielizier;to:adopt,ikt011ition:Noi,013,=,31. RESOLUTION NO '08.31—.A RESOLUTION OF THE:CITTOF-TIGARD ADOPTING.ThE BUDGET;MAKING APPROPRIATIONS,DECLARING:THE AD VALOREM TAX CREATING TWO NEW FUNDS AND-CLASSIFYING THE LEVY AS PROVIDED BY ORS .)10.0.6,0M TOR:FISCAL;YEAR.-2008,09 The motionwas'apprOVed:hqra UnariiiiiouS'YOte of:COuncil present Mayor.Dirksen Yes Councilor Bilefiner Yes CouncilorVA-son. Yes TIGARD CITY COLTNC1L/LCRB/ MINUTES,.JUNE"10, 2008 City cif Titard I 13125 SW Hall Blvd.;TiOrd,QR.97223: 1 503.-639-4171. wtvw.tigard,or:gov ,Page-10,of . . • • 2in ,1 recessed me:eting: Lifl' i rettitiVeneci.rrideting ;Recess City Council Meeting(Motion by Council) Convene City Center Development Agency(CCDA):ilifeeting, Cn1lCi.cy Center:D_6!'"elciptrieot Ageocy to Order: Chair Didts_en ,1" 1011 Call: Nanie Present Absent, irrden BoaniMemberSheiWood BoatClmEr.fibeiikoehilor lioo.rampmbgr cpupgilor Wilson Board Member Woodruff . 06N 9. APPROVE A RESOLUTION ADOPTING THE FISCAL YEAR 2008-09 }3:[..P.G .T; MAKING- .APPROPRIATIONS,AND IMPOSING AND CATEGORIZING RESOLUTION :NO.08-02 aty Manager Prosser.presented the staff report.A capy Of:PrtsentatiOn slid'es:'.4rp on file ii the'Oty:Recorder's ,offiCe. A redevelopment,agehty i.§.funded primarily by the increment of taxes earned,on development that has -Occurred in the redevelopment area:The Tigard Urban...Renewal Agency was created in 2005 Typicapy,:i4 the early years,urban renewal districts do not experience a high level of This is why the:qty,arid the Agency are interested in establishing catalyst projects to improve the conditions and attract developer interest. The revenues that we received from the tax increment last fiscal Year were about$40,000 and it is expected the amount will be Sirriilar this fiscal year The City budget is':Set up:to.,loarcthe City Center Development Agency about$379,-,000,fOrprojeCts;the total FY 2008-09.0ty Centet:D-oielopment AgencyBudget will be.$459,269. City Manager Prosser explained an Intergovernmental Agreement provides that the City Center Development Agency will repay any loan as funds become available., The lcian:anitiontiS, shown in the Capital Improvement fund for the Urban renewal agency and there is $80,000 being shown as debt serviees'.to alb*the loan to be tegaid. The,:docisiork-s)n.the timing on,therepayment,is up to the Agency Directors,and:t.hor City counCil. We assume the Joan will be carried forseveralyearS=Until we start:getting.develOpment-activity in the downtown. ,Chair Ditittertalledfor public.testimony None Motion by Board Member Buelmeri seconded by.Board e Member Wilson,,for adoption of City Center Development gency ResolutiOnNo:08-02. CITY CENTER DEVELOPMENT AGENCY RESOLUTION NQ.0a-02 A.RESOLUTION ADOPTING THE FISCAL YEAR 2008-09 BUDGET,MAKING APPROPRIATIONS,AND IMPOSING AND CATEGORIZING TAXES •.• TIGARD CITY COUNCII/LCRB/ MTNUTE S —JUNE.10,c2008, Ofy-olf Tig4 pri25'.$1.tifiall Blvd.,Tigard;OR 97223 I 503:.639-4171 J iViVw.iigard-oi.toV' I Page-11415 . . • • . TheAti Otion*asTappittved:bya.Ananirnowyote.ciflOtycenterDevelopment'AgetityBoattljnerrib,er present • Dirlcs en • Yes • :Board.Mernbei.Btrehner Yes 13,Oard Meniher Wilson Yes PM`„ 'Motion by BOartl,Meitibef.tutlinet,seconded by:}3Oard_Memher Wilson,to adjourn the City-Center,Development Agoikyitee.tifig. The motion was,apprOVed.bya unanimous vote of Qty.Centet.Developinent..Agency:Board,memberSpreSent.• chair:Piritsetk BOarcIMember&Airier Yes BOardMenther Wits on Yes Reconvene City Council:Meeting:.9:28:42 PM: Alt i0 cONIINUATION AOM,MAY'13,200$ OF QUA,SIVDIQAL: JBLJCHEAJUNG APPEAL.4.0F' DIRECTOWS INTERPRETATION OF THE TREE PLAN .REQUIREMENT — DEVELOPMENT CODE.MAPTER 18:790:030(MIS2008430005) a., M4ut Dirksen antiOnnted,diat.:the:public hearing and public-testimony was closed-au Tonight the-:City-Council is reviewing the staff recommendation.baSed.on the public testimony heard on 'WY Cointriunity-Development Director Coffee presented the staff report: Sine'the public hearing;gangs: reviewed the testimony with ihe:diy.tittorney. A revised Director's Interpretation was presented to the Council in the packet and marked Exhibit A 'Staff'recommends,the '.atLY. Council adopt the peogo$ed. ,resolution tefor4i, g-to,the edinterpretation. City Attorney Ramis aavi§ed.he received:a copy of a commmicaiion from'Phil Grillo to Staff,.which ...requests the opporturrityto be heard.this:evening. 'City Attorney Rariiis says While the record has been .closed,:there is 4.:new.Staff interpretation and, therefore he fetoinfrierided'thatlhe, City Council.allow. people who have participated previously to coMment. on the Changes. City Council members agreed allöw testimony as recongnended'hy'City AttomeyRatniS. c. 'Phil Grillo addressed the City Council. He noted his review of the new interpretation and -recent :deCiSidlis_td,sed howthe-.Citypityiouslyoolsed at provisionAat.is being interpreted Copies of the decisions Mr Gnllo referenced are on file,in the City Recorder's OffiCe.. Most of the decisions were -rendered by the City!s hearings officer The•Gty-.has repeatedly held that, when reviewing. the tree .protection Plan:tinder ..,h-apter;18".790,-thoq4siQp of the applicant can-Save additional trees on that site is irrelevant This means Thel'-Hearings-officer has lowid.that-the provision:under discussion: and being.-iinterpreted is nOtaxelevant.approvalcriteria, This is the,startingpoinvfor the City Council to understand Mr. Grillo?,s concern with this case.. What.is happening is that the City is interpreting.a provision.that..iSAOt-,an,approyal criteria randmiliihg.itintO one. This i&thë esse-ntial problem And the 'TIGARD CITY COUNCIL/LCRB/ MINUTES JUNET.10,,2008 qty of TgArd 1 13125 SW Hall Blvd.,:Tigard,,OR 9.7223 1 503-039-4171 1 irivw4igar3or.gov 1 Page-12,ofj5 . . • • disagreement Mr::Grillo.referred,to a 2004 tUBA decision Miler:444 qtY of Tigard) and read the. follO:w4pasSage: The idtzmite starda,d TRO Ihte rennal ordinary iriP*5 is Irt a standard that plot thEt3';` rather„lit's:a standard that fasoi ,protertontrefs but alleges.ht to 1 nErpurlso long as any less(rnmi than 25 peitent f large tr$:45 nifigated Mr:Grillo aid the above-interpretation says that:firSt you must.try to prevent tree.loss and then, if:you. cannot, you go to the mitigation'requirements: This is clearly contrary to whaf...LUBA has .found and What the Hearings:Officer has repeatedly fOund. *He noted the City of Tigard'SWebsite contains a list of recent'subdiyiSion cases and none of those employ this phrase in the way that staff is trying to impose it ,now.: Mr Grub says he concerned that the City is changing the wayth4.this.provision has beeri.iised in the &de.. Not all of the proVisions in the Code: are approval:criteria and the one that is being terpreted,"here tonight is not an approval criteria." John:Prevving said he agrees with Mr Grillo:on,some;points, however, he said he thought the 1.City Council should proceed and approve,the.:,interpretatiOn. He referred to:another section.of the Code where it says it us the responsibility of the_applicanttdprOVide enough information sothe-staficanmake a deCisibii. In one sense, this:interpretation is not;needed because the City could simply use the words that are .aready in the Code giving the staff the .discretion to determine whether trees are being preserved to the maximum extent iioSSible. Mr. FieWiiig,said.he thinks this! helps the builders know whatthe,City isloOking for a.nd Comricil approve.the interpretation. McCauley,Jim representing:Portland Metro Homebuilders Association, concurred with Mr.: comments: He cited the-:concerns regarding the steps to be followed and determination of,adecitiaty, - which has essentially set up..approval'criteria, If this needs to be in the Code,then as a-local jurisdiction this needs to be written into ti eapprovaicritetia,whichwillhëed a-different process. . Mayorbirksen;aikol for the staff recommendation based on What has been hekiatoriight, Community ,peyelOpogiit.Pirector-Coffee advised that:staff recommends the resolution with Exhibit Abe adopted; Council discussion:followed. Councilor %son:noted he had served on the Planning Commission: Wore he was elected to the City Council, .Also,•Councilor Wilson advised he is a landscape architect and he deals with application of codes from various cities and jurisdictions. When Code is written, it is done so with a particular application in Mind., There are always cases when an exception comes along that requires some'interpretation. He said the purpose.of a Director's Interpretation is to applr the Code to a,particular situation where it is ambiguous or unclear In addition., when Code is written,it ought to be taken at face value;:Le.,it Says what it means and it means what.itsays. ;He said he believesS the Development Director us a reasonable person-. Mayor Dirksen said he.Would hope that anyone interested in saVing,trees would follow the..Criteria,liSted in the Director's:Interpretation;-..however,,he said he thought the Interpretation ttie.:,beyocid:the Simple expression of a preference: Councilor Wilson . poihted:biith0 Tigard Tree Code will be completely revised shortly following the Comprehensive Plan :update: 'This'would be the proper place to address this matter., Councilor Wilson saidfhei-wolild be in favor of upholding the appeal and deal with the k$1.1e ..p"resolteititi, thus matter when the Tree_Code iS revised.. 1 Councilor:Buehner noted she is a real. estate attorney and represents .deyelopers:, There.is :a. great, difference',in qUalityarnong,developers: .As far'as,the substance is concerned, She.said She thought the .TIGARTYCITY-COUNCILILCRB— /.MINUTES,—JUNE 10,.2008 aty-of Tigoi. •1 '13125.S*1714)Pid.,,Tigaiii;OR 97223 :503-,:6394171 I www.x.igarkongo .Page 3jri5 • • interpretation's language would help-sonte Of the developers to understand the application process. She said she would be supportive of this 14.tip.f4ge'heisporioildeolit the Code. However,we ate not talking abotittheStilistance4t.this.point; we are talking about the proCeSs'. Qiiinciloil3uehner said she agreed 'with'Councilor Wilson that this needs to be handled when the Code language is reviewed, Councilor - Buelmer said she would support the appeal,from the Nomebuilders.of the Director'S:.deCiSion. She recommended to the City Council staff be directed to put this item at the.top of the list for to be addressed in the Code This seems to be the area that has generated the most intert..pitj.discussion, during the Comprehensive Plan process. Mayor Dirksen said when he first read the Director's'interpretation of the Tree Plan requirement; he was hopefirl..-and he ,appreciated the Director's'efforts trying....to clarify a vague Code.: Mayor-Diricsea said he'thought Community beVelOpinent:Director Coffee's interpretation accurately re fleCts:the.:policy Of the aty,the'philosophy of this City Council, and the majority of the citizens It Might also accurately interpret the spirit of the Code as it was Written. But,the clarity of interpretation of a Code. that is vague.could,be construed as d'"judge-Making;laN,t!frOM the bench" Mayor Dirksen.Said he agrees with the reflection.'Of the interpretation but he also has .a concern.with Wing this process and the vulnerability to challenge if this process is used Mayor DirliSeit said he rwoUld support the appeal concurred with.Councilor Iinehrier!S:'teoewthat this section of the 'Cotle be.addressed.forthWith after the COMpithensive Plan review is completed.: He s.aid hewouldsupporttheappeal. 940 3' Motion by Councilor.Wilson, seconded' by Co unCilOt Buehner, to uphold the appeal of MIS ..2008 F 00005,the Director's Intdtpretatiiiii Of,the TreePlan,Requirernent. The motion was approved by a unanimous vote of Council present. 'IVlayorPrden Yes Counciloilinelther' 'Yes. Councilor Wilson Yes 9:47:%PM -- 11. COONnI...,LimsoNupOns, GOuncil er.reported she attendeda:torrnitteemeetingof the Urban and RuraiRO.serVeS Task'FOrce, An in.doth:tepott was presented regarding population prognostications for the next 25-50 years:,This report .contains more infonnation.thantheonepreti6UslyteCeived. She aslred the City Manager see that the City Council receives a copy:Oi.this-report She referred to a rhemorandum,tothe„Metro Council that faiSeda,tininher of issues about how some process will happen..'There has been orue change tO.the:;tirtiplino.Andpublic outreach process She said she;received a list of the public meetings thgAre:,goirig!to be held She read this information and also requested the information be placedonthe:qty xvebsite the purpose of these meetings;is to present the in the .report.regardingthe population numbers and the map to Start•the`.4iScOssion-about,which,areas will be-held as urbanieServes,tritatreSerVeS,Or designated as'"other She said this important.forthe-pnblit to get involved, review the initial !submit comments to the-County \Vorligtoupsfor each County will.review thelinformation-received..from the open houses and written testimony regarding whether any changes should be madeinthairStWorkiti- Of the areas under:COn§idoatisi?P,-- 12. NQN:AGEI\PA ITEMS:' None' TIGARD-CIIY-COUNCA /t"CRB/ MINUTES•-JUNE 10, 2008 . , . . _ qty.o.f 15044 I i3125 I-Lall Tigani,OR 17223- 1 503-:639-4-171 I ..i.yr.,,,Aii.:004914,0 I -Page 14 4.15 • • -• _ _• • • .13. EXECUTIVE SESSION: Notheld 9:5143 14. ADJOURNMENT Motion by Councilor-Wilson;.seconded by Councilor:Buehnerii.tO adjourn the meeting; The'i Motion*as' :apprOed.by;a.unaniincius vote of c.otui;c&presenr: •Mayor Dirks en- Yes • COuncilor Enehner Yes Councilor Wilson 'Yes 7.7Ctifke.4-2#1.4. 'WheideY;CifYRec-Order Attest: • Mayo City of Prig Date: TIGARD CITY covNaLitaKRI MINUTES=jIJNE 10, 2008 city of Tigard 13125.5*H41 1310„'Tigattl,.(DR 97223 I 503-639-4171 I www.tigard-or:gov I Page 15 of 15 • • Prig HBA Home Builders Association of Metropolitan Portland June 10, 2008 Mayor Craig E. Dirksen and City Council Members City of Tigard 13125 S.W. Hall Boulevard Tigard, Oregon 97223 Subject: • Metro HBA appeal of the Director's Interpretation Dated February 26, 2008, regarding Chapter 18.790 (Tree Removal). • Revised Director's Interpretation, Dated May 27, 2008 Dear Mayor Dirksen and Councilors: HBA has reviewed the modified Director's Interpretation dated May 27, 2008 and read through the staff report and all other materials associated with our appeal of the Interpretation. As I stated in our comments on May 13 HBA believes the Director's Interpretation has gone well beyond the overall intent and practical application of Tigard's tree protection standards elevating tree protection well above the appropriate trigger for a type 3 application process. While the modifications seem to address an element of our concerns "maximize tree protection" we still believe the Director's Interpretation establishes an approval criteria. As a result, a different process should have been used to develop 12 additional data requests for developers to follow. Approval Criteria or Not Outside of our concerns over the process to reach this Director's Interpretation, our most important concern is whether this informational request is simply gathering of information or if it will be used as part of the approval criteria. Despite the acknowledgement from staff that "maximum tree protection"is not consistent with existing language the structure of Director's Interpretation remains unchanged. The City has still replaced seven words with a 12-step informational request. When I read this section the first question that comes to mind is what if the city is not satisfied with the applicant's information or response. At some stage in this process City staff will make an interpretation on all of the 12 points. From our perspective any decision that evaluates the 12 steps has in essence established approval criteria. • • What if City Staff are not satisfied with the answer to number 1, or suggest the applicant change another. Both of these outcomes seem plausible and therefore set City staff up for conditioning approval on 1 or potentially all of the 12 steps outlined in the Director's Interpretation. This remains central to HBA's concerns over this process and yet unresolved in our view. Based on the staff Memo from Todd Prager, Assistant Planner/Arborist dated May 15, 2008 there appears to be some concurrence with this under my interpretation. On page 2 of 7 last paragraph under Issue #3 the record states: Staff Response:The Interpretation allows development to proceed utilizing specific incentives and flexible development standards through a Type II process if the applicant can demonstrate that the proposed development will preserve viable trees wherever possible. The Interpretation is intended to require the applicant to use their discretion during site planning and design in order to preserve viable trees wherever possible. City planners will then utilize the Interpretation in der rrnining whether the applicant did,in fact,protect viable trees wherever possible. The Director has provided Based on this staff response, City planners fully intend to use the information as the basis for approval. In other words, there seems to be some agreement the 12 steps will be part of the approval process, because "City planners will then utilize the Interpretation in determining whether applicant d id, in fact, protect viable tree wherever possible". I think it is important for you to understand that while we may object to some of the specific elements in the 12 steps we are not question the authority of the City to establish this. Instead our objections and basis for the claim come down to not using the appropriate process to establish new criteria. As a possible remedy to the question of approval criteria or not, I think the simplest option is to deal head on with the question. If what I'm hearing from City staff and general commentary during the last hearing there is no intent that this be approval criteria, then lets state in the interpretation and make sure it's clear that this is an informational request and not be used as the basis for approval. 2 • 5149i/ran) Pk Lo Bye C6 • 120 DAYS =2/17/2006(Includes a 100-day extension) DATE OF FILING: 2/15/2006 CITY OF TIGARD TIGARD` Washington County,Oregon NOTICE OF FINAL ORDER BY THE HEARINGS OFFICER File Numbers: SUBDIVISION(SUB)2005-00014 ADJUSTMENT(VAR).2005-00068 File Name: APPEAL OF GAGE FOREST SUBDIVISION • Owner's Name: Dorothy Darlene Gage&M A Abrecht,M G Gage Appellant's Names: Judy&Kenneth Dobson/Dennis&Virginia Deck/Helene&Gary Bickford Aplirescans ot's PNroame per/tyA:ddress: Ga.goe f Fhoe r enstte,LL rsecC ti on 2 3o2f 8S1 W SW nod s Sky tr eDet e ll&L SaW e 8Wst e Cst o Luirnt n,Oregon 97068 Tax Map/Lot Nos.: Washington County Tax Assessor's Map No.2S 112CC,Tax Lot 200. A Olt ER INS•RPORA I G I FA , FINDIN S •SNCLUSIO - DENYING — I APPEAL AND APPROVING A REQUEST FOR A SUBDIVISION AND AN ADJUSTMENT. THE CITY OF TIGARD HEARINGS OFFICER HAS REVIEWED THE APPLICANT'S PLANS, NARRATIVE, MATERIALS, COMMENTS OF REVIEWING AGENCIES, THE PLANNING DIVISION'S STAFF REPORT AND RECOMMENDATIONS FOR THE APPLICATION DESCRIBED IN FURTHER DETAIL IN THE STAFF REPORT. THE HEARINGS OFFICER HELD A PUBLIC HEARING ON NOVEMBER 28, 2005 TO RECEIVE TESTIMONY REGARDING THIS APPLICATION THIS DECISION HAS BEEN BASED ON THE FACTS, FINDINGS AND CONCLUSIONS CONTAINED WITHIN THIS FINAL ORDER Item on Appeal:> On September 29,2005, the Director issued a decision to approve a request for a 33-lot single-family Subdivision on 3.97 acres, and an Adjustment to the street spacing standard for SW 81st Court. On October 13, 2005, an appeal was filed by three neighboring residents in regard to issues concerning lack of information provided by the applicant pertaining to wetlands, protected species, traffic, public improvements, trees, and storm water treatment. The Hearings Officer held a public hearing on this application on November 28,2005 and ultimately held open the record until February 8, 2006. At the close of the record, the Hearings Officer denied the appeal and affirmed the Director's decision with minor modifications. COMPREHENSIVE PLAN DESIGNATION: Medium-Density Residential District. ZONING DESIGNATION: R-12: The R-12 zoning district is designed to accommodate a full range of housing types at a minimum lot size of 3,050 square feet. A wide range of civic and institutional uses are also permitted conditionally. REVIEW CRITERIA SUBJECT TO THE APPEAL: Community Development Code Chapters 18370,18.390,18.725, 18.775, 18.790 and 18.810. Action: > ❑ Approval as Requested © Approval with Conditions ❑ Denial Notice: Notice was published in the newspaper and mailed to: ❑x Owners of Record Within the Required Distance © Affected Government Agencies © The Affected Citizen Involvement Team Facilitator © The Applicants and Owners Final Decision: THIS IS THE FINAL DECISION Of THE CITY AND BECOMES EFFECTIVE ON FEBRUARY 15,2006. The adopted findings of fact, decision and statement of conditions can be obtained from the City of Tigard Planning Division,Tigard City Hall, 13125 SW Hall Boulevard,Tigard,Oregon. Appeal: A review of this decision may be obtained by filing a notice of intent with the Oregon Land Use Board of Appeals (LUBA)within 21 days according to their procedures. Questions: If you have any,questions,please call the City of Tigard Planning Division at.(503) 639-4171. • 41110 • BEFORE THE LAND USE HEARINGS OFFICER FOR THE CITY OF TIGARD,OREGON Regarding an appeal of an administrative decision) FINAL ORDER approving an application for a 33-lot subdivision ) on 3.97 acres located north of SW Bond Street ) SUB2005-00014/VAR2005-00068 and SW 81st Court in the City of Tigard, Oregon ) (Gage Forest Subdivision) A. SUMMARY 1. The applicant, Gage Forest,LLC,requests approval of a preliminary plan for a 33-lot subdivision of a 3.97-acre parcel in the R-25 (Medium High-Density Residential) zone located north of the intersection of SW Bond Street and SW 815`Court. The legal description of the site is Tax Lot 200,WCTM 2S112CC (the "site"). The applicant proposes to develop each of the 33 new lots with a single family detached dwelling. The applicant will extend SW Patti Lane and SW Langtree Street into the site from their existing stubs at the west boundary of the site. The applicant will extend a new north- south street,proposed SW 81st Avenue between the east ends of Patti Lane and Langtree Street, creating a loop street on the site. The applicant will extend SW 815`Court into the site between its existing stub at the south boundary of the site and the proposed extension of SW Patti Lane. The applicant will dedicate right of way and construct frontage improvements along the site's SW Bond Street frontage. The applicant also requested an adjustment to reduce the intersection spacing requirements from 125 feet to 75 feet for SW 8151 Court. The applicant proposes to collect storm water from impervious areas of the site and to convey it to a storm water facility in the southeast corner of the site, proposed Tract A, for treatment,detention and discharge to the existing storm sewer in SW Bond Street south of the site. All proposed lots will be served by public water and sanitary sewer systems. The applicant proposes to remove all of the 150 regulated trees on the site. 2. On September 29,2005, the Tigard Planning Manager(the"manager") issued a Type II decision approving the application subject to conditions of approval. On October 13, 2005, the City received an appeal of the Director's decision filed by attorney Kenneth Dobson on behalf of Judy and Kenneth Dobson, Dennis and Virginia Deck and Helene and Gary Bickford(the"appellants"). The appeal alleged that the City: a. Failed to properly address the presence of wetlands on the site; b. Failed to address the presence of protected species on the site; c. Failed to adequately address the traffic impacts of the proposed development; d. Failed to require a traffic study; e, Failed to address deficiencies in the applicant's impact study; r , • • f. Improperly granted an adjustment to the minimum street spacing requirements; g. Committed procedural error by allowing the applicant to submit additional information after the application was deemed complete; h.Failed to require adequate protection for trees on adjacent properties; and i. Failed to adequately address storm water runoff and erosion issues. 3. On November 28,2005,Tigard Land Use Hearings Officer Joe Turner(the "hearings officer")conducted a duly noticed public hearing to consider the appeal. City staff recommended the hearings officer deny the appeal and affirm the manager's decision. See the Memorandum to the Hearings Officer dated November 18, 2005 (the "Memorandum").Representatives of the applicant testified in support of the application. The appellants and other area residents testified orally and in writing in support of the appeal. At the end of the hearing, the hearings officer ordered the record held open. Ultimately, at the applicant's request,the hearings officer held open the record until February 8,2006.The principal issues in this case include the following: a. Whether the City erred by accepting evidence from the applicant after the public comment period and the effect of such error; b. Whether the City provided the public with adequate notice of the applicable approval criteria; c.Whether the site contains wetlands; d. Whether the site contains steep slopes subject to TDC 18.775; e. Whether the proposed development complies with the tree removal regulations of TDC 18.790; f. Whether TDC 18.745.010 is an applicable approval criterion; g. Whether the applicant is required to demonstrate compliance with the federal Migratory Bird Treaty Act as part of this City review; h. Whether the applicant is required to prevent vermin living on the site from migrating onto adjacent properties; i. Whether the applicant is required to extend existing stub streets through the site; Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 2 • r j. Whether additional traffic generated by the proposed development and street extensions will exceed the capacity of area streets or otherwise create a hazard; k. Whether an adjustment to the street spacing is required, whether the City applied the correct standard in reviewing the proposed street spacing adjustment and whether the adjustment complies with the applicable criteria; 1. Whether the applicant's impact study is sufficient to comply with TDC 18.390.040.B.2(e); m. Whether development on the site will cause or exacerbate flooding and erosion on the site and on adjacent properties; and n. Whether the applicant is required to obtain a Stormwater Connection Permit from CWS pursuant to TDC 18.775.020. 4. Based on the fmdings and conclusions contained herein and the testimony and evidence in the public record, the hearings officer denies the appeal and affirms the administrative decision conditionally approving the application with certain modifications for the reasons provided herein. B. HEARING AND RECORD HIGHLIGHTS 1. The hearings officer received testimony at the public hearing about the appeal on September 19, 2005. All exhibits and records of testimony are filed with the Tigard Department of Community Development. At the beginning of the hearing,the hearings officer made the declaration required by ORS 197.763. The hearings officer disclaimed any ex parte contacts,bias or conflicts of interest. The following is a summary by the hearings officer of selected testimony and evidence offered at the hearing. 2. City planner Matt Scheidegger summarized the appeal and his November 18, 2005 Memorandum in response to the appeal. 3. Planner Lee Leighton and attorney Andrew Stamp testified on behalf of the applicant. a. Mr. Leighton summarized the proposed development and responded to the appeal. i. He noted that SW Langtree Street and SW Patti Lane were previously stubbed to the west boundary of the site. SW 81st Court was stubbed to the south boundary. These streets were not terminated with a cul-de-sac or similar turnaround, indicating an intent that they would be extended into the site when it developed. TDC 18.810.030.H(2)requires that the applicant extend these streets into the site to provide connectivity and cross-circulation. However it is not feasible to extend SW 81St Court in compliance with the street spacing standards of the Code. Therefore the Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 3 �► ! . _ applicant requested an adjustment to the street spacing standards. The applicant's transportation engineer concluded that the proposed streets will operate safely. The intersection alignment will not create conflicting turn movements and the streets will not carry a significant amount of traffic. ii.He testified that there are no wetlands on the site,based on a site specific investigation by the applicant's wetland consultant. The site does not contain wetland soils,hydrology or vegetation, all of which must be present for an area to qualify as a wetland.The City's wetland inventory,which identifies a non-significant wetland in the southwest corner of the site, is based on review from off-site. The applicant's site specific analysis is more accurate than the City's prior off-site analysis. iii.He noted that the applicant proposed to create a"mini-park"on the site to provide open space and recreational opportunities in the neighborhood. The City is unlikely to accept dedication of the small park. Therefore the applicant will create a homeowners association responsible for ownership and maintenance of the park. The applicant will preserve two trees, a 4-inch Oregon Ash and a 15-inch Oregon White Oak within the park. iv.He testified that the applicant will preserve as many additional trees on the site as possible. However the applicant must remove the majority of the trees in order to accommodate grading that is necessary to extend the existing streets through the site and to create buildable lots. The topography and relatively narrow width of the site increase the amount of grading required.The applicant may be able to preserve some trees in the northeast corner of the site,which are located near the rear of proposed lots. However the applicant cannot make that determination until the final grading plans are completed. The applicant will install tree protection measures to protect trees on adjacent properties. The applicant will plant additional trees and/or pay fees to the City to mitigate for the trees removed as required by the Code. v. He noted that the applicant provided a traffic impact study, although the Code does not require a traffic study for this development. The traffic study concluded that area streets have adequate capacity to accommodate the volume of traffic generated by the proposed development. b. Mr. Stamp requested the hearings officer hold the record open to allow the applicant an opportunity to respond to the issues raised at the hearing. i. He noted that the City's wetland inventory map shows a wetland in the southeast corner of the site. However the City's mapping is not determinative. The Code defines"wetlands"pursuant to the Army Corps of Engineers (the"Corps") criteria. The City does not regulate wetlands unless they meet the Corps' criteria. There are no areas of the site that meet the Corps' wetland criteria. ii.He argued that the Code requires the that the applicant extend SW Langtree Street, SW Patti Lane and SW 81st Court through the site to comply with Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 4 • street connectivity and cross-circulation requirements of the Code and the state Transportation Planning Rule (the"TPR"). The appellants' arguments are a collateral attack on the Code and the TPR. The proposed development is unlikely to encourage cut- through traffic,because the proposed streets will create a circuitous route through the neighborhood. The applicant's traffic engineer did not observe any particular hazards on • 79th Street. iii. He argued that the Migratory Bird Treaty Act is inapplicable to this application. However the applicant must comply with federal law regardless of the proposed development. iv. He argued that the City's receipt of additional evidence after the public comment period was merely a procedural error.It did not prejudice the public's right to review and comment on the application,because the public had an opportunity to review and comment on the new evidence during the de novo appeal hearing. v. He testified that a professional surveyor measured the topography on the site. There is no evidence that the site contains slopes in excess of 25- percent or more. • vi. He testified that the applicant will preserve as many trees as possible on the site and take steps to avoid impacts to trees on abutting properties. Potential impacts to neighboring trees are not a basis for denial of the application. The purpose statements of the Code are not approval criteria. vii. He argued that the applicant is not required to provide detailed engineering plans at this stage of review. The Code does not require public participation in the review of objective engineering and technical issues. vii. He argued that TDC 18.725.030.E prohibits conditions that may attract and support rodents and insects. It does not restrict development because such animals may be present on this site. 4. Attorney Kenneth Dobson testified on behalf of the appellants. a. He argued that the site does contain a wetland, a sensitive land area as defined by Chapter 18.775. Therefore a tree removal permit is required for the removal of trees within the wetland. The City determined that the site contained a wetland during its wetland inventory process in the 1990s. The appellants hired a wetland biologist who concluded that the site may contain a wetland. The appellants' wetland biologist observed slough sedge in the southeast corner of the site. Slough sedge only grows in wetlands. b. He argued that the proposed subdivision does not comply with TDC 18.810.030.D because the proposed streets are inconsistent with the existing street Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 5 • 410 pattern in the neighborhood. The existing street pattern consists of dead-end and cul-de- sac streets.The proposed street alignment will increase traffic on SW 79th Street, a narrow, hilly street,which is hazardous under existing conditions. c. He argued that the proposed adjustment to the street spacing standards does not comply with the applicable approval criteria for adjustments to access and egress standards in TDC 18.370.020.B(5). TDC 18.370.02O.B(5)(b)(2)prohibits adjustments where alternative access points are available. In this case,alternative access is available via SW Langtree Street and Patti Lane. The extension of SW 81st Court is not necessary to provide access to the site. d. He argued that clearing and development on the site may kill migratory birds on the site in violation of the federal Migratory Bird Treaty Act.If the application is approved a condition of approval is warranted to prohibit clearing when migratory birds are nesting on the site. e.He expressed concern that the proposed development will cause or exacerbate storm water runoff and erosion onto adjacent properties. The proposed grading plan will create steep slopes along the east boundary of the site. The proposed storm water plan does not make any provisions for capturing runoff flowing down the slopes and onto adjacent properties. In addition,the steep slopes will be prone to erosion. f.He expressed concern that grading and development on the site will damage trees on neighboring properties. He submitted a report by a professional arborist addressing the potential impact of the development on neighboring trees. The applicant should be required to provide a detailed tree protection plan outlining the specific measures the applicant will implement to protect trees on adjacent properties. He requested the hearings officer incorporate the recommendations of the City Forester as conditions of approval. g. He argued that the City committed procedural error by allowing the applicant to submit additional evidence after the public comment period. The public did not have an opportunity to review and respond to the new evidence. h. He argued that the applicant's impact study is inadequate because it does not address or quantify a variety of impacts to adjacent residents. i. He argued that the City should have its own experts review the site for wetlands and steep slopes.He opined that the site contains areas of 25-percent slope, which are sensitive lands subject to 18.775. 5.Alison Kinsey noted that TDC 18.810.030.A(7)provides that the City"may approve"adjustments. However the City can deny an adjustment and it should in this case. She argued that the applicant's proposal to remove all of the trees on the site conflicts with the purpose statement of TDC 18.745.010.A. She argued that the applicant's tree preservation plan does not include sufficient detail to ensure protection Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 6 • • • and preservation of trees on adjacent properties, citing TDC 18.790.030.B(4). She testified that the existing forest on the site supports a large population of rats and other rodents. Clearing on the site will force these rodents onto adjacent residential properties in violation of TDC 18.725.030.F. She argued that the applicant's impact assessment is inadequate, because it does not address the impact of the development on surrounding residents.Residents of the surrounding neighborhood have used the site for recreation for many years. The proposed development will eliminate that use. 6. Judy Dobson expressed general concerns with the extent of development in the City. 7. Sue Bielke, vice-president of Friends of Summer Creek, argued that the site contains significant natural resource values that should be protected. a. She argued that the City's notice of application was inadequate because it did not list TDC 18.725 and 18.775 as applicable approval criteria. She requested the hearings officer remand the application to the City to allow the public an opportunity to review and comment on these criteria. b. She argued that the applicant's wetland delineation was inadequate. The applicant's consultant performed the delineation after a very dry winter,which may have affected the hydrology and wetland vegetation. The investigation was limited to a single plot in the southeast corner of the site. Based on the tree inventory, the site contains pacific willow, a FAC wetland plant, elsewhere on the site.The applicant's consultant should have performed additional wetland investigations in that area of the site. c. She noted that the City's wetland maps indicate a wetland on the site. Therefore a wetland exists on the site until the map is revised through the plan amendment process. d. She argued that the proposal to remove the majority of the trees on the site is inconsistent with TDC 18.790.010.B, the purpose statement of the tree removal ordinance. She noted that the City received two conflicting tree inventories. The second inventory was received on September 29,2005, after the close of the public comment period. Therefore the public had no opportunity to review the second inventory. The applicant must correct the inconsistencies in the tree inventory to ensure adequate mitigation. e. She testified that area residents have observed Coopers Hawks on the site, which are protected under the Migratory Bird Treaty Act. The site may contain red- legged frogs, a state protected species. f. She requested the hearings officer hold the record open for two weeks to allow the public to submit additional testimony and evidence in response to issues raised at the hearing. Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 7 • • 8. Dennis Deck expressed concern that clearing and development on the site will impact trees on his property east of the site,which are located near the east boundary of the site. He expressed concern with impacts to birds and other wildlife.He argued that traffic generated by this and other developments in the area will have a significant impact on area streets.He argued that the applicant's impact analysis should have addressed noise, vibration and other impacts caused by construction on the site. 9. Ginny Deck noted that the roots of trees on her property east of the site extend onto the site. Grading for the development may damage the roots and impact the health of her trees. She testified that she observed hawk nests and fledglings and other migratory birds in trees on the site. 10.Professional engineer Randall Elliott testified that there is a large cottonwood tree on his property,near the boundary with the site. He expressed concern that development on the site may damage the tree. Clearing on the site will increase wind impacts on this tree and may cause it to fall onto homes on the site.He argued that the applicant should be required to ensure the survival of trees on neighboring properties or remove trees that may pose a hazard,if requested by the property owner. 11. Ann Schemer argued that the applicant's traffic impact analysis is inaccurate because it was conducted during the summer months,when school was not in session. The reduced speed limits in school zones increase congestion in the area. 12. Karen Forman argued that the proposed extension of 81S1 Court will create a cut-through route between Hall Boulevard and Durham Road. Bond Street and 81St Court are narrow roads that cannot accommodate additional traffic generated by this new street connection. 13. Yvette Marty argued that streets in the area are congested under existing conditions. The cumulative impact of traffic generated by this and other developments in the area will exceed the capacity of area streets. She testified that the proposed development will increase traffic on 79th Street east of the site,which is unsafe under existing conditions.The road is very narrow and steep.The street is often flooded in winter. There are no street lights or sidewalks.Additional traffic generated by the proposed street connection will exacerbate the hazard. 14. At the end of the hearing,the hearings officer ordered the public record held open for eighteen days,until December 16, 2005,for all parties to submit new testimony and evidence in response to the issues raised at the hearing.The hearings officer ordered the record held open for an additional two weeks,until December 30, for all parties to respond to the new evidence. The hearings officer ordered the record held open for a final week,until January 6,2006, for the applicant submit a closing argument. a. On January 17, 2006, in response to the applicant's request,the hearings officer issued a written order reopening the record until February 8 to allow the parties to address the applicability of and compliance with certain adjustment/variance standards. Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 8 • 4111 The record closed at 5 p.m. on February 2, 2006.1 The applicant's request to reopen the record tolled the 120-day clock during the open record periods as allowed by ORS 227.178(5). b. The following documents were submitted during the open record period: i. A letter dated January 25, 2006 from Mr. Stamp,the applicant's attorney; ii. A letter dated January 25, 2006 from Mr. Dobson, the appellant's attorney; iii. A letter dated January 25,2006 from Ms.Bielke; iv. A letter dated February 1,2006 from Mr. Stamp; and v. An email dated February 2, 2006 from Mr. Stamp waiving the applicant's final argument and requesting the hearings officer close the record. C.DISCUSSION 1. TDC 18.390.040.G authorizes the hearings officer to hear appeals of Type II decisions, such as the city's decision conditionally approving the subdivision application. TDC 18.390.040.G.2.b provides that appeals: [S]hall be limited to the specific issues raised during the written comment period, as provided under Section 18.390.040.C,unless the Hearings Officer, at his or her discretion, allows additional evidence or testimony concerning any other relevant issue. The Hearings Officer may allow such additional evidence if he or she determines that such evidence is necessary to resolve the case. The intent of this requirement is to limit the scope of Type II Administrative Appeals by encouraging persons with standing to submit their specific concerns in writing during the comment period. The written comments received during the comment period will usually limit the scope of issues on appeal. Only in extraordinary circumstances should new issues be considered by the Hearings Officer on appeal of a Type II Administrative Decision. 2. The hearings officer fords that the City committed procedural error when it accepted additional evidence from the applicant after the close of the 14-day comment period. See Wal-Mart Stores, Inc. v. City of Oregon City,LUBA No. 2004-124 (2005). 1 The hearings officer originally held the record open until February 8,2006.See the January 17,2006 Order Opening the Record.However the applicant submitted an email to the City on February 2 waiving its final argument and requesting the hearings officer close the record. Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 9 40, • "Procedural errors,however, only provide a basis for reversal or remand if they prejudice a party's substantial rights. ORS 197.835(9)(a)(B)."Id. In this case the City cured the procedural error by holding a de novo appeal hearing. LUBA stated that if new evidence is submitted after the close of the comment period: [T]he local government must either: (1)reopen the record to allow other participants an opportunity to respond to the new evidence; or(2) reject the new evidence as untimely. ODOT v. City of Mosier,36 Or LUBA 666, 683 (1999). ...The failure to choose one of these options prejudices the substantial rights of the parties because it infringes on their right to a full and fair opportunity to present their case.Id. (Citations omitted). The City complied with the first option in this case; the City held a de novo appeal hearing,which afforded the public"full and fair opportunity to present their case" and to respond to the new evidence. In addition, the hearings officer held the record open for more than two weeks after the hearing to allow all parties an opportunity to submit additional evidence and testimony. There is no substantial evidence that delaying the public's opportunity to comment on the additional evidence until the appeal hearing prejudiced the public's substantial rights in this case. 3. The hearings officer finds that the City provided the public with adequate notice of the applicable approval criteria. a. Contrary to Ms. Bielke's assertion,both the initial notice of application/request for comments and the director's decision clearly listed TDC 18.725 as an applicable criteria. b. As discussed below,TDC 18.775.050 is not an applicable approval criteria because there are no wetlands on the site. c. The initial notice and the director's decision did not list TDC 18.370.030.C(1), 18.370.030.C(11)or TDC 18.370.010.C(2) as applicable approval criteria. However the hearings officer's order reopening the record clearly listed these code sections as potentially relevant approval criteria and invited public comment about those criteria.The City mailed that order to members of the public entitled to notice and other parties of record. 4. The hearings officer finds that there are no wetlands on the site. Therefore TDC 18.775.050 is inapplicable. a. TDC 18.120.030.A(145)defines "wetlands"as: Land often called swamp,marsh, or bog,that exhibits all of the following characteristics: Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 10 111 a. The land supports hydrophytic vegetation. This occurs when more than 50 percent of the dominant species from all strata are classified as wetland species; b. The land has hydric soils. Hydric soils are soils that are saturated, flooded,or in ponds long enough during the growing season to develop anaerobic conditions in the upper part of the soil profile; and c. The land has wetland hydrology. Wetland hydrology is permanent or periodic inundation, or soil saturation for a significant period(at least one week)during the growing season. The City will use the"Federal Manual for Identifying and Delineating Jurisdictional Wetlands"as the basis for determining where wetlands are located. ... b. The applicant's wetland expert conducted two onsite investigations to determine whether these wetland indicators (hydrophytic vegetation, hydric soils or wetland hydrology)were present on the site. Based on those investigations,none of the three criteria were present on this site. See the April 4,2005 letter from Randy Cunningham and the December 6, 2005 letter attached to the applicant's December 16, 2005 "First Post-Hearing Submittal." i. Opponents argued that the City should hire its own experts to review the site for wetlands. However the Code expressly provides that "wetland delineation will be done by qualified professionals at the applicant's expense."TDC 18.775.050.B. c. The appellants' wetland expert testified that he observed"slough sedge" (Carex obnupta) an obligate wetland plant,on the site. Based on the presence of this plant and other site conditions he opined that the site"may likely contain wetland conditions." p. 3 of the November 8, 2005 Memorandum from Jack Dalton. (the"Dalton Memo"). However Mr. Dalton was unable to reach a conclusive determination based on his observations of the site from adjacent properties and roads.He testified that"further site investigation is recommended to verify the presence or absence of wetlands on the site." Id. i. Mr. Cunningham and Professional Wetland Scientist Alision Rhea determined,based on on-site observations,that the vegetation observed by Mr. Dalton is actually"Henderson's Sedge,"another species from the"Carex"family. Henderson's Sedge is a facultative wetland plant that can grow in either wetland or upland conditions. See p. 1 of the December 6,2005 Cunningham letter. d. Ms. Bielke argued that the Hillsboro Loam, 21C soils on the site"is a hydric or wetland soil type."p. 1 of Ms. Bielke's December 18,2005 letter. (Emphasis in original).This is incorrect. The soil list attached to Ms. Bielke's letter is not a list of Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 11 • • hydric soils. It is a list of all of the soil types found in Washington County. Based on the description of Hillsboro soils in the Washington County Soil Survey, Hillsboro soils are not hydric soils. See Attachment 4 of the applicant's December 30, 2005 "Second Post- Hearing Submittal."Mr. Dalton also testified that the Hillsboro soils mapped on the site "is not listed as a hydric soil for Washington County."p. 2 of the Dalton Memo. e.Ms.Bielke noted that other Faculative plant species (Oregon ash, Pacific willow, western red cedar, creek dogwood and sedge) are scattered throughout the site and may indicate the presence of wetlands. Therefore the applicant should have investigated entire site for wetlands. However, as the applicant noted, these plants are located on topographic uplands and are growing with Douglas fir and other plant species that do no tolerate wetland conditions. See p. 2 of the applicant's"Second Post-Hearing Submittal." Mr.Dalton noted that topographic low point in the southeast corner of the site is the most likely location for wetlands to form.However"[h]ydric soil conditions would need to be present to"perch"the precipitation at the surface." p. 3 of the Dalton Memo. There is no substantial evidence that hydric soils exist anywhere on the site. f. The appellants argued that the below average rainfall in the months before the applicant's wetland investigation may have affected the hydrology on the site. However TDC 18.120.030.A(145)provides that all three wetland indicators must be present for an area to qualify as a"wetland."Even assuming that the necessary hydrology exists but was altered by the unusually dry winter and spring,the other two criteria(soils and vegetation)were not present on the site.Mr. Dalton's expert opinion that the site "may likely contain wetland conditions"is based on off-site observations and is insufficient to overcome Mr. Cunningham's expert opinion based on on-site observations, including subsurface analysis of the soils and hydrology.Therefore the hearings officer finds that the applicant sustained the burden of proof that the site does not contain wetlands. 5. The hearings officer finds that a plan amendment is not required to remove the wetland designation in this case. TDC 18.775.130 provides a process for quasi-judicial comprehensive plan amendment to remove Goal 5 protection from properties identified as"significant wetlands."However this site is designated as a"nonsignificant wetland" on the City's wetlands map See attachment 5 of the applicant's November 11, 2005 Appeal Hearing Response. 6.There is no substantial evidence that the site contains steep slopes of 25% or greater,based on the applicant's topographic survey. Neighbor's unsubstantiated opinion's that the site"may"contain areas of 25-percent slope is not sufficient to overcome the expert testimony of the applicant's professional surveyor,based on site specific measurements. Therefore TDC 18.775 is inapplicable. 7. The hearings officer finds that the application complies with TDC 18.790.030, based on the following: Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 12 • • a. The applicant submitted a tree plan prepared by a certified arborist outlining the proposed planting,removal and protection of trees on the site as required by TDC 18.790.030. Whether the applicant could save additional trees on the site is irrelevant. The Code provides incentives to encourage the retention of trees. However nothing in the Code prohibits the removal of trees,provided the applicant mitigates their removal pursuant to TDC 18.790.060D. Although"protection is preferred over removal wherever possible"(TDC 18.790.030.A)the Code leaves to the applicant the choice whether to save trees or mitigate for their removal. As described by LUBA: The ultimate standard that the [tree preservation ordinance] imposes is not a standard that requires protection of trees. Rather it is a standard that favors protection of trees but allows trees to be removed so long as any loss of more than 25-percent of large trees is mitigated.Miller v. City of Tigard,LUBA No. 2003-133 (2004). i. The hearings officer finds that TDC 18.90.010 and 18.745.010 are purpose statements,not applicable approval standards,The purpose statements are not relevant unless the implementing regulations that follow are ambiguous, and resort to the purpose statements is necessary to determine the context and meaning of ambiguous terms. See, e.g., Beck v. City of Tillamook, 18 Or LUBA 587 (1990)(Purpose statement stating general objectives only is not an approval criterion.) b. The hearings officer finds that the applicant's original tree survey did not comply with the submittal requirements of TDC 18.790.030.B(1)because it did not show the correct species of all existing trees on the site. As the applicant noted"the initial tree survey was...conducted by a survey crew."p. 2-3 of the applicant's "First Post-Hearing Submittal."The applicant's arborist merely"reviewed the condition of the trees shown on the survey..." See the March 16, 2005 letter from Stephen Goetz, Attachment J of the application.The City should have rejected the application as incomplete, because the tree survey was not prepared by a certified arborist as required by TDC 18.790.030.A. c. The hearings officer further finds that the applicant's revised Tree Inventory Plan does comply with TDC 18.790.030.B(1). The revised tree plan was prepared by a certified arborist and shows the correct species of all existing trees on the site. Therefore the hearings officer finds that the application complies with the submittal requirements of TDC 18.790.030.B.1. i. The applicant submitted the revised tree plan after the close of the initial public comment period. This was a procedural error.However the City cured that error, as discussed above, by conducting a de novo appeal hearing. d. The applicant proposed to remove 100-percent of the trees on the site. Therefore the applicant is required to mitigate for all of the trees removed,resulting in "no net loss of trees."TDC 18.790.030.B.2(a). The applicant is required to submit a Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 13 fp, revised mitigation plan consistent with this requirement prior to the issuance of building permits. See condition 2 of the director's decision. i. At the hearing the applicant proposed to save two trees within the proposed mini-park. As discussed in the director's decision, a new arborist's report is required for trees proposed for preservation to ensure that the retained trees are healthy. In addition,the applicant should be required to include these trees in any tree protection plan. A condition of approval is warranted to that effect. e. The hearings officer finds that the tree protection and mitigation standards of TDC 18.790 do not apply to trees located on adjacent properties. The tree removal ordinance is limited to trees located on the site, based on the plain meaning of the words in the Code. i. For the most part TDC 18.790 refers to "trees"generally, without distinction between on-site and off-site trees. The stated purpose of the Code is to"encourage the preservation, planting and replacement of trees in the City"generally. TDC 18.790.010.B(1). However the tree plan requirements are expressly limited to the" lot,parcel or combination of lots or parcels for which[development is proposed]."TDC 18.790.030.A. In addition,TDC 18.790.040.B requires that developers record a deed restriction prohibiting removal of retained trees.The applicant has no right to enter adjacent properties to perform pruning and other palliative measures necessary to ensure the survival of off-site trees. A developer cannot record a deed restriction over adjacent properties. Therefore the hearings officer finds that the Code does not require that the applicant protect trees on adjacent properties. ii. Condition of approval 1 of the director's decision requires that the applicant submit a protection plan for trees on adjacent properties. The hearings officer cannot modify this condition to require more protection,because the Code does not require preservation or protection of trees on adjacent properties. The hearings officer cannot delete this condition because the applicant did not appeal the director's decision and the applicant did not raise this issue during the,initial written comment period. Therefore the issue.exceeds the scope of appeal allowed by TDC 18.390.040.G. iii. Clearing on this site may expose trees on adjacent properties to greater wind impacts, increasing the possibility that trees will be blown down during storms. However that TDC 18.790 does not prohibit such impacts. iv. The hearings officer has no authority to determine whether and to what extent the applicant is liable if clearing, grading and construction activities on this site damage trees on adjacent properties. That is civil matter that is not regulated by the TDC. f. As discussed above,the site does not contain sensitive areas as defined by TDC 18.775. Therefore the tree removal permit requirements of TDC 18.790.050 are inapplicable. Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 14 • • g. The hearings officer finds that allegations that the site is subject to ,regulation as "Fish and Wildlife Habitat" and a"designated timbered or tree area"exceed the scope of the appeal,because such concerns were not raised during the initial written comment. In addition,there is no substantial evidence that the site is delineated on the "Fish and Wildlife Habitat Map"or that the site is a"designated timbered or tree area" subject to comp plan 3.4.2.b, c and d, cited by Ms. Bielke in her December 18, 2005 letter. Even if the site were so designated, the standards in the Comprehensive Plan are not directly applicable to this subdivision application because they have not been incorporated into the zoning/development code as required by ORS 197.195(1). 8. Clearing and development on this site will eliminate habitat for wildlife, including habitat for migratory birds. But the TDC does not prohibit such an effect. On the contrary,it is an inevitable consequence of concentrating new development in the urban area. None of the animals observed on this site is listed as endangered or threatened. They are commonly observed in the urban area. Their presence is less likely after the site is developed, but that is to be expected. There is no substantial evidence that any endangered or threatened species exist on the site. 9. The hearings officer finds that the federal Migratory Bird Treaty Act(the "MBTA") is not an applicable approval criteria. The hearings officer cannot rely on a treaty to deny or condition approval of the application,because a treaty is not part of the local development regulations.2 The MBTA is not incorporated by reference pursuant to TDC 18.725.020.A, because it is not a regulation related to "noise, odor, or discharge [of pollutants]."3 Although the removal of trees may affect wildlife habitat including habitat for migratory birds, the TDC does not prohibit such impacts. 2 ORS 227.173(1)provides as follows: Approval or denial of a discretionary permit application shall be based on standards and criteria, which shall be set forth in the development ordinance and which shall relate approval or denial of a discretionary permit application to the development ordinance and to the comprehensive plan for the area in which the development would occur and to the development ordinance and comprehensive plan for the city as a whole.(emphasis added) See also,McNern v. City of Corvallis,39 Or LUBA 591 (2001)(While a development may have to eventually comply with federal laws,such as the Endangered Species Act,unless local approval criteria or federal law provisions require that the local decision that approves the development also demonstrate compliance with federal law,the decision need not do so)and Schultz v. City of Grants Pass,22 Or LUBA 457(1991)(A local code provision requiring that partitions comply with"applicable State and Federal laws"does not make all state and federal statutes and constitutional provisions which are implicated in some way by a particular partition decision"land use standards"within the meaning of former ORS 197.015(10)(b)(B)); 3 TDC 18.725.020.A provides: Compliance with applicable state and federal regulations.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 Regulations adopted by the State Environmental Quality Commission Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 15 10.Neighbors testified that the existing forest on the site is a habitat for rats and other vermin. Clearing on the site will eliminate that habitat and drive the animals onto their properties. While such concerns are reasonable,they are speculative. There is no substantial evidence that clearing on this site will cause a significant increase in vermin on adjacent properties. It is equally likely that the proposed development will reduce the rodent population by reducing the amount of habitat available to support them. In any case, the Code does not regulate this issue. The hearings officer finds that the proposed development is consistent with TDC 18.725.030.F,which prohibits the creation of conditions that"[a]ttract or aid the propagation of insects or rodents or create a health hazard."Assuming the existing forest on the site provides habitat for vermin, the proposed development will reduce the amount of habitat available in the area,reducing the attraction and propagation of insects and rodents. 11. The hearings officer finds that the applicant is required to extend SW Patti Lane, SW Langtree Street and SW 81st Avenue through the site to comply with the street extension and connectivity standards of TDC 18.810.030.H and TDC 18.81.030.D(2).4 pertaining to non-point source pollution control and contained in the Oregon Administrative Rules shall by this reference be made a part of this chapter. 4 TDC 18.810.030.H provides: 1. Full street connections with spacing of no more than 530 feet between connections is required except where prevented by barriers such as topography,railroads,freeways,pre-existing developments,lease provisions,easements,covenants or other restrictions existing prior to May 1, 1995 which preclude street connections.A full street connection may also be exempted due to a regulated water feature if regulations would not permit construction. 2 All local,neighborhood routes and collector streets which abut a development site shall be extended within the site to provide through circulation when not precluded by environmental or topographical constraints,existing development patterns or strict adherence to other standards in this code.A street connection or extension is considered precluded when it is not possible to redesign or reconfigure the street pattern to provide required extensions.Land is considered topographically constrained if the slope is greater than 15%for a distance of 250 feet or more.In the case of environmental or topographical constraints,the mere presence of a constraint is not sufficient to show that a street connection is not possible.The applicant must show why the constraint precludes some reasonable street connection. 3. Proposed street or street extensions shall be located to provide direct access to existing or planned transit stops,commercial services,and other neighborhood facilities,such as schools,shopping areas and parks. 4. All developments should provide an internal network of connecting streets that provide short, direct travel routes and minimize travel distances within the development. TDC 18.81.030.D(2)provides: Where the location of a street is not shown in an approved street plan,the arrangement of streets in a development shall either: a. Provide for the continuation or appropriate projection of existing streets in the surrounding areas, or b. Conform to a plan adopted by the Commission,if it is impractical to conform to existing street patterns because of particular topographical or other existing conditions of the land.Such a plan shall be based on the type of land use to be served,the volume of traffic,the capacity of adjoining streets and the need for public convenience and safety. • Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 16 • O There is no adopted street plan for this area. Therefore the applicant is required to "provide for the continuation or appropriate projection of existing streets in the surrounding area."TDC 18.81.030.D(2). The hearings officer finds that the proposed preliminary plat"[c]onform[s]to the plats of subdivisions and maps of major partitions already approved for adjoining property..."by continuing these streets, which prior developments stubbed to the boundaries of the site. TDC 18.430.040.A(3). The proposed street layout connects the existing streets in the area, enhancing compliance with TDC 18.810.030.H(l)and the City's connectivity goals.5 a. The appellants argue that the street layout should be designed to maintain a"fused grid"street design with cul-de-sac and dead end streets. Seep. 2 of Mr. Dobson's December 16, 2005 letter. The appellants argue that"this layout helps improve community livability and encourages non-motorized transportation."Id. The hearings officer understands that some residents may prefer to live on dead-end streets that limit through traffic. The City presumably considered the advantages and disadvantages of a fused grid"versus an interconnected street design when it adopted the current Code. The City concluded that the advantages benefits of connectivity outweigh the disadvantages and adopted the current standards which are intended to result in the creation of an interconnected street grid. See e.g., TDC 18.810.030.H(1).The hearings officer must apply the City's existing code and cannot reconsider the issue in this proceeding. b. The extension of these streets was foreseeable.The very nature of the existing design of the streets abutting the site--- as public rights of way stubbed to the boundaries of the site without tumarounds --- evidenced an intention that the streets would be extended. TDC 18.810.030.H(2)requires that the applicant extend these streets through the site. For people who have lived along what have heretofore been dead-end streets, the change created by the extension of these streets will be more significant. They have enjoyed a relatively low level of traffic given their location in an otherwise urbanized area.But it is time to extend the streets to accommodate development on this site and fulfill the City's connectivity and cross circulation goals. c. The hearings officer finds that the proposed street connections are unlikely to generate significant"cut-through"traffic. Drivers will logically travel on the shortest, most direct route between destinations. The proposed street connections may provide a direct route to Durham Road for some existing residents living west of the site. It may also provide a direct route to Hall Boulevard for some existing residents living east of the site. However the proposed street connections are unlikely to attract cut- through traffic between Hall Boulevard and Durham Road. Drivers using the proposed street connections as a cut-through route must meander through the area on several different streets with many stops and turns. SW Ashford Street north of the site provides a similar,but more direct, cut-through route under existing conditions.There is no substantial evidence that this street carries a disproportionate volume of traffic or otherwise encourages drivers to cut-through the local neighborhood. 5 These"goals"are reflected in the street spacing and connectivity requirements of TDC 18.810.030.H, which implement the state Transportation Planning Rule. Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 17 • 110 _ _ _ . 12. The proposed development and street connections will generate increased traffic on area streets.That increased traffic will be perceptible to area residents. However the City Engineer determined that it will not exceed the capacity of streets nor create a hazard,based on the applicant's September 2005 traffic impact study. There is no substantial evidence to the contrary. Neighbors testified that the traffic from the development will exacerbate existing hazards.Neighbors' observations of existing traffic is substantial evidence.But their predictions that the traffic from the proposed subdivision and street connection will make the streets unsafe are not supported by substantial evidence, because they are not experts in such matters. The hearings,officer finds that the expert testimony by the traffic engineers for the applicant and the City is more persuasive than neighbors' testimony about the impact of traffic from the subdivision and street connection on area streets. a. Some of the traffic from the proposed development will use SW 79th Avenue.There is no dispute that this street does not provide optimum driving conditions. There are no sidewalks or street lights, the pavement is narrow with little or no shoulder and there are several hills. However this does not mean that the street is unsafe. Many streets in the City are in this same condition. However these potential conditions are obvious.Reasonably prudent drivers will observe the posted speed limit and if necessary, further reduce their speed to accommodate changing road conditions. Unfortunately not all drivers are prudent enough to observe posted speed limits and road conditions. However there is no evidence that the development proposed in this application will contribute a disproportionate share of imprudent drivers. The hearings officer encourages area residents to contact local law enforcement agencies to request enhanced enforcement of traffic laws in this area if necessary to ensure compliance with speed limits and other traffic regulations. b. Higher traffic volumes create a proportionally higher risk for drivers, pedestrians and bicyclists.In response reasonably prudent people exercise more care personally and with family members. Those risks are consistent with the location of the site in the urban area where City plans call for the sort of development being proposed. c.The hearings officer finds that TDC 18.705.030.G(1)is inapplicable to this subdivision application. This section only applies to review of building permits,not subdivisions,and to accesses(driveways),not public street connections, based on the plain meaning of the words in the Code. In addition,there is no substantial evidence that the proposed street connection to 81st Court/Bond Street will"cause or increase existing hazardous traffic conditions."Neighbor's unsupported opinion is not substantial evidence. 13. Opponents of the application disputed the accuracy and findings of the traffic study. However they failed to offer any substantial evidence to contradict the findings of the traffic study.The traffic study was conducted by a licensed professional engineer based on actual traffic volumes.Future traffic volumes were estimated using accepted methods of calculation based on the type and amount of development proposed;The Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 18 • • unsubstantiated opinions of local residents of what the traffic effects will be is not sufficient to overcome the expert testimony of the traffic engineers for the City and the applicant. Therefore the hearings officer fords that the traffic study is sufficiently accurate and the conclusions reached are valid. a. Neighboring residents argued that background traffic counts conducted in August are inaccurate because school was not in session. Neighbors also argued that traffic from the proposed development will travel northbound on SW 79th Street and the traffic analysis failed to consider the impacts of that traffic. The applicant's traffic engineer submitted a revised analysis that included school generated traffic. See attachment 3 of the applicant's First Post Hearing Submittal. The applicant's traffic engineer submitted another revised analysis that assumed 30-percent of the peak-hour trips will travel northbound on SW 79th Street. See attachment 6 of the applicant's Second Post Hearing Submittal. Those analyses concluded that traffic generated by the proposed development will not exceed the capacity of area streets and intersections, including the intersection of 79th and Bonita, even with the additional traffic generated by school activities. There is no substantial evidence to the contrary. b. The intersection of Bonita Road and 79th Avenue is expected to reach a failing level of service ("LOS F")by 2015 regardless of the proposed development. See p. 2 of the January 11, 1999 traffic study by DKS Associates. Signal warrants are expected to be met at this intersection by 2008.Id. However traffic generated by the proposed development will have a de minimis impact on this intersection.6 The hearings officer fords that the projected future failure of this intersection does not provide a basis for denial of this application or denial of the proposed connection to 81St Court/Bond Street. Applicants are not required to remedy all perceived and existing deficiencies in the vicinity of a development. The Code requires an applicant to mitigate impacts a development causes or to which it contributes significantly. It would be inequitable to require an applicant to bear the full burden of improvements where the proposed development is only responsible for a small portion of the problem. The need for a traffic signal at the Bonita Road/79th Avenue intersection is created by all of the existing development in the area,not just the lots being created in this case. There is no substantial evidence that this intersection is hazardous under existing conditions or that the small increase in traffic generated by the proposed development and street connection will cause or exacerbate a hazard. Based on the DKS study, this intersection will continue to operate at an acceptable level of service for another 9 years. During that time the City may choose to install a traffic signal or other mitigation measures necessary to prevent failure of the intersection. 14. The applicant requested an adjustment to the street spacing requirements of TDC 18.705.030.H(4), which requires a minimum 125 feet spacing between local street intersections. 6 Traffic volumes generated by the proposed development"are too low to have a measurable impact on the intersection."P. 1 of the December 9,2005 letter from Lancaster Engineering,Exhibit 6 to the applicant's December 30,2005"Second Post-Hearing Submittal." Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 19 • • • a. The City originally approved an adjustment to this standard pursuant to TDC 18.370.030.C(5). The hearings officer finds that TDC 18.370.030.C(5) is inapplicable in this case. This standard is expressly limited to adjustments to the access and egress standards (e.g., driveways),based on the plain meaning of the words in the code?TDC 18.370.030.C(5)does not apply to the spacing of public street intersections. i. The appellant argued that the applicant has no standing to raise this issue at this time,because the applicant did not appeal the director's decision. TDC 18.390.030.G(2)limits appeals to"[t]he specific issues raised during the written comment period..."The hearings officer fords that the applicability of TDC 18.370.030.C(5)falls within the scope of the appeal in this case because the appeal alleged that the application does not comply with this section. In addition,TDC 18.390.030.G(2)further provides that"[t]he Hearings Officer, at his or her discretion, [may] allow... additional evidence or testimony concerning any other relevant issue...[where] such evidence is necessary to resolve the case."The hearings officer finds that determination of the applicable adjustment standard and whether the application complies with the criteria for the relevant adjustment standard is "necessary to resolve the case." ii.The hearings officer finds that the Code does not require denial of the application for failure to list TDC 18.370.030.C(1), 18.370.030.C(11) or TDC 18.370.010.C(2)as applicable criteria. The hearings officer reopened record to allow all parties an opportunity to comment on which is standard is applicable and whether the application complies with the criteria for the applicable standard. See the January 17, 2006 Order Opening the Record. The City mailed the order to members of the public entitled to notice and other parties of record,providing the public a"full and fair opportunity to present their case"consistent with LUBA's decision in Wal-Mart Stores, Inc. v. City of Oregon City,LUBA No. 2004-124(2005). 15. The applicant argued that TDC 18.705.030.H(4) is not applicable to this application because it"[c]onflict[s] with the subdivision rules and standards of this title." TDC 18.705.020.D provides "the requirements and standards of this chapter shall not apply where they conflict with the subdivision rules and standards of this title." The applicant specifically argues that the 125-foot street spacing requirement of TDC 18.705.030.H(4)conflicts with the street extension and connectivity requirements of the subdivision regulations. Therefore TDC 18.705.030.H(4)does not apply and an adjustment/variance is not required. 7 TDC 18.120.030.A provides the following definitions: "Access"-The place,means or way by which pedestrians,bicycles and vehicles enter or leave . property.A private access is an access not in public ownership and is controlled by means of deed, dedication or easement. 18.120.030.A(3) "Egress"-An exit. 18.120.030.A(64). Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 20 • • a. The hearings officer finds that TDC 18.705.020.D only applies to conflicts in the text of the code. It is not intended to apply to "as applied"conflicts. The applicant failed to identify any conflict between the 125-foot street spacing requirement of TDC 18.705.030.H(4) and the text of the subdivision rules and standards. The applicant only identified an as applied conflict caused by the unique circumstances that exist on this site; i.e., the location of existing street stubs and development. That is precisely the type of situation the variance and adjustment criteria of TDC 18.370 are intended to address.See TDC 18.370.010.A. 16. The hearings officer finds that the street spacing standard of TDC 18.705.030.H(4)is a"street improvement requirement"subject to adjustment pursuant to TDC 18.370.020.C(11).8 Although TDC 18.705.030.H(4)is not listed in TDC 18.810, it is clearly incorporated by reference in TDC 18.810.030.G, which provides "street spacing and access management. Refer to 18.705.030.H." a. The hearings officer finds that an adjustment is warranted in this case because strict compliance with the street spacing requirements of TDC 18.705.030.H(4) will"[r]esult in an unacceptably adverse impact on existing development...[and the] "adverse impacts exceed the public benefits of strict application of the standards."TDC 18.370.020.C(11). i. Strict compliance with the street spacing standards of TDC 18.705.030.H(4) will have the following adverse impacts on existing development: (A) Strict compliance with the street spacing standards of TDC 18.705.030.H(4) will preclude the extension of 815=Court into the site and completion of the planned network of interconnected streets. All of the prior developments abutting the site extended streets to the boundaries of this site,evidencing an intent to extend these streets through the site and create an interconnected street system when this site is developed, consistent with TDC 18.810.030.H. Strict compliance with the street spacing standards will have an adverse impact on existing and proposed development by forcing local trips to use the arterial/collector streets, increasing congestion and by increasing vehicle miles traveled. Strict compliance will also require that all traffic from this site to use Langtree Street, forcing the neighborhood to the west of the site to bear all of the traffic impacts of the proposed development. 8 TDC 18.370.020.C(11)provides: Adjustments for street improvement requirements(Chapter 18.810).By means of a Type II procedure,as governed by Section 18.390.040,the director shall approve,approve with conditions or deny a request for adjustment to the street improvement requirements,based on findings that the following criterion is satisfied:Strict application of the standards will result in an unacceptably adverse impact on existing development,on the proposed development,on natural features such as wetlands,steep slopes or existing mature trees.In approving an adjustment to the standards,the Director shall determine that the potential adverse impacts exceed the public benefits of strict application of the standards. Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 21 • • (13)The design of Bond Street and 815`Court abutting the site also indicate an intent that these streets will be extended when this site is developed. These streets were constructed as a roughly 1000-foot long dead-end street with no turnaround. SW 815`Court must be extended into the site and connected to other streets to provide emergency access and circulation. Strict compliance with the street spacing standards will preclude extension of this street,resulting in a permanent dead end street, reducing emergency access to homes south of the site. (C)In addition, strict compliance with the street spacing standards will preclude completion of Bond Street abutting the site. Bond Street was designed and constructed as a partial-width improvement, with the remainder of the street improvements to be provided by development on this site. Prohibiting access to 815` Court/Bond Street from this site would eliminate any nexus between the impacts of the development and the required dedication and improvements for Bond Street. Therefore the City could not constitutionally require that the applicant construct the remainder of the Bond Street improvements. ii. The hearings officer finds that these impacts outweigh the "public benefits of strict application of the standards" in this case. TDC 18.370.020.C(11). (A)The primary public benefit of the street spacing standard is public safety. Spacing between intersections reduces the risk of potentially conflicting turn movements from intersections in close proximity to each other. (B) In this case the proposed street design will create two "T"intersections in relatively close proximity to each other; the intersection of 81"Court and Bond Street and the intersection of 815`Court and Patti Lane.However the location and design of these streets is expected to minimize these potential hazards: See the December 29, 2005 letter from Lancaster Engineering. The short street sections and 90- degree curves will limit vehicle speeds approaching these intersections. In addition, the intersections are expected to carry relatively low volumes of traffic. There is no substantial evidence to the contrary. (C)The hearings officer finds that the adverse impacts on the existing development in the surrounding area more than offsets the minor safety risk created by the reduced intersection spacing in this case. Therefore the application complies with TDC 18.370.020.C(11). (D)Neighbors argued that extension of 815`Court will create a hazard because it will increase the volume of traffic on 79th Avenue.The hearings officer finds that,to the extent such impacts will occur and create a hazard, they are not relevant to the proposed adjustment to the intersection spacing requirements. The Code requires that the applicant extend the existing streets to provide cross-circulation through the site,including the extension of 8151 Court,regardless of the proposed adjustment. The adjustment is necessary to provide connectivity in this case. But hazards Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 22 • alleged by the opponents result from the connectivity requirements,not from the adjustment to the intersection spacing. b. The hearings officer further finds that the proposed modification complies with the criteria in TDC 18.810.030.A(7) and 18.810.030 E(1), based on the findings in Applicant's January 25, 2006 submittal. The hearings officer adopts those fmdings as his own and incorporates them herein by reference. 17. The applicant argued, in the alternative, that the proposed adjustment should be reviewed under TDC 18.370.030.C(1), "Adjustments to development standards within subdivisions"or the general variance criteria of TDC 18.370.010.C(2). The hearings officer finds that the that the specific criteria of TDC 18.370.030.C(11), which regulates adjustments to street improvements, should prevail over the general criteria of TDC 18.370.030.C(1)and TDC 18.370.030.C(1). However this determination could conceivably be reversed on appeal. Therefore, for the sake of completion,the hearings officer will address the approval criteria of TDC 18.370.030.C(1) and TDC 18.370.010.C(2). a. The hearings officer finds that the proposed modification to the street spacing standards complies with TDC 18.370.030.C(1),based on the following: i. The location of the existing Bond Street/81st Court intersection and the long and narrow shape of the site are"special circumstances affecting the property which are unusual and peculiar to the land as compared to other lands."TDC 18.370.030.C(1)(a). 81st Court was stubbed to the south boundary of the site by a prior development. However the location of the street stub and shape of the site preclude the extension of this street into the site as required by TDC 18.810.030.H and TDC 18.81.030.D(2) in compliance with the spacing requirements of TDC 18.705.030.H(4). ii. The hearings officer finds that"the adjustment is necessary for the proper design and function of the subdivision" including the streets within and abutting the subdivision. TDC 18.370.030.C(1)(b). The adjustment is necessary to create an interconnected street system within the site consistent with the city's cross-circulation goals and TDC 18.810.030.H and TDC 18.81.030.D(2). Without the adjustment, access to the site, including emergency vehicle access,would be limited to a single street, SW Langtree. Residents of the site would be forced to undertake substantial out of direction travel in order to reach destinations to the south and east of the site. In addition, emergency vehicles would be limited to a single access point, which could be blocked in an emergency. iii. The hearings officer finds that"the granting of the adjustment will not be detrimental to the public health, safety and welfare or injurious to the rights of other owners of property." As discussed above,the reduced intersection spacing will not create a hazard due to the low speeds and traffic volumes in the area. Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 23 • S . iv. The hearings officer finds that"the adjustment is necessary for the preservation and enjoyment of a substantial property right because of an extraordinary hardship which would result from strict compliance with the [street spacing standards]." Strict application of the street spacing standards would preclude access to 81s`Court and Bond Street, local public streets abutting the site, access to which is a" substantial property right."In addition, denial of the adjustment would limit emergency access to a single street,SW Langtree Street,which could become blocked in an emergency. b. The hearings officer finds that the proposed adjustment to the street spacing standards complies with TDC 18.370.010.C(2)based on the following: i. The proposed adjustment will not be materially detrimental to the purposes of this title,to any other applicable policies and standards and to other properties in the same zoning district or vicinity.TDC 18.370.010.C(2)(a). To the contrary, the adjustment is necessary to achieve the City's cross-circulation and connectivity goals. The adjustment will not be materially detrimental to other properties, because it will not create a hazard,based on the applicant's traffic analysis and the above discussion. ii. The existing Bond Street/81"Court intersection and the long and narrow shape of the site are"special circumstances which are peculiar to the lot size or shape...over which the applicant has no control,and which are not applicable to other properties in the same zoning district."TDC 18.370.010.C(2)(b). 81st Court was stubbed to the south boundary of the site by a prior development. However the location of the street stub and shape of the site preclude the extension of this street into the site as required by TDC 18.810.030.H and TDC 18.81.030.D(2) in compliance with the spacing requirements of TDC 18.705.030.H(4). iii.The proposed modification will facilitate development of a residential subdivision on the site, a permitted use in the R-25 zone. City standards will be maintained to the greatest extent possible. The modification will alter the street spacing standards,but it will facilitate compliance with the connectivity and cross- circulation standards of TDC 18.810.030.H and TDC 18.81.030.D(2).Therefore the modification request complies with TDC 18.370.010.C(2)(c). iv.The proposed modification will not impact the"existing physical and natural systems...any more than would occur if the development were developed as specified in this title. TDC 18.370.010.C(2)(d). The proposed modification will enhance traffic circulation through the area, consistent with Code requirements. The modification will not create a traffic hazard,based on the applicant's traffic analysis and the above discussion. v.The hardship is not self-imposed. The hardship, and the need for the adjustment,results from the location of the existing street stub and the shape of the site. The requested adjustment is the minimum necessary to alleviate the hardship and Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 24 • • allow the extension of 18th Court into the site. Therefore the application complies with TDC 18.370.010.C(2)(e). 18. The hearings officer finds that the applicant submitted an impact study discussing the impacts of the development on the listed"public facilities and services" including the transportation system, drainage and parks systems, fulfilling the requirements of TDC 18.390.040.B(2)(e). See Exhibit L of the July 22, 2005 application materials. The Code does not provide any standards for review of impact studies. It is primarily an informational requirement that the City can use to determine whether existing public facilities have sufficient capacity to accommodate the proposed development. The City engineer reviewed the impact study and other evidence in the record and determined that the development does or can comply with all applicable approval criteria and all affected public facilities have sufficient capacity to accommodate the proposed development. There is no substantial evidence to the contrary. The appellants argued that the impact study is inadequate. But they failed to point to any specific standards or provide any substantial evidence in support of that. contention. a. The hearings officer finds that the impact study is not required to address the impact of the proposed development on trees,privacy, storm water drainage onto adjacent properties and other generally impacts to adjacent properties,because trees, privacy and adjacent properties generally are not"public facilities or services." b. The hearings officer finds that the impact study is not required to address the cumulative impacts of other developments in the area, based on the plain meaning of the words in the Code. TDC 18.390.040.B(2)(e)provides "The impact study shall quantify the effect of the development on public facilities and services."(Emphasis added). i. The applicant's traffic analysis did consider the cumulative impacts of traffic by including background traffic growth factor. c. Construction on this site will temporarily cause increased noise, dust and other impacts on adjacent properties. This is only one of the many consequences of living in an urban area. The designation of the subject property as "residential"in the comprehensive plan and zoning ordinances means that the City has already determined that the amount of noise typically associated with a residential subdivision is acceptable at this location. There is no substantial evidence that construction on this site will generate unusual or excessive noise impacts. The hearings officer finds that, while such impacts may occur, they are not significant enough to require specific limitations on construction other than those imposed by State law and the City Code.Area residents should contact the City if they believe that contractors are not complying with applicable requirements and construction activities cause excessive impacts. d. The appellants argued that there is a need for additional parks in the area. The proposed development contributes to the need for parks. However this need Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 25 • S exists largely because of existing development. It would be inequitable to require this applicant to bear the full burden of parkland dedication and improvements where the proposed development is only responsible for a small portion of the problem. The need for parks is one that exists generally in the area, and is a need to which all properties in the area contribute,not just the lots being created in this case. The proposed development will mitigate its impact on park facilities by paying park System Development Fees ("SDCs")as required by TDC 3.24 and by providing a"mini-park" on the site. i. The hearings officer cannot delay action or deny approval of the application to allow the City an opportunity to purchase the site as a park. The applicant proposes to divide the site. If the application complies with the applicable standards and criteria in effect when the application was filed,then it must be approved, whether or not the site could be used as a park.TDC 18.810.080 provides that the City may require dedication or reservation of a park or open space area within a subdivision site where such facilities are"shown in a development plan adopted by the City"or"where considered desirable by the Commission in accordance with adopted comprehensive plan policies..."and the dedication or reservation is roughly proportional to the impact of the subdivision on the park system. In this case there is no substantial evidence that the site is identified as a park site on any adopted plan or that development of a park on this site is "[c]onsidered desirable by the Commission in accordance with adopted comprehensive plan policies..."In addition,preservation of the entire site as a park would clearly exceed the roughly proportional impacts of the proposed development on the need for parks. ii. The applicant proposed to dedicate the mini-park to the City or to a homeowner's association to ensure regulation of maintenance for the mini-park. A condition of approval is warranted to that effect. 19. The hearings officer finds that the proposed development can accommodate stormwater runoff from the site consistent with the requirements of TDC 18.810.100, based on the applicant's Preliminary Stormwater Report dated March 21, 2005. Exhibit K of the July 22, 2005 application materials.There is no substantial evidence to the contrary.The applicant will collect stormwater runoff from impervious areas of the site, convey it to a stormwater facility in the south end of the site for treatment and detention. The applicant will release treated stormwater to the public storm sewer system a rate equal to or less than the predevelopment rate. a. The proposed storm water drainage system is separate and independent of any sanitary sewerage system. TDC 18.810.100.A(1). b. The applicant proposed to provide storm water inlets throughout the streets on the site to collect surface water and ensure it is not carried across any intersection or allowed to flood any street TDC 18.810.100.A(2). See plan sheets 7 of 19 and 9 of 19 through 19 of 19. Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 26 • • . c. Surface water drainage patterns are shown on the plans included with the storm water report show as required by TDC 18.810.100.A(1). See Plan Sheet BM included with the applicant's Preliminary Stormwater Report. d. There are no watercourses, drainageways, channels or streams on the site.Therefore TDC 18.810.100.B is inapplicable. e. The hearings officer finds that it is feasible to accommodate upstream drainage consistent with TDC 18.810.100.C. As the applicant noted, the site is completely surrounded by existing streets and urban development that blocks the majority of storm water runoff flowing onto the site. Upstream runoff is limited to sheet flows across abutting residential yard areas. See the topographic map, Plan Sheet 3 of 19. The applicant can design the final storm water system to accommodate this runoff and can enlarge the stormwater facility if necessary. f. The applicant proposed to detain treated storm water on the site prior to releasing to the existing downstream storm drainage system. The City Engineer concluded that the proposed detention facilities is adequate to ensure that additional runoff resulting from the development will not overload any existing drainage facilities. See p. 6 of the August 31,2005 Memorandum from Kim McMillan, City Development Review Engineer. There is no substantial evidence to the contrary. Therefore the hearings officer finds that it is feasible to comply with TDC 18.810.100.D. g. The hearings officer finds that the proposed development will not increase the overall volume of runoff flowing onto adjacent properties. To the contrary, the proposed development is likely to reduce the overall volume of stormwater runoff flowing onto adjacent properties. The topography maps in the record demonstrate that stormwater falling on this site flows downhill to the south,and southeast, onto the adjoining properties,under existing conditions.The applicant proposed to collect storm water from the impervious areas of the site and to convey it to a detention pond at the south end of the site prior to discharge to the existing drainage system at less than predevelopment rates. The proposed stormwater facilities will capture runoff that would otherwise flow onto adjacent properties and will divert it to the detention pond. The applicant opined that the proposed development will reduce the total land area from which surface flows onto adjacent properties to the east by approximately 95% or more. Seep. 12 of the applicant's November 11,2005 Appeal Hearing Response. i. The hearings officer fords that the proposed grading may result in localized increases or concentration of storm water runoff onto some adjacent properties. Based on the topographic maps in the record, it appears that the southeast corner of the site generally drains directly south under existing conditions. The proposed grading will alter the existing topography, creating small areas of steeper(3:1) grade in the rear yards of Lots 1 through 9 and Lots 13 through 15 that slope down to the east. See Plan Sheet 6 of 19. These sloped areas may alter existing storm water flows and direct additional runoff onto adjacent properties to the east. However the hearings officer fords that it is feasible to reduce or eliminate this impact consistent with Clean Water Services Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 27 • . ("CWS") regulations and state law regarding surface runoff. If necessary, the applicant can grade the site to direct runoff away from adjacent properties, install drains near the boundaries of the site or utilize other measures to capture surface water before it leaves the site.This is required by condition 21 of the director's decision.The applicant can address this issue during the final engineering stage. h. The hearings officer finds that the proposed stormwater quality and detention pond will not have an adverse impact on surrounding properties. The applicant must design, build and maintain the pond consistent with CWS regulations. There is no substantial evidence that similar ponds that are utilized throughout the region create a hazard for adjacent residents.The applicant will install fencing to restrict access to the pond if required by CWS. i. The hearings officer finds that the proposed subdivision does or can comply with the flood control requirements of TDC 18.430.020.F through I, to the extent these provisions apply to this development. i. The hearings officer finds that the subdivision is designed to minimize flood damage. TDC 18.430.020.F. The applicant will collect storm water runoff from the site and convey it to a treatment and detention pond prior to release to the existing storm system at less than predevelopment rates. The applicant will grade the site to direct storm water towards the storm water inlets. ii. The site is not located within or near the 100-year floodplain. Therefore TDC 18.430.020.G is inapplicable. iii. The hearings officer finds that it is feasible to design and install public utilities and facilities such as sewer, gas, electrical, and water systems in a manner that will minimize flood damage. The City can ensure compliance with this requirement during the final engineering review. iv.The hearings officer finds that the proposed development will provide adequate drainage to reduce exposure to flood damage, based on the above discussion regarding the design of the storm water system and compliance with CWS regulations. There is no substantial evidence to the contrary. 20.The hearings officer fmds that the proposed development will not cause significant problems with erosion and sedimentation. a. The appellants' engineer testified that"soil movement (erosion) is likely to be severe"given the"fine silty loam soils..." on the site. See the November 28, 2005 letter from Robert B. Rohol,P.E. He argued that the erosion control measures proposed in the applicant's preliminary erosion control plans"will only be adequate during the driest season...""A more comprehensive plan"will be required to control erosion at any other time of the year.Id. Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 28 • • b. CWS's Design and Construction Standards regulate erosion control to reduce the amount of sediment and other pollutants reaching the public storm and surface water system resulting from development, construction, grading, excavating,clearing, and any other activity which accelerates erosion.Per CWS regulations, the applicant is required to submit an erosion control plan for City review and approval prior to issuance of City permits. See Condition 20 of the director's decision. In addition, the applicant is required to obtain a National Pollutant Discharge Elimination System(NPDES)erosion control permit prior to construction. The applicant will design the erosion control measures as necessary to control erosion based on the actual construction methods and season. CWS can require additional erosion controls if necessary to accommodate wet weather, steep slopes or other unique conditions. The hearings officer fords that it is feasible to comply with CWS regulations. There is no substantial evidence to the contrary. 21. The applicant is not required to provide detailed engineering designs at this stage of review. The purpose of the preliminary storm water and erosion control plans is to determine whether that it is feasible to comply with applicable criteria. The preliminary plans are conceptual, and analysis of all technical details is not required. See Meyer v. City of Portland, 67 Or App 274,n 6, 678 P2d 741, rev den 297 Or 82(1984). ([C]onditions of approval may include conditions that specific technical solutions to identified development problems be submitted and reviewed and approved by the government's technical staff."). To require complete, detailed storm water and erosion control plans prior to approval of the plat would require re-working the entire plan any time amendments or modifications of the plat are required.This would be highly inefficient and is not necessary to protect the public interest. City staffs review of the final plans provides adequate protection of the public interest. An opportunity for public review of the final plans is not required by law. However the applicant's final engineering plans are public records that the appellants or their engineer may review. 22. The hearings officer finds that it is feasible to obtain a Stormwater Connection Permit from CWS pursuant to its"Design and Construction Standards"as required by TDC 18.775.020. The applicant can submit an application for the required permit and CWS will review it for compliance with applicable regulations. A condition of approval is warranted to that effect. a. The applicant argues that this provision is inapplicable,because the site does not contain any"sensitive lands."However the hearings officer finds that this provision applies to"all proposed `development'...as defined in the CWS `Design and Construction Standards',based on the plain meaning of the words in the Code.This requirement is the first provision in the"applicability"section of TDC 18.775. There is nothing to indicate that it is limited to development within or near sensitive areas. It expressly applies to"all development"without limitation. 23. The hearings officer finds that other issues raised in the appeal, at the hearing and during the open record period that are not directly addressed in the above discussion exceed the limited scope of appeal permitted by TDC 18.390.040.G.2.b, because they Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 29 • • were not raised with sufficient specificity during initial comment period or otherwise "necessary to resolve the case."TDC 18.390.040.G(2(b). 24. The hearings officer did not conduct a site visit in this case.CDC 18.390.050.D(9)provides that the hearings officer may conduct a site visit,provided the hearings officer discloses that fact at the hearing. The hearings officer concluded that a site visit would not clarify the issues in this case,which are primarily legal issues or involve factual issues which require certain expertise(i.e.,whether wetlands exist on the site). D. CONCLUSIONS Based on the findings adopted and incorporated herein, the hearings officer concludes that the appeal should be denied,because the applicant sustained the burden of proof that the proposed subdivision does or will comply with the applicable approval standards of the Tigard Community Development Code, subject to conditions adopted by the manager, and the appellants failed to provide substantial evidence or evidence of equal or greater probative value to the contrary and/or failed to persuade the hearings officer that the application violates the applicable approval standards based on such evidence. Therefore the hearings officer should affirm the manager's decision with minor modifications. E.DECISION In recognition of the findings and conclusions contained and incorporated herein, the hearings officer hereby denies the appeal, affirms the decision of the planning manager and approves SUB 2004-00014 (Gage Forest) subject to the following conditions of approval: • Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 30 • CONDITIONS OF APPROVAL THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO COMMENCING ANY ONSITE IMPROVEMENTS,INCLUDING DEMOLITION, GRADING,EXCAVATION AND/OR FILL ACTIVITIES: The applicant shall prepare a cover letter and submit it, along with any supporting documents and/or plans that address the following requirements to the CURRENT PLANNING DIVISION,ATTN: MATHEW SCHEIDEGGER 503.639-4171,EXT 2437.The cover letter shall clearly identify where in the submittal the required information is found: 1. Submit a protection plan for trees on adjacent properties and for the two trees proposed for retention within the mini-park. 2. Submit a revised mitigation plan that addresses 100 percent of the mitigation requirement for the 150 viable trees greater than 12-inches.. 3. Acknowledge in writing that the applicant understands the Environmental Performance Standards of Section 18.725 of the Tigard Development Code shall be maintained and any violation of these standards will constitute a violation of code. 4. Provide a plan showing street trees,which must be reviewed and approved by the City's Arborist. 5. Submit and implement a revegetation plan that addresses the criteria of 18.745.060.B and C (Re-vegetation). 6. Prior to commencing site work, the applicant shall submit a cash assurance for the equivalent value of mitigation required. If additional trees are preserved through the subdivision improvements and construction of houses, and are properly protected through these stages by the same measures afforded to other protected trees on site, the amount of the cash assurance may be correspondingly reduced. ' Any trees planted on the site or off site in accordance with 18.790.060(D)will be credited against the cash assurance, for two years following final plat approval. After such time, the applicant shall pay the remaining value of the cash assurance as a fee in-lieu of planting. 7. Prior to commencing any site work,the applicant shall submit construction drawings that include the approved Tree Removal,Protection and Landscape Plan. The plans shall also include a construction sequence including installation and removal of tree protection devices, clearing, grading, and paving. Only those trees identified on the approved Tree Removal plan are authorized for removal by this decision. 8. Prior to commencing any site work, the applicant shall establish fencing as directed by the project arborist to protect the trees to be retained. The applicant shall allow access by the City Forester for the purpose of monitoring and inspection of the tree protection to verify that the tree protection measures are performing adequately. Failure to follow the plan,or maintain tree protection fencing in the designated locations shall be grounds for immediate suspension of work on the site until remediation measures and/or civil citations can be processed. The applicant shall prepare a cover letter and submit it, along with any supporting documents and/or plans that address the following requirements to the ENGINEERING DIVISION,ATTN: KIM MCMILLAN 503-639-4171,EXT 2642. Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 31 • 411 The cover letter shall clearly identify where in the submittal the required information is found: 9. Prior to commencing onsite improvements,a Public Facility Improvement(PFI) permit is required for this project to cover street construction and any other work in the public right-of-way. Six(6)sets of detailed public improvement plans shall be submitted for review to the Engineering Department.NOTE: these plans are in addition to any drawings required by the Building Division and should only include sheets relevant to public improvements. Public Facility Improvement • FI)permit plans shall conform to City of Tigard Public Improvement Design Standards,which are available at City Hall and the City's web page(www.tigard- or.gov.). 10. The PFI permit plan submittal shall include the exact legal name, address and telephone and who will provide the financial assurance for the public improvements. For example,specify if the entity is a corporation, limited partnership,LLC, etc.Also specify the state within which the entity is incorporated and provide the name of the corporate contact person. Failure to provide accurate information to the Engineering Depai tment will delay processing of project documents. 11. The applicant shall provide a construction vehicle access and parking plan for approval by the City Engineer. The purpose of this plan is for parking and traffic control during the public improvement construction phase. All construction vehicle parking shall be provided on-site.No construction vehicles or equipment will be permitted to park on the adjoining residential public streets. Construction vehicles include the vehicles of any contractor or subcontractor involved in the construction of site improvements or buildings proposed by this application, and shall include the vehicles of all suppliers and employees associated with the project. 12. The applicant shall provide signage at the entrance of each shared flag lot driveway or private street that lists the addresses that are served by the given driveway or street. 13. The applicant shall submit construction plans to the Engineering Department as a part of the Public Facility Improvement permit, which indicate that they will construct a half-street improvement along the frontage of Bond Street. The improvements adjacent to this site shall include: A. City standard pavement section for a local street from curb to centerline equal to 16 feet; B. pavement tapers needed to tie the new improvement back into the existing edge of pavement shall be built beyond the site frontage; C. concrete curb,or curb and gutter as needed; • D. storm drainage, including any off-site storm drainage necessary to convey surface and/or subsurface runoff; E. 5 foot concrete sidewalk with a 5-foot planter strip; F. street trees in the planter strip spaced per TDC requirements; G. street striping; H. streetlight layout by applicant's engineer,to be approved by City Engineer; I. underground utilities; J. street signs(if applicable); K. driveway apron(if applicable); and L. adjustments in vertical and/or horizontal alignment to construct SW Bond Street in a safe manner, as approved by the Engineering Department. Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 32 • • • 14. The applicant's plans shall be revised to show a stop sign on the southeast corner of the intersection of 815`Court/Patti Lane. 15. . The applicant's Public Facility Improvement permit construction drawings for 81st Court, 81st Avenue,Patti Lane and Langtree Street shall indicate that full width street improvements, including traffic control devices,mailbox clusters, concrete sidewalks, driveway aprons, curbs,asphaltic concrete pavement, sanitary sewers, storm drainage,street trees, streetlights, and underground utilities shall be installed within the interior subdivision streets. Improvements shall be designed and constructed to local street standards. 16. A profile of Bond Street,Patti Lane,Langtree Street and 81st Court shall be required, extending 300 feet either side of the subject site showing the existing grade and proposed future grade. 17. The applicant's construction drawings shall show that the pavement and rock section for the proposed private street(s)shall meet the City's public street standard for a local residential street. 18. Any extension of public water lines shall be shown on the proposed Public Facility Improvement(PFI)permit construction drawings and shall be reviewed and approved by the City's Water Department,as a part of the Engineering Department plan review. NOTE: An estimated 12% of the water system costs must be on deposit with the Water Department prior to approval of the PFI permit plans from the Engineering Department and construction of public water lines. 19. Final design plans and calculations for the proposed public water quality/detention facility shall be submitted to the Engineering Department(Kim McMillan)as a part of the Public Facility Improvement plans. Included with the plans shall be a proposed landscape plan to be approved by the City Engineer. The proposed facility shall be dedicated in a tract to the City of Tigard on the final plat. As a part of the improvement plans submittal,the applicant shall submit an Operations and Maintenance Manual for the proposed facility for approval by the Maintenance Services Director. The facility shall be maintained by the developer for a three-year period from the conditional acceptance of the public improvements. A written evaluation of the operation and maintenance shall be submitted and approved prior to acceptance for maintenance by the City. Once the three-year maintenance period is completed,the City will inspect the facility and make note of any problems that have arisen and require them to be resolved before the City will take over maintenance of the facility. In addition,the City will not take over maintenance of the facility unless 80 percent of the landscaping is established and healthy. If at any time during the maintenance period, the landscaping falls below the 80 percent level,the developer shall immediately reinstall all deficient planting at the next appropriate planting opportunity. 20. An erosion control plan shall be provided as part of the Public Facility Improvement(PFI)permit drawings. The plan shall conform to the "Erosion Prevention and Sediment Control Design and Planning Manual, February 2003 edition." 21. A final grading plan shall be submitted showing the existing and proposed contours. The plan shall detail the provisions for surface drainage of all lots, and show that they will be graded to insure that surface drainage is directed to the street or a public storm drainage system approved by the Engineering Department. For situations where the back portions of lots drain away from a street and toward adjacent lots, appropriate private storm drainage lines shall be provided to sufficiently contain and convey runoff from each lot. Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 33 • 22. The applicant shall obtain a 1200-C General Permit issued by the City of Tigard pursuant to ORS 468.740 and the Federal Clean Water Act. 23. The applicant shall obtain a Stormwater Connection Permit from CWS pursuant to its `Design and Construction Standards"as required by TDC 18.775.020, or provide documentation from CWS that a permit is not required for the proposed development pursuant to CWS's regulations. THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO APPROVAL OF THE FINAL PLAT: The applicant shall prepare a cover letter and submit it, along with any supporting documents and/or plans that address the following requirements to the CURRENT PLANNING DIVISION,ATTN: MATHEW SCHEIDEGGER 503-639-4171,EXT 2437.The cover letter shall clearly identify where in the submittal the.required information is found: 24. Prior to fmal plat approval,the applicant shall ensure that the Project Arborist has submitted written reports to the City Forester, at least, once every two weeks, from initial tree protection zone(TPZ) fencing installation,through site work, as he monitors the construction activities and progress. These reports should include any changes that occurred to the TPZ as well as the condition and location of the tree protection fencing. If the amount of TPZ was reduced then the Project Arborist shall justify why the fencing was moved, and shall certify that the construction activities to the trees did not adversely impact the overall, long-term health and stability of the tree(s). If the reports are not submitted or received by the City Forester at the scheduled intervals, and if it appears the TPZ's or the Tree Protection Plan is not being followed by the contractor, the City can stop work on the project until an inspection can be done by the City Forester and the Project Arborist. This inspection will be to evaluate the tree protection fencing, determine if the fencing was moved at any point during construction, and determine if any part of the Tree Protection Plan has been violated. 25. Provide visual clearance triangles on the fmal plat. 26. Place a note on the final plat that no structures, fences, retaining walls or vegetation over three feet will be placed in the visual clearance triangles. The applicant shall prepare a cover letter and submit it, along with any supporting documents and/or plans that address the following requirements to the ENGINEERING DIVISION, ATTN: KIM MCMILLAN 503-639-4171,EXT 2642. The cover letter shall clearly identify where in the submittal the required information is found: 27. Prior to final plat approval,the applicant shall pay the addressing fee. (STAFF CONTACT: Shirley Treat, Engineering). 28. The applicant shall cause a statement to be placed on the final plat to indicate that the proposed private street will be jointly owned and maintained by the private property owners who abut and take access from it. 29. Prior to approval of the fmal plat, the applicant shall prepare Conditions, Covenants and Restrictions(CC&R's) for this project, to be recorded with the final plat,that clearly lays out a maintenance plan and agreement for the proposed private street(s). The CC&R's shall obligate the private property owners within the subdivision to create a homeowner's association to ensure regulation of maintenance for the street(s) and the park, unless the City accepts dedication of the park. The applicant shall submit a copy of the CC&R's to the Engineering Department(Kim McMillan)prior to approval of the final plat. Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 34 . • 30. Prior to approval of the final plat,the applicant shall demonstrate that they have formed and incorporated a homeowners association. 31. The applicant's final plat shall contain State Plane Coordinates on two monuments with a tie to the City's global positioning system(GPS)geodetic control network(GC 22). These monuments shall be on the same line and shall be of the same precision as required for the subdivision plat boundary.Along with the coordinates,the plat shall contain the scale factor to convert ground measurements to grid measurements and the angle from north to grid north. These coordinates can be established by: ♦ GPS tie networked to the City's GPS survey. ♦ By random traverse using conventional surveying methods. 32. Final Plat Application Submission Requirements: A. Submit for City review four(4)paper copies of the final plat prepared by a land surveyor licensed to practice in Oregon,and necessary data or narrative. B. Attach a check in the amount of the current final plat review fee(Contact Planning/Engineering Permit Technicians, at(503) 639-4171, ext. 2421). C. The final plat and data or narrative shall be drawn to the minimum standards set forth by the Oregon Revised Statutes (ORS 92.05), Washington County, and by the City of Tigard. D. The right-of-way dedication for Bond Street to provide 27 feet from centerline shall be made on the final plat. E. NOTE: Washington County will not begin their review of the final plat until they receive notice from the Engineering Department indicating that the City has reviewed the final plat and submitted comments to the applicant's surveyor. F. After the City and County have reviewed the final plat, submit two mylar copies of the final plat for City Engineer signature(for partitions), or City Engineer and Community Development Director signatures (for subdivisions). 33. The applicant's engineer shall submit final sight distance certification for all project intersections prior to final plat approval. THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO ISSUANCE OF BUILDING PERMITS: The applicant shall prepare a cover letter and submit it, along with any supporting documents and/or plans that address the following requirements to the CURRENT PLANNING DIVISION,ATTN: MATHEW SCHEIDEGGER 503-639-4171,EXT 2437.The cover letter shall clearly identify where in the submittal the required information is found: 34. If the applicant can save trees greater than 12-inches after site improvements, a new arborist report will be required for each tree to make certain that the health of the tree is not in a state of decline due to construction activities. Also a revised mitigation plan will be required. Both the revised arborist report and the mitigation plan must be submitted prior to the issuance of building permits. The revised arborist report and the mitigation plan shall provide for preservation of the two trees within the mini-park as proposed at the hearing, if their health and condition allow. 35. Prior to the issuance of building permits,the developer shall sign a copy of the City's sign compliance agreement. Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 35 • • 36. Prior to issuance of building permits,the applicant/owner shall record a deed restriction to the effect that any existin g tree greater than 12"diameter scheduled for preservation may be removed only if the tree dies or is hazardous according to a certified arborist. The deed restriction may be removed or will be considered invalid if a tree preserved in accordance with this decision should either die or be removed as a hazardous tree. 37. Prior to issuance of building permits, the applicant shall submit site plan drawings indicating the location of the trees that were preserved on the lot; location of tree protection fencing, and a signature of approval from the project arborist regarding the placement and construction techniques to be employed in building the house. All proposed protection fencing shall be installed and inspected prior to commencing construction, and shall remain in place through the duration of home building. After approval from the City Forester,the tree protection measures may be removed. The applicant shall prepare a cover letter and submit it,along with any supporting documents and/or plans that address the following requirements to the. ENGINEERING DIVISION,ATTN: KI1V1 MCMILLAN 503-639-4171,EXT 2642. The cover letter shall clearly identify where in the submittal the required information is found: 38. Prior to issuance of building permits,the applicant shall provide the Engineering Department with a"photomylar"copy of the recorded final plat. 39. Prior to issuance of building permits within the subdivision,the City Engineer shall deem the public improvements substantially complete. Substantial completion shall be when: 1)all utilities are installed and inspected for compliance, including franchise utilities,2)all local residential streets have at least one lift of asphalt,3) any off-site street and/or utility improvements are substantially completed, and 4) all street lights are installed and ready to be energized. (NOTE: the City apart from this condition,and in accordance with the City s model home policy may issue model home permits). 40. Prior to issuance of building permits,the applicant shall provide the City with as- built drawings of the public improvements as follows: 1) 3 mil mylar,2)a diskette of the as-builts in"DWG"format, if available; otherwise"DXF"will be acceptable, and 3)the as-built drawings shall be tied to the City's GPS network. The applicant's engineer shall provide the City with an electronic file with points for each structure(manholes, catch basins, water valves, hydrants and other water system features) in the development, and their respective X and Y State Plane Coordinates,referenced to NAD 83 (91). IN ADDITION,THE APPLICANT SHOULD BE AWARE OF THE FOLLOWING SECTIONS OF THE COMMUNITY DEVELOPMENT CODE; THIS IS NOT AN EXCLUSIVE LIST: 18.430.080 Improvement Agreement: Before City approval is certified on the final plat, and before approved construction plans are issued by the City,the Subdivider shall: 1. Execute and file an agreement with the City Engineer specifying the period within which all required improvements and repairs shall be completed;and Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 36 • • 2. Include in the agreement provisions that if such work is not completed within the period specified., the City may complete the work and recover the full cost and expenses from the subdivider. The agreement shall stipulate improvement fees and deposits as may be required to be paid and may also provide for the construction of the improvements in stages and for the extension of time under specific conditions therein stated in the contract. 18.430.090 Bond: As required by Section 18.430.080, the subdivider shall file with the agreement an assurance of performance supported by one of the following: 1. An irrevocable letter of credit executed by a financial institution authorized to transact business in the State of Oregon; 2. A surety bond executed by a surety company authorized to transact business in the State of Oregon which remains in force until the surety company is notified by the City in writing that it may be terminated; or 3. Cash. The subdivider shall furnish to the City Engineer an itemized improvement estimate, certified by a registered civil engineer, to assist the City Engineer in calculating the amount of the performance assurance. The subdivider shall not cause termination of nor allow expiration of said guarantee without having first secured written authorization from the City. 18.430.100 Filing and Recording: Within 60 days of the City review and approval, the applicant shall submit the final plat to the County for signatures of County officials as required by ORS Chapter 92. Upon final recording with the County, the applicant shall submit to the City a mylar copy of the recorded final plat. 18.430.070 Final Plat Application Submission Requirements: Three copies of the subdivision plat prepared by a land surveyor licensed to practice in Oregon, and necessary data or narrative. The subdivision plat and data or narrative shall be drawn to the minimum standards set forth by the Oregon Revised Statutes (ORS 92.05),Washington County, and by the City of Tigard. STREET CENTERLINE MONUMENTATION SHALL BE PROVIDED AS FOLLOWS: Centerline Monumentation In accordance with Oregon Revised Statutes 92.060,subsection(2),the centerline of all street and roadway rights-of-way shall be monumented before the City accepts a street improvement. The following centerline monuments shall be set: 1. All centerline-centerline intersection points; 2. All cul-de-sac center points; and 3. Curve points,beginning and ending points (PC's and PT's). All centerline monuments shall be set during the first lift of pavement. Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 37 • • Monument Boxes Required Monument boxes conforming to City standards will be required around all centerline intersection points, cul-de-sac center points, and curve points. The tops of all monument boxes shall be set to finished pavement grade. 18.810 Street&Utility Improvement Standards: 18.810.120 Utilities All utility lines including, but not limited to those required for electric, communication, lighting and cable television services and related facilities shall be placed underground, except for surface-mounted transformers, surface-mounted connection boxes, and meter cabinets which may be placed above ground,temporary utility service facilities during construction,high capacity electric lines operating at 50,000 volts or above. 18.810.130 Cash or Bond Required All improvements installed by the subdivider shall be guaranteed as to workmanship and material for a period of one year following acceptance by the City. Such guarantee shall be secured by cash deposit or bond in the amount of the value of the improvements as set by the City Engineer. The cash or bond shall comply with the terms and conditions of Section 18.810.180. 18.810.150 Installation Prerequisite No land division improvements, including sanitary sewers, storm sewers, streets, sidewalks,curbs, lighting or other requirements shall be undertaken except after the plans therefore have been approved by the City,permit fee paid and permit issued. 18.810.180 Notice to City Required Work shall not begin until the City has been notified in advance. If work is discontinued for any reason, it shall not be resumed until the City is notified. 18:810.200 Engineer's Certification The land divider's engineer shall provide written certification of a form provided by the City that all improvements,workmanship and materials are in accord with current and standard engineering and construction practices, and are of high grade,prior to the City acceptance of the subdivision's improvements or any portion thereof for operation and maintenance. THIS APPROVAL SHALL BE VALID FOR 18 MONTHS FROM THE EFFECTIVE DATE OF THIS DECISION. DATED this 15th day of February 2006. 06e00 Joe Turner,Esq.,MCP City of Tigard Land Use Hearings Officer Hearings Officer Final Order Appeal of SUB2005-00014(Gage Forest Subdivision) Page 38 LANE �`- .��..� -• -�,,t•1RF. , - (/) ��• 10 OEOGRII.NIC INFORMATION SYSTEM ft itfl MIMI I, I II.. ,.o• a 1lcDHTY MAID LANE M° KEN ON DR huId I ST - LN ISUB2005-00014 • _■ - ilk • Okellilli W=,�;z ;�� - ° FORD VAR2005-00068• • , •�II� �I. 7 -� , H REST ..� ASHFORD S GAGE FO. ul% SUBDIVISION t1/ W S 1 • Qj ', . 111111111- . __ LANGTREE ST \� n III�-- 7� R9 CT a . 1111111101 1111 !(/�` w 4swj • . . i • . , „gird Ma yap, . ST Oh: °m•',"" �----- N J CDIT f--„.„ aw I 0 100 200 300 400 Feet... _M J _0 ��'1� W 1 c A a' .�_� �•S Q 1. 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OS CO • ■ D CITY OF TIGARD PLANNING DIVISION I` n�' Abe) - 120 DAYS =5/6/2006 . ( rilid . DATE OF FILING: 3/13/2006 • ' CITY OF TIGARD Washington County,Oregon T I GARD NOTICE OF FINAL ORDER BY THE HEARINGS OFFICER IFile Numbers: SUBDIVISION(SUE)2005-00016 ADJUSTMENT(VAR) 2005-00066 • File Name: . APPEAL OF CHURCHILL WOODS SUBDIVISION Owner's Name: Robert E.Driesner,Trustee - S Appellant's Names: Judy&Kenneth Dobson . Applicant's Name/Address: Spectrum Development,LLC_ PO Box 3440- Wilsonville,OR 97070 Address of Property: 15685 SW 79th Avenue Tigard,OR 97223 5 Tax Map/Lot Nos.: Washington County Tax Assessor's Map No.2S112CD,Tax Lot 1900. A FINAL 0' DER IN •RPO • , FA 1 leING II• •oNCL .IONS DENYING HE APPEAL AND APPROVING A REQUEST FOR A SUBDIVISION AND AN ADJUSTMENT: THE CITY OF TIGARD HEARINGS OFFICER HAS REVIEWED THE APPLICANT'S PLANS, NARRATIVE, MATERIALS, COMMENTS OF REVIEWING AGENCIES, THE PLANNING DIVISION'S STAFF REPORT AND RECOMMENDATIONS FOR THE APPLICATION DESCRIBED IN FURTHER DETAIL IN THE STAFF REPORT. THE HEARINGS OFFICER HELD A PUBLIC HEARING ON FEBRUARY 27,.2006 TO RECEIVE TESTIMONY REGARDING THIS APPLICATION THIS DECISION HAS BEEN BASED ON THE FAd1S, FINDINGS AND CONCLUSIONS CONTAINED WITHIN THIS FINAL ORDER . Item on S Appeal: > On December 30,2005,the Director issued a decision to approve a request for a 15-unit single-family Subdivision on 1.82 acres; and for an Adjustment to exceed the maximum cul-de-sac length of 200 feet to allow 240 feet where the proposed street to the homes will terminate. On January 17,2006,an appeal was filed by a neighboring resident in regard to issues relating to traffic, trees, storm water detention,deficiencies in the impact study, and inadequate notice to the neighbors. At the close of the record, the Hearings Officer denied the appeal, affirmed the decision of the planning manager and approved.Churchill Woods Subdivision, subject to the conditions of approval in the manager's decision dated December 30,2005. ZONING DESIGNATION: R-12: The R-12 zoning.district is designed to accommodate a full range of housing types at a minimum lot size of 3,050 square feet. A wide range of civic and institutional uses are also permitted conditionally. REVIEW CRITERIA SUBJECT TO THE APPEAL: Community Development Code Chapters 18390,18.790 and 18.810. 5 5 Action: > ❑ Approval as Requested © Approval with Conditions ❑ Denial Notice: Notice was published in the newspaper and mailed to: © Owners of Record Within the Required Distance - © Affected Government Agencies © The Affected Citizen Involvement Team Facilitator • - © The Applicants and Owners Final Decision: - THIS IS THE FINAL DECISION OF THE CITY • AND BECOMES EFFECTIVE ON MARCH 16,2006. The adopted findings of fact, decision and statement of conditions can be obtained from the Cary of Tigard Planning Division,Tigard City Hall,13125 SW Hall Boulevard,Tigard,Oregon. Appeal: A review of this decision may be obtained by filing a notice of intent with the Oregon Land Use Board of Appeals (LUBA)within 21 days according to their procedures. Questions: If you have any questions,please call the City of Tigard Planning Division at(503)639-4171. • . BEFORE THE LAND USE HEARINGS OFFICER - FOR THE.CITY OF TIGARD,•OREGON - • . .. Regarding an appeal of an administrative . . .) • FINAL ORDER decision approving an application fora 15-lot ) subdivision on 1.82 acres located at 15685 ) SUB2005-00016. SW 79th Avenue in the City of Tigard, Oregon ). (Churchill Woods Subdivision) . :A::SUMMARY • 1. The applicant, Spectrum Development,LLC,requests approval of a preliminary plan for a 15-lot subdivision of a 1.82-acre parcel in the R-12(Medium Density Residential) zone located on the west side of 79th Avenue just north of SW • Churchill Way at 15685 SW 79th Avenue; also known as Tax Lot 01900, WCTM 2S 112CD (the"site"). The applicant proposes to develop each of the 15 new lots with a single family detached dwelling.The applicant will extend a new public cul-de-sac street into the site from SW 79th Avenue.' The applicant will extend two private streets to the - north and south of the cul-de-sac street;proposed Tracts A and B.The applicant will dedicate right of way and construct frontage improvements along the site's 79th Avenue frontage.The applicant proposes to collect storm water from impervious areas of the site and to convey it to a storm water facility in the southeast corner of the site,proposed Tract C, for treatment, detention and discharge to the existing storm sewer in SW 79th Avenue east-of the site. All proposed lots will be served by public water and sanitary sewer systems. With this application.the applicant proposes to remove all of the 151 regulated trees on the site. However the applicant testified that it intends to save many of • the trees within the building setbacks and around the perimeter of the site. 2. On December 30, 2005, the Tigard Planning Manager(the"manager") issued a Type II decision approving the application subject to conditions of approval. On January 17, 2006,the City received an appeal of the Manager's decision filed by attorney - Kenneth Dobson on behalf of Judy and Kenneth Dobson(the"appellants"). The appeal alleged that the City failed to: a. Require a traffic study or refer the application to the commission for review; . b. Require protection for trees on adjacent properties; c. Require the applicant to preserve trees wherever possible; d,Address deficiencies in the applicant's impact study; 1 The applicant originally applied for an adjustment to exceed the maximum 200-foot cul-de-sac length. However staff determined that the proposed cul-de-sac is less than 200 feet long.Therefore the variance was not required and the planning manager denied the adjustment application. • e. Properly address.common improvements; f. Require adequate stormwater controls to accommodate runoff from adjacent properties and runoff flowing over steep slopes created in the northwest corner of the site; and • g. Provide adequate notice to neighboring property owners. 3. February 27,2006,Tigard Land Use Hearings Officer Joe Turner(the "hearings officer")conducted a duly noticed public hearing to consider the appeal. City staff recommended the hearings officer deny the appeal and affirm the manager's decision. See the Memorandum to.the Hearings Officer dated February 17, 2006(the "Memorandum"). Representatives of the applicant testified in support of the application.• • The appellants and other area residents testified orally and in writing in support of the • appeal.The principal issues in this case include the following: a.Whether.the City provided adequate public notice; b. Whether a traffic study is required pursuant to TDC 18.810.030.AC and whether additional traffic generated by the proposed development will exceed the capacity of area streets or otherwise create a hazard; c. Whether the proposed development complies with the tree removal regulations of TDC 18.790; d. Whether development on the site will cause or exacerbate flooding and erosion on the site and on adjacent properties; and e. Whether the applicant's impact study is sufficient to comply with TDC 18.390.040.B.2(e); 4. Based on the findings and conclusions contained herein and the testimony and evidence in the public record,the hearings officer denies the appeal and affirms the administrative decision conditionally approving the application for the reasons provided herein. B.HEARING AND RECORD HIGHLIGHTS 1. The hearings officer received testimony at the public hearing about the appeal on February 27,2006.All exhibits and records of testimony are filed with the Tigard Department of Community Development. At the beginning of the hearing,the hearings officer made the declaration required by ORS 197.763.The hearings officer disclaimed any ex parte contacts,bias or conflicts of interest. The following is a summary by the hearings officer of selected testimony and evidence offered at the hearing. Hearings Officer Final Order . .Appeal of SUB2005-00016(Churchill Woods Subdivision) Page 2 • • . f, • • 2:City planner Cheryl Cain's summarized the manager's decision,the appeal and her February 17, 2006 Memorandum in response to the appeal. She noted that the manager denied the requested adjustment to the maximum cul-de-sac length standard, because the proposed cul-de-sac is less than 200 feet long and therefore complies with the Code. a. She noted that condition of approval 4 of the manager's decision requires that the applicant submit a Tree Removal,Protection and Landscape Plan and construction sequence for the installation and removal of tree protection devices.The • City will monitor the tree protection measures to ensure that construction on the site does not damage the retained trees.. 3. Planner Lee Leighton,traffic engineer Michael Ard and attorney Andrew Stamp testified on behalf of the applicant. a. Mr. Leighton summarized the proposed development and responded to the appeal: - i. He testified that the applicant will protect trees on adjacent properties during development on the site.The applicant contacted the owners of all abutting properties and requested permission to enter the properties and survey the location of offsite trees. Many neighbors agreed and the applicant surveyed the location of trees on those properties. The applicant revised the grading plan, eliminating all proposed grading in the west and northwest portions of the site in order to reduce potential impacts on trees on neighboring properties and to retain additional trees on the site. See the February 14, 2006"Grading and Erosion Control Plan." ii.He testified that the applicant intends to retain as many trees on the site as possible. The Code provides a significant incentive to preserve trees by requiring costly mitigation for their removal.However the Code also makes it difficult to - revise a tree preservation plan if,based on subsequent engineering and design,it becomes necessary to remove trees that were originally proposed for retention.Therefore the . applicant proposed to remove all of the trees on the site in order-to avoid the need for a revised tree protection plan if changes are required.However the applicant's construction and tree protection plans will provide protection for trees on the site. The applicant's arborist will inspect the protection measures and submit weekly reports to the City while construction is occurring on the site. iii. He noted that the Code does not require a transportation impact analysis in this case. However the applicant conducted an analysis anyway in order to address neighbors' concerns. That analysis demonstrated that all affected intersections will continue to operate at acceptable levels of service and traffic generated by the proposed subdivision will not cause or exacerbate safety hazards. iv. He testified that the applicant accidentally included the wrong address packet in the application materials.Exhibit P of the application.However the - • Hearings Officer Final Order Appeal of SUB2005-00016(Churchill Woods Subdivision) Page 3 • • • • City did not rely on the applicant's address packet.The City mailed the public notice to the owners of properties within 500 feet of this site. One envelope was returned from an address that was listed on the notice list for this site but not on the other address list in the application, confirming that the City used the correct address list for this application. v. He noted that the existing pavement on SW 79t.Avenue abutting the site is 19 feet wide,based on the applicant's survey,Plan Sheet 2 of 14; which is consistent with Mr. Dobson's observations.The applicant will add an additional 18 to 20 feet of pavement,measured from the centerline of the street, along the site's frontage,creating a 24 to 26-foot wide paved section abutting the site. In addition,the applicant will install sidewalks, a planter strip and street lights on the west side of the street. b. Mr. Ard testified that the traffic impact analysis addressed safety on SW 79th Avenue. i. Intersection and stopping sight distances are adequate along the majority of SW 79th Avenue. Sight distance is limited by a vertical curve near the north end of the street.There is an existing"Hidden Driveways"sign with a 15 mph advisory speed on either side of the driveway. Stopping sight distance is adequate based on the advisory speed. ii.The accident history for this street does not indicate an existing safety problem. Only three accidents were recorded on SW 79th Avenue during the three year period between 2002 and 2004,which equates to an accident rate between 0.12 and 0.48 accidents per million entering vehicles. Most jurisdictions in the region consider an accident rate below 1 accident per million entering vehicles as"safe." iii.The lack of sidewalks on 79th Avenue is not unusual. Similar conditions exist on many residential streets in the City.Pedestrians must exercise caution when walking on this street. But the narrow pavement and lack of sidewalks does not create a hazard. iv.He noted that the traffic engineering firm of DKS Associates conducted a speed study on 79th Avenue in 1998. That study recorded average speeds of 25 to 30 mph and the 85th percentile speed of 31 mph. Those speeds are within the normal range for residential streets. v.He opined that the under-improved conditions on 79th Avenue act a as a traffic calming measure by discouraging cut-through traffic and forcing drivers to slow down. vi.He testified that all of the intersections on SW 79th Avenue currently"operate at high levels of service with little delay and they will continue to do so with the additional traffic generated by the proposed development and growth in background traffic.The existing pavement has sufficient capacity to carry 2,888 vehicles Hearings Officer Final Order Appeal of SUB2005-00016(Churchill Woods Subdivision) Page 4 • . per hour, more than 20 times the current volume,based on information from the Transportation Research Board. vii. The narrow pavement on SW 79th Avenue does not create a • hazard. The existing pavement varies in width. However the narrowest section, 16 foot wide, sections are adequate to accommodate two way traffic. • c. Mr. Stamp argued that TDC 18.705.030.G(1)is inapplicable to the proposed subdivision, based on the hearings.officer's decision in the Churchill Woods" • subdivision case, SUB2005-00014/VAR2005-00068. In addition,this provision is not applicable to preliminary plat approval.It only applies to building permits. If the -provision is applicable to building permits for homes on the site,a condition of approval requiring compliance with the Code would be redundant. In any case, the proposed frontage improvements will eliminate any hazard at the intersection of SW 79th Avenue and the site access. is He noted that the City has limited resources to fund needed road iniprovements. The City is unlikely to improve this street,which is not listed on the - City's Capital Improvement Plan.The City relies on developments to provide incremental improvements by constructing road improvements along the frontage of the developments. The proposed development will-improve a portion of SW 79th Avenue . abutting the site. The City cannot constitutionally require that the applicant improve the remainder of the street,because it would be disproportionate to the impacts of the proposed development. ii. He testified that the applicant"stands by" its statements at the neighborhood meeting that it will maintain as many trees as possible on-the site. However that statement is not sufficient to justify a condition of approval to that effect. In addition, a condition requiring that the applicant utilize"best efforts" to preserve trees is too vague to be enforceable. 4. Attorney Kenneth Dobson summarized his appeal. a. He argued that SW 79th Avenue is hazardous under existing conditions because it is not improved to City standards.The pavement abutting the site is only 19 feet wide,which is barely enough to allow oncoming cars to pass.There are numerous hidden driveways on 79th Avenue.There are no sidewalks or street lights and there is no room for bicycle and pedestrian traffic.Vehicle traffic generated by the proposed development will exacerbate the hazard.Therefore all building permits for this development must be referred to the planning commission pursuant to TDC 18.705.030.G(1). Staff determined that this section is an applicable criteria and addressed it at pages 13 and 14 of the manager's decision.The applicant should be required to pay • for any future improvements to 79t•Avenue.He testified that the City Engineer expressed concerns with the safety of this street in an August 25,2005 Memorandum. Hearings Officer Final Order Appeal of SUB2005-00016(Churchill Woods Subdivision) Page 5 b. He testified that the applicant claimed at the neighborhood meeting that it would"go to great lengths to preserve trees on the site."The applicant should be held to that statement and required to preserve trees "to the greatest extent possible."He argued that the Code does not allow the applicant to produce a post approval tree protection plan. 5.Alex Davis summarized his written testimony.He argued that the applicant should be required to preserve the mature trees on the site in order to retain the existing character of the neighborhood and the City. 6. Sharon Borjesson testified that she lives on SW 79th Avenue,one block north of Durham Road. She summarized her observations of existing traffic conditions on SW 79th Avenue. She testified that speeding is an extreme problem on this street. She frequently sees vehicles exceeding the speed limit on this street,including one vehicle traveling in excess of 70 mph. The northern portion of 79th Avenue is very narrow and bumpy and cannot accommodate additional traffic. 7..At the end of the hearing, the hearings officer closed the public record and took the matter under advisement. C.DISCUSSION 1.TDC 18.390.040.0 authorizes the hearings officer to hear appeals of Type 11 decisions,such as the city's decision conditionally approving the subdivision application. TDC 18.390.040.G.2.b provides that appeals: • [S]hall be limited to the specific issues raised during the written comment period,as provided under Section 18.390.040.C,unless the Hearings Officer, at his or her discretion,allows additional evidence or testimony concerning any other relevant issue. The Hearings Officer may allow such additional evidence if he or she determines that such evidence is necessary to resolve the case.The intent of this requirement is to limit the scope of Type II Administrative Appeals by encouraging persons with standing to submit their specific concerns in writing during the comment period.The • written comments received during the comment period will usually limit the scope of issues on appeal. Only in extraordinary circumstances should new issues be considered by the Hearings Officer on appeal of a Type H Administrative Decision. • 2.The hearings officer finds that the City provided the public with adequate notice of the application.The applicant accidentally included a copy of the wrong address list with the application materials. Exhibit P of the application.However.the City did not rely on that list when it mailed the public notice in this case. The City mailed notice to the owners of properties within 500 feet of this site and other agencies as required by TDC 18.390.040.C(1). See Exhibit 8 of the applicant's February 22,2006 Hearings Memorandum. There is no substantial evidence to the contrary. Hearings Officer Final Order Appeal of SUB2005-00016(Churchill Woods Subdivision) Page-6 • 3. The hearings officer finds that the Code did not require a traffic impact study in this case because traffic generated by the proposed development will not meet or exceed the standards in TDC 18.810.030.AC.2 The appellant appears to argue that a traffic study - is required pursuant to TDC 18.810.030.AC.1.c(6).because"the proposed development may result in excessive traffic volumes on adjacent local streets."However there is no substantial evidence to that effect. In any case,the appellant provided a traffic study in response to the appeal. Exhibit 1 of the applicant's February 22, 2006 Hearings Memorandum. Therefore this issue is moot. 4. The proposed development will generate increased traffic on area streets. That increased traffic will be perceptible to area residents. However the hearings officer finds that the additional traffic will not exceed the capacity of streets nor create a hazard,based on the applicant's February 16, 2006 traffic impact study,Exhibit 1 of the applicant's February 22, 2006 Hearings Memorandum.Although the existing pavement is relatively narrow in some places, it is more than adequate to accommodate the volume of traffic it is projected to carry and it is sufficient to accommodate two-way traffic. Adequate sight distance is available at all driveways based on the posted speed limit or advisory speed • limit. There is no substantial evidence to the contrary.Neighbors testified that the traffic from the development will exacerbate existing hazards.Neighbors' observations of existing traffic is substantial evidence.But their predictions that the traffic from the proposed subdivision will make the streets unsafe are not supported by substantial evidence,because they are not experts iii such matters. The hearings officer finds that the • 2 TDC 18.810.030.AC provides: 1. A traffic study shall be required for all new or expanded uses or developments under any of the following circumstances: requires a traffic study"for all new or expanded uses or developments under any of the following circumstances: • a. When they generate a 10%or greater increase in existing traffic to high collision intersections identified by Washington County b. Trip generations from development onto the City street at the point of access and the existing ADT fall within the following ranges: Existing ADT ADT to be added by development 0-3,000 vpd 2,000 vpd 3,001-6,000 vpd 1,000 vpd >6,000 vpd 500 vpd or more c. If any of the following issues become evident to the City engineer: (1) High traffic volumes on the adjacent roadway that may affect movement into or out of the site (2) Lack of existing left-turn lanes onto the adjacent roadway at the proposed access drive(s) (3) Inadequate horizontal or vertical sight distance at access points (4) The proximity of the proposed access to other existing drives or intersections is a potential hazard (5) The proposal requires a conditional use permit or involves a drive-through operation (6) The proposed development may result in excessive traffic volumes on adjacent local streets. 2. In addition,a traffic study may be required for all new or expanded uses or developments under any of the following circumstances: • a. when the site is within 500 feet of an ODOT facility and/or b. trip generation from a development adds 300 or more vehicle trips per day to an ODOT facility and/or . c. trip generation from a development adds 50 or more peak hour trips to an ODOT facility. Hearings Officer Final Order . Appeal of SUB2005-00016(Churchill Woods Subdivision) Page 7 • 110 expert testimony by the applicant's traffic engineer is more persuasive than neighbors' testimony about the impact of traffic from the subdivision and street connection on area streets. The City engineer did not determine that this street is hazardous. He merely noted. • that"79th Avenue is in poor condition...[and] some level of improvement is needed to enhance safety and provide a good riding surface."See the August 25,2005 Memorandum from Gus Duenas,City Engineer to the Mayor,City Council and City Manager. • a..There is no dispute that SW 79th does not provide optimum driving conditions.There are no sidewalks or street lights,the pavement is narrow with little or no shoulder and there are several hills.However this does not mean that the street is unsafe. The historic accident rate on this street is well below the level action level of 1.0 accidents per million entering vehicles.Many streets in the City are in this same condition. These conditions are obvious.Reasonably prudent drivers will observe the posted speed limit and if necessary,further reduce their speed to accommodate changing road conditions.Unfortunately not all drivers are prudent enough to observe posted speed limits and road conditions.However there is no evidence that the development proposed in this application will contribute a disproportionate share of imprudent drivers. The hearings officer encourages area residents to contact local law enforcement agencies to request enhanced enforcement of traffic laws in this area if necessary to ensure compliance with speed limits and other traffic regulations. b.Higher traffic volumes create a proportionally higher risk for drivers, pedestrians and bicyclists. In response reasonably prudent people exercise more care personally and with family members. Those risks are consistent with the location of the site in the urban area where City plans call for the sort of development being proposed. The applicant is not required to construct offsite sidewalks and other road improvements on 79th Avenue because it would be disproportionate to the impact of the development on the need for such facilities. Applicants are not required to remedy all perceived and existing deficiencies in the vicinity of a development.The Code requires an applicant to mitigate impacts a development causes or to which it contributes significantly. Although the proposed development contributes to problems with substandard streets in the area, • those problems exist largely because of existing development.It would be inequitable to require an applicant to bear the full burden of improvements where the proposed development is only responsible for a small portion of the problem.The need for sidewalks and other street improvements is one that exists generally along streets in the area, and is a need to which all adjoining properties contribute,not just the lots being created in this case. Sidewalks in the area will interconnect over time as other properties in the area develop,but the applicant is not required to make such connections at this time. c. The hearings officer finds that TDC 18.705.030.G(1) is inapplicable to this subdivision application.This section only applies to review of building permits,not subdivisions, and to accesses(driveways),not public street connections, based on the plain meaning of the words in the Code. In addition,there is no substantial evidence that the proposed street connection to 79th Avenue will"cause or increase existing hazardous Hearings Officer Final Order Appeal of SUB2005-00016(Churchill Woods Subdivision) Page 8 • • traffic conditions."The applicant will construct half-width street improvements along the entire site frontage, including additional pavement,planter strips, curbs,sidewalks and streetlights There is no substantial evidence that the new intersection will create a hazardous traffic condition. Neighbor's unsupported opinion is not substantial evidence. 5. The hearings officer finds that the application complies with TDC 18.790.030, based on the following: • a. The applicant submitted a tree plan prepared by a certified arborist outlining the proposed planting,removal and protection of trees on the site as required by TDC 18.790.030.Whether the applicant could save additional trees on the site is irrelevant.The Code provides incentives to encourage the retention of trees.However nothing in the Code prohibits the removal of trees,provided the applicant mitigates their removal pursuant to TDC 18.790.060D. Although"protection is preferred over removal - wherever-possible" (TDC 18.790.030.A)the Code leaves to the applicant the choice • whether to save trees or mitigate for their removal. As described by LUBA: • The ultimate standard that the [tree preservation ordinance] imposes is not a standard that requires protection of trees. Rather it is a standard that favors protection of trees but allows trees to be • removed so long as any loss of more than 25-percent of large trees is mitigated.Miller v. City of Tigard,LUBA No.2003-133 (2004). b. In this preliminary plat application the applicant proposed to remove 100-percent of the regulated trees on the site.Therefore the applicant is required to mitigate for all of the trees removed,-resulting in"no net loss of trees."TDC 18.790.030.B.2(a). The applicant is required to submit a cash assurance for the value of the required mitigation trees prior to commencing construction on the site. See condition 3 of the manager's decision. c. The hearings officer finds that the applicant's statement at the neighborhood meeting,that it would"attempt to save as many trees as possible"does not provide a basis for imposing a condition of approval because the Code does not require that the applicant preserve trees on the site and the applicant did not propose to preserve specific trees. In addition,the statement at the neighborhood meeting is consistent with the applicant's testimony at the appeal hearing; the applicant proposed to preserve as many as possible on the site. The preliminary plat application proposed to remove 100- percent of the trees in order to avoid the constraints of the Code. If it is necessary to remove one or more of trees that the applicant originally proposed to retain the applicant must obtain City approval of a revised tree preservation plan.Review and approval of the revised plan can delay construction of the development.However nothing in the Code prohibits the applicant from preserving additional trees on the site during construction.If the applicant proposes to retain additional trees it must identify the trees on the construction drawings and design and install tree protection measures prior to undertaking any development on the site. See Condition 4 of the manager's decision. Hearings Officer Final Order Appeal of SUB2005-00016(Churchill Woods Subdivision) Page 9 • 4, • d.The hearings officer finds that the tree protection and mitigation standards of TDC 18.790 do not apply to trees located on adjacent properties.The tree removal ordinance is limited to trees located on the site,based on the plain meaning of the words in the Code. • i.For the most part TDC 18.790 refers to "trees" generally, without distinction between on=site and off-site trees. The stated purpose of the Code is to "encourage the preservation,planting and replacement of trees in the City"generally. TDC 18.790.010.B(1).However the tree plan requirements are expressly limited to the" lot,parcel or combination of lots or parcels for which[development is proposed]."TDC . . 18.790.030.A.In addition,TDC 18.790.040.B requires that developers record a deed restriction prohibiting removal of retained trees.The applicant has no right to enter adjacent properties to perform pruning and other palliative measures necessary to ensure the survival of off-site trees. A developer cannot record a deed restriction over adjacent properties.Therefore the hearings officer finds that the Code does not require that the applicant protect trees on adjacent properties. • ii.The hearings officer has no authority to determine whether and to what extent the applicant is liable if clearing,grading and construction activities on this site damage trees on adjacent properties.That is civil matter that is not regulated by the TDC. However the hearings officer notes that the applicant revised the grading plan to limit impacts to trees on the site and on adjacent.properties. See the February 14,2006 Grading&Erosion Control Plan. 6. The hearings officer finds that the proposed development can accommodate stormwater runoff from the site consistent with the requirements of TDC 18.810.100, based on the applicant's Preliminary Stormwater Report dated March 29, 2005. Exhibit M of the application materials. There is no substantial evidence to the contrary. The applicant will collect stormwater runoff from impervious areas of the site, convey it to a stormwater facility in the southeast corner of the site for treatment and detention. The applicant will release treated stormwater to the public storm sewer system.a rate equal to or less than the predevelopment rate. a.The hearings officer finds that it is feasible to accommodate upstream drainage consistent with TDC 18.810.100.0. The site is completely surrounded by existing streets and urban development that blocks the majority of storm water runoff flowing onto the site. See Plan Sheet 5 of 14.Upstream runoff is limited to sheet flows across abutting residential yard areas. See the topographic map,Plan Sheet 3 of 14. The applicant can design the final storm water system to accommodate this runoff and can enlarge the stormwater facility if necessary. b.The existing trees on the site absorb some of the stormwater under existing conditions. Clearing on this site will eliminate this absorption,increasing the volume of stormwater runoff.The applicant's preliminary stormwater analysis considered this impact in Section 4.0 Detention Calculations. The analysis of predeveloped conditions applied different"Curve Numbers"("CN")for the various areas Hearings Officer Final Order Appeal of SUB2005-00016(Churchill Woods Subdivision) - Page 10 4111 of the site based on the existing vegetation. The wooded areas of the site have the lowest CN,indicating that those areas retain more runoff than the developed areas of the site. The pavement,roofs and lawns created by development on the site have much higher CNs, indicating that those areas will generate higher volumes of runoff. Detention requirements are based on a comparison of the pre and post development runoff volumes. c. The hearings officer finds that the proposed development will not increase the overall volume of runoff flowing onto adjacent properties.To the contrary, the proposed development is likely to reduce the overall volume of stormwater runoff flowing onto adjacent properties.The topography maps in the record demonstrate that stormwater falling on this site flows downhill to the east, and southeast, onto the adjoining properties, under existing conditions.The applicant proposed to collect s_torm water from the impervious areas of the site and to convey it to a detention pond at the southeast corner of the site prior to discharge to the existing.drainage system at less than • predevelopment rates. The proposed stormwater facilities will capture runoff that would • otherwise flow onto adjacent properties and will divert it to the detention pond. 'The . applicant proposed to largely retain the existing topography of the site.The revised grading plan eliminated the steep slopes proposed near the south boundary of the site. Compare the August 23, 2005 "Grading and Erosion Control Plan" (Plan Sheet 6 of 14) with the revised February 14,2006 "Grading and Erosion Control Plan." d. The hearings officer finds that the proposed stormwater quality and detention pond will not have an adverse impact on surrounding properties.The applicant must design,build and maintain the pond consistent with CWS regulations.There is no substantial evidence that similar ponds that are utilized throughout the region create a . hazard for adjacent residents. The applicant will install fencing to restrict access to the pond if required by CWS. e. The transfer of the stormwater facilities to public agencies is addressed by CWS regulations. The applicant is not required to provide detailed provisions for such transfer at this preliminary stage. 7.The hearings officer finds that the applicant submitted an impact study discussing the impacts of the development on the listed"public facilities and services" including the transportation and drainage systems,fulfilling the requirements of TDC 1.8.390.040.B(2)(e). See Exhibit N of the application materials.The Code does not provide any standards for review of impact studies. It is primarily an informational requirement that the City can use to determine whether existing public facilities have sufficient capacity to accommodate the proposed development. The City engineer reviewed the impact study and other evidence in the record and determined that the development does or can comply with all applicable approval criteria and all affected public facilities have sufficient capacity to accommodate the proposed development. There is no substantial evidence to the contrary.The appellants argued that the impact study is inadequate. But they failed to point to any specific standards or provide any substantial evidence in support of that contention. Hearings Officer Final Order Appeal of SUB2005-00016(Churchill Woods Subdivision) Page 11 411 • • a.The hearings officer fmds that the impact study is not required to address the impact of the proposed development on trees, shading of neighboring properties,privacy, storm water drainage onto adjacent properties and other generally impacts to adjacent properties,because trees,privacy and adjacent properties generally are not"public facilities or services." • b.The hearings officer finds that the impact study is not required to address the cumulative impacts of other developments in the area, based on the plain meaning of the words in the Code. TDC 18390.040.B(2)(e)provides"The impact study shall quantify the effect of the development on public facilities and services." (Emphasis added). i.The applicant's traffic analysis did consider the cumulative impacts of traffic by including background traffic growth factor. c. Construction on this site will temporarily cause increased noise, dust and other impacts on adjacent properties. This is only one of the many consequences of living in an urban area. The designation of the subject property as"residential" in the comprehensive plan and zoning ordinances means that the City has already determined • that the amount of noise typically associated with a residential subdivision is acceptable at this location. There is no substantial evidence that construction on this site will generate unusual or excessive noise impacts. The hearings officer finds that,while such impacts may occur,they are not significant enough to require specific limitations on construction other than those imposed by State law and the City Code.Area residents should contact the City if they believe that contractors are not complying with applicable requirements and construction activities cause excessive impacts. d.Removal of the mature trees on the site may increase existing the impact of odors generated by the existing sewage treatment plant. However the proposed development will not generate unusual odors. The applicant is not required to address the impact of odors generated by the existing treatment plant because the existing odors are not generated by the proposed development.In addition,the appellant only alleged that .clearing on the site will increase odor impacts on surrounding residents.There is no substantial evidence that clearing on the site will impact any public facilities. • e.The appellant testified that the existing forest on the site is a habitat for rats and other vermin. Clearing on the site will eliminate that habitat and drive the animals onto adjacent properties. While such concerns are reasonable,they are speculative. There is no substantial evidence that clearing on this site will cause a significant increase in vermin on adjacent properties. It is equally likely that the proposed development.will reduce the rodent population by reducing the amount of habitat available to support them. In any case,the Code does not regulate this issue. The hearings officer fmds that the proposed development is consistent with TDC 18.725.030.F, which prohibits the creation of conditions that"[a]ttract or aid the propagation of insects or rodents or create a health hazard." Assuming the existing forest on the site provides habitat for vermin,the proposed development will reduce the amount of habitat available . Hearings Officer Final Order Appeal of SUB2005-00016(Churchill Woods Subdivision) . . Page 12 • • • in-the area,reducing the attraction and propagation of insects and rodents. There is no substantial evidence that the alleged impacts will affect any public facilities. Therefore the applicant is not required to address such impactsin its impact study. D. CONCLUSIONS • • Based on the findings adopted and incorporatedherein,the hearings officer concludes that the appeal should be denied,because the.applicant sustained the burden of proof that the proposed subdivision does or will comply_with the applicable approval standards of the Tigard Community-Development Code,subject to conditions adopted by the manager, and the appellants failed to provide substantial evidence or evidence of equal or greater probative value to the contrary and/or failed to persuade the hearings officer that the application violates the applicable approval standards based on such evidence.Therefore the hearings officer should affirm the manager's decision. E.DECISION In recognition of the findings and conclusions contained and incorporated herein, the hearings officer hereby denies the appeal, affirms the decision of the planning manager and approves SUB 2005-00016 (Churchill Woods)subject to the conditions of approval in the manager's decision dated December 30,2005. . • DATED this 13th day of March 2006. • J urner,Esq.,AICP City of Tigard Land Use Hearings Officer • Hearings Officer Final Order Appeal of SUB2005-00016(Churchill Woods Subdivision) Page 13 • 1 . • NOTICE OF TYPE-I1 DECISION . . A • • SUBDIVISION (SUS) 2OO� -0001 6.: . -Cllr OF i1GARD - Ccuiti n rift'lDiveTo menf • . - .CHURCHILL WOWS- IVISION - SHaiiiigArB rCoinmunity • • 120 DAYS = 3/14/2006 SECTION-L APPLICATION SUMMARY -. • • • FILE NAME: - CHURCHILL WOODS SUBDIVISION CASE NOS.: Subdivision (SUB). • SUB2005-00016 • Adjustment(VAR) - VAR2005-00066 • • . REQUEST:. The applicant is requesting approval for a 15-unit single-family subdivision on 1.82 acres. Street access to the proposed development will be from SW 79th Avenue: The proposed street to the single-family homes will terminate in a cul-de-sac of • approximately 240 feet in length. The applicant has also applied for an adjustment to exceed the maximum cul-de-sac length of 200 feet. • - APPLICANT: Spectrum Development, LLC APPLICANT'S_ Westlake Consultants, Inc. Attn: Kurt Dalbey. • REP.: - Attn: Lee Leighton,AICP . • PO Box 3440 15115 SW Sequoia Pkwy, Suite 150 - Wilsonville, OR 97070 Tigard, OR 97224 - OWNER:- -- Robert E. Driesner,Trustee 15685 SW 79th Avenue - • Tigard, OR 97224 - . • COMPREHENSIVE PLAN - • • DESIGNATION: R-12; Medium-Density Residential. ZONE: • R-12: Medium-Density Residential District. The R-12 zoning district is designed to accommodate a full range of housing types at a Minimum lot size of 3,050 square feet. A wide range of civic and institutional uses•are also permitted conditionally. - •- LOCATION: . 15685 SW 79th Avenue; WCTM 2S112CD,Tax Lot 01900. APPLICABLE REVIEW . - CRITERIA: Community Development Code Chapters,18.370, 18.390, 18.430, 18.510, 18.705, • 18.715, 18.725, 18.745;18.765,-18.780, 18.790, 18:795 and 18.810. SECTION II. - DECISION . Notice is hereby. given that the City of Tigard Community Development Director's designee has APPROVED the requested subdivision and deified• the -requested-:adjustifient subject to certain conditions of approval. The findings and conclusions oh which the decision is based are noted in • Section VI of this Decision. . . • NOTICE OF DECISION - SI IR9nns_nnn1R_n{-U ia(NU i Wrrir e ci ianniieinnl PAGE I-OF 33 110 } • • CONDITIONS OF APPROVAL THE FOLLOWING CONDITIONS SHALL BE-SOS- PRIOR TO COMMENCING ANY ONSITE IMPROVEMENTS, INCLUDING DEMOLITION, GRADING, EXCAVATION-ANDfOR FILL ACTIVITIES: e app scant s al prepare a,cover e`er an• su•mit it, a ong wit any supporting •ocuments and/or plans.that address the following requirements to the CURRENT PLANNING DIVISION, ATTN: •MAT.HEW SCHEIDEGGER-503-639-4171, EXT 2437. . The cover' letter shall clearly identify where lathe submittal the required information is found: 1. Acknowledge in writing that the applicant understands the Environmental Performance Standards of Section 18:725 of the Tigard Development Code shall be maintained .and any - violation of these standards will constitute a violation of code. •2. The applicant is required to provide and implement a re-planting plan showing how the subject - site will be re-planted and to what extent. • . 3.- • • Prior to commencing site work, the applicant shall-submit a cash assurance for the equivalent value of mitigation required. if additional trees are preserved through the subdivision . improvements and consfruction of houses, and are properly protected through these stages by the same measures afforded to other protected trees-on site, the amount of the cash assurance may be correspondingly reduced. Any trees planted on the site or off site in accordance with 18.790.060 (0) will be credited against the cash-assurance, for two years following final plat approval. After such time., the applicant shall pay the remaining value of the cash assurance as a - --fee in lieu of planting. • 4. Prior to commencing any site work,-the applicant shall submit construction drawings that include the approved Tree-Removal, Protection and Landscape Plan. .The plans shall also include a construction sequence including installation and removal of tree-protection devices, clearing, grading,-and paving. Only those trees identified on the approved. Tree Removal plan are authorized for removal by this decision. - - 5. Prior to commencing any site work,the applicant shall establish fencing as directed by the project arborist to protect the trees to be retained. The applicant shall allow access by the City Forester for the purpose of monitoring and inspection of the tree protection to verify that the tree protection measures are -performing adequate y: -Failure to follow the plan, or maintain tree protection fencing in the designated locations shall be grounds for immediate suspension of work on the site - until remediation measures and/or civil citations can be processed. The applicant shall prepare a cover letter and submit it, along with any supporting documents and/or plans that"address the following requirements to the ENGINEERING DIVISION, ATTN: KIM MCMILLAN :503-639-41171, EXT 2642. The cover letter shall clearly identify where in the submittal the required information is found: . 6. Prior to commencing onsite improvements,a Public Facility Improvement(PFI)permit is required for this project to cover street improvements and any other work in the public right-of:.way. Six(6) sets of detailed public improvement' plans shall be submitted for review to the Engineering Department. NOTE: these plans are in addition to any drawings required by the Building Division and should only include sheets relevant to public improvements. Public Facility Improvement • (PFI) permit plans shall conform to it of Tigard Public Improvement Design Standards, which are available at City Hall and the City's web page (www.figard-or.gov). 7. The PFI permit plan submittal shall include the exact legal name,*address.and telephone number of the individual or corporate entity who will designated as the "Permittee°,.and who will provide the financial assurance for the public improvements. For example, specify if the entity is a corporation, limited partnership, LLC, etc. Also specify the state within which the entity is incorporated and provide the name of the corporate contact person. Failure to provide accurate information to the Department will delay processing of project documents, • NOTICE OF DECISION - PAGE 2 OF 33 SUB2005-00016-CHURCHILL WOODS SUi3DIVISION 8.. •The applicant shall provide a construction vehicle access and parking plan for approval by the City Engineer. The purpose of this plan is for parking and traffic control during the public improvement,construction phase. - • 9. The applicant shall submit construction plans to the Engineering Department as a part of the Public Facility Improvement permit, which indicate that they will construct a half-street improvement along the frontage of 79w Avenue. The improvements adjacent to this site shall include: • A. City standard pavement section for a neighborhood route from curb to centerline equal to 18 feet(20 feet where matching existing);' B. pavement tapers needed to tie the new improvement back into the existing edge of pavement shall be built beyond the site frontage; C. concrete curb, or curb and gutter as needed; D. storm drainage, including any off-site storm drainage necessary to convey surface and/or subsurface runoff; - - - E. 5 foot concrete sidewalk with a planter strip;._ . - . F. street trees in the planter strip spaced per TDC requirements; G. street striping; H. streetlight layout by applicant's engineer,to be approved by City Engineer, _ I. underground utilities; . J. • street signs(if applicable); K. driveway apron (if applicable); and - • L. adjustments in vertical and/or horizontal alignment to construct SW 79"' Avenue in a safe manner, as approved by the Engineering Department. • 10. The applicant's Public Facility Improvement permit construction drawings shall indicate that full width street improvements for the cul-de-sac street,.including traffic control devices, mailbox . clusters, concrete sidewalks, driveway aprons, curbs, asphaltic concrete pavement, sanitary sewers, storm drainage, street trees, streetlights,, and underground utilities shall be installed within the interior subdivision streets. Improvements shall_be designed and constructed to local street standards. . . 11. A profile of 79th Avenue shall- be required, extending 300 feet either side of the subject site showing the existing grade and proposed future grade. • 12. The applicant's construction drawings shall show that the pavement and rock section for the proposed private street(s)shall meet the City's public street standard for a local residential street. - 13. Any extension of public water lines shall be shown on the.proposed Public Facility improvement (PH) permit construction drawings and shall be reviewed and approved by the City's Water Department, as a part of the Engineering Department plan review.' NOTE: An estimated 12% of the water system costs must be on deposit with the Water Department prior to approval of the PFI permit plans from the Engineering Department and construction of public waterlines. 14. Final design plans and calculations for the proposed public water quality/detention facility shall be submitted to the Engineering Department (Kim .McMillan) as a part of. the Public Facility Improvement plans. Included with the plans shall be a proposed landscape plan to be approved by the City Engineer. The proposed facility shall be dedicated in a tract to the City of.Tigard on the final plat. As a part of the improvement plans.submittal, the applicant shall submit an Operations and Maintenance Manual for the proposed facility for approval by the Maintenance Services Director. The facility shall be maintained by the developer for a three-year period from the conditional acceptance of the public improvements. A written evaluation of the operation and maintenance shall be submitted and approved prior to acceptance for maintenance by the City. Once the three-year maintenance period is completed, the City will inspect the facility and make note of an •roblems that have arisen and re•uire them to be resolved before the Ci will take NOTICE OF DECISION PAGE 3 OF 33 e ionnnc nMlc fUI ioruu I \AIMIIC CI IOf1nnCIr M • i r over-maintenance of the facility. In addition, the City will not take over maintenance of the facility unless 80 percent of the landscaping is established and healthy. If at any time during the maintenance period, the landscaping falls below the 80 percent level, the developer shall immediately reinstall all deficient planting at the next appropriate planting opportunity. 15. An erosion control plan shall be provided as part of the Public Facility improvement (PFI) permit drawings. The plan shall conform to the "Erosion Prevention and Sediment Control Design and Planning Manual, February.2003 edition." 16. A final grading plan shall be submitted showing the existing and proposed contours. The plan • shall detail the provisions for surface drainage of all lots, and show that they will be graded to . insure that surface drainage is directed to the street or a public storm drainage system approved by the Engineering Department, For situations where the back portions of lots drain away from a street and toward adjacent lots, appropriate private storm drainage lines shall be provided to sufficiently contain and convey runoff from each lot 17. The applicant shall obtain a 1200=C General Permit issued by the City of Tigard pursuant to ORS 468.740 and the Federal Clean Water Act THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO APPROVAL OF THE FINAL PLAT: - e app scant s a prepare a cover etter an• su•mit it, a ong wilt any supporting •ocuments and/or plans that address the following requirements to the-CURRENT PLANNING DIVISION, ATTN: MATHEW SCHEIDEGGER 503-6394171, EXT 2437. The cover letter shall clearly identify where in the submittal the required information is found: 18. Submit a copy of the construction plans that shows the proposed development with street trees that are.in compliance with the City's Street Tree List. 19. Provide visual clearance triangles on the final plat 20. Place.a note on the final plat that no structures, fences, retaining walls or vegetation over three feet will be placed in the visual clearance triangles. The applicant shall prepare a cover letter and submit it, along with any supporting documents and/or plans that address the following requirements to the ENGINEERING. DIVISION, ATTN: 'KIM MCMILLAN 503-639-4171, EXT 2642. The cover letter shall clearly identify where in the submittal the required information is found: 21. Prior to final plat approval, the applicant shall pay the addressing. .(STAFF CONTACT: Shirley Treat, Engineering). - 22. The applicant shall provide signage at the entrance of each shared flag lot driveway or private - street that lists the addresses that are served by the given driveway or street.. 23. The applicant shall cause a statement to be placed on the final plat to indicate that the proposed private streets will be jointly owned and maintained by the private property owners who abut and take access from them. - 24. Prior to -approval-.of the final plat, the applicant shall prepare Conditions, Covenants and Restrictions (CC&R's) for this project, to be recorded with the final plat, that clearly lays out a maintenance plan and agreement for the proposed private street(s). The CC&R's shall obligate . the-private property owners within the subdivision to create a homeowner's association to ensure - regulation of maintenance for the street(s). The applicant shall submit a copy of the CC&R's to the Engineering Department(Kim McMillan) prior to approval of the final.plat., 25. Prior to approval of the final plat, the applicant shall demonstrate that they have formed and incorporated a homeowner's association. NOTICE OF DECISION • PAGE 4 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION i 110 • 26. Prior to final plat approval, the applicant shall pay$1,154.00 to the City for the striping of the bike lane along the frontage of 79 Avenue. 27. The applicant shall either place the existing overhead utility lines along SW 79th underground as a part of this project, or they -may request they be allowed to pay- the fee in-lieu of -• undergrounding. If allowed by the City Engineer; the fee shall be calculated by the frontage of the site that is parallel to the utility lines and will be $35.00 per lineal foot If the fee option is chosen, the amount will be $9,243.50 and it•shall be paid prior to final plat approval. 28. The.appplicant's final plat shall contain State Plane.Coordinates on two monuments with a tie to the..Ciit0 global positioning system (GPS) geodetic.control network (GC 22). These monuments • shall be on same line and shall be of)the same precision as required for the subdivision plat boundary. Along with the coordinates, the plat shall contain the scale factor to convert ground measurements to grid measurements and the angle from north to grid north. .These coordinates can be established by: • . • • GPS tie networked to the City's.GPS survey. By random traverse using conventional surveying methods. 29. Final Plat Application Submission Requirements: A. Submit for City review four (4) paper copies of the final plat prepared by a land surveyor licensed to practice in Oregon; and necessary data or narrative. B. Attach a check in the amount of the current final plat review fee (Contact Planning/Engineering Permit Technicians, at(503) 639-4171,ext.2421). C. The final plat and data or narrative shall be drawn to the minimum standards set forth by the Oregon Revised Statutes(ORS 92.05),Washington County, and by the City of Tigard. D. The right-of-way dedication for 79"'.Avenue shall,be made on the final plat, providing 29 feet of ROW from centerline, minimum,and 50 feet of ROW from centerline where needed to match existing. E. NOTE: Washington County will not begin their review of the final plat until they receive notice from the Engineering Department indicating that the City has reviewed the final plat and submitted comments to the applicant's surveyor. F. After the City and County have reviewed the final plat, submit two mylar copies of the final plat for City Engineer signature (for partitions), or City Engineer and Community Development Director signatures (for subdivisions). 30. Prior to final plat approval, the applicant's engineer tall submit final sight distance certification for the intersection of the proposed public street and 79 Avenue. • THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO ISSUANCE•OF BUILDING'PERMITS: he app icarit s a prepare a cover e er an• su•mit i , a ong wit -any supporting •ocuments and/or plans that address the following requirements to the CURRENT PLANNING DIVISION, ATTN: MATHEW SCHEIDEGGER 503-639-4171, EXT. 2437. The cover letter shall . clearly identify where in the submittal the required information is found: - 31. - Prior to the issuance of building permits, the developer shall sign a copy of the City's sign compliance agreement.. 32. Submit a mitigation plan for 3,147 inches. NOTICE OF DECISION PAGE 5 OF 33 c1 lonnnc Mn1c rut lo •ul I %Ain/Inc CI 1RI11\ACVNJ S • 33. If the applicant finds that -viable trees may in fact be saved prior to building permits, a comprehensive arborist report/protection plan will be required to be submitted and mitigation will be recalculated. 34. Prior to issuance of building permits, the applicant/owner shall record a deed restriction to the effect that any existing tree greater than 12n diameter may be removed only if the tree dies or is hazardous according to a certified arborist. , The deed restriction may be removed or will be considered invalid if a tree preserved in accordance with this decision should either die-or be removed as a hazardous tree. 35. . Prior to the issuance of any Certificates of Occupancy , the applicant shall ensure that the Project Arborist-has submitted written reports to the City Forester, at least, once every two weeks, from initial tree protection zone (TPZ)'fencing installation, through occupancy of individual units, as he monitors•the construction activities and progress. These reports should include any changes that occurred to-the TPZ as well as the condition and location of the tree protection fencing. If the amount of TPZ was reduced then the Project Arborist shall justify why the fencing was moved, and shall certify that the construction activities to the trees did not adversely impact the overall, long-term health and stability of the tree(s). If the reports are not submitted or received by the City Forester at the scheduled intervals, and if it appears the TPZ's or the Tree Protection Plan is not being followed by the contractor, the City-can stop work on the project until an inspection can be done by the City Forester and the Project Arborist. This inspection will be to evaluate the tree protection fencing, determine if the fencing was moved 2t any point during construction, and determine if any part of the Tree Protection Plan has been violated. 36. • Prior to issuance of building permits, the applicant shall submit site plan drawin indicating the location of the trees that were preserved on the lot, location of tree protection fencing, and a signature of approval from the project arborist regarding the placement and construction techniques to be employed in building the house. All proposed protection fencing shall be installed and inspected prior to commencing construction, and shall remain in- place through the duration of home building. After approval from the City Forester, the tree protection measures may be removed. .. The applicant shall prepare a cover letter and submit it, along with any supporting documents and/or plans that address. the following requirements to the ENGINEERING DIVISION, ATTN: KIM MCMILLAN 503-639-4171, EXT 2642. The cover letter shall clearly identify where in the submittal the required information is found: 37. Prior to issuance of building permits, the applicant shall provide the Engineering Department with a"photomylar" copy of the recorded final plat. 38. The City Engineer may determine the necessity for, and require submittal and approval of, a construction access and parking plan for the home building ph.ase. If the City Engineer deems such a plan necessary,the applicant shall provide the plan prior to issuance of building permits. 39. Prior to issuance of building permits within the subdivision, the City Engineer shall deem the public improvements substantially complete: Substantial completion shall be when: 1) all utilities are installed and inspected for compliance, including franchise utilities, 2) all local residential streets have at least one lift of asphalt, 3).any Off-site street and/or utility improvements are substantially completed, and 4) all street lights are installed and ready.to be energized. (NOTE: the City apart from this.condition and in accordance with the City's model home policy may issue model-home permits). - 40. - Prior to issuance of building permits, the applicant shall provide the City with as-built drawings of the public improvements as follows: 1)3 mil mylar, 2)"a diskette of the as-builts in "DWG"format, if available; otherwise "DXF" will be acceptable, and 3) the as-built drawings shall be tied to the City's GPS network. The applicants engineer shall provide the City with an electronic file with points for each-structure (manholes, catch basins, water valves, hydrants and other water system features) in the development, and their respective X and Y State:Plane Coordinates, referenced to NAD 83 (91).. . • NOTICE OF DECISION, PAGE 6 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION • t f • IN ADDITION, THE APPLICANT SHOULD BE AWARE OF THE. FOLLOWING SECTIONS OF THE COMMUNITY DEVELOPMENT CODE; THIS IS NOT AN EXCLUSIVE UST: 18.430.080 Improvement Agreement: • Before City approval is certified on the final plat, and before approved construction plans are issued by the City; the Subdivider shall: 1-. Execute and file an agreement with the City Engineer specifying the period within which all required improvements and.repairs shall be completed; and 2. lndudein.the agreement provisions that if such work is not completed within the period specified, the City may complete the work and recover the full cost and expenses from the subdivider. The agreement shall stipulate improvement fees and deposits as may be required to be paid and may also provide for the construction of the improvements in stages and for the extension of time under .specific conditions therein stated in the contract. . 18.430.090 Bond:. - As required by Section 18.430.080, the subdivider shall file with the agreement an assurance of performance supported by one of the following: 1: • An irrevocable letter of credit executed by a financial institution authorized to transact business in • the State of Oregon; 2. A. surety bond executed by a surety company authorized to transact business in the State of Oregon which remains in fforce until the surety company is notified by the City in writing that it may be terminated; or 3. Cash: ' The subdivider shall furnish to the City Engineer an itemized improvement estimate, certified by a registered civil engineer, to assist the City Engineer in calculating the amount'of the performance assurance. . The subdivider shall not cause termination of nor allow expiration of said guarantee without having first secured written authorization from the City. 18.430.100 Filingand Recording: • . Within 60 days of the City review and approval, the applicant shall submit the final plat to the County for signatures of County officials as required by ORS Chapter 92. Upon final recording with the County, the applicant shall submit to the.City a mylar copy of the recorded final.plat. • 18.430.070 Final Plat A• •lication Submission Re•uirements:• ree copies o i e su••'vision p a prepares •y a an. surveyor licensed to practice in Oregon, and necessary data or narrative. The subdivision plat and data or narrative shall be drawn to the minimum standards set forth by the Oregon Revised,Statutes(ORS•92.05),Washington County; and by the City of Tigard. STREET CENTERLINE MONUMENTAT1ON SHALL BE PROVIDED'AS FOLLOWS: Centerline Monumentation In accordance with Oregon Revised Statutes 92.060, subsection (2), the centerline of all street and roadway rights-of-way shall be monumented before the City accepts a street improvement. NOTICE OF DECISION PAGE 7 OF 33 SIIR9cInc-rInn1c_(:HI IR(:HII I Wff11S SUBDIVISION s The following centerline monuments shall be set: • 1. • All centerline-centerline intersection points; 2. All cul-de-sac center points; and • 3. Curve points, beginning and ending points (PC's and PTs). All centerline monuments shall be set during the first lift of pavement. Monument Boxes Required • Monument boxes conforming to City standards will be required around all centerline intersection points, cul-de-sac center points, and curve points. The tops of all monument boxes shall be set to finished pavement grade. 18.810 Street &Utility improvement Standards: 18.810.120 Utilities - • • All utility lines including, but not limited to those required for electric, communication, lighting and cable television services and related facilities shall be placed underground, except for surface-mounted transformers, surface-mounted connection boxes, and meter cabinets which may be placed above ground, temporary utility service facilities during construction, high capacity electric lines operating at 50,000 volts or above. . - . 18.810.130 Cash or Bond Required All improvements installed by the subdivider shall be guaranteed as to workmanship and material for a period of one year following acceptance by the City. Such guarantee shall be secured by cash deposit or bond in the amount of the value of the improvements as set by the City Engineer. The cash or bond shall comply with the terms and conditions of Section 18.810.180. 18.810.150 Installation Prerequisite . • No land division improvements, including sanitary sewers, storm sewers, streets, sidewalks, curbs, lighting or other-requirements shall be undertaken except after the plans therefore have been approved by the City, permit fee paid and permit issued. 18.810.180 Notice to City Required - Work shall not begin until the City has been notified in advance. if work is discontinued for any reason, it shall not be resumed until the City is notified. 18.810.200.Engineer's Certification The land divider's engineer,shall provide written certification of a form provided by the City that all improvements, workmanship and materials are in accord with current and standard engineering and construction practices, and are of high grade, prior to the City acceptance of the subdivision's improvements or any portion thereof for operation and maintenance. THIS APPROVAL SHALL BE VALID FOR 18-MONTHS FROM THE EFFECTIVE DATE-OFTHIS 0ECI8fON. SECTION III. BACKGROUND INFORMATION Site History: Staff conducted a search of City records and found no other land-use cases associated with the subject parcel. NOTICE OF DECISION PAGE 8 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION • • • Site Information and Proposal Description: - The applicant is requesting approval for a 15-unit single-family subdivision on 1.82 acres. Street access to the proposed.development will be from SW 7 Avenue. The proposed street to the single- family homes will terminate in a cul-de-sac of approximately 240 feet in'length. The applicant has also applied for an adjustment to exceed the maximum cul-de-sac length of 200 feet. Vicinity Information: • . The subject site is located north of.SW Durham Road and West of SW 79th Avenue. The zoning of the subject site and surrounding parcels is R-12 Medium Density Residential. • SECTION IV.;. COMMENTS FROM PROPERTY OWNERS WITHIN 500 FEET The City sent notice to property owners within 500 feet of the subject proposal. The concerns of the neighbors are as follows: . . . • Does a 15-unit single-family subdivision mean townhouses or condominiums or detached-stand alone houses. . • Staff Response: The applicant has proposed detached stand-alone houses. SECTION V. • SUMMARY OF APPLICABLE CRITERIA • A summary of the--applicable criteria in this case in the Chapter order in which they are addressed in this decision are as follows: A. Subdivision • 18.430 . . B. A• •licable.Develo•ment Code Sections :, t 'anances an. : .jus ents . 18.510 Residential zoning-districts) 18.705 Access, Egress and Circulation) 18.715 Density). • 18.725 Environmental Performance Standards) 18.730 Exceptions to Development Standards) 18.745 Landscaping and screening) 18.765.Off-street parking and loading requirements) 18.775 Sensitive Lands) . 18.780 Signs) • 18.790 Tree removal) 18.795 ision clearance) - C. Street and Utility Improvement 18.810 (Street and Utility Improvement Standards) D. Decision Making Procedures • 18.390 (lmpactStudy) • • SECTION.VI. - APPLICABLE REVIEW CRITERIA AND FINDINGS A. SUBDIVISION GENERAL PROVISIONS 118.430): Future Re-Division. . When subdividing tracts into large lots, the Approval Authority shall require that the lots be of such size and shape as to facilitate future re-division in accordance with the requirements of the zoning district and.this title: . • No large lots are created with the proposed subdivision. Lot#14 is the largest lot in the subdivision at 4,408 square feet and is not large enough to be subdivided under the 3,050 square foot minimum lot size for the zone. Therefore, this standard is met. NOTICE OF DECISION PAGE 9 OF 33 SI IR OflF.-l0(YIF-CHURCHILL WOODS SUBDIVISION • { • Lot Averaging. • Section 18.430.020.D states Lot size may be averaged to allow lots less than the minimum lot size allowed in the underlying zoning district as long as the average lot area for all lots is not less than allowed by the underlying zoning district. No lot created under this.provision shall be less than 80% of the minimum lot size allowed in the underlying zoning district. The applicant has not proposed lot size averaging. All of the proposed lots are greater than the minimum lot size of 3,050 square feet. Therefore, this standard does not apply. Temporary sales office. Temporary sales offices in conjunction with any subdivision may be granted as set forth in Chapter 18.785, Temporary Uses. The applicant has not proposed a tales office; however, if one is later requested, it will be reviewed through a separate temporary use permit process. . . Minimize flood damage. All subdivision proposals shall• be consistent with the need to minimize flood damage. ' • Due to the topography Of the site, storm water is anticipated to leave the site and not cause flooding. Storm drainage facilities will be reviewed by Clean Water Services and also by the City for conformance with design and construction standards and is addressed later in this decision under Engineering's analysis. . Floodplain dedications. Where land filling and/or development is allowed within and adjacent to the 100-year floodplain outside the zero-foot rise flOodway, the City shall require consideration of the dedication of sufficient open land area for a 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 pathway plan. The site is not within or adjacent to the 100-year floodplain. The nearest floodplain is approximately 850.feet to the east. The base flood elevation of the nearest floodplain is 132 feet. The lowest point of the subject site is approximately 172 feet. Therefore, this standard is not applicable. Need for adequate utilities. . - All subdivision proposals shall have public utilities and facilities such as sewer, gas, • electrical, and water systems located and constructed to minimize flood damage. This proposal includes the full complement of utilities appropriate to serve the development and . address its proportional impacts on.existing systems and facilities. The subject property is not located in an identified flood hazard area. To minimize potential risk of flood damage and adequately drain the property, storm water runoff from the proposed lots and streets will be directed into a water quality and detention facility within proposed Tract 'C', which is designed to release storm water at a rate that mimics pre-development conditions. Need for adequate drainage. . All subdivision proposals shall have adequate drainage provided to reduce exposure-to flood damage. To adequately.. drain the property, storm water runoff from the proposed lots and streets will be directed-into.a water quality and detention facility within proposed Tract 'C', which is designed to mimic pre-development conditions. Surface water will be treated for turbidity, phosphorus and other pollutants, and then detained before its release into a closed pipe system within SW 79th Avenue. This criterion has been satisfied. Determination of base flood elevation. • Where base flood elevation has not been provided or is not available from another authoritative source, it shall be generated for subdivision proposals and other proposed developments which contain at least 50 lots or five acres (whichever is less). • NOTICE OF DECISION PAGE 10 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION • • • Base flood elevation data is not required for the proposed subdivision. The -proposed site- is approximately 1.82 acres. According to the standard, developments less than five acres are exempt from this criterion and floodplain maps indicate clearly that the subdivision is not near the floodplain. Therefore, this standard does not apply. Approval Criteria— Preliminary Plat: - The proposed preliminary plat complies with the applicable zoning ordinance and other applicable ordinances and regulations. Compliance with the specific regulations and standards of the zoning ordinance will be addressed further within this decision. •- The-proposed=-plat name must not be duplicative and must otherwise satisfy the provisions of ORS Chapter 92. . . The applicant has provided documentation that the proposed .plat name is not a duplicative. Therefore, this standard has been satisfied. The Streets and roads are laid out so as to conform to the plats of subdivisions and maps of major partitions- or subdivisions already approved for adjoining property as to width,.general direction and in all other respects unless the City determines it is in the public interest to modify the street or road pattern. According to the applicant, the proposed streets have been designed to matchexisting road patterns in the immediate area. Primary access to the site will be from the SW 79 Avenue. Access to proposed lots one through one through fifteen will be from the proposed east/west cul-de-sac. Access to proposed lots four through ten will be by a north/south private street identified as Tract 'A' and 'B' on the site plan. Therefore, this standard is satisfied. An explanation has been provided for all.common improvements. The applicant's narrative provides the necessary explanation for all common improvements. Therefore, this standard has been satisfied. . - Section 18.430.060A. authorizes the granting of adjustments for subdivisions in accordance with 18.430.050, provided that the application shall'be made with a preliminary plat application with the criteria for granting such adjustments are contained in Section 18.370.020 C1. The applicant has applied for an adjustment to the maximum cul-de-sac length as required by 18.810, which are addressed below under 18.370 (Variances and Adjustments). Therefore, this standard has been satisfied. FINDING: Based on the analysis above, the subdivision standards have been satisfied. • B. APPLICABLE TIGARD DEVELOPMENT CODE SECTIONS Variances and Adiustments{18.3701 The applicant has proposed a public street entering the subject site that is approximately 190 feet from the edge of right-of-way along SW 79 Avenue to the rear curb of the cul-de-sac. The maximum - allowable_.iengt.of a cul-de-sac according.to 18.810 (Street-and Utility-Standards) is 200. feet. After review:of the plans submitted by the applicant with the City's Project Engineer, the length of the cul-de- sac measured from right-of-way to edge of curb is 190 feet. Therefore,no adjustment is required. Residential Zoning Districts (18.510) - Lists the description of the residential Zoning District. . Uses - - The site is located in the R-12: Medium-Density residential zoning district. The proposed household living is a permitted use in the R-12 zone. NOTICE OF DECISION PAGE 11 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION • • • • • • • Minimum and Maximum Densities . Density is addressed later in this decisipn under.18.715 (Density.Computation). • • • EXCERPT FROM TABLE 18.510.2 DEVELOPMENT STANDARDS IN RESIDENTIAL ZONES STANDARD R-12 Single-Family} Minimum Lot Size -Detached unit 3,050 sq.ft. per unit -Duplexes -Attached unit i1] Average Minimum Lot Width -Detached-uhit lots • N/A -Duplex lots -Attached unit lots Maximum Lot Coverage • 80% - Minimum Setbacks 15 ft. -Front yard -Side facing street on • • comer&through lots 10 ft. - -Side yard 5 ft. -Rear yard 15 ft -Side-or rear yard abutting more - restrictive zoning district 30 ft. -Distance between property line • and front of garage 20 ft. . Maximum Height 35 ft Minimum Landscape Requirement 20% • [1] Single-family attached residential units permitted at one dwelling per lot with no more than five attached units in one grouping. 121 Lot coverage includes all buildings and impervious surfaces. . The proposed lots range in size from 3,086 square feet to 4,408 square feet. The applicant will be required to comply with the setbacks and building height requirements during the building permit review process for the homes on individual lots: All lots within this subdivision are for single-family units. This is not a planned development;therefore, the setbacks are as prescribed by the base zone. FINDING: Based on the analysis above, the residential zoning district dimensional standards are satisfied. - Access, Egress and Circulation (18.705) - • Chapter 18.705 establishes standards and regulations for safe and efficient vehicle access and egress on a site and for general circulation within the site. Table.18.705.1:states that the minimum vehicular access and egress for single-family dwelling units on individual lots shall be one, 10-foot paved driveway within a 15-foot-wide accessway. The minimum access width for 3-6 dwelling units is 20 feet with 20.feet of pavement. Access and egress to the proposed lots.will be from.the proposed public cul-de-sac and internal private streets.. No lot will have direct access to SW 79 Avenue. Driveway widths to the homes will be reviewed during the building permit.phase of the development. This standard has been satisfied. Access plan requirements. '- . . . - No building or other permit shall be issued-until scaled plans are presented and approved as provided by this chapter that show how access, egress and circulation requirements are to be fulfilled. The applicant shall submit a site plan. The Director shall provide the applicant with detailed information about this submission requirement. Scaled site plans have been submitted that indicate how the requirements of access, egress, and circulation are met. • NOTICE OF DECISION • _ PAGE 12 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION • • • • Joint access. Owners of two or more uses, structures, or parcels -of land may agree to utilize jointly the same access and egress when the combined access and egress of both uses, structures, or parcels of land satisfies the combined requirements as designated in this title, provided: Satisfactory legal evidence shall be presented in the form of deeds, easements, leases or contracts to establish the joint use; and Copies of the deeds, easements, leases or contracts are placed on permanent file with the City. Joint access has not been proposed. Each lot will have its own access onto the proposed streets. Therefore,this standard does not apply. - Public street access. All vehicular::access and egress as required in Sections 18.705.030H and 18.705.0301 shall connect directly with a public or private street approved by the City for public use and shall be maintained at the required standards on a continuous basis. All lots will have. access to SW 79th Avenue through the proposed ,private streets and public cul-de-sac. Therefore, this standard has been satisfied.- • - Curb cuts shall be in accordance with Section 18.810.030N. Curb cuts will be addressed under Chapter 18.810 Street and Utility Improvements Standards later in this decision. - • = . Required -walkway location: On-site pedestrian walkways shall comply with the following standards: Walkways shall extend from the ground floor entrances or from the ground floor landing of. stairs, ramps,-or elevators of all commercial, institutional, and industrial uses, to the streets which provide the required access and egress. -Walkways shall- provide convenient connections between buildings in multi-building commercial, institutional, and industrial complexes. Unless impractical, walkways shall be constructed between new and existing developments and neighboring developments; Within all attached-housing (except two-family dwellings) and multi-family developments, each residential dwelling shall be connected by walkway to the vehicular parking area, and common open space and recreation facilities; - - • Wherever required walkways cross vehicle access driveways or parking lots, such crossings shall be designed and located for-pedestrian safety. Required walkways shall be physically separated from motor vehicle traffic and parking by either a minimum 6-inch vertical separation. (curbed) or a minimum 3-foot horizontal separation, except that pedestrian crossings of traffic aisles are permitted for distances no greater than 36 feet if appropriate landscaping, pavement markings, or contrasting pavement materials are used.Walkways shall be a minimum of four feet-in width, exclusive of vehicle overhangs and obstructions such as mailboxes, benches, bicycle 'racks, and sign posts, and shall be in compliance with ADA standards; • Required walkways shall be paved with hard surfaced Materials such as concrete, asphalt, stone;-brick,,etc. Walkways may be required to be lighted and/or signed as needed for safety purpose`s': Soft-surfaced public use pathways may be provided only if such pathways are provided in addition to required pathways. . . - This proposal is for a detached single-family development, this standard does not apply. Inadequate or hazardous access. - Applications for building permits shall be referred to the Commission for review when, in the opinion of the Director, the access proposed would cause. or increase existing hazardous traffic conditions; or would provide inadequate access for emergency vehicles; or would in any other way cause hazardous conditions to exist which would constitute a clear and present danger to the public health, safety and general welfare. NOTICE OF DECISION - - PAGE 13 OF 33 StIR7fl -ono R-(;HlIRCHILL WOODS SUBDIVISION • • • 4 • The lots within this subdivision will be providing access to a public street (SW 79th Avenue). Tualatin Valley Fire and Rescue and Tigard Police have been notified of the proposed subdivision and have not indicated a hazard: The Director has not determined that Planning Commission review is necessary for building permits. With regard to streets and street intersections, these issues are addressed under TDC Chapter 18.810 (Street and Utility Improvement Standards). This criterion has been satisfied. Direct individual access to arterial or collector streets from single-family dwellings and duplex lots shall be discouraged. Direct access to major collector or arterial streets shall be considered only if there is no practical alternative way to access the site. • The.proposed.single-family lots will have access via a proposed public street (SW 79"Avenue) which is not•a collector. Therefore, no single-family lot will have direct access to a major collector or • arterial. - In no case shall the design of the service drive or drives require or facilitate the.backward movement or other maneuvering of a vehicle within a street, other than an alley. Single-family and duplex dwellings are exempt from this requirement. - This criterion does not apply to the.proposed single-family dwellings. Access Management(Section 18.705.030.H) Section 18.705.030.H.1 states that an access report shall be submitted with all new development proposals which.verifies design Of driveways and streets-are safe by meeting .adequate stacking -needs, sight distance and deceleration standards as set by ODOT, Washington County, the City and AASHTO. , - This development includes the construction of a public road and cul-de-sac. The applicant's engineer has provided preliminary sight distance certification for the proposed intersection with 79 Avenue. The required sight distance is approximately 250 feet based on a posted speed limit of 25 mph. The engineer has stated that sight distance in both directions exceeds 300 feet, therefore this criterion is• met. • . The applicant's engineer shall submit a final sight distance.certification upon completion of public improvements and prior to.final plat approval. • . Section 18.705.030.H.2_ states that-driveways shall- not be permitted to be placed in the influence area of collector or arterial street intersections. Influence area of intersections is that area where queues of traffic commonly form on. approach to an intersection. The minimum driveway setback from a collector or arterial street intersection shall bel 50 feet, - measured from the right-of-way line of the intersecting. street to the throat of the proposed driveway. The setback may be greater depending upon the influence area, as determined from City Engineer review of a traffic impact report submitted by the applicant's traffic engineer. In a case where a project.has less than 150 feet of street frontage, the applicant Must explore any option for shared access with the adjacent parcel. If shared access .is_not possible or practical, the driveway shall be placed as far from the intersection as possible. This development is located on 79th Avenue, which is classified as a Neighborhood Route; therefore • this criterion does not apply. . Section 18.705.030.H.3 and 4 states that the minimum spacing of driveways and streets along a collector shall be 200 feet. The minimum spacing of driveways and streets along an arterial shall be 600 feet. The minimum spacing of local streets along a local street shall be 125 feet. The proposed local street is over 500 feet south of Ashford Street and almost 300 feet north of Churchill Way, thereby meeting this criterion for local street spacing. NOTICE OF DECISION PAGE 14 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION • • Minimum access.requirements for-residential use. Vehicular-access and egress for single-family, duplex or attached single-family dwelling units on individual lots and multi-family residential uses shall not be less than as provided in Table 18.705.1 and Table 18.705.2;. The access and egress into the site itself is discussed later in this decision under the Street and Utility Improvements Standards section of this decision. Access to individual lots will be reviewed for compliance during the building permit phase. . • Vehicular access to multi-family structures shall be brought to within 50 feet of the. ground floor entrance or..the ground Boor landing of a stairway, ramp, or elevator.leading to the dwelling units; No multi-family structures are proposed with this application. Therefore, this standard does not apply. Private residential access drives shall, be provided and maintained in accordance with the provisions of the-Uniform fire Code; . . . _ _ Individual driveways will be reviewed at time of building permit. Therefore, this standard is satisfied. Section 18.705.030.1.4 states that Access drives. in excess of .150 feet in length shall be provided with approved provisions for the turning_around of•fire apparatus by one of the following: a circular, paved surface having a minimum turn 'radius measured from center point-to outside edge of 35 feet or a hammerhead-configured, paved surface with each leg of the hammerhead having a minimum depth of 40 feet and a minimum width of 20 feet. The maximum cross slope of a required turnaround is 5%. • No access drive will be in excess of 150 feet. Therefore, this standard does not apply. FINDING: Based on the analysis above, the Access, Egress and Circulation standards have been . - met . Density Computations and Limitations: • - • Chapter 18.715 implements the Comprehensive Plan by establishing the criteria for determining • the number of dwelling units permitted. The number of allowable dwelling units is based on the net development area. The net area is the remaining parcel area after exclusion of sensitive lands and land dedicated for public roads or parks. The net area is then divided by the minimum lot size permitted by the zoning district to determine the number of dwelling units that may be developed on a site. . Based.on the formulas in Chapter 18.715 of the City of Tigard Community Development Code, the maximum and minimum number of units permitted on the site is based on the net developable area, subtracting sensitive land areas, land dedicated to public parks, land dedicated for public right-of-way, and land for private streets from the total site area. Of the total site area (78,562 square feet), 20,806 square feet will be dedicated to public and private street right-of-ways. This. results in a net developable area of 57,756 square feet. Therefore, the maximum number of units permitted on this site based on 3,050 square foot lot size is 18. The minimum number of lots is 15. The applicant's proposal is to build 15 lots for single-family detached homes, which meets the density requirements of the R-12 zone. FINDING: Based on the analysis above, the Density Standards have been satisfied. Environmental'performance standards (18.725): -These standards require that federal and state environmental laws, rules and regulations pertaining to noise, odor and discharge of matter into the atmosphere, ground, sewer system or stream be applied to development within the City of Tigard. Section 18.725.030 (Performance Standards)- regulates: Noise, visible emissions, vibration and odors. Noise. For the purposes of noise regulation,the provisions of Sections 7.41.130,through 7.40.210 of the Tigard Municipal Code shall apply. NOTICE OF DECISION PAGE 15 OF 33 n..........�...,..... ........n.w. u..�r.rn c nnn nona - • • • • Visible Emissions. Within the commercial zoning.districts and the industrial park (IP) 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 uncombined water (steam) which is visible from a property line. Department of Environmental Quality (DEQ) rules for visible emissions (340-21-015 and 340-28-070) apply. Vibration. No vibration other' than that caused by highway vehicles, trains and aircraft is permitted in any given zoning.district which is discernible without instruments at the property line of the use concerned. . • . Odors. The emissions 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 rulesfor odors(3340-028-090) apply. ' • Glare and heat. No direct or sky reflected -glare, whether from floodlights or from high temperature processes such as combustion or welding,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 2) these regulations shall not apply to sins or floodlights in parking areas or construction equipment at the time of construction or excavation work-otherwise permitted by this title. Insects and rodents. All-materials including wastes shall be stored and all grounds shall be maintained in a manner which-will not attract or aid the propagation of insects or rodents or create a health.hazard. . - This is a detached single-family project, which is permitted within the R-12 zone. There is nothing to indicate that these standards will not be met. However, ongoing maintenance to meet these standards shall be maintained and any violation of these standards will be addressed by the City of Tigard's' Code'Enforcement Officer. FINDING: Based on the analysis above, the Environmental Performance Standards have not been met. If the Applicant complies with the condition below, the standards will be met. CONDITION:Acknowledge in writing that the applicant understands the Environmental Performance Standards of Section 18.725 of the Tigard Development Code shall be maintained and • any violation of these standards will constitute a violation of code. Landscaping and Screening(18.745): Section '18.745.030.E states that existing vegetation on a site shall be protected as much as possible. The developer shall provide methods for the protection of existing vegetation to remain during the construction process; and the plants to be• saved shall be noted on the landscape plans (e.g.areas not to be disturbed can be fenced, as in snow fencing which can be placed around individual trees). - The applicant has not indicated how existing vegetation is to be protected. Therefore, the applicant is required to provide a landscape plan that shows existing plants that are to be saved. Protection fencing shall be shown around all plants and `trees that are to be saved. The location of the protection fencing must be approved by the City's Arborist. Section 18.745.040.0 requires that street trees be planted in conjunction with all development that fronts a street or driveway more than 100 feet- long.- A proposed.planting list must be submitted for review by the Director since certain trees can damage utilities streets and sidewalks or cause personal injury. This section also contains specific standards utilities, streets of street trees as follows: . Small or narrow stature trees (under 25 feet tall and less than 16 feet wide branching) shall be spaced no greater than 20 feet apart; Medium sized trees (25 feet to 40 feet tall, 16 feet to 35 feet wide branching) shall be spaced no greater than 30 feet apart; and - NOTICE OF DECISION PAGE 16 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION • • • Large trees over 40 feet tall and more than 35 feet wide branching) shall be spaced no greater than 40 feet apart; The proposed street improvements within the development include planter strips in compliance with City standards, to accommodate street trees. A Street Tree & Lighting Plan, has been included that identifies the typical species and location of proposed street.trees (See Exhibit A-Preliminary Plans, • Sheet 8 of 14 — Composite Landscaping Street Tree & Lighting Plan). A more detailed street tree plan has been proposed to be included with the final construction documents for this development. The applicant is therefore, required to submit a copy of the construction plans that shows the proposed development with street trees that are in compliance with the City's Street Tree List. Section 18.745.050 contains the provisions and requirements for buffering and screening. The Buffering and Screening Matrix (Section 1.8.745.1) does not require buffering or screening when a single-family detached residential use is adjacent to existing detached single-family uses. Therefore,this section does not apply. • Section 18.745.060 contains. the provisions for re-vegetation where natural vegetation has been removed through grading. Such areas are to be replanted as set forth in this section to prevent erosion after.construction activities are completed. The applicant has proposed to re-plant or cover areas disturbed during construction per standards as established by Clean Water Services. Appropriate control measures will reduce erosion. The applicant is required to provide and implement a re-planting plan showing how the subject site will be re-planted and to what extent. FINDING: Based on the analysis above, the landscaping and screening standards have not been met. If the Applicant complies with the conditions below, the standards will be met. CONDITIONS:• . • Provide a landscape plan. that shows existing plants that.are to be saved. Protection fencing shall be shown around all plants and trees that are to be saved.. The location of the protection fencing must be approved by the City's Arborist. - • Submit a copy of the construction plans that shows the proposed development - with street trees that are in compliance with the City's Street Tree List. • The applicant is required to provide and implement a re-planting plan showing • how the subject site will be re-planted and to what extent. • Off-Street Parkin• and Loadin• Re:uirements 18.765 : ap er :. • , a• e • . requires a sing e- amily residences be provided with one (1) off-street parking space for each dwelling unit. Compliance with this standard will be enforced during the building permit review process. Since the Code requires 20 feet from the property line to the face of a garage, this will insure that at least one car can park off of the street, outside of any garage. FINDING: . Because each individual home will be reviewed for compliance with this standard during • . the building permit phase and it is feasible that this standard will be met by providing driveways and garages, the Off-Street Parking and Loading requirements have been satisfied. • • NOTICE OF DECISION PAGE 17 OF 33 • • Signs (18.780 Chapter 18.780 regulates the placement, number and design criteria for signage. No signs are proposed in con[unction with this development. Any future signage will be subject to the sign permit requirements in Chapter 18.780. There has been a proliferation of sign violations from new subdivisions. In accordance with a new policy adopted by the Director's Designee, all new • subdivisions must enter into a sign compliance agreement to -facilitate a more expeditious court process for--citations. FINDING: To ensure compliance and enforcement of sign violations, a sign compliance agreement will be required. CONDITION:Prior to the issuance of building permits, the developer shall sign a copy of the City's sign -cornpliance agreement. Tree Removal (18.7901: Tree plan required.' A tree plan for the planting, removal and protection of trees prepared by a certified arborist shall be provided for any lot; parcel or combination of lots or parcels for which a development application for a. subdivision, partition, site development review, planned development or conditional use is filed. Protection is preferred over removal wherever possible. -Plan requirements. . The tree plan shall include the following: - - • 1. Identification of the location, size and species of all existing trees including trees designated as significant by the city; 2. Identification of a program to save existing trees or mitigate tree removal over 12 inches in caliper. Mitigation must follow the replacement guidelines of Section 18.790.060D, in accordance with the following standards and shall be exclusive of trees required by other development code provisions for landscaping, streets and parking lots: a. Retention of less than 25% of existing trees over 12 inches .in caliper requires a mitigation program in accordance with Section 18.790.0600 of no net loss of trees; b. Retention of from 25% to 50% of existing trees over 12 inches in caliper requires that two-thirds of the trees to be removed --be mitigated in accordance with Section 18.790.060D; c. Retention of from 50% to 75% of existing.trees over 12 inches in caliper requires that 50 percent of the trees to be removed be mitigated in accordance with Section 18.790.060D; d. Retention of 75% or greater of existing trees over 12 inches in caliper requires no mitigation. - - 3. Identification of all trees which are proposed to be removed; 4. A protection program defining standards and methods that will be used by the applicant to protect trees during and after construction. - - The appiicai t:'has submitted an arborist report and tree plan identifying all trees greater than six inches in diameter. According to the project arborist, there are a total of 151 viable trees greater than . 12 inches located on the subject property equaling 3,147 square feet. The applicant has proposed to mitigate -100% of the inches due to the extensive grading that will take-place on the property for the proposed infrastructure and in order to create buildable lots. Therefore, the applicant will be required to provide a mitigation plan for 3,147- inches. If the applicant finds that viable trees may in fact be saved prior to building permits, a comprehensive arbonst report/protection plan will be required to be submitted and mitigation will.be recalculated. NOTICE OF DECISION PAGE 18 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION • • FINDING: Based on the analysis above, and comments provided by the City's Arborist under . Section VII (Other Staff Comments)'the Tree Removal standards can be met, provided the applicant complies with the conditions listed:below: CONDITIONS: . • •• • Submit a mitigation plan far 3,147 inches. • If the applicant finds that viable trees may in fact be saved prior to building permits, a comprehensive arborist report/protection plan will be required to be submitted and mitigation will be recalculated. • • Prior to commencing site work, the applicant shall submit a cash assurance for the equivalent value of mitigation required. If additional trees are preserved through the subdivision improvements and construction of houses, and are properly protected • through these stages by the same measures afforded to other protected trees on site, the amount of the cash assurance may be correspondingly reduced. Any trees planted on the site or off site in•accordance with 18.790.060 (D) will be credited against the cash assurance, for two years.following final-plat approval. • After such time, the applicant shall pay the remaining value of the cash assurance as a fee in lieu of planting. • Prior to issuance of building permits, the applicant/owner shall record a deed restriction to the effect that any existing tree greater than 12" diameter may be removed only if the tree dies or is hazardous according to a certified arborist. The deed restriction may be removed or will be considered invalid if a tree preserved in accordance with this decision should either die or be removed as a hazardous tree. • Prior to commencing any site work,the applicant shall submit construction drawings that include also approved Tree Removal, Protection and Landscape Plan. The plans shall also include a construction sequence induding installation and removal of tree protection devices, clearing, grading, and paving. Only those trees identified on the approved Tree Removal plan are authorized for removal by this decision. • • Prior to commencing any site work,the applicant shall establish fencing as directed by the project arbonst to protect the trees to be retained. The applicant shall allow• access by the City Forester for the purpose of monitoring and inspection of the tree protection to venftry+that the tree protection measures are performing adequately. Failure to follow a plan, or maintain tree protection fencing in the designated locations shall be grounds for immediate suspension of work on the site until remediation measures and/or civil citations can be processed. • Prior to the issuance of any Certificates of Occupancy , the applicant shall ensure that the Project Arborist has:submitted written reports to the City Forester, at least, once every two weeks, from initial tree protection zone (TPZ) fencing installation, through occupancy of individual units, as he monitors the construction activities and progress. These reports should include any changes that occurred to the TPZ as well as the condition and location of the tree protection fencing. If the amount of TPZ was reduced then_the Project Arborist shall justify why the fencing was moved, and shall certify that the construction activities to the trees did not adversely impact the overall, long-term health and stability of the tree(s). If.the reports are not • submitted or received by the City Forester at the scheduled intervals, and if it appears the TPZ's or the Tree Protection Plan is not being followed by the contractor,the City can stop work on the project until an inspection-can be done by •the City Forester and the Project Arborist. This inspection will be to evaluate the tree protection fencing, determine if the fencing was moved at any point during construction, and determine if any part of the Tree Protection Plan has been violated. • - NOTICE OF DECISION PAGE 19 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION ! • • Prior to issuance of building permits, the applicant shall submit site plan drawings indicating the location of the trees that were preserved.on the lot, location of tree protection fencing, and a signature of approval from the project arborist regarding the placement and construction techniques to be employed in building the house. All proposed protection fencing shall be installed and inspected prior to commencing construction, and shall remain in place through the duration of home building. After-approval from. the City Forester, the tree protection measures may be removed. Vision Clearance: • . • - Chapter 18.795 applies to all development and requires that clear vision area shall be maintained on the corners of all property adjacent to intersecting right-of-ways and at the intersection_of a public street and a private driveway. A visual clearance area shall contain no vehicle;'-liedge,. planting, fence,•wall structure, signs, or temporary or permanent obstruction exceeding three feet in height. . ' The applicant has not shown visual clearance triangles on the submitted plans. Therefore, the applicant is required to provide visual clearance triangles on the final plat. The applicant will also be required to place a note.on the final plat that no structures, fences, retaining walls or vegetation over three feet will be placed in the visual clearance triangles. FINDING: Based on the analysis above, the vision clearance standards have not been met. If the applicant complies with the conditions below, the standard will be met. CONDITIONS: • • • Provide visual clearance triangles on the final plat. .. Place a note on the final plat that no structures, _fences, retaining walls or vegetation over three feet will be placed in the visual clearance triangles. C—STREET AND UTILITY IMPROVEMENTS STANDARDS(SECTION 18.810):.. Street And Utili Im•rovements Standards Section 18.811 : ap er I prove•es cons uction s an•ar•s or e implementation of public and private facilities and utilities such as streets, sewers, and drainage. The applicable standards are addressed below: Streets: . •- Improvements: • Section 18.810.030.A.1 states that streets within a development and streets adjacent shall be • improved in accordance with the TDC standards. Section 18.810.030.A.2 states.that any new street or additional street width planned as a portion of an existing street shall be dedicated and improved in accordance with.the TDC. Minimum Rights-of-Way and Street Widths:- Section 18.810.030.E requires a Neighborhood route to have a 58 right-of-way width and 36-foot paved section. Other improvements required may include on-street parking, sidewalks and bikeways, underground utilities, street lighting, storm drainage,anti'street trees. This site lies adjacent to SW 79th Avenue, which is classified as a Neighborhood Route on the City of Tigard Transportation:Plan Map. At present, there is•approximately 20 feet of ROW from centerline, according to the most recent tax assessors map. The applicant should dedicate an additional 10 feet to provide for 30 feet from-centerline in order to match existing improvements to the south. SW 79th Avenue is currently partially improved. In order to mitigate the impact from this development, the applicant should construct half street improvements, matching the existing improvements south of the development and tapering to the minimum standards for a neighborhood route. NOTICE OF DECISION - PAGE 20 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION • • • Future Street Plan and Extension of Streets:. Section 18.810.030.F states that a future street plan shall'be filed which shows the pattern of existing. and proposed future streets from the boundaries of the proposed land-division. This section also states that where it is necessary to give access or permit a satisfactory future division of adjoining land, streets shall be extended to the boundary lines of the tract to be developed and a barricade shall be constructed at the end of the street. These street stubs to adjoining properties are not considered to be cul-de-sacs since they are intended to continue as through streets at such time as the adjoining property is developed. .A barricade shall be constructed at the end of the street by the property owners which shall not be removed until authorized by the City Engineer, the cost of which shall be included in the street construction cost.: Temporary hammerhead turnouts or temporary cul-de- sac bulbs shall be constructed for stub streets in excess of 150 feet in.length. • The site is surrounded by existing houses and therefore, streets would are not able to be extended. This criterion does not apply. . Street Alignment and Connections: , Section 18.810.030.H.1 states that full street connections with spacing of no more than 530 feet between.connections'is required except where.prevented by barriers such as topography, railroads, freeways, pre-existing developments, lease provisions, easements, covenants or other restrictions existing prior to May 1, 1995 which preclude street connections.. A full street connection may also be exempted due to a regulated water feature if regulations would not permit construction. . Section 18.810.030.H.2 states that all local, neighborhood routes and collector streets which abut a development site shall;be extended within the site to provide through circulation when not precluded by environmental or topographical constraints, existing development patterns or strict adherence to other standards in this code. A street connection or extension is precluded when it is not possible to redesign, or reconfigure the street pattern'to provide required extensions. Land is considered.topographically constrained if the slope is greater than 15%for a distance of 250 feet or more. In the case of environmental or topographical constraints, the mere presence of a constraint is not sufficient to show that a street connection is not possible.. The applicant must show why the constraint precludes some reasonable street connection.. Access to the proposed development will be provided by a public cul-de-sac street. This proposed public street cannot be extended further west due to existing development. Cul-de-sacs: 18,810.030.L states that a cul-de-sac shall be no more than 200 feet long, shall not . • provide access to greater than 20 dwelling units, and shall only be used when environmental or topographical constraints, existing development pattern, or strict adherence to other standards in this code preclude street extension and through circulation: • All cul-de-sacs shall terminate with a turnaround. Use of turnaround configurations other than circular,shall be approved by the City-Engineer; and • The length of the cul-de-sac shall be measured from the centerline intersection point of the two streets to the radius point of the bulb,and • • if a cul-de-sac is more than 300 feet long, a lighted direct pathway to an adjacent street may be required to be provided and dedicated to the City. The applicant has proposed a cul-desac that is approximately 1.90 feet long, thereby.meeting the cul- de-sac length:requirements. . . . Grades and Curves: Section 18.810.030.N states that grades shall not exceed ten p ercent on arterials; 12% on collector streets, or 12% on any other street(except that local or residential access streets may have segments with grades up to 15% for distances of no greater than 250 feet). Centerline radii of curves shall be as determined by the City Engineer. The grades on 791' Avenue and the. proposed cul-de-sac street are much less than 12%, thereby meeting this criterion. . . NOTICE OF DECISION PAGE 21 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION • • • Private Streets: Section 18.810.030.T states that design standards for private streets shall be established by the City Engineer. The City shall require legal assurances for the continued maintenance of private streets, such as a recorded maintenance agreement; Private streets serving More than six dwelling units are permitted only within planned developments, mobile home parks, and multi-family residential developments. The proposed development includes two private streets at the end of the cul-de-sac, each serving less than 6 dwelling units. The applicant shall place a statement on the face of the.final plat indicating the private street(s) will be owned and maintained by the properties that will be served by it/them. In addition, the applicant shall record Conditions, Covenants and Restrictions (CC&R's) alon with the final plat that will clarify how •the private_property owners are to maintain the private streets). These CC&R's shall be reviewed and approvei 'by_the City prior to approval of the final plat. The City's public improvement design standards require private streets to have a pavement section equal to a public local street. The applicant will need to provide this type of pavement section. • Block Designs - Section 18.810.040.A states that the length, width and shape of blocks shall be designed with due regard to providing•adequate building sites for the use contemplated, consideration of needs for convenient access, circulation, control and safety of street traffic and recognition of limitations and opportunities of topography. Block Sizes: Section 18.810.040.8.1 states that the perimeter of blocks formed by streets shall not exceed 1,800 feet measured along the right-of-way line except: . • • Where street location is precluded by natural topography, wetlands or other bodies of water or, pre-existing development or • For. blocks. adjacent to arterial streets, limited access highways, major collectors or railroads. • For non-residential blocks in which internal public.circulation provides equivalent access. No blocks are created by the proposed subdivision. The applicant has proposed a cul-de-sac into the subject site due to pre-existing development surrounding the subject site to the north, south and west. Therefore, this standard does not apply. • • Section 18.810.040.B.2 also states that bicycle and pedestrian connections on public easements or right-of-ways shall be provided when full street connection is not possible. :Spacing between connections shall be no more than•330 feet, except where precluded by environmental or topographical constraints, existing development patterns, or strict adherence to other standards in the code. As mentioned above, no blocks are created within this development. The proposed cul-de-sac is only 190 feet measured from right-of-way. Therefore, no bicycle or pedestrian connection is required. The applicant's plans do show an internal sidewalk system that extends SW 79 Avenue. Lots -Size and Shape: Section 18.810.060(A) prohibits lot depth from being more than 2.5 times the average lot width, unless the parcel is less,than 1.5 times the_ minimum lot size of the applicable zoning district . The minimum lot size of the R-12 zoning district is 3,050 square feet. Based on the standard above, none.of the proposed parcels can be more than 2.5 times the average lot width unless they are less than 1.5 times the minimum lot size (4,575 square.feet). The largest of proposed lots is 4,408 square feet. Therefore, this standard is satisfied. . Lot Frontage: Section 18.810.060(B) requires that lots have at least 25 feet of frontage on public or private streets, other than an alley. In the case of a land partition, 18.420.050.A.4.c applies, which requires a parcel to either have a minimum 15-foot frontage or a minimum 15-foot wide recorded access easement. In cases where the lot is for an attached single-family dwelling unit, the frontage shall be at least 15 feet. NOTICE OF DECISION - PAGE 22 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION • • 1 ' Proposed parcel #1.3 is shown to have the least amount of frontage with 32 feet. This criterion requires a minimum of 25 feet. Therefore, this standard is satisfied. • Sidewalks: Section 18.810.070.A requires that sidewalks be constructed to meet City design standards and be located on both sides of arterial, collector and local residential streets. Private streets and industrial streets shall have sidewalks on at least one side. The applicant's narrative and plans indicate they will construct-a sidewalk along their 79"' Avenue frontage, both sides of the proposed cul-de-sac street and 'along one side of each of the private streets, thereby meeting this criterion. Sanitary Sewers:• Sewers Required: Section 18.810.090.A requires that sanitary sewer be installed to serve each new development and to connect developments to existing mains in accordance with the provisions set forth in Design and Construction Standards for Sanitary and Surface Water Management (as adopted by Clean Water Services in 1996 and including any future revisions - or amendments) and the adopted policies of the comprehensive plan. . Over-sizing: Section 18.810.090.0 states that proposed sewer systems shall include consideration of additional development within the.area as projected-by the Comprehensive Plan. . There is an existing 8-inch sewer line in 79"' Avenue. The applicant's plans show the extension of the -public sewer line in the public street and private streets to serve this development. Storm Drainage: General Provisions: Section 18.810.100.A requires developers to make adequate provisions for storm water and flood water runoff. . . Accommodation of. Upstream Drainage: Section 18.810.100.0 states that a culvert or other drainage facility shall be large enough to accommodate potential runoff from its entire upstream drainage area, whether inside or outside the development. The City Engineer shall approve the necessary size of the facility, based on the provisions of Design and Construction Standards.for Sanitary and Surf ace Water Management (as adopted by Clean Water Services in 2000 and including any future revisions or amendments). _ • There are no upstream drainage ways that impact this development. Effect on Downstream -Drainage: Section 18.810.100.D states that where it is anticipated by the City Engineer that the additional runoff.resultinq from the development will overload an existing drainage facility, the Director and Engineer shall withhold approval of the development until provisions have been made for improvement of the potential condition or until provisions have been made for storage of additional runoff caused by the development in accordance with the Design .and Construction Standards for Sanitary and Surface Water Management.(as adopted by Clean Water.Services in 2000 and including any future revisions or amendments): . In 1997, Clean Water Services (CWS) completed a basin study of Fanno Creek and adopted the Farina Creek Watershed Management Plan. Section V of that plan includes a recommendation that local governments institute a stormwater detention/effective. impervious area reduction program resulting in no net increase in storm peak flows up to the 25-year event. The City will require that all new developments resulting in an increase of impervious surfaces'provide onsite detention facilities, unless the development is located adjacent to Fanno Creek. For those developments adjacent to Fanno Creek, the storm water runoff will be permitted to discharge without detention. The applicant's plans and calculations provide'for an on-site detention pond for. stormwater runoff, The pre-developed release. rate. will be used for discharge into -the public storm system in 79 Avenue. • . • NOTICE OF DECISION PAGE 23 OF 33 I iconnr_nnnia_rut'prim!I worms SI IRf IVISION • I • Bikeways and Pedestrian Pathways: Bikeway Extension: Section 18.810.110.A states that developments adjoining proposed bikeways identified on the City's adopted pedestrian/bikeway plan shall include provisions for the future extension of such bikeways through the dedication of easements or right-of-way.. • 79th Avenue is designated a bicycle facility on the City's Bicycle Master Plan. While it is not reasonable to stripe a small portion of a bicycle lane it is reasonable to require the developer to pay for the cost of future striping. - Cost of Construction: • Section 18.810.110.8 states that development permits issued for planned unit developments, conditional use permits, subdivisions, and other developments which will principally benefit from such bikeways shall be conditioned to include the cost or construction.;of bikeway improvements. . The amount of the striping would be as follows: • • • 232 feet of 8-inch white stripe, at$2.50/If _ • $, 580.0.0 • 6 Mono-directional reflective markers @ $4.00/ea $ 24.00 • 2 Bike lane legends @ $175/ea $ 350.00 • 2 Directional mini-arrows $100/ea $ 200.00 $1,154.00- Minimum Width: Section 18.810.110.0 states that the minimum width for bikeways within the roadway is five feet per bicycle travel lane. Minimum width for two-way bikeways separated from the road is eight feet. . The bicycle travel lane for a neighborhood route is 6 feet. Utilities:. Section 18.810.120 states that all utility lines, but not limited to those required for electric, communication, lighting and cable television services and related'facilities shall be placed underground; except for surface mounted transformers, surface mounted connection boxes and meter cabinets which may be placed above ground, temporary utility service facilities during construction, high capacity electric lines operating at 50,000 volts or above, and: • The developer shall make all necessary arrangements with the serving utility to provide the underground services; • The City reserves the right to approve location of all surface mounted facilities; • All underground utilities, including sanitary sewers and storm drains installed in streets by the developer,shall be constructed prior to the surfacing of the streets; and • • Stubs for service connections shall be long ,enough to avoid disturbing the street improvements when service connections are made. • Exception to. Under-Grounding Requirement: Section 18.810.120.0 states that a developer shall pay a fee in-lieu of under-grounding costs when the development is proposed to take place on• a street where existing utilities which are not underground will serve the • development and the approval authority determines that the cost And technical difficulty of under-grounding the utilities outweighs the benefit of urider-grounding in conjunction with the development... The determination shall be on a case-by-case basis. The most common, but not the ,such situation is a short frontage development for which under-grounding would result in the placement of additional poles, rather than the removal of above-ground utilities facilities. An applicant for a development which is served by utilities which are not underground and which are located across a public right-of-way from the applicant's property shall pay a fee in-lieu of under-grounding. There are existing overhead utility lines along the frontage of SW 79th Avenue. If the fee in-lieu is proposed, it is equal to $35.00 per lineal foot of street frontage that contains the overhead lines. The City Engineer may approve requests for the fee-in-lieu on a case-by-case basis; otherwise the developer is expected to place the utilities underground. The frontage along this site is 264.10 lineal feet;therefore the fee would be $9,243.50. NOTICE OF DECISION PAGE 24 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION t.. • ADDITIONAL CITY AND/OR AGENCY CONCERNS WITH STREET AND UTILITY IMPROVEMENT Public Water System: The City of Tigard provides service in this area. There is an existing public water line in.79th Avenue. The applicant s plans indicate a public water line extension into the site, located within the new street right-of-way. • Storm Water Quality: The City has agreed to enforce Surface Water Management (SWM).regulations established by Clean Water Services (CWS) Design.and Construction Standards {adopted by Resolution and Order No. 00-7) which require the construction of on-site water quality facilities. The facilities shall be designed to remove 65 percent of the phosphgtus..contained in 100 percent of the storm water runoff generated from newly created impervious surfaces. In addition, a maintenance plan shall be submitted indicating the frequency and method to be used in keeping the facility maintained through the year. . Prior to construction, the applicant shall submit plans and calculations for a water quality facility that will meet the intent of the CWS Design Standards. In addition, the applicant shall submit a maintenance plan for the facility that must be reviewed and approved by the City prior to construction. Prior to the City accepting this facility as a public facility, the developer shall maintain it for a minimum of three years after construction is completed. The pond shall be placed in a tract and conveyed to the City on the final plat. The developer will be required to submit annual reports to the City which show what maintenance operations were conducted on the facility for that year. Once the three-year maintenance period is completed, the City will inspectthe facility and make note of any problems that have arisen and require them to be resolved before the City will take over maintenance of the facility. In addition, the City will not take over maintenance of the facility unless 80 percent of the landscaping is established and healthy. If at any time during the maintenance period, the landscaping falls below the 80 percent level, the developer shall immediately reinstall all deficient planting .at the next appropriate planting opportunity. . Grading and Erosion Control: CWS 6esign and Construction Standards also regulate erosion control to reduce the amount of sediment and -other pollutants reaching the public storm and surface water system resulting from development, construction, grading, excavating, clearing, and any other activity which accelerates erosion: Per CWS regulations, the applicant is required to submit an i erosion control plan for City review and approval prior to issuance of City permits. The Federal Clean Water Act requires that a National Pollutant Discharge Elimination System (NPDES) erosion control permit be issued for any development that will disturb one or more acre of and. Since this site is over five acres, the developer will be required to obtain an NPDES permit from the City prior to construction. This permit will be issued along with the site and/or building permit. A final grading plan shall be submitted showing the existing and proposed contours. The plan shall detail the provisions for surface drainage of all lots, and show that they will be graded to insure that surface drainage is directed to the street or a public storm drainage system approved by the Engineering Department. For situations where the back portions of lots drain away from a street and toward adjacent lots, appropriate private storm drainage lines shall be provided to sufficiently contain and convey runoff from each lot.• The applicant will also be required to provide a geotechnical report, per Appendix Chapter.33 of the UBC,-for the proposed grading slope construction. The recommendations of the report will need to be incorporated into the final grading plan and a final construction supervision report must be filed with the Engineering Department prior to issuance of.building permits: The design engineer shall also indicate, on the grading plan, which lots will have natural slopes between 10% and 20%, as well as lots that will have natural slopes in excess of 20%. This information will be necessary in determining if special grading inspections and/or permits will be necessary when the lots develop. • NOTICE OF DECISION PAGE 25 OF 33 SI iaonn.S.nnm R-r.NI iRC:HII.L WOODS SUBDIVISION • . The applicant shall submit a1200C NPDES permit application to the City for review and signature. The City will forward the application to CWS for review and•approval. Address Assi nments: The i of agar is responsible for assigning addresses for parcels within the City of Tigard and within the Urban Service Boundary (USB). An addressing fee in the amount of $50.00 per address shall be assessed. This fee shall be paid to the City prior to final plat approval. The developer will also be required to provide signage at the entrance of each '.shared flag lot driveway or private street that lists the addresses that are served by the given driveway or street. This will assist emergency services personnel to more easily find a particular home. Survey:Reqquirements: The applicant's:final plat shall contain State Plane Coordinates [NAD 83 (91)] on two monuments with a tie to the City's global positioning system (GPS) geodetic control network (GC 22). These monuments shall be on the same line and shall be of the same precision as required for the subdivision plat boundary. Along' with the coordinates, the plat shall contain the scale factor to convert ground measurements to grid measurements and the angle from north to grid north. These coordinates can be established by: • GPS tie networked to the City's GPS survey. • By random traverse using conventional surveying methods. In addition,.the applicant's as-built drawings shall be tied to the GPS network. The applicant's engineer shall provide.the City with an electronic file with points for each structure (manholes, catch basins, water valves, hydrants and other water system features) in the development, and their respective X and Y State Plane.Coordinates, referenced to NAD 83(91). D.= IMPACT STUDY Section 18.390.040 states that the applicant shall provide an impact study to quantify the effect of development on public facilities and services. The study shall address, at a minimum, the transportation system including bikeways, the drainage system, the parks system, the water system, the sewer system, and the noise impacts of.the development. For each public facility system. and type of impact, the study shall propose improvements necessary to meet City standards, and to minimize the impact of the development'on the public at large, puiblic facilities systems, and affected private property users. In situations where the Community Development Code requires the dedication of real property interests, the applicant shall either specifically concur with a requirement for public nght-of-way dedication, or provide evidence that supports the conclusion that the real property dedication requirement is not roughly proportional to the projected impacts of the development. Section 18.390.040 states that when a condition of approval requires the transfer-to the-public of an interest in real property, the approval authority shall adopt findings which support the conclusion that the interest in real property to be transferred is roughly proportional to the impact the proposed development will have on the public. A copy of the applicant's Impact Study can be found in the land-use file which addresses the impact that the proposed development of 15 lots will have on the public facilities and services. The Impact Study has been reviewed by City staff. Any recibir& street improvements to certain collector or higher volume streets and the Washington County Traffic Impact Fee (TIF) are mitigation measures that are required at the time of development. Based on a transportation impact study prepared by Mr. David Larson for the A-Boy Expansion/Dolan II/Resolution 95-61, TIF's are expected to recapture 32 percent of the traffic impact of new development on the Collector and Arterial Street system. Presently, the TIF for a detached, single-family dwelling is $2,690. • NOTICE OF DECISION PAGE 26 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION • . • The internal streets within the subdivision are needed to allow the subdivision to develop and the need for these -streets is created by the subdivision. Because the need for the internal streets is created by the development, the impact of the development_is directly proportional to the cost of dedication and construction of the internal streets. Upon completion of this development, the future builders of the residences will be required to pay TIF's totaling approximately"$40,350($2,690 x 15 dwelling units). Based on the estimate that-total TIF fees cover 32 percent of the impact on major . street improvements citywide, a fee that would cover •100 percent of this projects traffic impact is $126,094 ($40,350 divided by .32). The difference between the TIF paid and the -full, impact, is considered as unmitigated impact. Since the TIF paid is $40,350, the unmitigated impact can be valued'at $85;744. Given that the estimated cost of the dedication and half-street is $39,100, the value of these improvements is less than the value of the unmitigated impacts._ However, the . applicant has proposed to complete the necessary improvements. Therefore, the proportionality test has been met:, . • SECTION VII. . OTHER STAFF COMMENTS City of Tigard Police Department has reviewed the proposal and has no objections to it. City of Tigard Building Division has reviewed the proposal and has no objections to it. City of Tigard's City Forester has reviewed the proposal and has offered the following comments: LANDSCAPING AND SCREENING • - • 18.745.030.C, Installation Requirements The installation of all landscaping shall be as follows: • 1. All landscaping shall be installed according to accepted planting procedures. . 2. The plant material shall be of high grade, and shall meet the size and grading standards of the American Standards for Nurberg Stock (ANSI Z-60, 1-1986, and any other future revisions); and 3. Landscaping shall be installed in accordance with the provisions of this title. • The accepted planting procedures are the guidelines described in the Tigard Tree Manual. • These guidelines follow those set forth by the International Society of Arboriculture (ISA) tree planting guidelines as well as the standard set forth in the American Institute of Architects Architectural Graphic Standards, 10111 edition. In the Architectural Graphic Standards there are guidelines for selecting and planting trees based on the soil volume and size at maturity. Additionally, there are directions Tor soil amendments and modifications. • • • In order to develop tree species diversity onsite it is recommended that the following guidelines be followed: • • No more than 30% of any one family be planted onsite. • • No more than 20% of any one genus be planted onsite. • No more than 10% of any one species be planted onsite. 18.745.030.E, Protection of Existing Landscaping. Existing vegetation on a site shall be protectehas-much as possible: • 1. The developer shall provide methods for the protection of existing vegetation to remain during the construction process; and 2. The plants to be saved shall be noted on the landscape plans (e.g., areas not to be • disturbed can be.fenced, as in snow fencing which-can be placed around the individual trees). . See comments under"Tree Removal". NOTICE OF DECISION PAGE 27 OF 33 SUR2005-00016-CHURCHILL WOODS SUBDIVISION • • 18.745.030.G Conditions of A• •royal of Existin• Ve•etation. The review procedures and s an•ar•s or require• an•scaping an• screening s a •e specified in the conditions of . -approval during development review and in no instance shall be less than that required for conventional development. See recommended conditions of approval at the end of this memorandum. 18.745.040, Street Trees A. " Protection of existing vegetation., All development projects fronting on a public street, private street or a private driveway. more than 100 feet in length approved after the adoption of this title shall be required to plant street trees in accordance with the standards in Section 18.745.040.C. • The accepted planting procedures are the guidelines described in the Tigard Tree Manual. These guidelines follow those set forth by the International Society of Arboriculture (ISA) • tree planting guidelines as well as the standars set forth in the American Institute of Architects' Architectural Graphic Standards, 10in edition. In the Architectural Graphic Standards there are:guidelines for selecting and planting trees based on the soil volume and size at maturity. Additionally, there are directions for soil amendments and modifications. • In order to develop tree species diversity onsite it is recommended that the following guidelines be followed: . - No more than 30% of any one family be planted onsite_ - No more than 20% of any one genus be planted onsite. - No more than 10% of any one species be planted onsite. 2. TREE REMOVAL 18.790.030, Tree Plan Requirement -A. Tree .plan required. A tree plan for the planting, removal and protection of trees prepared by a certified arborist shall be provided for any lot, parcel or combination of lots or parcels for which. a development application for a. subdivision, partition, site development review, planned development or conditional use is filed. Protection is preferred over removal wherever possible. B. Plan requirements. The tree plan shall include the following: 1. Identification of the location, size and species of all existing trees including trees designated as significant by the city; . 2. Identification of a program to save existing trees or mitigate tree removal over 12 inches in caliper. Mitigation must follow the replacement guidelines of Section 18.790.060D, in accordance with the following standards and shall be exclusive of trees required by other development code provisions for landscaping, streets and parking lots: a. Retention of less. than 25% of existing trees over 12 inches in caliper requires a mitigation program in accordance with Section 18.790.060D of no net loss of trees; b. Retention of from 25% to 50% of existing trees over 12 inches in caliper • requires that two-thirds of the trees to be removed be mitigated in accordance with Section 18.790.060D; c: Retention of from 50% to 75% of existing trees over 12 inches in caliper requires that 50 percent of the trees to be removed be mitigated in accordance with Section 18.790.060D; d. Retention of 75% or greater of existing trees over 12 inches in caliper requires no mitigation. • 3. Identification of all trees which are proposed to be removed; • NOTICE OF DECISION PAGE 28 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION • • • • 4. A protection program defining standards and methods that will be used by the applicant to protect trees during and after construction. • •As required, the applicant submitted a tree plan that was conducted by a certified arbonst, Stephen Goetz. The report contains the four required components, and, is therefore, acceptable. Although the developer will be removing all of the trees onsite tree protection fencing must be installed to protect the root systems of trees that are on the neighboring properties. There are numerous large trees in the yards next to this development, • especially on the eastside. Compromising the health and stability of trees that are not owned by the developer would be a distressing result of this development going . in. The guidelines for the placement of this fencing should be as follows: — •For individual trees calculate and follow the Optimal Tree Protection.Zone calculation as shown in "Trees and Development: A Technical Guide to Preservation of Trees During Land Development" by Nelda Matheny and James R. Clark. • — For groups of trees the tree protection zone must be.outside of the drip line of the trees on the edge of the stand. If there are conifers with narrow crowns on-the edge of the stand follow the trunk diameter method or the drip line method, whichever is greater. • - Care needs to be taken to protect these trees' roots in a II phases of construction, • - including any.irrigation work that may occur very late into the project. If the developer does not build the homes; the builder must also follow these guidelines and restrictions as well as any standards specified by the project arbonst.. — I suggest planting native species of trees as some or all of the street trees such as bigleaf maple, cascara or Oregon white oak. Properly sized oaks can be found at River Oak Farm & Nursery. Call Diane at 503-357-2745. The species of street tree used in this development is not listed. The species must be approved before the trees can be planted. • — If the developer is planning on planting trees on the private properties to satisfy tree mitigation requirements he needs to follow the guidelines developed for planting mitigation trees. The guidelines are attached. Below are my suggestions for the applicant to follow for tree protection guidelines:. • Prior to construction, a Tree Protection Plan shall be included with the proposed construction drawings conforming to the International Society of Arboriculture (ISA) guidelines for review •and approval by the City Forester. All tree protection devices, along with their details and specifications, shall be shown on the Tree Protection Plan. This plan shall also include the . . . building footprints shown in relation to the trees being preserved. Any tree that .will not be removed onsite that is within the limits of disturbance of this project must be protected. Any tree that is located on property-adjacent to the construction project that will have more than 15% of-its root system disturbed by construction activities shall also be protected, • • Prior to construction, the applicant shall submit a detailed construction schedule to the City Forester with notations as to when tree protection devices will be either installed or removed throughout construction of the project. • A note shall be placed on the final set.of plans indicating that equiprrtent, vehicles, machinery, • grading, dumping, storage, burial of debris, or any other construction-related activities shall not be located inside of any tree protection zone or outside of the limits of disturbance where other trees are being protected. • NOTICE OF DECISION PAGE 29 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION • 1110 - All tree protection devices shall be: - Visible. - Constructed of 11 Gauge steel chain-link fencing supported on at least 2" O.D. steel posts. Each post shall be no less than four feet high from the top of grade. Each post shall be driven into the ground to a depth of no less. than two and a half feet below grade. Each post shall be spaced no further apart than four feet. - Between each post, securely attached to the chain-link fencing, shall be a sign indicating that the area behind the fencing is protected and no construction activity, including material storage, may occur behind the fencing. - Inspected and approved in the field by the project arborist and City Forester prior to clearing,,grading, or the beginning of construction. — Remain iin place and maintained until all construction is completed and a final inspection is conducted. . • If it is necessary to enter the tree protection zone at any time with equipment (trucks, bulldozers, etc.).the project arborist and City Forester must be notified before any entry occurs. • Before entering the TPZ, the project arborist and City Forester shall determine the method by • • which entry can occur, along with any additional tree protection measures. • Prior to issuance of building permits, the Project Arborist shall submit a final certification indicating.the elements of the Tree Protection Plan were followed and that all remaining trees on the site are healthy, stable and viable in their modified growing environment. RECOMMENDED CONDITIONS OF APPROVAL: 1. Prior to commencing site work, the applicant shall submit a cash assurance for the equivalent value of mitigation required. If additional trees are preserved through the subdivision improvements and construction of houses, and are properly, protected through these stages by the same measures afforded to other protected trees on site, the amount of the cash assurance may be correspondingly reduced: Anji'trees planted on the site or off site in accordance with 18.790.060 (D) will be credited against the cash.assurance, for two years following final plat approval. After such time, the applicant shall pay the remaining value of the cash assurance as a fee in lieu of planting. 2. Prior to issuance of building permits,.the applicant/owner shall record a deed restriction to the effect that any existing tree greater than 12" diameter scheduled for preservation may be removed only if the tree dies or is hazardous according to a certified arborist. The deed restriction may be removed or will be considered invalid if a tree preserved in accordance with this decision should either die or be removed as a hazardous tree. 3. Prior to commencing any site work, the applicant shall submit construction drawings that include the approved Tree Removal, Protection and Landscape. Plan. The plans shall also include a construction sequence including installation and removal of tree protection devices, clearing, grading, and paving. Only those trees identified on the approved Tree Removal plan are authonzed for removal by this decision. . 4. Prior to commencing any site work, the applicant shall establish fencing as directed by the project arborist to protect the trees to be retained. The applicant shall allow'access by the City Forester for the purpose of monitoring and inspection of-the tree protection to verify that the tree protection measures are performing adequately. Failure to follow the plan, or maintain tree protection fencing in the designated locations shall be grounds for immediate suspension of work on the site until remediation riteasures.and/or civil citations can be processed. 5. Prior to the issuance of any Certificates of Occupancy , the applicant shall ensure that the Project Arborist has submitted written reports to the City Forester, at least,'once every two weeks, from initial tree protection zone (TPZ) fencing installation, through occupancy of individual units, as he monitors the construction activities and progress.' These reports should include any changes that occurred to the TPZ as well as the condition and location of the tree protection fencing. If the amount of TPZ was reduced then the Project Arborist shall justify why the fencing was moved, and shall certify that the construction activities to the trees did not adversely impact the overall, long-term health and stability of the tree(s). If the reports are not submitted or received by the City Forester at the scheduled intervals, and if it appears the TPZ's or the Tree Protection Plan is not being followed by the NOTICE OF DECISION PAGE 30 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION • • contractor, the City can stop work on the project until an inspection can be done by the City Forester and the Project Arborist. This inspection will be to evaluate the tree protection fencing, determine if the fencing was moved at any point during construction, and determine if any part of the Tree Protection Plan has been violated. 6. Prior to issuance of building permits, the applicant shall submit it site plan drawings indicating the location of the trees that were preserved on the lot, location of tree protection fencing, and a signature of approval from the project arbonst regarding the placement and construction techniques to be employed in building the house. All proposed protection fencing shall be installed and inspected prior to commencing construction, and shall remain in place through the duration of home building. After approval from the City Forester,the tree protection measures may be removed. .. SECTION VIII. AGENCY COMMENTS Washington County has reviewed the proposal and has no objections to it. • - Tualatin Valley Fire and Rescue has reviewed the .proposal and has offered the following comments: l - • Tualatin Valley Fire & Rescue endorses this proposal predicated on the- following criteria and conditions of approval: - FIRE APPARATUS ACCESS ROAD DISTANCE FROM BUILDING AND TURNAROUNDS: Access rows s a .e wit in I- eet o a po ons o lee enor wa .o e irs s ory o e .uilding as measured by an approved route around the exterior of the building. An approved turnaround is required if the remaining distance to-an approved intersecting roadway, as,measured along the fire apparatus access road, is greater than 150.feet. This condition is met. DEAD END ROADS: Dead end fire apparatus access roads in excess of 150 feet in length shall be provided with an approved turnaround. Does not apply. • . FIRE APPARATUS ACCESS ROAD EXCEPTION.FOR AUTOMATIC SPRINKLER PROTECTION: " en .ui sings are comp e e y pro ec e• wi i an approve. au oma is re spnn er sys em, e requirements for fire apparatus access may be modified as approved by the fire code official_ ADDITIONAL ACCESS ROADS— ONE-OR TWO-FAMILY RESIDENTIAL: Where there are more I an I one- or o- ami y ewe ing uni s, no ess an o separa e approved means of access shall be provided. Where there are more than 30 dwelling units and all are protected by approved residential sprinkler systems, a single access will be allowed. The proposed development includes two means of access. REMOTENESS: Where two access roads are required, they shall be placed a distance apart equal to not less than one half of the length of the maximum overall diagonal dimension of the property or area-to be sewed, measured in a straight line between accesses: This condition is met. . FIRE APPARATUS ACCESS ROAD WIDTH AND VERTICAL CLEARANCE: Fire apparatus access rows s a ave an uno•s ruc es wi.t o no . ess an I eet ee or up to two dwelling units and accessory buildings), and an unobstructed vertical clearance of not less than 13 feet 6 inches. Where fire apparatus roadways are less than 26 feet wide, "NO PARKING" signs shall be installed on both sides of the roadway and in turnarounds as needed. Where fire apparatus roadways are more than 28 feet wide but less than 32 feet wide, "NO PARKING" signs shall be installed on one side of the roadway and in turnarounds as needed. Where fire apparatus roadways are 32 feet wide or more, parking is not restricted. NOTICE OF DECISION PAGE 31 OF 33 • • • SURFACE AND LOAD CAPACITIES: Fire apparatus access roads shall be of an all-weather surface that is easily distinguishable from the surrounding area and is capable of supporting not less than 12,500 pounds point load (wheel load) and 75,000 pounds live load (gross vehicle weight). You . may need to provide documentation from a registered engineer that the design will be capable of supporting such.loading. TURNING RADIUS: •The inside turning radius and outside turning radius shall be not less than 28 feet and 48 feet respectively, measured from the same center point. . GRADE: Fire apparatus access roadway grades shall not exceed 10 percent. Intersections and turnarounds shall be level (maximum 5%) with the exception of crowning for water run-off. When fire sprinklers-are installed, a maximum grade of 15% may be allowed. The approval of fire sprinklers as an alternate shall be accomplished in accordance with the provisions of ORS 455.610(5). SINGLE FAMILY DWELLINGS - REQUIRED FIRE FLOW: The minimum available fire flow for single family dwellings and duplexes served by a municipal water supply shall be 1,000 gallons per minute. If the structure(s) is. (are) 3,600 square feet or larger, the required fire flow shall be determined according to IFC Appendix B. FIRE HYDRANTS — ONE- AND TWO-FAMILY DWELLINGS & ACCESSORY STRUCTURES: " ere a po Ion o a s ruc re is more an •I I ee rom a y•ran on a re appara s access roe., as measured in an approved route around the exterior of the structure(s), on-site fire hydrants and mains shall be provided. The proposed number and distribution of fire hydrants is acceptable-as submitted. - FIRE HYDRANT DISTANCE FROM AN ACCESS ROAD: Fire.hydrants shall be located not more than 15 feet from an approved fire apparatus access roadway. REFLECTIVE HYDRANT MARKERS: Fire hydrant locations shall be identified by the installation of reflective markers. The markers shall be blue. They shall be located adjacent and to the side of the .centerline of the access road way that the fire hydrant is located on. In case that there is no center line, then assume a centerline, and place the reflectors accordingly ACCESS AND FIRE FIGHTING WATER SUPPLY DURING' CONSTRUCTION: Approved fire appara us access roa.ways an• ire" ig ing wa er suppress a •e ins a e. an• operational prior to any combustible construction or storage of combustible materials on the site. • SECTION IX. PROCEDURE AND APPEAL INFORMATION Notice: . Notice was posted at City Hall and mailed to:." X The applicant and owners X Owner of record within the required distance X Affected government agencies Final.Decision: THIS DECISION IS FINAL ON DECEMBER 30, 2005 AND EFFECTIVE ON JANUARY 18, 2006 UNLESS AN APPEAL IS FILED.. • NOTICE OF DECISION PAGE 32 OF 33 SUB2005-00016-CHURCHILL WOODS SUBDIVISION • • • • A eai: The Director's Decision is final on the date that it.is mailed. Any party with standing as provided in Section 18.390.040.G.1. may appeal this decision in accordance with Section 18.390.040.G.2. of the Tigard Community Development Code which provides that a written appeal together with the required fee shall be filed with the Director within ten (10) business-days of the date the Notice of Decision was mailed. .The appeal fee schedule and forms are available from the Planning Division of Tigard City Hall, 13125 SW Hall Boulevard,Tigard, Oregon 97223. Unless the applicant is the appellant, the hearing on an appeal from the Director's Decision shall be confined to the specific issues. identified in the written comments submitted by the parties during the comment period. Additional evidence concerning issues properly raised in the Notice of Appeal may be submitted by any party during the appeal hearing, subject to any additional rules of procedure that may be adopted from time to time by the appellate body. THE DEADLINE FOR FILING AN APPEAL IS 5:00 PM ON JANUARY 17, 2006. Questions: • If you have any questions, please call the City of Tigard Planning Division, Tigard City Hall, 13125 SW Hall Boulevard, Tigard, Oregon at(503) 639-4171. December 30, 2005 PREPARE' : : ►f?:thew ct1'eidegger DATE Associate Planner - • �(�t.�f�• - � December 30, 2005 APPROVED BY: Richard Bewersd• .`i� DATE Planning Manager islcurpin\mathewlsublsub2005-00016(CHURCHILL WOODS)1sub2005-00016.decision.doc • • • NOTICE OF DECISION. • PAGE 33 OF 33 ua IWDR N NITY MAP ::- ; =111 lik . drili--- V ese _ IId _^ u.■ A HFORp ST w=Mr -- • , 6 0. SUB2005-0001 sikr#414or �__ in -• iii VAR2005-00066 • .� AS�+FORD S• MEW I CHURCHILL WOODS IIP III W . S CHURCHI tilh, / SUBDIVISION . I. -� J ilniuri � In LANGTREE S , 2 ill mi...E.... c.:)( 1.-- ,„_.•,--- . pour, • • , gini\ s, • pall ,k, IIIII gill . 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A 1 I .l.L_( pry Cr �s�� J Los I � I I ullin g I `\\ I LOT LOT LOT LOT LOT LOY I I I �. \ .,\ I 40 • 47 40 45 44 43 I z \ .\ L5 \\ I • AyK IA I I b '\ 1 01,11 041011 A PAWS 4I-47 I I IA. ��+ y . . j 1 r--- • Z ca�01ys4-al,t • • W/0/0,- 5///kaiiilli 120 DAYS =9/17/2007 DATE OF FILING: 9/14/2007 DATE MAILED: 9/17/2007 1111 'tyt r„r ti CITY OF TIGARD Washington County,Oregon NOTICE OF FINAL ORDER BY THE HEARINGS OFFICER Case Numbers: SUBDIVISION(SUB) 2007-00003 ADJUSTMENT(VAR) 2007-00013 Case Name: "APPEAL” OF FOSTER ESTATES SUBDIVISION Applicant's Name/Address: The Big Dog,LLC Attn:Kurt Dalbey 12703 SW 67th Avenue. Portland,Oregon 97223 Owner's Names/Addresses: Same as Applicant Appellant's Name/Address: Robert E.Ruedy 14185 SW 100th Avenue, Tigard,Oregon 97223 Address of Property. 14259 SW 100th Avenue and 14300 SW 103't Avenue,Tigard,Oregon 97223 _ Tax Map/Lot Nos.: Washington Co.Tax Assessor's Map No.2S111BB,Tax Lots 600/900/1000/1100. A FINAL ORDER INCORPORATING THE FACTS, FINDINGS AND CONCLUSIONS DENYING AN APPEAL AND APPROVING A REQUEST FOR A SUBDIVISION AND DENYING THE ADJUSTMENT, THE CITY OF TIGARD HEARINGS OFFICER HAS REVIEWED THE APPLICAN'T'S PLANS, NARRATIVE, MATERIALS, COMMENTS OF REVIEWING AGENCIES, THE PLANNING DIVISION'S STAFF REPORT AND RECOMMENDATIONS FOR THE APPLICATION DESCRIBED IN FURTHER DETAIL IN THE STAFF REPORT. THE HEARINGS OFFICER. HELD THE PUBLIC HEARING ON THIS ITEM ON JULY 23, 2007 PRIOR TO MAKING A DECISION ON THE REQUEST. THIS DECISION HAS BEEN BASED ON THE FACTS,FINDINGS AND CONCLUSIONS CONTAINED WITHIN THIS FINAL ORDER. Item on Appeal: On June 18, 2007, the Director issued a decision to approve a request for a 12-lot Subdivision for detached single-family homes on a 3.61-acre site consisting of four (4) parcels; and for an Adjustment to the maximum permitted length of a cul-de-sac. The proposed cul-de-sac is 365 feet and the maximum permitted length is 200 feet. The two (2) existing homes will be demolished. On July 2, 2007 an appeal was filed by Robert E. Rudy, a neighboring property owner, relating to nine areas of concern from his comments presented on April 23, 2007. At the close of the public hearing on July 23,2007 the Hearings Officer held the record open until August 31,2007, then denied the appeal and affirmed the Planning Manager's decision to approve the subject applications, subject to the conditions of approval with minor modifications. Zone; R-33: Low Density Residential District. Review Criteria Being Appealed: Community Development Code Chapters 18.370; 18.390, 18.430, 18.510, 18.705, 18.715, 18.725, 18.745, 18.765, 18.780, 18.790, 18.795 and 18.810. Action: D ❑ Approval as Requested © Approval with Conditions ❑ Denial Notice: Notice was published in the newspaper and mailed to: © Owners of Record within the Required Distance © Affected Government Agencies © Interested Parties © The Applicants and Owners Final Decision: THIS IS THE FINAL DECISION OF THE CITY AND IS EFFECTIVE ON SEPTEMBER 17,2007. The adopted findings of fact, decision and statement of conditions can be obtained from the City of Tigard Planning Division,Tigard City Hall, 13125 SW Hall Boulevard,Tigard,Oregon. Appeal: A review of this decision may be obtained by filing a notice of intent to appeal with the Oregon Land Use Board of Appeals (LUBA) according to their procedures within 21 days. Questions: If you have any questions,please call the City of Tigard Planning Division or the City Recorder at (503) 639-4171. • ,,) BEFORE THE LAND USE HEARINGS OFFICER FOR THE CITY OF TIGARD, OREGON Regarding an appeal of an administrative decision ) FINAL ORDER approving an application for a 12-lot subdivision on) 3.61 acres at 14259 SW 100th Avenue and 14300 )SUB2007-00003/VAR2007-00013 SW 103rd Avenue in the City of Tigard, Oregon ) (Foster Estates Subdivision) A. SUMMARY 1. The applicant, Kurt Dalbey/The Big Dog, LLC,requests approval of a preliminary plan for a 12-lot subdivision of a 3.61-acre parcel in the R-3.5 (Low Density Residential) zone located at 14259 SW 100`h Avenue and 14300 SW 103rd Avenue; also known as Tax Lots 600, 900, 1000 and 1100, WCTM 2S 111 BB (the"site"). The site is currently developed with two single-family detached homes and associated accessory structures. The applicant proposes to remove all of the existing structures and construct a new single-family detached dwelling on each of the proposed lots. The applicant proposed to extend a new public street into the site from SW 100th Avenue, terminating in a cul-de-sac turnaround in the western portion of the site.' In addition, the applicant will dedicate right of way and construct frontage improvements along the site's SW 100th Avenue and SW 103rd Avenue frontages. The applicant also requested an adjustment to allow the proposed 365-foot cul-de-sac street, which exceeds the maximum 200-foot length permitted allowed by the Code. The applicant proposes to collect storm water from impervious areas of the site and to convey it to a storm water facility in the northeast corner of the site, proposed Tract 1, for treatment, detention and discharge to the existing public storm sewer in SW 100th Avenue east of the site. All proposed lots will be served by public water and sanitary sewer systems. The applicant proposes to remove all but two of the regulated trees on the site. 2. On June 18, 2007, the Tigard Planning Manager(the "manager") issued a Type II decision denying the adjustment request and approving the subdivision subject to conditions of approval, including the extension of a through street between SW 100th Avenue and SW 103rd Avenue. 3. On July 2, 2007, the City received an appeal of the Director's decision filed by Robert E Ruedy(the"appellant"). The appeal alleged that the manager's decision failed to adequately address certain requirements of the Tigard Development Code(the"TDC"), Title 18 of the Tigard Municipal Code(the "TMC"), including the following issues: I The manager's decision requires that the applicant extend the street through the site,connecting SW 100th and 103rd Avenues. • S a. Protection of off-site trees located near the boundaries of the site; b. The need for offsite improvements to SW 100`h Avenue between the site and SW McDonald Street; c. The use of a stormwater detention pond; d. The design of improvements to the sewer system in SW 100th Avenue; e. Maintaining adequate visual clearance for the abutting property north of the site; • f. Stormwater impacts to adjacent properties; g. Fire hydrant locations; h. Potential water pressure reductions impacting adjacent properties; and i. The adequacy of traffic controls at the intersection of 100th Avenue and the site access. 4. On July 23, 2007,Tigard Land Use Hearings Officer Joe Turner(the"hearings officer")conducted a duly noticed public hearing to consider the appeal. City staff recommended the hearings officer deny the appeal and affirm the manager's decision. See the Memorandum to the Hearings Officer dated July 16, 2007 (the "Memorandum"). Representatives of the applicant testified in support of the application.The appellant and two other area residents testified orally and in writing in support of the appeal. At the end of the hearing,the hearings officer ordered the record held open until August 31, 2007. The principal issues in this case include the following: a. Whether the hearings officer can schedule another public hearing to address the City's failure to create an audio recording of the public hearing due to an equipment malfunction; b. Whether all of the issues raised on appeal fall within the limited scope of appeal established by TDC 18.390.040.G.2.b; c. Whether the proposed development complies with the tree removal regulations of TDC 18.790; d. Whether the applicant is required to install additional landscaping or a fence along the boundaries of the site in order to protect the privacy of existing residents; e. Whether the site contains steep slopes,natural drainageways or other "sensitive lands" subject to TDC 18.775; Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-000I3(Foster Estates Subdivision) Page 2 • f. Whether the applicant is required to construct off-site improvements to 100th and/or 103rd Avenues; g. Whether the proposed surface stormwater detention facility violates the nuisance provisions of TMC 7.40; h. Whether the applicant is required to relocate the proposed sanitary sewer manhole in 100th Avenue in order to facilitate future sewer service extension to the appellant's property; i. Whether the applicant is required to provide a clear vision area for a potential future road on the south boundary of the appellant's property; j. Whether development on the site will cause or exacerbate flooding and erosion on the site and on adjacent properties; k. Whether the applicant is required to develop a"comprehensive temporary fire suppression plan"prior to disconnecting the existing fire hydrant near the site; 1. Whether the applicant is required to maintain current levels of service for water volume and pressure serving existing area residents; m. Whether the applicant is required to extend a street through the site between SW 100`h and 103rd Avenues; n. Whether additional traffic generated by the proposed development and street extension will exceed the capacity of area streets or otherwise create a hazard; and o. Whether the applicant is required to prepare a traffic study for the proposed development. 5. Based on the findings and conclusions contained herein and the testimony and evidence in the public record, the hearings officer denies the appeal and affirms the administrative decision conditionally approving the application with certain modifications for the reasons provided herein. a. The hearings officer recognizes that the appellant undertook considerable time and effort in preparing the appeal and exhibits. However that effort is not sufficient to demonstrate the proposed development as conditioned will not comply with all applicable approval criteria. The hearings officer must apply the Code as adopted by the City Council. The hearings officer appreciates the appellant's passion and effort, but it is not sufficient to warrant denial of this application. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 3 B. HEARING AND RECORD HIGHLIGHTS 1. The hearings officer received testimony at the public hearing about the appeal on July 23, 2007. All exhibits and records of testimony are filed with the Tigard Department of Community Development. At the beginning of the hearing, the hearings officer made the declaration required by ORS 197.763. The hearings officer disclaimed any ex parte contacts,bias or conflicts of interest. The following is a summary by the hearings officer of selected testimony and evidence offered at the hearing. 2. City planner Emily Eng summarized the appeal and her July 16, 2007 Memorandum in response to the appeal. She noted that the applicant submitted revised drawings showing a public street extending through the site between SW 100`h and SW 103`d Avenues as required by the manger's decision. 3. City Development Review Engineer Kim McMillan testified that the Code prohibits the applicant from increasing or concentrating stormwater runoff onto adjacent properties. The applicant is not required to eliminate all existing stormwater runoff that currently flows onto adjacent properties. a. She noted that condition of approval 32 of the manager's decision should refer to"[t]he eastbound access onto 100`h Avenue from the development"rather than the"westbound access..." b. She testified that the City cannot require that this development provide traffic calming measures on the proposed through street because there is no substantial evidence that such measures are warranted or that cut-through traffic will occur. The City's skinny street design provides some traffic calming as vehicle parking on both sides of the street leaves a single travel lane, which forces drivers to slow down and discourages cut-through traffic. The City will,review the need for additional traffic calming measures after the development is constructed and drivers get used to the new street system. Traffic calming measures may not be warranted under actual conditions. c. She noted that the applicant could reduce the width of the street by eliminating the planter strips and provide a curb-tight sidewalk, which would allow the applicant to provide additional separation between the sidewalk and the retaining wall. She requested the hearings officer modify the conditions of approval to allow the City engineer to approve that design option. She noted that a"half-width"street improvement requires a minimum 24 feet of pavement to accommodate two-way traffic and emergency vehicles. d. She noted that Tualatin Valley Fire and Rescue("TVF&R") will review and approve the location of fire hydrants on and near the site. TVF&R must sign off on the applicant's plans before the City will issue construction permits. A condition of approval requiring TVF&R approval would be redundant. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 4 S r e. She argued that the proposed surface stormwater detention pond is allowed by CWS regulations. CWS has a maintenance program for surface ponds, which includes mosquito and other vector controls. f. She noted that the CWS regulations require that all stormwater detention facilities must be equipped with an engineered overflow for runoff in excess of the 25- year storm. 4. Planner Lee Leighton and engineer Patrick Tortora testified on behalf of the applicant. a. Mr. Leighton noted that the City required the applicant to extend a public street through the site between SW 100th and l03`d Avenues to enhance cross- circulation and emergency access in the area. The applicant has no objection to that requirement. However it may be impossible to construct a full-width street improvement consistent with City requirements. The existing lot abutting the northwest corner of the site(14230 SW 1031d Avenue) is substantially higher than the proposed street. The abutting property owner is unwilling to grant a slope easement on his property. Therefore the applicant must construct a retaining wall along the north edge of the sidewalk, within the required right of way. A retaining wall in close proximity to the sidewalk may create a hazard for pedestrians. The applicant may need to construct a half-width street improvement as an interim improvement until the abutting property redevelops. In the alternative, the City may choose to exercise its eminent domain authority to obtain a slope easement sufficient to allow construction of the required roadway. It is inappropriate and unconstitutional for the City to burden the applicant with a condition of approval that may be impossible to implement. i. He submitted a memorandum dated July 20,2007 from Lancaster Engineering demonstrating that construction of a through street on this site is unlikely to generate a significant amount of cut-through traffic. The proposed through street does not provide a significant advantage for existing vehicle trips. The proposed street will carry substantially less than 1000 vehicles per day. Therefore the street can be developed as a "skinny street"with a 28-foot paved width within a 50-foot right of way. ii. He noted that the original tree protection plan did not show the existing trees located on the appellant's property abutting the north boundary of the site. He submitted a revised existing conditions plan that shows the trees. The applicant will construct a retaining wall along portions of the north and northeast boundaries of the site in order to reduce impacts to these trees. He agreed to an additional condition of approval requiring that the applicant install tree protection measures to protect these offsite trees during construction. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 5 • iii. He argued that the proposed development will not impact sight distance at the intersection of the appellant's existing driveway with 100th Avenue. Only a small portion of the site distance triangle for this intersection extends onto the site. The applicant will construct a retaining wall in the northeast corner of the site to ensure that the slopes on the site do not impact the sight distance triangle. iv. He requested the hearings officer modify condition of approval 12 to allow flexibility in the design of the through street. v. He agreed to toll the 120-day clock until September 17, 2007 to allow the hearings officer sufficient time to hold the record open and issue a written decision. b. Mr. Tortora noted that condition of approval 28 of the manager's decision prohibits the applicant from discharging stormwater runoff onto adjacent properties. The applicant will install a French drain or similar facilities along the north boundary of the site to collect runoff from the back yards of the proposed lots and direct it to the public storm sewer in 100th Avenue. The applicant will provide an engineered overflow to convey excess runoff from the detention facility to the public storm sewer as required by CWS regulations. 5. The appellant Robert Ruedy submitted a large notebook of exhibits and summarized his written testimony dated July 23, 2007. a. He argued that the proposed development will impact the visual clearance area on his property as illustrated in Tab E of his notebook of exhibits. He argued that the applicant should be required to provide a visual clearance area for a future road on the south boundary of his property, which will facilitate the future development of his property. b. He questioned how Lancaster Engineer determined that the proposed through street will carry less than 1000 vehicles per day. c. He argued that the applicant should be required to'widen SW 100`h Avenue between the site and McDonald Street rather than allowing the applicant to choose between improving SW 100th or 103`d Avenues. d. He argued that the City Code and CWS regulations prohibit the proposed surface stormwater pond. e. He argued that the applicant should be required to construct the new sewer manhole in SW 100th Avenue as proposed in his submittal in order to facilitate future development on his property. Otherwise it may not be feasible to comply with spacing requirements for sewer manholes. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 6 • f. He testified that stormwater runoff from the site does not flow onto his property under current conditions. Exhibit F-2 of his notebook shows a berm on the south boundary of his property that prevents runoff from the site from flowing onto his property. Stormwater from the site flows onto SW 100th Avenue near the northeast corner of the site as shown in Exhibit I-2 of his notebook. He argued that the applicant should be required to provide an overflow between the detention pond and the storm sewer system in 100th Avenue to ensure that water overflowing the stormwater pond during larger storms does not impact his property. g. He argued that the applicant should be required to maintain the existing fire hydrant on 100th Avenue in its existing location, because surrounding residents' fire insurance rates are based on the location of the hydrant. h. He argued that the applicant should be required to maintain the existing water volume and pressure received by surrounding residents. i. He testified that many drivers"cut the corner"on the"S"curve on SW 100th Avenue south of the site. Stop signs proposed at the intersection of the on-site street and 100th Avenue will reduce traffic speeds to some extent. However the applicant should be required to install raised buttons or similar traffic control measures to force drivers to remain in the proper lane. He argued that the proposed through street will encourage cut- through traffic. Drivers on 103rd Avenue will use the street to access 100th Avenue and continue north of McDonald Street. The applicant should be required to provide a wider pavement width to accommodate bicycle riders who will utilize the proposed through street. 6. Ron Faber requested the hearings officer hold the record open to allow the public an opportunity to review the applicant's revised plans and other new evidence in the record. He argued that the applicant should not be required to extend a street through the site to 103rd Avenue. a. The steep slopes on the west boundary of the site make it impossible to construct a safe intersection on SW 103rd Street abutting the site. SW 103rd Avenue is roughly eight feet lower than the site. The overhanging trees on either side of 103rd Avenue will block views of oncoming vehicles. The applicant will need to construct a ten-foot retaining wall along his property abutting the northwest corner of the site. The cost of the wall will likely make the development uneconomical. b. Drivers will use the through street as a cut-through route to avoid congestion at the intersection of 103rd Avenue and McDonald Street. Many drivers use SW Inez Street south of the site as a cut-through route under existing conditions. The proposed street will encourage even more cut-through traffic because it allows drivers to avoid the"S"curves on 1001 Avenue south of the site. The through street will carry more than 1000 vehicles per day within 20 feet of his home on the property abutting the Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 7 • • northwest corner of the site. Speed bumps or similar traffic control devices will generate additional noise and exacerbate the impacts on his home. c. He argued that it would be inappropriate to allow a half-width street improvement abutting his property. His property is too small to be further divided under the current zoning. Therefore the City may never obtain the remainder of the road section. 7. Kelly Timmins argued that the proposed through street will encourage cut- through traffic,based on his observations of existing traffic patterns in the area. This cut through traffic will generate substantially more than 1000 vehicles per day on the through street,precluding use of the skinny street standard. The applicant should be allowed to construct a cul-de-sac street as originally proposed in order to avoid such cut-through problems. a. Extensive vehicle queues form at the intersection of 103rd Avenue and McDonald Street during the morning rush hour. A vehicle waiting to make left turn onto McDonald Street may cause a three to five minute delay, resulting in even longer queues. Similar congestion problems do not occur at the intersection of 100th Avenue and McDonald Street under existing conditions because 103rd Avenue carries more traffic than 100th due to the number of apartment complexes that access 103rd Avenue. Therefore drivers will be tempted to cut through the site to 100th Avenue in order to avoid congestion problems at the 103rd Avenue/McDonald Street intersection. b. He testified that SW Inez Street south of the site does not provide a convenient cut-through route, because drivers must still negotiate the "S"curves on 100th Avenue. The proposed through street on this site will allow cut-through drivers to avoid those curves. c. During the evening rush hour traffic queues at the intersection of Pacific Highway and McDonald Street extend east past 103rd Avenue and sometimes past 100th Avenue. Drivers traveling westbound on McDonald will be tempted to turn onto 100th Avenue and cut through the site to access 1031d Avenue and avoid this congestion. The applicant should be required to install a median or similar barrier to prevent drivers from turning left out of the site onto 103rd Avenue. 8. City Planning Director Dick Bewersdorff argued that TMC 7.40.040 does not prohibit the use of surface stormwater detention ponds. The City can require additional mosquito abatement measures or take other enforcement action if a particular stormwater facility creates a nuisance as defined by TMC 7.40. 3. At the end of the hearing, the hearings officer ordered the public record held open until August 17, 2007 to allow all parties to submit additional testimony and evidence. The hearings officer held the record open for another week, until August 24, to allow all parties to respond to the new testimony and evidence submitted during the first open record period. The hearings officer held the record open for a final week for the Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-000l3(Foster Estates Subdivision) Page 8 • • applicant to submit a final argument. The record in this case closed at 5:00 p.m. August 31, 2007. a. The hearings officer left the originals of the exhibits submitted at the hearing with City staff to allow interested parties the opportunity to review the exhibits during the open record period. After the close of the record the City forwarded the originals of all of the exhibits received at the hearing and during the open record period to the hearings officer. The hearings officer will return the originals of all of the exhibits to the City with the written decision. The City will retain the exhibits as part of the record until all appeal opportunities expire. C. DISCUSSION 1. The appellant in his August 17, 2007 submittal requested that the hearings officer reopen the record or schedule a new hearing because the City failed to record the hearing. The hearings officer understands that the City was unable to make an audio recording of the July 23, 2007 hearing in this case,because City's recording system malfunctioned. However the hearings officer has no authority to remedy that error in this proceeding. a. TDC 18.390.050.D.2 provides that any participant may request an opportunity to present additional relevant testimony and evidence regarding the application. The hearings officer is required to grant such a request by continuing the hearing or holding the record open. The hearings officer granted such a request in this case,holding the record open for roughly one month to allow all parties to submit additional written testimony and evidence. TDC 18.390.050.D.4 provides that any participant may request that the hearings officer reopen the record to provide an opportunity to respond to new evidence submitted during the open record period. In this case the appellant submitted the only new evidence received during the open record period. The appellant has no right to request that the hearings officer reopen the record to respond to his own evidence. b. The Code does not otherwise authorize the hearings officer to otherwise reopen the record or require additional hearings. In addition, granting the appellant's request at this point in the proceeding would cause the City to exceed the time limits set out in ORS 227.178 and allow the applicant to file a petition for a writ of mandamus compelling City approval of the application. 2. TDC 18.390.040.G authorizes the hearings officer to hear appeals of Type II decisions, such as the city's decision conditionally approving the subdivision application. TDC 18.390.040.G.2.b provides that appeals: [S]hall be limited to the specific issues raised during the written comment period, as provided under Section 18.390.040.C,unless the Hearings Officer, at his or her discretion, allows additional evidence or testimony Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 9 ! • concerning any other relevant issue. The Hearings Officer may allow such additional evidence if he or she determines that such evidence is necessary to resolve the case. The intent of this requirement is to limit the scope of Type II Administrative Appeals by encouraging persons with standing to submit their specific concerns in writing during the comment period. The written comments received during the comment period will usually limit the scope of issues on appeal. Only in extraordinary circumstances should new issues be considered by the Hearings Officer on appeal of a Type II Administrative Decision. The appellant raised a number of issues on appeal that were not raised during the written comment period or in the appeal. Those issues include,but not limited to, alleged violations of the sensitive lands ordinance, TDC 18.775, solar access and"adequate light and air. The hearings officer finds that those issues exceed the permitted scope of appeal as defined by TDC 18.390.040.G.2.b. However the hearings officer will address those issues for the sake of completion. 3. The appellant cited to a number of purpose statements as support for the appeal, i.e.,TDC 18.110.020, 18.790.010, 18.745.010, 18.360.010 and 18.430.010. However the hearings officer finds that purpose statements not applicable approval standards with which the applicant is required to demonstrate compliance. The goals set out in the purpose statements are achieved through compliance with the implementing regulations and approval criteria. The purpose statements themselves are not relevant unless they include specific approval criteria or the implementing regulations that follow are ambiguous, and resort to the purpose statements is necessary to determine the context and meaning of ambiguous terms. See, e.g., Beck v. City of Tillamook, 18 Or LUBA 587 (1990)(Purpose statement stating general objectives only is not an approval criterion). 4. The applicant is not required to contact the adjacent neighbors to address their concerns other than in the pre-application neighborhood meeting required by the City. Although it may be in the applicant's interest to attempt to address neighbor's concerns, the failure to do so is not a basis for denial of the application. Whether or not the applicant can integrate neighbor's suggestions into the development is irrelevant. The hearings officer must review the application as proposed. If the proposed development complies with the applicable approval criteria,or can comply subject to conditions, it must be approved subject to those conditions,regardless of whether a subjectively "better"design is feasible. 5.The hearings officer finds that the application complies with the City's tree removal ordinance,TDC 18.790.030,based on the following: a. The applicant submitted a tree plan prepared by a certified arborist outlining the proposed planting, removal and protection of trees on the site as required by TDC 18.790.030. Hearings Officer Final Order Appeal ofSUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 10 • • b. The hearings officer finds that the tree protection and mitigation standards of TDC 18.790 do not apply to trees located on adjacent properties. The tree removal ordinance is limited to trees located on the site,based on the plain meaning of the words in the Code. Therefore the applicant was not required to include trees located on the appellant's property in the tree inventory. i. For the most part TDC 18.790 refers to"trees" generally,without distinction between on-site and off-site trees. The stated purpose of the Code is to "encourage the preservation,planting and replacement of trees in the City"generally. TDC 18.790.010.B.1. However the tree plan requirements are expressly limited to the" lot, parcel or combination of lots or parcels for which [development is proposed]."TDC 18.790.030.A. In addition, TDC 18.790.040.B requires that developers record a deed restriction prohibiting removal of retained trees. The applicant has no right to enter adjacent properties to perform pruning and other palliative measures necessary to ensure the survival of off-site tree or to record a deed restriction over adjacent properties. Therefore the hearings officer finds that the Code does not require that the applicant protect trees on adjacent properties. ii. The hearings officer has no authority to determine whether and to what extent the applicant is liable if clearing, grading,excavating and other construction activities on this site damage trees on adjacent properties. That is civil matter that is not regulated by the TDC. The applicant and future owners may have a common law right to remove roots and branches that extend onto the site, even if such pruning affects the health and survival of the trees. It could be argued that the appellant"assumed the risk"that the trees would be impacted by activities on this site when he planted the trees on the property line. However the applicant's common law rights are not unlimited. The owners of adjoining properties may have a cause of action against the applicant if the applicant's actions cause excessive or unnecessary damage to trees on adjoining properties. The owners of adjoining properties should consult a lawyer to advise them about such rights. 6. The hearings officer finds that the applicant is not required to install additional landscaping or fence along the boundaries of the site in order to protect the privacy of existing residents. TDC 18.745.050.A.2 provides that"buffering and screening is required to reduce the impacts on adjacent uses which are of a different type in accordance with the matrices in this chapter(Tables 18.745.1 and 18.745.2)."(Emphasis added). Table 18.745.1 does not require a buffer in this situation, where the applicant proposed to develop the site with single-family detached homes adjacent to existing single-family detached homes. This is consistent with TDC 18.360.090.A.4, which provides that"buffering shall be provided between different types of land uses, for example,between single-family and multiple-family residential, and residential and commercial uses..." Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 11 S 7. The hearings officer finds that the sensitive lands provisions of TDC 18.775 are inapplicable. There is-no substantial evidence that the site or any surrounding properties constitute"sensitive lands"as defined by TDC 18.775.010.G.2 a. There are no existing slopes of 25-percent or more. The proposed development may create slopes of 25-percent or greater, depending on the final grading design. The hearings officer finds that sloped created by an approved development do not constitute"sensitive lands"as defined by TDC 18.775.010.G.4. By its terms,TDC 18.775 applies to review of impacts of proposed developments on existing sensitive lands areas, including steep slopes. This is consistent with TDC 18.775.010.G.4, which provides that "sensitive lands are lands potentially unsuitable for development because of their location within...steep slopes of 25%or more."(Emphasis added). Slopes that are created by an approved development, subject to regulations controlling the design, construction, compaction etc. of the slopes, are not"unsuitable for development". b. The applicant argues that there are one or more"natural drainageways" on the site as shown in Appellant's Exhibits A-2, E-3, I-2 and F—5.0,among others. However there is no substantial evidence in the record to support this assertion. Although the topography of the site may direct stormwater runoff along the general paths indicated, there is no evidence of a defined channel or other characteristics that indicate the existence of a natural drainageway on the site. - 8. The manager's decision requires that the applicant improve either 100th or 103rd Avenue to provide a minimum 24 feet of pavement on the offsite sections of one of these streets between the site and SW McDonald Street. The appellant argued that the applicant should be required to improve 100th Avenue rather than 103rd,because 100th Avenue will carry more traffic and is in greater need or improvement. a. The hearings officer understands that the purpose of this condition is to provide adequate access between the site and the nearest collector street. However the hearings officer is unable to find any authority in the Code for this requirement. It appears that the City exceeded its authority in requiring that the applicant construct offsite street improvements. • 2 TDC 18.775.018.775.010.G provides: Sensitive lands are lands potentially unsuitable for development because of their location within: 1. The 100-year floodplain or 1996 flood inundation line,whichever is greater; 2. Natural drainageways; 3. Wetland areas which are regulated by the other agencies including the U.S. Army Corps of Engineers and the Division of State Lands,or are designated as significant wetland on the City of Tigard"Wetland and Stream Corridors Map"; 4. Steep slopes of 25%or greater and unstable ground; and 5. Significant fish and wildlife habitat areas designated on the City of Tigard"Significant Habitat Areas Map." Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-000l3(Foster Estates Subdivision) Page /2 • • i. TDC 18.810.030.A.3 requires that the applicant construct half- width improvements on streets abutting the site. Conditions of approval 11 and 12 require that the applicant construct such improvements on the site's 100th and 103rd Avenue frontages. However nothing in the Code requires that the applicant construct off-site street improvements. Ordinarily applicants are not required to construct offsite road improvements because it would be disproportionate to the impact of the development on the need for such facilities. Applicants are not required to remedy all perceived and existing deficiencies in the vicinity of a development. The Code requires an applicant to mitigate impacts a development causes or to which it contributes significantly. Although the proposed development contributes to problems with substandard streets in the area, those problems exist largely because of existing development. It would be inequitable to require an applicant to bear the full burden of improvements where the proposed development is only responsible for a small portion of the problem. The need for wider pavement and other street improvements is one that exists generally along streets in the area, and is a need to which all adjoining properties contribute, not just the lots being created in this case. Street improvements in the area will occur over time as other properties in the area develop, but the applicant is not required to provide such continuous improvements at this time. ii. There is no substantial evidence that additional traffic generated by the proposed development will cause or exacerbate a hazard on 100th and 103rd Avenues. There is no dispute that the narrow pavement width on these streets does not provide optimum driving conditions. However this does not mean that the streets are unsafe. The historic accident rate on these streets is well below the accepted action level of 1.0 accidents per million entering vehicles. Many streets in the City are in this same condition. These conditions are obvious. Reasonably prudent drivers will observe the posted speed limit and if necessary, further reduce their speed to accommodate changing road conditions.Unfortunately not all drivers are prudent enough to observe posted speed limits and road conditions. However there is no evidence that the development proposed in this application will contribute a disproportionate share of imprudent drivers. iii. The hearings officer cannot delete this condition because the applicant did not appeal the director's decision. Therefore the issue exceeds the scope of appeal allowed by TDC 18.390.040.G. However the hearings officer has no authority to modify this condition to require that the applicant improve a particular street,because the Code does not require offsite street improvements. b. TDC 18.810.030.A.7, cited by the appellant, is inapplicable because the applicant did not request an adjustment to any applicable standards. c. TDC 18.810.030.A.5.c only applies when"[t]he City could and would otherwise require the applicant to provide street improvements..." As discussed above, the City has no authority to require offsite street improvements in this case. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 13 • • 9. The hearings officer finds that the applicant is not required to construct other improvements to the offsite sections of 100`h Avenue for the same reasons; there is no substantial evidence that traffic generated by the proposed development creates or significantly contributes to the need for the improvements. Therefore this section is inapplicable. 10. The applicant proposed to collect, treat and detain stormwater runoff from the site prior to discharging it to the existing public storm sewer system at less than predevelopment rates. The design of the treatment and detention facilities must comply with City and CWS regulations.The hearings officer finds that it is feasible to comply with those regulations based on the expert testimony of City engineering staff. There is no substantial evidence to the contrary. As discussed in the manager's decision,the City engineering department will ensure that City and CWS (Clean Water Services Standards) are met through the Public Facility Improvement(PFI) Permit review process. See condition 26. a. The hearings officer finds that the proposed stormwater quality and detention pond will not have an adverse impact on surrounding properties. Surface detention facilities are expressly allowed by CWS regulations. The applicant must design, build and maintain the pond consistent with CWS regulations. There is no substantial evidence that similar ponds that are utilized throughout the region create a hazard for adjacent residents. The applicant will install fencing to restrict access to the pond if required by CWS. b. The hearings officer finds that the proposed detention pond will not violate the City's nuisance ordinance,TMC 7.40,or the environmental performance standards of TDC 18.725.030. The applicant is required to maintain the detention facility in compliance with City and CWS regulations for at least three years prior to dedication to the City. See condition 26. The City can maintain the facility after the initial three-year period. There is no substantial evidence that a properly designed and maintained detention pond will create the nuisance conditions cited by the appellant. If the cited problems occur the City and/or CWS can require abatement through their enforcement procedures. i. As Ms. McMillan testified, CWS has a maintenance program for surface ponds,which includes measures for the control of mosquitoes and other vectors. Compliance with current maintenance practices should be sufficient to ensure that the pond does not"afford[] a breeding place for mosquitoes and other insectpests", TDC 18.725.030.F, or" attract or aid the propagation of insects or rodents or create a health hazard."TMC 7.40.040. ii. The applicant is required to plant landscaping within the stormwater tract consistent with a landscape plan approved by the City engineer. See condition of approval 26. Properly selected, installed and maintained landscaping will prevent noxious and invasive weed species from becoming established within the stormwater tract and reduce the risk of fire hazard from dead and dying vegetation. The applicant and or the City can maintain the vegetation within the stormwater facility to Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 14 • • • ensure compliance with TMC 7.40.050. iii. The hearings officer finds that the noise regulations of TDC 18.725.030.A and 7.40.130 do not apply to noises generated by frogs and other wildlife, based on the plain meaning of the words in the Code. TDC 18.725.030.A merely cross- references the noise regulations of TMC 7.40.130. TMC 7.40.130 provides that"No person shall make, assist in making,permit, continue, or permit the continuance of,any noise within the City of Tigard in violation of this article."(Emphasis added). iv. TDC 18.725.030.D prohibits "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..." However there is no substantial evidence that a properly designed and maintained stormwater detention facility will generate"odorous gases or other matter."The appellant's unsupported assertions are not substantial evidence. v. There is no dispute that the impacts cited by the appellant could occur. Such impacts could occur anywhere, including on the proposed lots if the future residents fail to maintain their properties in compliance with the Code. However there is no substantial evidence that the proposed development creates a disproportionate risk of such impacts. City and other regulatory agencies(CWS, TVF&R etc)have sufficient authority to abate any problems that actually occur. These agencies enforcement processes are largely complaint driven. People who observe violations can report them to the relevant agency, which can take actions to require compliance and or abate the violations. c. The hearings officer finds that it is feasible to fence the detention facility if required by the applicable regulations. Evidence that other detention facilities in the area are not fenced is irrelevant. There is no evidence that the cited facilities are required to be fenced. Even if they are, the lack of fencing at other facilities will not preclude compliance with the fencing requirement at this site. d. Nothing in the Code requires that the applicant install a sight obscuring fence or hedge to screen views of the detention facility as requested by the appellant. e. The hearings officer finds that TDC 18.810.080.A cited by the appellant is inapplicable. The proposed stormwater treatment and detention facility is not a"park, playground or other public use..."Even if the facility does qualify as a"public use" subject to this provision, TDC 18.810.080 merely authorizes the city to require dedication of public uses within a subdivision. In this case the applicant is proposing to dedicate the stormwater facility to City. Therefore the development is consistent with TDC 18.810.080.A, to the extent it applies. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 15 • • 11. The appellant requested that the applicant relocate the proposed sanitary sewer manhole in SW 100th Avenue shown in the appellant's Exhibit D-1 in order to facilitate the future extension of sanitary sewer service to the appellant's property. The appellant argued that this relocation is necessary to avoid the need for additional manholes in 100th Avenue. a. The hearings officer understands the appellant's concerns. However the hearings officer has no authority to require this relocation as a condition of approval, because it does not relate to any applicable approval criteria for this subdivision. The hearings officer finds that it is feasible to install sanitary sewers and connect the proposed development to existing mains in accordance with CWS's Design and Construction Standards for Sanitary and Surface Water Management,TDC 18.810.090.A, based on the applicant's preliminary plans and the expert testimony of City engineering staff. The actual design of the sewer system, including the location of manholes,is a technical issue that is left to the expertise of the City and CWS engineers. TDC 18.810.090.B provides "the City Engineer shall approve all sanitary sewer plans and proposed systems prior to issuance of development permits involving sewer service." b. The applicant may need to relocate the manhole as suggested by the appellant in order to comply with TDC 18.810.090.C, which requires that sanitary sewer system designs"[i]nclude consideration of additional development within the area as projected by the Comprehensive Plan"and condition 19 of the manager's decision, which requires that the applicant"[p]rovide sanitary sewer,per Clean Water Services (CWS) standards, to the adjacent un-served properties..." However there may be other competing considerations that support the manhole location proposed by the applicant. Review of the final design,and the choice of potentially conflicting designs considerations, is expressly left to the expertise of City and CWS engineering staff in their reviewing of the final design. TDC 18.810.090.B. The City may require that the applicant relocate the manhole as proposed by the applicant. However the hearings officer cannot require that the applicant do so as a condition of subdivision approval. c. The hearings officer finds that TDC 18.810.120,cited by the appellant, does not apply to sanitary sewers. This provision is expressly limited to the design and location of"electric,communication, lighting and cable television services and related facilities..."The doctrine of ejusdenz generis provides that a nonspecific or general phrase appearing at the end of list of items in statute is to be read as referring only to other items of same kind. Vanetta v. Keisling, 324 Or 514, 533 (1997).Sanitary sewers are clearly not related to"electric, communication, lighting and cable television services." 12. The appellant argued that the applicant should be required to maintain a clear vision area consistent with TDC 18.795 in the northeast corner of the site to facilitate a potential future intersection of a road on the south boundary of the appellant's property with SW 100th Avenue. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page /6 • • a. The hearings officer finds that the clear vision area requirement is limited to existing streets and driveways and new intersections created by the proposed development, based on the plain meaning of the words in the code. TDC 18.795.030 clearly uses the present tense, requiring maintenance of a clear vision area"[o]n the corners of all property adjacent to the intersection of two streets, a street and a railroad,or a driveway providing access to a public or private street."There is no existing street or driveway on the south boundary of the appellant's property. Nothing in the Code requires that the applicant provide a clear vision area for a potential future street on the appellant's property. TDC 18.810.120.B.2 and 18.745.050.B.6,cited by the appellant, only apply where TDC 18.745 requires a clear vision area. b. As the applicant noted at the hearing, the clear vision triangle for the appellant's existing driveway extends onto the northeast corner of the site. The hearings officer fmds that the applicant should be required to maintain a clear vision area consistent with TMC 18.795 for the existing driveway. A condition of approval is warranted to that effect. The applicant agreed to modify the design of the stormwater pond to ensure it does not extend into the required clear vision area(condition#33). i. SW 100`h Avenue is designated a local street(according to the manager's decision) or a neighborhood route(according to the application narrative). There is no substantial evidence that 100`h Avenue is designated a collector or arterial street, which may require a larger clear vision area pursuant to TDC 18.795.040.A. 13. The hearings officer finds that it is feasible to comply with the stormwater regulations of the City, TDC 18.180.100 and CWS,based on the applicant's preliminary storm drainage report, Exhibit J of the application narrative and the expert opinion of City engineering staff. a. The appellant expressed concerns that the proposed development will direct stormwater runoff onto his property. The topography maps in the record demonstrate that stormwater falling on this site flows downhill to the northeast under existing conditions. However a berm along the south boundary of the appellant's property appears to prevent stormwater from flowing from the site onto the appellant's property. See Exhibit F-2 of the appellant's notebook. Grading and filling on the site will alter the existing topography and could potentially increase run-off onto adjacent properties. However CWS regulations expressly prohibit such impacts. Section 5.05.5 of R&O 07-20 provides: Developments shall not materially increase or concentrate runoff onto adjacent properties, except when the runoff is contained in an existing drainage way. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 17 • S The hearings officer finds that it is feasible to comply with Section 5.05.5 of R&O 07-20. The applicant proposes to collect storm water from the impervious areas of the site and to convey it to a treatment and detention facility in the northeast corner of the site prior to discharge to the public storm sewer in 100`h Avenue at less than pre- development rates.New slopes created by the proposed grading and fill may result in localized increases or concentration of storm water runoff towards adjacent properties. However the applicant can grade the site to direct runoff away from adjacent properties, install drains near the boundaries of the site or utilize other measures to capture surface water before it leaves the site as necessary to ensure compliance with applicable regulations. This is required by condition 28. b. The applicant is required to provide an overflow and an emergency spillway to convey excess runoff that exceeds the capacity of the detention facility to the street and away from adjacent properties. Section 4.03.3 of R&O 07-20. The City will ensure compliance with the applicable stormwater regulations through its review of the Public Facility Improvement plans and final grading plans. Conditions 26 and 28. c. The appellant requested that he be allowed the opportunity to review and comment on the applicant's revised grading, erosion control and stormwater plans. However the Code does not require any additional opportunity for public review and comment. City staffs review of the final plans provides adequate protection of the public interest. The applicant's final engineering plans are public records that the appellant may review. d. The applicant is not required to provide detailed engineering designs at this stage of review. The purpose of the preliminary storm water and erosion control plans is to determine whether it is feasible to comply with applicable criteria.The preliminary plans are conceptual, and analysis of all technical details is not required. See Meyer v. City of Portland, 67 Or App 274, n 6, 678 P2d 741, rev den 297 Or 82(1984). ([C]onditions of approval may include conditions that specific technical solutions to identified development problems be submitted and reviewed and approved by the government's technical staff."). To require complete, detailed storm water and erosion control plans prior to approval of the plat would require re-working the entire plan any time amendments or modifications of the plat are required. This would be highly inefficient and is not necessary to protect the public interest. e. The hearings officer finds that the proposed development complies with TDC 18.430.020.F, which requires that subdivisions be designed"to minimize flood damage."The site is not in or near a floodplain. The proposed development will not increase the volume of stormwater falling on the site. The proposed stormwater facilities will collect stormwater runoff from the site and convey it to the existing public storm sewer system, away from the proposed homes and surrounding properties, essentially replicating the existing conditions on the site. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 18 • • f. CWS's Design and Construction Standards require implementation of erosion control measures to reduce the amount of sediment and other pollutants reaching adjacent properties or the public storm and surface water system resulting from development, construction, grading,excavating, clearing,and any other activity which accelerates erosion. Per CWS regulations, the applicant is required to submit an erosion control plan for City review and approval prior to issuance of City permits. See Condition 27 of the director's decision. In addition, the applicant is required to obtain a National Pollutant Discharge Elimination System(NPDES)erosion control permit prior to construction. Proper implementation of the plan will ensure that the proposed development will not cause sedimentation and erosion impacts on adjacent properties. The applicant will design the erosion control measures as necessary to control erosion based on the actual construction methods and season. Approved erosion control measures may include planting or other methods of stabilizing exposed soils. However the revegetation requirements of 18.775.070.C.4 are inapplicable,because there are no sensitive lands on or near the sites discussed above. The applicant is required to comply with the revegetation requirements of TDC 18.745.060 after construction is completed. CWS can require additional erosion controls if necessary to accommodate wet weather, steep slopes or other unique conditions. The hearings officer finds that it is feasible to comply with CWS regulations. There is no substantial evidence to the contrary. 14. The appellant appears to argue that the proposed development violates TDC 18.430.010.A.5 and solar access requirements. See p 2 of Tab 6 of the appellant's hearing notebook. a. As discussed above, TDC 18.430.010 is a purpose statement, not an. approval criterion. The goals of providing adequate light and air and preventing overcrowding of land set out in this provision are achieved through compliance with the applicable development standards, including regulations on building height, setback, lot coverage etc. b. The City no longer regulates solar access. TMC 2.08.100(a)(2)(F) authorizes the planning commission to "recommend and make suggestions to the City Council and to other public authorities concerning...protection and assurance of solar access"among other things. However the City's solar access ordinance, TDC 18.88, was repealed and is no longer in effect. See the"Legislative Notes"attached to the Table of Contents of the development code, Title 18 of the TMC. 15. Even if the subdivision will have an adverse impact on property value---and there is no substantial evidence to that effect in the record---protection of property value is not relevant to the applicable State or City standards. The hearings officer must base the decision on the laws of the City of Tigard and the State of Oregon. 16. The hearings officer has no authority to require that the applicant develop a "comprehensive temporary fire suppression plan"prior to disconnecting the existing fire hydrant near the site. The hearings officer's jurisdiction is limited to review of Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 19 • • development proposals to determine compliance with the applicable development regulations. The hearings officer has no authority to regulate this type of construction issue.As the City noted, TVF&R must review and approve the applicant's construction plans before the City will issue the required permits. TVF&R can require the applicant to prepare a"comprehensive temporary fire suppression plan"if TVF&R finds that it is required by TVF&R regulations or that it is necessary based on the expertise and experience of TVF&R staff. As discussed above, neighboring residents have no right to review and approve the applicant's construction plans. TVF&R and City staffs review of the applicant's plans provides adequate protection of the public interest. However the applicant's construction plans are public records that the appellant may review. TMC 18.110.020 and 18.360.010,cited by the appellant, are purpose statements that are implemented through compliance with subsequent approval criteria. a. The appellant expressed concern that the relocated fire hydrant could interfere with the required clear vision area on his property. As discussed above, the applicant is only required to maintain clear vision areas for existing offsite intersections, including the appellant's driveway. The applicant should be required to maintain the clear vision areas free from all obstructions, including the relocated fire hydrant. b. The hearings officer cannot require that the City and/or TVF&R inspect and test the fire hydrant and the associated valves and connections. However the hearings officer assumes that these agencies will do so as part of their normal construction inspection processes and ensure that all fire suppression facilities comply with applicable regulations. The expertise and experience of agency staff is sufficient to protect the public health and safety. These agencies are not required to provide copies of their inspections to surrounding neighbors. However any relevant documents are presumably public records that the appellant and other interested parties may review upon request. 17. The hearings officer finds that the applicant is not required to maintain existing water volume and pressure received by adjacent residents. The applicant is only required to demonstrate that water is available to the site at sufficient pressure and volume to meet fire and domestic flow requirements. Existing residents have no inherent right to maintain existing service levels in excess of minimum requirements. Such a requirement could preclude the planned extension of public services within the City. Water volume and pressure can be expected to fluctuate to some extent as new development occurs and the existing infrastructure is extended and expanded. The City must review and approve any extension of the public water lines to serve the proposed development. TDC 18.810.150, .160 and .170. This is expressly required by condition 24 of the manager's decision. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-000/3(Foster Estates Subdivision) Page 20 • • • 18. The hearings officer finds that the applicant is required to extend the proposed street through the site to comply with the street extension and connectivity standards of TDC 18.810.030.H.3 The required through street connects the existing streets in the area, enhancing the connectivity of the existing street network and reducing travel distances for certain trips generated by the proposed development, enhancing compliance with TDC 18.810.030.H and the City's connectivity goals.4 Through street connections allow traffic to disperse onto multiple streets,reducing traffic volumes and congestion on individual streets in the area and enhancing emergency access. a. The appellant and other area residents argued that the proposed through street will attract a significant amount of cut-through traffic. However there is no substantial evidence to that effect. The existing street system south of the site provides a number of cut-through opportunities; SW Inez, Murdock and Lady Marion Streets all provide through connections between SW 103`d and 100th Avenues. However there is no substantial evidence that these streets attract a significant amount of cut-through traffic. There is no evidence that the"S"curves on the section of 1006 Avenue south of the site cause sufficient delays to discourage cut-through traffic on these existing streets. 3 TDC 18.810.030.H provides: 1. Full street connections with spacing of no more than 530 feet between connections is required except where prevented by barriers such as topography,railroads, freeways,pre-existing developments,lease provisions,easements,covenants or other restrictions existing prior to May 1, 1995 which preclude street connections.A full street connection may also be exempted due to a regulated water feature if regulations would not permit construction. 2 All local,neighborhood routes and collector streets which abut a development site shall be extended within the site to provide through circulation when not precluded by environmental or topographical constraints,existing development patterns or strict adherence to other standards in this code. A street connection or extension is considered precluded when it is not possible to redesign or reconfigure the street pattern to provide required extensions. Land is considered topographically constrained if the slope is greater than 15%for a distance of 250 feet or more. In the case of environmental or topographical constraints,the mere presence of a constraint is not sufficient to show that a street connection is not possible.The applicant must show why the constraint precludes some reasonable street connection. 3. Proposed street or street extensions shall be located to provide direct access to existing or planned transit stops,commercial services,and other neighborhood facilities,such as schools,shopping areas and parks. 4. All developments should provide an internal network of connecting streets that provide short, direct travel routes and minimize travel distances within the development. TDC 18.810.030.D.2 provides: Where the location of a street is not shown in an approved street plan,the arrangement of streets in a development shall either: a. Provide for the continuation or appropriate projection of existing streets in the surrounding areas, or b. Conform to a plan adopted by the Commission,if it is impractical to conform to existing street patterns because of particular topographical or other existing conditions of the land. Such a plan shall be based on the type of land use to be served,the volume of traffic,the capacity of adjoining streets and the need for public convenience and safety. 4 These"goals"are reflected in the street spacing and connectivity requirements of TDC 18.810.030.H, which implement the state Transportation Planning Rule. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 21 • • • b. The proposed development and through street connection will generate increased traffic on area streets. That increased traffic will be perceptible to area residents. However the City engineer determined that the additional traffic will not violate applicable approval criteria nor create a hazard. Although the existing pavement is relatively narrow in some places, it is more than adequate to accommodate the volume of traffic it is projected to carry and it is sufficient to accommodate two-way traffic. The accident history for the area does not reveal a disproportionate number of accidents. i. Neighbors testified that the traffic from the development and the proposed through street will exacerbate existing hazards. Neighbors' observations of existing traffic is substantial evidence. But their opinions that cut-through traffic generated by the proposed street connection will make the streets unsafe is not supported by substantial evidence,because they are not experts in such matters. The fears of a substantial increase in traffic are reasonable; no one wants more traffic through their neighborhood. But fear is not evidence, even if reasonable. The hearings officer finds that the expert testimony by the traffic engineers for the applicant and the City is more persuasive than neighbors' testimony about the impact of traffic resulting from the connection of streets. ii. The hearings officer acknowledges that more traffic on area streets creates a proportionally higher risk for drivers,pedestrians and bicyclists. In response reasonably prudent people exercise more care personally and with family members.Those risks are consistent with the location of the site in the urban area where City plans call for the sort of development being proposed. Although the hearings officer assumes that reasonably prudent drivers will observe the posted speed limits in the area and will further reduce their speed to accommodate sharp curves,narrow pavement and other conditions on area roads, some percentage of the new traffic will speed. However there is no evidence that the use proposed in this application will contribute a disproportionate share of imprudent drivers. c. The hearings officer has no authority to require that the applicant install traffic calming measures as a condition of approval of this subdivision. TDC 18.810.030.AB only authorizes the installation of traffic calming measures"when, in the opinion of the City Engineer, the proposed development will create a negative traffic condition on existing neighborhood streets, such as excessive speeding..."The City engineer made no such finding in this case. Ms. McMillan expressly concluded that traffic calming measures are not warranted at this stage of review. The City can continue to monitor traffic conditions in the area and implement traffic calming measures if the City engineer determines they are warranted based on actual traffic conditions that may occur with the proposed development and through street connection. This method allows the City to design traffic calming measures based on actual traffic conditions and avoids • the installation of unnecessary traffic calming measures, which.inconvenience residents and delay emergency vehicles without providing any benefits. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 22 • • d. The hearings officer finds that it is feasible to extend the street through the site,based on Ms. McMillan's expert testimony. If necessary, the applicant can construct retaining walls adjacent to the parcel abutting the northwest corner of the site as shown in the plans submitted at the hearing. The applicant also can eliminate the planter strips and construct a curb-tight sidewalk, subject to City approval,in order to reduce the need for retaining walls. As discussed in the manager's decision, the applicant can install a median to restrict the 103`d Avenue access to right-in/right-out only movements if necessary to overcome sight distance constraints at this intersection. i. Neighboring residents argued that the cost of constructing retaining walls and other improvements to accommodate the through street may constitute an unconstitutional taking in violation of the U.S. Supreme Court's holding in Dolan v. City of Tigard, 512 US 374, 114 S Ct 2309, 129 L Ed 2d 304 (1994). However the hearings officer finds that the neighbors have no standing to raise this issue,because the cost of the road extension does not prejudice their substantial rights.Marcott Holdings, Inc. v. City of Tigard, 30 Or LUBA 101 (1995). The applicant did not appeal the manager's decision and therefore waived any right to raise the issue in this proceeding. ii. The applicant requested the option of constructing a half-width street adjacent to the existing lot abutting the northwest corner of the site. TDC 18.810.030.K provides that such partial width streets are"generally not acceptable." However they may be approved"[w]hen it will be practical to require the improvement of the other half when the adjoining property developed."In this case the hearings officer finds that it is not practical to require construction of the northern half of the proposed half-width street section,because the abutting property at 14230 SW 103`d Avenue is too small to be further developed under existing zoning. Based on Mr. Faber's unrebutted testimony, the property at 14230 SW 103`d Avenue contains roughly 16,000 square feet and therefore cannot be further divided in compliance with the 10,000 square foot lot size requirement of the R-3.5 zone. e. The applicant proposed to develop the through street as a"skinny street" consistent with TDC Figure 18.810.4.B. The Code allows the use of"skinny streets"in residential developments where the street will carry less than 1,000 vehicles per day. The hearings officer has no authority to prohibit the use of skinny streets. TDC 18.810.030.E requires that streets rights of way and roadway widths must comply with the minimum widths set out in Table 18.810.1. The subjective criteria in 18.810.030.E.1 only apply where the Code provides a range of right of way or street widths, such as Table 18.810.1 provides for arterial, collector and neighborhood streets. Table 18.810.1 does not provide a range of widths for local streets. Skinny streets are expressly allowed where the applicant demonstrates that the street will carry less than 1,000 vehicles per day. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 23 • • i. The hearings officer finds that review of the required traffic flow plan and determination of whether the street will carry more than 1,000 vehicles per day requires the exercise of discretion to determine whether the proposed through street will comply with the applicable approval criteria for skinny streets. Therefore the City must provide notice and an opportunity for public comment prior to allowing the use of the skinny street standards.Rhyne v. Multnomah County, 23 Or LUBA 442 (1992). A condition of approval is warranted to that effect(condition#12). ii. The appellant and other area residents argued that the applicant should be required to construct.a wider street to accommodate vehicle,bicycle and pedestrian traffic as well as "kids playing in the street."P 2 of Tab 9 of the appellant's hearing notebook. The hearings officer finds that the skinny street option provides • significant traffic calming effects, reducing travel speeds and discouraging cut-through traffic, based on Ms. McMillan's expert testimony. On-street parking is allowed on both sides of skinny streets,leaving a single lane for through traffic and forcing drivers .traveling in opposing directions to take turns passing between parked vehicles. The applicant will provide sidewalks on both sides of the through street, which will facilitate safe pedestrian travel through the site. The applicant is not required to design streets to accommodate playing children.The travel lanes of streets are designed and intended to carry vehicular traffic, not as a playground for children. 19. The appellant appears to argue that a traffic study is required pursuant to TDC 18.810.030.AC. However the hearings officer finds that the Code did not require a traffic impact study in this case because traffic generated by the proposed development will not meet or exceed the standards in TDC 18.810.030.AC.5 5 TDC 18.810.030.AC provides: 1. A traffic study shall be required for all new or expanded uses or developments under any of the following circumstances:requires a traffic study"for all new or expanded uses or developments under any of the following circumstances: a. When they generate a 10%or greater increase in existing traffic to high collision intersections identified by Washington County b. Trip generations from development onto the City street at the point of access and the existing ADT fall within the following ranges: Existing ADT ADT to be added by development 0-3,000 vpd 2,000 vpd 3,001-6,000 vpd 1,000 vpd _ >6,000 vpd _ 500 vpd or more c. If any of the following issues become evident to the City engineer: (1) High traffic volumes on the adjacent roadway that may affect movement into or out of the site (2) Lack of existing left-turn lanes onto the adjacent roadway at the proposed access drive(s) (3) Inadequate horizontal or vertical sight distance at access points (4) The proximity of the proposed access to other existing drives or intersections is a potential hazard (5) The proposal requires a conditional use permit or involves a drive-through operation (6) The proposed development may result in excessive traffic volumes on adjacent local streets. 2. In addition,a traffic study may be required for all new or expanded uses or developments under any of the following circumstances: a. when the site is within 500 feet of an ODOT facility and/or Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 24 • • 20. The hearings officer finds that condition 32 should be modified to clarify where traffic control signs are required. D. CONCLUSIONS Based on the findings adopted and incorporated herein,the hearings officer concludes that the appeal should be denied,because the applicant sustained the burden of proof that the proposed subdivision does or will comply with the applicable approval standards of the Tigard Community Development Code, subject to conditions adopted by the manager, and the appellant failed to provide substantial evidence or evidence of equal or greater probative value to the contrary and/or failed to persuade the hearings officer that the application violates the applicable approval standards based on such evidence. Therefore the hearings officer should affirm the manager's decision with minor modifications. E.DECISION In recognition of the findings and conclusions contained and incorporated herein, the hearings officer hereby denies the appeal, affirms the decision of the planning manager and approves SUB 2007-00003 (Foster Estates) subject to the following conditions of approval: CONDITIONS OF APPROVAL THE . FOLLOWING., CONDITIONS. _SHALL BE,,SATISFIED;: PRIOR .TO COMMENCING ANY ONSITE IMPROVEMENTS,; INCLUDING TREE REMOVAL,CLEARING, GRADING,EXCAVATION,AND/OR=FILL: The applicant shall submit a cover letter along with any supporting documents and/or plans that address the following requirements to the CURRENT PLANNING DIVISION,ATTN: Emily Eng 503-718-2712. The cover letter shall clearly identify where in the submittal the required information is found: 1. Prior to commencing any onsite improvements,the applicant shall submit construction drawings to both Planning and Engineenng that include: A. A construction sequence including installation and removal of tree protection devices, clearing, grading,and paving; B. A note prohibiting equipment,vehicles,machinery, grading, dumping, storage,burial of debris, or any other construction-related activities in any tree protection zone; and C. A note stating that only those trees identified on the approved Tree Removal plan are authorized for removal by this report.Notwithstanding any other provision of this title, any party found to be in violation of this chapter [18.790] pursuant to Chapter 1.16 of the Tigard Municipal Code shall be subject to a civil penalty of up to $500 and shall be required to remedy any damage caused by the violation. Such remediation shall b. trip generation from a development adds 300 or more vehicle trips per day to an ODOT facility and/or c. trip generation from a development adds 50 or more peak hour trips to an ODOT facility. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 25 • • include,but not be limited to,the following: 1) Replacement of unlawfully removed or damaged trees in accordance with Section 18.790.060.D of the Tigard Development Code; and 2) Payment of an additional civil penalty representing the estimated value of any unlawfully removed or damaged tree, as determined using the most current International Society of Arboriculture's Guide for Plant Appraisal. 2. Prior to commencing any onsite improvements, the applicant shall install tree protection fencing as directed by the project arborist to protect the trees to be retained. The applicant shall call for an inspection and allow access by the City Arborist or Current Planning for the purpose of monitoring the tree protection to verify that the tree protection measures are performing adequately. Erosion control fencing shall not substitute for tree protection fencing. 3. Prior to commencing any onsite improvements, the applicant shall submit a copy of a contract that ensures that the Project Arborist submits written reports to the City Arborist or Current Planning, at least once every two weeks, from initial tree protection zone(TPZ) fencing installation through building construction. The reports shall include the condition and location of the tree protection fencing and whether any changes occurred. If the amount of TPZ was reduced then the Project Arborist shall justify why the fencing was moved, and shall certify that the construction activities to the trees did not adversely impact the overall, long-term health and stability of the tree(s). Failure to follow the plan, or maintain tree protection fencing in the designated locations shall be grounds for immediate suspension of work on the site until remediation measures and/or civil citations can be processed. 4. Prior to commencing any onsite improvements,the applicant shall submit a cash assurance (letter of credit or cash deposit) for the equivalent value of mitigation required(140 caliper inches times$125 per caliper inch=$17,500). Any trees successfully planted on or off-site, in accordance with an approved Tree Mitigation plan and TDC 18.790.060.D, will be credited against the assurance for two years following final plat approval. After such time, the applicant shall pay the remaining value of the assurance as a fee in-lieu of planting. 5. Prior to commencing any onsite improvements, the applicant shall submit a summary of the biweekly arborist reports prepared by the Project Arborist. The summary shall document the effect of the approved tree protection plan, account for any violations, and certify the condition of protected trees. The applicant shall submit a cover letter along with any supporting documents and/or plans that address the following requirements to the ENGINEERING DEPARTMENT,ATTN: KIM MCMILLAN 503-718-2642. The cover letter shall clearly identify where in the submittal the required information is found: 6. Prior to commencing onsite improvements, a Public Facility Improvement(PFI) permit is required for this project to cover street construction and any other work in the public right-of-way. Six (6) sets of detailed public improvement plans shall be submitted for review to the Engineering Department. NOTE: these plans are in addition to any drawings required by the Building Division and should only include sheets relevant to public improvements. Public Facility Improvement (PFI)permit plans shall conform to City of Tigard Public Improvement Design Standards, which are available at City Hall and the City's web page(www.tigard- or.gov). Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster.Estates Subdivision) Page 26 • • • 7. The PFI permit plan submittal shall include the exact legal name, address and telephone and who will provide the financial assurance for the public improvements. For example, specify if the entity is a corporation, limited partnership, LLC, etc. Also specify the state within which the entity is incorporated and provide the name of the corporate contact person. Failure to provide accurate information to the Engineering Department will delay processing of project documents. 8. The applicant shall provide a construction vehicle access and parking plan for approval by the City Engineer. The purpose of this plan is for parking and traffic control during the public improvement construction phase. 9. The City Engineer may determine the necessity for,and require submittal and approval of, a construction access and parking plan for the home building phase. If the City Engineer deems such a plan necessary, the applicant shall provide the plan prior to issuance of building permits. 10. The applicant shall submit construction plans to the Engineering Department as a part of the Public Facility Improvement permit, which indicate that they will construct a half-street improvement along the frontage of 100th Avenue. The improvements adjacent to this site shall include: A. City standard pavement section for a local street from curb to centerline equal to 16 feet; B. pavement tapers needed to tie the new improvement back into the existing edge of pavement shall be built beyond the site frontage; C. pavement widening to 24 feet from project access to McDonald street or a point where existing pavement is 24 feet wide, whichever is less(if applicable); D. concrete curb, or curb and gutter as needed; E. storm drainage, including any off-site storm drainage necessary to convey surface and/or subsurface runoff; F. 5 foot concrete sidewalk with a 5 foot planter strip; G. street trees in the planter strip spaced per TDC requirements; H. street striping; I. streetlight layout by applicant's engineer, to be approved by City Engineer; J. underground utilities; K. street signs(if applicable); L. driveway apron(if applicable); and M. adjustments in vertical and/or horizontal alignment to construct SW 100`h Avenue in a safe manner, as approved by the Engineering Department. 11. The applicant shall submit construction plans to the Engineering Department as a part of the Public Facility Improvement permit,which indicate that they will construct a half-street improvement along the frontage of 103rd Avenue. The improvements adjacent to this site shall include: A. City standard pavement section for a local street from curb to centerline equal to 16 feet; B. pavement tapers needed to tie the new improvement back into the existing edge of pavement shall be built beyond the site frontage; C. pavement widening to 24 feet from project access to McDonald street or a point where existing pavement is 24 feet wide, whichever is less(if applicable); D. concrete curb, or curb and gutter as needed; E. storm drainage, including any off-site storm drainage necessary to convey surface and/or subsurface runoff; Hearings Officer Final Order Appeal ofSUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 27 • • F. 5 foot concrete sidewalk with a 5 foot planter strip; G. street trees in the planter strip spaced per TDC requirements; H. street striping; I. streetlight layout by applicant's engineer,to be approved by City Engineer; J. underground utilities; K. street signs (if applicable); L. driveway apron(if applicable) M. centerline median for restricted right-turn movements(if applicable); and N. adjustments in vertical and/or honzontal alignment to construct SW 103`d Avenue in a safe manner, as approved by the Engineering Department. 12. The applicant's plans shall be revised to extend the east-west street from 100th Avenue to 103rd Avenue. The design of the through street shall comply with applicable Code criteria or modified by the City engineer through applicable road modification or adjustment procedures.The City shall review any proposal for construction of a"skinny street"pursuant to TDC Figure 18.810.4.B through at least a Type II process to provide for public review and comment on the required traffic flow plan. 13. The applicant's engineer shall submit additional information regarding sight distance and stopping sight distance to the north from the access at 103rd Avenue. If inadequate, the applicant's plans shall be revised to provide a centerline, raised median in order to provide a right-turn movement only at this intersection. 14. A profile of 100th Avenue shall be required,extending 300 feet either side of the subject site showing the existing grade and proposed future grade. 15. A profile of 103rd Avenue shall be required,extending 300 feet either side of the subject site showing the existing grade and proposed future grade. 16. The applicant's Public Facility Improvement permit construction drawings for the east-west street shall indicate that full width street improvements, including traffic control devices, mailbox clusters, concrete sidewalks,driveway aprons, curbs, asphaltic concrete pavement, sanitary sewers, storm drainage, street trees, streetlights,and underground utilities shall be installed within the interior subdivision streets. Improvements shall be designed and constructed to local street standards,Figure 18.810.4.B. 17. The applicant's engineer shall submit a traffic flow plan and revised vehicle per day count per listed criteria under Figure 18.810.4.B,for approval prior to issuance of permits. 18. The applicant's engineer shall obtain the City CIP's sewer design for the sewer main extension in 100th Avenue. This plan shall be incorporated into the design for this project and the main from the existing manhole in 100th Avenue to the proposed manhole at the intersection of 100th Avenue and the proposed east-west street shall be constructed per the CIP plan. 19. The applicant's plans shall be revised to provide sanitary sewer,per Clean Water Services (CWS) standards, to the adjacent un-served properties,TL 2S 111 BC01400,TL 2S1 11 BC01500 and TL 2S 111 BC01600. CWS requires any lines crossing property lines to be public lines. 20. The applicant shall connect TL 2S 111 BB00800 to the public sewer. 21. The applicant shall connect TL 2S 111 BB00800 to the public storm sewer. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 28 • • 22. The applicant's plans shall be revised to provide a direct connection to the public storm sewer for the proposed wall drains in lots 1 &2 and lots 6 & 7, per CWS comments. 23. The applicant shall place the existing overhead utility lines along SW 100th Avenue underground as a part of this project. A fee-in-lieu of undergrounding must be requested in writing and approved by the City Engineer. 24. Any extension of public water lines shall be shown on the proposed Public Facility Improvement(PFI) permit construction drawings and shall be reviewed and approved by the City's Water Department,as a part of the Engineering Department plan review. NOTE: An estimated 12%of the water system costs must be on deposit with the Water Department prior to approval of the PFI permit plans from the Engineering Department and construction of public water lines. 25. The applicant shall work with TVFR to ensure adequate protection of the subdivision. 26. Final design plans and calculations for the proposed public water quality/detention facility shall be submitted to the Engineering Department(Kim McMillan) as a part of the Public Facility Improvement plans. Included with the plans shall be a proposed landscape plan to be approved by the City Engineer. The proposed facility shall be dedicated in a tract to the City of Tigard on the final plat. As a part of the improvement plans submittal, the applicant shall submit an Operations and Maintenance Manual for the proposed facility for approval by the Maintenance Services Director. The facility shall be maintained by the developer for a three-year period from the conditional acceptance of the public improvements. A written evaluation of the operation and maintenance shall be submitted and approved prior to acceptance for maintenance by the City. Once the three-year maintenance period is completed, the City will inspect the facility and make note of any problems that have arisen and require them to be resolved before the City will take over maintenance of the facility. In addition, the City will not take over maintenance of the facility unless 80 percent of the landscaping is established and healthy. If at any time during the maintenance period, the landscaping falls below the 80 percent level, the developer shall immediately reinstall all deficient planting at the next appropriate planting opportunity. 27. An erosion control plan shall be provided as part of the Public Facility Improvement(PFI)permit drawings. The plan shall conform to the "Erosion Prevention and Sediment Control Design and Planning Manual,February 2003 edition." 28. A final grading plan shall be submitted showing the existing and proposed contours. The plan shall detail the provisions for surface drainage of all lots, and show that they will be graded to insure that surface drainage is directed to the street or a public storm drainage system approved by the Engineering Department. For situations where the back portions of lots drain away from a street and toward adjacent lots, appropriate private storm drainage lines shall be provided to sufficiently contain and convey runoff from each lot. 29. The applicant shall obtain a 1200-C General Permit pursuant to ORS 468.740 and the Federal Clean Water Act. 30. The applicant's engineer shall submit preliminary stopping sight distance certification and sight distance certification from 15 feet back from the edge of the through travel lane for the access at 103rd Avenue looking north. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 29 • • • 31. The applicant shall trim vegetation and grade as needed within the right-of-way (ROW)along 103rd Avenue to the north of the proposed access in order to improve sight distance. 32. The applicant's plans shall be revised to provide"STOP AHEAD"and"STOP" signs on the north/westbound and south/eastbound legs of 100th Avenue. The plans shall still indicate the installation of a"STOP"sign on the eastbound access onto 100th Avenue from the development. - THE FOLLOWING:CONDITIONS'SHALL BE-SATISFIED PRIOR TO APPROVAL OF THE FINAL PLAT. • The applicant shall submit a cover letter along with any supporting documents and/or plans that address the following requirements to the CURRENT PLANNING DIVISION,ATTN: Emily Eng 503-718-2712. The cover letter shall clearly identify where in the submittal the required information is found: 33. Prior to approval of the final plat, the applicant shall provide clear vision triangles for the intersection of"A"Street aid SW 103rd Avenue and the intersection of the existing driveway and SW 100` Avenue on tax lot 500 north of the site to the extent the clear vision triangle extends onto the site. If clear vision cannot be met for this intersection, the applicant shall submit an application for a Variance to the vision clearance requirements. 34. Prior to approval of the final plat, the applicant shall include a street tree plan with construction plans, indicating the species of the trees. Species shall be chosen from the City of Tigard Street Tree List and spaced per standards in Section 18.745.040.C.2. The applicant shall submit one copy of the street tree plan to Planning and include one copy in the construction drawings to be submitted to Engineering. 35. Prior to approval of the final plat, the applicant shall revise lot dimensions (including frontages and lot areas) in accordance with the required through-street. The applicant shall submit a cover letter along with any supporting documents and/or plans that address the following requirements to the ENGINEERING DEPARTMENT,ATTN: KIM MCMILLAN 503-718-2642. The cover letter shall clearly identify where in the submittal the required information is found: 36. Prior to final plat approval, the applicant shall pay the addressing fee. (STAFF CONTACT: Bethany Stewart,Engineering). 37. The applicant's final plat shall contain State Plane Coordinates on two monuments with a tie to the City's global positioning system(GPS) geodetic control network(GC 22)as recorded in Washington County survey records. These monuments shall be on the same line and shall be of the same precision as required for the subdivision plat boundary. Along with the coordinates, the plat shall contain the scale factor to convert ground measurements to grid measurements and the angle from north to grid north. These coordinates can be established by: • GPS tie networked to the City's GPS survey. • By random traverse using conventional surveying methods. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 30 • • 38. Final Plat Application Submission Requirements: A. Submit for City review four(4)paper copies of the final plat prepared by a land surveyor licensed to practice in Oregon, and necessary data or narrative. B. Attach a check in the amount of the current final plat review fee(Contact Planning/Engineering Permit Technicians,at(503) 639-4171, ext. 2421). C. The final plat and data or narrative shall be drawn to the minimum standards set forth by the Oregon Revised Statutes(ORS 92.05), Washington County, and by the City of Tigard. D. The right-of-way dedication for 100th and 103rd Avenues,providing 27 feet from centerline, shall be made on the final plat. E. NOTE: Washington County will not begin their review of the final plat until they receive notice from the Engineering Department indicating that the City has reviewed the final plat and submitted comments to the applicant's surveyor. F. After the City and County have reviewed the final plat, submit two mylar copies of the final plat for City Engineer signature(for partitions), or City Engineer and Community Development Director signatures (for subdivisions). THE FOLLOWING CONDITIONS SHALLtE SATISFIED PRIOR TO ISSUANCE OF BUILDING-PERMITS The applicant shall submit a cover letter along with any supporting documents and/or plans that address the following requirements to the CURRENT PLANNING DIVISION, ATTN: Emily Eng 503-718-2712. The cover letter shall clearly identify where in the submittal the required information is found: 39. Prior to issuance of building permits,the applicant(developer or builder) shall: A. Submit site plan drawings showing the accurate location of the trees that were preserved, the location of tree protection fencing, and the location of mitigation trees, if any. Attach copies of the approved Tree Protection and Mitigation Plans. B. Submit a statement and signature of approval from a certified arborist regarding the siting and construction techniques to be employed in building the house with respect to any protected trees on site. C. Install required tree protection fencing as specified by the project arborist and call for an inspection by the City Arbonst. D. Applicant shall submit biweekly reports,prepared by a certified arborist, through final inspection documenting the status of required tree protection fencing. 40. Prior to issuance of building permits,the applicant shall record a deed restriction to the effect that any existing tree greater than 12 inches diameter may be removed only if the tree dies or is hazardous according to a certified arborist. The deed restriction may be removed or will be considered invalid if a tree preserved in accordance with this decision should either die or be removed as a hazardous tree. 41. Prior to the issuance of building permits, the developer shall sign a copy of the City's sign compliance agreement. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-000l3(Foster Estates Subdivision) Page 31 • • The applicant shall submit a cover letter along with any supporting documents and/or plans that address the following requirements to the ENGINEERING DIVISION,ATTN: Kim McMillan 503-718-2642.The cover letter shall clearly identify where in the submittal the required information is found: 42. Prior to issuance of building permits, the applicant shall provide the Engineering Department with a"photomylar"copy of the recorded final plat. 43. Prior to issuance of building permits, the applicant shall provide the City with as- built drawings of the public improvements as follows: 1) 3 mil mylar, 2) a diskette of the as-builts in"DWG" format, if available; otherwise"DXF"will be acceptable,and 3) the as-built drawings shall be tied to the City's GPS network. The applicant's engineer shall provide the City with an electronic file with points for each structure(manholes,catch basins, water valves, hydrants and other water system features)in the development, and their respective X and Y State Plane Coordinates,referenced to NAD 83 (91). 44. Any necessary off-site utility easements shall be the responsibility of the applicant to obtain and shall be submitted to and accepted by the City prior to issuance of a building permit. 45. If power is taken from 103rd Avenue the undergrounding fee shall be calculated by the frontage of the site that is parallel to the utility lines and will be$35.00 per lineal foot. The amount will be$5,880.00 and it shall be paid prior to issuance of building permits. 46. If power is taken from 100th Avenue and the City Engineer has approved the fee- in-lieu the undergrounding fee shall be calculated by the frontage of the site that is parallel to the utility lines and will be $35.00 per lineal foot. The amount will be $5,565.00 and it shall be paid prior to issuance of building permits. 47. Upon completion of street improvements and prior to issuance of building permits,the applicant's engineer shall submit final sight distance certification for the intersection of the east-west street with 100th and 103rd Avenues. THE FOLL OWING.COND ITIONS:SHALL,BE:SATISFIED w ' • , PRIOR TO A FINAL INSPECTION The applicant shall submit a cover letter along with any supporting documents and/or plans that address the following requirements to the CURRENT PLANNING DIVISION,ATTN: Emily Eng 503-718-2712.The cover letter shall clearly identify where in the submittal the required information is found: 48. Prior to a final inspection, the applicant shall submit a final report by the Project Arborist certifying the health of protected trees. Tree protection measures may be removed and final inspection authorized upon review and approval by the City Arborist. 49. Prior to a final inspection, a member of the planning staff shall conduct a walk- through at the site to ensure that the development is consistent with this decision. IN:ADDITION,THE APPLICANT SHOULD BEAWARE OF THE FOLLOWING SECTIONS OF=THE COMMUNITY DEV ELOPMENT CODE;THIS IS=NOT AN EXCLUSIVE LIST = Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 32 • • 18.430.080 Improvement Agreement: before City approval is certified on the final plat, and before approved construction plans are issued by the City, the Subdivider shall: 1. Execute and file an agreement with the City Engineer specifying the period within which all required improvements and repairs shall be completed; and 2. Include in the agreement provisions that if such work is not completed within the period specified, the City may complete the work and recover the full cost and expenses from the subdivider. The agreement shall stipulate improvement fees and deposits as maybe required to be paid and may also provide for the construction of the improvements in stages and for the extension of time under specific conditions therein stated in the contract. 18.430.090 Bond: As required by Section 18.430.080,the subdivider shall file with the agreement an assurance of performance supported by one of the following: 1. An irrevocable letter of credit executed by a financial institution authorized to transact business in the State of Oregon; 2. A surety bond executed by a surety company authorized to transact business in the State of Oregon which remains in force until the surety company is notified by the City in writing that it may be terminated; or 3. Cash. The subdivider shall furnish to the City Engineer an itemized improvement estimate, certified by a registered civil engineer, to assist the City Engineer in calculating the amount of the performance assurance. The subdivider shall not cause termination of nor allow expiration of said guarantee without having first secured written authorization from the City. 18.430.100 Filing and Recording: Within 60 days of the City review and approval, the applicant shall submit the final plat to the County for signatures of County officials as required by ORS Chapter 92. Upon final recording with the County, the applicant shall submit to the City a mylar copy of the recorded final plat. 18.430.070 Final Plat Application Submission Requirements: Three copies of the subdivision plat prepared by a land surveyor licensed to practice in Oregon, and necessary data or narrative. The subdivision plat and data or narrative shall be drawn to the minimum standards set forth by the Oregon Revised Statutes(ORS 92.05), Washington County, and by the City of Tigard. STREET CENTERLINE MONUMENTATION SHALL BE PROVIDED AS FOLLOWS: Centerline Monumentation In accordance with Oregon Revised Statutes 92.060, subsection(2), the centerline of all street and roadway rights-of-way shall be monumented before the City accepts a street improvement. Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-00013(Foster Estates Subdivision) Page 33 411 • The following centerline monuments shall be set: 1. All centerline-centerline intersection points; 2. All cul-de-sac center points; and 3. Curve points,beginning and ending points(PC's and PT's). All centerline monuments shall be set during the first lift of pavement. Monument Boxes Required Monument boxes conforming to City standards will be required around all centerline intersection points,cul-de-sac center points,and curve points. The tops of all monument boxes shall be set to finished pavement grade. 18.810 Street& Utility Improvement Standards: 18.810.120 Utilities All utility lines including,but not limited to those required for electric,communication, lighting and cable television services and related facilities shall be placed underground, except for surface-mounted transformers, surface-mounted connection boxes,and meter cabinets which may be placed above ground, temporary utility service facilities during construction, high capacity electric lines operating at 50,000 volts or above. 18.810.130 Cash or Bond Required All improvements installed by the subdivider shall be guaranteed as to workmanship and material for a period of one year following acceptance by the City. Such guarantee shall be secured by cash deposit or bond in the amount of the value of the improvements as set by the City Engineer. The cash or bond shall comply with the terms and conditions of Section 18.810.180. 18.810.150 Installation Prerequisite No land division improvements, including sanitary sewers, storm sewers, streets, sidewalks,curbs, lighting or other requirements shall be undertaken except after the plans therefore have been approved by the City,permit fee paid and permit issued. 18.810.180 Notice to City Required Work shall not begin until the City has been notified in advance. If work is discontinued for any reason, it shall not be resumed until the City is notified. 18:810.200 Engineer's Certification The land divider's engineer shall provide written certification of a form provided by the City that all improvements, workmanship and materials are in accord with current and standard engineering and construction practices,and are of high grade,prior to the City acceptance of the subdivision's improvements or any portion thereof for operation and maintenance. 18.785 Temporary Uses: 18.785.040 Temporary Sales Office or Model Home By means of a Type I procedure, as governed by Section 18.390.030,the Director may approve, approve with conditions or deny the use of any real property within the City as a temporary sales office, offices for the purpose of facilitating the sale of real property, or model home in any subdivision or tract of land within this City, but for no other purpose, provided the following criteria are satisfied: Hearings Officer Final Order Appeal of SUB2007-00003/VAR2007-000l3(Foster Estates Subdivision) Page 34 • • The applicant shall apply for a temporary use permit for a temporary sales office or model home at the appropriate time. The temporary use permit shall be valid for a period of 1 year. THIS APPROVAL SHALL BE VALID FOR 18 MONTHS FROM THE EFFECTIVE DATE OF THIS DECISION. DATED this 14th day of September 2007 Jo rner,Esq.,AICP City of Tigard Land Use Hearings Officer • • Hearings Officer Final Order Appeal of SUB2007=00003/VAR2007-00013(Foster Estates Subdivision) Page 35 . . I . NV 4,...." fiV 11.11111111111111/;• IFFri I .ir CITY of TIGARD 1 I ilikir 1 j , i I ' 411111 l' * • orocter...to ittroeunsiott SYStam I 1 I I I I I "1111111111111, At 0, , VICINITY MAP 1 1 0.004 . . 1 1 1 ST i i.1ti 110.11111P a 6, . 1 , t4 NU_ VIEW i • SUB2007-00003 VAR2007-00013 I . 1.111K *Ts. I/IEW CT 1 -- ' • i °) -IIINIIIIII I • FOSTER.ESTATES I 1 SUBDIVISION ,'". 11111110111 II. \1.. \ 'F. ---.7 Kr-DONALD S • -.... . . 1 I 0 I 4 -41111111. • I- _; In cp , i'■ —.... C Ca —71 — 0 • • \............8 C • or . :iNzEN .=ELFI . • • 1111 SE Ili • 1. LEGEND: • i • • •T I-' Z OsE• 3 rreeei3J,. 0 _6!11111 234 NMI SUBJECT 1 . 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III P03)639-4171 MN= • attplivnwcel.tigard.ocus • • Plot date:Apr 6,2007;CAmagic1 MAGIC03.APR Community Development • • • • ___) ! L___ _i A __ _1 S.W. 103RD AVENUE(CRC 760).�I t r_____i_____rz,--1—_,PLY : 1 I e lin Z I ti • '1 1 F, , 1 1 I&g 1 r 1 I-v.- if • ti Ar ."-\„, .4,,,,ce-- ,_, ) ! --------1,.... : LA:i g . . 10,...If 71 i u �vv @— ' 3 t. r} jy t la .� a r t ` ' Sy` a I. ' j" 1 1 1---- --_ :x $ r 1 —l I b . , I ■ 7V s% 1� _ �W p ■ IA ' 1 '� 1, -- t.a8---_J x 1 .M fE__ 1 I —' 1 , 3 OIACT I I t 1I T $^- 1 1 __ --- S.W. 100TH AVENUE(CR 865) I — 1 I t 1 I . I. . 1 1 1 I 1 I. 1 • • -o "�"' Pi��� X FOSTER ESTATES (l{WESTLAKE • v N h �`e Y CITY OF T ICARO O t+ enaauw • •er.r<wr • nmaa ,,, O tile-R, PRELIMINARY PLAT III t!s¢�1 ,^"+«„,tpp01CN as eaas.rol PRELIMINARY — 02/05/07 . . ,,:!,a.3a2•k, 536 _�, ` ".A Cite as 46 Or LUBA 536 (2004) 537 ,; :; ,,,,: LYLE MILLER, BETHANE KRONICK, ' ,'',',`�,;;'';' 2. 28.6.2 LUBA Scope of Review-Waiver of Issues-Failure to Raise k;.j'„;;;;-':' in Local Proceedings. COLLEEN SPECK, ROBERT SPECK, ,,r�.,:<,; RON GAUT and ALICE GAUT, Where a party fails to raise any issue during local proceedings regarding a �� Petitioners, �:•�,��ti.N,y�,, subdivision applicant's proposal not to include removal of dead or dying trees in a_ ;i,�;_,': computing the applicant's mitigation obligation under a tree removal ordinance, ~ ; ,4;. k'''�!`! that issue is waived and may not be raised at LUBA.The city arborist's isolated � US. s '�'�..., Y Y y�.+•L;4. ;=.- comment that it might not be appropriate to omit dead or dying trees in 1 computing the mitigation obligation is not sufficient to preserve the issue for CITY OF TIGARD, ^,,''"�-_'?. �,. }, ,r., appeal. •• Respondent, `.,,i', ,12,', :y - 4 (,�)i.,:;' 3. 1.6.6 Administrative Law Substantial Evidence - Conflicting and :s '.• Evidence. •"' t 33.1 Land Divisions-Subdivisions. • ALPHA ENGINEERING, INC., ` "t'• Where there is conflicting believable expert testimony regarding the Intervenor-Respondent. ':'"€.1w , efficacy of a subdivision applicant's proposed measures to ensure that + : construction of a road near large trees with intertwined roots can be LUBA No 2003-133 '^1`'` accomplished without so damaging the roots that the trees will die, LUBA will pmt,'; ` defer to the city's choice of which expert to believe. Appeal from City of Tigard. ,,a ;>?',, t .':•r y� . 4. 28.8.4 LUBA Scope of Review - Grounds for Reversal/Remand - Portland filed the petition for review and .1., N::'`. Procedural Errors. Daniel Kearns, . �.. ; argued on behalf of petitioners. With him on the brief was Reeve j")'la,'� 33.1 Land Divisions-Subdivisions. Kearns, PC. ,` `•' a: ,:yr;t, , A city does not err in approving a subdivision applicant's tree protection '' 4 ”"+° plan with a condition that the applicant provide the city arborist with Gary F. Firestone, Portland, filed the response brief and ,';..., construction documents so that the arborist can determine whether additional argued on behalf of respondent. With him on the brief was :; g;,F„.";_ ..; trees must be removed. While that condition could be viewed as an improper .. Crew, Corrigan and Bachrach, t "'_ Timothy V. Ramie and Ramie, g i xi` deferral of a finding concerning the adequacy of the tree protection plan, it does LLP. :;;iµ, ;.t I not do so where the condition does not specify that the tree protection plan may t., be revised without additional public hearings and the condition simply creates a ;.;`,I Jack L. Orchard, Portland, filed the response brief and more structured approach for computing the mitigation that would be required in P t�' argued on behalf of intervenor-respondent. With him on the brief ` 1 tl i any event without the condition. { Elas Kristin L. Udvari, Portland, and Ball Janik, LLP. ,t c°';';; Opinion by Holstun. HOLSTUN, Board Member; BASSHAM, Board Chair; '' ` -• NATURE OF THE DECISION J'E , :N4 BRIGGS, Board Member, participated in the decision. `'„ :, :.;;.. • `'AFFIRMED 02/27/2004 s_' ,;r . ,;. Petitioners appeal the city's approval of a 10-lot Y '`'�y,: subdivision and associated tree protection plan for a 2.34-acre `!� 1. 1.4.2 Administrative Law - Adequacy of Findings - Applicable '°,>' parcel. Standards. ? 3•+'�' 1.9.3 Administrative Law -Adequacy of Findings - Facts Relied ;,a, ; MOTION TO INTERVENE • ▪ '`1` Al ha En ineerin Inc. (intervenor), the applicant - P Engineering, ( ), .. A city's findings are adequate where they address each of the applicable *s.;°;: '� c�9kiria in its tree removal ordinance and explain why the certified arborist's ,1': below, moves to intervene on the side of respondent. There is no report submitted by the subdivision applicant satisfies each of those criteria. ::;h 1; =' opposition to the motion, and it is allowed. i t vl (�t . ' '�f� ' r',4, Cite as 46 Or LUBA 536 (2004) 539 538 Miller v. City of Tigard n: ,d".0. 47' . • FACTS i.,";;;.wts • 44j,'s,,THE.TIGARD TREE REMOVAL ORDINANCE f' 1 In January 2003, intervenor submitted a subdivision ,, , ` ,_ i , Petitioners' assignments of error allege violations of the 1 application for a 10-lot subdivision on a 2.34-acre parcel within <''�i'� ., `,i Tigard Tree Removal Ordinance (TRO). We summarize the main the City of Tigard. The application proposes single-family lots..':. 4r .;afeatures of the TRO before turning to petitioners' assignments of I between 5,500 square feet and 6,879 square feet served by ask { ' `s`N� 3 a error. single private street ending in a cul-de-sac. The subject property,34t0 ,;��} y includes approximately eighty-five trees with diameter at breast.:,,' i tia�`1;,, A. Purpose (TDC 18.790.010) s height of over twelve inches. Approximately, thirteen of these ,+4z; : "sj)'�,".'' large trees grow along the northern boundary of the site, some of::c1 F=°�t`` 3, r,, i The TRO purpose statement begins by stating that trees . ;,r ,� re,valued. TDC 18.790.010(A). It then lists seven purposes of which straddle the property line between the subject property.�.$;,. ti 0 and property owned by several of the petitioners. The application ; ° ; ° y s''1''', TRO. TDC 18.790.010(B). The first listed purpose is to G.E+•, ; ; , . a [e]ncourage the preservation, planting and replacement of trees • proposes a private road approximately fifteen feet from the north g l h h o- •' , �� h In the City." Notwithstanding that purpose of encouraging tree boundary trees. There is also a grove of large trees at the`, t i ��e;t= „ • fir'M' preservation, the TRO expressly recognizes that "at the time of western end of the site that will be impacted by development ofy0a �7�+ { ,', ,development it may be necessary to remove certain trees in order t. the parcel. ,,t,.l , ; ''y*,.fti ,... I P <, Q`�,, ,tx Ito accommodate structures, streets[,] utilities, and other needed According to Tigard Development Code (TDC)q,.ft4 + r.!,,, ` "or` required improvements within the development." TDC 18.745.030(A), a subdivision application filed with the city must , '"�4• ' 'ir„ 1 kl.8.790.010(C). be accompanied by a "tree plan," prepared by a "certified. ;.:;` • ' .. i arborist," that sets out the proposed planting, removal and;` £ ;.`: r, ", >, y: B. Tree Plan Required (TDC 18.790.030) protection of trees on the parcel. Intervenor submitted its initial . ks `'�'' P P .4,,,,,w1,-,,,:: `;- ;,1 The TRO requirement for a tree plan when seeking tree plan on February 3, 2003. Revisions to this plan were filed .n t:,-;::.!'„i�t,0:-as royal for a subdivision is the focus of this on May 1 and May 16 of the same year The tree plan as revised', •F.; � i'.4 a.- >i.pp appeal. TDC _ :' +�� w18.790.030 is set out in full in the margin.1 Although the provides that a total of 25 of the large trees would be removed 1.,..021;. ,,; 4 a from the site. Of these, nine will be cut because they are! . '.., ,,,,p2..-42,...: • �;��,, , E hazardous (i.e. dead, dying, or diseased), and 16 are to be cut to^��xz Y �4° r:<< . r,4 ,7,1 n w I 1 As relevant,TDC 18.790.030 provides: allow development of the property. - '�9 ,� •• ,� '��?-+� , ?,s' ` .*,'r.;."A. Tree plan reouired,A tree plan for the planting, removal and Petitioners opposed intervenor's application below,,' •r Moir} �,� v i,•• protection of trees prepared by a certified arborist shall be • arguing that intervenor failed to show the tree plan provided bye " 'y' 7"'"'' provided any parcels rovided for an lot, parcel or combination of lots or its arborist constitutes a protection plan that complies with,TDC a,' 1+1;fir+ ;1. `k 5': for which a development application for a subdivision, P P P a , ,f .•,, partition, site development review, planned development or Chapter 18.790. On May 28, 2003, the city planning commission'' ' '� ' J • P P P P Y Y P g �,t 3 # "" conditional use is filed. Protection is preferred over removal approved intervenor's application, subject to conditions,� ',�,a, -' ''K' . wherever possible. PP PP subject r'A,n a .�; 1`, P Petitioners then appealed the planning commission decision to '.' ; c , ',10_, '' ; i, ,y r��s, B. Plan Requirements.The tree plan shall include the following: the city council. The city council held a public hearing July 8,4. ;. 2003, which was continued to July 22, 2003. After hearing 44'41., a;a', "1. Identification of the location, size and species of all s1'..,e,_',,,,,, ;;;,P°5 existing trees including trees designated as conflicting testimony regarding the adequacy of the tree plan,�• P. r�{ �, ,,,+�� �; �- ��, °- 4„°'.+, +i ;,'n,�n�4 significant by the city; the city council denied the appeal and approved intervenors' ,F• ��+k, ,, application. The city council adopted the planning commission's;' '� X� I:.,.; "2. Identification of a program to save existing trees or y 1`: ,,:- • mitigate tree removal over 12 inches in caliper. (AP conditions of approval and adopted additional findings in support `Y•� �° ,�hsT of its decision. This appeal followed. ,.. s •k+*` +'�� +,''''' Mitigation must follow the replacement guidelines x a ”a . rih 7,`.•, of Section 18.790.060D, in accordance with the ;` t.4,,.:41 yw 141 _. Y • z x p e y yti I•. Miller v. City of Tigard * ,?v,:.;;. Cite as 46 Or LUBA 536 (2004) 541 540 ;:; , =y1,t .3.d,•y Pry?:;, „ subdivision approval criteria at TDC 18.430 say nothing about :yJ '=.,,. that will be used by the applicant to protect trees during and saving or removing trees, the TRO requires that a tree plan jai;:, after construction.' accompany an application for subdivision approval. As relevant It ;w` TDC 18.790.030 seems to envision a tree plan that places in this appeal, there are five key features of the TRO tree plan ,4 '"`?: requirement. First, tree plans must be prepared by a "certified r 4ja,':. all existing trees on a subdivision site into one of two categories: arborist" and tree "protection is preferred over removal wherever .; :,. (1) trees that will be saved, and (2) trees that will be removed. A possible:' Second, tree plans must identify "the location, size and ' , +:`z^`,: central question in this appeal is how the city may go about species of all existing trees" on the property to be subdivided. ;;t4 ' ' allowing a tree to be removed after that tree is included on a tree ., plan required by TDC 18.790.030 and designated as a tree that Third, the tree plan must save at least 75 percent of trees that "N:.,t1'''''''::`.: ` . a, a; will be preserved or saved. This question is complicated by the are "over 12 inches in caliper (hereafter large trees) or the plan :4;,y.., must propose mitigation if fewer than 75 percent of the large 1: >..; fact that the TRO does not provide any formal mechanism for " • 'A° amending a y trees are saved under the tree plan. Fourth, tree plans must :,,:,,, g tree plan once a subdivision is approved.z identify trees that will be removed. Fifth, tree plans must ,34.:.uy'',. • " protection program defining standards and methods ' ` '' C. After the Tree Plan is Approved include [a] P P f� g s.,:, The parties do not directly address the question of how ;: ,!4' the tree plan required by TDC 18.790.030 is implemented or following standards and shall be exclusive of trees 3.4P enforced by the city That enforcement mechanism appears to be ., ~ T TD required by other development code provisions for ? ` , TDC 18.790.060, which addresses illegal tree removal. TDC landscaping,streets and parking lots: ';;,,c5,, 18.790.060(A)(1) states that it is a violation of the TRO to remove "a. Retention of less than 25%of existing ';''.:4.5, . a tree trees over 12 inches in caliper requires a mitigation program in , ? C. In noncompliance pliance with any condition of any City accordance with Section 18.790.060D ;:, •r; permit or a development of no net loss of trees; .,•,:.. p approval;or k. "d. In noncompliance any "b. Retention of from 25% to 50% of F; p ante with an other section of[the TDC], existing trees over 12 inches in ?+,%t caliper requires that two thirds of the � ,;A;;.. Where a tree plan identifies a tree as a tree that is to be saved, trees to be removed be mitigated in ;>;;a;�`; and that tree is later removed, we assume that removal of that • accordance with Section 18.790.060D; <;;;'>_ tree would constitute a violation of the subdivision approval or a j.lz, "c. Retention of from 50% to 75% of ,:;k'' existing trees over 12 inches in x-s, caliper requires that 50 percent of the ,',_ 7 TDC 18.790.040(A) sets out a number of development incentives for trees to be removed be mitigated in •4,",;c; preserving trees. TDC 18,790.040(B) sets out specific limitations on subsequent accordance with Section 18.790.060D; ::: removal of any trees that are preserved(,;; p pursuant to the incentives in TDC "d. Retention of 75% or greater of , ,' '; 18.790.040(A).Because these provisions are not at issue in this appeal, we do not existing trees over 12 inches in 2'i; discuss them further. caliper requires no mitigation. qt~s; a The parties seem to agree that after a subdivision is approved,a tree that s;' the subdivision's tree plan "3. Identification of all trees which are proposed to be ;;r. p proposes to save may nevertheless be removed if it ?$im . becomes a"nuisance,"becomes"a hazardous tree or obstructs street intersection removed; "-' l''i` visual clearance. TDC 18.790.050 n, (D)(1)-(3). That seems to be a reasonable "4. A protection program defining standards and a , :, interpretation of TDC 18.790.050(D)(1)-(3), although those provisions do not methods that will be used by the applicant to 4° i ' address the legal consequence, if any, for the tree plan that shows such trees as I, , protect trees during and after construction. :;l trees that will be saved. r • y .,tiry ^:'. • 542 Miller v. City of Tigard " r- Cite as 46 Or LUBA 536 (2004) 543 .', y^'4 .Y-4.1o,;'," The tree plan must identify trees that will be saved and trees violation of the TDC, and therefore would constitute a violation :. of the TRO under TDC 18.790.060(A)(1)(c) or (d). Such a ''', t :r that will be removed. The tree plan must include a protection `s` (1 r^'•: program to protect trees during construction and after violation of the TRO would trigger the remedy, fine and ,lr p g replacement provisions of TDC 18.790.060(B), (C) and (D). Under , ;t VA,'j construction. If trees that the tree plan proposes to save are later TDC 18.790.060(C) the city can impose a civil penalty in '' Ga"< �r. removed, removal of such trees constitutes a violation of the response to a violation of the TRO and it may also require that 4il,;. : TRO. In that event, the city may impose a fine and require `P'' ,,s mitigation for the removal of a tree that the tree plan proposed the improperly removed tree be replaced or mitigated pursuant ;k,.n {,..i`M, P P P to TDC 18.790.060(D).4 The replacement or mitigation provisions ?iitrt, to save. of TDC 18.790.060(D) are the same replacement or mitigation ,t,,�4 F7 5 provisions that apply where a subdivision tree plan under TDC `° ?"�.} ; ,. FIRST ASSIGNMENT OF ERROR 18.790.030(B)(2) initially proposes to remove more than 25 •`�:aA' °` rl percent of the existing trees. See n 1. ,,',`4 �'' t Petitioners argue that the city erred in finding that the ' , .,�,4 ,,, intervenor's tree plan complies with the requirements of TRO, ,ip „t..,., and that the city's finding to that effect is not supported by D. Summary .r`'re,e;,. �; ;;�. :. ,. substantial evidence. Petitioners contend that the city council, in Summarizing the above discussion, the TRO requires : i+fry{' affirming the planning commission's conditional approval, failed that a subdivision applicant submit a tree plan. While the TRO ,ryt��,�3`�s:.. to identify the approval criteria within the TRO, failed to explain favors saving trees, it does not require that all trees be saved. ,;4pr,, how the intervenor's plan complies with those criteria, and '.t4i4 merely concluded that the tree protection program complies with �4 ;;:. the standards in the TRO, without responding to petitioners' I TDC 18.790.060(D)provides as follows: .;,'{,`,•� '*T.: concerns. "Guidelines for replacement. Replacement of a tree shall take place krr:, .'»:;.`+ �_'%p A,;, Contrary to petitioners' argument ' according to the following guidelines: x ff ry P gument that the city's findings "1. A replacement tree shall be a substantially similar species :=JIG:. r. fail to respond to their concerns, the city council adopted the "`*` ,)!,`, following finding: taking into consideration site characteristics; ;'��;;{�� ;.; , "2. If a replacement tree of the species of the tree removed or ';!J •r,";;=s; The Council finds that the applicant's tree plan, as revised[,] damaged is not reasonably available, the Director may allow ``1;:f t= addresses the concerns that were raised by the City's Arborist, g Y Y ;r.'.i, Y Y' p species equivalent , ' Planning Commission, and neighbors of the project site The replacement with a different s ecies of a uivalent natural ` F resource value; I.1., ;'!',' ': applicant has shifted the building on lot 10, and the applicant ,, 3, • has proposed alternative construction techniques for .' "8. If a replacement tree of the size cut is not reasonably i,�, 4i construction of the street and house foundations on lots 8-10 to available on the local market or would not be viable, the :;t ^'.j ,Si'vn ;. : minimize impacts to the trees."6 Record 7. Director shall require replacement with more than one tree in '-.-U;*5.e;r;;,; p accordance with the following formula: The number of .3 replacement trees required shall be determined by dividing estimated caliper size of the tree removed or damaged by '1.610k,:..,. the caliper size of the largest reasonably available t ti,� fi replacement trees. If this number of trees cannot be viably �, ,` tr z. B The revised tree plan specifically recognizes and responds to concerns located on the subject property, the Director may require one , •nr' `rs;;,- regarding the potential impact of the proposed road on the trees along the or more replacement trees to be planted on other property �� s northern boundary of the property: within the City, either public property or with the consent of a ;,.;;.: the owner,private property; ', On the north site boundary, a group of large Douglas-firs near the ` 4h(,4 r: access road will be protected and retained.*** "4. The planting of a replacement tree shall take place in a '1.:0,, i {�; . manner reasonably calculated to allow growth to maturity.” is s,;:. =, "Protection of the trees along the north boundary was a major 1t "'t,;1�' -'., consideration in the design of the north access road.Many of the design 44``;.;`7'5�1, , BAR:_ 544 Miller v. City of Tigard •, f`;; • Cite as 46 Or LUBA 536 (2004) 545 E',rvn ..Y*.-t,,::: The above finding refers to the changes that intervenor made to - ,'�' : ,:.' findings. Those findings point out that the applicant's arborist g g :.- ti.„!?. the initial tree plan to respond to concerns that were raised by ,:.;�: 'ogr;., report identifies the 85 trees on site deemed significant by the the city's arborist and petitioners. Although petitioners clearly .,,§;; ,£';' city (more than twelve inches in caliper), and also identifies each do not agree with that response, we fail to see why that response 14, �4-; of the trees that are proposed for removal. Those findings are n is inadequate. A � directed at the requirements of TDC 18.790.030(B)(1) and (3) � .y�� 'k ` respectively. Finally, the city council finds that the tree plan 1 We also fail to see any approval criteria that the city ,A. provides "a protection program that ensures the preservation council failed to address. The council found that the tree plan s?r ; '' and protection of the trees, and defines standards and methods was prepared by a certified arborist and "discussed the planting, !' _- ::: that will be used by [intervenor] to protect these trees during P P Y 'P,,1,4i;; removal, and protection of trees.” Record 6. That finding is x:';• .. ,:: and after construction." Record 6. That finding is directed at directed at the requirements of TDC 18.790.030(A). See n 1. The °F ,,.�;.. TDC 18.790.030(B)(4). Thus, the city council's findings address city council also expressly adopted the planning commission's - '.�. -h each of the relevant approval criteria in the TRO, and explain • •` ` 1;::;,, (albeit briefly) how the applicant's proposed tree plan satisfies ' ",f • ''``'` each of those criteria. features from standard arboricultural references were incorporated to .?>:.'_ Y;; protect the trees: .� ,,,,> As we explained in Le Roux v. Malheur County, 30 Or "s Road Profile. The road will be built above the existing :;='+",y14';: LUBA 268, 271 (1995): . grade, and only the litter layer (grass and other undecomposed vegetation) will be removed. A layer of '.:rw ;.'.. "[A local government's] findings must (1) identify the relevant permeable geotextile fabric will be installed at the road base 7, %'kk', p g -11,:?'",; approval standards, (2) set out the facts relied upon, and (3) for load bearing and weight distribution, to keep base rock ;„;., it:::.::F_ explain how the facts lead to the conclusion that the request ' from moving into the existing soil profile, and to provide air :, ,• satisfies the approval standards.” and water exchange to tree roots. The load distribution €}, .. characteristics of the geotextile fabric may also reduce f-4; ':';:7 . °,. compaction of the underlying soil. A layer of clean crushed '•.n,;�,•{.::;:, The city's findings are adequate to identify the relevant approval rock (11/2 — 2 inch material with no fines) will overlay the :`1:.,; ,• .;,,.. criteria, identify the facts relied on and explain how the proposal fabric.This layer will be compacted to the minimum standard ,,0,:<i>. satisfies the approval criteria. The findings are also adequate to permitted by engineering. The finish grade will be asphalt. "*l-C'''-' ' comply with ORS 227.173(3).6 Soil aeration will be maintained within the rock area by curb Oil i ,4i:::' `,t vents. Although the soil environment will be altered, ::',' ' k 2 The only approval criterion expressly identified in :i•;,i major root functions will be preserved under the roadbed. r{ ,� cr, • ,' hr;;',' petitioners' brief as one that the city failed to address is the Road Location. The north edge of the road will be at least 'f.,.7..; .':'` T'''4."; 'l �<:: ...- mitigation requirement set out in TDC 18.790.030(B)(2). That 15 feet from the trees.Thus, there will be a substantial area ```,. / ° ; section requires that a tree plan include a mitigation plan if between the road and the trees where roots will be .• I •';;<: :"ry' a,'' ',°'; more than 25 percent of the large trees on site will be removed • undisturbed. .!� �4;,.-,.,,,,; ,'',;. ::tsl�..: during development. In this case, the record clearly shows that, ". Utilities.Trenching for utilities will be at least 25 feet from `l r; .,;;. the trees. Roots larger than 2 inches encountered during :.;-;,, y;.: excavation will be retained by tunneling. ,5t' ,fi f"?: . . . . 6 ORS 227.173 3 provides:',11j;i rrt,;. ( )p ". Lot Configuration:Lot 10.The building envelope for lot 10 .•. Y f, !, • r has been moved south to reduce impacts to the root zone of "Approval or denial of a permit application or expedited land division tree 3420, a 34-inch diameter Douglas-fir. The distance from :� i shall be based upon and accompanied by a brief statement that ;. „,,.4,,4,„,;:::,:‘, p_ the tree to the building envelope is now 17 feet.If roots larger .t ,,' :'• explains the criteria and standards considered relevant to the decision, • �'' ' states the facts relied upon in rendering the decision and explains the than 2 inches are found during excavation of the foundation,a .:;: :y1,`-, , , .•,;,.. pier-and-grade-beam foundation design should be used to �,•; '�;;�;,._,; justification for the decision based on the criteria, standards and facts ■ - protect the roots.”Record 541-42. , , "," set forth." 'Z'''';' :.J:It:", ,. 1V 1 546 Miller v. City of Tigard :vt 4:;r,.,. ' .;,:';' Cite as 46 Or LUBA 536 (2004) 547 440' r1 although 25 of the 85 large trees on site will be removed under '141.0,C'1,:";',• SECOND ASSIGNMENT OF ERROR the plan, nine of those trees are being removed because they are ,- kz';":rr•,` hazardous. Petitioners argue that these nine trees should be ;rF : E,? Petitioners contend that the city erred in approving included in the mitigation calculations required under TDC ::4-',.',:,.. -::- . o g q intervenors tree plan because it gives too much discretion to 18.790.030(B)(2). Petitioners base this argument on a single ,;:'i',1,111•''',;',,,,,, ,,,,,. . intervenor's arborists and, therefore, inadequately preserves and statement made by the city's arborist during the comment period } ''�+ ,= protects the large trees that are to be saved or retained under while the application was before the planning commission. The :/„-k `-' the plan. Specifically, petitioners point out that intervenor's tree city arborist wrote: "mitigation calculations are wrong—should ;:=°° ( ?:,::,::. y g (calculations] g 5,�,.x, �-, plan relies heavily on establishment of the Tree and Root be 70% retain ray °'' ':ny ([intervenor does] not get credit for [dead, dying, ,'r S ;: Protection Zone (TPZ). The tree plan as written establishes the • and diseased trees])?" Record 656. However, at no point in their ,,,G;..: .: TPZ at the drip line of each tree, but this requirement only appeal below did petitioners argue that intervenors arborist :'s,.' -applies where "feasible." Record 542. Under the tree plan, should have counted the nine hazardous trees with the healthy ' :5 y ;, .,,.4-,'' construction may encroach into the TPZ, if intervenor's arborist •'inn.(: ,...;,% III trees that are being removed to allow development for purposes ;}. s ;ss'?': determines that the tree will not be "unduly damaged." Id. of determining if• mitigation is required under TDC ;..;,' :; According to petitioners, there is no evidence that allowing l 18.790.030(B)(2).The city arborist's isolated comment,posed as a ::'''41.144'''C'2].;.': excavation or encroachment into the TPZ will protect the health question rather than a definitive statement or interpretation, is •,t';.,a',! r and stability of the trees: Petitioners point to evidence in the insufficient to preserve this issue as a basis for reversal or ,,,.ti;'''t kti."i!!;;, record that supports the opposite conclusion. Petitioners also remand by LUBA. That isolated comment did not provide "fair . ?r argue that establishing the TPZ at the drip line does not provide notice" to the cit and intervenor of this issue that etitioners ;): '0;1;,. adequate protection. According to petitioners, establishing the Y P .° pia, q P g P , g attempt to raise under this part of the first assignment of error. 'ff ,x ' ,`° TPZ at the drip line is unreasonable and completely undermined See Boldt u. Clackamas County, 107 Or App 619, 623, 813 P2d ;;'`�`"... b ;' by other evidence in the record. Instead, petitioners argue that 1078 (1991) (ORS 197.763(1) requires "fair notice" to '•,;;; f�G y? ., an alternative method, the "trunk diameter" method for adjudicators and opponents). ;•;',,,, establishing a TPZ, should have been used. The petitioners point � ,%p,�'<`:' to evidence in the record that supports this contention. Petition The first assignment of error is denied. "? '"=' for Review 17. •: . .,.. As noted above, the city council adopted the planning 7 Even if we were to reach this issue, we would agree with intervenor's ., ,1,,,,o,',,, •:,7 ,t,V:: commission's findings in approving intervenor's application, and response to petitioners' argument. Intervenor argues that, because these trees .,,,',:?,7,,t4-?,X;,,,', g pp g pp are to be removed because they are hazardous, rather than to accommodate ;„. ' also adopted additional findings of its own. The city council i; : •. • ;_: :'+' ,.':.i.. found that it had "reviewed the evidence in the record and development, they should be excluded from the tree count for purposes of • ,gig„'��7f�r�,?a, �� (and] computing the mitigation requirement. Intervenor bases this argument on ''t= C'"; ' i:,. considered the public testimony in coming to its conclusion that several subsections of TDC Chapter 18.790, which differentiate between healthy ,:,: .4"`+, s:;�;;,,;: intervenor's tree plan "provide[s] a protection program that and hazardous trees. See, e.g.,TDC 18.790.020(A)(3) ("Hazardous tree' means a _`,16 °;-;;i; . tree which by reason of disease, infestation, age or other condition presents a ',:,g, �,;<;:;: ensures the preservation and protection of the trees, and defines �''r ~: standards and methods that will be used by [intervenor] to known and immediate hazard to persona or to public or private property;" TDC fr ' ;+ y [ ] 18.790.040(B) ::;«,:::.q;.,' ",�! :. (B)(allowing removal of a tree otherwise retained and protected under ;;'��:'=�:�c����: . protect these trees during and after construction." Record 6. a tree plan if the tree either dies or requires removal as a hazardous tree); and `,. �'. .! ;;;: ;. Further, the city council explicitly found that the testimony of TDC 18.790.050(D) (requirement for a tree removal permit is waived where the410/P 0 tree "[4s a hazardous tree"). If the nine hazardous trees are excluded from the intervenor's arborists was "sufficient to support the conclusion tree count for purposes of computing the mitigation requirement, a total of "1```4 ''' ' that the tree protection plan meets all applicable standards and e:t>„:. . P P P g g 4 ;..rat+,,=;aS fir�,4.:,:':: seventy-six trees remain on site. Of these seventy-six trees, sixteen, or twenty- ".�'•a'!j?.' �`.^'” criteria, even when it is considered with the evidence and one percent, are to be removed to develop the property.Thus, the city correctly ` t; decided that the mitigation requirement was not implicated by intervenor's tree = `.y.._ ., ,,,,,, plan. y,�F'�ni±.f'1:N Icy`,,.; :�,:.: ,Asr,.. r 548 Miller v. City of Tigard v,...,:, ',:, i Cite as 46 Or LUBA 536 (2004) r.:. 549 -;r 1 i 4'r;;=.'' decision. Dodd v. Hood River Count , 317 Or 172 179, 855 P2d i . arguments submitted by the appellants that the tree protection ,;ti::, � y , plan does not meet applicable standards and criteria."8 Record 7. 'AI,-.y:; ;Y:,; 608 (1993). Applying that standard of review here, the city's a+ decision is supported by substantial evidence and the decision Petitioners' argument under this assignment of error is 1,14/.''';'!.;� adequately explains why it found that intervenor's tree plan essentially a disagreement with the conclusion that both the "'<;i ,. 'y. satisfied the requirements of the TRO. planning commission and the city council came to based on t14.+ r re.:. ` ''`• The second assignment of error is denied. conflicting evidence. Petitioners point to evidence contrary to the h-'• S";--'., city's position. However, as stated above in our discussion of the ' '',4 first assignment of error, the city council explicitly found that ' iii',;kti.F 4= � ;." THIRD ASSIGNMENT OF ERROR intervenor's arborists' testimony was credible and persuasive. ,��a , - ' Their testimony apparently convinced the city council that the ,I;.: ;t+ Petitioners argue that the city erred by approving TPZ, as described in the tree plan, adequately provided for the ,.: ,, intervenor's application with an unlawful condition of approval. preservation and protection of the trees. a 4.rtVI,,' `- In particular, petitioners point to the planning commission's . All...;:,;..;:,, conditional approval, which was adopted by the city council. The 3 On appeal, LUBA does not conduct its own balancing of i:,'; i,09,,,-',,, ,' disputed condition requires intervenor to submit to the city the evidence, reach its own conclusion about which evidence to �z +� arborist a complete set of construction documents with tree believe and substitute that judgment if it differs. with the „' F1r ,n_{;: locations included before beginning actual site work.9 evidentiary judgment of the decision makers. 1000 Friends ofr'J T11;, ,:: Condition 2 apparently was imposed to enable the city Oregon v. Marion County, 116 Or App 584, 588, 842 P2d 441 ;.,•�11 , ,. 1992). The relevant inquiry in considering an evidentiary �4 z arborist to evaluate whether additional trees might need to be ( q g ; ,ti 4� removed, based on more detailed construction plans. If so, challenge to a land use decision is whether the evidentiary ,ix;rl... ; record, viewed as a whole, includes supporting evidence that a �' x,i. �°t : mitigation might be required under TDC' 18.790.030(B)(2) and •.?t i'li� TDC 18.790.060(D) if more than 25 percent of the existing trees reasonable person would rely upon to adopt the land use F.e.;� <_4Y; `�, be removed. Petitioners contend that condition 2 permits the +°'�,.,1' city to make a future land use decision without following quasi- ,-,,:'4..:, proposed a ` °• '" a The central dispute in this matter concerns the proximity of the "..,��{,�;,V��;., ;,;:° judicial land use decision' making procedures. According to road to the large trees along the north property line and the efficacy of the '41,40J:." petitioners, that future land use decision would be made without proposed TPZ and the possibility that construction will encroach into that TPZ. ';,r,,, YY� z" p Intervenor hired a second arborist to conduct a peer review of the tree plan that G ( �sw { • was prepared by Walter H. Knapp. In his review of the tree.plan, Peter Torres • offered suggestions for how to protect any roots that might be encountered and ,r ,i'•,z.: a The planning commission and city council imposed the following noted that the road will generally be at least 15 feet from the trees along the '�';}4" 'r ";; conditions: northern boundary.He pointed out that because those large trees"have grown in ;;',, ij''r ,,'s>, "[1] The applicant shall comply with the recommendations of the the open, exposed to weather, rather than inside a grove or stand," they do not ,,- 6};, arborist report, and shall provide the City Arborist with a "appear0 to be prone to windthrow."Record 287.He observed that the trees have u��],�s�aH construction sequence including installation and removal of "interwoven, grafted roots,"but he stated that in his opinion"the protected trees , 11,0�:,,, will easily tolerate [the proposed] disturbance." Record 289. He also noted that 'l,,,..] •; tree protection devices,clearing,grading,and paving. the utility trench on the south side of the road should be far enough away to -;::Li.:=,,; "[2] Prior to site work,the applicant shall submit a complete set of avoid encountering roots, but that smaller roots could be cut and larger roots :` air?.'e?°." construction documents with the tree.locations for the City could be avoided by tunneling under those roots. Id. In a May 12, 2003 :,z'?0,'- ,% Arborist's review. Should additional trees need to be removed, memorandum, the city arborist continued to express some concerns about the 'r4 ,,•;.;'s,,;; mitigation shall be recalculated. + trees along the northern property line and on the west end of the property, but ..slf:•,:'444,:i' ,',sir, ,: stated that after reviewing revised plans he felt the"curb,road and sidewalk are "<'=F„` • � "[3] The applicant shall notify the City Arborist when tree • far enough away from the trees that structural roots will not be cut.”Record 551. 1,t' .`a;g ;r; protection measures are in place so that he may verify that • He also included suggested techniques that might be employed to avoid y,Nril 4, the measures will function properly prior to construction." c damaging any roots that might be encountered during construction.Id. ;:a,� 1,,� F Record 30. '550 Miller v. City of Tigard t,_r: Cite as 46 Or LUBA 536 (2004) -. „ ,, 551 any opportunity for notice or public comment on the "final" tree ,,,',..'441.-',,-;: ::s' y, construction documents. The condition seems to envision that, plan, and would not allow for any opportunity to appeal final ��..., based on the city arborist's review of those construction f ° documents, the city may decisions regarding additional tree removal and mitigation. 3 ?-.;�:,:.� ‘1.31i,:' , y y decide that it•is necessary to remove Petitioners contend the city may not defer a finding of ...Iiez,+4,+, more trees and, depending on how many additional trees must be compliance with mandatory discretionary approval criteria to a Dkt? removed, mitigation may be required. However, just as the TRO time in the future, through a condition of approval, unless an ``'' .' is silent about whether changes can be made to tree plans and opportunity for public participation in that future decision is : ,rti,p., p�r how the city might go about approving such changes, condition 2 provided. Holland u. Lane County, 16 Or LUBA 583, 596-97 k• _, is silent about how the city might go about allowing additional (1988). .104 T,,,,' trees to be removed. Condition 2 does no more than recognize : 5..'',?kty: that more detailed construction documents may lead to a We do not agree with petitioners' characterization of }P`.i Y r; conclusion that one or more of the trees that the tree plan what the city did in this case. The difficulty in accurately ,,t3, :,a - proposes to save may need to be removed, without specifying p vying how III characterizing the city's action in this case begins with the TRO =�``�:;`=r�•°�� the city will ;:,,,�H���.y,,,�. y go about allowing those trees to be removed. That itself As intervenor correctly points out, the TRO is short on ;. },,• ` , ambiguity may leave all parties somewhat in the dark about standards or criteria and essentially relies on the expertise of an '.41::: precisely what the city will do in that circumstance and what applicant's arborist to propose a plan for protecting existing trees -' `s t".• procedures it will follow if it decides additional trees should be and for mitigation if 75 percent of the existing large trees will . ..,,kkit, . removed, but we fail to see how that ambiguity not be preserved. The ultimate standard that the TRO imposes is ?: siit ;,rvi for remand. g Y provides a basis not a standard that requires protection of trees. Rather it is a '1u„d;,4,,,.' standard that favors protection of trees but allows trees to be �y, `°27 ;.> Finally, as we read the TRO, if intervenor were simply to removed so long as any loss of more than 25 percent of large ;;.F ,, t; proceed with construction and remove trees that the tree plan trees is mitigated. ,,VOL„,?;;;' g : r proposes to save, without city authorization to do so, that would W',i'"''=' appear to constitute a violation of the TRO under TDC i+:; PP Intervenor submitted a tree plan that proposes to save ;,-,, ,9'f,4',;., . 18.790.060(A)(1)(c) or (d). In that event, TDC 18.790.060(C) more than 75 percent of the large trees. The city council found -:t .,,,,;. provides that the city could require that intervenor mitigate for ii that intervenor's tree plan satisfies the TRO standard that -; c`:+'a; the loss of those trees under TDC 18.790.060(D). That is relieves an applicant of any obligation to mitigate so long as 75 `.;`` w,l r'.,`. precisely what condition 2 appears "''r=`�`�``^�h�F, pp ars to require in the event the percent of the large trees on the site will be retained. However, ?4 city determines, based on the more detailed construction presumably in response to the concerns expressed by petitioners �' ' , documents, that fewer than 75 percent of the existing trees will and the city's arborist, the city imposed the disputed condition. ,, :; rr " ., be saved. In other words, the disputed condition simply requires • That condition is ambiguous. It can be read, as petitioners J t;€'Y='`:.': a more structured approach that would lead to the same apparently read it, to authorize city staff to modify the tree plan ; ,.�4;: �? :, mitigation remedy that would apply if condition 2 had been without providing any opportunity for further public comment or -:.:A la ,t.<«,z. omitted and fewer than 75 percent of the existing large trees are participation. However, as the city and intervenor argue, the y,41 „r:• . preserved. We fail to see how such a condition could provide a condition need not be read to express any position on the kind of a.3n; t�; basis for remand. P procedure the city might follow, in the event the city later ' { m determines that some of the trees that the tree plan proposes to .;'.4 „ h. The third assignment of error is denied. save must be removed, or that the tree plan can be revised to '::4 0; >p allow such removal. '.:':'`"' ,rw„r' The city's decision is affirmed. . 4 It does not appear to us that condition 2 does anything „A 4 , ur;,„, more than require that intervenor provide the city arborist with - •:q};;r y �pA . ., • 1„ ' • Ili 71 • V City of Tigard Tigard Business Meeting n — Agenda T t G; :-RD o TIGARD CITY COUNCIL,LOCAL CONTRACT REVIEW BOARD (LCRB) & CITY CENTER DEVELOPMENT AGENCY(CCDA) MEETING DATE: June 10, 2008 MEETING LOCATION: City of Tigard—Town Hall, 13125 SW Hall Blvd., Tigard, OR 97223 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. Citizen Communication 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 Manager. Times noted are estimated; it is recommended that persons interested in testifying be present by 7:15 p.m. to sign in on the testimony sign-in sheet. Business agenda items can be heard in any order after 7:30 p.m. Assistive Listening Devices are available for persons with impaired hearing and should be scheduled for Council meetings by noon on the Monday prior to the Council meeting. Please call 503-639-4171, ext. 2410 (voice) or 503-684-2772 (1'DD -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 by calling: 503-639-4171, ext. 2410 (voice) or 503-684-2772 (I'DD -Telecommunications Devices for the Deaf). CABLE VIEWERS: The regular City Council meeting is shown live on Channel 28 at 7:30 p.m. The meeting will be rebroadcast at the following times on Channel 28: Thursday 6:00 p.m. Sunday 3:00 p.m. Friday 10:00 p.m. Monday 6:00 a.m. SEE ATTACHED AGENDA TIGARD CITY COUNCIL/LCRB/CCDA AGENDA—June 10, 2008 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 1 of 5 411111 411141) 4 e' III n City of Tigard 4--xs•-•;45.1 Tigard Business Meeting- — Agenda A4GA;RD ,,Svwx.stur TIGARD CITY COUNCIL, LOCAL CONTRACT REVIEW BOARD (LCRB) & CITY CENTER DEVELOPMENT AGENCY (ccDA) MEETING DATE/TIME: June 10, 2008/6:30 p.m. Study Session and 7:30 p.m. Business Meeting MEETING LOCATION: City of Tigard —Town Hall, 13125 SW Hall Blvd.,Tigard, OR 97223 6:30 PM • STUDY SESSION • EXECUTIVE SESSION: The Tigard City Council will go into Executive Session under ORS 192.660(2) (d) and (h) to discuss labor negotiations and to consult with counsel regarding pending litigation. All discussions are confidential and those present may disclose nothing from the Session. Representatives of the news media are allowed to attend Executive Sessions, as provided by ORS 192.660(4), but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision.Executive Sessions are closed to the public. 7:30 PM 1. BUSINESS MEETING 1.1 Call to Order- City Council,Local Contract Review Board 1.2 Roll Call 1.3 Pledge of Allegiance 1.4 Council Communications&T.iaison Reports 1.5 Call to Council and Staff for Non-Agenda Items 7:35 PM 2. CITIZEN COMMUNICATION (Two Minutes or Less,Please) • Citizen Communication—Sign Up Sheet • Follow-up to Previous Citizen Communication 7:40 PM 3. CONSENT AGENDA: (Tigard City Council and Local Contract Review Board) These items are considered to be routine and may be enacted in one motion without separate discussion. Anyone may request that an item be removed by motion for discussion and separate action. Motion to: 3.1 Approve City Council Minutes for March 18,2008 3.2 Receive and File: a. Council Calendar b. Tentative Agenda c. Fifth Tuesday Meeting Notes for April 29,2008 TIGARD CITY COUNCIL/LCRB/CCDA AGENDA—June 10, 2008 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 2 of 5 • . • 3.3 Adopt Washington COT Natural Hazards Mitigation Action and Tigard's Natural Hazards Mitigation Plan Addendum 3.4 Receive Annual Solid Waste Financial Report 3.5 Appoint Three New Members and One Alternate to the City Center Advisory Commission (CCAC) — Resolution No. 08- 3.6 Authorize Submittal of a Grant Application to Improve Traffic Signal Controllers and Coordination along Highway 99W—Resolution No. 08- 3.7 Local Contract Review Board: 3.7.a Award a Contract for Crack Sealing Services 3.7.b Award a Contract for Mowing Right-of-Way Areas Maintained by the City of Tigard 3.7.c Award an Enterprise License Agreement for Microsoft Services • Consent Agenda-Items Removed for Separate Discussion: Any items requested to be removed from the Consent Agenda for separate discussion will be considered immediately after the Council/City Center Development Agency has voted on those items which do not need discussion. 7:45 PM 4. PUBLIC HEARING—CONSIDER A RESOLUTION CERTIFYING THE CITY PROVIDES SERVICES QUALIFYING FOR STA1E SHARED REVENUES a. Open Public Hearing b. Summation by Administration Department c. Public Testimony d. Staff Recommendation e. Council Discussion f. Close Public Hearing g. Council Consideration: Resolution No. 08- 7:50 PM 5. PUBLIC HEARING -CONSIDER A RESOLUTION DECLARING THE CITY'S EJECTION TO RECEIVE STA 1'E SHARED REVENUES a. Open Public Hearing b. Summation by Administration Staff c. Public Testimony d. Staff Recommendation e. Council Discussion f. Close Public Hearing g. Council Consideration: Resolution No. 08- 7:55 PM 6. PUBLIC HEARING -ADOPT CAPITAL IMPROVEMENT PROGRAM FOR 2008-2013 a. Open Public Hearing b. Summation by Community Development Staff c. Public Testimony d. Staff Recommendation e. Council Discussion f. Close Public Hearing g. Council Consideration: A motion to adopt the Capital Improvement Program for 2008-2013 TIGARD CITY COUNCIL/LCRB/CCDA AGENDA—June 10, 2008 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 ( www.tigard-or.gov I Page 3 of 5 • 8:05 PM 7. APPROVE A RESOLUTION ADOPTING CITYWIDE MASTER FEES AND CHARGES SCHEDULE —RESOLUTION NO. 08- a. Staff Report: Administration Department b. Council Discussion c. Council Consideration: Resolution No. 08- 8:15 PM 8. PUBLIC HEARING- CONSIDER A RESOLUTION OF THE CITY OF TIGARD ADOPTING THE BUDGET,MAKING APPROPRIATIONS,DECLARING THE VALOREM TAX T.F.VY,AND CLASSIFYING THE LEVY AS PROVIDED BY ORS 310.060(2) FOR FISCAL YEAR 2008-2009 a. Open Public Hearing b. Summation by Finance and Information Services Staff c. Public Testimony d. Staff Recommendation e. Council Discussion f. Close Public Hearing g. Council Consideration:Resolution No.08- Recess City Council Meeting(Motion by Council) Convene City Center Development Agency (CCDA)Meeting:Approximately 8:40 p.m. • Call City Center Development Agency to Order: Chair Dirksen • Roll Call: Chair and Board Members of City Center Development Agency 8:40PM 9. APPROVE A RESOLUTION ADOPTING THE FISCAL YEAR 2008-09 BUDGET, MAKING APPROPRIATIONS,AND IMPOSING AND CATEGORIZING TAXES—RESOLUTION NO. 08- • Introduction: Administration Department Adjourn City Center Development Agency (CCDA)Meeting (Motion by CCDA) Reconvene City Council Meeting: Approximately 8:45 p.m. 8:45 PM 10. CONTINUATION FROM MAY 13, 2008 OF QUASI-JUDICIAL PUBLIC HEARING — APPEAL OF DIRECTOR'S INTERPRETATION OF THE TREE PLAN REQUIREMENT — DEVELOPMENT CODE CHAPTER 18.790.030 (MIS2008-00005) a. Open Public Hearing—Mayor b. Statement by City Attorney Regarding Procedure c. Declarations or Challenges TIGARD CITY COUNCIL/LCRB/CCDA AGENDA—June 10, 2008 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 4 of 5 • - Do any mernliPs of Council wish to report any arte contact or information gained outside the hearing, including any site visits? - Have all members familiarized themselves with the application? - Are there any challenges from the audience pertaining to the Council's jurisdiction to hear this matter or is there a challenge on the participation of any member of the Council? d. Staff Report: Community Development Staff e. Public Testimony - Proponents - Opponents - Rebuttal/Final argument by applicant f. Staff Recommendation g. Close Public Hearing h. Council Discussion and Consideration: Resolution No. 08- 9:15 PM 11. COUNCIL LIAISON REPORTS 12. NON-AGENDA ITEMS 920PM 13. EXECUTIVE SESSION:The Tigard City Council will go into Executive Session under ORS 192.660(2) (e) to discuss real property transaction negotiations.All discussions are confidential and those present may disclose nothing from the Session. Representatives of the news media are allowed to attend Executive Sessions, as provided by ORS 192.660(4),but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. 9:30 PM 14. ADJOURNMENT 1/ADM/Cathy/CCA/2008/080610.doc TIGARD CITY COUNCIL/LCRB/CCDA AGENDA—June 10, 2008 "City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov ( Page 5 of S • ' ATTACHMENT 4 a DIRECTOR'S INTERPRETATION C TI.GARD • DATE: February 26,2008 CODE CHAPTER: 18.790 Tree Removal TOPIC: How should the statement, "Protection is preferred over removal wherever possible" in Section 18.790.030 be interpreted? How can an applicant demonstrate that they have adequately considered tree protection given code preference for protection over removal? DIRECTOR'S INTERPRETATION:. I. Introduction A tree plan is required when a development application is filed: 18.790.030 Tree Plan Requirement A. The plan required.A tree plan for the planting, removal and protection of trees prepared by a certified arborist shall be provided for any lot,parcel or combination of lots or parcels for which a development application for a subdivision,partition, site development review,planned development or conditional use is filed. • Protection is preferred over removal wherever possible. Historically,applicants have been required to identify all of the trees on the site, specify which will be removed,and propose protection methods for those to be retained. Any or all trees could be removed as long as they were appropriated mitigated. This process does not prioritize protection over removal as required by Section 18.790.030. In order to clarify the intent of the, "Protection is preferred over removal wherever possible" requirement,a Director's interpretation is needed. II. Interpretation One of the primary purposes of Chapter 18.790 of the Tigard Development Code is to preserve existing trees. Therefore,a development application is required to demonstrate that the site analysis and development plan protects the maximum amount of existing,viable trees (i.e.healthy and sustainable individuals or stands). •• The City recognizes that some tree removal is unavoidable in order to meet certain planning and/or construction requirements as indicated in Section 18.790.010. 18.790.010 Purpose C. Becognizj need for exceptions. The City recognizes that, notwithstanding these purposes, at the time of development it may be necessary to remove certain trees in order to accommodate structures, streets utilities, and other needed or required improvements within the development. In order to determine that preservation of viable trees has been adequately considered,the tree plan shall include a narrative that addresses the following: 1. How does the site,lot and/or building layout maximize tree retention? 2. How have improvements such as roads, driveways,utilities,and walkways been designed and located to maximize tree retention? 3. Have tree compatible construction techniques been considered and utilized wherever possible to maximize tree retention? (examples of tree compatible construction techniques include but are not limited to tunneling for utilities,"no-dig"pavement installation,and use of retaining walls in certain situations to limit root disturbance) 4. Is it possible to reduce the number of parking spaces to maximize tree retention? 5. Is it possible to reduce the total number of lots to maximize tree retention? 6. Could lot size averaging per Section 18.790.040(2)be utilized to maximize tree retention? 7. Could lot width and/or depth per section 18.790.040(3) be reduced in order to maximize tree retention? 8. How have buildings and building footprints been designed to maximize tree retention? 9. Are offsite trees that may be impacted by development inventoried and adequately protected? 10. Describe additional techniques not mentioned above that have/will be used to maximize tree retention. Failure to demonstrate that the proposed development will preserve viable trees wherever possible may result in findings for denial of a development application. This interpretation shall become effective immediately. By: Tom Coffee Community Development Director • 1111 4111 41111 ATTACHMENT 5 - V MEMORANDUM • T I GARD TO: Mayor and City Council FROM: Todd Prager,Associate Planner/Arborist RE: Appeal of Director's Interpretation of 18.790.030,Tree Plan Requirement DATE: April 28, 2008 I. Introduction Tigard Municipal Code Chapter 18.340 authorizes the Community Development Director to interpret any terms or phrases within the Tigard Development Code that may be ambiguous or subject to two or more meanings. An Interpretation was issued by the Community Development Director on February 26,2008 regarding the meaning of a particular phrase in Chapter 18.790.030 (Tree Plan Requirement). This Interpretation was initiated by the Director himself in order to clarify the criteria by which land use applicants are required to consider the protection of trees during development planning. The Interpretation was appealed by the Home Builder's Association of Metropolitan Portland as allowed by Chapter 18.340. As a result, City Council is required to hold a public hearing according to 18.390.050.D in order to decide whether or not to uphold the Director's Interpretation. The following is a summary of what prompted the Interpretation, how the Interpretation was developed, the Home Builder's Association's objections to the Interpretation, and staffs responses to their objections. II. Background In Tigard, a tree plan is required when a development application is filed: 18.790.030 Tree Plan Requirement A. Tree plan required.A tree plan for the planting, removal and protection of trees prepared by a certified arborist shall be provided for any lot,parcel or combination of lots or parcels for which a development application for a subdivision,partition, site development review,planned development or conditional use is filed. Protection is preferred over removal wherever possible. (Emphasis added). Historically, applicants have been required to identify all of the trees on the site, specify which will be removed, and propose protection methods for those to be retained. As implemented, any or all trees could be removed as long as they would be mitigated. Contrary to the stated objective of Tigard's development code, this has frequently resulted in site plans being submitted that demonstrate little regard for the preservation of existing trees on site. Page 1 of 7 0411 An example of this practice was noted by the Community Development Director in late 2007, during staff's review of a pending subdivision where the tree plan proposed removal of 100% of existing trees on site. This included the removal of trees well outside of proposed grading,building envelopes, and other construction areas. The Director asked staff why they were allowing trees to be removed that were not in conflict with the development plan. Staff responded that the City's administrative process had historically allowed the removal of any tree, so long as an applicant was willing to mitigate by planting new trees or paying an in-lieu fee. As a result, applicants had not typically demonstrated-any genuine attempt during site design to preserve trees,but rather trees have been viewed as impediments to maximum development. This practice is not limited to residential construction. A recent project to construct an office building included a parking lot containing significantly more spaces than the minimum required by code which resulted in the removal of 100% of the trees on site. When staff discussed the possibility of retaining some of the viable trees on site, the applicant chose to continue on with his plan to remove all of the trees and mitigate their removal rather than consider reconfiguring the site and/or losing some parking spaces. A third example is a subdivision that had a minimum density requirement of 8 lots. The applicant chose to increase density 50% by building 12 lots, the maximum density allowed. This contributed to the need to remove over 50% of the healthy trees on site. Had the number of lots been reduced, the development could have retained additional trees. In response to the Director's concerns, staff thoroughly reviewed that portion of the code that addresses the Tree Plan Requirements (18.790.030). In their review, staff observed that 18.790.030.A establishes the guiding principle of the tree plan as being"Protection is preferred over removal wherever possible." However,while this statement is clear and self explanatory in its meaning, there are no evaluation criteria that can be used to determine whether the applicant has demonstrated protection of trees wherever possible during site design and development. As a result, the Director determined that an interpretation of the Tree Plan Requirement was needed in order to create clear and objective criteria by which to evaluate whether land use applicants are protecting existing trees wherever possible. III. Interpretation The following has been excerpted from the Director's Interpretation: "One of the primary purposes of Chapter 18.790 of the Tigard Development Code is to preserve existing trees. Therefore, a development application is required to demonstrate that the site analysis and development plan protects the maximum amount of existing,viable trees (i.e. healthy and sustainable individuals or stands). The City recognizes that some tree removal is unavoidable in order to meet certain planning and/or construction requirements as indicated in Section 18.790.010. Page 2 of 7 1111 • 416 18.790.010 Purpose C. Recognize need for exceptions. The City recognizes that, notwithstanding these purposes, at the time of development it may be necessary to remove certain trees in order to accommodate structures, streets utilities, and other needed or required improvements within the development. In order to determine that preservation of viable trees has been adequately considered, the tree plan shall include a narrative that addresses the following: 1. How does the site,lot and/or building layout maximize tree retention? 2. How have improvements such as roads, driveways,utilities,and walkways been designed and located to maximize tree retention? 3. Have tree compatible construction techniques been considered and utilized wherever possible to maximize tree retention? (examples of tree compatible construction techniques include but are not limited to tunneling for utilities, "no-dig"pavement installation, and use of retaining walls in certain situations to limit root disturbance) 4. Is it possible to reduce the number of parking spaces to maximize tree retention? 5. Is it possible to reduce the total number of lots to maximize tree retention? 6. Could lot size averaging per Section 18.790.040(2) be utilized to maximize tree retention? 7. Could lot width and/or depth per section 18.790.040(3) be reduced in order to maximize tree retention? 8. How have buildings and building footprints been designed to maximize tree retention? 9. Are offsite trees that may be impacted by development inventoried and adequately protected? 10. Describe additional techniques not mentioned above that have/will be used to maximize tree retention. Failure to demonstrate that the proposed development will preserve viable trees wherever possible may result in findings for denial of a development application." IV. Community Values and Comprehensive Plan The Director's interpretation issued on February 26, 2008 is consistent with community values and citizen expectations. Tigard's 2006 Community Attitudes Survey found"the protection of trees and natural resource areas" as rating the highest of all"livability" characteristics posed to the respondents, scoring 8.4 out of 10 points. A follow-up question contained in the 2007 survey revealed that 84% of Tigard Residents supported increased regulations to protect existing trees. 59% disagreed with the statement that"the City should encourage greater residential density than exists today." This data suggests that when given a choice between preserving viable trees or increasing the number of residential units above the minimum required by Metro, a majority of Tigard citizens would choose tree preservation. Page 3 of 7 • • 111,The City of Tigard's Comprehensive Plan is the primary document that guides land use decisions in the community and reflects the current and projected community character and conditions. Language within the plan was created with considerable input and oversight from community volunteers, and thus is intended to reflect the will of the citizens of Tigard. A number of Policies within the Plan either directly or indirectly relate to tree and natural resource preservation. The following recently adopted Policies relevant to tree and natural resource preservation have been excerpted from the Comprehensive Plan: Policy 6.1.6 —The City shall encourage the maintenance and improvement of open spaces,natural resources, and the City's tree canopy to sustain their positive contribution to air quality. Policy 6.2.3 —The City shall encourage the use of low impact development practices that reduce stormwater impacts from new and existing development. Policy 6.2.4—The City shall protect,restore, and enhance,to the extent practical, the natural functions of stream corridors, trees, and water resources for their positive contribution to water quality. Policy 8.1.19 —The City shall seek to establish and manage a fully functional urban forest. Policy 9.1.12—The City shall assure economic development promotes other community qualities, such as livability and environmental quality that are necessary for a sustainable economic future. Policy 10.2.1 —The City shall adopt measures to protect and enhance the quality and integrity of its residential neighborhoods. Policy 10.2.5 —The City shall encourage housing that supports sustainable development patterns by promoting the efficient use of land, conservation of natural resources, easy access to public transit and other efficient modes of transportation, easy access to services and parks, resource efficient design and construction, and the use of renewable energy resources. Policy 10.2.7 —The City shall ensure that residential densities are appropriately related to locational characteristics and site conditions such as the presence of natural hazards and natural resources,.availability of public facilities and services, and existing land use patterns. Policy 10.2.8—The City shall require measures to mitigate the adverse impacts from differing or more intense land uses on residential living environments, such as: A. orderly transitions from one residential density to another; B. protection of existing vegetation, natural resources and provision of open space areas; and C. installation of landscaping and effective buffering and screening. Page 4 of 7 • • Policy 10.2.9 —The City shall require infill development to be designed to address compatibility with existing neighborhoods. Policy 13.1.3—The City shall require future development to consider topography, vegetation, and solar access during the design phase to reduce demands for artificial heating, cooling, and lighting. The following Policy relevant to tree and natural resource preservation has been excerpted from a portion of the 1982 Comprehensive Plan that is still currently in effect: Policy 3.4.2—The City shall: a. Protect fish and wildlife habitat along stream corridors by managing the riparian habitat and controlling erosion, and by requiring areas of standing trees and natural vegetation along natural drainage courses and waterways be maintained to the maximum extent possible; b. Require that development proposals in designated timbered or tree areas be reviewed through the planned development process to minimize the number of trees removed; and c. Require cluster type development in areas having important wildlife habitat value as delineated on the"Fish and Wildlife Habitat Map" on file at the City d. Address Goal 5 rule requirements pertaining to the preservation of wetlands once adequate information on the location, quality, and quantity of wetland sites is obtained. This Goal 5 review will include determining which wetland sites are ecologically and scientifically significant. Citizens will participate in making policy recommendation for the protection and preservation of those wetland areas designated as significant. The City shall complete its Goal 5 review of wetland areas before the City's next periodic review, but no later than December 23, 1996. The following policies relevant to tree and natural resource preservation have been excerpted from the Urban Forest Comprehensive Plan Amendment (subchapter of Goal 2,Land Use Chapter). They have been developed by the Tigard Tree Board and the Tigard Planning Commission through extensive input from City staff, the development community, and the public. The Planning Commission formally recommended the policies to Tigard City Council at its April 21, 2008 public hearing. Upon Council's adoption, the Urban Forest Comprehensive Plan will be incorporated into the City's update of the Comprehensive Plan. Policy 2.3.1 -The City shall develop and implement standards and procedures designed to minimize the reduction of existing tree cover,with priority given to native trees and non-native varietals that are long lived and/or provide a broad canopy spread. Policy 2.3.2 - In prescribing the mitigation of the impacts of development, the City shall give priority to the protection of existing trees, and shall consider the financial impact of mitigation. Page 5 of 7 111/1" • Policy 2.3.6 - The City shall, in order to preserve existing trees and ensure new trees will thrive, allow and encourage flexibility in site design through all aspects of development review. Policy 2.3.9 -The City shall require, as appropriate, tree preservation strategies that prioritize the retention of trees in cohesive and viable stands and groves instead of isolated specimens. The above adopted and proposed Comprehensive Plan policies reflect the community's past, present, and future desires to preserve existing trees wherever possible. The Community Development Director's February 26, 2008 Interpretation was intended to ensure these policies are carried out during development review as required by Chapter 18.790.030,Tree Plan Requirement. V. Conclusion The intent of the Interpretation is not to "save all trees at all costs." Instead,it allows both the applicant and the City to better address the code provision requiring tree preservation wherever possible in a clear and objective manner early in the design process. The Home Builder's Association has appealed the Director's Interpretation, and now Council is charged with making a decision. Staff has provided a summary of the Home Builder's Association's reasons for appealing the decision, as well as staffs responses to the individual items in Appendix #1. Appendix #1, Summary and Response to Home Builder's Association Appeal Appeal Statement#1: "The Director's Interpretation is contrary to the letter of the code..." Response: The purpose of the Director's Interpretation is to implement the code requirement in 18.790.030.A which states, "Protection is preferred over removal wherever possible." The Interpretation creates clear and objective guidelines for applicants to demonstrate conformance with this requirement. It also creates clear and objective guidelines by which staff will evaluate whether tree protection has occurred wherever possible. Appeal Statement #2: "It is the sole responsibility of the applicant to determine whether or not a tree can or should be saved." Response: A tree plan or development plan is not the sole responsibility of the applicant,but instead is a joint responsibility between the applicant and the City. It is the applicant's responsibility to submit a development plan that meets the code requirements. It is the City's responsibility to review the development plan, and evaluate whether the plan meets the code requirements. The code explicitly says "Protection is preferred over removal wherever possible." The applicant must address this by demonstrating through their tree plan that tree protection wherever possible has occurred. The City must then review and approve the plan for reasonableness prior to any tree removal. The Director's Interpretation has established the review criteria to address the code requirement. Page 6 of 7 • • 116 This is equivalent to the code requirement in 18.790.030.B.4 which states that a tree plan shall include "A protection program defining the standards and methods that will be used by the applicant to protect trees during and after construction." The applicant's arborist creates the tree protection plan and the City Arborist reviews the tree protection plan for completeness and adequacy. If the City Arborist finds that additional protection measures are needed, he may require more protection measures prior to approval. Appeal Statement#3: "To meet the terms of this interpretation, development can not occur on developable properties with trees unless a Type 3 process is used." Response: The Interpretation allows development to proceed utilizing specific incentives and flexible development standards through a Type 2 process if the applicant can demonstrate that the proposed development will preserve viable trees wherever possible. The Director understands that some tree removal is unavoidable in certain situations due to minimum density requirements and other needed or required improvements. The Interpretation is intended to require trees to be preserved wherever possible as a development goes through the Type 2 process. Appeal Statement #4: "The cost of construction would spiral out of control if construction techniques are used that"maximize" tree retention are required. Response: Requiring development to protect and incorporate significant natural features such as viable trees into the design is not an uncommon development procedure,and has been practiced by surrounding jurisdictions for some time. These jurisdictions,with what are commonly considered more restrictive tree ordinances than the City of Tigard, allow for economically viable construction and development projects. By requiring a tree plan and narrative early in the development review process, the City is ensuring that applicants give early consideration to tree preservation during the site design phase, thus reducing the likelihood of costly delays and the need to redesign the project or utilize unforeseen alternative construction techniques. Page 7 of 7 11/1" AT• ENT 5 EXHIBIT A CITY OF TIGARD PLANNING COMMISSION Meeting Minutes April 21,2008 1. CALL TO ORDER "hi*. �'•'4 President Inman called the meeting to order at 7:0 < 71 `! e :'�' as held in the Tigard Civic Center,Town Hall at 13125 SW Hall Blvd 61 r v Ir 77L'�Mil= "• g l5'�7rt :•JLa IJ':L1 rte 2. ROLL CALL 'tl,� = .y. �jy:LSE.t. ::i° •�� �'�ilr arou iF�:lll�4r•• :li Ei:.1;1::::15. 'Iii, '��sr'7 C•i:_., ": •n n. ([�� ate,e n:iiiilb:rri Commissioners Present: President Inman, Comma"._ 4 ;ffall,Doherty, It Hasman, ��.y., N-'Izls. Muldoon,Vermilyea,and Walsh ll_i;:,� ?' "�'r" Commissioners Absent Anderson =�'° x'7411;:"�° ' gyp: :Gila- 7-j�'zi 1,: � �' , Staff Present Ron Bunch,Assistant C.47 Amtr=� � . -nt Direct ` ;Darren Wyss, Associate Planner;John Floyd,Assoc.. -: °1 nner- i ' `^`j*Ci Arborist•Doreen Laughlin,Administrative Specialist II '_� 'i`-E v ai.*j :_�• r u... 3. COMMUNICATIO 'JP. pier °, ° WSW lir ICiJ.:i�l_J ' ,yt � y J I U fiai fCommissioner Caffall rep. 1 . `_ t he'd atten4 [Committee for Citizen Involvement] meeting ea U b�97T L:, :i`+7.{onth and that e City now has four neighborhoods up and running with their"neigh , N •ebsite. He said the City webpage has details on these neighbo-.._3d Q ; .ii`QT.y}•�� nd thaLwt• . q come. He encouraged people to check out the .�.-• 1 I.!*'-e�s,�i''' a •rl!' websi,,r & ; -°I.r°. �j f • orhoo',AMA ''bpage. a.:1:a�• a:u Fie:•'�S�la:, rc�:°ii���w,��a-.�.t� -il:r 'I{.l + sr-:neir ElP ' r 0-, 'PROVE 11 .. e i1 MINUTES 41 •• s''i Fkt1'••e `g:Eaonr. 'N ill• -i,4.- .s a motion by Co - °,k er Caffall,seconded by Commissioner Doherty,to approve ` `,.: �i., 2008 meeting 'Q...` i 3' s submitted. The motion carried as follows: AYES: i a: ` 1n p,phe r,� ,Hasman,Inman,Walsh NAYS: ''V.1.1-0 ;1 .: WV- „ ABSTENTIO ” �::4�e,> .A.i'g' ,Vermilyea EXCUSED: And:�l:'t'', , . `i't' 5. PUBLIC HEARING • 5.1 COMPREHENSIVE PLAN AMENDMENT(CPA)2008-00002 Tigard Comprehensive Plan Update Pertaining to Tigard's Urban Forest PLANNING COMMISSION MEETING MINUTES—April 21,2008—Page 1 I:VLRPLMDoreennPCIPC Minutes 2008tipo 04-2108 minutea4oe p • . 4111 • . REQUEST: To amend the current Comprehensive Plan to include goals, policies, and recommended action measures to reflect current community conditions and values relating to Tigard's Urban Forest. The complete text of the proposed Amendment can be viewed on the City's website at http://www.tigard-or.gov/code_ amendments. LOCATION: Citywide. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.380 and 18.390; Comprehensive Plan Chapters Citizen Involvemen Environmental Quality, Hazards, Public Facilities and Services, and Natural Features -.*,Q,pe:` Races; Metro Functional Plan Titles 3 and 13• and Statewide Planning Goals .}�R„„wR, 46: Wr.:•' ,i a gig•",dL, � ijiw-ra a•���'r� ,fir, f.'% uEIMP c> - §=i �"41,'•` a:.contii'i ;tion President Inman opened the public he ring,ex•t•s tha.-'�k- E �{{''?���}! from the last hearing,and went on to explain _ is, . noted th o.'1 ,t? a ao .ny would be reopened and that there is a 3-minute _,, 8. duals and a ° 11�i'''• 11m it for people speaking on behalf of a ou l l'`-''•:' k' l si•r;-., 7iltiF John Floyd,Assistant Planner,gave his report on behalf of t1t ,'i`. 1; ,went over changes that had been made by staff since the April 7 msa ti , oted tha'ie -,i`' e basically four sue;_ '��>i �, .,,,.,s;,. y changes and that his PowerPoint present ...did cd, .' - those ch s. �itt aid,,�,�..�.�, ``� r ,aq7: ki;urnz�"Y �'•,•u51141:".146,-'cri m-"' s' AlliSr Following are the changes (in brief): f, t':stCg€�yy33,r,� lriz>>-i3,..,, 4.1 1'�',IF•.'!,l �•iii:I .�:�S�•,• illiS ,� L.,ice:ii, Ogg .ii ik3 :crt,r.:v .�, 1. Fight(8) policies and r- 4, n, eti ed act ,r-neasur� � vere amended,rewritten,or recreated as a result of o el n from i •',,mmission at the last meeting; srr' i~:,r��1 4-1,, 2. Two definitions wer b •ed—one is it ' , •�`i bstantially rewritten; 3. Staff wanted great. tion as to Pla `ii' (.mmission's preference in policy 2.2.9 (which he would '�.,�''t i re detail later in his presentation);and "-�„�''iE�j'y�'n=:ism. 4. Two.. s public 'g': o= _ ,d been received by staff since the last hearing .=': : :17 for 40447�_;�, Commission's consideration. A}u '�- isi.oii Ipit4 •-a r..rixr e:e'iiiirersnDPI a'' �',:. it-ro�'i�"•',,.T• ,fit 0m,:c.�_—eiW a,u :r._uzri:p�Y�i • Fly„.a Iained then $ • 4. detail in o:, owerPoint presentation(Attachment 3). 4-::. ; . '4.,i d .'ta 4 o d's re ort,Presi it! an asked the commissioners if they had any uestions of v..: > ;. ; 'dti�ng this There w A s'A} e. iil' . or At thl`stØ* dnt Inthlir ened up the meeting for public testimony. F:R,i, PUBLIC T - FAVOR: AingaMiligar'' Janet Gillis,13711-S )ssex Drive,Tigard,OR 97223 (Chair of the Tree Board) said the Tree Board had met again since the last Planning Commission meeting and went over the issues that they considered particularly important [Listed in attachment 2]. John Frewing,7110 SW Lola Lane,Tigard,OR 97223,spoke in support of the policies and action items-specifically,recommended action measure 2.2.v(page 5 of Floyd's memo of 4/14)where the word"removals”is replaced by the words"permitted removals." He also PLANNING COMMISSION MEE'T'ING MINUTES—April 21,2008—Page 2 1.1LRPUNtDoreen7CIPC Minutes 201)8uge 04-2145 Mwke.doo o IP • spoke about the definition of"understory"—that it should say"immediately under,or immediately adjacent to, trees or canopies." Kandace Horlings, 14525 SW Chesterfield Ln., Tigard,OR 97224,identified herself as a Tree Board member. She said that committees can never make everyone happy. She said she works as a landscaper and she spoke about rules. She said,even as a landscaper, she has to get permits at times. She does not believe the Tree Board i ,.:v_ orkingagainst developers. She commented that what is in place now is not going to wort ti E 4Qr;'ei-; from now She . noted that this is a broad document,by design. She y.uld , • 'it ro ,;:•,•a e HBA(Home us,�?!j!H s .rs`�..��'fiiii6-ti. Builders Association) members and interested l3 : ens .'_ '.i- th the Tree Board. m She reiterated that this is a starting oint and th▪ x o " ,•'l. i r��,�3 .vi}3..'ttC' xi•titi�.x"'i•^_:sm•:i� .NilA9,: eesi.i •s_:a�r 6[ '.r v,,.�osnuanf!k�:u,•t� .�•r.•_"�rt`7... lu9...?4;4 T! ,�,s!,uf�,: �xc:.nr.:8 3' ten[ t a_t s nq}.u;.s�°:iu3(is�'•• n�alrtn� ti:'^,:`r.•��:•�,+''�•.°.� Tony cer, 10655 SW Hall Blvd., Tigard, O V I-, {i' e 7 bout tefd V Y Ty ;_ t a, e a etation. s He said his concern is more aimed towards the so 77?"((� ,u eves that is‘tAPIHIgi i.thrl t levant. He commented that these policies are deliberately v ',�(,��y�. . t 't -a ! PUBLIC TESTIMONY-IN OPPOSITION . �� y" • ksh, iy n ;y Alan Deharpport,5740 SW Arrowwoo o , u q OR 97225 a s concerned about the wording. He wants to add t9 s allow,, 1 or.;:leas a recommendation on I�ht JI! •� y 'xy'L'x t 2.3.4: "...while minimizing the finance • =:Q tact tR 1:,,•. p ©aa T (er."He said there are hundreds of thousands of dollars in tr , •ga _:T.•,•ees tro :• derlying property owner �xx,, �'L language that would allow the typically pays. He said that's a t•htfo' waid '"w on t•t`-8,,.` gu ge : �-4 �ii;t„_ iii:: writers of the code to come u ,'�A 1 >R mitigati i Y ;:t.' t would not be onerous to the underlying property owner t-!.+;®`A tion,he wa 'ia7e, '"�;�•: '•that the definition of mitigation came within a week's no ate--he tho g'li 'at was too fast for everyone affected Air, 'WAWA by this to make a judgment: _y._gr;riled another continuance to take into account the many p-Otipporogd be a f • lA•�.hese policies. He expressed concern about mitiga _m: �ry�.yyts s conc8 ens were not notified. He also noted that the ni^n[, 'j-'ST4.•.�.• �,tl '.#,:SIi3,1iT:_' ! t ;,s: " g ass"is rit '" He wondered what proportional means... wore i�, o �-��,.:�` ..,�,, p p d?,4,,;•. o . tree for `_�1 , or inch?' e expressed concern about the wording of the ar 11.""'- t He said the c •.o-u•,• c, should have leeway. 4[-'a2 ..i.k.e.r., ,,_•„, _,,,,,,„,.„,41 Bi r a:Je .. ,le,8740 SW.u'p .1 . St.,Tigard,OR 97223,gave a scenario where a prope a ::!:°3 cued sit,.•in, v •use it had trees on it. He believes that's wrong He said trees are g5.;"• .1m5 Et t tf :t :_::,r or of the functional use of land. He was concerned about the understory issif- ,.L ti„:; „� = the City should not be"in their backyard. Kevin Luby, 16497 SW 103rd,Tigard,OR 97223,said there is a dichotomy between developers and subsequent occupancy. He discussed the developer's side. He agreed with previous testimony that the mitigation fee schedule is unfair. It doesn't take into account the realistic life expectancy of trees.As far as "subsequent occupancy"--he said his ability to decide when the useful life of his own trees is done and when he wants to replace those trees should be his own decision. He was further concerned about requiring permits to take down PLANNING COMMISSION MEETING MINUTES—April 21,2008—Page 3 I.1LRP1NIDeteenPPCIPC MInutee 2008UDo 0421-08 mbtutes.doc • r • • 411/ trees,he said the City would have the right to deny that permit and he has a problem with the City having that kind of control over his property. Among other things,he expressed concern over the vagueness of the definition "understory vegetation"and was concerned about the idea of mitigation fees on private property. The question was asked if he had any suggestions on how to improve on the idea of"understory." He said,'Delete it." Walt Knapp, 7615 SW Dunsmuir,Beaverton,OR 9700il j.4entifi-. himself as an arborist :,,,," 3:: o '. He & forester of 47 years. He spoke specifically to the questi ;_ , encouraged the City to drop all references to it bet a it :,:� �4 g n' p A� ,��'.`G � es"that can be scientifically supported. Ably z,;``i=� Ken Gerts, 19200 SW 46t�'Tualatin OR,intro'.• "'A ;' ,,'a n �"_'`' °'_ ilie a lob •! = The :u ,.�...'ap� Jiz°nt:•i.' mn::xa,r xnm. written form of his comments is Attachment 4 EP,1. ` "1-40.t.'''°"'°° ' S':i<EEE?tr:- �%] L3L•Rll:_.�1 ..I: .J James McCauley, 15555 Barley Rd.,Lake Oswe .d_,6,,� tp �q";q f the HBA (Homebuilders Association) stated that he believes'•` alo4 , ..; gding the Tree Board is that there does not appear to be a broad e.,o r crests repl`i; j' e said he believes � ' ti of;•J,,,x policy 2.3.1 is a horrible piece of language r H .I_ landown 4k,:'1 E$tof view. He T••• P spoke to the issue of"understory"—he : °=c F •"4:9 j o scienti evidence regarding :iiQ :r, a:m=:q'xi iun:u's this On policy 2.3.4—he believes `ba r is a n"minimize." .: A.!-"I... 81 : :c�5i4'i: Craig Brown, 16074 SW 10311,Tigar .0 9 _; expr E,' ,'-4ohcern over policy 2.2.4.He said the intent was not cleat ,' ende. 'n: pn me;i`:; e 1.1.iv—he wondered whether the City will be doing our Man• 0-: " v �'.EaE> ty g lv' now. --a, : t m: :•g.erstand what the provision implies. 2.3.1 —believes it's,7„,,,,), :thing.As to , •u.g: o onders whose standard this is going to be.What is prop( s,�d;: ^`4 pact?It's very' lii ective and he's concerned how that will be applied.2.3.2 wit :tie --t . bse uent occu anc ." He's concerned about the City pp =.kid:-. q p Y int . ' ds chant' .• g ' Jn r e questioned the definition of mitigation. He going ��'9�P���� :- ��,• q g ' .0.'. questi ; ;_,_ pea story v- ate- ;,:a ;i, e said if property is zoned residential,it's resi. Rq9 0- i'_. U a• n. ' . ;; a: ' and put # �i m'o 'ties,that keeps it from being developed that w••; -:.y'' ou are not i A•2.`a. .fir reasonille development. , ,ti'.•;;,1�o�. ,gines,8196 SW Hall .:,�, 232,Beaverton,OR 97008,identified himself as a land- M:;v•rl .k • and said he was t, ;,y gin support of the changes of the builders. He en'`'dvi.:• `.--- a - City to be v..,),':,:,1:.:'eful in adopting policies and to pay attention to the fact that th' - i ;) ave a ' • ect on the citizens.When you adopt policies be very careful —it may sr'aN,•_�S�nsv t.t g,e'vate property owners rights. Roger Anderson, : „1 W Kable, Tigard, OR 97223, said he'd only heard a week or so ago that the City wad G` vorking on this tree thing and that it would affect every citizen in Tigard who own houses and trees. He was especially concerned about "non-development trees" and "subsequent occupancy". He suggested the City take these two phrases completely out of the policy wording. He said he believes this is overkill. He wondered why the City cares about private homeowners trees. He believes the ordinance is ridiculous. He thinks it would actually cause people to hate trees since they will have no control over them. PLANNING COMMISSION MEETING MINUTES—April 21,2008—Page 4 L'LLRPLNDoresntPOPC Minutes 20081mo 04.2148,,Lurtas4oe EP 041° . . And then they'd have to pay for a permit to take trees down on their own property. He believes if the City wants to control his property,then they should buy it. Steve Roper, 196 SW Hall Blvd.#232,Beaverton,OR 97008,said the others who had spoken in opposition had pretty much said what he believes as well. He spoke about affordable housing. He said adding tree mitigation adds to the price of those homes. He spoke about the lack of developer input into the Tree Bo He fel the Tree Board wasn't really interested in his take on things. ,� k / 55 At tlai'eL�:':C§i 95 r r� � i,trl u P !F PUBLIC TESTIMONY CLOSED Rl� - 1 } AWED �iJl IP� f" ro r 5 n.a. L o ir%ni -k ti c—ar. L � - ivno era.N au iiiiiw ns i. -There was a 5-minute break. ^yaevim 1,.- 95:ne •• `' [ qq• r t�lfxs +t.�,J. nn�ir 5 . 'i:K¢�r tigr • DELIBERATION: 9:53PM � iiOiiiions �NIME,�- :-i '�qarns r 4 1i� o. Fu 3 ( �1h President Inman explained that the deliberation time s `_L 1 Tanning Commissioners to deliberate and that,at this •Idg;.they woulS,1•" �•' ertaining questions or comments from the audience. The pub•..:.•; b.t..0'6. ,time had �'0 losed. I_'� t'r3iiin•en- a After much deliberation,the Planning !. .'o„. ssio �' ,;' ;.,G .th the following revisions (not �'o.r atio•; ';I ' . t follows: in order of the text) to be taken into c e5 vm�i•-•,-•,' 'i-L:.. i73 _� •fin.,��m mi oil'• .r_,r: anl�l. yiel(!in iiiimi,' • .nines' eY{?•'P^4^Y 3� '' !r' 1. Strike all reference to ' ' • `��`un , ,„.;try v �d.n r7E tion"throughout the document and remo 4 efinitio � m:�irl��sl ,.1;,:i`., ctt unr:.�ir_•ic-:ix:w_n.La Ia19C:' ,• L ',f in 2. 2.3.1—strike refer-h:,. = 7 4"all develop !•`.:a on-development related tree " P: } u vie language" h'n,ity shall develop and implement removal" and s��,,� �.. standards and pro:�.`a '_:gesigned to minimize impacts on existing tree co ,.:,:- ti"• F 'ority u:§ ;e e?qve trees and non-native varietals that are long 1`--.%^� � i.•.,5 5 4 de a b�l or1VP'a'< .t'a.•.V spread." . .o Qa < 9r,.. • the "�'!- :�n of the im acts of development,the City A ate'a11 give pn i. u servatialik existing trees and shall consider the /'r, nancial impact `", A •ation." t' E{f !f E i-yt�.Changed definition: 'V igation. Everything is the same except after the �4111.�n:n Nasa1,. ' rgi_:• 9 cc » `' ,�0!g3��i��•T •• {pyd compensated everything—and put "as appropriate". 4:a,.:., bJanged to "j ' ty shall develop policies and procedures designed to r, ,e : _ s in eii root systems, selected for preservation during land de ,v'�n.,i i ur„ » i,maii.i �� r''", ,� 'pili•'nQr 6. 2.3.4=te 1Exvord"require" and substitute"develop." ` ' 4 ".,rd"discourage." 7. 2.2.9—use'_�� g 8. 2.2.v—The w '. "removals"was struck but will be reinstated as "permitted removals." 9. Definition of a"hazard tree"will be reviewed in the ISA definition and will be held open until the next meeting for potential amendment at that time. PLANNING COMMISSION MEETING MINUTES-April 21,2008-Page 5 1:11.RP1MOoreen0PC%PC Mnuta 20038pe 04-21-03 mkwes40c II ' • 4111 • . . ._ Commissioner Walsh made the following motion;seconded by Commissioner Doherty: "I move that the Planning Commission forward a recommendation of approval to the City Council on application case number CPA2008-00002 for the Tigard Comprehensive Plan update pertaining to Tigard Urban Forest and adoption of the revisions that the group just reviewed [above] and approval of the staff report and public testimony presented and received. I further m. "that tie definition of "hazardous tree"be revised based upon ISA definitio':4`71' t, i at issue be left open for future review and approval by the Pl n g --F . D7 i. u;0-,- pts inaOCtCl,4.'�: .. Yi'arr k:•agoliip. "nr.y••.,00000i11lllrtl The motion carried as follows: frilly .44:. rt r• nrwrg ` r_ is .pir...F,-e t'a ``cirri 'r .tii.! v.••'t'a:°!ltus� AYES: Caffall Doherty, Fish el, zda •' ' - .,,; ,urn ^ '" rty, el, toon,Ve „ r sh NAYS None ... t'Ekih..t, y,' t. an 11410110t)1,cd: ABSTENTIONS:None ;;' ,. P EXCUSED: Anderson '{� :�pisi;t; ��'w• `9���i L�.Trp4i�•,.,, eY'at4`ati;r unvera:ir.•eo,,u�,}'�.tpp /�aiaiimn'!, y� :i i,,,, s�n�,c�:'iF te, 6. OTHER BUSINESS- ADP o,tr'S:I 4z a, n ,°a= °d 'Air President Inmian reminded the commi"_k rs ti' "'�'"�yip ld go to City Council for a .32'sTtLn,[n t�i;tnn go ty May 6 workshop and a June 3 hearing s,-a„aa•. IOW 4 ,r a:-n;:-,t;,�� s m �� ,I�ni;'an::a::;xa 7. ADJOURNMENT AK% sulk ,.i.;;,r, oral"' mY..��A.�`f: iC President Inman adjourne- eting at 11:4 p' . t V tit 414,mipapi, ult:UtL af2ltm)t:a`��^r ~''I:f�1ar:t): :�Nrtn t N:J: (5G!O1. :t • :in:t!=t i;G ;� ugh1m Administrative Specialist II ;�; •�••�s;, i:aa,artf: [-�syli(zUe �A ,z jg 7 ;fart—ytr ",cCquaf ;'.�i i as T�4,1: Ir Ariaws,.§:t�'� 1. :4:• iii iI ''Eirf Via • i5!ro: ti;.tiq i ••eii0,„ 'f'•,�'-'7”-,_•_i,�,ce•anri'{ t tt��w'w•it• :::F'F!!tn• ifn((tt�i t n!• Vern driit+`t ;:t �{ '4 i � -��ns.`e°,z t ci•.iosL•i 3'i:i'i!�: •a,n_ivriniu` • t as r; .;0.ro • �tim7:::"��i�iiii,Vta::r - low- `�y • • • PLANNING COMMISSION MEETING MINUTES—April 21,2008—Page 6 IM.RPI MDoreenIPCIPC Minutes 2006ttDo 04-21-08 Mmrtes.doe • ATTACHMENT 6 • APPEAL FILING FORM ` ' , . FOR LAND USE DECISIO ! 4 City of Tigard Permit Center 13125 Sr Hall Blvd. Tigard, OR � z�08 T l G ARD t'llt4�, {�f Phone: 503.639.4171 Fax:503.598.1960 : /�,1/r xg01.� 4G 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. The following form has been developed to assist you in filing an appeal of a land use decision in proper form. 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 Recorder at the phone/fax listed at the top of this form. GENERAL INFORMATION FOR STAFF USE ONLY Property Address/Location(s) and Name(s) of the Application Case No.(s): iL lS e:Va$-000a-C' Being Appealed: Director's intrepretation, dated Feb. Case Name(s): 26, 2008 Code Chapter 18.790 (Tree removal) ReceiptNo.; s'l How Do You QtalifyAs A Party?: Trade Association Application Accepted By: S Date: WI��Ub� Ai,���ove i As To Form By: Appellant's Name: HOMEBUILDERS ASSN. OF METRO PORTLA� Date: Appellant's Address: !5555 SW Bangy Rd. #301 Denied As To Form By City/State: Lake Oswego , OR Zip: 97035 Date: Day Phone Where You Can Be Reached:( 501 884--1880 Rev. 7/1/07 c\ctupin\masters\hnd use applications\appeal land use app.doc Scheduled Date Decision Is To Be Final: March 14, 2008 Date Notice of Final Decision Was Given: Feb 26, 2008 Specific Grounds For Appeal or Review: Attached ✓ Application Elements Submitted: Q' Appeal Filing Form(completed) I t Filing Fee(based on criteria below) > Director's Dcdsiun to Hearings Officer/Planning Commirsi s /kr' > Expedited Review(deposit) $ 300.00 > Hearing Referee $ 500.00 > Planning Commission/Hearing's Officer to City Council $2,5:3.00 (+Transcript) Signature(s) • •Ap.ellant(s): Home .uiI►ers Assn % Metro Portland 4 1/07 >le • att Dir_ of Local-.-rov't- Affairs • 11). y APPEAL FILING FORM FOR LAND USE DECISIONS (Cont'd.) The Home Builders Assn. is appealing the Director's interpretation because we believe it drastically changes the intent of Tigard's tree protection requirements, and elevates tree protection standards well beyond the purpose and the practical application of a type 3 application. The Director's interpretation is contrary to the letter of the code: - Sec 18.790.010 B.1 "Encourage the reservation,planting and replacement of trees in the City." Sec 18.790.010 B.6"Provide incentives for the retention and protection;..." Sec 18.790.030"...protection is preferred to removal." These sections do not require anyone to save a tree as long as they are willing to mitigate for the loss of a tree. Nothing is said about protecting the maximum amount of existing viable trees,or any tree for that matter. It is the sole responsibility of the applicant to determine if and when a tree can or should be saved. 1. To meet the terms of this interpretation, development cannot occur on dividable properties with trees unless a Type 3 process is used. 2. The cost of construction would spiral out of control if construction techniques that are used that"maximize"tree retention are required. State law requires that all jurisdictions must allow for an applicant to file a type 2 application provided they meet all of the provisions of the development code. Per the Director's interpretation, an applicant will now be REQUIRED to reduce the number of lots to maximize tree retentions stated in points 5, 6 an 7 of the interpretation. It is always possible to reduce the number of lots,use lot size averaging,and to reduce the width and depth of lots in order to maximize tree retention,however,this puts the applicant into the type 3 application process section of the code, which is OPTIONAL and entirely at the discretion of the applicant. Moreover,this interpretation does not provide a"CLEAR AND OBJECTIVE"standard from which a developer can base their decision to purchase developable property with trees on it. The type 3 application process is intended for sensitive sites,and is not intended to be used for the simple existence of a tree unless there is a link to an actual resource. Originally, the PD section of the code was written to accommodate wetlands and waterways, not trees,in order to.flex the density from the undevelopable portions of the land. A PD was never intended to protect trees unless they happened to be in a wetland. No other jurisdiction requires applicants to make these types of considerations. 11111 CITY OF TIGARD 3/14/2008 ' ' • _ _ 7 13125 SW Hail Blvd. 2:33:13PM Tigard,OR 97223 503.639.4171 TIGARD Receipt#: 27200800000000000851 Date: 03/14/2008 Line Items: Case No 'Tan Code Description Revenue Account No Amount Paid MIS2008-00005 [LANDUS]Interpretation of CDC 100-0000-438000 250.00 Line Item Total: $250.00 • Payments: MAD Method Payer User ID Acct./Check No. Approval No. How Received Amount Paid IIII Check HOMEBUILDERS ASSN OF ST 14483 In Person 250.00 METRO PORTLAND Payment Total: $250.00 • II° • cReceipt.rpt Page 1 of 1 • • • • . 4IP v DIRECTOR'S INTERPRETATION ■ 'T"I:GARD • - DATE: February 26,2008 CODE CHAPTER: 18.790 Tree Removal TOPIC: How should the statement, "Protection is preferred over removal wherever possible"in Section 18.790.030 be interpreted? How can an applicant demonstrate that they have adequately considered tree protection given code preference for protection over removal? • IIRECTOR'S INTERPRETATION; I. Introduction A tree plan is required when a development application is filed: 18.790.030 Tree Plan Requirement • A. The plan regpired.A tree plan for the planting, removal and protection of trees prepared by a certified ar$otist shall be provided for any lot,panel or combination of lots orpanels for which a development application for a subdivision,partition, site development review,planned development or conditional use is filed Protection is preferred over removal wherever possible. Historically,applicants have been required to identify all of the trees on the site, specify which will be removed,and propose protection methods for those to be retained. Any or all trees could be removed as long as they were appropriated mitigated. This process does not prioritize protection over removal as required by Section 18.790.030. In order to clarify the intent of the,"Protection is preferred over removal wherever possible" requirement,a Director's interpretation is needed. II. Interpretation One of the primary purposes of Chapter 18.790 of the Tigard Development Code is to preserve existing`trees. Therefore,a development application is required to demonstrate that the site analysis and development plan protects the maximum amount of existing,viable trees (i.e.healthy and sustainable individuals or stands). • • The City recognizes that some tree removal is unavoidable in order to meet certain planning and/or construction requirements as indicated in Section 18.790.010. 18.790.010 Purpose C.Recogniz,e need for exceptions The City recognizes that, notwithstanding these pueposes, at the time of development it may be necessary to remove certain trees in order to accommodate structures, streets utilities,and other needed or rrgidrrd improvements within the development. In order to determine that preservation of viable trees has been adequately considered,the tree plan shall include a narrative that addresses the following: 1. How does the site,lot and/or building layout maximize tree retention? 2. How have improvements such as roads, driveways,utilities,and walkways been designed and located to maximize tree retention? 3. Have tree compatible construction techniques been considered and utilized wherever possible to maximize tree retention? (examples of tree compatible construction techniques include but are not limited to tunneling for utilities,"no-dig"pavement installation,and use of retaining walls in certain situations to limit root disturbance) 4. Is it possible to reduce the number of parking spaces to maximize tree retention? 5. Is it possible to reduce the total number of lots to maximize tree retention? 6. Could lot size averaging per Section 18.790.040(2) be utilized to maximize tree retention? 7. Could lot width and/or depth per section 18.790.040(3)be reduced in order to maximize tree retention? 8. How have buildings and building footprints been designed to maximize tree retention? 9. Are offsite trees that may be impacted by development inventoried and adequately protected? 10. Describe additional techniques not mentioned above that have/will be used to maximize tree retention. Failure to demonstrate that the proposed development will preserve viable trees wherever possible may result in findings for denial of a development application. This interpretation shall become effective immediately. • ce,ce $y: Torn Coffee Community Development Director .4111 • Agenda Item# ! 0 Meeting Date June 10, 2008 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Title MIS2008-00005/Appeal of Director's Interpretation of the Tree Plan Requirement (Development Code Chapter 18.790.030). Prepared By: Todd Prager Dept Head Approval: City Mgr Approval: c/P ISSUE BEFORE THE COUNCIL Shall City Council uphold or deny the Home Builders Association of Metropolitan Portland's appeal of the Director's Interpretation of the Tree Plan Requirement of Community Development Code Chapter 18.790.030? STAFF RECOMMENDATION Deny the Home Builders Association appeal of the Director's Interpretation and adopt the attached Resolution (Attachment 1) affirming the Director's Interpretation with revisions (Exhibit A). Alternatively, Council may adopt the Interpretation without revisions. KEY FACTS AND INFORMATION SUMMARY - Chapter 18.790.030 (Tree Plan Requirement) of the Community Development Code clearly states "(Tree) Protection is preferred over removal wherever possible." - Historically, land use applicants have developed and become committed to site plans with little regard to existing trees,making it difficult for staff to enforce the Code provisions requiring tree protection. - In response, to clarify the tree preservation component of 18.790.030, the Community Development Director has issued a Director's Interpretation that requires additional information that will assist the applicant and staff in giving preference to tree preservation. - The Homebuilders Association of Metropolitan Portland has appealed the Director's Interpretation on the grounds that it has no basis in existing Code (Attachment 6). - Chapter 18.340 (Director's Interpretation) of the Community Development Code requires the appeal to be addressed by.City Council at a public hearing. - At the conclusion of the May 13, 2008 hearing, Council directed staff to discuss with the City Attorney the following issues that were raised and provide additional information at the June 10,2008 hearing • The City lacked jurisdiction to render the Interpretation. • The Code does not require"maximum protection". • The Interpretation creates discretionary approval criteria that are inconsistent with the Code. • The Director has sought to change the Code through the Interpretation. • The narrative required by the Interpretation should be approval criteria,not just an information request • The City needs to require more detailed information to be submitted by land use applicants. These issues are described more fully with responses provided in Attachment 2. - During discussion with the City Attorney, several revisions are proposed for Council consideration based on the May 13 hearing. Also as discussed, there is a need to make the Interpretation more consistent with existing Code. The revisions are indicated in Exhibit A. • OTHER ALTERNATIVES CONSIDERED 1. Adopt the original 2/26/08 Director's Interpretation without revisions. 2. Adopt the Director's Interpretation with revisions. 3. Uphold the appeal of the Homebuilder's Association and, by motion, reverse the Community Development Director's Interpretation. CITY COUNCIL GOALS N/A ATTACHMENT LIST Exhibit A: 5/27/08 Revised Director's Interpretation Attachment 1: Proposed Resolution Attachment 2: Staff Commentary of Proposed Revisions to the Director's Interpretation Attachment 3: Memo Responding to Testimony Received at the May 13th Hearing 5/13/08 Public Hearing Attachments: Attachment 4: Original 2/26/08 Director's Interpretation Attachment 5: 4/28/08 Memo to Council Exhibit A: 4/21/08 "Draft" Planning Commission Meeting Minutes Attachment 6: Home Builder's Association Appeal Attachment 7: Resolution No. 07-30 FISCAL NOTES No known financial costs to the City of Tigard. rf> • • EXHIBIT A Director's Interpretation-Revised TIGARD - DATE: May 27, 2008 CODE CHAPTER: 18.790 Tree Removal TOPIC: How should the statement, "Protection is preferred over removal wherever possible" in Section 18.790.030 be interpreted? How can an applicant demonstrate that they have adequately considered tree protection given code preference for protection over removal? DIRECTOR'S INTERPRETATION: I. Introduction A tree plan is required when a development application is filed: 18.790.030 Tree Plan Requirement A. Tree plan required. A tree plan for the planting, removal and protection of trees prepared by a certified arborist shall be provided for any lot,parcel or combination of lots or parcels for which a development application for a subdivision,partition, site development review,planned development or conditional use is filed. Protection is preferred over removal wherever possible. Historically, applicants have been required to identify all of the trees on the site, specify which will be removed, and propose protection methods for those to be retained. Any or all trees could be removed as long as they were appropriately mitigated. This process is not constant with the preference for protection over removal as required by Section 18.790.030. In order to clarify the intent of the, "Protection is preferred over removal wherever possible" requirement, a Director's Interpretation is needed. II. Interpretation One of the primary purposes of Chapter 18.790 of the Tigard Development Code is to preserve existing trees. Page 1 of 3 Bold Underline represents proposed new language. Strikethrettea represents proposed deleted language. 04111 4 Therefore, a development application is required to demonstrate that the site analysis and development plan has attempted to protect viable trees (i.e. healthy and sustainable individuals or stands) rather than remove them wherever possible. The City recognizes that some tree removal is unavoidable in order to meet certain planning and/or construction requirements as indicated in Section 18.790.010. 18.790.010 Purpose C. Recogni<e need for exceptions. The City recognizes that, notwithstanding these purposes, at the time of development it may be necessary to remove certain trees in order to accommodate structures, streets, utilities and other needed or required improvements within the development. In order to determine that preservation of viable trees the City's preference for protection of trees has been adequately considered, the tree plan shall include a narrative that addresses the following: 1. How does the site,lot and/or building layout favor protection over removal of trees? 2. How have improvements such as roads, driveways,utilities,and walkways been designed and located to maximize tree retention protect trees rather than remove trees? 3. Have tree compatible construction techniques been considered and utilized wherever possible to maximize tree retention protect rather than remove trees? (Examples of tree compatible construction techniques include but are not limited to tunneling for utilities, "no- dig" pavement installation, and use of retaining walls in certain situations to limit root disturbance). 4. Is it possible to reduce the number of parking spaces to maximize tree retention protect rather than remove trees? 5. Is it possible to reduce the total number of lots consistent with the minimum density requirements of the zoning district and ORS 197.307 to protect rather than remove trees? 6. Could lot size averaging per Section 18.790.040(2) be utilized to maximize tree retention protect rather than remove trees? 7. Could lot width and/or depth per section 18.790.040(3) be reduced in order to maximize tree rctcntion protect rather than remove trees? 8. How have buildings and building footprints been designed to maximize tree retention protect rather than remove trees? 9. Are offsite trees that may be impacted by development inventoried and adequately protected? 10. Are there alternative design options available that would protect rather than remove trees? 11. Are the trees proposed for retention relatively safe? (In answering this question the City will rely on the expert opinions of certified arborists and balance the City's preference for favoring protection of trees against the threat that particular trees may pose, depending on their existing conditions, abilities to withstand development impacts, and proximities to people and structures.) Page 2 of 3 Bold Underline represents proposed new language. Stfiltetihreugli represents proposed deleted language. Y . i • 12. Describe additional techniques not mentioned above that have/will be used to maximize trcc retention protect rather than remove trees? Failure to demonstrate that the proposed development will protect viable trees wherever possible may result in findings for denial of a development application. This Interpretation shall become effective immediately. • Page 3 of 3 Bold Underline represents proposed new language. Strikethretigh represents proposed deleted language. • • CITY OF TIGARD, OREGON TIGARD CITY COUNCIL RESOLUTION NO. 08- A RESOLUTION TO AFFIRM THE COMMUNITY DEVELOPMENT DIRECTOR'S INTERPRETATION OF LANGUAGE REGARDING TREE PRESERVATION IN THE CITY OF TIGARD MUNICIPAL CODE SECTION 18.790.030. WHEREAS, the Community Development Director is charged with making interpretations based on the best available information for any ambiguities or words having multiple meaning in the Tigard Development Code; and WHEREAS, the Community Development Director's Interpretation is supported by both adopted and proposed goals, policies, and action measures of the Tigard Comprehensive Plan, and provisions of the Tigard Development Code to protect existing trees wherever possible;and WHEREAS,the Tigard City Council adopted Development Code Chapter 18.790.030 to expressly protect trees during development wherever possible;and WHEREAS, the Tigard City Council held public hearings to consider the matter on May 13, 2008 and June 10, 2008. NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that: SECTION 1: The Tigard City Council hereby expresses its affirmation that the Interpretation ("Exhibit A")is in keeping with the intention of the Tigard City Council and the purpose of the Tree Plan Requirement of the Tigard Municipal Code Section 18.790.030. SECTION 2: This resolution is effective immediately upon passage. PASSED: This day of 2008. Mayor-City of Tigard ATTEST: City Recorder-City of Tigard RESOLUTION NO. 08- Page 1 • • ATTACHMENT 2 • MEMORANDUM T I GARD TO: Mayor and City Council FROM: Todd Prager,Associate Planner/Arborist RE: Staff Commentary of Proposed Revisions to the Director's Interpretation DA'Z'E: May 27,2008 I. Introduction In response to a request by Council made at the May 13, 2008 public hearing, staff has consulted with the City Attorney regarding the legal implications of the Director's Interpretation presented at that hearing. Based on these discussions, staff recommends that Council consider amending portions of the Interpretation in order to clarify the City's position. The following is an explanation of the reasoning behind the recommended revisions. Revised language has been bolded and underlined. II. Explanation of the Director's Interpretation Revisions DIRECTOR'S INTERPRETATION- REVISED CODE CHAPTER: 18.790 Tree Removal TOPIC: How should the statement, "Protection is preferred over removal wherever possible"in Section 18.790.030 be interpreted? How can an applicant demonstrate that they have adequately considered tree protection given code preference for protection over removal? DIRECTOR'S INTERPRETATION: I. Introduction A tree plan is required when a development application is filed: 18.790.030 Tree Plan Requirement Page 1 of 4 Bold Underline represents proposed new language. Strikethtettgh represents proposed deleted language. 111, • 4, A. Tree plan required A tree plan for the planting, removal and protection of trees prepared by a certIed arborist shall be provided for any lot,parcel or combination of lots or parcels for which a development application for a subdivision,partition, site development review,planned development or conditional use is filed Protection is preferred over removal wherever possible. Historically, applicants have been required to identify all of the trees on the site, specify which will be removed, and propose protection methods for those to be retained. Any or all trees could be removed as long as they were appropriately mitigated. This process is not constant with the preference for protection over removal as required by Section 18.790.030. Staff commentay: This revision was suggested by the City Attorney in order to clarify that the previously described process of tree preservation is not consistent with the applicable Development Code provision. In order to clarify the intent of the, "Protection is preferred over removal wherever possible" requirement, a Director's Interpretation is needed. II. Interpretation One of the primary purposes of Chapter 18.790 of the Tigard Development Code is to preserve existing trees. Therefore, a development application is required to demonstrate that the site analysis and development plan has attempted to protect viable trees (i.e. healthy and sustainable individuals or stands) rather than remove them wherever possible. The City recognizes that some tree removal is unavoidable in order to meet certain planning and/or construction requirements as indicated in Section 18.790.010. 18.790.010 Purpose C. Recognize need for exceptions. The City recognizes that, notwithstanding these purposes, at the time of development it may be necessary to remove certain trees in order to accommodate structures, streets, utilities and other needed or required improvements within the development. In order to determine that preservation of viable trees the City's preference for protection of trees has been adequately considered, the tree plan shall include a narrative that addresses the following: Staff Commentary: This revision was suggested by the City Attorney in order to better align the language in the Interpretation with the language of the Development Code. 1. How does the site, lot and/or building layout maximize tree retention favor protection over removal of trees? Page 2 of 4 Bold Underline represents proposed new language. Stlikethretigh represents proposed deleted language. • • Staff Commentary:This revision was suggested by the City Attorney in order to better align the language in the Interpretation with the language of the Development Code. 2. How have improvements such as roads, driveways, utilities, and walkways been designed and located to protect trees rather than remove trees? Staff Commentary:This revision was suggested by the Attorney in order to better align the language in the Interpretation with the language of the.Development Code. 3. Have tree compatible construction techniques been considered and utilized wherever possible to maximize tree retention protect rather than remove trees? (Examples of tree compatible construction techniques include but are not limited to tunneling for utilities, "no- dig"pavement installation,and use of retaining walls in certain situations to limit root disturbance). Staff Commentay:This revision was suggested by the Attorney in order to better align the language in the Interpretation with the language of the Development Code. 4. Is it possible to reduce the number of parking spaces to maximize tree retention protect rather than remove trees? StafCommentary: This revision was suggested by the City Attorney in order to better align the language in the Interpretation with the language of the Development Code. 5. Is it possible to reduce the total number of lots to maximize trcc retention consistent with the minimum density requirements of the zoning district and ORS 197.307 to protect rather than remove trees? Staff Commentary:This revision was suggested by the City Attorney in order to clarity that the City will not require a reduction in the number of lots below minimum density requirements. It is also intended to better align the language in the Interpretation with the language of the Development Code. 6. Could lot size averaging per Section 18.790.040(2) be utilized to maximize tree retention protect rather than remove trees? Staff Commentary:This revision was suggested by the City Attorney in order to better align the language in the Interpretation with the language of the Development Code. 7. Could lot width and/or depth per section 18.790.040(3) be reduced in order tom tree retention protect rather than remove trees? StafCommentay: This revision was suggested by the City Attorney in order to better align the language in the Interpretation with the language of the Development Code. 8. How have buildings and building footprints been designed to protect rather than remove trees? Page 3 of 4 Bold Underline represents proposed new language. Striketlafelagli represents proposed deleted language. • • Staff Commentary: This revision was suggested by the City Attorney in order to better align the language in the Interpretation with the language of the Development Code. 9. Are offsite trees that may be impacted by development inventoried and adequately protected? 10. Are there alternative design options available that would protect rather than remove trees? • Staff Commentary: This revision was suggested by the City Attorney in order to allow the applicant to propose design alternatives that may allow for the protection of additional trees. 11. Are the trees proposed for retention relatively safe? (In answering this question the City will rely on the expert opinions of certified arborists and balance the City's preference for favoring protection of trees against the threat that particular trees may pose, depending on their existing conditions, abilities to withstand development impacts, and proximities to people and structures.) StafCommentary: This revision was suggested by the City Attorney in order to reiterate the fact that the City does not want trees protected that pose an unreasonable safety risk to people and structures. 12. Describe additional techniques not mentioned above that have/will be used to mare trcc retention protect rather than remove trees? Staff Commentary: This revision was suggested by the City Attorney in order to better align the language in the Interpretation with the language of the Development Code. Failure to demonstrate that the proposed development will protect viable trees wherever possible may result in findings for denial of a development application. This Interpretation shall become effective immediately. III. Conclusion While the above suggested language revisions do not significantly alter the intent of the original Director's Interpretation, staff recommends Council adopt the revisions in order to clarify the City's position regarding tree protection and bring the language of the Interpretation in better alignment with the language of the Code. Page 4 of 4 Bold Underline represents proposed new language. Striketitreegh represents proposed deleted language. f • • ATTACHMENT 3 • IN MEMORANDUM T I GARD TO: Mayor and City Council • FROM: Todd Prager,Associate Planner/Arborist RE: Responses to Testimony Received at the May 13,2008 Public Hearing Regarding the Directors Interpretation of 18.790.030,Tree Plan Requirement DATE: May 15,2008 I. Introduction An Interpretation was issued by the Community Development Director per Chapter 18.340 on February 26, 2008 regarding the meaning of an ambiguous phrase in Chapter 18.790.030 (Tree Plan Requirement). While it has always been the intent of staff and the Code to require land use applicants to protect trees wherever possible, the ambiguity of the Code has made it difficult to ensure tree protection in an objective manner and applicants have been inconsistent with their level of cooperation. The Interpretation was initiated by the Director himself in order to clarify how land use applicants are required to consider the protection of trees during site analysis and development planning. • The Interpretation was appealed by the Home Builder's Association of Metropolitan Portland (HBA) as allowed by Chapter 18.340. As a result, City Council held a public hearing according to 18.390.050.D on May 13, 2008 in order to decide whether or not to uphold the HBA appeal of the Director's Interpretation. At that hearing, testimony was provided both in favor of and in opposition to the HBA appeal of the Interpretation. Council decided to continue the hearing until June 10,2008 in order to allow more time for deliberation. The following is a summary of the main issues raised in opposition to the Interpretation at the May 13th hearing, and staffs responses to them. II. Summary and Responses to Main Issues Raised in Opposition to the Interpretation At the May 13,2008 hearing, testimony was provided by three individuals regarding the Director's Interpretation. Jim McCauley, the HBA's VP of Governmental Affairs,and Phillip Grillo,Attorney with Miller Nash LLP,both spoke in opposition of the Director's Interpretation. John Frewing, a Tigard resident,generally supported the Director's Interpretation, although he did provide a few suggested improvements to the Interpretation. Page 1 of 7 11110) • Staff,in consultation with the City Attorney, has provided the following summary of and response to the main issues raised in opposition to the Interpretation at the May 13th hearing so that Council may have more information on which to base their decision at the upcoming June 10th hearing. Issue #1: Mr. Grillo argued that the Director"lacked jurisdiction to render this interpretation" because there was "no written request". Mr. McCauley agreed, stating that the Director"violated" 18.340.020.A by"not presenting application from a third party making the request". Staff Response: As stated in Chapter 18.340, "Director's Interpretations provide a process for resolving ambiguities"in the Code. There is no explicit prohibition to the Director initiating an Interpretation. In fact, Chapter 18.340.020.G explicitly allows for the Director to initiate an Interpretation when it states, "The decision of the City Council on an appeal of a Director's Interpretation shall be final and effective when notice of the decision is mailed to the applicant, provided however, that if the applicant is the Director (emphasis added) or the City Council, the decision is final and effective when made." It is unnecessary for the Director to request an Interpretation in writing to himself. Issue #2: Mr. Grillo argues that, "Even if the phrase (protection is preferred over removal wherever possible) could be interpreted to be intended as approval criteria, the preference expressed in that phrase does not require "maximum protection" of trees as suggested by the Planning Director's Interpretation. It merely expresses a preference." Mr. McCauley agrees, stating that, "Given the relevant approval criteria in the existing code, an applicant is not even required to save trees,let alone establish a standard to "maximize tree retention". Staff Response: Chapter 18.790.030.A sets a number of specific approval criteria that are consistently used to evaluate a tree plan. For example, 18.790.030.A requires that the tree plan be "prepared by a certified arborist". It also requires that a tree plan be provided when a "development application for any subdivision,partition, site development review,planned development, or conditional use is filed." These are not goal statements,but strict approval criteria. 18.790.030.A continues on to require that"Protection is preferred over removal wherever possible." The Director has interpreted this requirement to mean,if there is choice between protecting a viable tree (i.e. healthy and sustainable individual or stand) and removing it within the bounds of other code provisions, the applicant and the City are required to give preference to protection. However,in order to bring the language of the Interpretation in better alignment with the language of the Code, staff recommends Council consider amending the Interpretation by replacing the concept of"maximum protection"with "preference for protection" throughout the document (Exhibit A). For example,item 1 of the required narrative in the Interpretation would be changed to read, "How does the site,lot, and/or building layout favor protection over removal of trees?" Issue #3: Both Mr. Grillo and Mr. McCauley suggest that the Director's Interpretation creates discretionary approval criteria that are inconsistent with the Tigard Code and other applicable laws. Staff Response: The Interpretation allows development to proceed utilizing specific incentives and flexible development standards through a Type II process if the applicant can demonstrate that the proposed development will preserve viable trees wherever possible. The Interpretation is intended to require the applicant to use their discretion during site planning and design in order to preserve viable trees wherever possible. City planners will then utilize the Interpretation in determining whether the applicant did,in fact, protect viable trees wherever possible. The Director has provided Page 2 of 7 i • a set of clear and objective standards to be used by the applicant and City planners in order to meet the intent of the Code. The Interpretation is consistent with the purpose and content of the Development Code: Chapter 18.350.010.A Purpose. The purposes of the planned development overlay are: 1.To provide a means for property development that is consistent with Tigard's Comprehensive Plan through the application of flexible standards which consider and mitigate for the potential impacts to the City; and 2. To provide such added benefits as increased natural areas or open space in the City, alternative building designs,walkable communities,preservation of significant natural resources, aesthetic appeal,and other types of assets that contribute to the larger community in lieu of strict adherence to many of the rules of the Tigard Community Development Code; and 3. To achieve unique neighborhoods (by varying the housing styles through architectural accents,use of open space,innovative transportation facilities) which will retain their character and city benefits, while respecting the characteristics of existing neighborhoods through appropriate buffering and lot size transitioning;and 4. To preserve to the greatest extent possible the existing landscape features and amenities (trees, water resources,ravines, etc.) through the use of a planning procedure (site design and analysis, presentation of alternatives, conceptual review, then detailed review) that can relate the type and design of a development to a particular site;and 5. To consider an amount of development on a site,within the limits of density requirements,which will balance the interests of the owner, developer,neighbors, and the City;and 6. To provide a means to better relate the built environment to the natural environment through sustainable and innovative building and public facility construction methods and materials. (Ord. 06- 16) Chapter 18.360.010.A Promote General Welfare. The purpose and intent of site development review is to promote the 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. Chapter 18.360.010.B General Purposes. 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: 1. To implement the City of Tigard's Comprehensive Plan and other approval standards in this title; 2. To preserve and enhance the natural beauties of the land and of the man-made environment, and enjoyment thereof; Page 3 of 7 i 11111) • 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 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. Chapter 18.330.030.A Approval Standards. The Hearings Officer shall approve, approve with conditions, or deny an application for a conditional use or to enlarge or alter a conditional use based on findings of fact with respect to each of the following criteria: 2. The impacts of the proposed use of the site can be accommodated considering size, shape, location, topography, and natural features; Chapter 18.330.030.B Conditions of approval. The Hearings Officer may impose conditions on the approval of a conditional use,which are found necessary to ensure the use is compatible with other use in the vicinity, and that the impact of the proposed use on the surrounding uses and public facilities is minimized. These conditions may include, but are not limited to the following: 12. Requiring the protection and preservation of existing trees, soils, vegetation,watercourses, habitat areas and/or drainage areas; Chapter 18.790.010.A Value of trees. After years of both natural growth and planting by residents, the City now benefits from a large number of trees. These trees of varied types add to the aesthetic beauty of the community, help clean the air,help control erosion,maintain water quality and provide noise barriers. Chapter 18.790.010.B Purposes. The purposes of this chapter are to: 1. Encourage the preservation, planting and replacement of trees in the City; 2. Regulate the removal of trees on sensitive lands in the City to eliminate unnecessary removal of trees; 3. Provide for a tree plan for developing properties; 4. Protect sensitive lands from erosion; 5. Protect water quality; 6. Provide incentives for tree retention and protection; and 7. Regulate commercial forestry to control the removal of trees in an urban environment. Page 4 of 7 • • • 4110 • In addition, the following excerpts from acknowledged development codes of three surrounding jurisdictions demonstrate that the language in the Director's Interpretation is similar to the language used by other cities in the region. Tualatin Development Code: 34.210.1(a) The application for tree removal shall include: (iii)A tree assessment prepared by a qualified arborist,including the following information: an analysis as to whether trees proposed for preservation can in fact be preserved in light of the development proposed, are healthy specimens, and do not pose an imminent hazard to persons or property if preserved; an analysis as to whether any trees proposed for removal could be reasonably preserved in light of the development proposed and health of the tree; a statement addressing the approval criteria set forth in TDC 34.230; and arborist's signature and contact information. 34.230 Criteria The Community Development Director shall consider the following criteria when approving, approving with conditions, or denying a request to cut trees. (1) An applicant must satisfactorily demonstrate that any of the following criteria are met: (c) It is necessary to remove the tree to construct proposed improvements based on Architectural Review approval, building permit, or approval of a Subdivision or Partition Review. Beaverton Development Code: 40.90.15.2.0 Approval Criteria. In order to approve a Tree Plan Two application, the decision making authority shall make findings of fact based on evidence provided by the applicant demonstrating that all the following criteria are satisfied: 4. If applicable,removal of any tree is necessary to accommodate physical development where no reasonable alternative exists. 6. If applicable,removal is necessary to accomplish public purposes, such as installation of public utilities, street widening, and similar needs,where no reasonable alternative exists without significantly increasing public costs or reducing safety. 40.90.15.3.0 Approval Criteria. In order to approve a Tree Plan Three application, the decision making authority shall make findings of fact based on evidence provided by the applicant demonstrating that all the following criteria are satisfied: 6. If applicable,removal is the minimum necessary to accommodate physical development because no reasonable alternative exists for the development at another location on the site and variances to setback provisions of the Development Code will not allow the tree(s) to be saved or will cause other undesirable circumstances on the site or adjacent properties. 8. If applicable,removal is necessary to accomplish a public purpose, such as installation of public utilities, street widening, and similar needs where no reasonable alternative exists without significantly increasing public costs or reducing safety. Page5of7 11) • Wilsonville Development Code: 4.610.10. Standards For Tree Removal,Relocation Or Replacement (.01) Except where an application is exempt, or where otherwise noted, the following standards shall govern the review of an application for a Type A,B, C or D Tree Removal Permit: B. Preservation and Conservation. No development application shall be denied solely because trees grow on the site. Nevertheless, tree preservation and conservation as a design principle shall be equal in concern and importance to other design principles. C. Developmental Alternatives. Preservation and conservation of wooded areas and trees shall be given careful consideration when there are feasible and reasonable location alternatives and design options on-site for proposed buildings, structures or other site improvements. E. Residential Development. Where the proposed activity involves residential development, residential units shall, to the extent reasonably feasible, be designed and constructed to blend into the natural setting of the landscape. Issue #4: Both Mr. Grillo and Mr. McCauley suggest that the Director has not"interpreted" the Code,but has instead sought to change the Code. They argue that this should be done through a Type IV legislative process. Staff Response: Chapter 18.340 allows the Community Development Director to make interpretations because "some terms or phrases within the Code may be ambiguous and therefore subject to two or more reasonable meanings." In this case, the Director determined that the phrase "Protection is preferred over removal wherever possible" in 18.790.030.A was ambiguous, and sought to clarify it through a Director's Interpretation as allowed by 18.340. The Director has not sought to add new legislation to the Code through his Interpretation,but he instead has clarified the intent of an ambiguous statement in the Code through a set of clear and objective standards. Issue #5: Mr. Frewing argues that the "code should clarify that submittal of the required narrative is an `approval criteria,' not just an information request." Staff Response: The narrative required by the Director's Interpretation is an information request that will ensure that tree protection has been given preference over removal. The information within the Director's Interpretation narrative is not intended to be used as approval criteria on its own. It instead assists the applicant and City planners in determining how tree protection can be given preference and thus meet the applicable Code requirement. It would be inaccurate to label the narrative requirements as approval criteria. Main Issue #6: Mr. Frewing suggests that the City require applicants to display building footprints, infrastructure development,and individual lot development on their site plan drawings. Staff Response: Staff already has the authority to require this level of detail, and regularly requires it when needed to ensure adequate tree protection. This additional language is unnecessary. Page 6 of 7 • r 41111 III. Conclusion While Staff has closely analyzed the opposing viewpoint,we continue to recommend that Council deny the HBA appeal of the Director's Interpretation. The intent of the Interpretation is not to "save all trees at all costs" or supersede other requirements such as minimum density. Instead,it allows both the applicant and the City to better address the code provision requiring tree preservation wherever possible in a clear and objective manner early in the design process. The Interpretation was developed and issued within the bounds of applicable laws, and its content is effective at resolving ambiguities found in Chapter 18.790.030.A (Tree Plan Requirement). Page 7 of 7 Tualatin Development Code 34.200 defined in ORS 446.003(31) and camping vehi- the RML District is greater than 15 feet, in which cles as defined in ORS 446.310(3) shall not be case the greater distance shall apply. used for residential purposes in manufactured (13) The distance between a manufactured dwelling parks and shall not be rented a space or dwelling and the nearest manufactured dwelling hooked up to sewer, water, or electrical facilities park street shall be no less than eight feet. within a manufactured dwelling park. (14) The distance between a manufactured (5) The minimum gross acreage for a manu- dwelling and the nearest manufactured dwelling factured dwelling park shall be not less than one park sidewalk shall be not less than five feet. [Ora acre. 590-83§1,passed April 11,1983;Ord.713-87,passed Feb.23,1987;Ord.988-97,§3, (6) The manufactured dwelling park street sys- passed Dee.8,1997.] tem shall include at least one direct access to a public street, containing a right-of-way width of Section 34.200 Tree Removal Without Archi- not less than 50 feet. tectural Review, Subdivision or Partition (7) Each manufactured dwelling space shall be Approval, or Tree Removal Permit Prohib- designed to include not less than two standard ited. size automobile parking spaces. Parking spaces (1) Except as provided in TDC 34.200(3), shall be located within each manufactured dwell- no person shall remove a tree within the City ing space and may be designed either end-to-end limits without first obtaining a Tree Removal or side-to-side. Such parking spaces shall be Permit from the City or obtaining approval paved in accordance with City standards for resi- through the Architectural Review, Subdivision dential driveways. Review, or Partition Review process. Incentives (8) Each manufactured dwelling shall have its for tree retention are found in TDC Chapter 73, wheels, axles, tongue, and traveling lights re- Community Design Standards. Any property moved. owner who removes, or causes to be removed, (9) Each manufactured dwelling shall have a one or more trees in violation of applicable TDC continuous and permanently affixed skirt in- provisions, shall pay an enforcement fee and a stalled. Such skirting shall be composed of the restoration fee to the City of Tualatin, as set same material and finish as the exterior of the forth in TDC 34.220(3), in addition to civil pen- manufactured dwelling or material with a brick- alties set forth in TDC 31.111. like finish or as otherwise approved through the (2) As used in this ordinance, "park" means Architectural Review Process. a City-owned parcel, lot or tract of land, desig- (10) No extension, accessory structure, or nated and used by the public for active and pas- other out building shall be attached to a manufac- sive recreation. tured dwelling, except for structures conforming (3) The following exemptions apply to tree to the definition contained in ORS 446.003(1) removal: concerning accessory structures. (a) General Exemption. Four or fewer (11) The distance between any two manufac- trees may be removed within a single calendar tured dwellings, including any approved acces- year from a single parcel of property or contigu- sory building, structure, awning, or tipout, shall ous parcels of property under the same owner- be not less than ten feet on either side and either ship without a permit, except when the tree to be end. removed: (12) The distance between a manufactured (i) Is located in the Natural Re- dwelling, including approved accessory buildings, source Protection Overlay District(NRPO); structures, awnings, or tipouts, and the nearest (ii) Is located in the Wetlands Pro- manufactured dwelling park property line or other tection Area (WPA) of the Wetlands Protection permanent park structure shall be not less than 15 District(WPD); feet, unless the applicable setback requirement of (iii) Is a Heritage Tree; 34- 10 d 11r6 (Revised 7/07) Tualatin Development Code 34.210 (iv) The tree was previously re- - Conditional Use; quired to be retained under an approved Archi- -Architectural Review. tectural Review of the Tualatin Development (iv) Reinstatement of the Forest Code. Harvesting Exemption. Property or portions of (b) Parks and golf courses are exempt if the property previously exempted under TDC both the following are met: 34.200(3)(c) and revoked in accordance with (i) The property's owner or TDC 34.200(3)(c)(iii) will be considered rein- owner's agent has submitted a tree management stated if the property remains tax deferred in ac- plan to the Community Development Director cordance with TDC 34.200(3)(c)(i) and and has received approval from the Director. 34.200(3)(c)(ii), and one or more of the follow- The tree management plan shall be approved for ing criteria are met: a five year period, after which the property - The land use action that affected the owner or owner's agent must submit a new tree revocation was denied and the appeals period management plan for approval or comply with has expired; or requirements set out in the applicable Architec- - The land use action that affected the tural Review decision. revocation was approved, and the proposed de- (ii) This exemption supersedes the velopment which affected the filing of the land Architectural Review requirements with regard use action did not occur; and the approval that to tree removal except as provided in subsection was granted, including extensions has expired. (i) of this section. (v) The Community Development (c) Forest Harvesting Exemption. The Director shall prepare a listing of properties ex- harvesting of forest tree species for the corn- empted under this section upon the effective mercial value of the timber is permitted subject date of this ordinance and update the list annu- to the following: ally. (i) The property from which the (d) Orchards. Tree removal is permitted in forest species are to be harvested must be in a orchards of commercial agricultural production. property tax deferred status based on agricul- (e) Public Right-of-Way. Trees within tural or forest use under any or some combina- public right-of-way shall be governed by TDC tion of the following: Chapter 74, Public Improvement Requirements. - Farm Deferral according to state law. (f) Federal, state, county, or City road, - Forest Land Deferral according to state water, sanitary sewer, or storm sewer improve- law. ments and maintenance of City owned property - Small Woodlands Deferral according are exempt from this ordinance. to state law. (4) As provided under TDC 31.030, no sin- (ii) The property from which the gle-family dwelling building permit application forest species are to be harvested must have shall be submitted to the City until all required been in property tax deferred status on the effec- land use approvals, including any required Tree tive date of this ordinance or at the time of an- Removal Permit, have been obtained by the nexation of the property by the City, whichever property owner. occurs later. [Ord.963-96§4,passed June 24,1996;Ord. 1187-05,passed 5/23/05;Ord. 1227- (iii) Revocation of the Forest Har- 07§6,Amended,2/12/07.] vesting Exemption. Property, or portion of the property exempted under TDC, 34.200(3)(c) Section 34.210 Application for Architectural Re- shall cease to be exempted from the provisions view, Subdivision or Partition Review, or Tree of this ordinance immediately upon the filing of Removal Permit. an application for any of the following land use (1) Architectural Review, Subdivision, or actions: Partition. When a property owner wishes to re- - Subdivision or Partition review; move trees, other than the exemptions permitted 34- 11 (Revised 7/07) Tualatin Development Code 34.210 under TDC 34.200(3), to develop property, and analysis as to whether any trees proposed for the development is subject to Architectural Re- removal could be reasonably preserved in light view, Subdivision Review, or Partition Review of the development proposed and health of the approval, the property owner shall apply for ap- tree; a statement addressing the approval criteria proval to remove trees as part of the Architectural set forth in TDC 34.230;and arborist's signature Review, Subdivision Review, or Partition Review and contact information. The tree assessment application process. report shall have been prepared and dated no (a)The application for tree removal shall more than one calendar year preceding the date include: the development application is deemed corn- (i) A Tree Preservation Site Plan, plete by the City. Where TDC drawn to a legible scale, showing the following 34.210(1)(a)(i)(A) through (D) are applicable, information: a north arrow; existing and pro- trees located within the CWS-required easement posed property lines; existing and proposed to- need not be included in the tree assessment re- pographical contour lines; existing and proposed port. structures, impervious surfaces, wells, septic (iii) All trees on-site shall be physi- systems, and stormwater retention/detention fa- cally identified and numbered in the field with an cilities; existing and proposed utility and access arborist-approved tagging system. The tag i.d. locations/easements; illustration of vision clear- numbers shall correspond with the tag i.d. num- ance areas; and illustration of all trees on-site bers illustrated on the site plan. Where TDC that are eight inches or more in diameter (in- 34.210(1)(a)(i)(A) through (D) are applicable, eluding size, species, and tag i.d. number). All trees located in the CWS-required easement need trees proposed for removal and all trees pro- not be tagged. posed for preservation shall be indicated on the (b) The application for tree removal shall site plan as such by identifying symbols, except be approved or denied based on the criteria in as follows: TDC 34.230. (A) Where Clean Water Services (c) The approval or denial of an applica- (CWS) has issued a Service Provider Letter that tion to remove trees shall be a part of the Archi- addresses the proposed development currently tectural Review, Subdivision Review, or Partition under consideration, and Review decision. (B) Where CWS has approved (2) Existing Single-Family Dwelling. When a delineation of a "sensitive area" or "vegetated property owner wishes to remove trees, other than corridor" on the subject property, and the exemptions permitted under TDC 34.200(3), (C) Where CWS has required in order to remodel, add to, or replace, an existing dedication of an easement that prohibits en- single-family dwelling, or in order to remodel, croachment into the delineated area, then add to, replace or newly construct, an accessory (D) All trees located within the structure on property developed with an existing CWS-required easement need not be individu- single-family dwelling, the property owner shall ally identified on the Tree Preservation Site Plan apply for a Tree Removal Permit as follows: if the CWS-required easement boundary is (a) An application for a Tree Removal clearly illustrated and identified on the Tree Permit shall be filed with the Community Devel- Preservation Site Plan. opment Director. Application shall be made upon (ii) A tree assessment prepared by forms furnished by the City, and shall be accom- a qualified arborist, including the following in- panied by a nonrefundable fee as established by formation: an analysis as to whether trees pro- City Council resolution. The application for tree posed for preservation can in fact be preserved removal shall include: in light of the development proposed, are (i) A Tree Preservation Site Plan, healthy specimens, and do not pose an imminent drawn to a legible scale, showing the following hazard to persons or property if preserved; an information: a north arrow; property lines; exist- 34 - 12 (Revised 7/07) 11110 41111 Tualatin Development Code 34.210 ing and proposed topographical contour lines; the tag i.d. numbers illustrated on the site plan. existing and proposed structures, impervious Where TDC 34.210(2)(a)(i)(A) through (D) are surfaces, wells, septic systems, and stormwater applicable, trees located in the CWS-required retention/detention facilities; existing and pro- easement need not be tagged. posed utility and access locations/easements; il- (iv) The application shall include a lustration of vision clearance areas. All trees mailing list of all property owners within 300 feet eight inches or more in diameter that are pro- of the property. posed for removal or that are located within 15 (b) The application for a Tree Removal feet of the development envelope shall be indi- Permit shall be approved or denied based on the cated on the site plan (including size, species, criteria in TDC 34.230. and tag i.d. number), except as follows: (c) The approval or denial of a Tree Re- (A) Where Clean Water Services moval Permit application is a land use decision. (CWS) has issued a Service Provider Letter that (3) Other. When a property owner wishes to addresses the proposed development currently remove trees, other than the exemptions permit- under consideration, and ted under TDC 34.200(3), for reasons other than (B) Where CWS has approved those identified in TDC 34.210(1) and (2), the delineation of a "sensitive area" or "vegetated property owner shall apply for a Tree Removal corridor" on the subject property, and Permit as follows: (C) Where CWS has required (a) An application for a Tree Removal Per- dedication of an easement that prohibits en- mit shall be filed with the Community Devel- croachment into the delineated area,then opment Director. Application shall be made (D) All trees located within the upon forms furnished by the City, and shall be CWS-required easement need not be individu- accompanied by a nonrefundable fee as estab- ally identified on the Tree Preservation Site Plan lished by City Council resolution. The applica- if the CWS-required easement boundary is tion for tree removal shall include: clearly illustrated and identified on the Tree (i) A Tree Preservation Site Plan, Preservation Site Plan. drawn to a legible scale, showing the following (ii) A tree assessment prepared by a information: a north arrow; property lines; exist- qualified arborist, including the following infor- ing and proposed topographical contour lines; mation: an analysis as to whether any trees pro- existing and proposed structures, impervious posed for removal could be reasonably preserved surfaces, wells, septic systems, and stormwater in light of the development proposed and health retention/detention facilities; existing and pro- of the tree; a statement addressing the approval posed utility and access locations/easements; il- criteria set forth in TDC 34.230; and arborist's lustration of vision clearance areas; and illustra- signature and contact information. The tree as- tion of all trees on-site that are eight inches or sessment report shall have been prepared and more in diameter (including size, species, and dated no more than one calendar year preceding tag i.d. number). All trees proposed for removal the date the Tree Removal Permit application is and all trees proposed for preservation shall be deemed complete by the City. Where TDC indicated on the site plan as such by identifying 34.210(2)(a)(i)(A) through (D) are applicable, symbols, except as follows: trees located within the CWS-required easement (A) Where Clean Water Services need not be included in the tree assessment report. (CWS) has issued a Service Provider Letter that (iii) All trees eight inches or more in addresses the proposed development currently diameter that are proposed for removal or that are under consideration, and located within 15 feet of the development enve- (B) Where CWS has approved lope shall be physically identified and numbered delineation of a "sensitive area" or "vegetated in the field with an arborist-approved tagging sys- corridor" on the subject property, and tern. The tag i.d. numbers shall correspond with 34- 13 (Revised 7/07) Tualatin Development Code 34.220 (C) Where CWS has required Section 34.220 Fees. dedication of an easement that prohibits en- (1) Architectural Review, Subdivision or croachment into the delineated area, then Partition Review. In accordance with the Archi- (D) All trees located within the tectural Review process, TDC Chapter 73, Sub- CWS-required easement need not be individu- division or Partition Review process, TDC ally identified on the Tree Preservation Site Plan Chapter 36. if the CWS-required easement boundary is (2) Permit. The application shall be accom- clearly illustrated and identified on the Tree panied by a filing fee established by Council Preservation Site Plan. resolution. The filing fee is not refundable, re- (ii) A tree assessment prepared by gardless of whether a permit is granted. All a qualified arborist, including the following in- permits shall be valid for one year from the date formation: an analysis as to whether trees pro- of issue. posed for preservation can in fact be preserved (3) Tree removal in violation of Planning in light of the development proposed, are District Standards. In addition to any applicable healthy specimens, and do not pose an imminent civil violation penalties,any property owner who hazard to persons or property if preserved; an removes, or causes to be removed, one or more analysis as to whether any trees proposed for trees in violation of applicable TDC provisions, removal could be reasonably preserved in light shall pay an enforcement fee and a restoration fee of the development proposed and health of the to the City of Tualatin, as follows: tree; a statement addressing the approval criteria (a) Enforcement Fee: $837.00 per inci- set forth in TDC 34.230; and arborist's signature dent, plus $10 per each tree removed. The City and contact information. The tree assessment Manager may administratively reduce or waive report shall have been prepared and dated no this fee, based upon a demonstration of hardship more than one calendar year preceding the date or other good cause. the Tree Removal Permit application is deemed (b) Restoration Fee: $2,000 per tree removed complete by the City. Where TDC in violation of Planning District Standards. The 34.210(3)(a)(i)(A) through (D) are applicable, City Manager may administratively reduce or trees located within the CWS-required easement waive this fee, based upon a demonstration of need not be included in the tree assessment re- hardship or other good cause. port. [Ord.963-96§4,passed June 24,1996;Ord.1227-07§8,Amended,2/12/07.] (iii) All trees on-site shall be physically identified and numbered in the field Section 34.230 Criteria. with an arborist-approved tagging system. The The Community Development Director shall tag i.d. numbers shall correspond with the tag consider the following criteria when approving, i.d. numbers illustrated on the site plan. Where approving with conditions, or denying a request TDC 34.210(3)(a)(i)(A) through (D) are appli- to cut trees. cable, trees located in the CWS-required ease- (1) An applicant must satisfactorily demon- ment need not be tagged. strate that any of the following criteria are met: (iv) The application shall include a (a) The tree is diseased, and mailing list of all property owners within 300 (i) The disease threatens the feet of the property. structural integrity of the tree; or (b) The application for a Tree Removal (ii) The disease permanently and Permit shall be approved or denied based on the severely diminishes the aesthetic value of the criteria in TDC 34.230. tree; or (c) The approval or denial of a Tree Re- (iii) The continued retention of moval Permit application is a land use decision. the tree could result in other trees being infected [Ord.963-96§4,passed June 24,1996;Ord.1227-07§7,Amended,2/12/07] 34 - 14 (Revised 7/07) . , Tualatin Development Code 34.240 with a disease that threatens either their struc- tural integrity or aesthetic value. (b) The tree represents a hazard which may include but not be limited to: (i) The tree is in danger of falling; (ii) Substantial portions of the tree are in danger of falling. (c) It is necessary to remove the tree to construct proposed improvements based on Ar- chitectural Review approval, building permit, or approval of a Subdivision or Partition Review. (2) If none of the conditions in TDC 34.240(1) are met, the Community Develop- ment Director shall evaluate the condition of each tree based on the following criteria. A tree given a rating of one on a factor will not be re- quired to be retained. FACTOR VARIATION OF CONDITION FACTOR AWARDED Trunk Condition Sound and solid(5) Sections of bark missing(3)Extensive decay and hollow(1) Crown Development Full and balanced (5) Full but unbalanced (3) Unbalanced and lacking a full crown(1) Structure* Sound(5)One major or several minor limbs dead(3) Two or more major limbs dead(1) * For deciduous trees only [Ord.1227-07§9,Amended,2/12/07.] opment Director to explain and justify the action taken. Where no emergency is found to exist, the Section 34.240 Emergencies. cutting or removal of a tree or trees is prohibited. If emergency conditions occur requiring the [Ord.963-96§4,passed June 24,1996;Ord.1227-07§10,Amended,2/12/07.] immediate cutting or removal of trees to avoid danger or hazard to persons or property, an emer- Section 34.250 Notice of Decision. gency permit shall be issued by the Community (1) Architectural Review, Subdivision or Development Director without payment of a fee Partition Review. Notice of decision shall be in and without formal application. If the Community accordance with the Architectural Review, Sub- Development Director is unavailable the property division Review or Partition Review Process in owner may proceed to cut the tree or trees with- Chapters 31 and 36 respectively. If approval is out a permit to the extent necessary to avoid the granted to remove a Heritage Tree, a copy of the immediate danger or hazard. If a tree is cut under decision shall be sent to the chairman of the Tu- this section without filing of an application with alatin Park Advisory Committee. the Community Development Director, the per- (2) Tree Removal Permit. The decision shall son doing so shall report the action to the Corn- be in writing and shall be sent in accordance munity Development Director within two work- with TDC 31.074. If the application for tree ing days, without payment of fee, and shall pro- removal pertains to a Heritage Tree, the decision vide such information and evidence as may be shall also be sent to the chairman of the Tualatin reasonably required by the Community Devel- Park Advisory Committee. 34- 15 (Revised 7/07) Tualatin Development Code 34.260 [Ord.963-96§4,passed June 24,1996;Ord 1096-02§14,Jan 28,2002.](Ord.1096- RML Planning District in a Small Lot Subdivi- 02,Amended,01/28/2002;Ord.1227-07§11, Amended,2/12/07.] sion. (2) There shall be no more than one accessory Section 34.260 Request for Review dwelling unit per lot. (1) Architectural Review, Subdivision or Parti- (3) An accessory dwelling unit shall not exceed tion Review. Requests for review shall be in ac- 50% of the gross floor area (house and garage) of cordance with the Architectural Review, Subdivi- the existing detached single-family dwelling up to sion or Partition review process of TDC 31.076, a maximum of 800 square feet. 36.161,and 36.250,respectively. (4)Neither a garage or a former garage shall be (2) Permit. The decision shall become final 14 converted to an accessory dwelling unit. calendar days after the date the notice of the deci- (5) In addition to the parking spaces required in sion is given, unless request for review of the de- TDC 73.370 for the detached single-family dwell- cision is sought in accordance with TDC 31.076, ing, one paved on-site parking space shall be pro- 36.161, OR 36.250. The request for review shall vided for the accessory dwelling unit and the be submitted on the City form provided for that space shall not be within five feet of a side or rear purpose. The request for review shall be heard by property line. City Council in accordance with TDC 31.076 and (6) The accessory dwelling unit' s front door 31.077. The written decision of the City Council shall not be located on the same street frontage as shall be final. [Ord.963-96§4,passed June 24,1996;Ord 1096-02§I5,Jan the detached single family dwelling' s front door 28,2002.](Ord.1096-02,Amended,01/28/2002) unless the door for the accessory dwelling unit al- ready exists. Section 34.270 Tree Protection During Con- (7) The accessory dwelling unit shall not be struction. sold separate from the single family dwelling or (1) Any tree required to be retained either as a condominium. through Architectural Review, Subdivision or (8) The accessory dwelling unit shall be served Partition Review, or permit process that will be by the same water meter as the single family impacted by nearby construction activities must dwelling. be protected in accordance with the TDC (9) The accessory dwelling unit shall be served 73.250(2). by the same electric meter as the single family dwelling, unless other applicable requirements, Section 34.300 Accessory Dwelling Units such as building codes,prohibit it. The purpose of accessory dwelling units is to: (10) The accessory dwelling unit shall be (1) Provide needed space for elderly family served by the same natural gas meter as the single members or returning adult children; family dwelling, unless other applicable require- (2)Encourage affordable housing units; ments, such as building codes, prohibit it. (3) Allow small households to retain large (11) The accessory dwelling unit shall be con- houses as residences; nected to the single family dwelling by an internal (4) Permit young households to achieve home doorway. ownership; and (12)If the gross floor area of the existing single (5) Encourage living areas that minimally af- family dwelling is to be enlarged when an acces- fect the quality or character of existing neighbor- sory dwelling unit is created, the proposed hoods. enlargement shall not increase the gross floor area of the single family dwelling more than 10% and Section 34.310 Standards it shall be of the same or similar architectural de- (1) An accessory dwelling unit shall be within sign, exterior materials, color and roof slope as a detached single-family dwelling or be in, or the single family dwelling. The enlargement shall partly in, an addition to a detached single-family be reviewed through the Architectural Review dwelling in the RL Planning District or in the 34- 16 (Revised 7/07) ' Jj r1 t . . 6 ' 4' APPLICATIONS Tree Plan 40.90. TREE PLAN [ORD 4348; April 2005] 40.90.05. Purpose Healthy trees and urban forests provide a variety of natural resource and community benefits for the City of Beaverton. Primary among those benefits is the aesthetic contribution to the increasingly urban landscape. Tree resource protection focuses on the aesthetic benefits of the resource. The purpose of a Tree Plan application is to provide a mechanism to regulate pruning, removal, replacement, and mitigation for removal of Protected Trees (Significant Individual Trees, Historic Trees, trees within Significant Groves and Significant Natural Resource Areas (SNRAs)), and Community Trees thus helping to preserve and enhance the sustainability of the City's urban forest. This Section is carried out by the approval criteria listed herein and implements the SNRA, Significant Grove, Significant Individual Tree, and Historic Tree designations as noted or mapped in Comprehensive Plan Volume III. 40.90.10. Applicability. Different types of resources require different levels of protection. No Tree Plan is required for the following actions: 1. Removal of up to four (4) Community Trees, or up to 10% of the number of Community Trees on the site, whichever is greater, within a one (1) calendar year period. Properties one-half acre or less in size developed with a detached dwelling may remove any number of Community Trees. 2. Removal and pruning of any hazardous, dead, or diseased tree when the tree is identified as such by a certified arborist or by the City Arborist and the removal is required by the City. 3. In the event of an emergency requiring tree removal or pruning prior to the City Arborist's determination, if evidence justifies the emergency removal after the fact, then no tree plan is required for removal. 4. Minor pruning, as defined in Chapter 90. 5. Pruning of trees consistent with the Vision Clearance requirements of the Engineering Design Manual.[ORD 4397; July 2006] 6. Pruning of trees by the utility provider for above ground utility power lines following acceptable arboricultural standards and practices. Chapter 40 AP-136 07/07/06 ste APi`II) lya lyS3 Pi` ( • APPLICATIONS Tree Plan 40.90.10. 7. Pruning of trees to maintain the minimum 8 foot clearance above a sidewalk. 8. Removal or pruning of the following nuisance tree species anywhere in the city: Lombardy Poplar (Populus nigra), and birch (Betula sp.). 9. Removal and pruning of the following nuisance tree species in Significant Groves and SNRAs: Norway maple (Acer platanoides), Tree-of-Heaven (Ailanthus altissima), Golden Chain Tree (Laburnum watereri), and English or Common Hawthorne (Crataegus monogyna). 10. Removal of a tree or nonnative vegetation listed as a Nuisance or Prohibited Plant on Metro's Native Plant List or in Clean Water Services' Design and Construction Standards. 11. Within SNRAs and Significant Groves, planting of native vegetation listed on the Metro's Native Plant List or in Clean Water Services' Design and Construction Standards when planted with non- mechanized hand held equipment. 12. Public street and sidewalk improvements within SNRAs or Significant Groves that meet A. or B. and C: A. Improvements within an existing public vehicular right-of-way; or B. Improvements to a public vehicular right-of-way in order to meet functional classification standards, such as widening or half-street improvements; and C. The proposed improvements do not exceed the minimum width standards of the Engineering Design Manual. 13. Trails within SNRAs and Significant Groves meeting all of the following: A. Construction must take place between May 1 and October 30 with hand held equipment; B. Trail widths must not exceed 30 inches and trail grade must not exceed 20 percent; C. Trail construction must leave no scars greater than three inches in diameter on live parts of native plants; and D. Trails must be placed outside the top of bank of any stream, river, or pond, and E. Trails must be 100% pervious. Chapter 40 AP-137 05/19/05 S « APPLICATIONS Tree Plan 40.90.10. 14. Street Trees are covered by the Beaverton Municipal Code and Section 60.15.15.3.G. • 15. Landscape Trees are covered by Section 40.20 Design Review and Section 60.60 Trees and Vegetation. 16. Enhancement activities conducted by a public agency for the sole purpose of improving the ecological health of forest and water resources. 17. Removal of a tree(s) by the City of Beaverton or Clean Water Services that is within five (5) feet of a section of existing sanitary or storm sewer line that is in need of emergency repair and/or maintenance within a SNRA when no reasonable alternative exists. [ORD 4397; July 2006] 40.90.15. Application. There are four (4) Tree Plan applications which are as follows: Tree Plan One, Tree Plan Two, Tree Plan Three, and Commercial Timber Harvest. 1. Tree Plan One. A. Threshold. An application for Tree Plan One shall be required when none of the actions listed in Section 40.90.10 apply and one or more of the following thresholds apply: 1. Major pruning of Protected Trees once within a one year period. 2. Mechanized removal of non-native or invasive vegetation and clearing and grubbing of vegetation within SNRAs, Significant Groves, or Sensitive Areas as defined by Clean Water Services. 3. Mechanized re-planting of trees and shrubs, or both, or restoration planting within SNRAs, Significant Groves, or Sensitive Areas as defined by Clean Water Services. Chapter 40 AP-138 07/07/06 • APPLICATIONS Tree Plan 40.90.15.1.A. 4. Trails greater than 30 inches in width, or trail grade exceeding 20 percent, trail surfaces less than 100% pervious surface, or any combination thereof within SNRAs, Significant Groves, or Sensitive Areas as defined by Clean Water Services that do not result in tree removal. B. Procedure Type. The Type 1 procedure, as described in Section 50.35 of this Code, shall apply to an application for Tree Plan One. The decision making authority is the Director. C. Approval Criteria. In order to approve a Tree Plan One application, the decision making authority shall make findings of fact based on evidence provided by the applicant demonstrating that all the following criteria are satisfied: 1. The proposal satisfies the threshold requirements for a Tree Plan One application. 2. All City application fees related to the application under consideration by the decision making authority have been submitted. 3. The proposal contains all applicable application submittal requirements as specified in Section 50.25.1 of the Development Code. 4. If applicable, pruning is necessary to improve tree health or to eliminate conflicts with vehicles or structures which includes, but is not limited to, underground utilities and street improvements. 5. If applicable, the removal of vegetation or clearing and grubbing is necessary to accommodate physical development in the area in which the removal is proposed. 6. Applications and documents related to the request, which will require further City approval, shall be submitted to the City in the proper sequence. Chapter 40 AP-139 05/19/05 lb APPLICATIONS Tree Plan 40.90.15.1. D. Submission Requirements. An application for a Tree Plan One shall be made by the owner of the subject property, or the owner's authorized agent, on a form provided by the Director and shall be filed with the Director. The Tree Plan One application shall be accompanied by the information required by the application form, and by Section 50.25 (Application Completeness), and any other information identified through a Pre-Application Conference. E. Conditions of Approval. The decision making authority may impose conditions on the approval of a Tree Plan One application to ensure compliance with the approval criteria. In addition to the approval criteria, the decision making authority may also impose other conditions of approval to ensure that the proposed tree work meets all requirements listed in Section 60.60 (Trees and Vegetation). F. Appeal of a Decision. Refer to Section 50.60. G. Expiration of a Decision. Refer to Section 50.90. H. Extension of a Decision. Previous approval of Tree Plan One proposal shall not be extended. Chapter 40 AP-140 05/19/05 • S APPLICATIONS Tree Plan 40.90.15. 2. Tree Plan Two A. Threshold. An application for Tree Plan Two shall be required when none of the actions listed in Section 40.90.10 apply, none of the thresholds listed in Section 40.90.15.1 apply, and one or more of the following thresholds apply: 1. Removal of five (5) or more Community Trees, or more than 10% of the number of Community Trees on the site, whichever is greater, within a one (1) calendar year period, except as allowed in 40.90.10.1. 2. Multiple Use Zoning District: Removal of up to and including 85% of the total DBH of non-exempt surveyed tree(s) within a SNRA or Significant Grove area that is found on the project site. 3. Commercial, Residential, or Industrial Zoning District: Removal of up to and including 75% of the total DBH of non-exempt surveyed tree(s) within a SNRA or Significant Grove area that is found on the project site. 4. Removal of a Significant Individual Tree(s). B. Procedure Type. The Type 2 procedure, as described in Section 50.40 of this Code, shall apply to an application for Tree Plan Two. The decision making authority is the Director. C. Approval Criteria. In order to approve a Tree Plan Two application, the decision making authority shall make findings of fact based on evidence provided by the applicant demonstrating that all the following criteria are satisfied: 1. The proposal satisfies the threshold requirements for a Tree Plan Two application. 2. All City application fees related to the application under consideration by the decision making authority have been submitted. Chapter 40 AP-141 5/19/05 Auk- • APPLICATIONS Tree Plan 40.90.15.2.C. 3. If applicable, removal of any tree is necessary to observe good forestry practices according to recognized American National Standards Institute (ANSI) A300-1995 standards and International Society of Arborists (ISA) standards on the subject. 4. If applicable, removal of any tree is necessary to accommodate physical development where no reasonable alternative exists. 5. If applicable, removal of any tree is necessary because it has become a nuisance by virtue of damage to property or improvements, either public or private, on the subject site or adjacent sites. 6. If applicable, removal is necessary to accomplish public purposes, such as installation of public utilities, street widening, and similar needs, where no reasonable alternative exists without significantly increasing public costs or reducing safety. 7. If applicable, removal of any tree is necessary to enhance the health of the tree, grove, SNRA, or adjacent trees to eliminate conflicts with structures or vehicles. 8. If applicable, removal of a tree(s) within a SNRA or Significant Grove will not result in a reversal of the original determination that the SNRA or Significant Grove is significant based on criteria used in making the original significance determination. 9. If applicable, removal of a tree(s) within a SNRA or Significant Grove will not result in the remaining trees posing a safety hazard due to the effects of windthrow. Chapter 40 AP-142 01/12/08 S APPLICATIONS Tree Plan 40.90.15.2.C. 10. The proposal is consistent with all applicable provisions of Section. 60.60 Trees and Vegetation and Section 60.67 Significant Natural Resources. 11. Grading and contouring of the site is designed to accommodate the proposed use and to mitigate adverse effect(s) on neighboring properties, public right-of-way, surface drainage, water storage facilities, and the public storm drainage system. 12. The proposal contains all applicable application submittal requirements as specified in Section 50.25.1 of the Development Code. 13. Applications and documents related to the request, which will require further City approval, shall be submitted to ' the City in the proper sequence. [ORD 4404; September 2006] [ORD 4462; December 2007] D. Submission Requirements. An application for a Tree Plan Two shall be made by the owner of the subject property, or the owner's authorized agent, on a form provided by the Director and shall be filed with the Director. The Tree Plan Two application shall be accompanied by the information required by the application form, and by Section 50.25 (Application Completeness), and any other information identified through a Pre-Application Conference. E. Conditions of Approval. The decision making authority may impose conditions on the approval of a Tree Plan Two application to ensure compliance with the approval criteria. In addition to the approval criteria, the decision making authority may also impose other conditions of approval to ensure that the proposed tree work meets all requirements listed in Section 60.60 (Trees and Vegetation). F. Appeal of a Decision. Refer to Section 50.65. G. Expiration of a Decision. Refer to Section 50.90. Chapter 40 AP-143 01/12/08 • APPLICATIONS Tree Plan 40.90.15.2. H. Extension of a Decision. Previous approval of Tree Plan Two proposal shall not be extended. Chapter 40 AP-144 05/19/05 1110 S APPLICATIONS Tree Plan 40.90.15. 3. Tree Plan Three A. Threshold. An application for Tree Plan Three shall be required when none of the actions listed in Section 40.90.10 or none of the thresholds listed in Section 40.90.15.1 or Section 40.90.15.2 apply and one or more of the following thresholds apply: 1. Multiple Use Zoning Districts: Removal of greater than 85% of the total DBH of non-exempt surveyed trees within a SNRA or Significant Grove area that is found on the project site. 2. Residential, Commercial, and Industrial Zoning Districts: Removal of greater than 75% of the total DBH of non- exempt surveyed trees within a SNRA or Significant Grove area that is found on the project site. 3. Removal of individual Historic Trees. 4. Commercial timber harvest of trees which fail to meet the approval criterion specified in Section 40.90.15.4.C.4. B. Procedure Type. The Type 3 procedure, as described in Section 50.45 of this Code, shall apply to an application for Tree Plan Three. Upon determination by the Director, the decision making authority shall be either the Planning Commission or the Board of Design Review. The determination will be based upon the proposal. C. Approval Criteria. In order to approve a Tree Plan Three application, the decision making authority shall make findings of fact based on evidence provided by the applicant demonstrating that all the following criteria are satisfied: 1. The proposal satisfies the threshold requirements for a Tree Plan Three application. 2. All City application fees related to the application under consideration by the decision making authority have been submitted. Chapter 40 AP-145 05/19/05 11111/ APPLICATIONS Tree Plan 40.90.15.3.C. 3. If applicable, removal of a diseased tree or a tree is necessary because the tree has been weakened by age, storm, fire, or other condition. 4. If applicable, removal is necessary to enhance the health of the grove or adjacent tree(s) to reduce maintenance, or to eliminate conflicts with structures or vehicles. 5. If applicable, removal is necessary to observe good forestry practices according to recognized American National Standards Institute (ANSI) A300-1995 standards and International Society of Arborists (ISA) standards on the subject. 6. If applicable, removal is the minimum necessary to accommodate physical development because no reasonable alternative exists for the development at another location on the site and variances to setback provisions of the Development Code will not allow the tree(s) to be saved or will cause other undesirable circumstances on the site or adjacent properties. 7. If applicable, removal is necessary because a tree has become a nuisance by virtue of damage to personal property or improvements, either public or private, on the subject site or on an adjacent site. 8. If applicable, removal is necessary to accomplish a public purpose, such as installation of public utilities, street widening, and similar needs where no reasonable alternative exists without significantly increasing public costs or reducing safety. 9. If applicable, removal of a tree(s) within a SNRA or Significant Grove will not result in the remaining trees posing a safety hazard due to the effects of windthrow. 10. If applicable, removal of tree or trees within a Significant Grove will not reduce the size of the grove to a point where the remaining trees may pose a safety hazard due to the effects of windthrow. Chapter 40 AP-146 05/19/05 APPLICATIONS Tree Plan 40.90.15.3.C. 11. If applicable, removal of a tree within a Historic Grove will not substantially reduce the significance of the grove in terms of its original designation on the list of Historic Groves. 12. The proposal is consistent with all applicable provisions of Section 60.60 Trees and Vegetation and Section 60.67 Significant Natural Resources. 13. Grading and contouring of the site is designed to accommodate the proposed use and to mitigate adverse effect(s) on neighboring properties, public right-of-way, surface drainage, water storage facilities, and the public storm drainage system. 14. The proposal contains all applicable application submittal requirements as specified in Section 50.25.1 of the Development Code. 15. Applications and documents related to the request, which will require further City approval, shall be submitted to the City in the proper sequence. [ORD 4404; September 2006] D. Submission Requirements. An application for a Tree Plan Three shall be made by the owner of the subject property, or the owner's authorized agent, on a form provided by the Director and shall be filed with the Director. The Tree Plan Three application shall be accompanied by the information required by the application form, and by Section 50.25 (Application Completeness), any other information identified through a Pre- Application Conference, and by a report from a qualified professional. E. Conditions of Approval. The decision making authority may impose conditions on the approval of a Tree Plan Three application to ensure compliance with the approval criteria. In addition to the approval criteria, the decision making authority may also impose other conditions of approval to ensure that the proposed tree work meets all requirements listed in Section 60.60 (Trees and Vegetation). Chapter 40 AP-147 10/18/06 APPLICATIONS Tree Plan 40.90.15.3. F. Compliance with Approval. All conditions imposed on an approved Tree Plan Three shall be implemented prior to the removal, pruning, or planting of tree unless otherwise noted in the approval. Compliance with the conditions of approval shall be met as long as the tree exist unless otherwise specified or until modified through a City approval process. G. Appeal of a Decision. Refer to Section 50.70. H. Expiration of a Decision. Refer to Section 50.90. I. Extension of a Decision. Previous approval of Tree Plan Three proposal shall not be extended. Chapter 40 AP- 148 01/01/05 111110 4110 APPLICATIONS Tree Plan 40.90.15. 4. Commercial Timber Harvest. A. Threshold. An application for Commercial Timber Harvest shall be required when none of the actions listed in Section 40.90.10 apply and following threshold applies: 1. Commercial harvest of timber on Tax Lot Identification Nos. 1S 132CC 11300, 1S132CD09000, and 1S132CD09100. B. Procedure Type. The Type 1 procedure, as described in Section 50.35 of this Code, shall apply to an application for Commercial Timber Harvest. The decision making authority is the Director. C. Approval Criteria. In order to approve a Commercial Timber Harvest application, the decision making authority shall make findings of fact based on evidence provided by the applicant demonstrating that all the following criteria are satisfied: 1. The proposal satisfies the threshold requirement for a Commercial Timber Harvest application. 2. All City application fees related to the application under consideration by the decision making authority have been submitted. 3. The proposal contains all applicable application submittal requirements as specified in Section 50.25.1 of the Development Code. 4. The harvest of timber will leave no less than ten (10) living, healthy, and upright trees per acre each of which measure at least ten (10) inches in diameter at four (4) feet above grade. 5. Applications and documents related to the request, which will require further City approval, shall be submitted to the City in the proper sequence. Chapter 40 AP- 149 01/01/05 APPLICATIONS Tree Plan 40.90.15.4. D. Submission Requirements. An application for a Commercial Timber Harvest shall be made by the owner of the subject property, or the owner's authorized agent, on a form provided by the Director and shall be filed with the Director. The Commercial Timber Harvest application shall be accompanied by the information required by the application form, and by Section 50.25 (Application Completeness), and any other information identified through a Pre-Application Conference. E. Appeal of a Decision. Refer to Section 50.60. F. Expiration of a Decision. Refer to Section 50.90. G. Extension of a Decision. Previous approval of Commercial Timber Harvest proposal shall not be extended. Chapter 40 AP- 150 01/01/05 • WILSONVILLE CODE PLANNING AND LAND DEVELOPMENT CHAPTER 4-SECTIONS 4.600-4.640.20 TREE PRESERVATION AND PROTECTION INDEX SECTION TITLE PAGE No. 4.600 PURPOSE AND DECLARATION H- 1 4.600.20 APPLICABILITY OF SUBCHAPTER .. H-2 4.600.30 TREE REMOVAL PERMIT REQUIRED H-2 4.600.40 EXCEPTIONS H-2 4.600.50 APPLICATION FOR TREE REMOVAL PERMIT H-3 4.610.00 APPLICATION REVIEW PROCEDURE H-4 STANDARDS FOR TREE REMOVAL,RELOCATION 4.610.10 OR REPLACEMENT H-5 4.610.20 TYPE A PERMIT H-7 4.610.30 TYPE B PERMIT H-8 4.610.40 TYPE C PERMIT H- 10 4.610.50 TYPED PERMIT H- 11 4.620.00 TREE LOCATION,MITIGATION,OR REPLACEMENT H- 12 4.620.10 TREE PROTECTION DURING CONSTRUCTION H- 13 4.620.20 MAINTENANCE AND PROTECTION STANDARDS H- 14 4.630.00 APPEAL H- 15 4.630.10 DISPLAY OF PERMIT; INSPECTION H- 15 4.630.20 VARIANCE FOR HARDSHIP H- 15 4.630.30 SEVERABILITY .. H- 15 4.640.00 VIOLATION;ENFORCEMENT H- 15 4.640.10 ALTERNATIVE ENFORCEMENT H- 16 4.640.20 RESPONSIBILITY FOR ENFORCEMENT H- 17 CHAPTER 4-PLANNING AND LAND DEVELOPMENT PAGE H-1 TREE PRESERVATION AND PROTECTION INDEX UPDATED JANUARY 2007 Oak TREE PRESERVATION AND PROTECTION Section 4.600. Purpose and Declaration (.01) Rapid growth, the spread of development, need for water and increasing demands upon natural resources have the effect of encroaching upon, despoiling, or eliminating many of the trees, other forms of vegetation, and natural resources and processes associated therewith which, if preserved and maintained in an undisturbed and natural condition, constitute important physical, aesthetic, recreational and economic assets to existing and future residents of the City of Wilsonville. (.02) Specifically,the City Council finds that: A. Woodland growth protects public health through the absorption of air pollutants and contamination,through the reduction of excessive noise and mental and physical damage related to noise pollution, and through its cooling effect in the summer months, and insulating effects in winter; B. Woodlands provide for public safety through the prevention of erosion, siltation, and flooding; and C. Trees make a positive contribution to water quality and water supply by absorbing rainfall, controlling surface water run-off, and filtering and assisting in ground water recharge; and D. Trees and woodland growth are an essential component of the general welfare of the City of Wilsonville by producing play areas for children and natural beauty, recreation for all ages and an irreplaceable heritage for existing and future City residents. (.03) Therefore,the purposes of this subchapter are: A. To preserve Significant Resource Overlay Zone areas, recognizing that development can and will occur. B. To provide for the protection, preservation, proper maintenance and use of trees and woodlands in order to protect natural habitat and prevent erosion. C. To protect trees and other wooded areas for their economic contribution to local property values when preserved, and for their natural beauty and ecological or historical significance. D. To protect water quality, control surface water run-off, and protect ground water recharge. E. To reflect the public concern for these natural resources in the interest of health, safety and general welfare of Wilsonville residents. F. To encourage replanting where trees are removed. CHAPTER 4-PLANNING AND LAND DEVELOPMENT PAGE H- 1 TREE PRESERVATION AND PROTECTION UPDATED JANUARY 2007 • 11/11 Section 4.600.20. Applicability of Subchapter Section 4.600.20. Applicability of Subchapter (.01) The provisions of this subchapter apply to the United States and the State of Oregon, and to their agencies and subdivisions, including the City of Wilsonville, and to the employees and agents thereof. (.02) By this subchapter,the City of Wilsonville regulates forest practices on all lands located within its urban growth boundary, as provided by ORS 527.722. (.03) The provisions of this subchapter apply to all land within the City limits, including property designated as a Significant Resource Overlay Zone or other areas or trees designated as protected by the Comprehensive Plan, City zoning map, or any other law or ordinance; except that any tree activities in the Willamette River Greenway that are regulated by the provisions of WC 4.500 - 4.514 and requiring a conditional use permit shall be reviewed by the DRB under the application and review procedures set forth for Tree Removal Permits. Section 4.600.30. Tree Removal Permit Required (.01) Requirement Established. No person shall remove any tree without first obtaining a Tree Removal Permit(TRP) as required by this subchapter. (.02) Tree Removal Permits will be reviewed according to the standards provided for in this subchapter, in addition to all other applicable requirements of Chapter 4. (.03) Although tree activities in the Willamette River Greenway are governed by WC 4.500 - 4.514, the application materials required to apply for a conditional use shall be the same as those required for a Type B or C permit under this subchapter, along with any additional materials that may be required by the Planning Department. An application for a Tree Removal Permit under this section shall be reviewed by the Development Review Board. Section 4.600.40. Exceptions (.01) Exception from requirement.Notwithstanding the requirement of WC 4.600.30(1), the following activities are allowed without a Tree Removal Permit, unless otherwise prohibited: A. Agriculture, Commercial Tree Farm or Orchard. Tree removal or transplanting occurring during use of land for commercial purposes for agriculture, orchard(s), or tree farm(s), such as Christmas tree production. B. Emergencies. Actions made necessary by an emergency, such as tornado, windstorm, flood, freeze, utility damage or other like disasters, in order to prevent imminent injury or damage to persons or property or restore order and it is impractical due to circumstances to apply for a permit. CHAPTER 4—PLANNING AND LAND DEVELOPMENT PAGE H-2 TREE PRESERVATION AND PROTECTION UPDATED JANUARY 2007 • • Section 4.600.50. Application For Tree Removal Permit 1. When an emergency has occurred, a Tree Removal Permit must be applied for within thirty (30) days following the emergency tree removal under the application procedures established in this subchapter. 2. In addition to complying with the permit application requirements of this subchapter, an applicant shall provide a photograph of any tree removed and a brief description of the conditions that necessitated emergency removal. Such photograph shall be supplied within seven days of application for a permit. Based on good cause shown arising out of the emergency, the Planning Director may waive any or all requirements of this section. 3. Where a Type A Permit is granted for emergency tree removal, the permitee is encouraged to apply to the City Tree Fund for replanting assistance. C. City utility or road work in utility or road easements, in utility or road right-of-ways, or in public lands. However, any trees removed in the course of utility work shall be mitigated in accordance with the standards of this subchapter. D. Nuisance abatement. The City is not required to apply for a Tree Removal Permit to undertake nuisance abatement as provided in WC 6.200 et seq. However, the owner of the property subject to nuisance abatement is subject to all the provisions of this subchapter in addition to the requirements of WC 6.200 et seq. E. The removal of filbert trees is exempt from the requirements of this subchapter. F. The Charbonneau District, including its golf course, is exempt from the requirements of WC 4.600.30(1) on the basis that by and through the current CC&R's of the Charbonneau Country Club, the homeowners' association complies with all requirements of WC 4.610.30(1)(C)(1). This exception has been based upon the Tree Maintenance and Protection Plan that has been submitted by the Charbonneau Country Club and approved by the Planning Director. Tree removal activities remain subject to all applicable standards of this subchapter. Unless authorized by the City, this exception does not include tree removal upon any public easements or public property within the district. In the event that the CC&R's are changed relative to the effect of the Tree Maintenance and Protection Plan, then the Planning Director shall review whether such effect is material, whether it can be mitigated, and if not, may disallow the exemption. Section 4.600.50. Application For Tree Removal Permit (.01) Application for Permit. A person seeking to remove one or more trees shall apply to the Director for a Tree Removal Permit for a Type A, B, C, or D permit, depending on the applicable standards as provided in this subchapter. (A)An application for a tree removal permit that does not meet the requirements of Type A may be submitted as a Type B application. (.02) Time of Application. Application for a Tree Removal Permit shall be made before removing or transplanting trees, except in emergency situations as provided in WC 4.600.40 (1)(B) above. Where the site is proposed for development necessitating site CHAPTER 4—PLANNING AND LAND DEVELOPMENT PAGE H-3 TREE PRESERVATION AND PROTECTION UPDATED JANUARY 2007 • • Section 4.610.00. Application Review Procedure plan or plat review, application for a Tree Removal Permit shall be made as part of the site development application as specified in this subchapter. (.03) Fees. A person applying for a Tree Removal Permit shall pay a non-refundable application fee; as established by resolution of the City Council. A. By submission of an application, the applicant shall be deemed to have authorized City representatives to have access to applicant's property as may be needed to verify the information provided, to observe site conditions, and if a permit is granted,to verify that terms and conditions of the permit are followed. Section 4.610.00. Application Review Procedure (.01) The permit applicant shall provide complete information as required by this subchapter in order for the City to review the application. (.02) Departmental Review. All applications for Tree Removal Permits must be deemed complete by the City Planning Department before being accepted for review. When all required information has been supplied, the Planning Department will verify whether-the application is complete. Upon request of either the applicant or the City,the City may conduct a field inspection or review meeting. City departments involved in the review shall submit their report and recommendations to the Planning Director who shall forward them to the appropriate reviewing authority. (.03) Reviewing Authority. A. Type A or B. Where site plan review or plat approval by the Development Review Board is not required by City ordinance, the grant or denial of the Tree Removal Permit application shall be the responsibility of the Planning Director. The Planning Director has the authority to refer a Type B permit application to the DRB under the Class II administrative review procedures of this Chapter. The decision to grant or deny a permit shall be governed by the applicable review standards enumerated in WC 4.610.10 B. Type C. Where the site is proposed for development necessitating site plan review or plat approval by the Development Review Board, the Development Review Board shall be responsible for granting or denying the application for a Tree Removal Permit, and that decision may be subject to affirmance, reversal or modification by the City Council, if subsequently reviewed by the Council. C. Type D. Type D permit applications shall be subject to the standards and procedures of Class I administrative review and shall be reviewed for compliance with the Oregon Forest Practice Rules and Statutes. The Planning Director shall make the decision to grant or deny an application for a Type D permit. D. Review period for complete applications. Type A permit applications shall be reviewed within 10 (ten)working days. Type B permit applications shall be reviewed by the Planning Director within thirty (30) calendar days, except that the DRB shall review any referred application within sixty (60)calendar days. Type C permit applications shall be reviewed within the time frame established CHAPTER 4-PLANNING AND LAND DEVELOPMENT PAGE H-4 TREE PRESERVATION AND PROTECTION UPDATED JANUARY 2007 eik Section 4.610.10. Standards For Tree Removal, Relocation Or Replacement by this Chapter. Type D permit applications shall be reviewed within 15 calendar days. (.04) Notice. Before the granting of a Type C Tree Removal Permit, notice of the application shall be sent by regular mail to all owners within two hundred fifty feet (250') of the property where the trees are located as provided for in WC 4.010. The notice shall indicate where the application may be inspected and when a public hearing on the application will be held. (.05) Denial of Tree Removal Permit. Whenever an application for a Tree Removal Permit is denied,the permit applicant shall be notified, in writing,of the reasons for denial. (.06) Grant of a Tree Removal Permit. Whenever an application for a Type B, C or D Tree Removal Permit is granted, the reviewing authority shall: A. Conditions. Attach to the granting of the permit any reasonable conditions considered necessary by the reviewing authority including, but not limited to, the recording of any plan or agreement approved under this subchapter, to ensure that the intent of this Chapter will be fulfilled and to minimize damage to, encroachment on or interference with natural resources and processes within wooded areas; B. Completion of Operations. Fix a reasonable time to complete tree removal operations; and C. Security. Require the Type C permit grantee to file with the City a cash or corporate surety bond or irrevocable bank letter of credit in an amount determined necessary by the City to ensure compliance with Tree Removal Permit conditions and this Chapter. 1. This requirement may be waived by the Planning Director if the tree removal must be completed before a plat is recorded, and the applicant has complied with WC 4.264(1) of this Code. Section 4.610.10. Standards For Tree Removal, Relocation Or Replacement (.01) Except where an application is exempt, or where otherwise noted, the following standards shall govern the review of an application for a Type A, B, C or D Tree Removal Permit: A. Standard for the Significant Resource Overlay Zone. The standard for tree removal in the Significant Resource Overlay Zone shall be that removal or transplanting of any tree is not inconsistent with the purposes of this Chapter. B. Preservation and Conservation. No development application shall be denied solely because trees grow on the site. Nevertheless, tree preservation and conservation as a design principle shall be equal in concern and importance to other design principles. C. Developmental Alternatives. Preservation and conservation of wooded areas and trees shall be given careful consideration when there are feasible and reasonable CHAPTER 4—PLANNING AND LAND DEVELOPMENT PAGE H-5 TREE PRESERVATION AND PROTECTION UPDATED JANUARY 2007 eft 416 Section 4.610.10. Standards For Tree Removal, Relocation Or Replacement location alternatives and design options on-site for proposed buildings, structures or other site improvements. D. Land Clearing. Where the proposed activity requires land clearing,the clearing shall be limited to designated street rights-of-way and areas necessary for the construction of buildings, structures or other site improvements. E. Residential Development. Where the proposed activity involves residential development, residential units shall,to the extent reasonably feasible, be designed and constructed to blend into the natural setting of the landscape. F. Compliance With Statutes and Ordinances. The proposed activity shall comply with all applicable statutes and ordinances. G. Relocation or Replacement. The proposed activity shall include necessary provisions for tree relocation or replacement, in accordance with WC 4.620.00, and the protection of those trees that are not to be removed, in accordance with WC 4.620.10. H. Limitation. Tree removal or transplanting shall be limited to instances where the applicant has provided completed information as required by this Chapter and the reviewing authority determines that removal or transplanting is necessary based on the criteria of this subsection. 1. Necessary For Construction. Where the applicant has shown to the satisfaction of the reviewing authority that removal or transplanting is necessary for the construction of a building, structure or other site improvement, and that there is no feasible and reasonable location alternative or design option on-site for a proposed building, structure or other site improvement; or a tree is located too close to existing or proposed buildings or structures, or creates unsafe vision clearance. 2. Disease, Damage, or Nuisance, or Hazard. Where the tree is diseased, damaged, or in danger of falling, or presents a hazard as defined in WC 6.208, or is a nuisance as defined in WC 6.200 et seq., or creates unsafe vision clearance as defined in this Code. (a) As a condition of approval of Stage II development, filbert trees must be removed if they are no longer commercially grown or maintained. 3. Interference. Where the tree interferes with the healthy growth of other trees, existing utility service or drainage, or utility work in a previously dedicated right-of-way, and it is not feasible to preserve the tree on site. 4. Other. Where the applicant shows that tree removal or transplanting is reasonable under the circumstances. I. Additional Standards for Type C Permits. 1. Tree survey. For all site development applications reviewed under the provisions of Chapter 4 Planning and Zoning,the developer shall provide a Tree Survey before site development as required by WC 4.610.40, and provide a Tree Maintenance and Protection plan, unless specifically exempted by the Planning Director or DRB, prior to initiating site development. CHAPTER 4-PLANNING AND LAND DEVELOPMENT PAGE H-6 TREE PRESERVATION AND PROTECTION UPDATED JANUARY 2007 II kb 41110 Section 4.610.20. Type A Permit 2. Platted Subdivisions. The recording of a final subdivision plat whose preliminary plat has been reviewed and approved after the effective date of Ordinance 464 by the City and that conforms with this subchapter shall include a Tree Survey and Maintenance and Protection Plan, as required by this subchapter, along with all other conditions of approval. 3. Utilities. The City Engineer shall cause utilities to be located and placed wherever reasonably possible to avoid adverse environmental consequences given the circumstances of existing locations, costs of placement and extensions, the public welfare, terrain, and preservation of natural resources. Mitigation and/or replacement of any removed trees shall be in accordance with the standards of this subchapter. J. Exemption. Type D permit applications shall be exempt from review under standards D, E, H and I of this subsection. Section 4.610.20. Type A Permit (.01) Approval to remove one to three trees within a twelve (12)month period on any property shall be granted if the application meets all of the following requirements: A. The trees subject to removal are not located in the Significant Resource Overlay Zone; and B. The trees subject to removal are not located in the Willamette River Greenway; C. The trees subject to removal are not Heritage Trees. D. The trees subject to removal are not street trees; E. The trees subject to removal must not be retained as a condition of site development approval. (.02) Where the City determines that an application to remove a tree or trees does not meet the criteria of 1(A) - (E) of this section, then the application may be submitted as a Type B application. (.03) An application for a Type A Permit shall contain the following information: A. A brief statement explaining why tree removal is necessary. B. A brief description of the trees proposed for removal or relocation, including common name, approximate height, diameter(or circumference) at four and one- half(41/2) feet d.b.h. above grade, and apparent health. C. A drawing that depicts where trees are located and provides sufficient detail to indicate to a City reviewer where removal or relocation will occur. D. The name of the person who will perform the removal or transplanting, if known, and the approximate date of removal. E. Additional supporting information which the Planning Department requests, in order to determine whether an application meets the requirements of this section. CHAPTER 4-PLANNING AND LAND DEVELOPMENT PAGE H-7 TREE PRESERVATION AND PROTECTION UPDATED JANUARY 2007 114110 • Section 4.610.30. Type B Permit (.04) The City shall accept a Type A permit application under the following procedure: A. Review Period. Completed Type A permit applications shall be reviewed within ten (10)working days. The grant or denial of the Tree Removal Permit application shall be the responsibility of the Planning Director. B. The Type A permit application shall be reviewed under the standards of Class I administrative review and applicable requirements of this subchapter. Section 4.610.30. Type B Permit (.01) An applicant may apply for a Type B Permit based on the following criteria: A. The applicant proposes to remove four(4) or more trees on property not subject to site development review; or B. The applicant proposes major or minor changes in a condition or conditions of a development permit previously approved under the provisions of this Chapter; or C. The applicant is a homeowners' association that proposes to remove trees on property previously approved by the City for development. 1. A Tree Maintenance and Protection Plan submitted for approval-under(1)(C) of this subsection shall meet the following criteria: a. The Development Review Board shall review the Covenants, Conditions and Restrictions (CC&R's)to verify that the homeowners' association is designated and authorized by the CC&R's to review tree maintenance, removal, and planting requests. b. A request for tree removal shall indicate the reason for the request, as well as the location, size, species and health of tree. c. Decisions on requests and actions taken are documented and retained and shall be made available to the City's Development Review Board upon request. d. A replanting program is established and reviewed on an annual basis. Where such a program is approved, mitigation under this Chapter shall not be required. 2. Any permit approved under this subsection shall require that all maintenance, planting, and removal be performed to the standards established in this subchapter and in Wilsonville Code. 3. Failure of a homeowners' association to meet the requirements of this subsection shall be grounds for revocation of a Type B permit. (.02) Application for the Type B permit shall consist of the information required for a Type A Permit, as provided in WC 4.610.20, and a Tree Maintenance and Protection Plan, which shall contain the following information: A. An accurate topographical survey, subdivision map or plat map, that bears the signature of a qualified, registered surveyor or engineer, and which shows: CHAPTER 4—PLANNING AND LAND DEVELOPMENT PAGE H-8 TREE PRESERVATION AND PROTECTION UPDATED JANUARY 2007 • Section 4.610.30. Type B Permit 1. the shape and dimensions of the property, and the location of any existing and proposed structure or improvement, 2. the location of the trees on the site, and indicating species, approximate height, d.b.h. diameter, canopy spread and common name, 3. the location of existing and proposed easements,as well as setbacks required by existing zoning requirements. B In lieu of the map or survey, an applicant proposing to remove trees under(1)(B) or(1)(C) of this subsection may provide aerial photographs with overlays, GIS documentation, or maps approved by the Planning Director, and clearly indicating the information required by (2)(A)of this subsection. C. Arborist Report. The report shall describe the health and condition of all trees subject to removal or transplanting, and shall include information on species, common name, diameter at four and one-half(4 1/2) feet d.b.h., approximately height and age. D. Tree Protection. Unless specifically exempted by the Planning Director, a statement describing how trees intended to remain will be protected during tree removal, and how remaining trees will be maintained. E. Tree Identification. Unless specifically exempted by the Planning Director, a statement that any trees proposed for removal will be identified by a method obvious to a site inspector, such as tagging, painting, or flagging, in addition to clear identification on construction documents. F. Replacement Trees. A description of the proposed tree replacement program with a detailed explanation including the number, size, and species, and cost. In lieu of replacing trees, the applicant may propose to pay into the City Tree Fund an amount equivalent to the value of the replacement trees after installation, as provided in this subchapter. G. Covenants, Conditions and Restrictions (CC&R's). Where the applicant is proposing to remove trees on common areas,the applicant shall provide a copy of the applicable CC&R's, including any landscaping provisions. H. Waiver of documentation. The Planning Director may waive an application document where the required information has already been made available to the City, or where the Director determines the information is not necessary to review the application. (.03) Review. A. The Type B permit application, including major or minor changes in a condition or conditions of a development permit previously approved under the provisions of this chapter, shall be reviewed under the standards of Class II administrative review and the requirements of this subchapter. Where site plan review or plat approval by the Development Review Board is not required by City ordinance, the grant or denial of the Type B permit shall be the responsibility of the Planning Director. The Planning Director has the authority to refer a Type B permit CHAPTER 4—PLANNING AND LAND DEVELOPMENT PAGE H-9 TREE PRESERVATION AND PROTECTION UPDATED JANUARY 2007 Section 4.610.40. Type C Permit application to DRB under the Class II administrative review procedures of this Chapter. B. The DRB shall review and render a decision on any application referred by the Planning Director within sixty (60) days. The Planning Director shall review a completed permit application within thirty (30)days. C. The decision to grant or deny a Type B permit shall be governed by the standards established in WC 4.610.10. Section 4.610.40. Type C Permit (.01) Approval to remove any trees on property as part of a site development application may be granted in a Type C permit. A Type C permit application shall be reviewed by the standards of this subchapter and all applicable review criteria of Chapter 4. Application of the standards of this section shall not result in a reduction of square footage or loss of density, but may require an applicant to modify plans to allow for buildings of greater height. If an applicant proposes to remove trees and submits a landscaping plan as part of a site development application,an application for a Tree Removal Permit shall be included. The Tree Removal Permit application will be reviewed in the Stage II development review process, and any plan changes made that affect trees after Stage II review of a development application shall be subject to review by DRB. Where mitigation is required for tree removal, such mitigation may be considered as part of the landscaping requirements as set forth in this Chapter. Tree removal shall not commence until approval of the required Stage II application and the expiration of the appeal period following that decision. If a decision approving a Type C permit is appealed, no trees shall be removed until the appeal has been settled. (.02) The applicant must provide ten copies of a Tree Maintenance and Protection Plan completed by an arborist that contains the following information: A. A plan, including a topographical survey bearing the stamp and signature of a qualified, registered professional containing all the following information: 1. Property Dimensions. The shape and dimensions of the property, and the location of any existing and proposed structure or improvement. 2. Tree survey. The survey must include: a. An accurate drawing of the site based on accurate survey techniques at a minimum scale of one inch (1") equals one hundred feet (100') and which provides a)the location of all trees having six inches (6") or greater d.b.h. likely to be impacted, b)the spread of canopy of those trees, (c)the common and botanical name of those trees, and d)the approximate location and name of any other trees on the property. b. A description of the health and condition of all trees likely to be impacted on the site property. In addition, for trees in a present or proposed public street or road right-of-way that are described as unhealthy,the description shall include recommended actions to restore CHAPTER 4-PLANNING AND LAND DEVELOPMENT PAGE H- 10 TREE PRESERVATION AND PROTECTION UPDATED JANUARY 2007 eish 41111 Section 4.610.50. Type D Permit such trees to full health. Trees proposed to remain,to be transplanted or to be removed shall be so designated. All trees to remain on the site are to be designated with metal tags that are to remain in place throughout the development. Those tags shall be numbered, with the numbers keyed to the tree survey map that is provided with the application. c. Where a stand of twenty (20) or more contiguous trees exist on a site and the applicant does not propose to remove any of those trees, the required tree survey may be simplified to accurately show only the perimeter area of that stand of trees, including its drip line. Only those trees on the perimeter of the stand shall be tagged, as provided in "b," above. d. All Oregon white oaks, native yews, and any species listed by either the state or federal government as rare or endangered shall be shown in the tree survey. 3. Tree Protection. A statement describing how trees intended to remain will be protected during development, and where protective barriers are necessary, that they will be erected before work starts. Barriers shall be sufficiently substantial to withstand nearby construction activities. Plastic tape or similar forms of markers do not constitute "barriers." 4. Easements and Setbacks. Location and dimension of existing and proposed easements, as well as all setbacks required by existing zoning requirements. 5. Grade Changes. Designation of grade changes proposed for the property that may impact trees. 6. Cost of Replacement. A cost estimate for the proposed tree replacement program with a detailed explanation including the number, size and species. 7. Tree Identification. A statement that all trees being retained will be identified by numbered metal tags, as specified in subsection "A," above in addition to clear identification on construction documents. Section 4.610.50. Type D Permit (.01) The owner or operator of a commercial woodlot shall apply and receive approval for a Type D Permit before beginning harvesting operations of more than three (3)trees within any twelve (12) month period. Type D permit applications shall be subject to the standards and procedures of Class I administrative review and shall be reviewed for compliance with the Oregon Forest Practice Rules. The removal of three (3) or fewer trees in a commercial woodlot within any twelve (12) month period shall not require a tree removal permit. (.02) Sites which meet the following criteria on the effective date of this regulation shall be designated as commercial woodlots by the Planning Director: A. The site is at least 30,000 square feet. B. Trees have been maintained on the site for the purpose of harvesting. CHAPTER 4-PLANNING AND LAND DEVELOPMENT PAGE H- 11 TREE PRESERVATION AND PROTECTION UPDATED JANUARY 2007 OA' Section 4.620.00. Tree Relocation, Mitigation,Or Replacement C. The property from which the forest species are to be harvested are in a property tax deferred status based on agricultural and/or forest use under state law provisions for Farm Deferral, Forest Land Deferral,or Small Woodlands Deferral. (.03) All other sites which potentially meet the criteria of WC 4.610.50(B) shall be reviewed by the Development Review Board, which shall determine whether a site meets the criteria for a commercial woodlot designation when an application is submitted for a tree removal permit. (.04) Approval to remove trees as part of a commercial harvest shall be granted if a plan meets all of the following criteria: A. Trees will be grown and maintained according to an established plan. B. Approved forestry practices will be followed. Forest practices include the administrative rules as adopted by the Oregon Department of Forestry. C. Harvested trees will be replanted according to an established plan. Where trees are proposed to be removed as a final harvest and no further planting, maintenance, or rotation of trees will occur after trees are removed, the applicant shall propose an erosion control and revegetation plan for review. Section 4.620.00. Tree Relocation, Mitigation, Or Replacement (.01) Requirement Established. A Type B or C Tree Removal Permit grantee shall replace or relocate each removed tree having six(6) inches or greater d.b.h. within one year of removal. (.02) Basis For Determining Replacement. The permit grantee shall replace removed trees on a basis of one (1)tree replanted for each tree removed. All replacement trees must measure two inches (2") or more in diameter. Alternatively,the Planning Director or Development Review Board may require the permit grantee to replace removed trees on a per caliper inch basis, based on a finding that the large size of the trees being removed justifies an increase in the replacement trees required. Except, however, that the Planning Director or Development Review Board may allow the use of replacement Oregon white oaks and other uniquely valuable trees with a smaller diameter. (.03) Replacement Tree Requirements. A mitigation or replacement tree plan shall be reviewed by the City prior to planting and according to the standards of this subsection. A. Replacement trees shall have shade potential or other characteristics comparable to the removed trees, shall be appropriately chosen for the site from an approved tree species list supplied by the City, and shall be state Department of Agriculture Nursery Grade No. 1 or better. B. Replacement trees must be staked, fertilized and mulched, and shall be guaranteed by the permit grantee or the grantee's successors-in-interest for two (2)years after the planting date. CHAPTER 4—PLANNING AND LAND DEVELOPMENT PAGE H- 12 TREE PRESERVATION AND PROTECTION UPDATED JANUARY 2007 atik gIV Section 4.620.10. Tree Protection During Construction C. A "guaranteed"tree that dies or becomes diseased during that time shall be replaced. D. Diversity of tree species shall be encouraged where trees will be replaced, and diversity of species shall also be maintained where essential to preserving a wooded area or habitat. (.04) All trees to be planted shall consist of nursery stock that meets requirements of the American Association of Nurserymen (AAN) American Standards for Nursery Stock (ANSI Z60.1) for top grade. (.05) Replacement Tree Location. A. City Review Required. The City shall review tree relocation or replacement plans in order to provide optimum enhancement, preservation and protection of wooded areas. To the extent feasible and desirable,trees shall be relocated or replaced on- site and within the same general area as trees removed. B. Relocation or Replacement Off-Site. When it is not feasible or desirable to relocate or replace trees on-site, relocation or replacement may be made at another location-approved by the City. (.06) City Tree Fund. Where it is not feasible to relocate or replace trees on site or at another approved location in the City,the Tree Removal Permit grantee shall pay into the City Tree Fund, which fund is hereby created, an amount of money approximately the value as defined by this subchapter, of the replacement trees that would otherwise be required by this subchapter. The City shall use the City Tree Fund for the purpose of producing, maintaining and preserving wooded areas and heritage trees, and for planting trees within the City. A. The City Tree Fund shall be used to offer trees at low cost on a first-come, first- serve basis to any Type A Permit grantee who requests a tree and registers with the City Tree Fund. B. In addition, and as funds allow,the City Tree Fund shall provide educational materials to assist with tree planting, mitigation, and relocation. (.07) Exception. Tree replacement may not be required for applicants in circumstances where the Director determines that there is good cause to not so require. Good cause shall be based on a consideration of preservation of natural resources, including preservation of mature trees and diversity of ages of trees. Other criteria shall include consideration of terrain, difficulty of replacement and impact on adjacent property. Section 4.620.10. Tree Protection During Construction (.01) Where tree protection is required by a condition of development under Chapter 4 or by a Tree Maintenance and Protection Plan approved under this subchapter, the following standards apply: A. All trees required to be protected must be clearly labeled as such. CHAPTER 4—PLANNING AND LAND DEVELOPMENT PAGE H- 13 TREE PRESERVATION AND PROTECTION UPDATED JANUARY 2007 O ATTACHMENT 7 CITY OF TIGARD, OREGON TIGARD CITY COUN - RESOLUTION NO. 07-, ILO A RESOLUTION OF THE TIGARD CITY COUNCIL ADOPTING AN INTERIM TREE BOARD CHARGE STATEMENT FOR THE - PURPOSE OF DEVELOPING A COMPREHENSIVE TREE PROTECTION AND URBAN FOREST ENHANCEMENT PROGRAM. WHEREAS,the current charge of the Tree Board (Council resolution 01-02) requires it to,"develop and administer a comprehensive tree management program for the maintenance,removal,replacement and protection of trees on public property";and WHEREAS,the Board's current charge does not provide the latitude for it to undertake other important community tasks related to stewardship of Tigard's tree resources;and WHEREAS,the City is engaged in update of the Tigard Comprehensive Plan and the Tree Board's services are needed to address the important matters of tree stewardship and enhancement of the City's urban forest, because: a. Urban development has resulted in loss of trees; b. Trees and other natural resources contribute to Tigard's quality of life and overall environmental quality; c. Urban density,unless well designed,results in loss of trees and private open space; • d. An attractive,treed environment is a component of an economically prosperous community; e. A balance is needed between tree stewardship and the need for efficient use of valuable urban lands; f. A sound technical basis is needed for useable and up-to-date tree codes and standards;. g. Tree stewardship and urban forest enhancement provides civic engagement opportunities;and h. A healthy urban forest and its associated benefits require active management. - NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that: SECTION 1: For the purposes of developing a comprehensive City Tree Stewardship and Urban Forest Enhancement Program,the Tree Board shall have the following responsibilities in addition to those spelled out in its existing mission statement a. The Tree Board shall work with the Planning Commission to update the City's Comprehensive Plan by developing Comprehensive Plan background information (findings)and goals,policies,and action measures pertaining to tree stewardship and the contribution of trees and other vegetation to Tigard's quality of life. b. The Tree Board shall recommend updated goals,policies,action measures,and background information to the Planning Commission. The Board shall participate in the Commission's joint work sessions to review/discuss the same.These amendments to the Comprehensive Plan are subject to Planning Commission public hearings and recommendation to the City Council. RESOLUTION NO.07 -30 - • Page 1 - • • c. The Tree Board shall propose a tree stewardship program for Planning Commission consideration which shall consist of municipal code and land use regulations to implement the above"Trees and Vegetation" Comprehensive Plan goals,policies, and action measures.Proposed Municipal and Development Code amendments shall be subject to review by the City Attorney.Proposed land-use code changes shall be subject to public hearings and recommendation to Council by the Planning Commission.The Tree Board shall participate with the Commission in work sessions to review/discuss the same. d. The Tree Board may also make other general recommendations to enhance urban forest resources for City consideration such as public education,incentives,tree planting programs,and arboriculture practices,etc. e. The Tree Board shall review recommendations from staff to develop specific interim tree code standards intended to prevent tree removal during the period it takes to - develop the City's tree stewardship program.The Tree Board shall participate in work sessions with the Planning Commission prior to the Commission holding public hearings to recommend the interim standards to Council. f. The Tree Board,in consultation with the Planning Commission and Committee for -.. Citizen Involvement,shall develop and implement a public information and involvement program to hear public concerns and suggestions regarding tree stewardship and urban forestry enhancement in Tigard. In addition,the Tree Board shall prepare a citizen involvement report as part of the record of its proceedings. g. Every three months the Tree Board shall forward a report of its progress to the City Council and Planning Commission. Initially,the Tree Board shall prepare a schedule and scope of work as the first step to implement this mission. SECTION 2: Upon adoption of the Tree Protection Program, the Tree Board's charge statement shall be reevaluated to address public issues associated with the urban forest and other natural resources as seen fit by the City Council SECTION 3: This resolution is effective immediately upon passage. PASSED: This day of 2007. Mayo457(ity of Tigard - ATTEST: • City Recorder- City of Tigard RESOLUTION NO.07 Page 2 • Section 4.620.20. Maintenance And Protection Standards B. Placing Construction Materials Near Tree. No person may conduct any construction activity likely to be injurious to a tree designated to remain, including, but not limited to, placing solvents, building material, construction ' equipment, or depositing soil, or placing irrigated landscaping, within the drip line, unless a plan for such construction activity has been approved by the Planning Director or Development Review Board based upon the recommendations of an arborist. C. Attachments to Trees During Construction. Notwithstanding the requirement of WC 4.620.10(1)(A), no person shall attach any device or wire to any protected tree unless needed for tree protection. D. Protective Barrier. Before development, land clearing,filling or any land alteration for which a Tree Removal Permit is required,the developer shall erect and maintain suitable barriers as identified by an arborist to protect remaining trees.,Protective barriers.shall remain in place until the City authorizes their removal or issues a final certificate of occupancy, whichever occurs first. Barriers shall be sufficiently substantial to withstand nearby construction activities. Plastic tape or similar forms of markers do not constitute "barriers." The most appropriate and protective barrier shall be utilized. Barriers are required for all trees designated to remain, except in the following cases: 1. Right-of-Ways and Easements. Street right-of-way and utility easements may be cordoned by placing stakes a minimum of fifty (50) feet apart and tying ribbon, plastic tape, rope, etc., from stake to stake along the outside perimeters of areas to be cleared. . 2. Any property area separate from the construction or land clearing area onto which no equipment will venture may also be cordoned off as described in paragraph (D) of this subsection, or by other reasonable means as approved by the reviewing authority. Section 4.620.20. Maintenance And Protection Standards • (.01) The following standards apply to all activities affecting trees, including, but not limited to,tree protection as required by a condition of approval on a site development application brought under this Chapter or as required by an approved Tree Maintenance and Protection Plan. A. Pruning activities shall be guided by the most recent version of the ANSI 300 Standards for Tree, Shrub, and Other Woody Plant Maintenance. Information on ' these standards shall be available upon request from the Planning Department. • B. Topping is prohibited. 1. Exception from this section may be granted under a Tree Removal Permit if necessary for utility work or public safety. CHAPTER 4—PLANNING AND LAND DEVELOPMENT PAGE H- 14 TREE PRESERVATION AND PROTECTION UPDATED JANUARY 2007 • Oft Section 4.630.00. Appeal Section 4.630.00. Appeal (.01) The City shall not issue a Tree Removal Permit until approval has been granted by either the Planning Director or the DRB. Any applicant denied a Type A or B permit may appeal the decision as provided for in review of Class I Development Applications, or Class II Development Applications, whichever is applicable. Decisions by the Planning Director may be appealed to the DRB as provided in WC 4.022. Decisions by the DRB may be appealed to the City Council as provided in WC 4.022. (.02) The City shall not issue a Tree Removal Permit approved by the Development Review Board until fifteen (15) calendar days have passed following the approval. The grant or denial of a Tree Removal Permit may be appealed to the City Council in the same manner as provided for in WC 4.022. An appeal must be filed in writing, within the fifteen (15) calendar day period following the decision being appealed. The timely filing of an appeal shall have the effect of suspending the issuance of a permit pending the outcome of the appeal. The City Council, upon review, may affirm, reverse or modify the decision rendered by the Development Review Board based upon the same standards of review specified for the DRB in the Wilsonville Code. Section 4.630.10. Display Of Permit; Inspection The Tree Removal Permit grantee shall conspicuously display the permit on-site. The permit grantee shall display the permit continuously while trees are being removed or replaced or while activities authorized under the permit are performed. The permit grantee shall allow City representatives to enter and inspect the premises at any reasonable time,and failure to allow inspection shall constitute a violation of this subchapter. Section 4.630.20. Variance For Hardship Any person may apply for a variance of this subchapter as provided for in Section 4.196 of this Chapter. Section 4.630.30. Severability If any part of this ordinance is found by a court of competent jurisdiction to be invalid, that part shall be severable and the remainder of this ordinance shall not be affected. Section 4.640.00. Violation; Enforcement (.01) The cutting, damaging, or removal of any individual tree without a permit as required by this ordinance constitutes a violation punishable as a separate infraction under WC 1.013. In addition, each violation of a condition or a violation of any requirement of this Chapter shall constitute a separate infraction. (.02) Retroactive Permit. A person who removes a tree without obtaining a Type A or Type B permit may apply retroactively for a permit. In addition to all application requirements of this Chapter, the person must be able to demonstrate compliance with CHAPTER 4—PLANNING AND LAND DEVELOPMENT PAGE H- 15 TREE PRESERVATION AND PROTECTION UPDATED JANUARY 2007 • i Section 4.640.10. Alternative Enforcement all requirements of this subchapter, in addition to paying a triple permit fee and a penalty per tree in an amount established by resolution of City Council. Mitigation requirements of this subchapter apply to all retroactive permits. (.03) Nuisance Abatement. Removal of a tree in violation of this Chapter is a nuisance and may be abated as provided in Sections 6.230 to 6.244, 6.250, and 6.260 of the Wilsonville Code. (.04) Withholding Certificate of Occupancy. The City Building Official has the authority to issue a stop-work order,withhold approval of a final plat, or withhold issuance of a certificate of occupancy, permits or inspections until the provisions of this Chapter, including any conditions attached to a Tree Removal Permit, have been fully met. (.05) Fines. Fines for a violation shall be imposed according to WC 1.012. (.06) Mitigation. The City shall require the property owner to replace illegally removed or damaged trees. The City may also require a combination of payment and tree replacement. A. The City shall notify the property owner in writing that a violation has occurred and mitigation is required. Within thirty (30) days of the date of mailing of the notice,the property owner shall provide a mitigation plan to the City. The plan shall provide for replacement of a tree of similar species and size taking into account the suitability of the site and nursery stock availability. B. Replacement will be on an inch-for-inch basis computed by adding the total diameter measured at d.b.h. in inches of the illegally removed or damaged trees. The City may use any reasonable means to estimate the tree loss if destruction of the illegally removed or damaged trees prevents exact measurement. All replaced trees must be a minimum two-inch (2") caliper. If the mitigation requirements cannot be completed on the property,the City may require completion at another approved location. Alternatively, the City may require payment into the City Tree Fund of the value of the removed tree as established by the Planning Department. Section 4.640.10. Alternative Enforcement (.01) In the event that a person commits more than one violation of WC 4.600.30 to WC 4.630.00,the following alternative sentence may be imposed: A. If a person has gained money or property through the commission of an offense under this section, then upon conviction thereof, the court, in lieu of imposing a fine, may sentence the person to pay an amount, fixed by the court, not to exceed double the amount of the gain from the commission of the offense. B. "Gain" is defined as the amount of money or value of property derived from the commission of the violation, less the amount of money or value of property seized by or surrendered to the City. "Value" shall be the greater of the market value or replacement cost as determined by a licensed professional in the tree, nursery, or landscape field. CHAPTER 4—PLANNING AND LAND DEVELOPMENT PAGE H- 16 TREE PRESERVATION AND PROTECTION UPDATED JANUARY 2007 OAK gir Section 4.640.20. Responsibility For Enforcement. C. Any fines collected by the City under this section shall accrue to the City Tree Fund. Section 4.640.20. Responsibility For Enforcement. Compliance with this Chapter shall be enforced by the City Attorney,the City Attorney's designee, and Clackamas County or Washington County law enforcement officers. CHAPTER 4—PLANNING AND LAND DEVELOPMENT PAGE H- 17 TREE PRESERVATION AND PROTECTION UPDATED JANUARY 2007 Page lof 3' - 41110 - Grillo, Phillip From: Grillo, Phillip Sent: Tuesday, June 10, 2008 5:34 PM To: 'Todd Prager'; 'Gillis, Janet'; 'RobrtC @aol.com'; 'clemos @verizon.net'; 'global_1@hotmail.com.; 'tonytree @easystreet.com; 'Walsh, David'; 'sizemore_dennis @msn.com' Cc: 'John Frewing'; 'Alan DeHarpport'; John Floyd; Tom Coffee; 'Jim McCauley'; Cathy Wheatley Subject: RE: Appeal of Director's Interpretation of Todd, I am requesting that the written record be reopened, consistent with the agenda. As you know several new documents have recently been released to the public and have been submitted into the record in this proceeding by the applicant (i.e. the Community Development Director and his staff). These documents include a "Director's Interpretation-Revised" (Exhibit A); a Staff Commentary of Proposed Revisions to the Director's Interpretation , dated May 27, 2008 (Attachment 2); and a Response to Testimony Received at the May 13, 2008 Public Hearing, dated May 15, 2008 (Attachment 3). I have not had the opportunity to respond to the new evidence and argument in these documents. In this case, the subject of this appeal is the Director's February 26, 2008 interpretation, not the Director's May 27, 2008 revised interpretation and its new supporting attachments. Failure to allow a response to this new evidence and argument would prejudice my substantial rights and would unfairly limit me to responding to an interpretation and supporting documentation that has now changed. The parties to this appeal should have the right to respond to the director's interpretation dated May 27, 2008, along with the supporting attachments that are now in the record and were submitted by the applicant in support of his revised interpretation. This is not simply a situation where the Community Development Director and his staff are providing staff analysis to Council. In this case, the Director is the applicant and is a party to the proceeding. Furthermore, the new material submitted by the. applicant contains both new evidence and new argument, because the revised interpretation proposes changes to the document that is the subject of this appeal. Also, I note that Attachment 3 contains evidentiary excerpts from several other city's tree removal ordinances. The new evidence and argument concerning how other cities regulate trees was submitted by the applicant in an effort to prove that his revised interpretation (which the parties have not had an opportunity to respond to) is similar to the language used by other cities in the region. I respectfully disagree,with the Director's conclusion in that regard. Regardless, the parties should be afforded an opportunity to respond to all of the new evidence and argument submitted by the applicant. I am therefore requesting that the hearing be reopened tonight, and that additional testimony in response to this new information be allowed. As you know, the published agenda for this hearing indicates that public testimony will be allowed. I agree that Council closed the record on May 13, but because the applicant has submitted new evidence and argument, the record should be reopened. Please submit my request to the Mayor and Council in advance of tonight's hearing. Thank you. Phil Grillo From: Todd Prager [mailto:todd @tigard-or.gov] Sent: Tuesday, June 10, 2008 4:04 PM To: 'Gillis, Janet'; 'RobrtC @aol.com'; 'clemos @verizon.net; 'global_l @hotmail.com'; 'tonytree @easystreet.com'; 'Walsh, David'; 'sizemore_dennis @msn.com' Cc: 'John Frewing'; 'Alan DeHarpport'; John Floyd; Tom Coffee; 'Jim McCauley'; Grillo, Phillip; Cathy Wheatley Subject: RE: Dear Tree Board Members and Other Interested Parties, • 6/10/2008 qhPage 2 of/ The City Recorder has informed me that the City Council will not be accepting additional public testimony on the Director's Interpretation (agenda item 10). She reviewed the tape of the previous hearing on May 13th and found that the City Council decided to close the item to.additional public testimony. We apologize for any confusion and/or inconvenience this has caused. Sincerely, Todd Prager City of Tigard Arborist 503 718-2700 From: Todd Prager Sent: Thursday, June 05, 2008 9:34 AM To: 'Gillis, Janet'; 'RobrtC @aol.com'; 'clemos @verizon.net'; 'global_i @hotmail.com'; 'tonytree @easystreet.com'; 'Walsh, David'; 'sizemore_dennis @msn.com' Cc: 'John Frewing'; 'Alan DeHarpport'; John Floyd Subject: RE: The agenda for the June 10th public hearing regarding the Director's Interpretation has been posted on the City's website. In response to Janet's question last night, the agenda indicates that they will be allowing public comment on that item. http://www.tigard-or.gov/city hall/city council/docs/agendas/080610Agenda.pdf Thanks, Todd From: Todd Prager Sent: Thursday, June 05, 2008 8:32 AM To: 'Gillis, Janet'; 'RobrtC @aol.com'; 'clemos @verizon.net; 'global_i @hotmail.com'; 'tonytree @easystreet.com'; 'Walsh, David'; 'sizemore_dennis @msn.com' Cc: 'John Frewing'; Alan DeHarpport; John Floyd; Nancy Lof Subject: For those of you that are interested, I have provided links to more information on the CU structural soil and the Heritage Tree label that I was talking about last night. As I mentioned, we are testing the use of structural soil in a portion of the Winco parking lot improvement project. Also, I will work with Nancy Lof, our communications specialist, in creating the label based on the information you provided me last night. Thanks, Todd CU Structural Soil: http://www.hort.cornell.edu/uhi/outreach/csc/graphics.html Heritage Tree Label http://www.myplantlabel.com/products.asp 6/10/2008 • - Todd Prager From: Todd Prager Sent: Thursday, June 05, 2008 9:34 AM To: 'Gillis, Janet; 'RobrtC @aol.com'; 'clemos @verizon.net; 'global_1 @hotmail.com'; 'tonytree @easystreet.com'; 'Walsh, David'; 'sizemore_dennis @ msn.com' Cc: 'John Frewing'; 'Alan DeHarpport'; John Floyd Subject: RE: The agenda for the June 10th public hearing regarding the Director's Interpretation has been posted on the City's website. In response to Janet's question last night,the agenda indicates that they will be allowing public comment on that item. http://www.tigard-or.gov/city hall/city council/docs/agendas/080610Agenda.pdf Thanks, Todd From: Todd Prager Sent: Thursday, June 05, 2008 8:32 AM To: 'Gillis, Janet; 'RobrtC @aol.com'; 'clemos @verizon.net; 'global_i @hotmail.com'; 'tonytree @easystreet.com'; 'Walsh, David'; 'sizemore_dennis @msn.com' Cc: 'John Frewing'; Alan DeHarpport; John Floyd; Nancy Lof Subject: For those of you that are interested, I have provided links to more information on the CU structural soil and the Heritage Tree label that I was talking about last night. As I mentioned,we are testing the use of structural soil in a portion of the Winco parking lot improvement project. Also, I will work with Nancy Lof, our communications specialist, in creating the label based on the information you provided me last night. Thanks, Todd CU Structural Soil: http://www.hort.cornell.edu/uhi/outreach/csc/graphics.html Heritage Tree Label http://www.mvplantlabel.com/products.asp 1 • • Todd Prager From: Todd Prager Sent: Thursday, June 05, 2008 9:42 AM To: 'Jim McCauley'; 'grillo @millernash.com' Cc: Patty Lunsford; Tom Coffee Subject: RE: Director's appeal Dear Mr. McCauley and Mr. Grillo, Please follow the link provided to the Tigard City Council materials for the June 10th hearing regarding the Director's Interpretation. http://www.tigard-or.gov/city hall/city council/agenda.asp Do not hesitate to contact me if you have any difficulty accessing this material. Sincerely, Todd Prager City Arborist 503 718-2700 From: Tom Coffee Sent: Thursday, May 15, 2008 9:34 AM To: Todd Prager Cc: Patty Lunsford Subject: FW: Director's appeal Todd-Since I will be on vacation when the report back to Council is distributed please be sure Jim and Mr.Grillo get copies. From: Jim McCauley [mailto:jimmc @hbapdx.org] Sent: Wednesday, May 14, 2008 2:57 PM To: Tom Coffee Subject: Director's appeal Tom, Let me know if you have any question regarding my input last evening and once the City has prepared a set of comments for Council in response I could use a copy as well. Thanks, Jim McCauley Vice President of Government Affairs Home Builders Association of Metropolitan Portland 15555 SW Bangy Rd., Ste. 301 Lake Oswego, OR 97035 503-684-1880 iimmc(cthbapdx.orq lib Todd Prager From: Todd Prager Sent: Friday, May 30, 2008 2:20 PM To: Cathy Wheatley Cc: 'Rob Yamachika'; Jenny De Gregorio; Tim Ramis; Ron Bunch Subject: Revised Exhibit A and Attachment 2 for Director's Interpretation for June 10 Council meeting Attachments: 5-27-2008 Revised Director's Interpretation, (Exhibit A).doc; 5-27-2008 Memo to Council, (Attachment 2) Staff Commentary of Proposed Revisions to the Director's Interpretation.doc Dear Cathy, s Attached, please find the revised Exhibit A and Attachment 2 for the Director's Interpretation for the June 10th Council meeting. Thanks, Todd • 1 • Todd Prager From: Rob Yamachika [Rob.Yamachika @jordanschrader.com] Sent: Friday, May 30, 2008 9:38 AM To: Todd Prager Cc: Tim Ramis; Jenny De Gregorio Subject: Director's Interpretation Hi Todd, Tim and I spoke about the revised Director's Interpretation that you sent over in the draft council packet and noted the need to add the following additional language: . Is it possible to reduce the total number of lots consistent with the minimum density requirements of the zoning district and ORS 197.307 to protect rather than remove trees.? Add questions regarding safety and alternatives after question 9 as follows: 10. Is it safe to preserve the tree rather than remove it? In answering this question the City will rely on the expert opinion of a certified arborist and balance the City's preference for favoring protection of trees against the threat that particular trees may pose, depending on their existing condition and proximity to people and struct s. 1. Are there alternative design options available that would protect rather than remove trees? Also it is important to advise the Council that this is a land use decision and will require the adoption of findings. If a motion to approve or amend the interpretation is made it should be a tentative decision with the direction that staff will come back with findings. I will give you call shortly to discuss. Sincerely, Rob ROB YAMACHIKA I Attorney Jordan Schrader Ramis PC I Attorneys at Law Two Centerpointe Drive, 6th Floor Lake Oswego, OR 97035 Oregon: (503) 598-7070 Direct Dial: (503) 598-5520 www.jordanschrader.com One of Portland Monthly's Best 20 Places to Work One of Oregon Business Magazine's 100 Best Companies to Work For CONFIDENTIALITY NOTICE: Please do not read, copy, or disseminate this communication unless you are the intended addressee. This e-mail may contain confidential and/or privileged information intended only for the addressee. If you have received this in error, please notify me via return e-mail. 1 10 AIL • Todd Prager From: Todd Prager Sent: Wednesday, May 28, 2008 4:44 PM To: 'Rob Yamachika' Subject: Draft Council Packet Attachments: Draft Council Packet for June 10th Hearing Regarding Appeal of Directors Interpretation.pdf Dear Rob, Attached, please find the draft Council Packet for the June 10th public hearing regarding the Appeal of the Director's Interpretation. Thanks, Todd 1 • r 411611 Todd Prager From: Todd Prager Sent: Wednesday, May 28, 2008 12:20 PM To: 'Rob Yamachika' Cc: Jenny De Gregorio; Tim Ramis; Ron Bunch Subject: RE: Dear Rob, We already submitted the staff report to Council for the June 10th meeting(it was due yesterday), so I will not be able to incorporate this LUBA case into the report. However,we feel that it is important that Council be provided with this information. Ron Bunch (acting Community Development Director while Tom Coffee is on vacation) suggested that Tim present this information to Council at the June 10th hearing, and provide them with hard copies that will become part of the record. Does this option work for you? Thanks, Todd From: Rob Yamachika [mailto:Rob.Yamachika @jordanschrader.com] Sent: Tuesday, May 27, 2008 11:55 AM To: Todd Prager • Cc: Jenny De Gregorio; Tim Ramis Subject: Hi Todd, Here is the cite to the LUBA case regarding number 5 of your memo: LUBA has held that a standard preferring preservation over removal has been found to be clear and objective enough for an applicant to know what they must show during the application process. J.K. Land Corportation v. City of Gresham 19 Or LUBA 66, 79 (1990) Below is the full quote from the case: Seventh Assignment of Error "The city's findings which stated that the development was not designed in a manner to preserve as many trees as possible is unsupported by substantial evidence. " The city's site design review criteria, Plan Standards Sec.3.1120(A) (9) , requires as follows: "The development [shall be] designed in such a manner that as many trees as possible can be preserved. Preserved trees and shrubs shall be protected during construction. " The city found that Plan Standards Sec.3. 1120 (A) (9) was not satisfied by the site design submitted by petitioner for the following reasons: " [T]his development has not been designed in such a manner that as many trees as possible can be preserved. By proposing substantial cuts and fills in densely wooded, steep slope areas, this development would require the removal of a large number of existing trees which could be preserved if a more sensitive design had been proposed. A development scheme which called for the clustering of dwellings on portions of the site with the most 1 yJ • moderate slopes would resultle, less disturbance to steeper, e sensitive areas, and in preservation of a substantially greater number of trees. " Record 17. Petitioner argues Plan Standards Sec.3.1120 (A) (9) is so subjective and discretionary that it does not satisfy ORS 227.173 (1) , which, as the Court of Appeals explained in Lee, requires that land use standards be "clear enough for an applicant to know what he must show during the application process. " Lee, 57 Or App at 802. Respondent contends that the criterion in Plan Standards Sec.3.1120 (A) (9) is no more subjective or unclear than the standard requiring a "use at a particular location is desirable to the public convenience and welfare and not detrimental or injurious to the public health, peace or safety, or to the character and value of the surrounding properties, * * *, " which the Court of Appeals found to be acceptable to comply with ORS 227.173 (1) . Lee, 57 Or App at 802. We agree with the city that Plan Standards Sec.3.1120 (A) (9) is sufficient to comply with ORS 227. 173 (1) . Many land use planning standards are subjective and imprecise. The approval standard contained in Plan Standards Sec.3. 1120 (A) (9) is no more imprecise or subjective than the standard the Court of Appeals held to be adequate in Lee. In addition, the city did not, as petitioner suggests in the petition for review, simply reject petitioner's proposal "due to 'insensitivity. "' Petition for Review 25. Rather, the city explained in its findings why the standard was not met (substantial cuts and fills in steeply sloped, densely wooded areas of the site) and suggested how the site design might be changed to comply with Plan Standards Sec. 3.1120 (A) (9) (clustering dwellings on moderately sloped, less sensitive areas) . The sixth and seventh assignments of error are denied. ROB YAMACHIKA I Attorney Jordan Schrader Ramis PC ( Attorneys at Law Two Centerpointe Drive, 6th Floor Lake Oswego, OR 97035 Oregon: (503) 598-7070 Direct Dial: (503) 598-5520 www.jordanschrader.com One of Portland Monthly's Best 20 Places to Work One of Oregon Business Magazine's 100 Best Companies to Work For CONFIDENTIALITY NOTICE: Please do not read, copy, or disseminate this communication unless you are the intended addressee. This e-mail may contain confidential and/or privileged information intended only for the addressee. If you have received this in error, please notify me via return e-mail. TAX ADVICE NOTICE: IRS Circular 230 requires us to advise you that if this communication or any attachment contains any tax advice, the advice is not intended to be used, and cannot be used, for the purpose of(i).avoiding tax-related penalties or(ii) promoting, marketing, or recommending any transaction, plan, or arrangement. A taxpayer may rely on professional advice to avoid tax-related penalties only if the advice is reflected in a comprehensive tax opinion that conforms to stringent requirements. Please contact us if you have any questions about this requirement, or would like to discuss preparation of an opinion that conforms to these IRS rules. 2 OA& Todd Prager From: Rob Yamachika [Rob.Yamachika @jordanschrader.com] Sent: Friday, May 23, 2008 4:31 PM To: Tom Coffee; Todd Prager Cc: Jenny De Gregorio; Tim Ramis Subject: Director's Interpretation Revised Attachments: 136499.doc Hi Tom, Attached for you review is a revised interpretation regarding tree removal per your meeting with Tim this morning. Sincerely, Rob «136499.doc» ROB YAMACHIKA I Attorney Jordan Schrader Ramis PC I Attorneys at Law Two Centerpointe Drive, 6th Floor Lake Oswego, OR 97035 Oregon: (503) 598-7070 Direct Dial: (503) 598-5520 www.iordanschrader.com One of Portland Monthly's Best 20 Places to Work One of Oregon Business Magazine's 100 Best Companies to Work For CONFIDENTIALITY NOTICE: Please do not read, copy, or disseminate this communication unless you are the intended addressee. This e-mail may contain confidential and/or privileged information intended only for the addressee. If you have received this in error, please notify me via return e-mail. TAX ADVICE NOTICE: IRS Circular 230 requires us to advise you that if this communication or any attachment contains any tax advice, the advice is not intended to be used, and cannot-be used, for the purpose of(i) avoiding tax-related penalties or(ii) promoting, marketing, or recommending any transaction, plan, or arrangement. A taxpayer may rely on professional advice to avoid tax-related penalties only if the advice is reflected in a comprehensive tax opinion that conforms to stringent requirements. Please contact us if you have any questions about this requirement, or would like to discuss preparation of an opinion that conforms to these IRS rules. • 41No Todd Prager From: Todd Prager Sent: Friday, May 23, 2008 4:09 PM To: Tom Coffee; Dick Bewersdorff; Ron Bunch; 'Jenny De Gregorio'; 'tim.ramis @jordanschrader.com'; John Floyd Subject: Director's Interpretation Memo to Council for June 10th Public Hearing Attachments: 5-15-08 Memo to Council.doc; 5-23-2008 Memo to Council, Development Code Provisions from Other Jurisdictions.doc Please review the attached memos that were revised in response to our meeting with Tim Ramis on Friday, May 23rd. The request to schedule and memos are due on Tuesday, May 27th, so please provide your comments as soon as possible. The specific items that require(d) changes are/were: 1. Define what types of trees we prefer to preserve- This was addressed in the original Director's Interpretation and reiterated in the 5-15-08 Memo (attached) by specifying that we want viable, healthy, and sustainable tree preserved wherever possible. Therefore,this item has been completed. 2. Explain that the number of lots cannot be reduced below required minimum density in order to preserve additional trees- It was explained in the original Director's Interpretation that "The City recognizes that some tree removal is unavoidable in order to meet certain planning and/or construction requirements as indicated in Section 18.790.010." 18.790.010 Purpose C. Recognize need for exceptions. The City recognizes that, notwithstanding these purposes, at the time of development it may be necessary to remove certain trees in order to accommodate structures, streets utilities, and other needed or required improvements within the development. This implies that we would not require lots to be reduced below minimum density since that is a planning requirement. However,the point is reiterated in the conclusion of the 5-15-08 Memo by stating, "The intent of the Interpretation is not to "save all trees at all costs" or supersede other requirements such as minimum density." Therefore,this item has been completed. 3. Describe how the Interpretation is consistent with the historical application of the development code and why an Interpretation was needed now- This has been done in the first paragraph of the introduction of the 5-15 Memo by stating, " While it has always been the intent of staff and the Code to require land use applicants to protect trees wherever possible,the ambiguity of the Code has made it difficult to ensure tree protection in an objective manner and applicants have been inconsistent with their level of cooperation." Therefore,this item has been completed. 4. Describe how the Director's Interpretation is consistent with the purposes of other applicable Tigard Development Code provisions- This.item has been completed on pages 3 and 4 of the 5-15-08 Memo. 1 5. Include LUBA finding the states the 29ge needs to be clear enough that an applic t knows w_ hat to show. Work this finding into the Memo- Tim Ramis is going to email me this information and I will work it into the Memo after I receive it. 6. Include excerpts of acknowledged code provisions from other jurisdictions that demonstrate ambiguity is inherent in tree preservation during land development- This item has been completed in the additional 5-23-08 Memo (attached). 7.Verify that the code provisions from other jurisdictions are, in fact, acknowledged- Tom requested that Dick contact the jurisdictions (Tualatin, Beaverton,and Wilsonville)to verify the cited provisions in the 5-23-08 Memo. Please do not hesitate to contact me with any questions. Again,this information is due on Tuesday, May 27th. Thanks, Todd 503 718-2700 2 41110 • Todd Prager From: Todd Prager Sent: Tuesday, May 20, 2008 4:25 PM To: 'tim.ramis @jordanschrader.com'; Tom Coffee Cc: Dick Bewersdorff; Ron Bunch; John Floyd Subject: Revision to Director's Interpretation Dear Tim and Tom, I revised the staff response to issue#2 in the memo to Council to recommend a change in the Interpretation language from "maximizing tree protection" to instead "demonstrating preference for tree protection". Here is an excerpt from that portion of the memo... Issue#2: Mr. Grillo argues that, "Even if the phrase (protection is preferred over removal wherever possible)could be interpreted to be intended as approval criteria,the preference expressed in that phrase does not require "maximum protection" of trees as suggested by the Planning Director's interpretation. It merely expresses a preference." Mr. McCauley agrees, stating that, "Given the relevant approval criteria in the existing code an applicant is not even required to save trees, let alone establish a standard to"maximize tree retention". Staff Response: Chapter 18.790.030.A sets a number of specific approval criteria that are consistently used to evaluate a tree plan. For example, 18.790.030.A requires that the tree plan be"prepared by a certified arborist". It also requires that a tree plan be provided when a "development application for any subdivision, partition,site development review, planned development, or conditional use is filed." These are not goal statements, but strict approval criteria. 18.790.030.A continues on to require that"Protection is preferred over removal wherever possible." The Director has interpreted this requirement to mean, if there is viable choice between protecting a tree and removing it within the bounds of other code provisions,the applicant and the City are required to give preference to protection. However, in order to bring the language of the Interpretation in better alignment with the language of the Code, staff recommends Council amend the Interpretation by substituting"maximum protection" with "preference for protection" throughout the document. For example, item 1 of the required narrative in the Interpretation would be changed to read, "How does the site, lot, and/or building layout demonstrate preference for tree protection?" Please let me know if you have any questions or suggested edits regarding this change. Thanks, Todd 1 .6 1111 110 Todd Prager From: Dick Bewersdorff Sent: Tuesday, May 20, 2008 3:20 PM To: Todd Prager; Tom Coffee; Ron Bunch; John Floyd Subject: RE: Appeal of Director's Interpretation Have fun; I'm out of the office. From: Todd Prager Sent: Tuesday, May 20, 2008 2:47 PM To: Tom Coffee; Dick Bewersdorff; Ron Bunch; John Floyd Subject: FW: Appeal of Director's Interpretation Our meeting with the City Attorney regarding the Director's Interpretation has been changed to 8:30am on Friday in CR- 4 (previously scheduled for 2:00 tomorrow). Thanks, Todd From: Jenny De Gregorio [mailto:Jenny.DeGregorio @jordanschrader.com] Sent: Tuesday, May 20, 2008 2:35 PM To: Tom Coffee Cc: Todd Prager Subject: RE: Appeal of Director's Interpretation oops- my mistake. 8:30am Friday it is! Tim to go to Tigard. thanks Tom. mea culpa! Original Message From: Tom Coffee [mailto:tomc @tigard-or.gov] Sent: Tuesday, May 20, 2008 2:36 PM To: 'Jenny De Gregorio'; Todd Prager Cc: Tim Ramis Subject: RE: Appeal of Director's Interpretation Jenny- I requested 8:30am Friday-see below. I am not here Thursday afternoon. From: Jenny De Gregorio [mailto:Jenny.DeGregorio @jordanschrader.com] Sent: Tuesday, May 20, 2008 2:13 PM To: Todd Prager; Tom Coffee Cc: Tim Ramis Subject: RE: Appeal of Director's Interpretation You guys are set for Thursday 2:30pm-Tim will go to Tom's office. thank you! Original Message From: Todd Prager [mailto:todd @ tigard-or.gov] Sent: Tuesday, May 20, 2008 2:06 PM To: 'Jenny De Gregorio' Subject: RE: Appeal of Director's Interpretation 1 Yes. Thanks Jenny. - •1111 From: Jenny De Gregorio [mailto:Jenny.DeGregorio @jordanschrader.com] Sent: Tuesday, May 20, 2008 2:01 PM To: Todd Prager Subject: FW: Appeal of Director's Interpretation Will this work for you Todd? thanks, Jenny Original Message From: Tom Coffee [mailto:tomc @tigard-or.gov] Sent: Tuesday, May 20, 2008 2:01 PM To: 'Jenny De Gregorio' Cc: Todd Prager; John Floyd; Dick Bewersdorff; Ron Bunch Subject: RE: Appeal of Director's Interpretation I can meet at 8:30 Friday morning From: Jenny De Gregorio [mailto:Jenny.DeGregorio @jordanschrader.com] Sent: Tuesday, May 20, 2008 11:52 AM To: Tom Coffee Subject: RE: Appeal of Director's Interpretation Tom, Tim was not aware of a COT LO water partnership meeting on Wed at 1 pm. Can you be available Thurs 2:30pm or Friday and 8:30am? Please let me know. Sorry for the inconvenience, Jenny Original Message From: Tim Ramis Sent: Monday, May 19, 2008 11:25 AM To: Jenny De Gregorio Subject: FW: Appeal of Director's Interpretation Please calendar. Tim Original Message From: Tim Ramis Sent: Monday, May 19, 2008 11:25 AM To: 'Tom Coffee' Subject: RE: Appeal of Director's Interpretation That's good. I'll be there. Original Message From: Tom Coffee [mailto:tomc @tigard-or.gov] Sent: Monday, May 19, 2008 9:09 AM To: Tim Ramis' Subject: RE: Appeal of Director's Interpretation 2 How a t Wednesday at 2:00? 1110 From: Tim Ramis [mailto:Tim.Ramis @jordanschrader.com] Sent: Friday, May 16, 2008 11:37 AM To: Tom Coffee Subject: RE: Appeal of Director's Interpretation Tom: Here are some possibilities: Mon.: 10:00- 11:30; 12:30 -2:15 Tues: Anytime after 10:30 Wed: After 1:30 Thurs: Before 11:00&after 2:00 Fri: Before 10:00&after 12:00 Tim Original Message From: Tom Coffee [mailto:tomc @tigard-or.gov] Sent: Thursday, May 15, 2008 9:35 AM To: 'tim.ramis @jordanschrader.com' Subject: Appeal of Director's Interpretation Tim do you some times that you could meet next week to help us prepare our report back to Council? Tom Coffee Community Development Director City of Tigard 13125 SW Hall Blvd Tigard,Oregon 97223 503-718-2443 tomc @tigard-or.gov CONFIDENTIALITY NOTICE: Please do not read, copy, or disseminate this communication unless you are the intended addressee. This e-mail may contain confidential and/or privileged information intended only for the addressee. If you have received this in error, please notify me via return e-mail. TAX ADVICE NOTICE: IRS Circular 230 requires us to advise you that if this communication or any attachment contains any tax advice, the advice is not intended to be used, and cannot be used, for the purpose of(i) avoiding tax-related penalties or(ii) promoting, marketing, or recommending any transaction, plan, or arrangement. A taxpayer may rely on professional advice to avoid tax-related penalties only if the advice is reflected in a comprehensive tax opinion that conforms to stringent requirements. Please contact us if you have any questions about this requirement, or would like to discuss preparation of an opinion that conforms to these IRS rules. 3 116 411 Todd Prager From: Todd Prager Sent: Monday, May 19, 2008 11:54 AM To: 'tim.ramis©jordanschrader.com'; 'Jenny De Gregorio' Cc: Tom Coffee Subject: Draft Memo to Council Attachments: 5-15-08 Memo to Council.doc Dear Tim, Attached, please find my draft memo to Tigard City Council for the upcoming hearing regarding the Director's Interpretation. Any suggestions/edits are appreciated. We look forward to discussing this topic on Wednesday at 2:00. Thanks, Todd Prager City Arborist 503 718-2700 1 Todd Prager From: Tom Coffee Sent: Monday, May 19, 2008 11:45 AM To: Todd Prager; Dick Bewersdorff; John Floyd; Ron Bunch Subject: Meeting with Tim Our meeting with Tim Regarding the Tree Code interpretation will be at 2:00 pm on Wednesday in the Bored Room. Todd- please send Tim a copy of your draft memo. Tom Coffee Community Development Director City of Tigard 13125 SW Hall Blvd Tigard, Oregon 97223 503-718-2443 tomcatigard-or.gov 1 • • Todd Prager From: Todd Prager Sent: Monday, May 19, 2008 9:48 AM To: Dick Bewersdorff; John Floyd; Ron Bunch Cc: Tom Coffee Subject: RE: Memo to Council Thanks Dick. I'll review and make changes. -Todd From: Dick Bewersdorff Sent: Monday, May 19, 2008 9:46 AM To: Todd Prager; John Floyd; Ron Bunch Cc: Tom Coffee Subject: RE: Memo to Council Looks good;there are typos and wording issues under issue#3 and#5; From: Todd Prager Sent: Monday, May 19, 2008 9:36 AM To: John Floyd; Dick Bewersdorff; Ron Bunch Subject: FW: Memo to Council Attached please find my draft memo to Council for the upcoming hearing regarding the Director's Interpretation. Any suggestions/edits are appreciated. Thanks, Todd From: Tom Coffee Sent: Monday, May 19, 2008 9:19 AM To: Todd Prager Subject: RE: Memo to Council Excellent first draft Todd-please circulate to Dick,John, and Ron for their comments.I have tentatively scheduled Tim for 2:00 on Wednesday and when he confirms I will let everyone know. From: Todd Prager Sent: Friday, May 16, 2008 1:24 PM To: Tom Coffee Subject: Memo to Council Dear Tom, Attached please find my draft memo to Council for the upcoming hearing. Any suggestions/edits are appreciated. Thanks, Todd • Todd Prager From: Lans Stout[LStout @tmrippey.com] Sent: Thursday, May 15, 2008 10:14 AM To: Todd Prager Cc: Dick Bewersdorff Subject: RE: Trees Thanks. From: Todd Prager [mailto:todd @tigard-or.gov] Sent: Thursday, May 15, 2008 9:31 AM To: Lans Stout Cc: Dick Bewersdorff Subject: RE: Trees Please find the attached testimony from the 5-13-08 public hearing. Thanks, Todd From: Lans Stout [mailto:LStout @tmrippey.com] Sent: Thursday, May 15, 2008 8:53 AM To: Todd Prager Subject: RE: Trees Scan and e-mail would be great. Thanks. Lans From: Todd Prager [mailto:todd @tigard-or.gov] Sent: Thursday, May 15, 2008 8:52 AM To: Dick Bewersdorff; Lans Stout Subject: RE: Trees Testimony was submitted by John Frewing in favor of the interpretation. Jim McCauley (HBA's VP of Governmental Affairs) and Phil Grillo (Attorney with Miller Nash)testified in opposition. I could either fax, or scan and email the full text of their arguments if you would like to review it. Thanks, Todd Prager 503 718-2700 From: Dick Bewersdorff Sent: Thursday, May 15, 2008 8:46 AM To: 'Lans Stout' Cc: Todd Prager Subject: RE: Trees 1 • — I don't know, I wasn't there; I will ford to Todd Prager and he can fill you in; It is my understandin g that the representative from the home builders chose a different tact than the last time they appeared because they sensed they might have created more issues. From: Lans Stout [mailto:LStout @tmrippey.com] Sent: Thursday, May 15, 2008 8:42 AM To: Dick Bewersdorff Subject: RE: Trees Who showed up to testify? From: Dick Bewersdorff[mailto:Dick @tigard-or.gov] Sent: Thursday, May 15, 2008 8:02 AM To: Lans Stout Subject: RE: Trees They listened to testimony and decided to wait until June to decide. From: Lans Stout [mailto:LStout @tmrippey.com] Sent: Thursday, May 15, 2008 7:28 AM To: Dick Bewersdorff Subject: Trees Good morning... What did the Council do with the tree interpretation? 2 •Patty Lunsford • From: Tom Coffee Sent: Thursday, May 15, 2008 9:34 AM To: Todd Prager Cc: Patty Lunsford Subject: FW: Director's appeal Todd -Since I will be on vacation when the report back to Council is distributed please be sure Jim and Mr. Grillo get copies. From: Jim McCauley [mailto:jimmc @hbapdx.org] Sent: Wednesday, May 14, 2008 2:57 PM To: Tom Coffee Subject: Director's appeal Tom, Let me know if you have any question regarding my input last evening and once the City has prepared a set of comments for Council in response I could use a copy as well. Thanks, Jim McCauley Vice President of Government Affairs Home Builders Association of Metropolitan Portland 15555 SW Bangy Rd., Ste. 301 Lake Oswego, OR 97035 503-684-1880 jimmc(a�hbapdx.orq • 1 I I , %' '' • • ..... - Ask . . . . .• ...--- ,...... -,--.--.....".., ■ , IP Agenda Rein No: V. t-a-- council Meefing,of '1 I Q..41 0% ' t 1:1. . City ...f - . .o 'riga lig , ... . Tigard Business Meeting - :Minutes TIGARD ' ' ' - . . , TIGARD Cyry.CC:ouNcEL, .,s:ic:At.cosotActRorttsy-Bo40.0 (LER13) MEETING DATE: May'13, 20013', MEETING LiXATION:, City of Tigard Town'Nall,13125.SW'Nall Blvd.;Tigard, OR 97223 Tracle2: • STUDY .N. MayOr:Diksen Called ihe nieetiii&fo:Ordei it 6:30 p.m. Roll.call:- .1■10.nie . Present Absent . Mayor Dirksen -. Councilor Buettner ' . Councilor Sherwood i. ' Councilor Wilson J Councilor Woodruff i( Staff present City ;Manager'Prosser, Community Development Director Coffee, Human Resources Director Zodrow;Public Works DirectorKoellermeier,%lice Chief Dickinson;Arborist-Prager,City F.ngineer.Duenasi:and: City ReCordet Wheatley; . Administrative Items: 6', Cotincil received testimony dated'May 13 2008 &ern.Mr.'John frewing for Agenda Item NO.:7 —Appeal of: Director's Interpretation of the Tree Plan Requirement o :Council received:a May 13 memorandum from City Engineer Duenas and Assistant Community Development Direeter Bunch regarding:Highwa.y...09W Corridor ImproVement and.Management Plan b Council reedived,.ii draft letter prepared by Mayor Dirksen regarding Ethics.,Laws and updated drafts.reSOlUtion to the:City Council, o 'City:Manager PrOsserreininded the City Council ottheir tivininvesilononSaturciay. • City Manager Prosserread the following:! .4. EXECUTI-V.E.SESSIONL The Tigard-City Council went into Executive Session at.633-p.m::under ORS '192460(2) (ci); (é) and (ii), to discuss labor negotiations,;real property transaction negotiations and pending litigatio, He noted the Executive Session might continue after the business meeting-due to the numb&of topics for.City:Council-review: Executive Session concluded 7:21 p.m. TIGAR.D CITY COUNCIL/LEM MINUTES,7-J4/W13,2008 , . _ . - . City of Tigard 1 11125 SW.Hall Blycl.,Tigard,OR 97223 I 503=6194171 I ■..r„ww:dgaid-or.goir I Page.1 of 14. . - • , • • .BOS.INESS MEETING 1.1 Maybe en called the:Meeting tO nide:x.at'7:31:55 PM: • 1:2 2 Roil Call:. Naine • Pie:Serif . Absent Wycir-birksrk Councilor Buelmer •1' CouncilorSherWoori ConikilorVilSOn Councilor-Woodruff -1.3 Pledge OtAlleglinee CounCil.Communications Bc-finison:Reports: None • 1.5 Call toCounal and Staff'for Non-Agenda Items: None I46 I'M: . 2. .lik0C404.ATION 'Mayor Dirksen..proclaiiiied May 18-24,2008,,AS EinergentyMecliCal:SeitiCeSAIRek: 7:3401 PM 3. :c.ITIZEN COMMUNICATION:(TWoMinutes orLess,Please) • Tigard High School Student i Envoy-Megan Foltz presented a,report on recent activities at Tigard High School. ...A copy of her report is on file in the City Recorder's office, Ms. 'FOlti,introduced Akita Kanbergs who will bethe'TigardIfigh.School Student Envoy OS:the:ay Council next school year 'ID City Council considered'a.resOlution to 2(146i:ow1edge-and Commendklegaii'Folt.dtir Her Efforts as,the:.7;?getrd lligh School Studint.Ehvojtto the City of Tigard—ResOlution No. 08-21 • MOtion by Councilor Sherwood,seconded'byCouncilor Buehner;to.adopt Resolution No.1)&21. Th -rnotittitt-wAs approved by a unanimous vote of:City Council present MayorDirksen Yes Councilor Buehner Yes COuneilorWilson, Yes Councilor:Sherwood Yes Councilor Woodruff Yes • Pavel Gobemian, P0 Box 1664, Beaverton OR 97075.distributed,a letter to the City Council. Mk. GobermanJieviewed the message in his letter. :He said he is a candidate for the US'Senate: He also reviewed his ..e0Atodis---,abog the media:coverage for his campaign and about how the media reports news to'citizens. A copy of Mr GOberman's letter is on file ialhe City Recorder's'office.. :Mayor Dirksen asked.City Attorney Ramis,if there Were Any legal. issues with regard to Mr..'Gabepi:tares teSrirnOny:: -city Attoniey Ranus said ;Oleic were no issues over which the City of Tigard had jurisdiction. 74 1:42.1)Nt • Joseph Bowder of Metro:Vii,lest:Ambulance spoke-to the City Council,about the service provided by Metro West. He presented.the'City Council withA plaque acknowledging the City of Tigard's support TIGARD CITY COUNCIL/LCRI3./ MINU.TJES_—MAY-',13;2008 titrof Tigard I 13125_SW Halt B1d., flgard,OR97223 J 5036394171 I ,*my*itigar47or,goy. I Par 2 of 14: • • and the Council xnembets to an upcoming barbeque celebrating Merro'West's:55t!i Anniversary on Wednesday, May 21, 2008.. Mayor Dirksen:expressed appreciation for the service provided by the paramedics of Metro West. -7:41,47 • Walt VanRheen, 8265 SW Cascade Avenue, ::Beaverton, OR 97008 reported he has :100-Med, that Washington County has determined that the Barrows Rbad..Bridge cannot sustain any further growth: At this point,.the County plans r to shut down:the bridge as Isoon as possible. Doing,so will dramatically iMpact.'135th.Avenue anclit willynot be able to support the resultibgincreaSed ittaffit. He said he hoped the City Council might have'some influence to request: Washington County impose some weight ,reSitiCtionsimtil Me:City of Bcayerton can complete theDayies.Road extension. :Mayor Ditirsen advised Mr VaiiRlieen that the City ton:00r was'informed of the imminent bridge closure last week Mayor Ditksen:04 the bridge has deteriorated and it either needs to be replaced or closed..'The cities of Tigard and Beaverton are.discuss'ing-ihis with Washington County to determine what.altematives.might beposSffile 7i46:23 PM • M-.4Y0*.Dirk5e.litevig*O.',theCon.sentAgenda.:: 4., CONSENT AGENDA: Approve City Council for 12 and 26;2008 4.2 Receive and File: 'a. Council Calendar TentatiVe;Agenda 4.1: Approve Senior,Center:Remo del Grant Agreement 4.4 Approve'Budget Amendment#14 to Increase Appropriations in the Facilities.Fund Budget to Reflect Additional CoSts Atsociated iAiith.the.TigarctSenior Center Remodel Project Resolution 1:1o.:0822. A RESOLUTION APPROVING BUDGET AMENOWNT'#14 TO'THETY 03Q7-9,8 BUDGET TO INCREASE APPROPRIATIONS IN THE FACILITIES,FUND BUDGET TO REFLECT ADDITIONAL;COSTS'',ASSOCIATED WITH THE TIGARD'SENIOR CENTER REMODEL 'PROJECT Motion by Councilor Woodruff secondedby.Councilor Buehneri to approve the Consent:Agenda- . The wi.. ipptcr,ifeTd,by iiiiiMMOUs vote of City Cora present 14ayorliirlcsen Yes, Counilor,Buchlrieit Yes: Councilor Wilson Yes Councilor Sherwood Yes Councilor Woodruff Yes' 7-4654 I'M 5. HONOR TIGARD HIGH SCHOOL.TIGERETTES DANCE TEAM..POR WINNING 2008 OREGON SCHOOL ACTIVITIES:ASSOCIATION'(OSAA)IDOCE/DRILL STATE CHAMPIONSHIP Dance/Drill Team Coach_Linda-Sheron presented the tity Conneil with a photograph of the team. complimented the members of the teattifv:Tho excel not only as dancers also academically The Mayor presented team.members with a City of Tigard: logo pin and congratulated them on :their outstanding: achievement Councilor:Sherwood commented on the =Saber_of hours of:work and the physical fitness of 'TIGARD-CrIV.C6UNCIL/LCRBI MIISILITES_-10.Y.13,WOO City of Tigard J 13125 SW Hall Blvd.,Tigard,:OR 97223 I 593-639-4171 I ww:V.tigard-or.gov I Pcrge;3:of ix! • • these team members; she said she did not think people realized the amount-of limeand:dediCation it:takes'to achieVeitierit. The photograph edtónghtill be displayed the'City Hall lobby. 7:54I:Pi PM- 6. FRIENDS OF THE REFUGE AWARD:TO:THE;crry OFTIGARD AsSoriate Roberts.introdUeed Be* Long repfeSenting, the:Friends of the Tnilitin River Wildlife Refuge. _Ms: Long presented a wood carving Of a heron as an expression of sppreciiribn,for the City of Tigard's recent:donation for the Grand Opening and also the recent DedicatiOn,Ceremony T(March 29, 2008): There-Were:More than 600 li1sitaiS to the,Center.on the day of the Dedication Mayor Dirlisen noted he was a manlier of the Friends ofRefuge. 7:53 )2 PM # 7. QUASI-JUDICIAL PUBLIC:HEARING — APPEAL OF DIRECTOR'S B RETATION OF THE: TREE PLAN REQUIREMENT—DEVELOPMENT CODE.CHNIER:18.796.0$0 (MIS2008,00005) a. Maybi DirkSen opened thepublic hearing, 7153:22-PM b. City Attorney Ramis reviewed the,protedures.for the hearing c. :Declarations otEhallenges: • Exparte Contact Councilor Buehtter:advised That in her liw=liractice::She represents developers who are members of thelHornebuilders Association; but she has had not contact with anyone, regarding this specific issue. • All City Council'members;indicated they were:familiar with thq application. • There were no challenges from the Audieticepbrtainint to the cOULtit:W's, jurisdiction to hear-this matter nor was there a challenge on theparticipation of any members:ofthe::council 757:44 PM . d Community :Development Director Coffee ?relented the Staff report. Also present was City Arborist Prager, 'Community Development:Director Coffee reviewed the elements of the Director's :Interpretation;a:copy of the staff'reportis,on file in theCity Recorder's office., Councilor:Buchner:asked if.'tbe:intent;qitlie-iiitev.tetailon'tios to try to clarify the current code so developers would know what was expected... Community Development Director Coffee replied that • this was the intent.. At. this 'nine the, Code requires a ;tree protection plan and -states; that protection/preservation of trees,is preferred; over removal, however, the not indicate what factors to consider in this:judgment.. This judgment can now be made by the applicant without indicating the extent.'66 which that.:Wal considered. The interpretation was an attempt to specify :criteria so staff can evaluate whether protection/preservation has been sincerely looked, at over removal: 'TIGARD CITY COUNCIL/LCRB/ miNuns--mityla, 2008 Citypf Tigai-ci 1 1312:5'SW flalL:Bivd,,Tigard;0117213; 503-6394.17i 1: www.iigard-or.gow 1 Page:4 of 14 S 11 e: Public.Testimony APP0144P. , . • Jun McCauley testified ask.repiesentativeOt the POrtlan4 Metro 171OniebnilderSAssociation,,Whieli is the listed appellant in this appeal before the City Council. Mr,McCauley•presented a letter dated May 13,2008. Highlights of•hiS.rema rks'are :follows:: • • Purpose:,of appeal: The Director's Interpretation has gone beyond, the overall. intent and practical application of TigarirS-tree protection standards elevating tree protection,well above a the appropriate P4ggr-±.-.•*.for." -Typc‘-3 application process • The Director's Interpretation 'uses the there,kitten-de of d. tree, regardless ,cif..iitipoitaii0. or significance, asa,catalyst to dump development applic.ations:with trees on site into the Type 3: • process. •. There is sufficient.basis,to request that the City Council dismiss the Director's Interpretation and granitheappeal request. • Mr. McCauley then reviewed the contents of his May 13, 2008,letter;]a copy of which is on file in the.City-Recorder's office. 806:49 I'M Council discussed the concernsr...of iht:Ftomebuikters•Association with.Mr:,McCaUley, Highlights of - the topics.of'discussion•.follow: • • Councilor Buehner asked where and how is a determination-whether any specific tree should be retained On a ,d0e1Opment: site:. Mr. McCauley Said the'interpretation .does nOt :speak.to:-a specific tree.or a number of trees, There are ten approval criteria created.with the Director's Interpretation: Nine.out.01 the ten.criteria have a standard that .in place.maxirniiing tree ,ietenticiti. This is a step well :beyond:What is Curren4 in the'Code:. Mr. McCauley Said. a different process was needed,: • McCauley responded to a question.from Councilor Wilson and confirmed that a Type 3 • : process was applied automatically because it is discretionary.- Councilor Wilson followed up by .asking i it wonld,not,hepoSsible to file a type,.2 application by anSWering::.the.10...queStionS and .iiegotia,ting-tV,ith,staff.,Mr.,MCcaiiley said tharthis WaS correct • Councilor WOOdruffasked'if the prinitry,conceit was related to the process or to'the outcome: Mi. McCauley advised.that if this was done in a different process, they would participate as it• would be in riperi: forum with discussion and participation 4iptip. the HBA and the Plinning coon:Os-4ot. • • 'In response to Mayot•Dirksen's'question,,staff'confirined that they:liad:no(:seen the'prepared :statement-presented by Mr.'McCauley,tonight • City Attorney Ramis.asked for some clatificatibn. He noted that on the first page of the letter ,presented,by Mr McCauley, there is an argument that the process•is•ileteolve.:because it allows the Planning Director.03 'operate'without proper oversight r.City Attorney-Ran*.::asked what there was aboutthepubrie-heatingzancLthe Council's ultimate authority that was deficient-as:tO proper oversight mt.McCauley advised the intent:of cOrnmentwith:regarctto TIGARI) couNcjj../Lcithj miNuTES'-_.--mxy..13;2008- Ciiy.of-Tigard I 13125 SW-Hall Blv.d.;.Tigard,OR 97223 I. .503-639,4171 AVww:tigard,or.gov. I :Page,5'of./.4. • • • . .• propei-OVeraiibt.is that this a step process;. Iftlie-Dit ector:Wants to make an•iiterpretation,,it must be :0114p010 04.413.04400. :stki. :.crit. a third party *0-#.0 to submit an application to trigger this step, that could be done Mr McCauley said that the oversight in an application process:gives the City CbunCil the opportunity to see the,application. Without the application, the Director is free to be judge and jury.; .,City Attorney garni.s.asked if there was some kind of oversight,, other than an appeal*to the City .Council with an opportunity to completely overturn or change the decision of the Planning=Director-that Mr: McCauley would Consider to:be..adequate. City.Attorney Ramis asserted that this is the opportunity for oversight,, this is the body that-Will,decide the interpretation .there some other'body that Should be exercising'oversight?'Mr.-McCauleysaid, •, Paul;Goberman had signedup to Speak but was not present • :•. John Fre-wing,.7110 SW Lola Lane,'Tigaid,:OR saidhethoughtdieippeal should be denied., He Made remarks!:Stipporting.biS.;positicd referring to a memorandum he prepared, a copy of the • memorandum ivon'file-in the City Recorder's office. • H ')271' • Phil Grillo,,Land:Use Attorney;Miller Nash, 114 SW Fifth Avenue;.PortlandOK97204, advised he was..present tonight on his_own behalf. He said he:had discussions--with-members. of the HBA He said he supported the HBA appeal. mi..Grillo presented a letter outlining his Main. points;4-coprof this:letter*on file in the city:.14cordet'S office J4:21:54!INI Mr Grillo :referred M.earlier questioning by City.Attorney:Rathis regarding whether there was a;:lclirio#0 process that needed to occur:other"'than being before the.-City. 01. itiL 140,,aaid it IO important to recognize the.'burden..ofproof. With an applicant in a quasi.ludicial proceeding; the applicant carriesthebuiden.of proof: He-questioned who:was:the applicant in this case? 'It= is not the Homebuilders as they did not-request.,the IntecprOatitin, As far as it is known,no one, requested an linterpretation: Therefore; the City Council does not know who has the burden of proof.: 'Determining-who has the burden of proof is a fundamental issue in deciding a.quasi, :judicial case; .• H:25:14-1)Nt Mr. Grillo:commented on earlier testimony and email-from Mr...Frewing: One of the-comments was a concern.about:this appeal.being:untimely._ Mt. Grille! cited Community 0.eveloproent. Code Chapter 1$34-0,00(d),0 (e)'; The appeal period is within 14 days after the interpretation was mailed.to the applicant. Who is the applicant? When was the decision mailed to the applicant? said it.appears that the Pta ig Director was, iii eaSerite,s,the.apPlicarit. :0,41:thogklie:did not Ede an application. 'awkward to tr3i'tti detettoirie:*hw,the 1-17--.day period began 'Grillosaid he thought the..Planning Director rightfully recognized that issue during the process and tried.to clarify what he believed to betheappeal.period in this airdadoia.. .said .theappeat-Waardintly filed:, -M;27l9 PM • :Mi. Grillo,commented on Mr:'Frewing's-argument regarding-the:ten factors that the-Planning bitectOt,-set out in the..ititeiptetatioti and that these factors Should be cimaidered approval tiiteri#,- It appears that the criteria-have been stylized as application requirements;however, the line. between application requirements -and :approval' criterion can. ge.t,'"faitly -,f-nzzy:71 The iiitelpietatiOngbes too far. It thatis expressed._as a preference,makes that the policy:chOice,.and then tries to implement that policy- choice by adding ten new approval TIGAR.D.CITir'COUNCIL/LCI03,/.MINUTES--MAY13, 2008 City_of Tigard. I 13125 SWHall Blvd.,.Tigard,01072.23 I ;5014394171 I www.dgard,or.gov I Page 6.of 14 • criterion-that are.:arguably also application reqUirements. This totally:changes the Static laidin terms of thettee.:PlanS in the City of Tigard Thi$:.icoo*toatipti..woola ske.10-gitigiAtp as a Type 4 eislative process. • :Mr:Grillo referred to Type 2 and 3 processes. The-issnefiete is with regard to needed hooiltig:. Under state statute there needs to be a Clear,path for ateitionk to be Made for approving needed - . _ . ,hOuSingrbg-does not:i.ovoivettiscretionary.criteria.: Councilor Buehner advised Mr.'Grillo that she would find the interpretation.to preaent.,helpful information to advise her clients and;how to approach an.application.-: She said she is having problems understanding;how criterion has:been created. She.see i them:as .suggestions about .howto present the application. • ."ftril:52 PM Councilor Btielmer said the information.was sent out to the r-HBA-for-comment;.none was received.. She:askedwhy they-did not,comment then. Councilor Budnick referred to different roles between the Hearings Officer and the,PlanningDirector, She cited the Cushman decision noted in Mnr:Crillo'sJetter;which appears not to apply here. 2;PM Mr McCauley responded to continent's and testimony: The HBA did.have verbal as well*§:e_- iii4.:.CcirreSpondence with the Planning,DirectOr when they got word qi,g:this:49tice came out The notice did not.come directly to HBA stiff;they received it from their members. From the .standpoint-of timeliness,Mr.McCauley advised they followed thePlanningpiredtor'sadYiCe.. Mr:-McCauley-said HBA. did not submit any formal response when:the interpretation-was issue; however,.they had verbal_conversations :With: the,-Planning Director.. -The appeal came:at no siirprke to the.Planning Diteotot. .814:49 PM Mr: Frewing,said the appellant 'stated there is no.requitement in the Code to maximize the savings of.viable. trees. .Mr. Frewing referred to his written comments; he said there are refe.renceSin the Code., Mr Frewing said that with regard to Type 2 Or 3 decisions,,even if one to toOditaeftfiat these are not Clear and objective criteria,.but are discretionary,.such.discretionary criteria are allowed in Type 2 procedures (111.390.020 b 2). 14: 5:47'P1 Mayor Dirks-en. asked for confirmation,from the staff and city attorney that there is need for 'response to the points put forth in all of the testimony-. City Attorney'Ramis-advised that given the material that has.been,presented and the able representation on'both sides of the issues along with the new arguments raised, that:itiO,PlatilliOg Director.ought to have the opportunity to consider this -informatiOn. City Attorney Ramis-gave an opinion that there is an :open question:about what LUBA would do in a.case such asthis. Our facts are somewhat different than the case referred to-in earlier testimony. The que.Stionis-Whether or.ncit those facts would -make.a difference. He said•he thought Mr.McCauley was correct in characterizing the facts in the other case as one where.there was no oversight over the Hearings Officer. The Hearings Officer.decision was fni1,which was then.-appealed to LUBA It did not go-1-.4toitO:ttio elected officiate who adopted:the Code. Also-in that case;the power to make interpretation.was-vested :TIGARD ury COUNCIL/LCRB/ .K[NuTgs..—imAy13, 2008: , 1:iall thrd.,tigdiii,OR 97223' 303-;639-4171, I www.tigard-or.gov. :Page:7414 • • • • in:the Planning•Director; not,in the Hearings Officer who actually made the:decision: 'Here,we have the power-vestedinthe Planning Director subject to the City Couneirareview;:;,:thig is also a difference.. City Attorney Ramis,said, "We are all guessing a little bit about which way LUBA would come out on that" He agreed with Mr Grub that all decisions of this risk in this context;however,itiadiffictilt.to say how,i4mA.wpoijAc4.4y decide: 8:37:54 I'M Community Development Director Coffee said be appreciated City Attorney Ramis'a advice and that it would be appropriate to close the_hearing and continue to another date the rresponse from staff. .He-Clarified thati the term 'Planning DireCtor" had been used throughout testimony;it shöüld be"COrtiiiiiiiiity DeVelOpinetitDireetor." 828PM .e. 'Mayorf-Dirksen.recommended thia be'continued,the hearing and to allow for consideration of the issueand:ineet;again to study findings. After.discussion, City Council consensus was that the points have been olekly articulated and the public,hearingshoUldbexlosed-andleft open only for City-Council,reView and deliberation. r:19:19 I'M . . Mayor. 04404.;e40$gd the public hearing The (ii-ycoof.ii.toie*:*#1:.:00ibef41:404 was §a01i4e0, for the City Council.meeting ofjune 104008. City Council meeting recessed: 8:44:'R,PM • - . ened: .8:49:47 PM •.H:49:49 PI s.:, UPDATE ON THE .-TO 99W CONNECTOR PROJECT City E,tigineer.Duenas introduced thiS agenda-item. 'He advised:this project has been on the Council goals for at least the list.couple'of yeafs. The last update on.the project Was in August 2007-. 'City Engineer Duerias.introduced:Lawrence-.0"Dell..Whp is.;the•Assistant Director of the Department of Land Use and Transportation;.Russ Knoebel the Washington County Principal:Engineer: Also.present were:two,project, SeottltirliiriA0 Mr. O'Dell presented,the update; highlights are contained on.a PóweiPoini prese tatiqnwbidiis on file in the City RetOrder'S office. Desired outcomes: :More:efficient travel in the study area Viable town center protections Mobilitylimprovernents- .Freight improvements' Reduced ttaf-Tfic Nothiiir has changed since the beginning of the process Mr. O'Dell said this,project.has.-.come along,way. About 1.4/2 years ago, there.-to..t .lifOre than:230.scenarios on how to deal with the istie, He referred to the public process to narrow the alternatives .down to three-. These are physical highway -connector .alternatives. There three,other process alternatives.. -8:54111 PM • TIGARD:CITY COUNCIL/LCRB/ MINUTES--MAY 13,, 2008 c4Y -.Tik5p4 I 1.3 1;25:SW' Tigiird, 722.3: ,50-09-417.1. www.tigard-or.gov P4ge.$of.14 • • The Alternati alySiS.Report.will he -released,this"week Mr, public review.and•comment. After•:the process is complete; they will look for.an,amendment to the Regional Transportation Plan and if that occurs thedesignlevel will come nekt., 8:55:31 PM. • Mr Lawrence reviewed the range of.alternafives-within the identified study area, these are illustrated in the PowerPoint presentation: How to'fiiha..tetilains,A'qudstiot,fot.a.h.,41tettiatives:- All of the are estimated at about$1 billion. .(high end). .Mr. O'Dell said in:his opinion,tolling will-be.a requirement. 'Option.6 would,lend itself:to t011ingsnore than the:Other tWo options. 905:12 Phi: Mr O'Dell:.referred to population:.projections as part of the process. They are using 2030:population. projections now -When:they..get:to the:design4eVel EIS phase, they will be using 2035 or 2040 projections He s*iii,-41,of.the..:*ltetti*Oes have the controlled access points usmg auxiliary lanes to The cost to Oyerall project for these auxiliary lanes is 'about 34-36 percent of the entire cost.• :He said that Washington County officials are not:convinced,that this Magnitude.is :necessary, but,. at this stage, it represents:,a,worst-case pieture. 'While inappropriate,:there have been OFFie..actiOnS.101.4.15.g the directional, auxiliary lane'representation and overlay it along.1-5 and extrapolate that to a much larger cost impact to the project. Mr O'Dell said it.is7inappropriate since the illustration at•this time is only representing what the access points*Could be. Mr. O'Dell discussed considerations as to Whether:the.connector should be,designed as a paikai.ay, or exprestitmy. 9109:19 Phi, 'Councilor.,Buehner:advised she recently viewed:a-design that-.allowed people to get on and off:buses,in the middle of the section of the freeway. Has tiiis;beefi;considefed,A.S:a.,,pOSSibility? 'NO,..01D:ell said this would be.a great thing to put in the inik.and consider as the deSign,actiVinek.are discuSsed., At this time, design - level *sues are not being discussed, but they are looking at where the corridor will go and what are the major environmental and other issues that need to be dealt.,t,iith.. What COUriCilorlinehtier suggests might be.a.tpoii option The:connector will be a hiti.ited.ketek§ highway, two lanes in each dire0:410,,,a041likely. designed as something less than an expressway. "1 llM Phi • O'Dell"revieWeglibe project'benefit:1.16r Tigar • •■"No direct project :costs betatitenitais.located just north of the prOject area. • • Alternatives-3 through 6 will reduce the;traffic during the.2030 peak hours.2300 vehicles and large truck traffie up to 200 on Highway 99 in Tigard . . • Alternatives 3,through 6 will reduce the total traffic.during the 2030 peak hours 3400 vehicles ornate truck teatfiC:AbOUtl6,071-Sti,on T_)iiaiA.Oacl TIGAR.WCITYCOUNCIL/LCRB/ MINUTES.7-MAY-13, 2008: ._ City of Tigard:, I :13.1 .5 SW HalF Blyd..Tiwird„OR.97223 I 503:7039-4171 I w*.y1piatti7stitgOii. I ;Page Sr of 4:4 An, Mr.:00611 referred.to the-next steps and thesearelisted in the PowerPoint presentation. The public process coming V.will be the time for the City of Tigard and•other communities',to give their Views on the alternatives and proposals. ):l :3 l' ( Councilor Buehner asked WherithiS:would be presented to JPACT. ME O'Dell:AdViSeilthat JPACT will be a part of the RTP•amendment process: -Once that is'done it goes into the design level and EIS process, which is hoped,to occur in 2009. This summer they want-to get,the alternative analysis approved and out for"ptibliC.conittietit; The,f1follengeiS that this is a tieiLcine ptbeeS.S.being emulated and not a tier two, there is A:tendency for project concept proponents And•opponents to look for more detail in the process than what exists for a tier-one level They di:),•want to provide some level of detail,.butitisnotintended to,getto: the Where the tOrine:ttOt.,,itSell is deSigneil. The analysis report to be released:Jobki•to identify what potential impacts: are any of this process Until,you get;to the design level, you cannot identify each impact-. Mr. O'Dell said he was optimistic that they would have something-from the .prOject steering committee-to ask the public for comments. :9:17:2H PM Mr: O'Dell noted his Appreciation of City Engineer.:Due..nas who has been sitting on the ExectitiVe. Management Teamgivinginput-anahas representing City:ofTigard's interests:. 9:17:4g PM' Countilor.Buehner asked when would there be some design to review and after the design how long will review process take Finally,when would the construction start? Mt O'Dell saictthis.Will be along;phased. project, Chair Brian has traveled to Washington DC.on several occasions:and will-begoing again:the first week-of:lune:to:100k.for fuotis-forthis,:project Thetitneline is fort: • An RTP•AntendmentinSeptembet • draft proces.s toward the end-of 2008, o When the EISis.through,then-likely there will'be details ofthedesign level process:.(2009).- • Construction will occur in phases within a couple of years,if not sooner 'If. 'The:cornpleted,phased COtufectbtprOj'pet:Viill tat frOiti.1.016 15;yeatt • The connector-4iihe'Apackage of projects: Some of the packages.-will likely be started-in 2010 or 2011. However, mr. 00e11.. cautioned that the 1040 the project takes, the :.tnore expensive it will become; Purchase costs for right-of-way increase as time goes by The estimate for the connector about 14/2 years ago was $300400 million. The:connector estimate has.:beetr raised to $700 million and if the I5'•access points•occur,this will be another$330 million The„connector right,of-Way needs to be designated to begin •xeserving.apd buying.the right of way; 9:21:117 PM 9. CONSIDER AMENDMENTS TO THE .COMPREFIENSIVE:AND TRANSPORTATION.-SYSTEM PLANS TO INCORPORATE THE RECOMMENDATIONS OF THE .TIGARD :9,970 IMPROVEMENT AND MANAGEMENT 'PLAN. AND RELATED POLICY' AND ACTION MEASURE.PROPOSALS,Of THE.PROJECT'S CITIZEN ADVISORY COMMITTEE (CAC), Assistant Community Development Director Sundt reyiewed-thisAgenda item noting.staff as;asking the.City Council to initiate a COMprehensive Plan.ainenclinent to incorporate the,recOmniendations of Highway TIGARD,CITY•C()UNCIL/LCRB/MINUTES 7 MAY 13; 2008: . • - — City oirTigio p1,25 SW ti;i11 Bry4„ii c313:97 , F 5pL6,39-41:71 I pogoo of 14 • • kn. pro'vetnent;.-ancl,..MAnagenief4 Plan. 4p45!:#41.compnunity.-Development,DirectotBunch..-overViewed the gtocess: copy of staff report is ottfilein the City Recorder's office. Oregon Department of Transportation reviewed Tigard's model for the Plan and determined it was credible., The City.received, CIDCTs. permission to proceed:: During this time there were refinements to the Hall/Greetiberg intersection and:modificationi tothêilan and,COStS... The staff was before the City'Councilto ask them direct the Planning Commission to initiate changes to the Transportation System Plan and theZoinprehenSive-Plantb evaliiate:thepropOSalandrecOrtiniend..to the City Council whether Or not tti adopt:the recOnirriendatiOnS.Or,to chAnO,them. :9:24:23 I'M: Assistant-Community.Development Director Bunch.referred to ,concerns previouSly..taised:by'Councilor• 'Wilson. Brief responses to these coneetng'ivete.ptotiided in-o.:rtieinorgnilinn.:froni;.City:Enginger:buertas;:,4 'copy of this.niernOrandinit,is on file in the City Recorder's office Assistant Community Development. Director Bunch'suggested staff could respond more definitively to these concerns:through the evaluations and.findings of the ComprehensivePlan,athentlinent protess. Assistant COnimUnityDevelopirient.DireCtOr. Bunth stressed that tonight the City Council is ifoeb,eiilga.., ke4:-pp:approve the 99W plan or even to endorse all of it; the request is for the of the,Plan amendment City Council can reserve its final deCigion: until,-4fter the public hearing when the City,CounCil.ConSiders:thePlanning Commission'aleconamendation. •926:25 Assistant Community 'Development:Director Bunch-said because of all the activity in the region, it is important that the City Council initiate the amendment process -due to tithing. For example,,Metro is working on the Regional Tianpottation Plan not0-ind this will be the basis for regional funding. The City• has expreSSed,thetriew that 99W should be a candidatefOr:futwe lightrail, We have'beeninvoliredlitsome regiOnal discussions.about light rail and rapid transit issues: The key to success will be clear, Coordinated. • policy.decisions involving the state highway system, 99V., Our light rail promotion indude land use evaluation proposal. •It is important to the staff to identify the policy issues in.:atimely way-.so-they • can begin to evaluate what it will take to:createatransit-friendly•environment from a land use petipective, on this'major transpottation corridor. :9:27:47 I'M Assistant.Community Development Director_Bunch.said the:City is•poised.to update its Transportation. System Plan;:staff-wants to these completed within:18•inatitii . Part of:this,effort.will include an ,evaluation of the transportation issues Ofectitig the rig4-0-Tfoo. To complete the Transportation. -System Plan on,schedule-g44-#§olve.questionsi staff also needs-to:have'clear policy direction on.99W. • 4:28:22 i'M . • Assistant Community.Development Director Bunch si-ft-ririlt-lied that staff would like t.11- City Council to initiote'die,p4ii,iii*04,0--ot and f*ve;.-04f.414 the 14.1,,niog.scogi,tiisi*t.a:cidress'Councilor Wilson's issues fancl;any otherissues the City'Council might have. City Engineer Duenas added:,that Oregon Department of-Transportation:looked at the'model that Tigard's- -Consultant;;MS,:used fOt-9.9W::atid concluded that they would accept either a'five-:or seven-lane section. He said he thought this was part of the issue that was brought--up by Councilor Wilstin, The Main difference *mild be that the queues on the Side.streets would be longer with a eve-lane section: City- Engineer' Oiietins referred to his memorandum. and advised that.the Plan, rills for .intersection. improvements and transitions, which in the case of Greenberg Road,. Hall Boulevard, and the :20' -;Interchange,blend inta:aSeven-lane Section. Therefore the reSult is a seven-lane section primarily because "the:into-tsd.ctions.g±e 'so tiose:togdth4, ..Flgtliq up, there is the saine issue from .68!i'•Avenue:to.the 145 -TIGAR.D.CITY COUNCIL/-KRI3IMINUTES—MAY 1332008_ 'Cityuf.Tigard I J 3.125:,M H411-Blyfi, flgarci,OR 197223 I 503-09-4171 ,UigoiT,• I Page kof • • • Intercha.nge;iit betweenthereis a capacity,and afi.ve-lane section hmild suffice. It's possible thatas,part of theprocess,.we.Will'find out that the Plan achieves the goals without widening rateat-Wheie-it is not heeded. Or,we inightfindthat a'seVeti‘line-AettiOn is whatwe thatild construct Mayor Oirliten commented that what is before the City Council is essentially:a:draft With,whith,-ta'begitkhe .review•and public hearing process. City.Engineer.D.uenat carifihr7ied..this*Ateth1ent. ;9,30:22- :Mayor birksetr asked;Councilor Wilson if he had A'chance to look at some of the staffs response to his concerns. Councilor Wilson said he has:looked,at the response briefly. Be.said he was not advocating for seven lanes,he wants to makettire that if we„get:Earn.the previously recommended seven lanes to'fiVediAt we do:iiat,haVe:iiegatiye impacts Councilor Wilson said he is particularly concerned about the Tigard Triangle and the development that has occurred and could-occur since the "up zone” We are "flat prepared to deal with that'.' He Wanted to make sure that-WhateYet-We,do„itallowa,the Tigard Triangle to develop as it was intended, Even lookinr to the future aa'we-are-updating our Comprehensive Plan and zoning to'follow,he said he:thinks-the-market wants to go even-denser;this;a good thing for this location He dOestet want to take action that would preclude this the Transportation:System Plan didn't.'setin to Sindicate,rco 00.11..Of.P#4te4P.4.0qtP. we:need.0194 at this-carefully. Councilor Wilson':noted another concern that needs to be reviewed. He.said he :there has been enough study of the Walnut tO,HUhAilter connection because it hasn't been funded. Since 2002,,this was identified as a helpful He said doesn't know this can be funded;:.but we might this is- even,bettetand cheaper: toththeTSP and the-99W-report Mend-oh this connection has having benefits to the intersection of 9.9W.hear . , daYhtOwi,,the Tigard Triangle,and helps the Downtown Improvement Plan We would be if we 4a:opt:fna :. to do some:analysis.and.push'hard get the.connection into the Regional Transportation Plan. City Engineer Duenas suggested :that; as part :of Tigard't. Transportation Systeih,Plah update,•this s.cart:id:4i be specifically reviewed'incl.:either-Validated or eliminated With the-E4 9'1.41.1.-be'part-of the reyiew. To place it on the RTP; some:chaites: will have to be made because there is a hmited amount.of money and if'this, was placed an the .something,elsewill haveto be-removed. 2:34:-4 3 I'M ,b4a.yox-Pirk.s.en-referred to the 9.9W study and the choices'that will have to be,made with iregard to the Tigard. Triangle, and said he assumed that we would have to .-conticiet.what-.other- upgrades: will be anticipated for*72".Avenue as',70e11.as the effects,.af the'Hutiziker carmection. City:Engineer Duenas commented that the Tigard Triangle has some serious challenges with the'217 Interchange at 72°Avenue., He understands-,Councilor Wilson's'concerns that if the Triangle Cannot develop,.then there is hatically: Moratorium on:development for this area there is :another.major development in this.,-Area; it will generateihetriffit.that will forcea.decitiOn„ The TSP is one way to focus on the Tigard Triangle and,:ilie ''Walnut-Street eitension. In response to a question from .tauncilar.Sherwood, City Engineer'tinerns--confirmed that the Walnut Street extension would require another rail crossing at Atli.Avenue, which is being:sought as part of downtown circulation Councilor Sherwood referred ,controversy of iitiaitiog: #76:1$_.on 99W,however,she ktihAiker/W.alrttextension niucli:tharetontroyertial than limited access.,on:99W, 9:37:411)l'M Mayor-.Dirksen,recommended that the cif),'Council make.-a motion to.,approve gairtg -process.with,the ihfomnâtiôn presented. tie-otIggo ;tei:1,that the City Caiihtil include the draft-study, -the: TIGARI) CITY COUNCIL/LCRB"MINUTES—MAY-13;2008 'ciiy.ofTigard I '13)25.$WTIAll p13.9724 ' 1",)3=§3 941 71 N.iNir*-tivid-oligof Page,.12oli4 • fr*.P11- the '.considered cluiing,the.review procesaby-thePlannini Commission. .9:37:17 PM Councilor Buehner referred to regarding limiting access on Highway 99W;-City Engineer.DuenAs :confirmed:that he has copies of those e-mails:. Councilor Buehner advised she thought some important issues were raised and she.would like tcyseethat:material:includedinthePlanning Commission's review. .9:39:0K PM Councilor Wilson WO-IMO-40 there was any way to get consultants "on board" to do a Walnut to'fiiinike..r ,study: City Engineer:Duenas said the City did contract with DICS:to get a desirable corridor, that study was basically to find a way 10 go.all of the way from Walnut at,9.9W through some apartinerit complexes and wetland areas,across A.sh.Avenue and then to Hunziker Thot: todyisidoo. City Engineer Ave probably need to pull back and look-at the need for that corridor and the impact it would have if it was available: Councilor Wilson Suggested that at least a cost/benefit.analysii. be done to explore the relative par':o:f.tho:90*ktgdY*Ii4:tb'er$1': -tbs.:24 PM • ouncilorWoodruff advised that WalMait has.notified us that they do not.plan to.build-a storein:this rare_a. 9:411:51)Psi In iespons'e.tes:Mayor Pasch,.Assistant Community Development Director Bunch advised that.staffWOUld. like to have the City' Council approve a.;motion. to ,direct the :Planning 'Commission to initiate :A. Comprehensive Plan and Transportation System Plan amendment to consider the recommendations of the Tigard 99Wprovementand.Management Then,staffWillinitiate the applicationand-beginihe process: 9:4I:17 PM. Motion by.'Councilor.Buehnerthat the City Councildirect Stiff tminitiate:a.ComprehenSiVe-Plan.process as just outlined by Assistant cbthrouhity.1:),eNielOpineht. Director BiinCh.. The motion was seconded by 'Councilor Woodruff t•. ThemOtion Was apprOVedbyra-UnaiiiinOUS vote;OECity•COiiricil present. .Mayor.OfiliSen Yes Councilor Buchner Yes Councilor Wilson 'Yes Councilor Sherwood Yes; Cotincilor-VVoociruff Yes. 10:- COUNCIL LIAISONREPORTS: ,None 11.. NONAGENDA,ITEMS: None. • Mayor Difisenannounced theCity-CounCil willhold an.Execiitive.Sessionafter the'biiSinessnleeting. Motion by.CounaltliWoodniffiseconded by CouncilorSherwooktoTadjourhthemeiting City Attorney Ramis clarified,in response to a question from Councilor Buehner,that the Executive Session wording read in thoneedng was still applicable; 9413!PM Themotion,waslapproired brannarinnous-vote oftoinicilpregent. 'TIGARD-CITY COU.ISICII./LCRESI MINUTES:--MAY 13,2008 of.Titko .1 p125.--.SWI-1,a111314,Tiga41,ow:934,1. I: %504419-417/1 I. ,:yii:rwAgar -ot.gq J Page.1,3 of . . , . 410 • yOrlDir,itsep 'Yes 'COluitilOfliiiehrier Yes CounCilorWilion. Yes • :Councilor Sherwood Yes Councilor WOO4kOff .'Ye§ NOte: Executive.Session concluded at10:59 p.m. ' • - chile eatley;City Recor er- . . attt ,,Aitest, Ma)i.Or;. ity of.Tigard Date: ....,e,t•Itid._, Q.: -, 1:\Aom\cathy\c-cm\2008\o8o513'aiiit4oc , i 1 1 1 i S TIGARD CITYCOUNCIL/LCRB/MINUTES MAY 13,2008 ,City of Tigard 1 13125 SW Hall.Blvd::Tigardi OR 97223 I 503-6394171 I v.ivic-v:tigardor.goy j ,Page 14-oi 14 �.. • • Todd Prager From: John Frewing [jfrewing @teleport.com] Sent: Monday, May 12, 2008 7:11 PM To: Craig Dirksen Cc: Todd Prager; Tom Coffee Subject: Public Hearing - Director's Interpretation (Tree Removal) Mayor Dirksen and City Council Members, Below is the full text of my testimony as planned for tomorrow evening, May 13. I know that you want to limit the time of individual testimony, but I want you to consider fully the thoughts I offer, and I want you to have the exact reference to various code sections, so I have decided to provide this in advance. I hope to at least highlight portions of this material orally tomorrow evening. Please do consider the issues I raise. John Frewing TIGARD TREES—APPEAL OF DIRECTOR'S INTERPRETATION 5/13/08 I appreciate the opportunity to support in major part the Director's interpretation issued on 2/26/08. My testimony is directed at compliance with the applicable approval criteria found in 18.340, 18.390 and 18.790. A: Untimely appeal. Section 18.340.020E requires appeals to be filed within 14 days of the Director's interpretation. In this case,the Director's interpretation was issued on 2/26/08 and the HBA appeal filed on 3/14/08. This is greater than the maximum 14 days allowed. Section 18.390.080A.2 of the code explains the rules for time computation;the day of issuance is not counted,and appeal on the last day of the computed time is allowed. In this case, Day 1 was Feb 27 and Day 14 was March 11. The HBA appeal failed to meet this code requirement by three days, and it is therefore untimely. The appeal should be denied. Alternatively, Section 18.340.020E states that an appeal may be filed pursuant to Section 18.390.040G2. This latter section,at 18.390.040G2.a.(1), states that an appeal shall be filed with the Director within ten business days from the issuance of the Director's interpretation. In this case,ten business days,with Feb 27 being Day 1, ends on March 11. The HBA appeal failed to meet this code requirement by three days, and it is therefore untimely. The appeal should be denied. HBA received fair notice of the proposed Director's opinion. The email from John Floyd providing public notice included as DIRECT ADDRESSEES people such as developer Alan DeHarpport(who sends comments to Tigard City Council on HBA stationery),engineer Bill McMonagle, arborist Walter Knapp, Steve R at srdllc,Troy M at srdllc, planner Jeff Caines,attorney William Rasmussen, builder Ken Gertz and Tom Wright of Group Mackenzie, all of whom have participated in land use matters before Tigard. Such distribution meets the code and Oregon legal standard of a `good faith' effort to contact affected persons(see eg 18.390.050F). B: The scope of the appeal is null and void. Section 18.390.040G2a.(2)(d)states that the notice of appeal by HBA "shall"contain a statement demonstrating that the specific issues raised on appeal were raised during the comment period. There were no issues raised during the comment period by HBA;therefore there is no basis for an appeal. The allowable range of appeal bases or reasons is empty; it should be denied. The comment period began with the issuance on Feb 15 of an email from John Floyd to interested publics containing a draft of the Director's interpretation that was eventually issued on Feb 26. I was the only one to comment on this draft Director's interpretation, sent by return email to John Floyd on Feb 16. Section 18.390.040G2.b states that the scope of appeals under this chapter"shall" be limited to the specific issues raised during the written comment period unless the Hearings Officer(in this case,the City Council)allows additional evidence. The rationale for this rule is to"encourage(ing)persons with standing to submit their specific concerns in writing during the comment period"and"only in extraordinary circumstances"should any new issues be considered by the Hearings Officer. In this case,the city's Public Hearing Notice was clear that the appeal hearing will follow the code and any ._` • procedures adopted by the city council and available at city hall—there are no adopted waiver procedures noted in the Public Hearing Notice or available at city hall pertaining to this issue. Therefore,the content of the HBA appeal is null and void and hence there is no substantive appeal scope; it should be denied. C: No change in code intent; code clarification is permissible. Section 18.340.010 anticipates the need to clarify words of the Tigard development code. While the submittal of additional detail in a tree plan is added by the Director's interpretation,there is no change in intent. The code specifically allows the Director to `resolve(ing)ambiguities.' The ambiguities have arisen in land use proceedings before Tigard and LUBA where the meaning of`Protection is preferred over removal wherever possible' has been contested. The standards of approval,namely that the applicant is required to demonstrate compliance with the regulations and that protection has been afforded reasonable preference over removal, remain unchanged. All that has been clarified is a listing of information necessary for staff to make a finding on these standards. The appellants point to no code language prohibiting the interpretation proposed in this case. The HBA appeal should be denied. Now, for a couple suggested improvements in the Director's interpretation and its use. AA: The code should clarify that submittal of the required narrative is an `approval criterion,' not just an information request. The rationale for this suggestion lies in the fact that on appeal, items in the code which are only information requests are not considered—the only examination which LUBA makes regarding an appeal is whether the"approval criteria"have been satisfied. The solution to this situation is to retitle Section 18.790.030 as"Approval Criterion for Required Tree Plan"and then to append the Director's interpretation to the bottom of 18.390.030A. With such a clarification,the city will be on firm ground to say that 18.390.030 indeed is an approval criterion. BB: Requirement 8 of the Director's interpretation should have added after the word"footprints"the following in parentheses: "(as show on application drawings)". Not only is it necessary to know"how" buildings and building footprints have been designed, but one must also actually see the proposed layout of buildings and building footprints to make this judgment. Without this suggested improvement, a developer might simply say in his narrative that"buildings have been moved to the front of lots"or"building footprints have been designed to be narrow as viewed from the street" or similar qualitative words,without considering actually where the major trees on the site which can be saved might be located. CC: A new requirement should be added to the Director's interpretation stating, "Show overlays of tree locations on site drawings of infrastructure development(streets,sidewalks,grading,ditching for utilities,cable,etc)and individual lot development(building footprint,driveway,impervious walkways,ditching for drainage,irrigation,or other actions which may affect the root integrity of trees to be saved,etc)."As presently practiced, a developer provides one drawing showing trees on a site, including those to be saved,but this drawing does not show site infrastructure or lot developments which necessitate removal of trees. The reviewer is left to guess where a building might be located, or where utility ditching may occur. Little or no thought is given to where infrastructure or lot developments might be slightly altered to save important trees, and no instructions to subcontractors are provided for location of these features. Different Tigard staff persons may be involved in approving the location of these site features than the planning staff that is involved in permitting the development. The new requirement for coincident illustration of both trees and infrastructure/lot development will allow Tigard planners to compare tree locations with such site work that would threaten trees. Finally, I provide an analysis of the HBA appeal filed March 14,2008. AAA. The appeal must be garbled in its preparation. What possibly could the words of the first paragraph mean when the HBA claims that the interpretation "elevates tree protection standards well beyond the purpose and the practical application of a type 3 application"? What criterion is being addressed? Why is a type 3 application the standard for tree 2 • protection? How does the interpretation go beyond the requirements of a type 3 application? This statement of the issue is nonsense. BBB. The second paragraph(beginning `The Director's interpretation)cites code sections to assert that nowhere does the code require protecting the"maximum amount of existing viable trees or any tree,for that matter". Appelant HBA has simply not read the code. At 18.350.100B.3.a.(1),the code calls for preserving the existing trees to the greatest degree possible. At 18.360.090A.2.a.(1),the code calls for preserving existing trees where possible. At 18.360.090A2.b. the code requires that trees shall be preserved to the extent possible. At 18.790.010B.1,the code states that it is the purpose of the city to encourage the preservation of trees in the city. CCC. The third paragraph (beginning `These sections do not')of the appeal makes a vague charge that to meet the interpretation,development cannot occur on dividable properties with trees unless a Type 3 process is used. No code citations are provided. Such prohibition does not exist. While the interpretation does not change the approval criterion from its current `clear and objective' status(it simply requires some additional narrative information to enable staff to make findings on the approval criterion),even if the HBA were correct in saying the interpretation involves discretionary criteria, a Type II decision process can indeed contain such discretionary criteria. See 18.390.020B.2. DDD. In the third paragraph,the claim is made that `the cost of construction would spiral out of control' if the Director's interpretation is implemented. Not the slightest whiff of evidence is provided anywhere in the appeal to support this claim. Without facts to support an opinion,the assertion is interesting but with no weight. EEE. In paragraph four(beginning with `State law'),the appeal says that an applicant under the Director's interpretation will be REQUIRED to reduce the number of lots to maximize tree retention, because of statements in points 5, 6, and 7 of the interpretation. These three points NOWHERE use the word `required'; all they do is ask the applicant to answer three questions in the affirmative or negative, indicating whether flexibility already existing in the code can be used. The Director's interpretation retains the same standards for approval of an application—a)is the requested information provided and b)has the applicant applied the various tools already in the code to retain the maximum number of trees. Thus, if the current standard for approval is clear and objective,then the standards under the Director's interpretation are clear and objective. No change in the decisionmaking process,from Type II to Type III is necessary. FFF. In paragraphs five and six(beginning with `The type 3'),the appeal claims that the PD section of the code is intended only for sites with sensitive lands,not those with trees that are otherwise not on sensitive lands. No reference to the applicable code sections or other basis for this claim is provided. In actuality,the code at 18.350.010 lists five purposes of the PD overlay zone—none of these five purposes mentions anything about sensitive lands. At 18.350.020A, the code clearly states that the PD designation is applicable to ALL zones. The PD regulations at 18.350.100B.3.a.(1) specifically require that existing trees be preserved to the greatest degree possible,without mentioning sensitive lands. Thus, one can conclude from the clear meaning of the English language in the code,that PD regulations are intended for a wide variety of lands, where trees shall be preserved. GGG. The last sentence of the appeal claims that no other jurisdiction requires applicants to make these type of considerations(the information requests stated in the Director's interpretation). This is simply not so. City of Portland code, at 33.630.300,which allows mitigation,just as does the Tigard code, states that mitigation as an option will be considered ONLY if`as many trees as possible are preserved'. The City of Portland code,at 33.248.065, requires applicants to show how tree protection requirements are met, much as the Director's interpretation in Tigard makes this requirement. Portland tree preservation and protection requirements are much like Tigard—construction fencing, prohibition of use which could hurt tree root protection zones, show location of water, sewer and other utility easements, show location of dry wells and soaking trenches,etc. City of Wilsonville code, at Section 4.610.00 makes the same requirement as the Tigard Director's interpretation, namely that the applicant `shall provide complete information as required by this chapter.' The Wilsonville code at Section 4.610.10 has a standard similar to Tigard regarding maximizing the preservation of trees—the applicant must show that tree removal is `necessary for construction,' and `that there is no feasible and reasonable location alternatives and design options on-site for proposed buildings, structures or other site improvements.' Wilsonville's tree preservation plan information requirements are similar to those of Portland and Tigard. John Frewing, 7110 SW Lola Lane,Tigard, OR 97223 503-245-5760 3 ! • P.m HBA • Home Builders Association (f1 fi d.G...II t/+ • of Metropolitan Portland May 13, 2008 Mayor Craig E. Dirksen and City Council Members City of Tigard 13125 S.W. Hall Boulevard Tigard, Oregon 97223 Subject: Metro HBA appeal of the Director's Interpretation Dated February 26, 2008, regarding Chapter 18.790 (Tree Removal). Dear Mayor Dirksen and Councilors: As you know HBA filed its appeal of the Director's Decision dated February 26, 2008. HBA's purpose of the appeal is quite simple. The Director's interpretation has gone beyond the overall intent and practical application of Tigard's tree protection standards elevating tree protection well above the appropriate trigger for a type 3 application process. In essence, the Director's interpretation uses the mere existence of a tree as a catalyst dumping development applications with trees on site into a type 3 process simply due to the existence of trees regardless of their importance or significance. HBA believes we have sufficient basis for Council to dismiss the Director's Interpretation and grant our appeal request. No written request was included in the Director's Interpretation: Based on Section 18.340.020(A), in order for the Director to initiate an interpretation a written request is required. Based on the file information the Director violated this requirement by ppsenting application from a third party making the request. Based on recent LUBA findings, when a jurisdiction requires a written application in advance of a Director's interpretation at any level, the requirement can not be waived for any reason. Failure to initiate a Director's interpretation from a written request is a jurisdictional error because it does not allow the jurisdiction to make the interpretation and allows the Director to operate without proper oversight. This alone is reason enough to dismiss the Director's Interpretation. See Cushman v. City of Bend, November 5, 2007 (LUBA) (To invoke the hearings officer's authority to issue a declaratory ruling, a person with standing to do so must "initiate"a declaratory ruling, that is, file an application.) • • Director's interpretation is inconsistent with the text and context of the provision being interpreted: -- The text under consideration is the phrase: "Protection is preferred over removal wherever possible." This phrase contains seven words in subsection 18.790.030 "Tree Plan Requirement" of Chapter 18.790. This subsection describes in general the preference for protection over removal. The phrase establishes no implied standard or approval criteria beyond a general goal statement. This statement does not establish anything close to a "maximum tree-retention" standard as suggested in the Director's interpretation. In fact the word maximum is not alluded to at any point in Chapter 18.790 relative to tree protection or mitigation. The existing phrase merely expresses a preference and nothing more. Given the relevant approval criteria in the existing code an applicant is not even required to save trees, let alone establish a standard to "maximize tree retention". Based on our interpretation and the current language the existing code does not require or imply that development must "maximize tree retention". Simply put, the Planning Director's premise that such a standard is implicit or expressed in the code is not consistent with the written text or context of Chapter 18.790. Clear and Objective Standard Under Chapter 18.790 (Tree Removal), the phrase: "Protection is preferred over removal wherever possible." Chapter 18.790 contains various subsections, each with its own approval criteria. Each of these subsections contains clear and objective standards that allow the City to apply these criteria, without the need for discretionary review, in compliance with ORS 197.307. Under subsection 18.790.030 mitigation and protection of trees that are not removed is the standard in place. Incentives for tree removal are provided for under Section 18.790.040, and Sections 18.790.050 and 060 describe requirements for tree removal permits and illegal tree removal, respectively. Collectively, these elements of Chapter 18.790 provide the implementation guidelines, yet none discuss, explain, present, or imply development will "maximize tree retention". The Director's interpretation converts the City's existing clear and objective Tree Removal standards into a series of discretionary approval standards that are inconsistent with the context, purposes, and policy of Chapter 18.790 and other relevant legal standards. The Director's interpretation establishes a new measurement with the use of "maximum tree retention" at nine of the ten criteria described. 2 • • If these new discretionary standards created by the Director's interpretation become part of the approval criteria for Tree Removal under Chapter 18.790, any proposed development on treed sites would require discretionary review. This creates an inconsistency within the text and context of the provision being interpreted and would violate ORS 197.307 and ORS 197.831. The Director has traded the existing seven word phrase with a newly established set of ten discretionary approval criteria attempting to "maximize tree retention". In essence, a private landowner is limited to one option for a permit pathway under the proposed Director's interpretation. New discretionary approval criteria The Director's interpretation creates ten new approval criteria in order to achieve the premise of "maximum tree retention." This element of the Director's interpretation establishes a legislative amendment to Section 18.790, not a simple interpretation of a provision in the Section. The cited phrase in Chapter 18.790 is a goal statement, not approval criteria. The choices made by the City Council that effect interpretation of this goal are set forth in the subsections of Chapter 18.790 outlined earlier. However, the Director determined the Council's choice of how to implement the protection goal in Section 18.790 did not go far enough, which is why the Director interpretation was made, establishing ten discretionary approval criteria in the process and forgoing a legislative process. In order to convert the goal statement into a set of new approval criteria a legislative process is required, not an administrative or quasi-judicial function. The Director's interpretation may well be an appropriate step for the City Council to consider, but not outside of a formal legislative process used to examine a set of ten discretionary approval criteria under the guise of an "interpretation" for a phrase in Section 18.790. The appropriate legislative process to consider this question would require the use of a Type IV legislative process, not a Type I administrative or Type II quasi-judicial process. Consideration of what "tree protection" means under Section 18.790 may be considered under a Type IV legislative review process, pursuant to Section 18.390.060, but this can obviously not be covered under this current conversation. Interpretative process under Section 18.340 is designed to serve a different purpose— which is to resolve terms or phrases in the code that are ambiguous and subject to two or more reasonable meanings. In this case, the Director's interpretation has gone too far, by creating ten new approval criteria, under the guise of interpreting a seven-word aspirational phrase in Section 18.790. The Director lacks jurisdiction to render this interpretation. It should therefore either be reversed or dismissed. 3 Summary: HBA believes that we have presented sufficient information to offer council reason to reverse or dismiss the Director's interpretation. If Council wants to modify or amend Chapter 18.790, then we recommend the use of a Type IV legislative process, not the current route the Director has taken. We have illustrated in our comments that this Director's interpretation failed to meet jurisdictional standards because the process was initiated with out proper written application. More importantly the Director's interpretation is attempting to establish a set of ten criteria to replace an existing seven word general goal forming phrase without using the proper legislative process denying not only council for input, but multiple interests in the community. For all of these arguments cited, HBA believes Director's interpretation should be dismissed or reversed, and our appeal should be granted. Respectfully submitted, Jim McCauley, V.P. Government Affairs Portland Metro Home Builders Association • 4 • =• . 3400 U.S.Bancorp Tower PORTLAND,OREGON , 111 S.W.Fifth Avenue SEATTLE,WASHINGTON Portland,Oregon 97204-3699 MILLER NASI-I VANCOUVER,WASHINGTON OFFICE 503.224.5858 CENTRAL OREGON FAX 503.224.0155 ATTORNEYS AT LAW WWW.MILLERNASH.COM Phillip E.Grillo phil.grillo @millernash.com (503)205-2311 direct line • May 13, 2008 • `• ' BY HAND DELIVERY Mayor Craig E. Dirksen and City Council Members t {. j - City of Tigard 13125 S.W. Hall Boulevard Tigard, Oregon 97223 Subject: Homebuilders Association of Metro Portland Appeal of Director's Interpretation Dated February 26, 2008, re Code Chapter 18.790 (Tree Removal) • I • Dear Mayor Dirksen and Councilors: • I am writing on my own behalf in support of the Homebuilders' appeal of the Planning Director's February 26, 2008, interpretation concerning a phrase in Chapter 18.790 (Tree Removal). I am participating in this appeal because I am concerned about the impact of this interpretation on future land use applications, and =Mr because I am concerned about its effect on the way future directors' interpretations are initiated. <aw- °a' 1. The Planning Director's interpretation is inconsistent with the text and context of the provision being interpreted. ,.3 t a) The text of the phrase "protection is preferred over removal • = wherever possible"is a phrase in the "Tree Plan Required" subsection of Chapter 18.790 that expresses a general preference for protection over removal. This phrase is expressed as an aspirational statement, not as an approval criteria. Even if the phrase could be interpreted to be intended as an approval criteria, the preference expressed in that phrase does not require "maximum protection" of trees, as suggested by the Planning Director's interpretation. It merely expresses a preference. As the Homebuilders' appeal correctly points out, the relevant approval criteria in the code do not require an applicant to save trees,let alone protect the maximum number of trees. Instead, Section 18.790.030 requires mitigation and h :i PDXDOCS:1698825.1 nom`Yr ( • MN PORTLAND,OREGON �- - - SEATTLE,WASHINGTON itT MILLER NASH--P VANCOUVER,WASHINGTON CENTRAL OREGON ATTORNEYS AT LAW WWW.MILLERNASH.COM Mayor Craig E. Dirksen and City Council Members May 13, 2008 Page 2 protection of trees that are not removed. Section 18.790.040 provides incentives for tree retention, and Sections 18.790.050 and 060 outline the requirements for tree _° removal permits and illegal tree removal, respectively. Read in context, the code does not require "maximum protection" of trees. In short, the Planning Director's premise that such a standard is implicit or expressed in the code is contrary to the text and context of the provision. b) In the context of Chapter 18.790 (Tree Removal), this phrase has been implemented through a series of clear and objective approval criteria that provide the City,the applicant, and the public with specific mitigation requirements and incentives for tree removal. k" As outlined above, Chapter 18.790 contains various subsections, each with its own approval criteria. Each of these subsections contain clear and objective standards that allow the City to apply these criteria ministerially, without the need for discretionary review, in compliance with ORS 197.307. c) The Planning Director's interpretation converts the City's clear and objective Tree Removal standards into a series of discretionary approval standards that are inconsistent with the context, purposes, and policy of Chapter 18.790 and other relevant legal standards. If these new discretionary standards created by the Planning Director's interpretation become part of the approval criteria for Tree Removal under Chapter 18.790, proposed development on treed sites would require discretionary ff' review, even if the existing clear and objective approval criteria are met. Such a result is inconsistent with the text and context of the provision being interpreted and would violate ORS 1• . o and ORS 1• .8 1 with re:and to the develo•ment of needed housin: on treed sites, because it would no longer be possible to approve a permit under Chapter 18.790 on treed sites, solely through the application of clear and objective approval criteria. The Planning Director's decision creates ten new approval criteria, which would purportedly be used to determine if"preservation of viable trees has been • adequately considered," in order to achieve the Planning Director's premise of "maximum tree retention." The Homebuilders are legitimately concerned that by adding a set of ten discretionary approval criteria aimed at achieving } maximum tree retention" on a given site, residential development on treed lots will not comply with ORS 197.307's requirement for clear and objective standards to apply to applications for development of needed housing. • • ..Y ! 'a PDXDOCS:1698825.1 • i MN PORTLAND,OREGON - - SEATTLE,WASHINGTON MILLER NASHLLP VANCOUVER,WASHINGTON CENTRAL OREGON ATTORNEYS AT LAW WWW.MILLERNASH.COM • Mayor Craig E. Dirksen and City Council Members • May 13, 2008 Page 3 2. The Planning Director's action adds ten new discretionary approval criteria to Section 18.790; it is therefore a legislative amendment to Section 18.790, rather an interpretation of a provision in that section. a) The cited provision is a goal statement, not an approval criteria. The phrase "protection is preferred over removal wherever possible" is not expressed as an approval criteria, but rather as a goal statement. The choices made by }'= the City of effect this goal are set forth in the above-mentioned subsections of Section 18.790, and are alluded to by the Planning Director in his interpretation. In • essence, the Planning Director's view is that Council's choice of how to implement the •x`s "protection"goal in Section 18.790 did not go far enough. b) The act of converting a goal statement into a set of new ry: approval criteria is a legislative function, not an administrative or quasi-judicial function. The Planning Director's view that Council has not gone far enough to implement the "protection" goal is a legitimate policy question for Council to consider. It is not, however, a legal basis for creating a set of ten discretionary approval criteria fi} under the guise of an "interpretation" of a phrase in Section 18.790. c) If Council wishes to legislate changes to Chapter 18.790, it may do so through a Type IV legislative process, not a Type I ministerial or Type II quasi-judicial process. The means by which "tree protection" occurs under Section 18.790 may be reconsidered under a Type IV legislative review process, pursuant to Section 18.390.060. The interpretative process under Section 18.340 is designed to serve a different purpose—which is to resolve terms or phrases in the code that are ambiguous and subject to two or more reasonable meanings. In this case, the Planning Director's interpretation has gone too far,by creating ten new approval - criteria, under the guise of interpreting a seven-word aspirational phrase in Section 18.790. 3. The Planning Director lacked jurisdiction to render this interpretation. It should therefore either be reversed or dismissed. a) Pursuant to Section 18.340.020(A), no party filed a written application to the Director requesting an interpretation. Section 18.340.020(A) requires that an interpretation be initiated by a written request. No written request preceded the Director's February 26, 2008, interpretation. This error violated Section 18.340.020(A). . PDXDOCS:1698825.1 C PORTLAND,OREGON SEATTLE,WASHINGTON P;f • MILLER NASH� P VANCOUVER,WASHINGTON CENTRAL OREGON ATTORNEYS AT LAW WWW.MILLERNASH.COM Mayor Craig E. Dirksen and City Council Members May 13, 2008 Page 4 b) LUBA has recently found that when a written application for an interpretation is required under the local code, it is a jurisdictional requirement that cannot be waived. Failure to file a written application as provided under the local code is not a procedural error. On the contrary, such error deprives the city of jurisdiction to render such an interpretation. The above-mentioned error is not merely a technical or • procedural error. When the local code contains a requirement for a written application ' in order to initiate a director's interpretation, failure to do so is a jurisdictional error. See Cushman v. City of Bend, November 5, 2007(LUBA) (To invoke the hearings officer's authority to issue a declaratory ruling, a person with standing to do so must "initiate" a declaratory ruling,that is, file an application.) c) This appeal should be granted and the Planning Director's sF ' interpretation should be either reversed or dismissed. If Council wishes to amend ;_ Chapter 18.790, it should do so through a Type IV legislative process, not through a Director's Interpretation process. The Planning Director exceeded his authority by issuing this interpretation. He also exceeded his authority by failing to properly initiate the process -`' under Section 18.340 by creating new approval criteria for Section 18.790, through an "interpretation" process, rather than through a legislative process. Finally, he exceeded his authority by interpreting a phrase in a manner that is contrary to the text and context of the provision being interpreted. For all of these reasons, the Planning Director's interpretation should be dismissed or reversed, and the Homebuilders' appeal should be granted. ` -s Very truly ours, • 1 J Phillip . Grillo • g,:r PDXDOCS:1698825.1 • Chapter 18.340 DIRECTOR'S INTERPRETATIONS Sections 18.340.010 Purpose 18.340.020 Procedure 18.340.010 Purpose A. Purpose. It is anticipated that some terms or phrases within the Code may be ambiguous and therefore subject to two or more reasonable meanings. Because it is not possible to identify or remove all ambiguities in the Code, a process should be established for resolving these ambiguities in advance of or concurrent with applying for a particular permit or other action. Director's Interpretations provides a process for resolving ambiguities in such a manner. All Director's Interpretations are subject to appeal to the City Council as provided below. 18.340.020 Procedure A. Requests. A request for an interpretation shall be made in writing to the Director. The Director may develop guidelines to and in the application process. B. Decision to issue. The Director shall have the authority to consider the request for an interpretation.. The Director shall respond within 14 days after the request is made, as to whether or not the Director will issue the requested interpretation. C. Director may decline. The Director is authorized to issue or decline to issue a requested. interpretation. The Director's decision to issue or decline to issue an interpretation is final when such .. decision is mailed to the party requesting the interpretation and such decision is not subject to any :. further local appeal. D. Written interpretation mailed. If the Director decides to issue an interpretation as requested, it shall be issued in writing and shall be mailed to the person requesting the interpretation and any other person that has specifically requested a copy of such interpretation. E. Appeal to City Council. The applicant and any party who received such notice or who participated in the proceedings through the submission of written or verbal evidence of an interpretation may appeal the Director's Interpretation to the City Council within 14 days after the interpretation was mailed to the applicant. The appeal may be initiated by filing a notice of appeal with the Director pursuant to Section 18.390.040 G2. F. Appeal procedure. City Council shall hear all appeals of a Director's interpretation as a Type III action pursuant to Section 18.390.050D, except that notice of the hearing shall be provided to the applicant, any other party who has filed a notice of appeal, and any other person who has requested notice. G. Final decision/effective date. The decision of the City Council on an appeal of a Director Interpretation shall be final and effective when notice of the decision is mailed to the applicant, provided however, that if the applicant is the Director or the City Council, the decision is final and effective when made. Director's Interpretations 18.340-1 Code Update: 01/00 • • H. Interpretations on file. The Director shall keep on file in the Department of Community Development a record of all Director's Interpretations. (Ord. 99-22)■ Director's Interpretations 18.340-2 Code Update: 01/00 • Chapter 18.790 TREE REMOVAL Sections: 18.790.010 Purpose 18.790.020 Definitions 18.790.030 Tree Plan Requirement 18.790.040 Incentives for Tree Retention 18.790.050 Permit Applicability 18.790.060 Illegal Tree Removal 18.790.010 Purpose A. Value of trees. After years of both natural growth and planting by residents, the City now benefits from a large number of trees. These trees of varied types add to the aesthetic beauty of the community, help clean the air, help control erosion, maintain water quality and provide noise barriers. B. Purposes. The purposes of this chapter are to: 1. Encourage the preservation,planting and replacement of trees in the City; 2. Regulate the removal of trees on sensitive lands in the City to eliminate unnecessary removal of trees; 3. Provide for a tree plan for developing properties; 4. Protect sensitive lands from erosion; 5. Protect water quality; 6. Provide incentives for tree retention and protection; and 7. Regulate commercial forestry to control the removal of trees in an urban environment. C. Recognize need for exceptions. The City recognizes that, notwithstanding these purposes, at the time of development it may be necessary to remove certain trees in order to accommodate structures, streets utilities, and other needed or required improvements within the development. 18.790.020 Definitions A. Definitions. The following definitions apply to regulations governing the preservation and removal of trees contained in this chapter exclusively: 1. "Canopy cover" means the area above ground which is covered by the trunk and branches of the tree; 2. "Commercial forestry"means the removal of ten or more trees per acre per calendar year for sale. Tree removal undertaken by means of an approved tree removal plan under Section 18.790.030 is not considered commercial forestry under this definition; Tree Removal 18.790-1 SE Update: 10/04 • 3. "Hazardous tree" means a tree which by reason of disease, infestation, age, or other condition presents a known and immediate hazard to persons or to public or private property; 4. "Pruning" means the cutting or trimming of a tree in a manner which is consistent with recognized tree maintenance practices; 5. "Removal" means the cutting or removing of 50 percent (50%)or more of a crown, trunk or root system of a tree, or any action which results in the loss of aesthetic or physiological viability or causes the tree to fall or be in immediate danger of falling. "Removal"shall not include pruning; 6. "Tree" means a standing woody plant, or group of such, having a trunk which is six inches or more in caliper size when measured four feet from ground level; 7. "Sensitive lands"means those lands described at Chapter 18.775 of the title. B. General rule. Except where the context clearly indicates otherwise, words in the present tense shall include the future and words in the singular shall include the plural. 18.790.030 Tree Plan Requirement A. Tree plan required. A tree plan for the planting, removal and protection of trees prepared by a certified arborist shall be provided for any lot, parcel or combination of lots or parcels for which a development application for a subdivision, partition, site development review, planned development or conditional use is filed. Protection is preferred over removal wherever possible. B. Plan requirements. The tree plan shall include the following: 1. Identification,of the location, size and species of all existing trees including trees designated as significant by the city; 2. Identification of a program to save existing trees or mitigate tree removal over 12 inches in caliper. Mitigation must follow the replacement guidelines of Section 18.790.060D, in accordance with the following standards and shall be exclusive of trees required by other development code provisions for landscaping,streets and parking lots: a. Retention of less than 25% of existing trees over 12 inches in caliper requires a mitigation program in accordance with Section 18.790.060D of no net loss of trees; b. Retention of from 25% to 50% of existing trees over 12 inches in caliper requires that two- thirds of the trees to be removed be mitigated in accordance with Section 18.790.060D; c. Retention of from 50% to 75% of existing trees over 12 inches in caliper requires that 50 percent of the trees to be removed be mitigated in accordance with Section 18.790.060D; d. Retention of 75% or greater of existing trees over 12 inches in caliper requires no mitigation. 3. Identification of all trees which are proposed to be removed; 4. A protection program defining standards and methods that will be used by the applicant to protect trees during and after construction. Tree Removal 18.790-2 SE Update: 10/04 • • C. Subsequent tree removal. Trees removed within the period of one year prior to a development application listed above will be inventoried as part of the tree plan above and will be replaced according to Section 18.790.060D. 18.790.040 Incentives for Tree Retention A. Incentives. To assist in the preservation and retention of existing trees, the Director may apply one or more of the following incentives as part of development review approval and the provisions of a tree plan according to Section 18.790.030: 1. Density bonus. For each 2% of canopy cover provided by existing trees over 12 inches in caliper that are preserved and incorporated into a development plan, a 1% bonus may be applied to density computations of Chapter 18.715. No more than a 20% bonus may be granted for any one development. The percentage density bonus shall be applied to the number of dwelling units allowed in the underlying zone. This bonus is not applicable to trees preserved in areas of floodplain, slopes greater than 25%, drainageways, or wetlands that would otherwise be precluded from development; 2. Lot size averaging. To retain existing trees over 12 inches in caliper in the development plan for any land division under Chapter 18.400, lot size may be averaged to allow lots less than the minimum lot size allowed by the underlying zone as long as the average lot area for all lots and private open space is not less than that allowed by the underlying zone. No lot area shall be less than 80% of the minimum lot size allowed in the zone; 3. Lot width and depth. To retain existing trees over 12 inches in caliper in the development plan for any land division under Chapter 18.400, lot width and lot depth may be reduced up to 20% of that required by the underlying zone; 4. Commercial/industrial/civic use parking. For each 2% of canopy cover provided by existing trees over 12 inches in caliper that are preserved and incorporated into a development plan for commercial, industrial or civic uses listed in Section 18.765.080, Minimum and Maximum Off- Street Parking Requirements, a 1% reduction in the amount of required parking may be granted. No more than a 20% reduction in the required amount of parking may be granted for any one development; 5. Commercial/industrial/civic use landscaping. For each 2% of canopy cover provided by existing trees over 12 inches in caliper that are preserved and incorporated into a development plan, a 1% reduction in the required amount of landscaping may be granted. No more than 20% of the required amount of landscaping may be reduced for any one development. B. Subsequent removal of a tree. Any tree preserved or retained in accordance with this section may thereafter be removed only for the reasons set out in a tree plan, in accordance with Section 18.790.030, or as a condition of approval for a conditional use, and shall not be subject to removal under any other section of this chapter. The property owner shall record a deed restriction as a condition of approval of any development permit affected by this section to the effect that such tree may be removed only if the tree dies or is hazardous according to a certified arborist. The deed restriction may be removed or will be considered invalid if a tree preserved in accordance with this section should either die or be removed as a hazardous tree. The form of this deed restriction shall be subject to approval by the Director. Tree Removal 18.790-3 SE Update: 10/04 • • C. Site development modifications granted as incentives. A modification to development requirements granted under this section shall not conflict with any other restriction on the use of the property, including but not limited to easements and conditions of development approval. D. Design modifications of public improvements. The City Engineer may adjust design specifications of public improvements to accommodate tree retention where possible and where it would not interfere with safety or increase maintenance costs. 18.790.050 Permit Applicability A. Removal permit required. Tree removal permits shall be required only for the removal of any tree which is located on or in a sensitive land area as defined by Chapter 18.775. The permit for removal of a tree shall be processed as a Type I procedure, as governed by Section 18.390.030, using the following approval criteria: 1. Removal of the tree must not have a measurable negative impact on erosion,soil stability, flow of surface waters or water quality as evidenced by an erosion control plan which precludes: a. Deposits of mud, dirt, sediment or similar material exceeding 1/2 cubic foot in volume on public or private streets, adjacent property, or into the storm and surface water system, either by direct deposit, dropping, discharge or as a result of the action of erosion; b. Evidence of concentrated flows of water over bare soils; turbid or sediment-laden flows; or evidence of on-site erosion such as rivulets on bare soil slopes where the flow of water is not filtered or captured on site using the techniques of Chapter 5 of the Washington County • Unified Sewerage Agency Environmental Protection and Erosion Control rules. 2. Within stream or wetland corridors, as defined as 50 feet from the boundary of the stream or wetland, tree removal must maintain no less than a 75% canopy cover or no less than the existing canopy cover if the existing canopy cover is less than 75%. B. Effective date of permit. A tree removal permit shall be effective for one and one-half years from the date of approval. C. Extension. Upon written request by the applicant prior to the expiration of the existing permit, a tree removal permit shall be extended for a period of up to one year if the Director finds that the applicant is in compliance with all prior conditions of permit approval and that no material facts stated in the original application have changed. D. Removal permit not required. A tree removal permit shall not be required for the removal of a tree which: 1. Obstructs visual clearance as defined in Chapter 18.795 of the title; 2. Is a hazardous tree; 3. Is a nuisance affecting public safety as defined in Chapter 7.40 of the Municipal Code; 4. Is used for Christmas tree production, or land registered with the Washington County Assessor's office as tax-deferred tree farm or small woodlands, but does not stand on sensitive lands. Tree Removal 18.790-4 SE Update: 10/04 • • E. Prohibition of commercial forestry. Commercial forestry as defined by Section 18.790.020 A.2., excluding D.4. above, is not permitted. 18.790.060 Illegal Tree Removal A. Violations. The following constitute a violation of this chapter: 1. Removal of a tree: a. Without a valid tree removal permit;or b. In noncompliance with any condition of approval of a tree removal permit; or c. In noncompliance with any condition of any City permit or development approval; or d. In noncompliance with any other section of this title. 2. Breach of a condition of any City permit or development approval, which results in damage to a tree or its root system. B. Remedies. If the Director has reason to believe that a violation of this chapter has occurred, then he or she may do any or all of the following: 1. Require the owner of the land on which the tree was located to submit sufficient documentation, which may include a written statement from a qualified arborist or forester, showing that removal of the tree was permitted by this chapter; 2. Pursuant to Section 18.390.050., initiate a hearing on revocation of the tree removal permit and/or any other permit or approval for which this chapter was an approval standard; 3. Issue a stop order pursuant to Section 18.230 of this title; 4. Issue a citation pursuant to Chapter 1.16 of the Municipal Code; 5. Take any other action allowed by law. C. Fines. Notwithstanding any other provision of this title, any party found to be in violation of this chapter pursuant to Section 1.16 of the Municipal Code shall be subject to a civil penalty of up to $500 and shall be required to remedy any damage caused by the violation. Such remediation shall include,but not be limited to, the.following: 1. Replacement of unlawfully removed or damaged trees in accordance with Section D below; and 2. Payment of an additional civil penalty representing the estimated value of any unlawfully removed or damaged tree, as determined using the most current International Society of Arboriculture's Guide for Plant Appraisal. D. Guidelines for replacement. Replacement of a tree shall take place according to the following guidelines: 1. A replacement tree .shall be a substantially similar species taking into consideration site characteristics; Tree Removal 18.790-5 SE Update: 10/04 • • 2. If a replacement tree of the species of the tree removed or damaged is not reasonably available, the Director may allow replacement with a different species of equivalent natural resource value; 3. If a replacement tree of the size cut is not reasonably available on the local market or would not be viable, the Director shall require replacement with more than one tree in accordance with the following formula: The number of replacement trees required shall be determined by dividing the estimated caliper size of the tree removed or damaged by the caliper size of the largest reasonably available replacement trees. If this number of trees cannot be viably located on the subject property, the Director may require one or more replacement trees to be planted on other property within the City, either public property or,with the consent of the owner,private property; 4. The planting of a replacement tree shall take place in a manner reasonably calculated to allow growth to maturity. E. In lieu-of payment: In lieu of tree replacement under Section D above, a party may, with the consent of the Director, elect to compensate the City for its costs in performing such tree replacement. F. Exclusivity. The remedies set out in this section shall not be exclusive.• • Tree Removal 18.790-6 SE Update: 10/04 • 1 BEFORE THE LAND USE BOARD OF APPEALS 2 OF THE STATE OF OREGON NOVO5'07 Ht11 : LIJ 3 4 CATHERINE E. CUSHMAN, 5 Petitioner, 6 7 vs. RECEIVED BY 8 9 CITY OF BEND, NOV 0 6 2007 10 Respondent, 11 MILLER NASH LLP 12 and 13 14 BROKEN TOP COMMUNITY ASSOCIATION, 15 Intervenor-Respondent. 16 17 LUBA No. 2007-088 18 19 FINAL OPINION 20 AND ORDER 21 22 • Appeal from City of Bend. 23 24 Stephanie M. Hicks, Bend, filed the petition for review and a cross-respondent's brief 25 and argued on behalf of petitioner. With her on the briefs was Ball Janik LLP. 26 27 No appearance by City of Bend. 28 29 Phillip E. Grillo, Portland, Portland, filed the cross-petition for review and response 30 brief and argued on behalf of intervenor-respondent. With him on the briefs were Lisa D.T. - 31 Klemp, Redmond, Edward Fitch, Redmond, Bryant Emerson & Fitch LLP and Miller Nash 32 LLP. 34 BASSHAM, Board Member; HOLSTUN, Board Chair; RYAN, Board Member, 35 participated in the decision. 36 37 REMANDED 11/05/2007 38 ' 39 You are entitled to judicial review of this Order. Judicial review is governed by the 40 provisions of ORS 197.850. Page I • 1 Opinion by Bassham. 2 NATURE OF THE DECISION 3 Petitioner appeals a hearings officer's declaratory ruling that petitioner's use of a 4 building as a real estate sales office adjacent to the Broken Top Planned Unit Development 5 (PUD) is illegal. 6 REPLY BRIEF 7 Intervenor-Respondent/Cross-Petitioner Broken Top Community Association 8 (BTCA) moves to file a reply brief to address waiver and other issues raised in the response 9 to BTCA's cross-petition. We agree that the reply brief is warranted under our rules, and it is 10 allowed. • 11 FACTS 12 In 1991, Cascade Highlands, Inc. (the developer), applied to the county for 13 conditional use and master plan approval for a proposed PUD located on property outside the 14 City of Bend but within the city's urban growth boundary. At that time the relevant county 15 ordinances allowed as conditional uses "temporary subdivision tract offices" and "community 16 buildings," and generally prohibited commercial uses in the applicable zone. The county 17 approved the PUD master plan in 1992 (hereafter, the 1992 PUD). Condition 14 of the 1992 18 PUD required the developer to obtain site plan approval for a"sales office." 19 In 1992, the developer applied for site plan approval for an administrative building. a 20 gate, and a temporary construction office on Tract H of the PUD. Tract H is located at the 21 entrance to the Broken Top PUD, just outside the PUD. In the application, the developer 22 stated that the administrative building would "serve as the information and sales headquarters 23 for the Broken Top Development." Record 802. The building was to include offices, 24 meeting rooms, reception and sales display area, and a small library. The application also 25 noted that the "building. may also serve as a community center at project buildout." Id. Page 2 • 1 The county approved the site plan (hereafter, the 1992 site plan). The 1992 site plan 2 decision notes that the developer had originally proposed a third building, a manufactured 3 home, as a temporary sales office, but had deleted the third building from the site plan. The 4 decision noted that the parking layout had been designed with the temporary sales office in 5 mind, and it "may be changed with the sales office to be combined with the administrative 6 building." Record 796. The decision approves the site plan for an "administrative 7 building/sales office." Record 131. The developer then constructed the 5,000-square foot 8 administrative building that is at issue in this appeal. 9 Shortly after the administrative building was constructed, the developer allowed 10 petitioner to operate a real estate sales business in the building, limited to sales of Broken 11 Top PUD properties. Intervenor BTCA also leased a portion of the building for some time. 12 In 1996, petitioner opened a real estate sales office elsewhere in the city and moved her real 13 estate business there. Petitioner continued selling lots within the Broken Top PUD, and also 14 sold property outside the PUD. In 1998, at the request of the developer, petitioner moved her 15 business back into the building on Tract H, with the understanding that she could continue to 16 sell property both within and outside the Broken Top PUD. At that time most of her sales 17 involved Broken Top PUD properties. 18 In 1998, the city annexed the Broken Top PUD. In 1999, the developer put the 19 administrative building on the market as a residential dwelling. The city advised the 20 developer that a master plan amendment would be necessary to convert the use of Tract H to 21 residential use, and the property was taken off the market. In 2001,•as part of an update to the 22 PUD master plan, the developer assigned a single unit of residential density to Tract H. That 23 _ action was one step toward making it possible,to use Tract H as a residential lot, but the 24 developer took no further steps. Instead,.in 2003, after offers to sell;the property to BTCA 25 and a nearby golf club were declined, the developer sold Tract H to petitioner for $1.3 26 million. Petitioner has continued to operate her real estate business from the building. At the Page 3 . • 1 time of the proceedings before the hearings officer, most of her sales involved properties 2 outside the Broken Top PUD. 3 In 2005, the president of the BTCA filed a code complaint with the city, arguing that 4 use of the building for a permanent real estate sales office that is not limited to Broken Top 5 properties is illegal. The city investigated and declined to prosecute, concluding that the 6 1992 PUD and site plan approvals did not specify that the "sales office" cease operations 7 upon build-out and did not expressly limit sales to Broken Top PUD lots. 8 In 2006, BTCA filed an application for a declaratory ruling pursuant to Bend City 9 Code (BCC) 4.1.1400, which permits the property owner, the permit-holder, or the city 10 planning director to request an interpretation of a land use permit "in which there is doubt or 11 a dispute as to its meaning or application." The city advised BTCA that the application was 12 incomplete and allowed BTCA 30 days to submit the missing information. BTCA did so, 13 and its declaratory ruling application was deemed complete as of October 31, 2006. 14 On November 7, 2006, petitioner's attorney argued to the city that BTCA is neither 15 the owner of the subject property nor the permit-holder and did not have standing to apply for 16 a declaratory ruling. In a letter dated November 13, 2006, the city planning director 17 informed planning division staff that the planning director `joins" in the BTCA application. 18 Record 655. The planning director did not file an application or otherwise participate in the 19 declaratory ruling proceeding. 20 The hearings officer conducted a hearing on January 25, 2007 and, on March 1, 2007, 21 issued a decision finding that petitioner's use of the building is unlawful. Petitioner appealed 22 the decision to the city council, which declined to hear the appeal. This appeal followed. 23 FIRST, SECOND AND THIRD ASSIGNMENTS OF ERROR 24 The first three assignments of error raise common issues under BCC 4.1.1410 et seq., 25 and we address them together. Page 4 1 BCC 4.1.1410(A) establishes a process to request from the city an interpretation of a 2 • comprehensive plan provision or land use regulation, or a provision or limitation in a land 3 use permit, where there is doubt or a dispute regarding the provision's meaning or • 4 application. BCC 4.1.1410(B) and (C) limit the scope and availability of the declaratory 5 ruling process.2 Further, BCC 4.1.1415(A) limits the persons who may "initiate a declaratory 6 ruling" to (1) the owner of a property relating to the use of that property, (2) the holder of the • • BCC 4.1.1410(A)provides in relevant part: • "Subject to the other provisions of this section, there shall be available for the City's comprehensive plans, zoning ordinances, the subdivision and partition ordinance and this ordinance a process for: "1. Interpreting a provision of a comprehensive plan or ordinance (and other documents incorporated by reference) in which there is doubt or a dispute as to its meaning or application; "2. Interpreting a provision or limitation in a land use permit issued by the City or quasi- judicial plan amendment or zone change in which there is doubt or a dispute as to its meaning or application[.] * * * * "Such a•determination or interpretation shall be known as a `declaratory ruling' and shall be processed in accordance with this chapter. In all cases, as part of making a determination or interpretation the Planning Director (where appropriate) or Hearings Body (where appropriate) shall have the authority to declare the rights and obligations of persons affected by the ruling." . 2 BCC 4.1.1410(B)and (C)provide, in relevant part: • "B. A declaratory ruling shall be available only in instances involving a fact-specific controversy and to resolve and determine the particular rights and obligations of particular parties to the controversy. "Declaratory proceedings shall not be used to grant an advisory.opinion on a specific quasi-judicial land use application. Declaratory proceedings shall not be. used as a substitute for seeking an amendment of general applicability to a legislative enactment. Declaratory rulings shall not be used as a substitute for an appeal of a decision in a land use action or for a modification of an approval.. * * *" Page 5 1 permit, where the request is to interpret a permit provision, and (3) the planning director.' 2 No other person is authorized by BCC 4.1.1415(A) to initiate a declaratory ruling. 3 BCC 4.1.1415(B) describes how a request for a declaratory ruling is initiated, and 4 specifies that each application for a declaratory ruling "shall include the precise question on 5 which a ruling is sought."4 Finally, BCC 4.1.1420 provides that the procedures for making 6 declaratory rulings shall be the same as set forth in the development ordinance for land use 7 actions, and that, in cases where the planning director is the applicant, the planning director 8 bears "the same burden that applicants generally bear in pursuing a land use action."5 9 The hearings officer agreed with petitioner that BTCA did not have standing to 10 initiate a declaratory ruling proceeding under BCC 4.1.1415, because BTCA is neither the BCC 4.1.1415(A) is entitled "Persons Who May Apply" and provides: "Subsection 4.1.215(B); Application Requirements notwithstanding, the following persons may initiate a declaratory ruling under this chapter: • "1. The owner of a property requesting a declaratory ruling relating to the use of the owner's property; "2. In cases where the request is to interpret a previously issued quasi-judicial plan amendment, zone change or land use permit, the holder of the permit;or "3. In all cases arising under Section 4.1.1410; Availability of Declaratory Ruling, the Planning Director. - "No other person shall be entitled to initiate a declaratory ruling." ' BCC 4.1.1415(B) provides: "A request for a declaratory ruling shall be initiated by filing an application with the Planning Division and, except for applications initiated by the Planning Director, shall be accompanied by such fees as have been set by the Planning Division. Each application for a declaratory ruling shall include the precise question on which a ruling is sought. The application shall set • forth whatever facts are relevant and necessary for making the determination and such other information as may be required by the Planning Division." BCC 4.1.1420 provides: . "Except as set forth in this chapter or in applicable provisions of a zoning ordinance, the procedures for making declaratory rulings shall be the same as set forth in this ordinance for land use actions. Where the Planning Division is the applicant, the Planning Division shall bear the same burden that applicants generally hear in pursuing a land use action." Page 6 • • 1 owner of the property nor the permit holder.6 However, the hearings officer concluded that 2 she had the authority to rule on BTCA's application after the planning director "joined in" the 3 application.? In the first assignment of error, petitioner asserts three challenges to that 4 conclusion. First, petitioner argues the application was void ab initio because it was filed by • 5 a party that had no standing to initiate a declaratory ruling, and therefore there was nothing to 6 `join." Second, BCC 4.1.1415 specifies that a declaratory ruling proceeding must be initiated 7 by filing an application, and petitioner contends the director filed no application. Finally, 8 petitioner argues the hearings officer erred in presuming that the planning director would 9 have initiated a declaratory ruling or specified the same legal "question on which a ruling is 10 sought," and erred in assuming the planning director would have taken on the burden of proof 11 on the question. 12 •Under the second assignment of error, petitioner challenges the hearings officer's .13 finding that a hypothetical application initiated by the planning director "would be based on 14 exactly the same facts and legal issues, and would involve exactly the same parties." 15 According to petitioner, the evidence in the record supports the opposite conclusion, that the 16 planner director.disagreed with BTCA over the lawfulness of petitioner's use of the disputed 17 building, and in fact had previously determined it was lawful. Petitioner contends that there • • 6BTCA filed a-cross-petition for review challenging the conclusion that it is not a property owner or permit holder entitled to initiate a declaratory ruling proceeding under BCC 4.1.1415. We address the cross-petition below and conclude that the hearings officer did not err in that respect. • • The hearings officer concluded, in relevant part: . . • "The property owner argues the city cannot establish its standing to request a declaratory ruling through BTCA's application because [the planning director] did not actually initiate the request through the filing of an application as required by [BCC 4.1.1210(B)]. The property - owner apparently does not dispute that [the planning director] could have filed the application • . . _himself. The Hearings Officer finds no legitimate purpose would be served by dismissing this . . proceeding and requiring [the planning director]to file another application and initiate another • • proceeding that would be based on exactly the same facts and legal issues and would involve exactly the same parties. I find that under these circumstances [the .planning director] • effectively initiated this declaratory ruling proceeding by submitting his letter." Record 33, Page 7 • • I. is no support in the record for her assumption that a hypothetical application by the planning 2 director would have framed the "precise question" in the manner BTCA did. 3 Under the third assignment of error, petitioner challenges the hearings officer's 4 finding that the planning director carried his burden of proof.8 According to petitioner, the 5 planning director made no appearance below other than the single letter, in which he stated 6 that he did not agree with BTCA regarding the lawfulness of petitioner's use.9 Petitioner s The hearings officer found, as relevant: "The applicant [BTCA] submitted a declaratory ruling application on September 26, 2006, accompanied by the required fee. The applicant submitted initial and supplemental burdens of proof as well as supporting evidence and written and oral testimony. The applicant's burden of proof statements describe in detail the bases of its belief that the existing use on the subject property is unlawful. The Hearings Officer has found that although the applicant did not have standing to initiate this declaratory ruling proceeding,the planning director's act of joining the applicant's request effectively initiated these proceedings under[BCC] 4.1.1415. "As discussed above, the property owner argues that because the planning director did not actually file an application for a declaratory ruling, the procedures required by this paragraph were not followed. In addition, the property owner argues that because the planning director stated the city does not agree with the applicant's position he therefore did not meet the . declaratory ruling applicant's burden of proof. The Hearings Officer disagrees. The city's declaratory ruling provisions do not establish traditional approval criteria with which the applicant must demonstrate compliance. Rather, [BCC] 4.1.1410 merely requires the applicant to show the reason for the declaratory ruling request falls within one of the listed categories. In other words, [BCC] 4.1.1410 does not require the declaratory ruling applicant to demonstrate an existing use violates or complies with a previously issued land use permit, but only that there is a dispute about such compliance. Therefore, the burden of proof is identical for the applicant and the planning director, and it does not matter whether they disagree about the lawfulness of the use at issue." Record 34-35. 9 The planning director's letter states, in full: "1 am writing to confirm that the Community Development Department joins with [BTCA] for the purpose of determining `the lawfulness of the commercial use of the premises located at 61999 Broken Top Drive, Bend, Oregon.' • "I have been aware of significant questions raised by [BTCA], and agree with the Association that the history of this matter is sufficiently arguable. While the City does not agree with the Association's position on the lawfulness of the commercial use, the City does believe that the Declaratory Ruling process is the most appropriate procedural method to resolve the question whether the existing use of the building is lawful. "It is the City's interpretation of[BCC] 4.1.1415(A)(3),that my joining with this application constitutes my initiation of the Declaratory Ruling process for the purpose of authorizing the filing of the process." Record 592. Page 8 • 1 argues that by allowing BTCA to present all the evidence supporting the application while the 2 director remained silent, the city wrongfully shifted the burden of proof that BCC 4.1.1420 3 assigns to the planning director to BTCA. 4 BTCA responds that the hearings officer did not err in allowing the planning director 5 to "join" BTCA's application and thereby cure whatever lack of authority BTCA might have 6 to initiate the disputed declaratory ruling. According to intervenor, the issue identified in 7 BTCA's application and the issue identified in the planning director's November 13, 2006 8 letter are identical: whether petitioner's current use of the administrative building is lawful. 9 Intervenor agrees with the hearings,officer that no purpose would be served by requiring the 10 planning director to submit a new declaratory ruling application or to submit evidence that 11 would simply replicate the evidence that• BTCA had already submitted into the record. 12 Intervenor disputes petitioner's view that BTCA's application was a "nullity" and void from 13 the outset, noting that the hearings officer had not yet ruled on BTCA's standing at the time 14 the planning director submitted his letter. • 15 Finally, intervenor argues that even if the hearings officer erred in allowing the 16 planning director to "initiate" the application by joining BTCA's application, the error is at 17 most a procedural error. Intervenor contends that petitioner has not established that any 18 procedural error prejudiced petitioner's substantial rights to participate in the proceedings 19 below. . 20 Although it is a close question, we agree with petitioner that the hearings officer erred 21 in concluding that the planning director's letter is sufficient to "initiate" a declaratory ruling 22 application, within the meaning of BCC 4.1.1415. Petitioner argues, and we generally, agree, 23 that the city intended the declaratory ruling process to be a rather limited vehicle for resolving 24 land use disputes. BCC 4.1._1410 imposes significant limitations on the types of disputes and 25 the circumstances under which those disputes may be resolved under the declaratory ruling 26 process. BCC 4.1.1415(A) expressly limits the persons who have standing to initiate a Page 9 • • 1 declaratory ruling application. Particularly significant here is the fact that BCC 4.1.1415(B) 2 describes, in mandatory terms, the steps that must be taken to initiate a declaratory ruling 3 request. The request "shall be initiated by filing an application with.the Planning Division * 4 * *." That application must "include the precise question on which a ruling is sought" and 5 must "set forth whatever facts are relevant and necessary for making the determination * * 6 *." The only explicit difference between an application initiated.by the planning director and 7 applications initiated by others is that the director need not pay a fee. In all other respects, 8 the county reviews an application filed by the planning director in the same manner as any 9 other application. BCC 4.1.1420. 10 Nothing in the above provisions appears to contemplate or authorize deviations from 11 those mandatory requirements. Neither the planning director nor the hearings officer cite any 12 textual or contextual support for the view that the planning director need not actually 13 "initiate" the request in the way BCC 4.1.1415(B) requires—by filing an application. Just as 14 importantly, neither the planning director nor the hearings officer cite any textual or 15 contextual support for the view that a person who lacks standing to initiate a declaratory 16 ruling can nevertheless do so, and be given the opportunity to carry the burden of proof that 17 BCC 4.1.1420 assigns to persons with standing to initiate declaratory rulings, so long as the 18 planning director states in a subsequently submitted letter that he `joins" the request.i° While 19 nothing in the code prohibits the planning director from joining a previously filed declaratory 20 ruling application, at the same time nothing in the code authorizes treating such "joinder" as 21 equivalent to initiating a declaratory ruling request in the manner that is required by the code, 22 i.e., by filing an application accompanied by the required information. 10 As petitioner correctly argues, it is inaccurate to say the planning director"joined" BTCA's request. The planning director .simply agreed that there should be some resolution of the dispute between BTCA and petitioner. The planning director never "joined" in the sense of adopting BTCA's proposal for carrying the burden of proof that BCC 4.1.1420 assigned to the planning director, and the planning director made no attempt to carry that burden of proof himself. Page 10 • • • 1 The hearings officer found that "no legitimate purpose would be served" by 2 dismissing BTCA's application and requiring the director "to file another application and 3. initiate another proceeding that would be based on exactly the same facts and legal issues and 4 would involve exactly the same parties." Record 33. However, nothing "requires" the 5 planning director to file such an application. It may be, of course, that the planning director 6 would in fact choose to do.so, but that is certainly not a given. Nor is it clear that the 7 planning director would (1) frame the "precise question" in the same manner that BTCA did, 8 (2) include in the application the same information "necessary for making the determination" 9 that BTCA did, or (3) attempt to satisfy the applicant's burden as BTCA did. As petitioner 10 notes, the planning director apparently disagrees with BTCA's view of the lawfulness of the 11 petitioner's use of the building, although the director submitted no testimony or evidence 12 explaining why. While the city's practice apparently is to interpret its code'to allow third 13 parties to participate in declaratory ruling proceedings, it is clear that it is the application filed 14 by the persons authorized by BCC 4.1.1415(A) that frames the issues to be resolved. That 15 application must include the information required by BCC 4.1.1415(A), and that information, 16 at least initially, provides the information "necessary" to resolve those issues. 17 The hearings officer also found that the applicant for a declaratory ruling has no 18 particular burden of proof other than to show that the declaratory ruling request falls within _ 19 one of the categories listed in BCC 4.1.1410, and that there is a "dispute" about compliance 20 with the applicable law. Again, there is simply no textual authority cited for that conclusion. 21 BCC 4.1.1420 provides that the planning director bears the same burden as applicants 22 generally bear in pursuing a land use action. As petitioner notes, BCC 4.1.830 provides that 23 _*"[t]hroughout all local land use proceedings the burden of proof rests on the applicant." 24 While the hearings officer is correct that the declaratory ruling provisions do not set out 25 "approval criteria". as such, it seems reasonably clear that. the applicant for a declaratory 26 ruling carries the initial and ultimate burden of proof and persuasion with respect the "precise Page 11 • • 1 question" submitted. It seems inconsistent with those provisions to allow the planning 2 director or other proper applicant under BCC 4.1.1415(A) to simply demonstrate that there is 3 an interpretative "dispute," but leave it to others who do not have standing to initiate the 4 declaratory ruling to take a position in that dispute and provide information or evidence to be 5 used to resolve the dispute, so that the dispute will be resolved based solely on legal 6 argument and information supplied by third parties to the application. 7 Finally, with respect to intervenor's argument that any error is procedural in nature 8 and that petitioner failed to demonstrate any prejudice to her substantial rights, it is not clear 9 to us that the hearings officer's error is accurately characterized as procedural. To invoke the 10 hearings officer's authority to issue a declaratory ruling, a person with standing to do so must 11 "initiate" a declaratory ruling request, that is, file an application. The hearings officer 12 determined that the application before her was not filed by a person with standing to initiate a 13 declaratory ruling request, but the hearings officer nonetheless proceeded to exercise her 14 authority under the declaratory ruling provisions based on the planning director's joinder. 15 For the reasons stated above, that approach was error. As a result of that error, the hearings 16 officer had no proper declaratory ruling request before her, and therefore had no legal 17 authority to issue a declaratory ruling. The hearings officer's error in concluding otherwise is 18 not accurately characterized as a mere procedural error that may be overlooked absent a 19 demonstration of prejudice to petitioner's substantial rights. 20 The first, second and third assignments of error are sustained. 21 We do not reach or resolve the remainder of petitioner's assignments of error, which 22 challenge the merits of the declaratory ruling. As explained below in addressing BTCA's 23 cross-petition for review, we must remand the hearings officer's decision to provide an 24 interpretation and adopt more adequate findings regarding whether BTCA has standing under 25 BCC 4.1.1415(A)(2) to initiate a request for a declaratory.ruling. Only if the hearings officer 26 determines on remand that BTCA does have standing under BCC 4.1.1415(A)(2) will the Page 12 • • 1 merits of the declaratory ruling be at issue. Accordingly, it is unnecessary; or at least • 2 premature, to address petitioner's challenges to the merits. of the declaratory ruling in this 3 opinion. • 4' CROSS-PETITION FORREVIEW 5 In its cross-petition for review, BTCA assigns error to' the hearings officer's 6 conclusion that BTCA does not have standing as a property owner "requesting a declaratory 7 ruling relating to the use of the owner's property" or as the "holder of the permit" under 8 BCC 4.1.1415(A)(1) or (2).11 We address each contention in turn. • 9 A. BCC 4.1.1415(A)(1): Property Owner 10 BTCA argues that, 'as an owner of property within the Broken Top PUD, it has 11 standing to initiate a declaratory ruling request as "[t]he owner of property requesting a 12 declaratory ruling relating to the use .of the owner's property." BCC 4.1.'1415(A)(1). 13 According to BTCA, its declaratory ruling request regarding the lawfulness of petitioner's 14 use of Tract H also "relates" to the use of BTCA's property within the PUD. BTCA contends 15 that'it has a fiduciary responsibility to its members to ensure that property subject to the 1992 16 PUD approval is used in a manner consistent with prior land use approvals and applicable 17 covenants, conditions and restrictions. • 1 BCC 4.1.1415(A) is quoted above at n 3. We quote it here again for convenience. . • "[T]he following persons'may initiate a declaratory ruling under this chapter.: . • "I. The owner of a property requesting a declaratory ruling relating to the. use.of.the •• . • owner's property; "2. In cases where the request is to interpret a previously 'issued quasi judicial plan amendment, zone change or land use permit,the holder of the permit; or "3. In all cases arising under Section 4:1.1410; Availability of Declaratory Ruling, the • Planning Director. • "No other person shall be entitled td initiate-a declaratory ruling.'' Page 13 • • 1 Petitioner responds that this issue was never raised below and is thus waived. 2 ORS 197.763(1).12 BTCA replies that it argued below that it "stood in the shoes" of the 3 original PUD developer, and that argument applies to both the "permit holder" and "property 4 owner" prongs of BCC 4.1.1415(A). According to .BTCA, that argument as it applies to the 5 "property owner" prong was raised with sufficient specificity to allow the hearings officer 6 and the parties an adequate opportunity to respond to it. Indeed, BTCA argues that the 7 hearings officer addressed both prongs and found that BTCA had standing under neither, 8 which suggests that the hearings officer recognized that an issue had been sufficiently raised 9 regarding BTCA's standing under the property owner prong. 10 In our view, making the argument that BTCA "stands in the shoes" of the original 11 developer and is thus a "permit holder" under BCC 4.1.1415(A)(2) is not sufficient to raise 12 the very different issue of whether BTCA is a "property owner" entitled to request a 13 declaratory ruling regarding the use of petitioner's property, under the theory that the use of 14 petitioner's property "relates" to the use of the BTCA's property under BCC 4.1.1415(A)(1). 15 The two theories of standing are sufficiently dissimilar that we cannot say a reasonable 16 decision maker would recognize one in the other. While the hearings officer concluded that 17 BTCA is "neither the property owner nor the `holder of the permit,' the findings exclusively 18 address BTCA's "permit holder" theory, and make no mention of any other theory. The 19 hearings officer's finding that BTCA is not "the property owner" appears to be an effort to 20 comprehensively address all the standing provisions, even those that are not invoked, rather 12 ORS 197.763(1)provides: "An issue which may be the basis for an appeal to [LUBA] shall be raised not later than the close of the record at or following the final evidentiary hearing on the proposal before the local government. Such issues shall be raised and accompanied.by statements or evidence sufficient to afford the governing body, planning_ commission, hearings body or hearings officer, and the parties an adequate opportunity to respond to each issue." Page 14 • • • 1 than an indication that the hearings officer recognized that an issue was raised regarding 2 BTCA's standing under BCC 4.1.1415(A)(l). 3 Even if the issue were not waived, we agree with petitioner's arguments on the merits 4 that BTCA has not established that it is a "property owner" within the meaning of 5 BCC 4.1.1415(A)(1). The declaratory ruling that a property owner is authorized to seek 6 under BCC 4.1.1415(A)(l) must "relat[e] to the use of the owner's property[.]" The 7 declaratory ruling that BTCA sought and was granted does not relate to BTCA's property. 8 Rather, the declaratory ruling that BTCA sought and was granted relates to Tract H, which is 9 petitioner's property. While petitioner is authorized by BCC 4.1.1415(A)(1) to seek a 10 declaratory ruling regarding the propriety of operating an unrestricted real estate sales office . 11 on tract H, BCTA is not. The fact that the disputed declaratory ruling might have some 12 indirect bearing on properties that were not the subject of the requested declaratory ruling 13 does not mean the declaratory ruling "relat[es] to the use of' those other properties, within 14 the meaning of BCC 4.1.1415(A)(1). We reject BTCA's argument to the contrary. This 15 subassignment of error is denied. 16 B. BCC 4.1.1415(A)(2): The Holder of the Permit 17. BTCA claimed standing to initiate the declaratory ruling under BCC 4.1.1415(A)(2), 18 as the "holder of the permit," specifically, as one of the successors in interest to the 1992 19 PUD and 1992 site plan approvals granted to the original developer. The hearings officer 20 rejected that argument, finding: 21 "[BTCA] argues it has standing to initiate this declaratory ruling proceeding 22 because it stands in the shoes of the `holder of the permit'—i.e., the original 23 developer of the Broken Top PUD—because the BTCA assumed 24 responsibility for the Broken Top common areas and for enforcement of the 25 Broken Top CC&Rs. The property owner responds that the BTCA does not 26 .own or manage the subject property which is not Broken Top common area, 27 and consequently the BTCA cannot be considered the `holder of the permit' 28 with respect to the subject property. In addition, the record includes a letter . 29 • • dated February 1, 2007 from Broken Top Partners, LLC, stating that as the 30.. - owner of the Broken Top golf course and clubhouse it is the successor to the Page 15 i . • 1 original Broken Top developer. The letter goes on to state Broken Top 2 Partners supports use of the subject property for the existing real estate 3 brokerage office. For these reasons, the property owner argues this 4 declaratory ruling proceeding should be dismissed. . 5 "The Hearing Officer finds the BTCA_ does not have standing to request a -6 declaratory ruling because it is neither the property owner nor the 'holder of 7 the permit' with respect to the subject property. * * *" Record 32-33 8 (emphases in original). • 9 BTCA argues that the above finding is conclusory, fails to adequately identify the 10 pertinent "holders of the permit," for purposes of BCC 4.1.1415(A)(2), or explain why BTCA 11 is not one of the "holders" of the relevant permits. BTCA notes that, unlike 12 BCC 4.1.1415(A)(1), subsection (A)(2) includes no language requiring that the permit holder 13 own the property. We understand BTCA to argue that there is no express language in 14 BCC 4.1..1415(A)(2) that limits the scope of "permit holder," qualifies what kind of 15 "permits" may be the subject of a request for a declaratory ruling, or requires that the permit 16 have any particular kind or degree of relationship to property the use of which is the subject 17 of a declaratory ruling request. 18 According to BTCA, it is the fee title owner to various tracts, common areas, private 19 streets and pathways that were created or regulated through a number of different land use 20 permits granted to the original Broken Top PUD developer, including the 1992 PUD and • 21 1992 Master Plan.approvals. BTCA argues that when it acquired those properties, it stepped 22 into the shoes of. the original developer and the original permit holder, by virtue of 23 BCC 4.1.1330(A), which provides that "[a] land use action permit shall be deemed to run 24 with the land and be transferable to [the] applicant's successors in interest." BTCA argues 25 . that it became. one. of the "holders" of those permits, and is therefore is entitled to request a 26 • declaratory ruling to request an interpretation from the city as to whether petitioner's use of 27 Tract H is lawful under those permits. 28 : .Petitioner responds that the hearings officer correctly rejected BTCA's claims to 29 standing as the "holder of the permit." According to petitioner, the only permit that governs Page 16 • • 1 use of the subject property for purposes of determining whether petitioner's use of Tract H is 2 lawful is the 1992 site plan decision that approved the building on Tract H. Petitioner argues 3 that the 1992 site plan decision is specific to Tract H, and that she acquired that permit from 4 the original developer when she bought Tract_H in 2003. Therefore, petitioner concludes, she 5 is the sole "holder" of that permit. 6 Further, petitioner argues that BCC 4.1.1415(A) is intended to grant standing to 7 initiate a declaratory ruling request only to a very limited set of persons. We understand 8 petitioner to contend that the intent of BCC 4.1.1415(A)(1) and (2) is to limit standing to 9 initiate declaratory ruling requests to persons who have the most at stake in how the subject 10 property is used, specifically the property owner or the person who holds a permit or land use 11 approval to use the property. We understand petitioner to argue that the city did not intend 12 the declaratory ruling process to be a vehicle for other private third parties, for example, 13 neighboring subdivision lot owners, to seek rulings on the permissible use of other lots in the 14 subdivision. That intent would be undermined, petitioner contends, by BTCA's broad view 15 of the scope of the "holder of the permit," under which any subdivision lot.owner.would be 16 one of potentially hundreds of other "holders of the permit" (i.e., the subdivision approval), 17 and thus entitled to seek declaratory rulings with respect to the permissible use of any other 18 lot in the subdivision. • • 19 . We agree with BTCA that the above-quoted finding by the hearings officer is 20 inadequate, and fails to explain the hearings officer's conclusion that..BTCA is not "the 21 holder of the permit."I' It is not clear what the hearings officer meant by concluding that 22 BTCA is not a permit-holder "with respect.to the subject property." As the-Parties-note, there .23 are at. least several "permits" that the original developer obtained that have some potential 13 To be fair, the hearings officer may have felt no need for an extended analysis ofBTCA's'standing, given her conclusion that the planning director's joinder in BTCA's application was sufficient to initiate the proceeding under BCC 4.1.1415(A)(3). . Page 17 • • • 1 bearing on the permissible use of Tract H. Some of those permits apply specifically to Tract 2 H and no other properties, and others are general PUD or master plan approvals that apply 3 broadly to the Broken Top PUD and have:a less specific bearing on the use of Tract H. The 4 hearings officer made no findings as to which persons are the "holders" of which permits, for 5 purposes of establishing BTCA's standing under BCC 4.1.1415(A)(2). The hearings '6 officer's finding that BTCA is not a holder of the permit "with respect to the subject 7 property" suggests that it may matter under BCC 4.1.1415(A)(2) which persons hold what 8 permits, but the hearings officer does not explain or expand on that suggestion. 9 At this point we have more questions than answers. It is not clear to us that BTCA is 10 correct that by operation of BCC 4.1.1330(A) the owner of an individual lot or tract within 11 the Broken Top PUD is properly viewed as one of the successors in interest to the.original 12 developer, such that an individual lot owner such as BTCA is one of the "holder[s] of the 13 permit" and thus entitled to seek a declaratory ruling under BCC 4.1.1415(A)(2) to interpret 14 the terms of those permits with respect to the use of lots that BTCA does not own. Even if 15 BTCA is properly viewed as one of the "holder[s] of the permit" with respect to some of the 16 permits that the hearings officer considered, it does not appear that BTCA is a holder of all of 17 the permits that the hearings officer interpreted in her declaratory ruling. As petitioner points 18 out, it is at least arguable that only petitioner and not BTCA is the "holder of the permit" with 19 respect to the 1992 site plan. If that is the permit or one of the permits BTCA asked the 20 hearings officer to interpret under BCC 4.1.1415(A)(2), BTCA may not have had standing to 21 seek a declaratory ruling regarding that permit. 22 As BCC 4.1.1415(A)(2) is drafted, it is certainly possible that a "holder of the permit" 23 may only have standing to request a declaratory ruling regarding the meaning of a "land use 24 permit" that the person holds. Unlike BCC 4.1.1415(A)(1), which specifically allows a 25 property owner to request a declaratory ruling relating to the use of the owner's propert.'" 26 which may be subject to many permits, and BCC 4.1.1415(A)(3), which broadly allows the Page 18 1 planning director to initiate a declaratory ruling "[i]n all cases arising under Section 2 4.1.1410," BCC 4.1.1415(2) can be read to grant standing to a "holder of the permit" only to 3 request an interpretation of the permit that that person holds, not to seek declaratory rulings 4 on the meaning of other permits or other contested legal issues, such as whether a particular 5 use is "lawful" under applicable ordinances and other permits that the person does not hold. 6 In other words, unlike under BCC 4.1.1415(A)(1) and (3), it may not be possible under 7 BCC 4.1.1415(A)(2) to obtain a complete adjudication on the issue of what a particular lot or 8 parcel may be used for. Arguably, a declaratory ruling initiated under BCC 4.1.1415(A)(2) 9 serves a much more limited purpose. Where several plan amendments, zone changes or 10 permits govern the use of a particular property, the holder of only one permit might at best 11 obtain a ruling that the particular plan amendment, zone change or permit that he or she owns 12 does not authorize a disputed use of the property. Under this view, the permit holder could 13 not seek a definitive declaratory ruling regarding the meaning of other permits not held, or to 14 more general issues such as whether the disputed use is consistent with the city's zoning 15 ordinance. As we said earlier, we have more questions than answers. 16 We conclude that remand is necessary.for the hearings officer to provide .more 17 adequate findings and any necessary interpretations with respect to BTCA's contention that it 18 is the "holder of the permit" with respect to the various permits.that relate to the use of Tract 19 H. If this matter is to proceed any further based solely on BTCA's application for declaratory 20 ruling, the hearings officer will first need to clearly identify the permit or permits that BTCA 21 requested that the hearings officer interpret in its application fora declaratory ruling. After 22 that step is concluded, the hearings officer will be in a position to explain why she.believes 23 that BTCA either is or is not the "holder" of that permit or those permits, within the meaning 24 of BCC 4.1.1415(A)(2). Without attempting to exhaustively set out the hearings officer's • 25 options once she has determined whether BTCA is or is not the holder of.the permit or. • Page 19 • • . 1 permits that are the subject of the disputed declaratory ruling, we set out below what appear 2 to us to be three possibilities. The hearings officer may determine that BTCA is the holder of all the permits that are 4 the subject of the application for declaratory ruling. .In that event, she may simply adopt or 5 readopt her prior decision regarding the meaning of those permits with any additional 6 • elaboration she may feel is appropriate. 7 Alternatively, the hearings officer may determine that BTCA is not the holder of any 8 of those permits. In that event,. BTCA may not initiate a declaratory ruling under . 9 BCC 4.1.1415(A)(2) to interpret those permits and the hearings officer should dismiss or 10. deny the application. 11 Finally, the hearings officer may determine that BTCA is the holder of some but not 12 all of the permits that are the subject of its requested declaratory ruling. In that event, the 13 hearings officer will need to determine whether she can proceed with an application for a 14 declaratory ruling that is initiated under BCC 4.1.1415(A)(2), where the applicant is not the 15 "holder" of all the permits that are the subject of the declaratory ruling. If the hearings 16 officer concludes that she cannot proceed with such an application, she should either dismiss 17 or deny the application or permit BTCA to amend the application to omit any permits for 18 . which it is not the holder. But if the hearings officer concludes that she can proceed with 19 such an application, notwithstanding that BTCA is not the holder of all the permits the 20 hearings officer is asked to interpret, it seems likely that issues will arise regarding the legal 21 effect, if any, of such a declaratory ruling with regard to permits that the applicant does not• 22 hold. The hearings officer may wish to address that question.directly.. 23 • . This subassignment of error is sustained. The cross-petition is sustained, in part. 24 The city's decision is remanded. Page 20 • • • Certificate of Mailing I hereby certify that I served the foregoing Final Opinion and Order for LUBA No. 2007-088 on November 5, 2007, by mailing to said parties or their attorney a true copy thereof contained in a sealed envelope with postage prepaid addressed to said parties or their attorney as follows: Edward P. Fitch Bryant Emerson & Fitch LLP • PO Box 457 Redmond, OR 97756-0103 James HB Forbes Forbes & Schannauer LLP 835 NW Bond Street, Suite 200 Bend, OR 97701 Phillip E. Grillo Miller Nash LLP 111 SW Fifth Avenue Suite 3400 Portland, OR 97204 Stephanie M. Hicks Ball Janik LLP 15 SW Colorado Ave, Suite 3 Bend, OR 97702 Dated this 5th day of November, 2007. - Kelly Burgess Debra A. Frye Paralegal Executive Support Specialist • 4111 4 City of Tigard Tigard Business Meeting — Agenda T�TGARID ,•.:..,r _ � �. _:._sue TIGARD CITY COUNCIL LOCAL CONTRACT REVIEW BOARD (LCRB) MEETING DATE: May 13, 2008 MEETING LOCATION: City of Tigard—Town Hall, 13125 SW Hall Blvd., Tigard, OR 97223 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. Citizen Communication 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 Manager. Times noted are estimated; it is recommended that persons interested in testifying be present by 7:15 p.m. to sign in on the testimony sign-in sheet. Business agenda items can be heard in any order after 7:30 p.m. Assistive Listening Devices are available for persons with impaired hearing and should be scheduled for Council meetings by noon on the Monday prior to the Council meeting. Please call 503-639-4171, ext. 2410 (voice) or 503-684-2772 (1'DD -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 by calling: 503-639-4171, ext. 2410 (voice) or 503-684-2772 (1'DD -Telecommunications Devices for the Deaf). CABLE VIEWERS: The regular City Council meeting is shown live on Channel 28 at 7:30 p.m. The meeting will be rebroadcast at the following times on Channel 28: Thursday 6:00 p.m. Sunday 3:00 p.m. Friday 10:00 p.m. Monday 6:00 a.m. SEE ATTACHED AGENDA TIGARD CITY COUNCIL/LCRB/ AGENDA- MAY 13, 2008 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 1 of4 S • , l :n City of Tigard 4.441 Tigard Business Meeting — Agenda '1I Gw D TIGARD CITY COUNCIL LOCAL CONTRACT REVIEW BOARD (LCRB) MEETING DATE/TIME: May 13, 2008/6:30 p.m. Study Session and 7:30 p.m. Business Meeting MEETING LOCATION: City of Tigard —Town Hall, 13125 SW Hall Blvd., Tigard, OR 97223 6:30 PM • STUDY SESSION • EXECUTIVE SESSION: The Tigard City Council will go into Executive Session under ORS 192.660(2) (d), (e) and (h), to discuss labor negotiations, real property transaction negotiations and pending litigation. All discussions are confidential and those present may disclose nothing from the Session. Representatives of the news media are allowed to attend Executive Sessions, as provided by ORS 192.660(4),but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. (Note: Due to time constraints, the Executive Session might be continued after adjournment of the City Council Business meeting.) 7:30 PM 1. BUSINESS MEETING 1.1 Call to Order-City Council,Local Contract Review Board 1.2 Roll Call 1.3 Pledge of Allegiance 1.4 Council Communications &Liaison Reports 1.5 Call to Council and Staff for Non-Agenda Items 7:35 PM 2. PROCLAMATION—MAYOR DIRKSEN • Emergency Medical Services Week—May 18-24,2008 7:40 PM 3. CITIZEN COMMUNICATION (Two Minutes or Less,Please) • Tigard High School Student Envoy Megan Foltz • Acknowledge and Commend Megan Foltz for Her Efforts as the Tigard High School Student Envoy to the City of Tigard—Resolution No. 08- • Citizen Communication—Sign Up Sheet • Follow-up to Previous Citizen Communication TIGARD CITY COUNCIL/LCRB/ AGENDA-MAY 13, 2008 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 2 of i 7:50 PM 4. CONSENT AGENDA: (Tigard City Council and City Center Development Agency) 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 City Council Minutes for February 12 and 26,2008 4.2 Receive and File: a. Council Calendar b. Tentative Agenda 4.3 Approve Senior Center Remodel Grant Agreement 4.4 Approve Budget Amendment #14 to Increase Appropriations in the Facilities Fund Budget to Reflect Additional Costs Associated with the Tigard Senior Center Remodel Project • Consent Agenda-Items Removed for Separate Discussion: Any items requested to be removed from the Consent Agenda for separate discussion will be considered immediately after the Council/COI Center Development Agency has voted on those items which do not need discussion. 7:55 PM 5. HONOR TIGARD HIGH SCHOOL TIGERETTES DANCE TEAM FOR WINNING 2008 OREGON SCHOOL ACTIVITIES ASSOCIATION (OSAA)DANCE/DRILL STATE CHAMPIONSHIP • Introduction: Administration Department 8:05 PM 6. FRIENDS OF THE REFUGE AWARD TO THE CITY OF TIGARD • Introduction: Community Development Department 8:10 PM 7. QUASI-JUDICIAL PUBLIC HEARING — APPEAL OF DIRECTOR'S IN 1'ERPRETATION OF THE TREE PLAN REQUIREMENT—DEVELOPMENT CODE CHA'1'ER 18.790.030 (MIS2008-00005) a. Open Public Hearing—Mayor b. Statement by City Attorney Regarding Procedure c. Declarations or Challenges Do any members of Council wish to report any ex parte contact or information gained outside the hearing,including any site visits? - Have all members familiarized themselves with the application? Are there any challenges from the audience pertaining to the Council's jurisdiction to hear this matter or is there a challenge on the participation of any member of the Council? d. Staff Report: Community Development Staff e. Public Testimony - Proponents - Opponents Rebuttal/Final argument by applicant f. Staff Recommendation • g. Close Public Hearing h. Council Discussion and Consideration: Resolution No. 08- TIGARD CITY COUNCIL/LCRB/ AGENDA- MAY 13, 2008 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 3 of4 • • 8:40 PM 8. UPDATE ON THE I-5 TO 99W CONNECTOR PROJECT • Staff Report: Community Development Department 9axl PM 9. CONSIDER AMENDMENTS TO THE COMPREHENSIVE AND TRANSPORTATION SYSTEM PLANS TO INCORPORATE THE RECOMMENDATIONS OF THE TIGARD 99W IMPROVEMENT AND MANAGEMENT PLAN AND RELATED POLICY AND ACTION MEASURE PROPOSALS OF THE PROJECT'S CITIZEN ADVISORY COMMITTEE (CAC) • Staff Report: Community Development Department • Council Consideration: Motion to initiate amendments to the Tigard Transportation System Plan and Comprehensive Plan by directing the Planning Commission to hold public hearings on the Tigard 99W Improvement and Management Plan's recommendations and related policy and action measure proposals of the project's Citizen Advisory Committee. 9:41)PM 10. COUNCIL LIAISON REPORTS 11. NON-AGENDA ITEMS 12. EXECUTIVE SESSION:The Tigard City Council will go into Executive Session under ORS 192.660(2) (e) and (h), to discuss real property transaction negotiations and pending litigation. All discussions are confidential and those present may disclose nothing from the Session. Representatives of the news media are allowed to attend Executive Sessions,as provided by ORS 192.660(4),but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. 10:(x)PM 13. ADJOURNMENT I:\ADM\Cathy\CCA\2008\080513 business.doc TIGARD CITY COUNCIL/LCRB/ AGENDA- MAY 13, 2008 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 4 of • i Agenda Item# 7 Meeting Date May 13, 2008 COUNCIL AGENDA ITEM SUMMARY City Of Tigard,Oregon Issue/Agenda Title MIS2008-00005/Appeal of Director's Interpretation of the Tree Plan Requirement (Development Code Chapter 18.790.030). ,� Prepared By: Todd Prager Dept Head Approval: 7 E- City Mgr Approval: l�l ISSUE BEFORE THE COUNCIL Shall City Council uphold or deny the Home Builder's Association appeal of the Director's Interpretation of the Tree Plan Requirement ("Exhibit A") of Community Development Code Chapter 18.790.030? STAFF RECOMMENDATION Deny the Home Builder's Association appeal of the Director's Interpretation and adopt the attached Resolution affirming the Director's Interpretation ("Attachment 1"). KEY FACTS AND INFORMATION SUMMARY - Chapter 18.790.030 (Tree Plan Requirement) of the Community Development Code clearly states "(Tree) Protection is preferred over removal wherever possible." - Historically, land use applicants have developed site plans with little regard to existing trees, resulting in widespread removals. - In response to past and present disregard for the tree preservation component of 18.790.030, the Community Development Director has issued a Director's Interpretation that outlines the clear and objective criteria by which tree plans shall be developed and reviewed. - - The Homebuilder's Association of Metropolitan Portland has appealed the Director's Interpretation on the grounds that it has no basis in existing Code ("Attachment 3"). - Chapter 18.340 (Director's Interpretation) of the Community Development Code requires the appeal to be addressed by City Council at a public hearing. OTHER ALTERNATIVES CONSIDERED Amend the Tree Code codifying the Director's interpretation and adding clear and objective standards relating to tree preservation. Uphold the appeal of the Homebuilder's Association and,by motion, reverse the Community Development Director's interpretation. CITY COUNCIL GOALS N/A 411111 • ATTACHMENT LIST Attachment 1: Proposed Resolution Denying the Appeal Exhibit A: 2/26/08 Director's Interpretation Attachment 2: 4/28/08 Memo to Council Exhibit A: 4/21/08 "Draft" Planning Commission Meeting Minutes Attachment 3: Home Builder's Association Appeal Attachment 4: Resolution No. 07-30 FISCAL NOTES No known financial costs to the City of Tigard. .r OF TIGARD, OREGON • TIGARD CITY COUNCIL RESOLUTION NO. 08- A RESOLUTION TO AFFIRM THE COMMUNITY DEVELOPMENT DIRECTOR'S INTERPRETATION OF LANGUAGE REGARDING TREE PRESERVATION IN THE CITY OF TIGARD MUNICIPAL CODE CHAPTER 18.790.030. WHEREAS, the Community Development Director is charged with making interpretations based on the best available information for any ambiguities or words having multiple meaning in the Tigard Development Code; and WHEREAS, the Community Development Director's Interpretation is supported by both adopted and proposed goals, policies, and action measures of the Tigard Comprehensive Plan,and provisions of the Tigard Development Code to protect existing trees wherever possible;and WHEREAS,the Tigard City Council adopted Development Code Chapter 18.790.030 to expressly protect trees during development wherever possible;and WHEREAS,the Tigard City Council held a public hearing on the matter on May 13,2008. NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that: SECTION 1: The Tigard City Council hereby expresses its affirmation that the interpretation ("Exhibit A") made by the Community Development Director is in keeping with the intention of the Tigard City Council and the purpose of the Tree Plan Requirement of the Tigard Municipal Code Chapter 18.790.030. SECTION 2: This resolution is effective immediately upon passage. PASSED: This day of 2008. Mayor-City of Tigard AT VEST: City Recorder-City of Tigard RESOLUTION NO. 08- Page 1 • • EXHIBIT A a DIRECTOR'S INTERPRETATION T IGARD DATE: February 26,2008 CODE CHAPTER: 18.790 Tree Removal TOPIC: How should the statement, "Protection is preferred over removal wherever possible"in Section 18.790.030 be interpreted? How can an applicant demonstrate that they have adequately considered tree protection given code preference for protection over removal? DIRECTOR'S INTERPRETATION: I. Introduction A tree plan is required when a development application is filed: 18.790.030 Tree Plan Requirement A. Tree plan required A tree plan for the planting, removal and protection of trees prepared by a certified arbotht shall be provided for any lot,parcel or combination of lots or parcels for which a development application for a subdivision,partition, site development review,planned development or conditional use is filed Protection is preferred over removal wherever possible. Historically,applicants have been required to identify all of the trees on the site, specify which will be removed,and propose protection methods for those to be retained. Any or all trees could be removed as long as they were appropriated mitigated. This process does not prioritize protection over removal as required by Section 18.790.030. In order to clarify the intent of the,"Protection is preferred over removal wherever possible" requirement,a Director's interpretation is needed. II. Interpretation One of the primary purposes of Chapter 18.790 of the Tigard Development Code is to preserve existing trees. Therefore,a development application is required to demonstrate that the site analysis and development plan protects the maximum amount of existing,viable trees(i.e.healthy and sustainable individuals or stands). • The City recognizes that some tree removal is unavoidable in order to meet certain planning and/or construction requirements as indicated in Section 18.790.010. 18.790.010 Purpose C. IZecognizj needier exceptions. The City recognizes that, notwithstanding these purposes, at the time of development it may be necessary to remove certain trees in order to accommodate structures, sheets utilities, and other needed or required improvements within the development. In order to determine that preservation of viable trees has been adequately considered,the tree plan shall include a narrative that addresses the following: 1. How does the site,lot and/or building layout maximize tree retention? 2. How have improvements such as roads,driveways,utilities,and walkways been designed and located to maximize tree retention? 3. Have tree compatible construction techniques been considered and utilized wherever possible to maximize tree retention? (examples of tree compatible construction techniques include but are not limited to tunneling for utilities,"no-dig"pavement installation,and use of retaining walls in certain situations to limit root disturbance) 4. Is it possible to reduce the number of parking spaces to maximize tree retention? 5. Is it possible to reduce the total number of lots to maximize tree retention? 6. Could lot size averaging per Section 18.790.040(2)be utilized to maximize tree retention? 7. Could lot width and/or depth per section 18.790.040(3) be reduced in order to maximize tree retention? 8. How have buildings and building footprints been designed to i ma xmize tree retention? 9. Are offsite trees that may be impacted by development inventoried and adequately protected? 10. Describe additional techniques not mentioned above that have/will be used to maximize tree retention. Failure to demonstrate that the proposed development will preserve viable trees wherever possible may result in findings for denial of a development application. This interpretation shall become effective immediately. G� By: Tom Coffee Community Development Director ATTACHMENT 2 • • is MEMORANDUM TIGARD TO: Mayor and City Council FROM: Todd Prager,Associate Planner/Arborist RE: Appeal of Director's Interpretation of 18.790.030, Tree Plan Requirement DATE: April 28, 2008 I. Introduction Tigard Municipal Code Chapter 18.340 authorizes the Community Development Director to interpret any terms or phrases within the Tigard Development Code that may be ambiguous or subject to two or more meanings. An Interpretation was issued by the Community Development Director on February 26,2008 regarding the meaning of a particular phrase in Chapter 18.790.030 (Tree Plan Requirement). This Interpretation was initiated by the Director himself in order to clarify the criteria by which land use applicants are required to consider the protection of trees during development planning. The Interpretation was appealed by the Home Builder's Association of Metropolitan Portland as allowed by Chapter 18.340. As a result, City Council is required to hold a public hearing according to 18.390.050.D in order to decide whether or not to uphold the Director's Interpretation. The following is a summary of what prompted the Interpretation, how the Interpretation was developed,the Home Builder's Association's objections to the Interpretation, and staff's responses to their objections. II. Background In Tigard,a tree plan is required when a development application is filed: 18.790.030 Tree Plan Requirement A. Tree plan required.A tree plan for the planting, removal and protection of tires prepared by a certified arborist shall be provided for any lot,parcel or combination of lots or parcels for which a development application for a subdivision,partition, site development review,planned development or conditional use is filed. Protection is preferred over removal wherever possible. (Emphasis added). Historically,applicants have been required to identify all of the trees on the site, specify which will be removed, and propose protection methods for those to be retained.As implemented, any or all trees could be removed as long as they would be mitigated. Contrary to the stated objective of Tigard's development code, this has frequently resulted in site plans being submitted that demonstrate little regard for the preservation of existing trees on site. Page 1 of 7 An example of this practice was noted by the Community Development Director in late 2007, during staff's review of a pending subdivision where the tree plan proposed removal of 100% of existing trees on site. This included the removal of trees well outside of proposed grading,building envelopes, and other construction areas. The Director asked staff why they were allowing trees to be removed that were not in conflict with the development plan. Staff responded that the City's administrative process had historically allowed the removal of any tree, so long as an applicant was willing to mitigate by planting new trees or paying an in-lieu fee. As a result,applicants had not typically demonstrated any genuine attempt during site design to preserve trees,but rather trees have been viewed as impediments to maximum development. This practice is not limited to residential construction. A recent project to construct an office building included a parking lot containing significantly more spaces than the minimum required by code which resulted in the removal of 100% of the trees on site. When staff discussed the possibility of retaining some of the viable trees on site, the applicant chose to continue on with his plan to remove all of the trees and mitigate their removal rather than consider reconfiguring the site and/or losing some parking spaces. A third example is a subdivision that had a minimum density requirement of 8 lots. The applicant chose to increase density 50%by building 12 lots, the maximum density allowed. This contributed to the need to remove over 50% of the healthy trees on site. Had the number of lots been reduced, the development could have retained additional trees. In response to the Director's concerns, staff thoroughly reviewed that portion of the code that addresses the Tree Plan Requirements (18.790.030). In their review,staff observed that 18.790.030.A establishes the guiding principle of the tree plan as being"Protection is preferred over removal wherever possible." However,while this statement is clear and self explanatory in its meaning, there are no evaluation criteria that can be used to determine whether the applicant has demonstrated protection of trees wherever possible during site design and development. As a result, the Director determined that an interpretation of the Tree Plan Requirement was needed in order to create clear and objective criteria by which to evaluate whether land use applicants are protecting existing trees wherever possible. III. Interpretation The following has been excerpted from the Director's Interpretation: "One of the primary purposes of Chapter 18.790 of the Tigard Development Code is to preserve existing trees. Therefore, a development application is required to demonstrate that the site analysis and development plan protects the maximum amount of existing,viable trees (i.e. healthy and sustainable individuals or stands). The City recognizes that some tree removal is unavoidable in order to meet certain planning and/or construction requirements as indicated in Section 18.790.010. Page 2 of 7 • • 18.790.010 Purpose C. Recognize need for exceptions. The City recognizes that, notwithstanding these purposes, at the time of development it may be necessary to remove certain trees in order to accommodate structures, streets utilities, and other needed or required improvements within the development. In order to determine that preservation of viable trees has been adequately considered, the tree plan shall include a narrative that addresses the following: 1. How does the site,lot and/or building layout maximize tree retention? 2. How have improvements such as roads,driveways,utilities,and walkways been designed and located to maximize tree retention? 3. Have tree compatible construction techniques been considered and utilized wherever possible to maximize tree retention? (examples of tree compatible construction techniques include but are not limited to tunneling for utilities, "no-dig"pavement installation,and use of retaining walls in certain situations to limit root disturbance) 4. Is it possible to reduce the number of parking spaces to maximize tree retention? 5. Is it possible to reduce the total number of lots to maximize tree retention? 6. Could lot size averaging per Section 18.790.040(2) be utilized to maximize tree retention? 7. Could lot width and/or depth per section 18.790.040(3) be reduced in order to maximize tree retention? 8. How have buildings and building footprints been designed to maximize tree retention? 9. Are offsite trees that may be impacted by development inventoried and adequately protected? 10. Describe additional techniques not mentioned above that have/will be used to maximize tree retention. Failure to demonstrate that the proposed development will preserve viable trees wherever possible may result in findings for denial of a development application." IV. Community Values and Comprehensive Plan The Director's interpretation issued on February 26,2008 is consistent with community values and citizen expectations. Tigard's 2006 Community Attitudes Survey found"the protection of trees and natural resource areas" as rating the highest of all"livability" characteristics posed to the respondents, scoring 8.4 out of 10 points. A follow-up question contained in the 2007 survey revealed that 84%of Tigard Residents supported increased regulations to protect existing trees. 59% disagreed with the statement that"the City should encourage greater residential density than exists today." This data suggests that when given a choice between preserving viable trees or increasing the number of residential units above the minimum required by Metro, a majority of Tigard citizens would choose tree preservation. Page 3 of 7 • • The City of Tigard's Comprehensive Plan is the primary document that guides land use decisions in the community and reflects the current and projected community character and conditions. Language within the plan was created with considerable input and oversight from community volunteers, and thus is intended to reflect the will of the citizens of Tigard. A number of Policies within the Plan either directly or indirectly relate to tree and natural resource preservation. The following recently adopted Policies relevant to tree and natural resource preservation have been excerpted from the Comprehensive Plan: Policy 6.1.6—The City shall encourage the maintenance and improvement of open spaces,natural resources, and the City's tree canopy to sustain their positive contribution to air quality. Policy 6.2.3—The City shall encourage the use of low impact development practices that reduce stormwater impacts from new and existing development. Policy 6.2.4—The City shall protect,restore, and enhance, to the extent practical, the natural functions of stream corridors,trees, and water resources for their positive contribution to water quality. Policy 8.1.19—The City shall seek to establish and manage a fully functional urban forest. Policy 9.1.12—The City shall assure economic development promotes other community qualities, such as livability and environmental quality that are necessary for a sustainable economic future. Policy 10.2.1 —The City shall adopt measures to protect and enhance the quality and integrity of its residential neighborhoods. Policy 10.2.5—The City shall encourage housing that supports sustainable development patterns by promoting the efficient use of land, conservation of natural resources, easy access to public transit and other efficient modes of transportation, easy access to services and parks,resource efficient design and construction, and the use of renewable energy resources. Policy 10.2.7 —The City shall ensure that residential densities are appropriately related to locational characteristics and site conditions such as the presence of natural hazards and natural resources, availability of public facilities and services,and existing land use patterns. Policy 10.2.8—The City shall require measures to mitigate the adverse impacts from differing or more intense land uses on residential living environments, such as: A. orderly transitions from one residential density to another; B. protection of existing vegetation, natural resources and provision of open space areas;and C. installation of landscaping and effective buffering and screening. Page 4 of 7 • • Policy 10.2.9—The City shall require infill development to be designed to address compatibility with existing neighborhoods. Policy 13.1.3—The City shall require future development to consider topography, vegetation, and solar access during the design phase to reduce demands for artificial heating, cooling,and lighting. The following Policy relevant to tree and natural resource preservation has been excerpted from a portion of the 1982 Comprehensive Plan that is still currently in effect: Policy 3.4.2—The City shall: a. Protect fish and wildlife habitat along stream corridors by managing the riparian habitat and controlling erosion, and by requiring areas of standing trees and natural vegetation along natural drainage courses and waterways be maintained to the maximum extent possible; b. Require that development proposals in designated timbered or tree areas be reviewed through the planned development process to minimize the number of trees removed;and c. Require cluster type development in areas having important wildlife habitat value as delineated on the "Fish and Wildlife Habitat Map" on file at the City d. Address Goal 5 rule requirements pertaining to the preservation of wetlands once adequate information on the location, quality,and quantity of wetland sites is obtained. This Goal 5 review will include determining which wetland sites are ecologically and scientifically significant. Citizens will participate in making policy recommendation for the protection and preservation of those wetland areas designated as significant. The City shall complete its Goal 5 review of wetland areas before the City's next periodic review, but no later than December 23, 1996. The following policies relevant to tree and natural resource preservation have been excerpted from the Urban Forest Comprehensive Plan Amendment (subchapter of Goal 2,Land Use Chapter). They have been developed by the Tigard Tree Board and the Tigard Planning Commission through extensive input from City staff,the development community,and the public. The Planning Commission formally recommended the policies to Tigard City Council at its April 21, 2008 public hearing. Upon Council's adoption,the Urban Forest Comprehensive Plan will be incorporated into the City's update of the Comprehensive Plan. Policy 2.3.1 -The City shall develop and implement standards and procedures designed to minimize the reduction of existing tree cover,with priority given to native trees and non-native varietals that are long lived and/or provide a broad canopy spread. . Policy 2.3.2 - In prescribing the mitigation of the impacts of development, the City shall give priority to the protection of existing trees, and shall consider the financial impact of mitigation. Page 5 of 7 • Policy 2.3.6 - The City shall, in order to preserve existing trees and ensure new trees will thrive, allow and encourage flexibility in site design through all aspects of development review. Policy 2.3.9 -The City shall require,as appropriate, tree preservation strategies that prioritize the retention of trees in cohesive and viable stands and groves instead of isolated specimens. The above adopted and proposed Comprehensive Plan policies reflect the community's past, present, and future desires to preserve existing trees wherever possible. The Community Development Director's February 26,2008 Interpretation was intended to ensure these policies are carried out during development review as required by Chapter 18.790.030,Tree Plan Requirement. V. Conclusion The intent of the Interpretation is not to "save all trees at all costs." Instead,it allows both the applicant and the City to better address the code provision requiring tree preservation wherever possible in a clear and objective manner early in the design process. The Home Builder's Association has appealed the Director's Interpretation, and now Council is charged with making a decision. Staff has provided a summary of the Home Builder's Association's reasons for appealing the decision, as well as staff's responses to the individual items in Appendix #1. Appendix #1, Summary and Response to Home Builder's Association Appeal Appeal Statement #1: "The Director's Interpretation is contrary to the letter of the code..." Response: The purpose of the Director's Interpretation is to implement the code requirement in 18.790.030.A which states, "Protection is preferred over removal wherever possible." The Interpretation creates clear and objective guidelines for applicants to demonstrate conformance with this requirement. It also creates clear and objective guidelines by which staff will evaluate whether tree protection has occurred wherever possible. Appeal Statement #2: "It is the sole responsibility of the applicant to determine whether or not a tree can or should be saved." Response:A tree plan or development plan is not the sole responsibility of the applicant,but instead is a joint responsibility between the applicant and the City. It is the applicant's responsibility to submit a development plan that meets the code requirements. It is the City's responsibility to review the development plan, and evaluate whether the plan meets the code requirements. The code explicitly says"Protection is preferred over removal wherever possible." The applicant must address this by demonstrating through their tree plan that tree protection wherever possible has occurred. The City must then review and approve the plan for reasonableness prior to any tree removal. The Director's Interpretation has established the review criteria to address the code requirement. Page 6 of 7 • • This is equivalent to the code requirement in 18.790.030.B.4 which states that a tree plan shall include "A protection program defining the standards and methods that will be used by the applicant to protect trees during and after construction." The applicant's arborist creates the tree protection plan and the City Arborist reviews the tree protection plan for completeness and adequacy. If the City Arborist finds that additional protection measures are needed, he may require more protection measures prior to approval. Appeal Statement#3: "To meet the terms of this interpretation, development can not occur on developable properties with trees unless a Type 3 process is used." Response: The Interpretation allows development to proceed utilizing specific incentives and flexible development standards through a Type 2 process if the applicant can demonstrate that the proposed development will preserve viable trees wherever possible. The Director understands that some tree removal is unavoidable in certain situations due to minimum density requirements and other needed or required improvements. The Interpretation is intended to require trees to be preserved wherever possible as a development goes through the Type 2 process. Appeal Statement#4: "The cost of construction would spiral out of control if construction techniques are used that"maximize" tree retention are required. Response: Requiring development to protect and incorporate significant natural features such as viable trees into the design is not an uncommon development procedure, and has been practiced by surrounding jurisdictions for some time. These jurisdictions,with what are commonly considered more restrictive tree ordinances than the City of Tigard, allow for economically viable construction and development projects. By requiring a tree plan and narrative early in the development review process, the City is ensuring that applicants give early consideration to tree preservation during the site design phase, thus reducing the likelihood of costly delays and the need to redesign the project or utilize unforeseen alternative construction techniques. Page 7 of 7 • ATTA LENT 2 EXHIBIT A 7 CITY OF TIGARD PLANNING COMMISSION Meeting Minutes April 21, 2008 1. CALL TO ORDER President Inman called the meeting to order at 7:05p:m. ; e meeting was held in the Tigard Civic Center,Town Hall at 13125 SW Hall Blvd,- 9 4 " n 2. ROLL CALL•r• �; � _ �:,, __�. ..=+ :; fo';b max,, ,, Commissioners Present: President Inman, Comma sioners '�a.fall,Doherty Fjshel;Hasman, Muldoon,Vermilyea, and Walsh ems,; ' :. rF Pw'. Commissioners Absent: Anderson '�� . . •. Staff Present: Ron Bunch,Assistant Com°muni" Development Direc or;Darren Wyss, Associate Planner;John Floyd,Associate'Planner; odd:Prager;-,City Arborist;Doreen „, ., Laughlin,Administrative Specialist II 2��r :,;���_ �- 3. COMMUNICATIONS ', 4S, ‘'-_,,i=4-, .. ,,,A--„,--iiid ' Commissioner Caffall re ortedEtl at he'd attends` thec,<-I Committee for Citizen Involvement] meeting earlie�r,in the month and that.• e City now has four neighborhoods up and running with their"neighborhtod website."He said the City webpage has details on these neighborhood>websitestand than more,:are,•tc come. He encouraged people to check out the website;3.to see¢if;their ne ghborhoo as3a web age. .,' £ ''APPROVE ME ��.,-��;� MEETING MINUTES Therenwas a motion by Commissioner Caffall, seconded by Commissioner Doherty,to approve `the-April,7 2008 meeting minutes=as submitted. The motion carried as follows: . ,� =_.-`' , 442',-111 AYES: . Caffall,Dohs ;,F s el,Hasman,Inman,Walsh NAYS: None< 1 _ .v - �'. ...- :>a:.,,,I-�?`n yr,°'.,,- ABSTENTIONS Muldoo ,Vermilyea EXCUSED: Anderson-' 5. PUBLIC HEARING 5.1 COMPREHENSIVE PLAN AMENDMENT(CPA)2008-00002 Tigard Comprehensive Plan Update Pertaining to Tigard's Urban Forest PLANNING COMMISSION MEETING MINUTES—April 21,2008—Page 1 I:11.RP1.N bcreen1PCtPC Minutes 2008'Ipc 04-21-08 minutes doe - • • REQUEST: To amend the current Comprehensive Plan to include goals, policies, and recommended action measures to reflect current community conditions and values relating to Tigard's Urban Forest. The complete text of the proposed Amendment can be viewed on the City's website at http://www.tigard-or.gov/code_ amendments. LOCATION: Citywide. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.380 and 18.390; Comprehensive Plan Chapters Citizen Involvement,. Environmental Quality, Hazards, Public Facilities and Services, and Natural Features and_Open'Spaces; Metro Functional Plan Titles 3 and 13;and Statewide Planning Goals 1 2.:5 6 and I l. 44;;-,470,,, President Inman opened the public hearing,explained th�ftlus.meet g vas:a,.con�uation from the last hearing, and went on to explain the process Shenoted that public-testirriony would be reopened and that there is a 3-minute limit t four u dividuals and a 20-minute limit for people speaking on behalf of a group. j . a - `= � ='= John Floyd,Assistant Planner,gave his report on behalf of the',:°;City x;He went over changes that had been made by staff since the April 7 meetingfHe,noted that there° ere basically four changes and that his PowerPoint presentation would cover those changes. fir, .:3 Following are the changes (in brief): � °`'{ :��=`��_ ;2 �3<..za 1. Eight (8) policies and recommended action°measures:were amended,rewritten, or - recreated as a result of direction from the_Planning,Commission at the last meeting; 2. Two definitions were changed—one is new,zone.is.:substantially rewritten; 3. Staff wanted greater clarification as to Planning Co`mmission's preference in policy 2.2.9 (which he would explatn_inlmore detail later in his presentation);and 4. Two piecesublic corn rent had been received by staff since the last hearing A1trachmcnts.1;;&2] for the Plana' gxCommission's consideration. Flo, d=explained these<changes.in detail in l,PowerPoint presentation (Attachment 3). 'AfteiTloyd's report,Presidei t-loran asked the commissioners if they had any questions of `..s taff regarding this There were none. Air?"ktLi.,,,,t13,\,,,,... ,.vs7 At thin gint;;:President Inrnana „opened up the meeting for public testimony. PUBLIC TESTIMONY=I FAVOR: ,_ Janet Gillis, 13711 rSW Essex Drive,Tigard,OR 97223 (Chair of the Tree Board) said the Tree Board had met again since the last Planning Commission meeting and went over the issues that they considered particularly important [Listed in attachment 2]. John Frewing,7110 SW Lola Lane,Tigard,OR 97223, spoke in support of the policies and action items - specifically,recommended action measure 2.2.v (page 5 of Floyd's memo of 4/14)where the word"removals"is replaced by the words "permitted removals." He also PLANNING COMMISSION MEETING MINUTES—April 21,2008—Page 2 I:LLRPLN1Doreen4PGPC Minutes 2008tIp 04-21-08 miwtes.doc 0 P S V spoke about the definition of"understory"—that it should say"immediately under,or immediately adjacent to,trees or canopies." Kandace Horlings, 14525 SW Chesterfield Ln.,Tigard, OR 97224,identified herself as a Tree Board member. She said that committees can never make everyone happy. She said she works as a landscaper and she spoke about rules. She said,even as a landscaper, she has to get permits at times. She does not believe the Tree Board is workin against developers. She commented that what is in place now is not going to work3t or 40 y�'ears from now. She noted that this is a broad document,by design. Shewouldlike to=seethe HBA (Home Builders Association) members and interested public dtizens`�sit'dowz wiith the Tree Board. She reiterated that this is a starting point and the. ';Y l , . "Tree'Board��=willtng-to>lsten. Tony Tycer, 10655 SW Hall Blvd., Tigard, OR>1-97223 s`_``ke about ul`nderstory:':-vegetation. He said his concern is more aimed towards the soil;_as:he>beiieves that is more relevant. He commented that these policies are deliberatel y ve ry�road � =. PUBLIC TESTIMONY -IN OPPOSITION• = „,,-,t,,' Alan Deharpport, 5740 SW Arrowwood:Lane,=Beaverton,OR 97225 y was concerned about`the wording. He wants to add to theifollowii glanguage asa recommendation on 2.3.4: ...while minimizing the financial 04,4g property:owner.”He said there are hundreds of thousands of dollars in tree7mitigation fees thatthe underlying property owner typically pays. He said that's a stra ghtforward addition to fhe language that would allow the writers of the code to come upwwitha mitigationstandard that would not be onerous to the cv< underlying property owner. Iii addition,he was-concerned)°that the definition of mitigation came within a week's notice:of_the,yote-he thought'th t was too fast for everyone affected by this to make a judgment.l Ee requested another continuance to take into account the many people who would be affected by these policies. He expressed concern about mitigation fees. He not ed-his concern that citizens were not notified. He also noted that the �..� u , , ter �.� , ,�. wording `proportionai�to xhe loss"is nebulous He wondered what proportional means... d,es it n ean tree for tree?Inch for inch?""'-:14e expressed concern about the wording of the o' liiient. He said the code writers should have leeway. Bill , cMonagle, 8740 SW,aScoffins St.,Tigard, OR 97223,gave a scenario where a property wasdevalued simply;because it had trees on it. He believes that's wrong. He said trees are gotiigto be'the.,dictator of the functional use of land. He was concerned about the understory issue lie believes the City should not be "in their backyard." Kevin Luby, 16497 SW 103 ,Tigard, OR 97223, said there is a dichotomy between developers and subsequent occupancy. He discussed the developer's side. He agreed with previous testimony that the mitigation fee schedule is unfair. It doesn't take into account the realistic life expectancy of trees.As far as "subsequent occupancy"—he said his ability to decide when the useful life of his own trees is done and when he wants to replace those trees should be his own decision. He was further concerned about requiring permits to take down PLANNING COMMISSION MEETING MINUTES—April 21,2008—Page 3 I:LLRPLMDoreen\ MPC Minutes 20081tpc 04-21-08 n4nutes.doc c,' • • trees,he said the City would have the right to deny that permit and he has a problem with the City having that kind of control over his property. Among other things,he expressed concern over the vagueness of the definition "understory vegetation" and was concerned about the idea of mitigation fees on private property. The question was asked if he had any suggestions on how to improve on the idea of"understory." He said, "Delete it." Walt Knapp, 7615 SW Dunsmuir,Beaverton, OR 97007kidentified himself as an arborist & forester of 47 years. He spoke specifically to the questi n=ofunderstory . He encouraged the City to drop all references to it because it a`s`,no `handles" that can be scientifically supported. 1 ,-- Ken Gerts, 19200 SW 46th Tualatin OR,introduced hir aset as'a long turner eregontan. The written form of his comments is Attachment rrs 'arc '° ` ' '`': s s ttachment 4. _ r� � . James McCauley, 15555 Barley Rd.,Lake Oswego; OR§97035,of the HBA (Homebuilders Association) stated that he believes a ma o e-iror r; rding the Tree Board is that there does not appear to be a broad ran e,.of.interests re reserted.•'•1•`Ie said he believes `_ , P DES policy 2.3.1 is a horrible piece of language from-"a:pnvate landowner's point of view. He spoke to the issue of"understory"—he a reed.tl at ere%is-no scientificievidence regarding this. On policy 2.3.4—he believes "balance"is a bette 7:3- ord'`than "minimize." xiC } f'�y-'i'„' Craig Brown, 16074 SW 103rd,Tigard lOR 97,224'expressed,concern over policy 2.2.4. He said the intent was not clear. In4 ecommended action meaSure measure 1.1.iv—he wondered whether the City will be doing our landseapi g now. lie do n'o tunderstand what the provision implies. 2.3.1 —believes it's ovc rea hing.As to'2 :Tit he.wonders whose standard this is goingto be.What is ro ortionalj; act? It's very sb'ative and he's concerned how that P Pte;':�.��.' �:.°:�;, P very � 1 will be applied. 2.3.2 with regard toe"subsequent occupancy." He's concerned about the City going int people's yards chan it gYth`ing,i.',,I Ie questioned the definition of mitigation. He question d the term`-.,.`underostory vegetation":l Ie said if property is zoned residential,it's residen a l.f you<add penalties and pur e policies,that keeps it from being developed that way,and you are not promdmg for reasonable development. Jeff iC_aines,8196 SW Hall Blvd;;'#232,Beaverton,OR 97008,identified himself as a land- „,,,,,useplauner and said he was speaking in support of the changes of the builders. He entouragedr,� e City to be very,careful in adopting policies and to pay attention to the fact that the e;rpo,ci-es'have a great;.effect on the citizens.When you adopt policies be very careful —it may s rt to=in fringe'on p*ate property owners rights. Roger Anderson, 10120SW Kable, Tigard, OR 97223, said he'd only heard a week or so ago that the City was..working on this tree thing and that it would affect every citizen in Tigard who own houses and trees. He was especially concerned about "non-development trees” and "subsequent occupancy". He suggested the City take these two phrases completely out of the policy wording. He said he believes this is overkill. He wondered why the City cares about private homeowners trees. He believes the ordinance is ridiculous. He thinks it would actually cause people to hate trees since they will have no control over them. PLANNING COMMISSION MEETING MINUTES—April 21,2008—Page 4 NLRPLMDmeenIPC'PC Minutes 20081¢c 04-21-08 minutes doc • • • And then they'd have to pay for a permit to take trees down on their own property. He believes if the City wants to control his property,then they should buy it. Steve Roper, 196 SW Hall Blvd. #232,Beaverton, OR 97008, said the others who had spoken in opposition had pretty much said what he believes as well. He spoke about affordable housing. He said adding tree mitigation adds to the price of those homes. He spoke about the lack of developer input into the Tree Board.He felt the Tree Board wasn't really interested in his take on things. _= PUBLIC TESTIMONY CLOSED 'c There was a 5-minute break. DELIBERATION: 9:53PM :;T... President Inman explained that the deliberation time is a time for:the.Planning Commissioners to deliberate and that, at this point,they would nor be entertaining questions or comments from the audience. The publictestimonytime had offically.closed. After much deliberation, the Planning Com7ussiori:came up,with the following revisions (not in order of the text) to be taken into consideration°of the.motion=that follows: 1. Strike all reference to theutemi°"understory vegetation" throughout the document and remove*.definition; ':-7A::, 2. 2.3.1—strike reference to all development and`non-development related tree removal" and substitute the language 'The=tity shall develop and implement standards and procedures;designed to minimize impacts on existing tree cover,with;priority given;,to native trees and non-native varietals that are long ,F lived a_:t d or provide a broad canopy spread." 3 2 3 la-"In prescribing the mitigation of the impacts of development,the City shall give pnanty to preservatiorvof existing trees and shall consider the financial impacts pf mitigation." =: �' Changed definition of mitigation. Everything is the same except after the wend compensated strike everything—and put"as appropriate". ``'4, = 23.2 changed to "TheCity shall develop policies and procedures designed to °protect-trees, including root systems, selected for preservation during land development" ` 6. 2.3.4 remove the word "require" and substitute"develop." 7. 2.2.9—us ethewwOrrd"discourage." 8. 2.2.v—The word "removals"was struck but will be reinstated as "permitted removals." 9. Definition of a"hazard tree"will be reviewed in the ISA definition and will be held open until the next meeting for potential amendment at that time. PLANNING COMMISSION MEETING MINUTES—April 21,2008—Page 5 I:LLRPLMDoreen\PC1PC Minutes 20081tpc 04-21-08 minutes dos Commissioner Walsh made the following motion,seconded by Commissioner Doherty: "I move that the Planning Commission forward a recommendation of approval to the City Council on application case number CPA2008-00002 for the Tigard Comprehensive Plan update pertaining to Tigard Urban Forest and adoption of the revisions that the group just reviewed [above] and approval of the staff report and public testimony presented and received. I further mane that the definition of "hazardous tree"be revised based upon ISA defnitio''*1 ,thatt l a't issue be left _ oo en for future review and approval by the Planni ng Co rnini sin: 'h 3z The motion carried as follows: �-; -£�`�,� ,� • � p 17;',.;.t- - AYES: Caffall,Doherty,Fishel,Hasman Im an Muldoon,Vernal ea ,and-Walsh NAYS: None ABSTENTIONS: None EXCUSED: Anderson 6. OTHER BUSINESS - President Inman reminded the commissioners that :'issue would go to City Council for a May 6 workshop and a June 3 hearing: ` Viµ:= 7. ADJOURNMENT President Inman adjourned the meeting at 11:48p xri rr ' ' rY, `°Doreen'Laughlin,Administrative Specialist II <a g Al'I'ESI` ;Preside it Jodie>l roan PLANNING COMMISSION MEETING MINUTES—April 21,2008—Page 6 I:LLRPLMDoreeMPG1PC Minutes 2008Vpc 04-21-08 minutes doc ATTACHMENT 3 b . • • APPEAL FILING FORM lit`` i3 FOR LAND USE DECISIO 1 Ci of Tigard Permit Center 13125 SW Hall Blvd Ti and,OR f,1"�� er' ���8 T].G A fZ D f 8 Phone 503.639.4171 Fax:503.598.1960 14 fe/N 1113. H. 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. The following form has been developed to assist you in filing an appeal of a land use decision in proper form. 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 Recorder at the phone/fax listed at the top of this form. GENERAL INFORMATION I7OR STAFF USE ONLY Property Address/Location(s) and Name(s) of the Application Case No.(s): o1C2 -OO1?0C' Being Appealed: Director's intrepretation, dated Feb. Case Name(s): 26, 2008 Code Chapter 18.790 (Tree removal) ReceiptNo.: I/5.-/ How Do You Qualify As A Party?: Trade Association Application Accepted By: S.117264-1-117 Date: 3/l WOK./ As To Form By: Appellant's Name: HOMEBUILDERS ASSN. OF METRO PORTL/q t)bl�U Date: Appellant's Address: !5555 SW Bangy Rd. #301 Denied As To Form By: City/State: Lake Oswego , OR Zip: 97035 Date: Day Phone Where You Can Be Reached:( c03 684-1880 Rev. 7/1/07 c\cutpin\masters\laud use appliicauons\appeal land use app doc Scheduled Date Decision Is To Be Final: March 14, 2008 Date Notice of Final Decision Was Given: Feb 26. 2008 Specific Grounds For Appeal or Review: REOUIRED SUBMITTAL ELEMENTS Attached ✓ Application Elements Submitted: Q" Appeal Filing Form(completed) DFiling Fee(based on criteria below) > Director's Decision to Hearings Officer/Planning CommusiA s 2snm'. > Experrned Review(deposit) $ 300.00 > Hearing Referee $ 500.00 > Planning Conunission/Hearin(s Officer to City Council $2,51300 (+Transcript) Signature(s) • Ap.ellant(s): Home :iii,ers Assn % Metro Portland !/Gf se • att Dir_ of Local Gov't Affairs C, • i -• APPEAL FILING FORM FOR LAND USE DECISIONS (Coned.) The Home Builders Assn. is appealing the Director's interpretation because we believe it drastically changes the intent of Tigard's tree protection requirements,and elevates tree protection standards well beyond the purpose and the practical application of a type 3 application. The Director's interpretation is contrary to the letter of the code: Sec 18.790.010 B.1 `Encourage the reservation,planting and replacement of trees in the City." Sec 18.790.010 B.6"Provide incentives for the retention and protection;..." Sec 18.790.030"...protection is preferred to removal." These sections do not require anyone to save a tree as long as they are willing to mitigate for the loss of a tree. Nothing is said about protecting the maximum amount of existing viable trees,or any tree for that matter. It is the sole responsibility of the applicant to determine if and when a tree can or should be saved. 1. To meet the terms of this interpretation, development cannot occur on dividable • properties with trees unless a Type 3 process is used. 2. The cost of construction would spiral out of control if construction techniques that are used that"maximize"tree retention are required. State law requires that all jurisdictions must allow for an applicant to file a type 2 application provided they meet all of the provisions of the development code. Per the Director's interpretation, an applicant will now be REQUIRED to reduce the number of lots to maximize tree retentions stated in points 5,6 an 7 of the interpretation. It is always possible to reduce the number of lots,use lot size averaging,and to reduce the width and depth of lots in order to maximize tree retention,however,this puts the applicant into the type 3 application process section of the code,which is OPTIONAL and entirely at the discretion of the applicant. Moreover,this interpretation does not provide a"CLEAR AND OBJECTIVE"standard from which a developer can base their decision to purchase developable property with trees on it. The type 3 application process is intended for sensitive sites,and is not intended to be used for the simple existence of a tree unless there is a link to an actual resource. Originally,the PD section of the code was written to accommodate wetlands and waterways,not trees,in order to flex the density from the undevelopable portions of the land.A PD was never intended to protect trees unless they happened to be in a wetland. No other jurisdiction requires applicants to make these types of considerations. Ippi CITY OF TIGARD 3/14/2008 a 13125 SW Hall Blvd. 2:33:13PM Tigard,OR 97223 503.639.4171 TIGARD Receipt #: 27200800000000000851 Date: 03/14/2008 Line Items: Case No Tran Code Description Revenue Account No Amount Paid MIS2008-00005 [LANDUS] Interpretation of CDC 100-0000-438000 250.00 Line Item Total: $250.00 Payments: • Method Payer User ID Acct./Check No. Approval No. How Received Amount Paid Check HOMEBUILDERS ASSN OF ST 14483 In Person 250.00 METRO PORTLAND Payment Total: $250.00 0 cReceipt.rpt Page 1 of 1 • • • ,11114 a DIRECTOR'S INTERPRETATION 1' I (3 AR I) DATE: February 26,2008 CODE CHAPTER: 18.790 Tree Removal TOPIC: How should the statement,'Protection is preferred over removal wherever possible"in Section 18.790.030 be interpreted? How can an applicant demonstrate that they have adequately considered tree protection given code preference for protection over removal? DIRECTOR'S INT'ERPRETA'TION: I. Introduction A tree plan is required when a development application is filed: 18.790.030 Tree Plan Requirement • A,Tree plan regpirei A tree plan for the planting, removal and protection of trees prepared by a carkfred cabalist shall be provided for any loI parcel or combination of lots orpaffels for which a development application for a subdivision,partition, site development review,planned development or conditional use ir fried Protection is preferred over removal wherever possible. Historically,applicants have been required to identify all of the trees on the site, specify which will be removed,and propose protection methods for those to be retained. Any or all trees could be removed as long as they were appropriated mitigated. This process does not prioritize protection over removal as required by Section 18.790.030. In order to clarify the intent of the,"Protection is preferred over removal wherever possible" requirement,a Director's interpretation is needed. II. Interpretation One of the primary purposes of Chapter 18.790 of the Tigard Development Code is to preserve existing trees. Therefore,a development application is required to demonstrate that the site analysis and development plan protects the maximum amount of existing,viable trees (i.e.healthy and sustainable individuals or stands). • • - The City recognizes that some tree removal is unavoidable in order to meet certain planning and/or construction requirements as indicated in Section 18.790.010. 18.790.010 Purpose C.Recognirj neec{for woollens. The City recognizes that,notwithstanding these puooses, at the time of development it may be necessary to removs certain trees in order to accommodate strnuturrs,surds utilities,and other needed or required impmvements within the development. In order to determine that preservation of viable trees has been adequately considered,the tree plan shall include a narrative that addresses the following: 1. How does the site,lot and/or building layout maximize tree retention? 2. Flow have improvements such as roads,driveways,utilities,and walkways been designed and located to maximize tree retention? 3. Have tree compatible construction techniques been considered and utilized wherever possible to maximize tree retention? (examples of tree compatible construction techniques include but are not limited to tunneling for utilities,"no-dig"pavement installation,and use of retaining walls in certain situations to limit root disturbance) 4. Is it possible to reduce the number of parking spaces to maximize tree retention? 5. Is it possible to reduce the total number of lots to maximize tree retention? 6. Could lot size averaging per Section 18.790.040(2)be utilized to maximize tree retention? 7. Could lot width and/or depth per section 18.790.040(3)be reduced in order to maximize tree retention? 8. How have buildings and building footprints been designed to maximize tree retention? 9. Are offsite trees that may be impacted by development inventoried and adequately protected? 10. Describe additional techniques not mentioned above that have/will be used to maximize tree retention. Failure to demonstrate that the proposed development will preserve viable trees wherever possible may result in findings for denial of a development application. This interpretation shall become effective immediately. By: Tom Coffee e Y Community Development Director ATTACHMENT 4 CITY OF TIGARD, OREGON IF TIGARD CITY COUN IL RESOLUTION NO. 07-,3O A RESOLUTION OF THE TIGARD CITY COUNCIL ADOPTING AN INTERIM TREE BOARD CHARGE STATEMENT FOR THE PURPOSE OF DEVELOPING A COMPREHENSIVE TREE PROTECTION AND URBAN FOREST ENHANCEMENT PROGRAM. WHEREAS,the current charge of the Tree Board(Council resolution 01-02)requires it to,"develop and administer a comprehensive tree management program for the maintenance,removal,replacement and protection of trees on public property";and WHEREAS,the Board's current charge does not provide the latitude for it to undertake other important community tasks related to stewardship of Tigard's tree resources;and WHEREAS,the City is engaged in update of the Tigard Comprehensive Plan and the Tree Board's services are needed to address the important matters of tree stewardship and enhancement of the City's urban forest, because: a. Urban development has resulted in loss of trees; b. Trees and other natural resources contribute to Tigard's quality of life and overall environmental quality; c. Urban density,unless well designed,results in loss of trees and private open space; • d. An attractive,treed environment is a component of an economically prosperous community; e. A balance is needed between tree stewardship and the need for efficient use of valuable urban lands; f. A sound technical basis is needed for useable and up-to-date tree codes and standards; g. Tree stewardship and urban forest enhancement provides civic engagement opportunities;and h. A healthy urban forest and its associated benefits require active management. NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that: SECTION 1: For the purposes of developing a comprehensive City Tree Stewardship and Urban Forest Enhancement Program,the Tree Board shall have the following responsibilities in addition to those spelled out in its existing mission statement. a. The Tree Board shall work with the Planning Commission to update the City's Comprehensive Plan by developing Comprehensive Plan background information (findings)and goals,policies,and action measures pertaining to tree stewardship and the contribution of trees and other vegetation to Tigard's quality of life. b. The Tree Board shall recommend updated goals,policies,action measures,and • background information to the Planning Commission. The Board shall participate in the Commission's joint work sessions to review/discuss the same.These amendments to the Comprehensive Plan are subject to Planning Commission public hearings and recommendation to the City Council. RESOLUTION NO.07-3 Page 1 • • c. The Tree Board shall propose a tree stewardship program for Planning Commission 4 - consideration which shall consist of municipal code and land use regulations to implement the above"Trees and Vegetation" Comprehensive Plan goals,policies, and action measures.Proposed Municipal and Development Code amendments shall be subject to review by the City Attorney.Proposed land-use code changes shall be subject to public hearings and recommendation to Council by the Planning Commission.The Tree Board shall participate with the Commission in work sessions - to review/discuss the same. d. The Tree Board may also make other general recommendations to enhance urban forest resources for City consideration such as public education,incentives,tree planting programs,and arboriculture practices,etc. e. The Tree Board shall review recommendations from staff to develop specific interim tree code standards intended to prevent tree removal during the period it takes to develop the City's tree stewardship program.The Tree Board shall participate in work sessions with the Planning Commission prior to the Commission holding public hearings to recommend the interim standards to Council f. The Tree Board,in consultation with the Planning Commission and Committee for Citizen Involvement,shall develop and implement a public information and involvement program to hear public concerns and suggestions regarding tree stewardship and urban forestry enhancement in Tigard. In addition,the Tree Board shall prepare a citizen involvement report as part of the record of its proceedings. g. Every three months the Tree Board shall forward a report of its progress to the City Council and Planning Commission. Initially,the Tree Board shall prepare a schedule and scope of work as the first step to implement this mission. SECTION 2: Upon adoption of the Tree Protection Program, the Tree Board's charge statement shall be reevaluated to address public issues associated with the urban forest and other natural resources as seen fit by the City Council SECTION 3: This resolution is effective immediately upon passage. PASSED: This as 'day of 2007. • • (C2( ,...,C1)Z.,1 Mayor-ity of Tigard ATTEST: • �•i City Recorder- City of Tigard RESOLUTION NO.07-.3 Page 2 • PUBLIC HEARING ITEM: The following will be consider the Tigard City Council on Tuesday May 13, 2008 at 7:3 M at,the Tigard Civic Center - Town Hall Room, 13125 SW Hall Boulevard, Tigard, Oregon COMMUNITY Council This item was previously scheduled to be heard by the City Council on Tucsday App''„ 08 and has been rescheduled to the SPAPEIS date indicated above.Public oral or written testimony is invited. The public hearing on this matter will be held under Title 18 and rules of 6605 SE Lake Road, Portland, OR 97222• PO procedure adopted by the Council and available at City Hall or the Box 370• Beaverton, OR 97075 rules of procedure set forth in Section 18.390.050.D.Further infor- Phone:503-684-0360 Fax: 503-620-3433 mation may be obtained from the Planning Division(Staff contact: Email: Todd Prager) at 13125 SW Hall Blvd.,Tigard, Oregon 97223, or legaladvertising @commnewspapers.com by calling at 503.639.4171. MISCELLANEOUS (MIS) 2008- 00005 - APPEAL OF A DIRECTORS INTERPRETATION OF CHAPTER 18.790-The City Council will review an appeal of' AFFIDAVIT OF PUBLICATION the Community Development Director's Interpretation of Chapter 18.790 of the Tigard Community Development Code. The appeal State of Oregon, County of Washington, SS is specific to the language regarding Tree Plan Requirements. Applicable Review Criteria: 18.340, 18.390 and 18.790. Publish I, Charlotte Allsop, being the first duly sworn, - 4/24/08.TT11117. depose and say that I am the Accounting Manager of The Times(serving Tigard, Tualatin &Sherwood), a newspaper of general circulation, published at Beaverton, in the aforesaid county and state, as defined by ORS 193.010 and 193.020, that City of Tigard Notice of Public Hearing TT11117 rF F/t;¢f`G A copy of which is hereto annexed, was APR 2 9 2008 published in the entire issue of said newspaper for CITY OF TIGARD 1 Successive and consecutive weeks in the following issues • April 24, 2008 C/h39/ Co`I-�- Charlotte Allsop (Accounting Manag r) Subscribed and sworn to before me this April 24, 2008 NOTAR PUBLIC FOR OREGON My commission expiresN----MU g' Acct#10093001 - �`�-�-�-� ,f'�� Patty Lunsford � �< _'; OFFICIAL SEAL City of Tigard r `"• SUZETTE I CURRAN () `�- . NOTARY PUBUC-OREGON t"13125 SW Hall Blvd ( ��� COMMISSION NO.422662 Tigard, OR 97223 MY COMMISSION EXPIRES NOVEMBER 28,2011 1 Size2x3 Amount Due$50.10 *remit to address above 0 NOTICE TO MORTGAGEE,LIENHOLDER,VENDOR OR SELLER ' THE TIGARD DEVELOPMENT CODE REQUIRES THAT IF YOU RECEIVE THIS NOTICE, 41 IT SHALL BE PROMPTLY FORWARDED TO THE PURCHASER TIGARD PUBLIC HEARING NOTICE APPEAL OF A DIRECTOR'S INTERPRETATION (TREE REMOVAL) NOTICE IS HEREBY GIVEN THAT THE TIGARD CITY COUNCIL, AT A MEETING ON TUESDAY MAY 13, 2008 AT 7:30 PM, IN THE TOWN HALL OF THE TIGARD CIVIC CENTER AT 13125 SW HALL BOULEVARD, TIGARD, OREGON 97223 WILL CONSIDER THE FOLLOWING APPLICATION: PLEASE NOTE THAT THIS ITEM WAS PREVIOUSLY SCHEDULED TO BE HEARD BY THE CITY COUNCIL ON TUESDAY APRIL 22, 2008 AND HAS BEEN RESCHEDULED TO THE DATE INDICATED ABOVE. FILE NO.: MISCELLANEOUS (MIS) 2008-00005 FILE TITLE: APPEAL OF A DIRECTOR'S INTERPRETATION OF CHAPTER 18.790 (TREE REMOVAL) APPLICANT: City of Tigard Community Development Director 13125 SW Hall Boulevard Tigard, OR 97223 APPELLANT: Home Builder's Association of Metro Portland Attn: Ernie Platt, Director of Local Government Affairs 15555 SW Bangy Road, Suite 301 Lake Oswego, OR 97035 ITEM ON APPEAL: On February 26, 2008 the City of Tigard Community Development Director issued a Director's Interpretation of Chapter 18.790 of the Tigard Community Development Code specific to the language regarding Tree Plan Requirements (18.790.030). On March 14, 2008 an appeal was filed by the Home Builders Association on the basis that they believe the interpretation changes the intent of Tigard's tree protection requirements. LOCATION: Citywide. APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.340, 18.390 and 18.790. THE PUBLIC HEARING ON THIS MA rI ER WILL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF CHAPTER 18.390 OF THE COMMUNITY DEVELOPMENT CODE AND RULES OF PROCEDURES ADOPTED BY THE TIGARD CITY COUNCIL AND AVAILABLE AT CITY HALL. ASSISTIVE LISTENING DEVICES ARE AVAILABLE FOR PERSONS WITH IMPAIRED HEARING. THE CITY WILL ALSO ENDEAVOR TO ARRANGE FOR QUALIFIED SIGN LANGUAGE INTERPREIERS AND QUALIFIED BILINGUAL INTERPRETERS UPON REQUEST. PLEASE CALL (503) 639-4171, EXT. 2438 (VOICE) OR (503) 684- 2772 (I'DD -TELECOMMUNICATIONS DEVICES FOR THE DEAF) NO LESS THAN ONE WEEK PRIOR TO THE HEARING TO MAKE ARRANGEMENTS. I ANYONE WISHING TO PRESENT WRTl-1'FN TESTIMONY ON THIS PROPOSED ACTION MAY DO SO IN WRITING PRIOR TO OR AT THE PUBLIC HEARING. ORAL TESTIMONY MAY BE PRESEN I'ED AT THE PUBLIC HEARING. AT THE PUBLIC HEARING, THE CITY COUNCIL WILL RECEIVE A STAFF REPORT PRESENTATION FROM THE CITY PLANNER, OPEN THE PUBLIC HEARING,AND INVII'E BOTH ORAL AND WRTI'1'EN 'TESTIMONY. THE CITY COUNCIL 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 OR DOCUMENTS LESS THAN SEVEN (7) DAYS PRIOR TO THE PUBLIC HEARING, 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 (7) DAYS Al-TER THE HEARING. A REQUEST THAT THE RECORD REMAIN OPEN CAN BE MADE ONLY AT THE FIRST EVIDENTIARY HEARING(ORS 197.763(6). INCLUDED IN THIS NOTICE IS A LIST OF APPROVAL CRITERIA APPLICABLE TO THE REQUEST FROM THE TIGARD COMMUNITY DEVELOPMENT CODE AND THE TIGARD COMPREHENSIVE PLAN. APPROVAL OR DISAPPROVAL OF THE REQUEST BY THE CITY COUNCIL 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 LE IT ER AT SOME POINT PRIOR TO THE CLOSE OF THE HEARING ON THE REQUEST ACCOMPANIED BY STATEMENTS OR EVIDENCE SUFFICIENT TO ALLOW THE HEARINGS AUTHORITY 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-NO TED FILE ARE AVAILABLE FOR INSPECTION AT NO COST OR COPIES CAN BE OBTAINED FOR TWENTY-FIVE CENTS (25 ) PER PAGE, OR THE CURRENT RA 1'E CHARGED FOR COPIES AT THE TIME OF THE REQUEST. AT LEAST SEVEN (7) 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 TWENTY-FIVE CENTS (25G) PER PAGE, OR THE CURRENT RATE CHARGED FOR COPIES AT THE TIME OF THE REQUEST. FOR FURTHER INFORMATION PLEASE CONTACT THE STAFF PLANNER TODD PRAGER AT 503.639.4171, TIGARD CITY HALL, 13125 SW HALL BOULEVARD, TIGARD, OREGON 97223, OR BY E-MAIL TO todd @tigard-or.gov.. .4t_ • _ • AFFIDAVIT OF MAILING ..I.A ulleARD I, Patricia L. Lunsford being_ first duly sworn/affirm, on oath depose and say that I am a Planning Administrative Assistant for the City of Tigard,Washington County,Oregon and that I served the following: (Qeck Appny`imc Box(s)Bebw) © NOTICE OF PUBLIC HEARING FOR MIS2008-00005/APPEAL OF A DIRECTOR'S INTERPRETATION OF CE-IAPTER 18.790 (TREE REMOVAL) (File No./Name Reference) i ® AMENDED NOTICE HEARING BODY: HEARING DATE: ❑ City of Tigard Planning Director ❑ Tigard Hearings Officer ❑ Tigard Planning Commission ® Tigard City Council (5/13/2008) A copy of the said notice being hereto attached,marked Exhibit"A",and by reference made a part hereof,was mailed to each named person(s) at the address(s) shown on the attached list(s),marked Exhibit "B", and by reference made a part hereof, on April 11,2008,and deposited in the United States Mail on April 11,2008,postage prepaid. • / i I) - 41W--/ i . �, WY (Person .1ESIrd Not' —i STATE OF OREGON County of Washington ss. City of Tigard Subscribed and sworn/affirmed before me on the 10 day of /4 ,2008. r--...- -;:,--------:- ,— OFFICIAL SEAL ror?+.:- SHIRLEY L TREAT NOTARY PUBLIC-OREGON ' J j &LS 1 ` COMMISSION N0.416777 N TARY PLEB C OF OREGON 1,MY COMMISSION EXPIRES APRIL 25,2011 My Commission Expires: 40,5I 4' EXHIBIT /1, , NOTICE TO MORTGAGEE,LIENHOLDER,VENDOR OR SELLER: THE TIGARD DEVELOPMENT CODE REQUIRES THAT IF YOU RECEIVE THIS NOTICE, V IT SHALL BE PROMPTLY FORWARDED TO THE PURCHASER : • - TIGARD PUBLIC HEARING NOTICE APPEAL OF A DIRECTOR'S INTERPRETATION (TREE REMOVAL) NOTICE IS HEREBY GIVEN THAT THE TIGARD CITY COUNCIL, AT A MEETING ON TUESDAY MAY 13, 2008 AT 7:30 PM, IN THE TOWN HALL OF THE TIGARD CIVIC CENTER AT 13125 SW HALL BOULEVARD, TIGARD, OREGON 97223 WILL CONSIDER THE FOLLOWING APPLICATION: PLEASE NOTE THAT THIS ITEM WAS PREVIOUSLY SCHEDULED TO BE HEARD BY THE CITY COUNCIL ON TUESDAY 22, 2008 AND HAS BEEN RESCHEDULED TO THE DATE INDICATED ABOVE. FILE NO.: MISCELLANEOUS (MIS) 2008-00005 FILE TITLE: APPEAL OF A DIRECTOR'S INTERPRETATION OF CHAPTER 18.790 (TREE REMOVAL) APPLICANT: City of Tigard Community Development Director 13125 SW Hall Boulevard Tigard, OR 97223 APPELLANT: Home Builder's Association of Metro Portland Attn: Ernie Platt, Director of Local Government Affairs 15555 SW Bangy Road, Suite 301 Lake Oswego, OR 97035 ITEM ON APPEAL: On February 26, 2008 the City of Tigard Community Development Director issued a Director's Interpretation of Chapter 18.790 of the Tigard Community Development Code specific to the language regarding Tree Plan Requirements (18.790.030). On March 14, 2008 an appeal was filed by the Home Builders Association on the basis that they believe the interpretation changes the intent of Tigard's tree protection requirements. LOCATION: Citywide. APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.340, 18.390 and 18.790. THE PUBLIC HEARING ON THIS MA ITER WILL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF CHAP 1'ER 18.390 OF THE COMMUNITY DEVELOPMENT CODE AND RULES OF PROCEDURES ADOPTED BY THE TIGARD CITY COUNCIL AND AVAILABLE AT CITY HALL. ASSISTIVE LISTENING DEVICES ARE AVAILABLE FOR PERSONS WITH IMPAIRED HEARING. THE CITY WILT.ALSO ENDEAVOR TO ARRANGE FOR QUALIFIED SIGN LANGUAGE INIERPREl'ERS AND QUALIFIED BILINGUAL INTERPRETERS UPON REQUEST. PLEASE CALL (503) 639-4171, EXT. 2438 (VOICE) OR (503) 684- 2772 (TDD -"TELECOMMUNICATIONS DEVICES FOR THE DEAF) NO LESS THAN ONE WEEK PRIOR TO THE HEARING TO MAKE ARRANGEMENTS. 4. 1 • • ANYONE WISHING TO PRESENT WRIT-1'EN 'TESTIMONY ON THIS PROPOSED ACTION MAY DO SO IN WRITING PRIOR TO OR AT THE PUBLIC HEARING. ORAL 'TESTIMONY MAY BE PRESEN 1'ED AT THE PUBLIC HEARING. AT THE PUBLIC HEARING, THE CITY COUNCIL WILL RECEIVE A STAFF REPORT PRESENTATION FROM THE CITY PLANNER, OPEN THE PUBLIC HEARING,AND INVFI'E BOTH ORAL AND WRITTEN TESTIMONY. THE CITY COUNCIL 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 OR DOCUMENTS LESS THAN SEVEN (7) DAYS PRIOR TO THE PUBLIC HEARING, 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 (7) DAYS AFTER THE HEARING. A REQUEST THAT THE RECORD REMAIN OPEN CAN BE MADE ONLY AT THE FIRST EVIDENTIARY HEARING (ORS 197.763(6). INCLUDED IN THIS NOTICE IS A LIST OF APPROVAL CRITERIA APPLICABLE TO THE REQUEST FROM THE TIGARD COMMUNITY DEVELOPMENT CODE AND THE TIGARD COMPREHENSIVE PLAN. APPROVAL OR DISAPPROVAL OF THE REQUEST BY THE CITY COUNCIL 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 CRI FERIA LIS 1ED. FAILURE TO RAISE AN ISSUE IN PERSON OR BY LEI-1'ER AT SOME POINT PRIOR TO THE CLOSE OF THE HEARING ON THE REQUEST ACCOMPANIED BY STA I'EMENTS OR EVIDENCE SUFFICIENT TO ALLOW THE HEARINGS AUTHORITY 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-NO'IED FILE ARE AVAILABLE FOR INSPECTION AT NO COST OR COPIES CAN BE OBTAINED FOR TWENTY-FIVE CENTS (25 ) PER PAGE, OR THE CURRENT RATE CHARGED FOR COPIES AT THE TIME OF THE REQUEST. AT LEAST SEVEN (7) 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 TWENTY-FIVE CENTS (25 G) PER PAGE, OR THE CURRENT RA"1'E CHARGED FOR COPIES AT THE TIME OF THE REQUEST. FOR FURTHER INFORMATION PLEASE CONTACT THE STAFF PLANNER TODD PRAGER AT 503.639.4171, TIGARD CITY HALL, 13125 SW HALL BOULEVARD, TIGARD, OREGON 97223, OR BY E-MAIL TO todda,tigard-or.gov. • • EXHIBIT(o Kurt Dalbey MIS2008-00005 Spectrum Development HOME BUILDERS ASSOCIATION APPEAL OF 12703 SW 67th Avenue DIRECTOR'S INTERPRETATION OF 18.790 Portland, OR 97223 Ernie Platt,Director of Local Government Affairs Home Builder's Association of Metro Portland "NOTICE OF 5/13/08 PUBLIC HEARING 15555 SW Bangy Road,#301 BEFORE THE CITY COUNCIL" - (Rescheduled) Lake Oswego, OR 97035 Jim McCauley,VP for Government Affairs Janet Gillis Home Builder's Association of Metro Portland 13711 SW Essex Drive 15555 SW Bangy Road,#301 Tigard, OR 97223 Lake Oswego, OR 97035 David Walsh Jeff Gaines,Associate Planner 10236 SW Stuart Court SR Design,LLC Tigard, OR 97224 8196 SW Hall Blvd., #232 Beaverton, OR 97008 Barry Sandhorst Steve Roper,PE WC&D,Inc. SR Design,LLC 23281 SW Bosky Dell Lane 8196 SW Hall Blvd.,#232 West Linn, OR 97068 Beaverton, OR 97008 Kay Kinyon Rob Callan Tree Care &Landscapes Unlimited,Inc. 11175 SW Eden Court 5600 Rosewood Street Tigard, OR 97223 PO Box 1566 Lake Oswego, OR 97035 Ray M. Ken Gertz,President Tree Care &Landscapes Unlimited,Inc. Gertz Fine Homes 19200 SW 46th Avenue 5600 Rosewood Street Tualatin,OR 97062-8770 PO Box 1566 Lake Oswego, OR 97035 Craig F. Brown,Vice President Tom Weber Matrix Development Corporation 16869 SW 65th Avenue,No. 260 12755 SW 69th Avenue,Suite 100 Lake Oswego, OR 97035 Portland, OR 97223 Alan DeHarpport Morgan E.Holen 5300 Parkview Drive, # 1053 Roundstone Development Lake Oswego, OR 97035 9550 SW Beaverton-Hillsdale Hwy. Beaverton, OR 97005 Walt Knapp,Arborist William L. Rasmussen Miller Nash LLP Walter H.Knapp &Associates,LLC 3400 US Bancorp Tower 7615 SW Dunsmuir Beaverton, 111 SW Fifth Avenue eaverton, OR 97007 Portland,OR 97204-3699 I. r • • Phil Grillo Miller Nash LLP 3400 US Bancorp Tower 111 SW Fifth Avenue Portland, OR 97204-3699 Randy Killen AKS Engineering&Forestry,LLC 13910 SW Galbreath Drive,Suite 100 Sherwood, OR 97140 Keith Jehnke AKS Engineering&Forestry,LLC 13910 SW Galbreath Drive, Suite 100 Sherwood, OR 97140 John O'Shea, Consulting Arborist 433 SE 70t Avenue Portland, OR 97215 John Frewing 7110 SW Lola Lane Tigard, OR 97223 Brian Wegener,Watershed Watch Coordinator Tualatin Riverkeepers 12360 SW Main Street, Suite 100 Tigard, OR 97223 Dennis Sizemore 11545 SW Elton Court Tigard, OR 97223 Matt Clemo 10272 SW Meadow Street Tigard, OR 97223 Susan Beilke 11755 SW 114th Place Tigard,OR 97223 Bill McMonagle &Jay Harris Harris-McMonagle Associates,Inc. 12555 SW Hall Boulevard Tigard, OR 97223 r , • • Barry Albertson Josh Thomas 15445 SW 150th Avenue 10395 SW Bonanza Tigard, OR 97224 Tigard, OR 97224 I; id „I Tim Esau 10 .. .W Stuart Court PO Box 230695 'igard, O' '7223 Tigard, OR 97281 Don&Dorothy Erdt Ross Sundberg 13760 SW 121st Avenue 16382 SW 104th Avenue Tigard, OR 97223 Tigard, OR 97224 Ellen Beilstein Sue Rorman 14630 SW 139th Avenue 11250 SW 82nd Avenue Tigard, OR 97224 Tigard, OR 97223 Martha Bishop Naomi Gallucci 10590 SW Cook Lane 11285 SW 78th Avenue Tigard, OR 97223 Tigard, OR 97223 Vanessa Foster Brian Wegener 13085 SW Howard Drive 9830 SW Kimberly Drive Tigard, OR 97223 Tigard, OR 97224 an Be' .- Patricia Keerins 11 - . 114th Place 12195 SW 121st Avenue T:. d, e R 97223 Tigard, OR 97223 J. I Fre, g Alexander Craghead 7114 , •Lola Lane 12205 SW Hall Boulevard ard, ' 97223 Tigard, OR 97223-6210 Paul Owen CPO 4B 10335 SW Highland Drive 16200 SW Pacific Highway, Suite H242 Tigard, OR 97224 Tigard, OR 97224 Rex Caffall Craig Smelter 13205 SW Village Glenn PO Box 1467 Tigard, OR 97223 Tualatin, OR 97062 • • Harold and Ruth Howland 13145 SW Benish Tigard, OR 97223 Kevin Hogan 14357 SW 133rd Avenue Tigard, OR 97224 Gretchen Buehner 13249 SW 136th Place Tigard, OR 97224 Joseph Dyar 10285 SW Highland Drive Tigard, OR 97224-4668 Beverly Froude 12200 SW Bull Mountain Road Tigard, OR 97224 Brad Spring 7555 SW Spruce Street Tigard, OR 97223 CITY OF TIGARD- CITYWIDE INTERESTED PARTIES (i:\curpin\setup\labels\CET CityWide.doc) UPDATED:26-Feb-08 • • Patty Lunsford To: 'hac @spiritone.com'; Teragan &Associates; 'randy @aks-eng.com'; 'waltknapp @comcast.net'; 'morgan_holen @pbsenv.com'; John O'Shea; 'kayk @tclu.com'; 'w.cand @verizon.net'; 'jimmc @hbapdx.org'; 'info @tclu.com'; 'CBrown @legendhomes.com'; 'kritz @donmorissettehomes.com'; 'tom @terra-weber.com'; 'jswestland @aol.com'; 'ken @gertzco.com'; 'bill @h-mc.com'; 'Erniep @hbapdx.org'; 'kdalbey @beaconhomesnw.com'; 'jfrewing @teleport.com'; 'william.rasmussen @millernash.com'; 'fourdconst @msn.com'; 'jay @h- mc.com'; 'stever @srdllc.com'; 'aland @roundstoneproperties.com'; 'sbeilke @europa.com'; 'ken @eagoncapital.com'; 'jeffc @srdllc.com'; 'tonytree @easystreet.com'; 'global_1 @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos@verizon.net; 'RobrtC @aol.com'; 'Janet.Gillis @jblk.com'; 'grillo @millernash.com' Cc: Todd Prager Subject: RESCHEDULED APPEAL HEARING (MIS2008-00005)- From: 4/22/08 to 5/13/08 Attachments: Patty Lunsford.vcf; MIS2008-00005 Notice of 5-13-08 Council Public Hea.pdf Importance: High I hope everyone is doing well. This e-mail is to notify you that the Tigard City Council has rescheduled the public hearing date on the appeal filed by the Home Builder's Association of the City of Tigard Director's Interpretation of Chapter 18.790.030 (Tree Plan Requirements), City file number MIS2008-00005. The public hearing on this item was previously scheduled to be heard by the Council on 4/22/08; it has now been rescheduled to 5/13/08 (please see the attached "Notice of 5/13/08 City Council Public Hearing"). All parties that responded to my previous request for your mailing addresses will also be mailed a copy today of the attached notice. Best regards, Patty Lunsford r Patty Lunsford Plannina Administrative Assistant .1 City of Tigard -C.D. Department '' 1 13125 SW Hall Blvd. ( (-',01:q:� Tigard, Oregon 97223 (503) 713-2433 Direct (503) 639-4171 Main (503) 713-2743 Fax patty@tigard-or.gov 1 410 • Todd Prager From: Todd Prager Sent: Tuesday, May 13, 2008 2:45 PM To: 'RobrtC @aol.com'; 'Janet.Gillis @jblk.com'; 'David.Walsh @spnewsprint.com'; 'sizemore_dennis @msn.com'; 'tonytree @easystreet.com'; 'clemos @verizon.net; 'global_1 @hotmail.com' Cc: John Floyd Subject: Director's Interpretation Public Hearing Tonight Dear Members of the Tree Board, I just wanted to send a reminder that there will be a public hearing tonight beginning at 7:30 pm at City Hall regarding the Director's Interpretation of the Tree Plan Requirement (Tigard Development Code Section 18.790)that you reviewed and approved at the February 20th Tree Board Meeting. Here is the link to tonight's agenda... http://www.tigard-or.gov/city hall/city council/docs/agendas/080513Agenda.pdf Please do not hesitate to contact me if you have any questions. Sincerely, Todd Prager 503 718-2700 1 • • Todd Prager From: Todd Prager Sent: Monday, May 12, 2008 8:28 AM To: 'John Frewing'; John Floyd Subject: RE: Appeal of Director's Interpretation -Tigard Tree Code Attachments: Appeal of Dir Interpretation Attachment 3 -Appellant's Submittal.pdf Dear John, Attached is the HBA's appeal of the interpretation. I have also provided a link to the full Council packet for tomorrow night. It is a large file, and the information relating to the Director's interpretation can be found on pages 50-74. Please do not hesitate to contact me if you have further questions, or if you would like to come in to the Permit Center for a hard copy. Sincerely, Todd Prager 503 718-2700 From: John Frewing [mailto:jfrewing @teleport.com] Sent: Sunday, May 11, 2008 8:12 PM To: John Floyd; Todd Prager Subject: Appeal of Director's Interpretation -Tigard Tree Code John, Todd, In preparing my comments in support of the Director's interpretation (hearing on tuesday night), I realize I have never read the actual words of the HBA appeal or any other thing that might be in the record. Could I come by on Monday morning (tomorrow)at 0900 and look at the full record for this appeal?? No more than three minutes at the permit desk. Thanks, John Frewing 1 • Todd Prager From: John Frewing Ufrewing @teleport.com] Sent: Sunday, May 11, 2008 8:12 PM To: John Floyd; Todd Prager Subject: Appeal of Director's Interpretation -Tigard Tree Code John, Todd, In preparing my comments in support of the Director's interpretation (hearing on tuesday night), I realize I have never read the actual words of the HBA appeal or any other thing that might be in the record. Could I come by on Monday morning (tomorrow) at 0900 and look at the full record for this appeal?? No more than three minutes at the permit desk. Thanks, John Frewing 1 Patty Lunsford • 0 , From: Cathy Wheatley Sent: Wednesday, May 07, 2008 11:42 AM To: 'banjoist @qwest.net' Cc: Patty Lunsford Subject: FW: Attachments: Cathy Wheatley.vcf; Agenda.pdf Mr. O'Shea, Attached is the May 13 agenda. The Council packet material is on the City's website at this location: http://www.tigard- or.gov/city hall/city council/agenda.asp You will notice in the upper right-hand corner that you may sign up for automatic electronic notification for Council agendas and packets if you'd like. Cathy From: Cathy Wheatley Sent: Wednesday, April 16, 2008 8:59 AM To: 'banjoist @qwest.net' Cc: Patty Lunsford Subject: Mr. O'Shea, Attached is the April 22 agenda; however,the public hearing on the Director's Interpretation Appeal of the Tree Code was rescheduled to May 13. I'll send you a copy of the May 13 agenda when it is published per your earlier request. Cathy i Cathy Wheatley ., Cite:ofTioard =," City Recorder/Records Supervisor Administration cathyti tioard-or,c.c, Tioard, OR 97223 USA 5C'3-71S-241i i 1 • PUBLIC WRING ITEM: �. The following will be consi'L.d by the Tigard City Council on Tuesday April 22, 2008 at,7:30 PM at the Tigard Civic Center - Town Hall Room, 13125 SW Hall Boulevard,-Tigard, Oregon -j • COMMUNITY 97223.Public oral or written testimony is invited. The public hear- 4�r ing on this matter will be held under Title 18 and rules of procedure -i Sne nERS • adopted by the Council and available at City Hall or the rules of it v procedure set forth in Section 18.390.050.D. Further information 6605 SE Lake Road, Portland;OR 97222• PO may be obtained from the Planning Division(Staff contact: Todd Box 370• Beaverton, OR 97075 Prager) at 13125 SW Hall Blvd., Tigard, Oregon•97223, or by Phone: 503-684-0360 Fax: 503-620-3433 calling at 503.639.4171.MISCELLANEOUS(MIS)2008-00005 Email: I - APPEAL OF A DIRECTOR'S INTERPRETATION OF legaladvertising @commnewspapers.com CHAPTER 18.790. The City Council will review an appeal of the Community Development Director's Interpretation of Chapter 18.790 of the Tigard Community Development Code. The appeal AFFIDAVIT OF PUBLICATION is specific to the language regarding Tree Plan Requirements. Applicable Review Criteria: 18.340, 18.390 and 18.790. Publish State of Oregon, County of Washington, SS 4/3/2008.TT11108. I, Charlotte Allsop, being the first duly sworn, depose and say that I am the Accounting Manager of The Times (serving Tigard, Tualatin & Sherwood), a newspaper of general circulation, published at Beaverton, in the aforesaid county and state, as defined by ORS 193.010 and 193.020, that City of Tigard Notice of Public Hearing TT11108 A copy of which is hereto annexed, was APR 1 0 2008 published in the entire issue of said newspaper for CITY 07- TIGARD 1 Successive and consecutive weeks in the following issues April 3, 2008 C/kLajto'tk a-U4JP 'Charlotte Allsop (Accounting M nager) Subscribed and sworn to before me this April 3, 2008 NOTA PUBLIC FOR OREGON My commission expires p_g 4_d) 1 • Acct#10093001 • ��`��-.-����-�--�t-��� Patty Lansford 6 _'��. OFFICIAL SEAL `, t,: City of Tigard ( °E,� ' SUZETTE I CURRAN J �� ` NOTARY PUBUC-OREGON t 13125 SW Hall Blvd '( ' COMMISSION NO.422662 ) Tigard, OR 97223 MY COMMISSION EXPIRES NOVEMBER 28,2011 0 Size 2 x 2.5 Amount Due$41.75 'remit to address above • • Todd Prager From: Patty Lunsford Sent: Friday, April 11, 2008 11:12 AM To: 'hac @spiritone.com'; 'Teragan &Associates'; 'randy @aks-eng.com'; 'waltknapp @comcast.net; 'morgan_holen @pbsenv.com'; 'John O'Shea'; 'kayk @tclu.com'; 'w.cand @verizon.net'; 'jimmc @hbapdx.org'; 'info @tclu.com'; 'CBrown @legendhomes.com'; 'kritz @donmorissettehomes.com'; 'tom @terra-weber.com; 'jswestland @aol.com'; 'ken @gertzco.com'; 'bill @h-mc.com'; 'Erniep @hbapdx.org'; 'kdalbey @beaconhomesnw.com'; 'jfrewing @teleport.com'; 'william.rasmussen @millernash.com'; 'fourdconst @msn.com'; 'jay @h-mc.com'; 'stever @srdllc.com'; 'gland @roundstoneproperties.com'; 'sbeilke @europa.com'; 'ken @eagoncapital.com'; 'jeffc @srdllc.com'; 'tonytree @easystreet.com'; 'global_1 @hotmail.com'; 'sizemore '; _dennis @msn.com 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net'; 'RobrtC @aol.com'; 'Janet.Gillis @jblk.com'; 'grillo @millernash.com' Cc: Todd Prager Subject: RESCHEDULED APPEAL HEARING (MIS2008-00005) -From: 4/22/08 to 5/13/08 Attachments: Patty Lunsford.vcf; MIS2008-00005 Notice of 5-13-08 Council Public Hea.pdf; image001.jpg Importance: High I hope everyone is doing well. This e-mail is to notify you that the Tigard City Council has rescheduled the public hearing date on the appeal filed by the Home Builder's Association of the City of Tigard Director's Interpretation of Chapter 18.790.030 (Tree Plan Requirements), City file number MIS2008-00005. The public hearing on this item was previously scheduled to be heard by the Council on 4/22/08; it has now been rescheduled to 5/13/08 (please see the attached "Notice of 5/13/08 City Council Public Hearing"). All parties that responded to my previous request for your mailing addresses will also be mailed a copy today of the attached notice. Best regards, Patty Lunsford Patty Lunsford q Planning Administrative Assistant ® , City of Tigard-C.D.Department 13125 SW Han Blvd. T i C n u n Tigard,Oregon 97223 (503)718-2438 Direct (503)639-4171 Main (503):718-2748 Fax patty @tigard-or.gov 1 Patty Lunsford 4` • From: Tom Coffee Sent: Wednesday, April 09, 2008 1:34 PM To: Dick Bewersdorff; Jerree Lewis; Patty Lunsford Cc: Todd Prager; Cathy Wheatley Subject: RE: Public Hearing - Director's Interpretation of Tree Code MIS 2008-00005 Please send out a "notice" to everyone we have e-mailed or mailed about the appeal telling them that the appeal hearing has been rescheduled for May 13th and then renotice the public hearing for that date. From: Dick Bewersdorff Sent: Wednesday, April 09, 2008 10:52 AM To: Jerree Lewis; Patty Lunsford • Cc: Tom Coffee; Todd Prager; Cathy Wheatley Subject: RE: Public Hearing - Director's Interpretation of Tree Code MIS 2008-00005 We have already sent out notice so the most efficient way would be to open the hearing and continue it; then the question is whether to allow testimony for those who show up or notify all those we expect to be there to come on another date. It is also possible to hold a portion of the hearing for those who show up and want to testify and continue the hearing to another date. Gretchen could review the minutes and tape. From: Jerree Lewis Sent: Wednesday, April 09, 2008 10:33 AM To: Patty Lunsford; Dick Bewersdorff Subject: FW: Public Hearing - Director's Interpretation of Tree Code MIS 2008-00005 Which option would you prefer? From: Cathy Wheatley Sent: Wednesday, April 09, 2008 10:20 AM To: Tom Coffee Cc: Jerree Lewis Subject: Public Hearing - Director's Intepretation of Tree Code MIS 2008-00005 Councilor Buehner will not be able to attend the April 22 meeting and she'd like to be present when the above hearing takes place before the Council. Council said it'd be ok to move this to May 13. I'll go ahead and move it on the tentative. Have the legal notices already gone out? If so,we could do a couple of things: One would be to open the hearing on April 22 and continue it to May 13. Or, send out a new legal notice canceling the first hearing date and moving it to the May 13 date. Cathy Cathy Wheatley .n City of Tioard r' -` City Re:crder Records Supervisor I Administ abon L cath'r`Gtiaard-or.oc'.• Tigard, OR 97223 USA 503-713-2410 1 - • Todd Prager From: Todd Prager Sent: Wednesday, April 09, 2008 10:57 AM To: John Floyd Subject: FW: Public Hearing - Director's Interpretation of Tree Code MIS 2008-00005 Attachments: image001.jpg FYI From: Dick Bewersdorff Sent: Wednesday, April 09, 2008 10:52 AM To: Jerree Lewis; Patty Lunsford Cc: Tom Coffee; Todd Prager; Cathy Wheatley Subject: RE: Public Hearing - Director's Interpretation of Tree Code MIS 2008-00005 We have already sent out notice so the most efficient way would be to open the hearing and continue it;then the question is whether to allow testimony for those who show up or notify all those we expect to be there to come on another date. It is also possible to hold a portion of the hearing for those who show up and want to testify and continue the hearing to another date. Gretchen could review the minutes and tape. From: Jerree Lewis Sent: Wednesday, April 09, 2008 10:33 AM To: Patty Lunsford; Dick Bewersdorff Subject: FW: Public Hearing - Director's Interpretation of Tree Code MIS 2008-00005 Which option would you prefer? From: Cathy Wheatley Sent: Wednesday, April 09, 2008 10:20 AM To: Tom Coffee Cc: Jerree Lewis Subject: Public Hearing - Director's Intepretation of Tree Code MIS 2008-00005 Councilor Buehner will not be able to attend the April 22 meeting and she'd like to be present when the above hearing takes place before the Council. Council said it'd be ok to move this to May 13. I'll go ahead and move it on the tentative. Have the legal notices already gone out? If so, we could do a couple of things: One would be to open the hearing on April 22 and continue it to May 13. Or, send out a new legal notice canceling the first hearing date and moving it to the May 13 date. Cathy Cathy Wheatley City.of Tigard City Recorder itecords Supervisor 4 Administration cathy@tigard-or.gov Tigard,OR 97223 USA 503-718=2410 1 111 411 Tom Coffee From: Dick Bewersdorff Sent: Monday,April 07, 2008 1:17 PM To: 'Lans Stout' Cc: Todd Prager; Cheryl Gaines; Tom Coffee Subject: RE: Tree Interpretation Yes, I understand what you are saying;the Home Builders appeal of the interpretation is to be heard by the Council on April 22. From: Lans Stout[mailto:LStout @tmrippey.com] Sent: Monday,April 07,2008 1:02 PM To: Dick Bewersdorff Subject:Tree Interpretation Dick, here is another one that came to light as I got back into the Lampus project. I see that there was an "Interpretation"last February which, in my view, really changes the way the way the tree section of the Code is implemented. Historically developments have had to include the tree inventory and evaluation information, and address preservation possibilities as well as quantifying mitigation. Now it appears that there may well be an extended debate about changing project design to preserve even at the expense of the project design and integrity. The premise of the interpretation is that Protection is preferred over removal wherever possible". This is in fact stated in the introductory comment with respect to the Tree Plan, but contrary to what the interpretation says,the overall purpose statement of this section of the Code identifies preservation, protection, and replacement equally as items the City will encourage. It also makes it very clear that retention and protection will be offered incentives, but they are not singled out over mitigation as required. My concern is that the ten items listed as mandatory components of the Tree Plan will be viewed very differently by individuals with different agendas, and there is no quantifiable resolution in the Code. For instance, can parking be reduced to save a tree? If the proposed parking count is between the minimum and maximum,the developer has the ability to design accordingly... but if the only goal is to save the tree,the argument would be made that saving the tree is a higher priority that allowing the parking the Code would otherwise allow. The Code does not now reach this conclusion. How will this be resolved without Code language? I am concerned this will wind up with the same problems as we saw on the Fry zone change, in which personal agendas pre-empted the Code standards. It is very difficult to prepare a viable application facing this potential. Perhaps we can discuss this is the meeting on the Lampus project that I suggested would probably work for sometime next week. Either way we need to have an understanding early of what this really means and how it will be implemented as projects come in that relay on meeting the code through mitigation. Lans 1 NOTICE TO MORTGAGEE,LTENHOLDER,VENDOR OR SAILER: ; THE TIGARD DEVELOPMENT CODE REQUIRES THAT IF YOU RECEIVE THIS NOTICE, 54{ .111 IT SHALL BE PROMPTLY FORWARDED TO THE PURCHASER ` • PUBLIC HEARING NOTICE. NOTICE IS HEREBY GIVEN THAT THE TIGARD CITY COUNCIL, AT A MEETING ON TUESDAY APRIL 22, 2008 AT 7:30 PM, IN THE TOWN HALL OF THE TIGARD CIVIC CENTER AT 13125 SW HALL BOULEVARD,TIGARD,OREGON 97223 WILL CONSIDER THE FOLLOWING APPLICATION: FILE NO.: MISCELLANEOUS (MIS) 2008-00005 FILE TITLE: APPEAL OF A DIRECTOR'S INTERPRETATION OF CHAPTER 18.790 (TREE REMOVAL) APPLICANT: City of Tigard Community Development Director 13125 SW Hall Boulevard Tigard, OR 97223 APPELLANT: Home Builder's Association of Metro Portland Attn: Ernie Platt,Director of Local Government Affairs 15555 SW Bangy Road, Suite 301 Lake Oswego, OR 97035 ITEM ON APPEAL: On February 26, 2008 the City of Tigard Community Development Director issued a Director's Interpretation of Chapter 18.790 of the Tigard Community Development Code specific to the language regarding Tree Plan Requirements (18.790.030). On March 14, 2008 an appeal was filed by the Home Builders Association on the basis that they believe the interpretation changes the intent of Tigard's tree protection requirements. LOCATION: Citywide. APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.340, 18.390 and 18.790. THE PUBLIC HEARING ON THIS MATIER WILL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF CHAPTER 18.390 OF THE COMMUNITY DEVELOPMENT CODE AND RULES OF PROCEDURES ADOPTED BY THE TIGARD CITY COUNCIL AND AVAILABLE AT CITY HALL. 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 (503) 639-4171, EXT. 2438 (VOICE) OR (503) 684- 2772 (TDD- TELECOMMUNICATIONS DEVICES FOR THE DEAF) NO LESS THAN ONE WEEK PRIOR TO THE HEARING TO MAKE ARRANGEMENTS. ANYONE WISHING TO PRESS'!' WRIT hEN TESTIMONY ON THIS I-OPOSED 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 CITY COUNCIL WILL RECEIVE A STAFF REPORT PRESENTATION FROM THE CITY PLANNER, OPEN THE PUBLIC HEARING, AND INVITE BOTH ORAL AND WRITTEN TESTIMONY. THE CITY COUNCIL 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 OR DOCUMENTS LESS THAN SEVEN (7) DAYS PRIOR TO THE PUBLIC HEARING, 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 (7) DAYS AFTER THE HEARING. A REQUEST THAT THE RECORD REMAIN OPEN CAN BE MADE ONLY AT THE FIRST EVIDENTIARY HEARING (ORS 197.763(6). INCLUDED IN THIS NOTICE IS A LIST OF APPROVAL CRITERIA APPLICABLE TO THE REQUEST FROM THE TIGARD COMMUNITY DEVELOPMENT CODE AND THE TIGARD COMPREHENSIVE PLAN. APPROVAL OR DISAPPROVAL OF THE REQUEST BY THE CITY COUNCIL 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 LE TIER AT SOME POINT PRIOR TO THE CLOSE OF THE HEARING ON THE REQUEST ACCOMPANIED BY STATEMENTS OR EVIDENCE SUFFICIENT TO ALLOW THE HEARINGS AUTHORITY 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 TWENTY-FIVE CENTS (250 PER PAGE, OR THE CURRENT RATE CHARGED FOR COPIES AT THE TIME OF THE REQUEST. AT LEAST SEVEN (7) 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 TWENTY-FIVE CENTS (250 PER PAGE, OR THE CURRENT RATE CHARGED FOR COPIES AT THE TIME OF THE REQUEST. FOR FURTHER INFORMATION PLEASE CONTACT THE STAFF PLANNER TODD PRAGER AT 503.639.4171, TIGARD CITY HALL, 13125 SW HALL BOULEVARD, TIGARD, OREGON 97223, OR BY E-MAIL TO todd@tigard-or.gov. II AFFIDAVIT OF MAILING . UlCGARD I, Patricia L. Lunsford being first duly sworn/affirm, on oath depose and say that I am a Planning Administrative Assistant for the City of;Tigard,Washington County,Oregon and that I served the following: {CheckAppreprote Box(s)Below) © NOTICE OF PUBLIC HEARING FOR MIS2008-00005/APPEAL OF A DIRECTOR'S INTERPRETATION OF CHAPTER 18.790 (TREE REMOVAL) (File No./Name Reference) ❑ AMENDED NOTICE HEARING BODY: HEARING DATE: ❑ City of Tigard Planning Director ❑ Tigard Hearings Officer ❑ Tigard Planning Commission ® Tigard City Council (4/22/2008) A copy of the said notice being hereto attached,marked Exhibit"A",and by reference made a part hereof,was mailed to each named person(s) at the address(s) shown on the attached list(s),marked Exhibit"B", and by reference made a part hereof, on April 1,2008,and deposited in the United States Mail on April 1,2008,postage prepaid. f 1 ; (Person that Pre'pared otif F STATE OF OREGON County of Washington ss. City of Tigard Subscribed and sworn/affirmed before me on the 1 day of AP�-t L— ,2008. •-,-• OFFICIAL SEAL - V"•- SHIRLEY L TREAT I \JIt NOTARY PUBLIC-OREGON COMMISSION NO. 25,27 NOTARY PUB C OF OREGO- ` MY COMMISSION EXPIRES APRIL 2S,2011 ', My Commission Expires: • - EXHIBIT A , NOTICE TO MORTGAGEE,LIENHOLDER,VENDOR OR SELLER THE TIGARD DEVFT.OPMENT CODE REQUIRES THAT IF YOU RECEIVE THIS NOTICE, V IT SHALL BE PROMPTLY FORWARDED TO THE PURCHASER. TIGARD PUBLIC HEARING NOTICE NOTICE IS HEREBY GIVEN THAT THE TIGARD CITY COUNCIL, AT A MEETING ON TUESDAY APRIL 22, 2008 AT 7:30 PM, IN THE TOWN HALL OF THE TIGARD CIVIC CENTER AT 13125 SW HALL BOULEVARD,TIGARD,OREGON 97223 WILL CONSIDER THE FOLLOWING APPLICATION: FILE NO.: MISCELLANEOUS (MIS) 2008-00005 FILE TITLE: APPEAL OF A DIRECTOR'S INTERPRETATION OF CHAPTER 18.790 (TREE REMOVAL) APPLICANT: City of Tigard Community Development Director 13125 SW Hall Boulevard Tigard, OR 97223 APPELLANT: Home Builder's Association of Metro Portland Attn: Ernie Platt,Director of Local Government Affairs 15555 SW Bangy Road, Suite 301 Lake Oswego, OR 97035 ITEM ON APPEAL: On February 26, 2008 the City of Tigard Community Development Director issued a Director's Interpretation of Chapter 18.790 of the Tigard Community Development Code specific to the language regarding Tree Plan Requirements (18.790.030). On March 14, 2008 an appeal was filed by the Home Builders Association on the basis that they believe the interpretation changes the intent of Tigard's tree protection requirements. LOCATION: Citywide. APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.340, 18.390 and 18.790. THE PUBLIC HEARING ON THIS MATTER WILL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF CHAP'I'ER 18.390 OF THE COMMUNITY DEVELOPMENT CODE AND RULES OF PROCEDURES ADOPTED BY THE TIGARD CITY COUNCIL AND AVAILABLE AT CITY HALL. 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 IN I ERPREl'ERS UPON REQUEST. PLEASE CALL (503) 639-4171, EXT. 2438 (VOICE) OR (503) 684- 2772 (I'M -TELECOMMUNICATIONS DEVICES FOR THE DEAF) NO LESS THAN ONE WEEK PRIOR TO THE HEARING TO MAKE ARRANGEMENTS. ANYONE WISHING TO PRESENT WRI'1'1'EN TESTIMONY ON THIS PROPOSED ACTION MAY DO SO IN WRITING PRIOR TO OR AT THE PUBLIC HEARING. ORAL IESTIMONY MAY BE PRESEN 1'ED AT THE PUBLIC HEARING. AT THE PUBLIC HEARING, THE CITY COUNCIL WILL RECEIVE A STAFF REPORT PRESENTATION FROM THE CITY PLANNER, OPEN THE PUBLIC HEARING,AND INVITE BOTH ORAL AND WRITTEN 'TESTIMONY. THE CITY COUNCIL 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 OR DOCUMENTS LESS THAN SEVEN (7) DAYS PRIOR TO THE PUBLIC HEARING, ANY PARTY IS ENTITLED TO REQUEST A CONTINUANCE OF THE HEARING. IF THERE IS NO CONTINUANCE GRANIED AT THE HEARING,ANY PARTICIPANT IN THE HEARING MAY REQUEST THAT THE RECORD REMAIN OPEN FOR AT LEAST SEVEN (7) DAYS APT ER THE HEARING. A REQUEST THAT THE RECORD REMAIN OPEN CAN BE MADE ONLY AT THE FIRST EVIDENTIARY HEARING (ORS 197.763(6). INCLUDED IN THIS NOTICE IS A LIST OF APPROVAL CRI TERIA APPLICABLE TO THE REQUEST FROM THE TIGARD COMMUNITY DEVELOPMENT CODE AND THE TIGARD COMPREHENSIVE PLAN. APPROVAL OR DISAPPROVAL OF THE REQUEST BY THE CITY COUNCIL 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 LISPED. FAILURE TO RAISE AN ISSUE IN PERSON OR BY LE ITER AT SOME POINT PRIOR TO THE CLOSE OF THE HEARING ON THE REQUEST ACCOMPANIED BY STATEMENTS OR EVIDENCE SUFFICIENT TO ALLOW THE HEARINGS AUTHORITY 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-N0'1 ED FILE ARE AVAILABLE FOR INSPECTION AT NO COST OR COPIES CAN BE OBTAINED FOR TWENTY-FIVE CENTS (25 ) PER PAGE, OR THE CURRENT RA lE CHARGED FOR COPIES AT THE TIME OF THE REQUEST. AT LEAST SEVEN (7) 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 TWENTY-FIVE CENTS (25 ) PER PAGE, OR THE CURRENT RATE CHARGED FOR COPIES AT THE TIME OF THE REQUEST. FOR FURTHER INFORMATION PLEASE CONTACT THE STAFF PLANNER TODD PRAGER AT 503.639.4171, TIGARD CITY HALL, 13125 SW HALL BOULEVARD, TIGARD, OREGON 97223, OR BY E-MAIL TO todd @tigard-or.gov. • EXHIBIT , Kurt Dalbey MIS2008-00005 Spectrum Development HOME BUILDERS ASSOCIATION APPEAL OF 12703 SW 67th Avenue DIRECTOR'S INTERPRETATION OF 18.790 Portland, OR 97223 Ernie Platt,Director of Local Government Affairs Home Builder's Association of Metro Portland "NOTICE OF 4/8/08 PUBLIC HEARING 15555 SW Bangy Road,#301 BEFORE THE CITY COUNCIL" Lake Oswego, OR 97035 Jim McCauley,VP for Government Affairs Home Builder's Association of Metro Portland Janet Gillis 15555 SW Bangy Road, #301 13711 SW Essex Drive Lake Oswego, OR 97035 Tigard, OR 97223 David Walsh Jeff Gaines,Associate Planner 10236 SW Stuart Court SR Design,LLC Tigard, OR 97224 8196 SW Hall Blvd., #232 Beaverton, OR 97008 Barry Sandhorst Steve Roper,PE WC&D,Inc. SR Design,LLC 23281 SW Bosky Dell Lane 8196 SW Hall Blvd., #232 West Linn, OR 97068 Beaverton, OR 97008 Kay Kinyon Rob Callan Tree Care &Landscapes Unlimited,Inc. 11175 SW Eden Court 5600 Rosewood Street Tigard, OR 97223 PO Box 1566 Lake Oswego, OR 97035 Ken Gertz,President Ray M. Gertz Fine Homes Tree Care &Landscapes Unlimited,Inc. 19200 SW 46th Avenue 5600 Rosewood Street Tualatin, OR 97062-8770 PO Box 1566 Lake Oswego, OR 97035 Craig F. Brown,Vice President Tom Weber Matrix Development Corporation 16869 SW 65th Avenue,No. 260 12755 SW 69th Avenue,Suite 100 Lake Oswego, OR 97035 Portland, OR 97223 Morgan E. Holen Alan DeHarpport 5300 Parkview Drive, # 1053 Roundstone Development Lake Oswego, OR 97035 9550 SW Beaverton-FTillsdale Hwy. Beaverton, OR 97005 Walt Knapp,Arborist William L. Rasmussen Walter FL Knapp &Associates,LLC Miller Nash LLP 7615 SW Dunsmuir 3400 US Bancorp Tower Beaverton, OR 97007 111 SW Fifth Avenue Portland, OR 97204-3699 Phil Grillo • • _ Miller Nash LLP 3400 US Bancorp Tower 111 SW Fifth Avenue Portland, OR 97204-3699 Randy Killen AKS Engineering &Forestry,LLC 13910 SW Galbreath Drive, Suite 100 Sherwood, OR 97140 Keith Jehnke AKS Engineering &Forestry,LLC 13910 SW Galbreath Drive,Suite 100 Sherwood, OR 97140 John O'Shea, Consulting Arborist 433 SE 70th Avenue Portland, OR 97215 John Frewing 7110 SW Lola Lane Tigard, OR 97223 Brian Wegener,Watershed Watch Coordinator Tualatin Riverkeepers 12360 SW Main Street, Suite 100 Tigard, OR 97223 Dennis Sizemore 11545 SW Elton Court Tigard, OR 97223 Man Clemo 10272 SW Meadow Street Tigard, OR 97223 Susan Beilke 11755 SW 114th Place Tigard,OR 97223 Bill McMonagle &Jay Harris Harris-McMonagle Associates,Inc. 12555 SW Hall Boulevard Tigard,OR 97223 1111/ 110 Barry Albertson Josh Thomas 15445 SW 150th Avenue 10395 SW Bonanza Tigard, OR 97224 Tigard, OR 97224 David Walsh Tim Esau 10236 SW Stuart Court PO Box 230695 Tigard, OR 97223 Tigard, OR 97281 Don&Dorothy Erdt Ross Sundberg 13760 SW 121st Avenue 16382 SW 104th Avenue Tigard, OR 97223 Tigard, OR 97224 Ellen Beilstein Sue Rorman 14630 SW 139th Avenue 11250 SW 82nd Avenue Tigard, OR 97224 Tigard, OR 97223 Martha Bishop Naomi Gallucci 10590 SW Cook Lane 11285 SW 78th Avenue Tigard, OR 97223 Tigard, OR 97223 Vanessa Foster Brian Wegener 13085 SW Howard Drive 9830 SW Kimberly Drive Tigard, OR 97223 Tigard, OR 97224 Susan Beilke Patricia Keerins 11755 SW 114th Place 12195 SW 121st Avenue Tigard, OR 97223 Tigard, OR 97223 John Frewing Alexander Craghead 7110 SW Lola Lane 12205 SW Hall Boulevard Tigard,OR 97223 Tigard, OR 97223-6210 Paul Owen CPO 4B 10335 SW Highland Drive 16200 SW Pacific Highway, Suite H242 Tigard, OR 97224 Tigard, OR 97224 Rex Caffall Craig Smelter 13205 SW Village Glenn PO Box 1467 Tigard, OR 97223 Tualatin, OR 97062 Harold and Ruth Howland 13145 SW Benish Tigard, OR 97223 Kevin Hogan 14357 SW 133.1 Avenue Tigard, OR 97224 Gretchen Buehner 13249 SW 136th Place Tigard, OR 97224 . Joseph Dyar 10285 SW Highland Drive Tigard, OR 97224-4668 Susan Beilke 11755 SW 114th Place Tigard, OR 97223 Beverly Froude 12200 SW Bull Mountain Road Tigard, OR 97224 Brad Spring 7555 SW Spruce Street Tigard, OR 97223 QTY OF TIGARD-CITYWIDE INTERESTED PARTIES (i:\curpin\setup\labels\CIT C1tyWide.doc) UPDATED:26-Feb-08 P Lunsford From: Kurt Dalbey[KDalbey@beaconhomesnw.com] Sent: Monday, March 17, 2008 11:56 AM To: Patty Lunsford Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation Thanks Kurt H Dalbey Spectrum Deve;opment...12703 s.w. 67th Portland 97223.. �p\4; From: Patty Lunsford [mailto:PATTY @tigard-or.gov] r'v\ Sent: Monday, March 17, 2008 11:31 AM To: hac @spiritone.com; terry@teragan.com; ■ ; waltl4papnpp@c0rn. = _ ; ; kayk@tdu,sam; , i+9f:c ; kritz @donmorissettehomes.com; - ; jswestland @aol.com; Y albey;.}frewifig@telefert-Te&Rat ' ' -- - - -. :--, fourdconst @msn.com; ja - o ;fitewp@.-r. .1e7ee w, ; sbeilke@eefe94.4eca; ken @eagoncapital.com; Jeff ccrcom—; tnm,treeOleasystr et rom _ -i� ' omn ^ -- ^nmcn c.+.a.• I)�yjt{ 'A Ichrnl laasm print cnm• �o.. eye i - - � • • ouzo.. rc_�-• i i�r-�*+arntv*rr� SRS +^^..+e^", eI mrs@ nrizon ~e4 Patty Lunsford • From: VErnie Platt[Erniep @hbapdx.org] Sent: Monday, March 17, 2008 11:29 AM To: Patty Lunsford Cc: Jim McCauley Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation Hi Patty, For mail: Ernie Platt Home Builders Assn. of Metro Portland 15555 SW Bangy Rd #301 Lake Oswego, OR 97035 phone 503 684-1880 fax 503 684-0588 Email: erniep(a hbapdx.orq 1/ and a copy to Jim McCauley jimmc a(�hbapdx.orq Thanks, Ernie From: Patty Lunsford [mailto:PATTY @tigard-or.gov] Sent: Monday, March 17, 2008 11:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; 'waltknapp @comcast.net'; 'morgan_holen @pbsenv.com'; 'banjoist @gwest.net'; 'kayk @tclu.com'; 'w.cand @verizon.net; Jim McCauley; 'info @tclu.com'; 'CBrown @legendhomes.com'; 'kritz @donmorissettehomes.com'; 'tom @terra-weber.com'; 'jswestland @aol.com'; 'ken @gertzco.com'; 'bill @h-mc.com'; Ernie Platt; 'kdalbey @beaconhomesnw.com'; 'jfrewing @teleport.com'; 'william.rasmussen @millernash.com'; 'fourdconst @msn.com'; jay @h-mc.com'; 'stever @srdllc.com'; 'aland @roundstoneproperties.com'; 'sbeilke @europa.com'; 'ken @eagoncapital.com'; 'jeffc @srdllc.com'; 'tonytree @easystreet.com'; 'global_1 @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net'; 'RobrtC @aol.com'; 'Janet.Gillis @jblk.com'; 'grillo @millernash.com' Cc: Todd Prager Subject: Notice of Public Hearing re: Appeal of Director's Interpretation Dear Interested Parties: The City of Tigard received an appeal on Friday March 14, 2008 pertaining to the 2/26/08 Director's Interpretation of Tree Plan Requirements (Chapter 18.790). Because Tigard's Community Development Code requires that the city mail notice of the public hearing, I am requesting that each of you provide by e-mail with your mailing address at your earliest convenience. A public hearing before the City Council has been tentatively scheduled for Tuesday, April 22, 2008 and notice will be mailed to all parties to the appeal on Monday, March 31, 2008. To simplify responding to this request, you can reply to my e-mail and attach your electronic business card. Please provide me with your mailing address by this coming Friday, March 21, 2008. Thank you in advance for your assistance. Best regards, Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard - Current Planning 1 Patty Lunsford S' i From: . V'Walsh, David David.Walsh s news rint.com] [ @ P P Sent: Monday, March 17, 2008 12:07 PM To: Patty Lunsford Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation David Walsh 10236 SW Stuart Court Tigard, OR 97224 From: Patty Lunsford [mailto:PATTY @tigard-or.gov] Sent: Monday, March 17, 2008 11:21 AM To: hac @spiritone.com; terry@teragan.com; randy @aks-eng.com; waltknapp @comcast.net; morgan_holen @pbsenv.com; banjoist @qwest.net; kayk @tclu.com; w.cand @verizon.net; jimmc @hbapdx.org; info @tclu.com; CBrown @legendhomes.com; kritz @donmorissettehomes.com; tom @terra-weber.com; jswestland @aol.com; ken @gertzco.com; bill @h-mc.com; Erniep @hbapdx.org; kdalbey @beaconhomesnw.com; jfrewing @teleport.com; william.rasmussen @millernash.com; fourdconst @msn.com; jay @h-mc.com; stever @srdllc.com; aland @roundstoneproperties.com; sbeilke @europa.com; ken @eagoncapital.com; jeffc @srdllc.com; tonytree @easystreet.com; global_l@hotmail.com; sizemore_dennis @msn.com; Walsh, David; clemos @verizon.net; RobrtC @aol.com; Janet.Gillis @jblk.com; grillo @millernash.com Cc: Todd Prager Subject: Notice of Public Hearing re: Appeal of Director's Interpretation Dear Interested Parties: The City of Tigard received an appeal on Friday March 14, 2008 pertaining to the 2/26/08 Director's Interpretation of Tree Plan Requirements (Chapter 18.790). Because Tigard's Community Development Code requires that the city mail notice of the public hearing, I am requesting that each of you provide by e-mail with your mailing address at your earliest convenience. A public hearing before the City Council has been tentatively scheduled for Tuesday,April 22, 2008 and notice will be mailed to all parties to the appeal on Monday, March 31, 2008. To simplify responding to this request, you can reply to my e-mail and attach your electronic business card. Please provide me with your mailing address by this coming Friday, March 21, 2008. Thank you in advance for your assistance. Best regards, Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard - Current Planning 1 Patty Lunsford • From: /Barry Sandhorst [w.cand @verizon.net] Sent: Monday, March 17, 2008 11:27 AM To: Patty Lunsford Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation Barry Sandhorst WC&D Inc. 23281 SW Bosky Dell Lane West Linn OR 97068 From: Patty Lunsford [mailto:PATTY @tigard-or.gov] Sent: Monday, March 17, 2008 11:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; 'waltknapp @comcast.net; 'morgan_holen @pbsenv.com'; banjoist @qwest.net'; 'kayk @tclu.com'; 'w.cand @verizon.net'; 'jimmc @hbapdx.org'; 'info @tclu.com'; 'CBrown @legendhomes.com'; 'kritz @donmorissettehomes.com'; 'tom @terra-weber.com'; 'jswestland @aol.com'; 'ken @gertzco.com'; 'bill @h-mc.com'; 'Erniep @hbapdx.org'; 'kdalbey @beaconhomesnw.com'; 'jfrewing @teleport.com'; 'william.rasmussen @millernash.com'; 'fourdconst @msn.com'; 'jay @h-mc.com'; 'stever @srdllc.com'; 'aland @roundstoneproperties.com'; 'sbeilke @europa.com'; 'ken @eagoncapital.com'; 'jeffc @srdllc.com'; tonytree @easystreet.com'; 'global_i @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net'; 'RobrtC @aol.com'; 'Janet.Gillis @jblk.com'; 'grillo @millernash.com' Cc: Todd Prager Subject: Notice of Public Hearing re: Appeal of Director's Interpretation Dear Interested Parties: The City of Tigard received an appeal on Friday March 14, 2008 pertaining to the 2/26/08 Director's Interpretation of Tree Plan Requirements (Chapter 18.790). Because Tigard's Community Development Code requires that the city mail notice of the public hearing, I am requesting that each of you provide by e-mail with your mailing address at your earliest convenience. A public hearing before the City Council has been tentatively scheduled for Tuesday, April 22, 2008 and notice will be mailed to all parties to the appeal on Monday, March 31, 2008. To simplify responding to this request, you can reply to my e-mail and attach your electronic business card. Please provide me with your mailing address by this coming Friday, March 21, 2008. Thank you in advance for your assistance. Best regards, Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard - Current Planning Patty Lunsford ' • From: IRobrtC@aol.com Sent: Monday, March 17, 2008 11:34 AM To: Patty Lunsford Subject: Re: Notice of Public Hearing re: Appeal of Director's Interpretation JRobCaIIan 11175 SW Eden Court Tigard Or. 97223 It's Tax Time! Get tips, forms and advice on AOL Money& Finance. Patty Lunsford From: Ken Gertz [Ken @Gertzco.com] Sent: Monday, March 17, 2008 11:34 AM To: Patty Lunsford Subject: Re: Notice of Public Hearing re: Appeal of Director's Interpretation Ken Gertz President Gertz Fine Homes 19200 SW 46th Ave. Tualatin, OR 97062-8770 Voice 503-692-3390 Fax 503-692-5433 Patty Lunsford wrote: > Dear Interested Parties: > The City of Tigard received an appeal on Friday March 14, 2008 > pertaining to the 2/26/08 Director's Interpretation of Tree Plan > Requirements (Chapter 18.790). Because Tigard's Community Development > Code requires that the city_mail_notice of the public hearing, I am > requesting that each of you provide by e-mail with your mailing > address at your earliest convenience. > A public hearing before the City Council has been tentatively > scheduled for Tuesday, April 22, 2008 and notice will be mailed to all > parties to the appeal on Monday, March 31, 2008. To simplify > responding to this request, you can reply to my e-mail and attach your > electronic business card. > > Please provide me with your mailing address by this coming Friday, > March 21, 2008. Thank you in advance for your assistance. > > Best regards, >• *Patty Lunsford **(503.718.2438)*** >Administrative Assistant > City of Tigard - Current Planning • • Ken Gertz President Gertz Fine Homes Voice 503-692-3390 Fax 503-692-5433 1 Patty Lunsford From: Craig Brown [CBrown @legendhomes.com] Sent: Monday, March 17, 2008 1:20 PM To: Patty Lunsford Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation Below is my mailing information: MATRIX DEVELOPMENT CORPORATION Craig F. Brown Vice President 12755 SW 69th Ave-Suite 100 Portland,OR 97223 Phone: 503-620-8080,Ext 222 Email: cbrown(@legendhomes.com From: Patty Lunsford [mailto:PATTY @tigard-or.gov] Sent: Monday, March 17, 2008 11:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; 'waltknapp @comcast.net'; 'morgan_holen @pbsenv.com'; banjoist @qwest.net'; 'kayk @tclu.com'; 'w.cand @verizon.net'; 'jimmc @hbapdx.org'; 'info @tclu.com'; Craig Brown; 'kritz @donmorissettehomes.com'; Tom Weber; 'jswestland @aol.com'; 'ken @gertzco.com'; 'bill @h-mc.com'; 'Erniep @hbapdx.org'; 'kdalbey @beaconhomesnw.com'; 'jfrewing @teleport.com'; 'william.rasmussen @millernash.com'; 'fourdconst @msn.com'; 'jay @h- mc.com'; 'stever @srdllc.com'; 'aland @roundstoneproperties.com'; 'sbeilke @europa.com'; 'ken @eagoncapital.com'; 'jeffc @srdllc.com'; 'tonytree @easystreet.com'; 'global_1 @hotmail.com'; 'sizemore_dennis @msn.com'; David.Walsh @spnewsprint.com'; 'clemos @verizon.net; 'RobrtC @aol.com'; 'Janet.Gillis @jblk.com'; 'grillo @millernash.com' Cc: Todd Prager Subject: Notice of Public Hearing re: Appeal of Director's Interpretation Dear Interested Parties: The City of Tigard received an appeal on Friday March 14, 2008 pertaining to the 2/26/08 Director's Interpretation of Tree Plan Requirements (Chapter 18.790). Because Tigard's Community Development Code requires that the city mail notice of the public hearing, I am requesting that each of you provide by e-mail with your mailing address at your earliest convenience. A public hearing before the City Council has been tentatively scheduled for Tuesday, April 22, 2008 and notice will be mailed to all parties to the appeal on Monday, March 31, 2008. To simplify responding to this request, you can reply to my e-mail and attach your electronic business card. Please provide me with your mailing address by this coming Friday, March 21, 2008. Thank you in advance for your assistance. Best regards, Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard - Current Planning 1 Patty Lunsford 'Morgan • • V From: Morgan Holen [morgan_holen @pbsenv.com] Sent: • Monday, March 17, 2008 1:20 PM To: Patty Lunsford Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation Morgan E. Holen 5300 Parkview Drive #1053 Lake Oswego, OR 97035 Thank you!! From: Patty Lunsford [mailto:PATTY @tigard-or.gov] Sent: Monday, March 17, 2008 11:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; 'waltknapp @comcast.net; Morgan Holen; banjoist @gwest.net; 'kayk @tclu.com'; 'w.cand @verizon.net; 'jimmc @hbapdx.org'; 'info @tclu.com'; 'CBrown @legendhomes.com'; 'kritz @donmorissettehomes.com'; 'tom @terra-weber.com'; 'jswestland @aol.com'; 'ken @gertzco.com'; 'bill @h-mc.com'; 'Erniep @hbapdx.org'; 'kdalbey @beaconhomesnw.com'; 'jfrewing @teleport.com'; 'william.rasmussen @millernash.com'; 'fourdconst @msn.com'; 'jay @h-mc.com'; 'stever @srdllc.com'; 'aland @roundstoneproperties.com'; 'sbeilke @europa.com'; 'ken @eagoncapital.com'; 'jeffc @srdllc.com'; tonytree @easystreet.com'; 'global_l @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net'; 'RobrtC @aol.com'; 'Janet.Gillis @jblk.com'; 'grillo @millernash.com' Cc: Todd Prager Subject: Notice of Public Hearing re: Appeal of Director's Interpretation Dear Interested Parties: The City of Tigard received an appeal on Friday March 14, 2008 pertaining to the 2/26/08 Director's Interpretation of Tree Plan Requirements (Chapter 18.790). Because Tigard's Community Development Code requires that the city mail notice of the public hearing, I am requesting that each of you provide by e-mail with your mailing address at your earliest convenience. A public hearing before the City Council has been tentatively scheduled for Tuesday,April 22, 2008 and notice will be mailed to all parties to the appeal on Monday, March 31, 2008. To simplify responding to this request, you can reply to my e-mail and attach your electronic business card. Please provide me with your mailing address by this coming Friday, March 21, 2008. Thank you in advance for your assistance. Best regards, Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard - Current Planning • DISCLAIMER: This message and any attachments are considered privileged and confidential and are intended for the sole use of the individual or entity to whom the message is addressed.If you have received this message in error,please immediately advise the sender and permanently delete the message and any attachments. 1 Patty Lunsford From: . Walt Knapp [walt.knapp @comcast.net] Sent: . Monday, March 17, 2008 1:19 PM To: Patty Lunsford Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation Attachments: Walt Knapp Patty, Here's the contact info. Thanks! Walt Knapp Walter H. Knapp & Associates, LLC Consultants in Silviculture,Arboriculture and Urban Forestry 1 5 1615 SW Dunsmuir Beaverton,OR 97007 03.646.4349 Office 503.265.8117 Fax 503.330.3732 Mobile waltknapp a.comcast.net From: Patty Lunsford [mailto:PATTY @tigard-or.gov] Sent: Monday, March 17, 2008 11:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; 'waltknapp @comcast.net'; 'morgan_holen @pbsenv.com'; 'banjoist @qwest.net'; 'kayk @tclu.com'; 'w.cand @verizon.net; 'jimmc @hbapdx.org'; 'info @tclu.com'; 'CBrown @legendhomes.com'; 'kritz @donmorissettehomes.com'; 'tom @terra-weber.com'; 'jswestland @aol.com'; 'ken @gertzco.com'; 'bill @h-mc.com'; 'Erniep @hbapdx.org'; 'kdalbey @beaconhomesnw.com'; 'jfrewing @teleport.com'; 'william.rasmussen @millernash.com'; 'fourdconst @msn.com'; 'jay @h-mc.com'; 'stever @srdllc.com'; 'aland @roundstoneproperties.com'; 'sbeilke @europa.com'; 'ken @eagoncapital.com'; 'jeffc @srdllc.com'; tonytree @easystreet.com'; 'global_i @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net; 'RobrtC @aol.com'; 'Janet.Gillis @jblk.com'; 'grillo @millernash.com' Cc: Todd Prager Subject: Notice of Public Hearing re: Appeal of Director's Interpretation Dear Interested Parties: The City of Tigard received an appeal on Friday March 14, 2008 pertaining to the 2/26/08 Director's Interpretation of Tree Plan Requirements (Chapter 18.790). Because Tigard's Community Development Code requires that the city mail notice of the public hearing, I am requesting that each of you provide by e-mail with your mailing address at your earliest convenience. A public hearing before the City Council has been tentatively scheduled for Tuesday,April 22, 2008 and notice will be mailed to all parties to the appeal on Monday, March 31, 2008. To simplify responding to this request, you can reply to my e-mail and attach your electronic business card. Please provide me with your mailing address by this coming Friday, March 21, 2008. Thank you in advance for your assistance. Best regards, Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard - Current Planning 1 Patty Lunsford • From: V Gillis, Janet[Janet.Gillis @jblk.com] Sent: Monday, March 17, 2008 1:31 PM To: Patty Lunsford Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation Patty, JMy home address is Janet Gillis 13711 SW Essex Drive Tigard, OR 97223 Thank you From: Patty Lunsford [mailto:PATTY @tigard-or.gov] Sent: Monday, March 17, 2008 11:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; 'waltknapp @comcast.net; 'morgan_holen @pbsenv.com'; banjoist @qwest.net'; 'kayk @tclu.com'; 'w.cand @verizon.net'; 'jimmc @hbapdx.org'; 'info @tclu.com'; 'CBrown @legendhomes.com'; 'kritz @donmorissettehomes.com'; 'tom @terra-weber.com'; 'jswestland @aol.com'; 'ken @gertzco.com'; 'bill @h-mc.com'; 'Erniep @hbapdx.org'; 'kdalbey @beaconhomesnw.com'; 'jfrewing @teleport.com'; 'william.rasmussen @millernash.com'; 'fourdconst @msn.com'; 'jay @h-mc.com'; 'stever @srdllc.com'; 'aland @roundstoneproperties.com'; 'sbeilke @europa.com'; 'ken @eagoncapital.com'; 'jeffc @srdllc.com'; tonytree @easystreet.com'; 'global_i @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net'; 'RobrtC @aol.com'; Gillis, Janet; 'grillo @millernash.com' Cc: Todd Prager Subject: Notice of Public Hearing re: Appeal of Director's Interpretation Dear Interested Parties: The City of Tigard received an appeal on Friday March 14, 2008 pertaining to the 2/26/08 Director's Interpretation of Tree Plan Requirements (Chapter 18.790). Because Tigard's Community Development Code requires that the city mail notice of the public hearing, I am requesting that each of you provide by e-mail with your mailing address at your earliest convenience. A public hearing before the City Council has been tentatively scheduled for Tuesday,April 22, 2008 and notice will be mailed to all parties to the appeal on Monday, March 31, 2008. To simplify responding to this request, you can reply to my e-mail and attach your electronic business card. Please provide me with your mailing address by this coming Friday, March 21, 2008. Thank you in advance for your assistance. Best regards, Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard - Current Planning 1 Patty Lunsford • • From: Jeff Caines [jeffc @srdllc.com] Sent: Monday, March 17, 2008 11:42 AM To: Patty Lunsford Cc: Steve Roper Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation Jeff Gaines Steve Roper 8196 SW Hall Blvd. #232 Beaverton, OR 97008 (Will refreshments be provided? Can we bring our own?) From: Patty Lunsford [mailto:PATTY @tigard-or.gov] Sent: Monday, March 17, 2008 11:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; 'waltknapp @comcast.net; 'morgan_holen @pbsenv.com'; 'banjoist @gwest.net; 'kayk @tclu.com'; 'w.cand @verizon.net; 'jimmc @hbapdx.org'; 'info @tclu.com'; 'CBrown @legendhomes.com'; 'kritz @donmorissettehomes.com'; 'tom @terra-weber.com'; 'jswestland @aol.com'; 'ken @gertzco.com'; 'bill @h-mc.com'; 'Erniep @hbapdx.org'; 'kdalbey @beaconhomesnw.com'; 'jfrewing @teleport.com'; 'william.rasmussen @millernash.com'; 'fourdconst @msn.com'; 'jay @h-mc.com'; Steve Roper; 'aland @roundstoneproperties.com'; 'sbeilke @europa.com'; 'ken @eagoncapital.com'; Jeff Caines; 'tonytree @easystreet.com'; 'global_1 @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net; 'RobrtC @aol.com'; 'Janet.Gillis @jblk.com'; 'grillo@millernash.com' Cc: Todd Prager Subject: Notice of Public Hearing re: Appeal of Director's Interpretation Dear Interested Parties: The City of Tigard received an appeal on Friday March 14, 2008 pertaining to the 2/26/08 Director's Interpretation of Tree Plan Requirements (Chapter 18.790). Because Tigard's Community Development Code requires that the city mail notice of the public hearing, I am requesting that each of you provide by e-mail with your mailing address at your earliest convenience. A public hearing before the City Council has been tentatively scheduled for Tuesday,April 22, 2008 and notice will be mailed to all parties to the appeal on Monday, March 31, 2008. To simplify responding to this request, you can reply to my e-mail and attach your electronic business card. Please provide me with your mailing address by this coming Friday, March 21, 2008. Thank you in advance for your assistance. Best regards, Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard - Current Planning 1 Patty Lunsford 0 • From: Kay Kinyon [AutoCad @tclu.com] Sent: Monday, March 17, 2008 3:26 PM To: Patty Lunsford Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation Tree Care & Landscapes Unlimited, Inc. 5600 Rosewood St. P.O. Box 1566 Lake Oswego, OR 97035 From: Patty Lunsford [mailto:PATTY @tigard-or.gov] Sent: Monday, March 17, 2008 3:17 PM To: Kay Kinyon Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation Kay, Thank you for responding to my email so promptly; and I apologize for asking again but I need your mailing addresses. Sincerely, Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard - Current Planning From: Kay Kinyon [mailto:AutoCad @tclu.com] Sent: Monday, March 17, 2008 3:10 PM To: Patty Lunsford Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation kayk at tclu.com, raym antclu.com V From: Patty Lunsford [mailto:PATTY @tigard-or.gov] Sent: Monday, March 17, 2008 11:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; 'waltknapp @comcast.net'; 'morgan_holen @pbsenv.com'; banjoist @qwest.net'; Kay Kinyon; 'w.cand @verizon.net'; 'jimmc @hbapdx.org'; Tree Care; 'CBrown @legendhomes.com'; 'kritz @donmorissettehomes.com'; 'tom @terra-weber.com'; 'jswestland @aol.com'; 'ken @gertzco.com'; 'bill @h-mc.com'; 'Erniep @hbapdx.org'; 'kdalbey @beaconhomesnw.com'; 'jfrewing @teleport.com'; William.rasmussen @millernash.com'; 'fourdconst @msn.com'; 'jay @h-mc.com'; 'stever @srdllc.com'; 'aland @roundstoneproperties.com'; 'sbeilke @europa.com'; 'ken @eagoncapital.com'; 'jeffc @srdllc.com'; 'tonytree @easystreet.com'; 'global_l @hotmail.com'; 'sizemore_dennis @msn.com'; David.Walsh @spnewsprint.com'; 'clemos @verizon.net'; 'RobrtC @aol.com'; 'Janet.Gillis @jblk.com'; 'grillo @millernash.com' Cc: Todd Prager Subject: Notice of Public Hearing re: Appeal of Director's Interpretation Dear Interested Parties: The City of Tigard received an appeal on Friday March 14, 2008 pertaining to the 2/26/08 Director's Interpretation of Tree Plan Requirements (Chapter 18.790). Because Tigard's Community Development Code requires that the city mail notice of the public hearing, I am requesting that each of you provide by e-mail with your mailing address at your earliest convenience. A public hearing before the City Council has been tentatively scheduled for Tuesday, April 22, 2008 and notice will be mailed to all parties to the appeal on Monday, March 31, 2008. To simplify responding to this request,you can reply to my e-mail and attach your electronic business card. Please provide me with your mailing address by this coming Friday, March 21, 2008. Thank you in advance for your assistance. 1 Patty Lunsford • • From: V Tom Weber[tom @terra-weber.com] Sent: Monday, March 17, 2008 3:24 PM To: Patty Lunsford Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation 1/My address for notification: Tom Weber 16869 SW 65th Ave., No. 260 Lake Oswego, OR 97035 From: Patty Lunsford [mailto:PATTY @tigard-or.gov] Sent: Monday, March 17, 2008 11:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; 'waltknapp @comcast.net; 'morgan_holen @pbsenv.com'; banjoist @gwest.net; 'kayk @tclu.com'; 'w.cand @verizon.net'; 'jimmc @hbapdx.org'; 'info @tclu.com'; 'CBrown @legendhomes.com'; 'kritz @donmorissettehomes.com'; 'tom @terra-weber.com'; 'jswestland @aol.com'; 'ken @gertzco.com'; 'bill @h-mc.com'; 'Erniep @hbapdx.org'; 'kdalbey @beaconhomesnw.com'; 'jfrewing @teleport.com'; 'william.rasmussen @millernash.com'; 'fourdconst @msn.com'; 'jay @h-mc.com'; 'stever @srdllc.com'; 'aland @roundstoneproperties.com'; 'sbeilke @europa.com'; 'ken @eagoncapital.com'; 'jeffc @srdllc.com'; tonytree @easystreet.com'; 'global_l @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net; 'RobrtC @aol.com'; 'Janet.Gillis @jblk.com'; 'grillo @millernash.com' Cc: Todd Prager Subject: Notice of Public Hearing re: Appeal of Director's Interpretation Dear Interested Parties: The City of Tigard received an appeal on Friday March 14, 2008 pertaining to the 2/26/08 Director's Interpretation of Tree Plan Requirements (Chapter 18.790). Because Tigard's Community Development Code requires that the city mail notice of the public hearing, I am requesting that each of you provide by e-mail with your mailing address at your earliest convenience. A public hearing before the City Council has been tentatively scheduled for Tuesday, April 22, 2008 and notice will be mailed to all parties to the appeal on Monday, March 31, 2008. To simplify responding to this request, you can reply to my e-mail and attach your electronic business card. Please provide me with your mailing address by this coming Friday, March 21, 2008. Thank you in advance for your assistance. Best regards, Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard - Current Planning 1 Patty Lunsford • • From: 1,7 Alan DeHarpport[aland @roundstoneproperties.com]. Sent: Monday, March 17, 2008 4:33 PM To: Patty Lunsford Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation Thanks, Patty. My address is: 'Alan DeHarpport Roundstone Development 9550 SW Beaverton-Hillsdale Hwy Beaverton, OR 97005 Original Message From: Patty Lunsford [mailto:PATTY @tigard-or.gov] Sent: Monday, March 17, 2008 10:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; 'waltknapp @comcast.net; 'morgan_holen @pbsenv.com'; 'banjoist @gwest.net; 'kayk @tclu.com'; 'w.cand @verizon.net; 'jimmc @hbapdx.org'; 'info @tclu.com'; 'CBrown @legendhomes.com'; 'kritz @donmorissettehomes.com'; 'tom @terra-weber.com'; 'jswestland @aol.com'; 'ken @gertzco.com'; 'bill @h-mc.com'; 'Erniep @hbapdx.org'; 'kdalbey @beaconhomesnw.com'; 'jfrewing @teleport.com'; 'william.rasmussen @millernash.com'; 'fourdconst @msn.com'; 'jay @h-mc.com'; 'stever @srdllc.com'; 'aland @roundstoneproperties.com'; 'sbeilke @europa.com'; 'ken @eagoncapital.com'; 'jeffc @srdllc.com'; 'tonytree @easystreet.com'; 'global_i @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net'; 'RobrtC @aol.com'; 'Janet.Gillis @jblk.com'; 'grillo @millernash.com' Cc: Todd Prager Subject: Notice of Public Hearing re: Appeal of Director's Interpretation Dear Interested Parties: The City of Tigard received an appeal on Friday March 14, 2008 pertaining to the 2/26/08 Director's Interpretation of Tree Plan Requirements (Chapter 18.790). Because Tigard's Community Development Code requires that the city mail notice of the public hearing, I am requesting that each of you provide by e-mail with your mailing address at your earliest convenience. A public hearing before the City Council has been tentatively scheduled for Tuesday, April 22, 2008 and notice will be mailed to all parties to the appeal on Monday, March 31, 2008. To simplify responding to this request, you can reply to my e-mail and attach your electronic business card. Please provide me with your mailing address by this coming Friday, March 21, 2008. Thank you in advance for your assistance. Best regards, Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard - Current Planning 1 Patty Lunsford • • From: Rasmussen, William [william.rsmussen @millernash.com] Sent: Monday, March 17, 2008 11:33 AM . To: Patty Lunsford Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation Will Rasmussen • Miller Nash, LLP 3400 US Bancorp Tower 111 S.W. Fifth Avenue Portland, Oregon 97034 Thank you Patty. Will William L. Rasmussen MILLER NASH LLP 3400 U.S. Bancorp Tower 1 I I I S. V. Fifth Avenue 1 Portland,Oregon 97204-3699 Direct: 503-205-2308 1 Office: 503-224-5858 I Fax: 503-224-0155 william.rasmussen cr,millernash.com I www.millernash.com Confidentiality Notice: This e-mail message may contain confidential or privileged information. If you have received this message by mistake,please do not review,disclose, copy,or distribute the e-mail. Instead,please notify us immediately by replying to this message or telephoning us. Thank you. Tax Advice Notice: IRS Circular 230 requires us to advise you that;if this communication or any attachment contains any tax advice,the advice is not intended to be used,and cannot be used,for the purpose of avoiding federal tax penalties. A taxpayer may rely on professional advice to avoid federal tax penalties only if the advice is reflected in a comprehensive tax opinion that conforms to stringent requirements. Please contact us if you have any questions about Circular 230 or would like to discuss our preparation of an opinion that conforms to these IRS rules. From: Patty Lunsford [mailto:PATTY @tigard-or.gov] Sent: Monday, March 17, 2008 11:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; 'waltknapp @comcast.net'; 'morgan_holen @pbsenv.com'; banjoist @qwest.net'; 'kayk @tclu.com'; 'w.cand @verizon.net'; 'jimmc @hbapdx.org'; 'info @tclu.com'; 'CBrown @legendhomes.com'; 'kritz @donmorissettehomes.com'; 'tom @terra-weber.com'; 'jswestland @aol.com'; 'ken @gertzco.com'; 'bill @h-mc.com'; 'Erniep @hbapdx.org'; 'kdalbey @beaconhomesnw.com'; 'jfrewing @teleport.com'; Rasmussen, William; 'fourdconst @msn.com'; 'jay @h-mc.com'; 'stever @srdllc.com'; 'aland @roundstoneproperties.com'; 'sbeilke @europa.com'; 'ken @eagoncapital.com'; 'jeffc @srdllc.com'; 'tonytree @easystreet.com'; 'global_i @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net'; 'RobrtC @aol.com'; 'Janet.Gillis @jblk.com'; Grillo, Phillip Cc: Todd Prager Subject: Notice of Public Hearing re: Appeal of Director's Interpretation Dear Interested Parties: The City of Tigard received an appeal on Friday March 14, 2008 pertaining to the 2/26/08 Director's Interpretation of Tree Plan Requirements (Chapter 18.790). Because Tigard's Community Development Code requires that the city mail notice of the public hearing, I am requesting that each of you provide by e-mail with your mailing address at your earliest convenience. 1 Patty Lunsford • • From: Randy Killen [randy @aks-eng.com] Sent: • Tuesday, March 18, 2008 8:52 AM To: Patty Lunsford; Todd Prager Cc: Keith Jehnke Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation Patty, Mine and Keith Jehnke's mailing address is 13910 SW Galbreath Drive Suite 100 Sherwood, Oregon 97140 If you have any questions please give me a call. Thanks Randy Killen CPESC, CESCL,Arborist,Certified Tree Risk Assessor AKS Engineering & Forestry, LLC. Sherwood Oregon Vancouver Washington Redmond Oregon 13910 SW Galbreath Drive,Suite 100 12011 NE 99th Street,Suite 1530 1810 S First Street,Suite K Sherwood,OR 97140 Vancouver,WA 98682 Redmond,OR 97756 Phone:(503)925-8799 Phone:(360)882-0419 Phone:(541)526-6975 Fax:(503)925-8969 Fax:(360)882-0426 Fax:(541)526-6974 Disclaimer:AKS Engineering and Forestry,LLC shall not be liable for any changes made to the electronic data transferred.Distribution of electronic data to others is prohibited without the express written consent of AKS Engineering and Forestry LLC. From: Patty Lunsford [mailto:PATTY @tigard-or.gov] Sent: Monday, March 17, 2008 11:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; Randy Killen; 'waltknapp @comcast.net; 'morgan_holen @pbsenv.com'; 'banjoist @qwest.net'; 'kayk @tclu.com'; 'w.cand @verizon.net'; 'jimmc @hbapdx.org'; 'info @tclu.com'; 'CBrown @legendhomes.com'; 'kritz @donmorissettehomes.com'; 'tom @terra-weber.com'; 'jswestland @aol.com'; 'ken @gertzco.com'; 'bill @h-mc.com'; 'Erniep @hbapdx.org'; 'kdalbey @beaconhomesnw.com'; 'jfrewing @teleport.com'; 'william.rasmussen @millernash.com'; 'fourdconst @msn.com'; 'jay @h-mc.com'; 'stever @srdllc.com'; 'aland @roundstoneproperties.com'; 'sbeilke @europa.com'; 'ken @eagoncapital.com'; 'jeffc @srdllc.com'; tonytree @easystreet.com'; 'global_l @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net; 'RobrtC @aol.com'; 'Janet.Gillis @jblk.com'; 'grillo @millernash.com' Cc: Todd Prager Subject: Notice of Public Hearing re: Appeal of Director's Interpretation Dear Interested Parties: The City of Tigard received an appeal on Friday March 14, 2008 pertaining to the 2/26/08 Director's Interpretation of Tree Plan Requirements (Chapter 18.790). Because Tigard's Community Development Code requires that the city mail notice of the public hearing, I am requesting that each of you provide by e-mail with your mailing address at your earliest convenience. A public hearing before the City Council has been tentatively scheduled for Tuesday, April 22, 2008 and notice will be mailed to all parties to the appeal on Monday, March 31, 2008. To simplify responding to this request, you can reply to my e-mail and attach your electronic business card. Please provide me with your mailing address by this coming Friday, March 21, 2008. Thank you in advance for your assistance. Best regards, Patty Lunsford (503.718.2438) 1 Patty Lunsford i • • Prom: •Vohn O'Shea [banjoist @qwest.net] Sent: Monday, March 17, 2008 1:49 PM • To: Patty Lunsford Subject: Re: Notice of Public Hearing re: Appeal of Director's Interpretation Hi, Patty, thanks for notice. John O'Shea John O'Shea, Consulting Arborist (503)408-9308 433 SE 70th Avenue Portland, OR 97215 banioist(a�gwest.net www.im4trees.com On Mar 17, 2008, at 11:20 AM, Patty Lunsford wrote: Dear Interested Parties: The City of Tigard received an appeal on Friday March 14, 2008 pertaining to the 2/26/08 Director's Interpretation of Tree Plan Requirements (Chapter 18.790). Because Tigard's Community Development Code requires that the city mail notice of the public hearing, I am requesting that each of you provide by e-mail with your mailing address at your earliest convenience. A public hearing before the City Council has been tentatively scheduled for Tuesday, April 22, 2008 and notice will be mailed to all parties to the appeal on Monday, March 31, 2008. To simplify responding to this request, you can reply to my e-mail and attach your electronic business card. Please provide me with your mailing address by this coming Friday, March 21, 2008. Thank you in advance for your assistance. Best regards, Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard - Current Planning <Patty Lunsford.vcf> • 1 Patt Lunsford Prom: John Frewing [jfrewing @teleport.com] Sent: Monday, March 17, 2008 11:40 AM To: Patty Lunsford Subject: Re: Notice of Public Hearing re: Appeal of Director's Interpretation Patty, / Thanks for including me on your distribution list. My address is 7110 SW Lola Lane, Tigard, OR 97223. A question. When is the deadline for appeal of this interpretation? Maybe I should file a cross appeal. What is cost of appeal? John Frewing ,S=y Lunsford 9 From: Brian Wegener[brian @tualatinriverkeepers.org] Sent: Tuesday, March 18, 2008 10:23 AM To: Patty Lunsford Subject: re: Notice of Public Hearing re: Appeal of Director's Interpretation Patty, Please put me on the mailing list for the April 22 tree plan appeal hearing. Thanks. JBrian Wegener Watershed Watch Coordinator Tualatin Riverkeepers 12360 SW Main St -Suite 100 Tigard, OR 97223 office: (503)620-7507 cell: (503)936-7612 Website: www.tualatinriverkeepers.orq It's raining. Do you know where your runoff is going? Find out here. Nobody knows the trouble you've seen. Report problems with our online trouble ticket and agency contact list. Dear Interested Parties: The City of Tigard received an appeal on Friday March 14, 2008 pertaining to the 2/26/08 Director's Interpretation of Tree Plan Requirements (Chapter 18.790). Because Tigard's Community Development Code requires that the city mail notice of the public hearing, I am requesting that each of you provide by e-mail with your mailing address at your earliest convenience. A public hearing before the City Council has been tentatively scheduled for Tuesday, April 22, 2008 and notice will be mailed to all parties to the appeal on Monday, March 31, 2008. To simplify responding to this request, you can reply to my e-mail and attach your electronic business card. Please provide me with your mailing address by this coming Friday, March 21, 2008. Thank you in advance for your assistance. Best regards, Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard - Current Planning 1 IPattyLunsford From: Patty Lunsford Sent: Tuesday, April 01, 2008 11:50 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; 'waltknapp @comcast.net'; 'morgan_holen @pbsenv.com'; 'banjoist @gwest.net'; 'kayk @tclu.com'; 'w.cand @verizon.net'; 'jimmc @hbapdx.org'; 'info @tclu.com'; 'CBrown @legendhomes.com'; 'kritz @donmorissettehomes.com'; 'tom @terra-weber.com'; 'jswestland @aol.com'; 'ken @gertzco.com'; 'bill @h-mc.com'; 'Erniep @hbapdx.org';'kdalbey @beaconhomesnw.com'; 'jfrewing @teleport.com'; 'william.rasmussen @millernash.com'; 'fourdconst @msn.com'; 'jay @h- mc.com'; 'stever @srdllc.com'; 'aland @roundstoneproperties.com'; 'sbeilke @europa.com'; 'ken @eagoncapital.com'; 'jeffc @srdllc.com'; 'tonytree @easystreet.com'; 'global_1 @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net; 'RobrtC @aol.com'; 'Janet.Gillis @jblk.com'; 'grillo @millernash.com' Cc: Todd Prager Subject: Notice of 4/22/08 Public Hearing on Director's Interpretation Appeal Attachments: MIS2008-00005 Notice of 4-22-08 Council Public Hea.pdf; Patty Lunsford.vcf; Todd Prager.vcf Attached is the public hearing notice to inform you of the 4/22/08 public hearing before the City Council. The hearing pertains to an appeal filed by the Home Builder's Association of the City of Tigard Director's Interpretation of Chapter 18.790.030 (Tree Plan Requirements). Because the Tigard Community Development Code requires that the City mail notice of the public hearing, those of you that responded to my previous email will also receive a copy of the notice by US Mail. Please call City Arborist/Associate Planner Todd Prager or me if you have any questions. Best regards, Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard - Current Planning • Todd Prager From: Patty Lunsford Sent: Tuesday, April 01, 2008 11:50 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; 'waltknapp @comcast.net; 'morgan_holen @pbsenv.com'; 'banjoist @gwest.net'; 'kayk @tclu.com'; 'w.cand @verizon.net'; 'jimmc@hbapdx.org'; 'info @tclu.com'; 'CBrown @legendhomes.com'; 'kritz @donmorissettehomes.com'; 'tom @terra-weber.com'; 'jswestland @aol.com'; 'ken @gertzco.com'; 'bill @h-mc.com'; 'Erniep @hbapdx.org'; 'kdalbey @beaconhomesnw.com'; 'jfrewing @teleport.com'; 'william.rasmussen @millernash.com'; 'fourdconst @msn.com'; 'jay @h-mc.com'; 'stever @srdllc.com'; 'aland @roundstoneproperties.com'; 'sbeilke @europa.com'; 'ken @eagoncapital.com'; 'jeffc @srdllc.com'; 'tonytree @easystreet.com'; 'global_1 @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net'; 'RobrtC @aol.com'; 'Janet.Gillis @jblk.com'; 'grillo @millernash.com' Cc: Todd Prager Subject: Notice of 4/22/08 Public Hearing on Director's Interpretation Appeal Attachments: MIS2008-00005 Notice of 4-22-08 Council Public Hea.pdf; Patty Lunsford.vcf; Todd Prager.vcf Attached is the public hearing notice to inform you of the 4/22/08 public hearing before the City Council. The hearing pertains to an appeal filed by the Home Builder's Association of the City of Tigard Director's Interpretation of Chapter 18.790.030 (Tree Plan Requirements). Because the Tigard Community Development Code requires that the City mail notice of the public hearing, those of you that responded to my previous email will also receive a copy of the notice by US Mail. Please call City Arborist/Associate Planner Todd Prager or me if you have any questions. Best regards, Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard -Current Planning Todd Prager From: Todd Prager Sent: Monday, March 31, 2008 11:54 AM To: Todd Prager; 'tonytree @easystreet.com'; 'global_1 @ hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net'; 'RobrtC @aol.com'; 'Gillis, Janet' Cc: John Floyd Subject: RE: April 2 Tree Board Meeting Attachments: MIS2008-00005 Appellant's Submittal -Attachment 4.pdf For those of you who have not seen a copy of the Homebuilder's appeal of the Director's Interpretation, I have attached a copy to this email. It may be relevent to any discussions that may arise during our meeting on Wednesday. Please let me know if you have any questions. Thanks, Todd From: Todd Prager Sent: Wednesday, March 26, 2008 2:08 PM To: 'tonytree @easystreet.com'; 'global_l @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net; 'RobrtC @aol.com'; 'Gillis, Janet' Subject: April 2 Tree Board Meeting Dear Tree Board Members, Attached, please find the agenda packet for next Wednesday's meeting. The two main items on the agenda are a recap of the March 17th workshop with the Planning Commission, and a summary of upcoming meetings and events scheduled for April. Please do not hesitate to contact me if you have any questions. Sincerely, Todd Prager 503 718-2700 1 - • • Todd Prager From: Dick Bewersdorff Sent: Monday, March 31, 2008 8:19 AM To: Todd Prager Subject: RE: Draft Director's Interpretation Summary How do you intend to adopt an "interim" regulation if the Council decides to go that way? From: Todd Prager Sent: Thursday, March 27, 2008 12:01 PM To: Tom Coffee; Dick Bewersdorff Subject: Draft Director's Interpretation Summary Dear Tom, Attached, please find the Draft Council Agenda Item Summary,Council Resolution, and Director's Interpretation Summary for the City Attorney's review. Please let me know if you have any questions. FYI,Jerree has not yet had a chance to review this. Thanks, Todd 1 • Todd Prager From: Todd Prager Sent: Thursday, March 27, 2008 12:01 PM To: Tom Coffee; Dick Bewersdorff Subject: Draft Director's Interpretation Summary Attachments: Draft Council Agenda Item Summary, Council Resolution,and Director's Interpretation Summary.pdf Dear Tom, Attached, please find the Draft Council Agenda Item Summary,Council Resolution, and Director's Interpretation Summary for the City Attorney's review. Please let me know if you have any questions. FYI,Jerree has not yet had a chance to review this. Thanks, Todd 1 • • Todd Prager From: Todd Prager Sent: Tuesday, March 25, 2008 3:54 PM To: Jerree Lewis Subject: Appeal of Director's Interpretation Attachments: Director's Interpretation Summary, Draft 5.doc; Council Agenda Item Summary, Draft 2.doc; Council Resolution, Draft 2.doc Dear Jerree, As you may know,Tom issued a Director's Interpretation of the Community Development Code Chapter 18.790.030 on February 26, 2008. The Interpretation was appealed by the Home Builder's Association, and is now scheduled for a public hearing before City Council on April 22,2008. I have been helping Tom prepare for the hearing by creating a Council Agenda Item Summary, a Memo to the Council, and a Council Resolution. Tom has reviewed and edited my work thus far. He asked that you please review it as well. If you have time to do this prior to our April 1st meeting with the City Attorney, it would be greatly appreciated. Please do not hesitate to contact me if you have any questions. Thanks, Todd 1 • • Todd Prager From: Todd Prager Sent: Tuesday, March 25, 2008 10:21 AM To: Tom Coffee Subject: Council Agenda Item Summary and Council Resolution Attachments: Council Agenda Item Summary.doc; Council Resolution.doc Dear Tom, Attached is the Council Agenda Item Summary and Council Resolution for the Director's Interpretation. Please review and edit as you see fit. Do not hesitate to contact me if you have any questions/concerns. Thanks, Todd 1 • • Todd Prager From: Todd Prager Sent: Monday, March 24, 2008 9:53 AM To: Tom Coffee Subject: Memo to Council re: Director's Interpretation Attachments: Director's Interpretation Summary, Draft 4.doc Dear Tom, Attached is the draft memo to Council regarding the Director's Interpretation. I incorporated your edits to the previous draft and added the current and proposed Comprehensive Plan policies that are relevant to the Interpretation. Please do not hesitate to contact me if you have further edits, questions,or concerns. Thanks, Todd • • Todd Prager From: Tom Coffee Sent: Friday, March 21, 2008 11:45 AM To: Dick Bewersdorff; Ron Bunch; Todd Prager; John Floyd; Patty Lunsford Subject: Meeting with Tim The meeting with Tim at 2:30 on April 1st. is confirmed.At the meeting we will deal with the tree interpretation appeal and then move into other real/potential legal issues that are on the horizon.Tim is scheduled to be here until 4:00. Dick and Ron -please e-mail Tim a list of other issues you want to discuss prior to the meeting. Tom Coffee Community Development Director City of Tigard 13125 SW Hall Blvd Tigard,Oregon 97223 503-718-2443 tomcna,tigard-or.gov 1 • • Todd Prager From: Todd Prager Sent: Thursday, March 20, 2008 11:31 AM To: Tom Coffee Subject: Memo to City Council regarding Director's Interpretation Attachments: Director's Interpretation Summary, Draft 3.doc Dear Tom, Attached is the draft memo to the City Council regarding the Director's Interpretation. I worked on it with John Floyd and circulated it for comment by Current Planning staff and Ron. I incorporated the comments that I received into the memo with one exception. Dick's comments were mostly aimed at giving the memo more balance, so Council can understand the Home Builder's perspective. Rather than incorporate those comments(since the direction you gave me was to really state your case), I will instead leave the hard copy of Dick's comments in your inbox so you can read and incorporate them as you wish. Please do not hesitate to contact me if you have further questions or revisions. Thanks, Todd • • Todd Prager From: Tom Coffee Sent: Thursday, March 20, 2008 10:33 AM To: Dick Bewersdorff; Todd Prager; John Floyd; Ron Bunch; Patty Lunsford Subject: Meeting with Tim I have tentatively scheduled a meeting with Tim for 2:30 on April 1st to discuss the appeal of the Director's Interpretation. Please "pencil" it in and I will let you know when it is confirmed. Tom Coffee Community Development Director City of Tigard 13125 SW Hall Blvd Tigard,Oregon 97223 503-718-2443 tomcatigard-or.gov 1 • • Todd Prager From: Todd Prager Sent: Thursday, March 20, 2008 8:08 AM To: Emily Eng Subject: RE: Explanation of Director's Interpretation of 18.790 for April 22nd Hearing (MIS2008-00005) Ok I'll revise that part. From: Emily Eng Sent: Wednesday, March 19, 2008 5:21 PM To: Todd Prager Subject: RE: Explanation of Director's Interpretation of 18.790 for April 22nd Hearing (MIS2008-00005) Well, in the second example,did you actually ask him to consider removing some parking spaces? He was intending to clearcut the site from the start, so rather than"pre-empting negotiation",you could revise it to say, "instead of taking time to negotiate, he continued with his plan to remove all trees on site and expressed that he would rather mitigate than lose parking spaces" (if he specifically expressed that he didn't want to lose spaces). From: Todd Prager Sent: Wednesday, March 19, 2008 4:51 PM To: Emily Eng Subject: RE: Explanation of Director's Interpretation of 18.790 for April 22nd Hearing (MIS2008-00005) Thanks. By the way, do you think those are accurate depictions of the two "familiar"situations? From: Emily Eng Sent: Wednesday, March 19, 2008 4:29 PM To: Todd Prager Subject: RE: Explanation of Director's Interpretation of 18.790 for April 22nd Hearing (MIS2008-00005) Why do two of those example projects sound so familiar to me? Good job on the response. I don't see any errors and I think you've explained the intent of the interpretation well. I would just reiterate the purpose of the interpretation in the conclusion and emphasize that the interpretation is not"save all trees at all costs", but as you say allows both parties to better assess tree protection in a clear and objective way and early in the design process. It's not like they're going to get"surprised" late in the process. If they don't like our policies,they don't have to do business here. You might not want to say the last two things. From: Todd Prager Sent: Wednesday, March 19, 2008 8:21 AM To: Dick Bewersdorff; Ron Bunch; Cheryl Caines; Emily Eng; Gary Pagenstecher Subject: Explanation of Director's Interpretation of 18.790 for April 22nd Hearing (MIS2008-00005) Tom asked that John and I prepare a draft explanation of his Director's Interpretation of the tree plan requirement in 18.790. His Interpretation was appealed by the Home Builder's Association recently,so the issue is going before City Council at a public hearing on April 22nd. Council will decide whether or not to uphold the Interpretation. Tom asked that I run the attached documents by you for a quick review prior to submitting it to him tomorrow. If any of you see any glaring errors, please let me know by the end of the day. I know this is short notice, but I just found out I had to write this last Friday afternoon. Thanks, 1 • • Todd Prager From: Todd Prager Sent: Wednesday, March 19, 2008 4:51 PM To: Emily Eng Subject: RE: Explanation of Director's Interpretation of 18.790 for April 22nd Hearing (MIS2008-00005) Thanks. By the way, do you think those are accurate depictions of the two "familiar"situations? From: Emily Eng Sent: Wednesday, March 19, 2008 4:29 PM To: Todd Prager Subject: RE: Explanation of Director's Interpretation of 18.790 for April 22nd Hearing (MIS2008-00005) Why do two of those example projects sound so familiar to me? Good job on the response. I don't see any errors and I think you've explained the intent of the interpretation well. I would just reiterate the purpose of the interpretation in the conclusion and emphasize that the interpretation is not"save all trees at all costs", but as you say allows both parties to better assess tree protection in a clear and objective way and early in the design process. It's not like they're going to get"surprised" late in the process. If they don't like our policies,they don't have to do business here. You might not want to say the last two things. From: Todd Prager Sent: Wednesday, March 19, 2008 8:21 AM To: Dick Bewersdorff; Ron Bunch; Cheryl Caines; Emily Eng; Gary Pagenstecher Subject: Explanation of Director's Interpretation of 18.790 for April 22nd Hearing (MIS2008-00005) Tom asked that John and I prepare a draft explanation of his Director's Interpretation of the tree plan requirement in 18.790. His Interpretation was appealed by the Home Builder's Association recently,so the issue is going before City Council at a public hearing on April 22nd. Council will decide whether or not to uphold the Interpretation. Tom asked that I run the attached documents by you for a quick review prior to submitting it to him tomorrow. If any of you see any glaring errors, please let me know by the end of the day. I know this is short notice, but I just found out I had to write this last Friday afternoon. Thanks, Todd 1 • • Todd Prager From: Dick Bewersdorff Sent: Wednesday, March 19, 2008 1:58 PM To: Tom Coffee Cc: Todd Prager; John Floyd; Gary Pagenstecher; Emily Eng; Cheryl Caines; Christine Darnell Subject: RE: Appeal Hearing There is a section I missed under 18.340.F.that says Director's interpretations are a Type III by Council subject to 18.390.050.D.which list criteria but it is still silent regarding the quasi-judicial vs. legislative. Thanks to Patty! Next time I will read with my glasses on. This is where it gets really confusing since 18.380 says legislative is a Type IV and the Type III is for map amendments. Under 18.390 a Type III procedure states that it applies to quasi-judicial permits and action that contain some discretionary criteria. Originally, I went directly to the Type IV which is for Council and is described as legislative. I still think this case is legislative because it establishes rules to be generally applied and Council interpretation gains precedent in LUBA appeals. It is not applying standards to an individual property. From: Tom Coffee Sent: Wednesday, March 19, 2008 1:12 PM To: Dick Bewersdorff Cc: Todd Prager; John Floyd; Patty Lunsford; Gary Pagenstecher; Emily Eng; Cheryl Caines; Christine Darnell Subject: RE: Appeal Hearing Thanks Dick- I am trying to set up a meeting with Tim regarding the process and the appeal-and as soon as I get some times from him I will let all of you know when the meeting will be. From: Dick Bewersdorff Sent: Wednesday, March 19, 2008 12:27 PM To: Tom Coffee Cc: Todd Prager; John Floyd; Patty Lunsford; Gary Pagenstecher; Emily Eng; Cheryl Caines; Christine Darnell Subject: Appeal Hearing I reviewed the code regarding the type of hearing for the appeal of the Director's Interpretation. The code does not list Interpretations under 18.390 so that suggests that it isn't quasi-judicial; All the code says is that interpretations by the Director go to Council; that makes it a Type IV which are normally first reviewed by the PC before the Council. Again the code is silent on the distinction of interpretations. Finally, under 18.390.080.B.,the Director has the authority to determine the decision making type. If the Director's determination regarding the proper decision making type is not raised as an issue within the process assigned by the Director to the permit or action requested, the Director's decision is final. Since,through the appeal,we are converting an administrative rule to a Council decision, (ie., establishing a rule to be applied generally to all properties) I think it is fair to call the Council's decision legislative for the reason above. I am copying this email to those listed as a learning tool. Todd Prager From: Tom Coffee Sent: Wednesday, March 19, 2008 1:12 PM To: Dick Bewersdorff Cc: Todd Prager; John Floyd; Patty Lunsford; Gary Pagenstecher; Emily Eng; Cheryl Caines; Christine Darnell Subject: RE: Appeal Hearing Thanks Dick- I am trying to set up a meeting with Tim regarding the process and the appeal-and as soon as I get some times from him I will let all of you know when the meeting will be. From: Dick Bewersdorff Sent: Wednesday, March 19, 2008 12:27 PM To: Tom Coffee Cc: Todd Prager; John Floyd; Patty Lunsford; Gary Pagenstecher; Emily Eng; Cheryl Caines; Christine Darnell Subject: Appeal Hearing I reviewed the code regarding the type of hearing for the appeal of the Director's Interpretation. The code does not list Interpretations under 18.390 so that suggests that it isn't quasi-judicial; All the code says is that interpretations by the Director go to Council;that makes it a Type IV which are normally first reviewed by the PC before the Council. Again the code is silent on the distinction of interpretations. Finally, under 18.390.080.B.,the Director has the authority to determine the decision making type. If the Director's determination regarding the proper decision making type is not raised as an issue within the process assigned by the Director to the permit or action requested, the Director's decision is final. Since,through the appeal,we are converting an administrative rule to a Council decision, (ie., establishing a rule to be applied generally to all properties) I think it is fair to call the Council's decision legislative for the reason above. I am copying this email to those listed as a learning tool. • • Todd Prager From: Dick Bewersdorff Sent: Wednesday, March 19, 2008 12:27 PM To: Tom Coffee Cc: Todd Prager; John Floyd; Patty Lunsford; Gary Pagenstecher; Emily Eng; Cheryl Caines; Christine Darnell Subject: Appeal Hearing I reviewed the code regarding the type of hearing for the appeal of the Director's Interpretation. The code does not list Interpretations under 18.390 so that suggests that it isn't quasi-judicial; All the code says is that interpretations by the Director go to Council;that makes it a Type IV which are normally first reviewed by the PC before the Council. Again the code is silent on the distinction of interpretations. Finally, under 18.390.080.B.,the Director has the authority to determine the decision making type. If the Director's determination regarding the proper decision making type is not raised as an issue within the process assigned by the Director to the permit or action requested, the Director's decision is final. Since,through the appeal,we are converting an administrative rule to a Council decision, (ie., establishing a rule to be applied generally to all properties) I think it is fair to call the Council's decision legislative for the reason above. I am copying this email to those listed as a learning tool. • Todd Prager From: Todd Prager Sent: Wednesday, March 19, 2008 8:21 AM To: Dick Bewersdorff; Ron Bunch; Cheryl Caines; Emily Eng; Gary Pagenstecher Subject: Explanation of Director's Interpretation of 18.790 for April 22nd Hearing (MIS2008-00005) Attachments: Director's Interpretation Summary, Draft 2.doc; Appendix#1 for the Director's Interpretation, Draft 2.doc; MIS2008-00005 Appellant's Submittal.pdf Tom asked that John and I prepare a draft explanation of his Director's Interpretation of the tree plan requirement in 18.790. His Interpretation was appealed by the Home Builder's Association recently,so the issue is going before City Council at a public hearing on April 22nd. Council will decide whether or not to uphold the Interpretation. Tom asked that I run the attached documents by you for a quick review prior to submitting it to him tomorrow. If any of you see any glaring errors, please let me know by the end of the day. I know this is short notice, but I just found out I had to write this last Friday afternoon. Thanks, Todd 1 • Todd Prager From: John Floyd Sent: Tuesday, March 18, 2008 5:52 PM To: Todd Prager Subject: my revisions Attachments: Director's Interpretation Summary johns revisions.doc; Appendix#1 for the Director's Interpretation johns revisions.doc; image001.jpg here you go John Floyd Ili City of Tigard Associate Planner q Community Development : ' t. (503)718-2429 johnfl@tigard-or.gov 13125 SW Hall Blvd. TI G A R D Tigard;OR 97223 • 1 • Todd Prager From: Todd Prager Sent: Tuesday, March 18, 2008 4:13 PM To: Patty Lunsford Subject: RTS of Council Hearing on Director's Interpretation Attachments: Council Request to Schedule Hearing on Director's Interpretation.doc Hi Patty, Does the attached RTS look acceptable. If so, I'll forward it to Tom. Thanks, • Todd • 1 • Todd Prager From: Todd Prager Sent: Tuesday, March 18, 2008 12:08 PM To: John Floyd Subject: Appendix#1 for Director's Interpreation Appeal Attachments: Appendix#1 for the Director's Interpretation.doc Please review the attached appendix. Thanks, Todd 1 - • Todd Prager From: John Floyd Sent: Tuesday, March 18, 2008 11:48 AM To: Todd Prager Subject: RE: Director's interpretation Summary Hey Todd, Good start, I'll have some suggested edits for your by the end of the day. John From: Todd Prager Sent: Tuesday, March 18, 2008 11:39 AM To: John Floyd Subject: Director's interpretation Summary Please review the attached summary of the Director's Interpretation and return with comments ASAP. Todd Prager From: Todd Prager Sent: Tuesday, March 18, 2008 11:39 AM To: John Floyd Subject: Director's interpretation Summary Attachments: Director's Interpretation Summary.doc Please review the attached summary of the Director's Interpretation and return with comments ASAP. 1 Todd Prager From: Patty Lunsford Sent: Tuesday, March 18, 2008 11:29 AM To: 'John Frewing' Cc: Todd Prager; John Floyd Subject: Appeal of Director's Interpretation of Tree Plan Requirements Attachments: MIS2008-00005 Appellant's Submittal.pdf Hi John, I have attached the material you requested. Have a great day! Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard -Current Planning 1 • 110 Todd Prager From: Dick Bewersdorff Sent: Tuesday, March 18, 2008 9:25 AM To: Patty Lunsford Cc: Todd Prager; John Floyd Subject: RE: Tree Board Packet: Feb 20, 2008 Yes and you can let John and Todd answer the questions since they were doing the process; From: Patty Lunsford Sent: Tuesday, March 18, 2008 8:58 AM To: Dick Bewersdorff; Tom Coffee Cc: John Floyd; Todd Prager Subject: FW: Tree Board Packet: Feb 20, 2008 Please read...it just keeps getting better and better!!! Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard -Current Planning From: John Frewing [mailto:jfrewing @teleport.com] Sent: Monday, March 17, 2008 12:46 PM To: Patty Lunsford Subject: Fw: Tree Board Packet: Feb 20, 2008 Patty, I looked up 18.340 as to Director's Interpretations. It seems that it is expected that an interpretation would be'requested' by somebody, but it looks like staff or City Council could be that somebody. I participated in the development of this interpretation by commenting to staff, who presented it to Tree Board on 2/20/08, although I received no notice of the issuance of the interpretation on any particular date. I am forwarding my comments which went to John Floyd for your record in this matter-you can see that they were not adopted nor responded to. Who was the originator of this'director's interpretation'? Is there a record which I can review, ie the appeal itself, any testimony associated with the appeal, etc.? I plan to be at city hall on Tuesday, 3/18 at 10AM and (when done reviewing other matters) at 11AM would appreciate the opportunity to see such record. I will call you then. In 18.340, there is reference to 18.390.050D regarding an appeal hearing. This 050D makes reference (D.1..b)to 'the relevant decision criteria'. What are the relevant decision criteria in an appeal hearing on a director's interpretation? 050D also talks about'participants'. Who can be a participant in the appeal hearing of a director's interpretation? I guess I should here and now formally ask to be a party/participant in the appeal hearing. John Frewing Original Message [From:John Frewing — — — --------- To: John Floyd Cc: Gillis. Janet ; Rob Callan Sent: Saturday, February 16, 2008 3:02 PM Subject: Re: Tree Board Packet: Feb 20, 2008 John, 1 • • Thanks for sending out packet for Wednesday's Tree Board meeting. A family event has come up which makes it not possible for me to attend, but I wanted to pass on several comments for the Tree Board to consider as the subject matter goes forward. DIRECTOR'S INTERPRETATION The proposed requirement for a narrative is fine, but it mentions 'building footprints'without any code requirement that such building footprints actually be submitted to the city as part of an application. Where trees do exist on a site, the interpretation should be augmented by requiring submittal of building footprints, not just the maximum building site, ie the area defined by the required setbacks from lot lines. It is this maximum building site which is commonly submitted today, and such a maximum building site often includes trees which can be preserved by moving the actual building footprint somewhat within that maximum building site. The requirement to submit actual building footprints in order to evaluate whether trees have been preserved to the degree possible should also include the requirement to submit any other proposed impervious area, eg patios, driveways, sidewalks, decks, etc. DEFINITIONS '100 year flood plain' should stick with the physical meaning of this term. The 100 year flood plain is ANY area with a 1% chance of annual flooding, not only the FEMA certified areas. FEMA only evaluates major stream ways; there are other smaller stream ways which also include 100 year flood plains, and in Tigard, it is these smaller stream ways which have no protection at present. I am not suggesting that FEMA insurance programs apply to these smaller stream ways, but local development should restrict development in these smaller stream ways. 'CWS'. The description should include mention of the CWS role in defining and protecting stream buffers, including the vegetation thereon. 'Effective Impervious Area' should clarify whether a piped system with a conservatively designed detention vault results in the upstream impervious area being defined as'effective impervious area'. 'Greenspace' as written seems to ALWAYS include trail activities. I think this should be changed to say that a greenspace MAY include trail activities. Some greenspaces should not include trail activities for reasons of slope, soil stability, wildlife or plant habitat protection, etc. 'Hazardous tree' seems to allow anyone to declare a tree hazardous. I believe there should be a requirement that a licensed arborist make such determination and that such determination be submitted to City of Tigard urban forester for review and approval at least a week before such hazardous tree is altered or removed. 'Linear Park' has a parenthetical phrase associated with the term (Of adequate size to protect natural resources and accomodate intended uses)which should either be removed to the definition of'greenspace' or should be also added to the definition of'greenspace'. It is greenspaces which exist in significant part for natural resourses rather than linear parks, which may be along a railway or street anywhere. 'Parks SDC' is very limited in that it can only be applied to PAVED trails. The definition of trails correctly notes that there are differing standards for trails with different uses. Parks SDC monies should be available to any needed trail. 'Special Use Area' is a useful classification, however the definition should also include as an example an area from which public access is prohibited for reasons of slope, soil stability, wildlife and plant habitat protection, etc. 'Stream Corridor' should note the standard width specification of at least 50 feet(except Fanno Creek)which is required by CWS> 'Urban Forest' should also include 'associated vegetation'and some clarification of this term should be attempted. Please distribute these comments before the Wednesday Tree Board meeting, so all members can see them and discuss them at the meeting. Thanks very much, John Frewing 2 . :. • • Todd Prager From: Dick Bewersdorff Sent: Tuesday, March 18, 2008 9:20 AM To: Patty Lunsford Cc: Todd Prager; John Floyd; Tom Coffee Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation The appeal was to be 14 days from from when the interpretation was mailed; ask Todd; Tom allowed the appellant to send it in the day after(last Friday )1 believe since they asked within the 14 days. So tell John it expired last Friday but check with Todd to be sure. John can participate in the hearing without filing a cross appeal which would cost$250. From: Patty Lunsford Sent:Tuesday, March 18, 2008 8:54 AM To: Dick Bewersdorff Subject: FW: Notice of Public Hearing re: Appeal of Director's Interpretation Dick, Will you please take a look at John's question below and discuss with me when you get a chance? Thanks. Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard -Current Planning From: John Frewing [mailto:jfrewing @teleport.com] Sent: Monday, March 17, 2008 11:40 AM To: Patty Lunsford Subject: Re: Notice of Public Hearing re: Appeal of Director's Interpretation Patty, Thanks for including me on your distribution list. My address is 7110 SW Lola Lane, Tigard, OR 97223. A question. When is the deadline for appeal of this interpretation? Maybe I should file a cross appeal. What is cost of appeal? John Frewing 1 • • Todd Prager From: Patty Lunsford Sent: Tuesday, March 18, 2008 8:58 AM To: Dick Bewersdorff; Tom Coffee Cc: John Floyd; Todd Prager Subject: FW: Tree Board Packet: Feb 20, 2008 Please read...it just keeps getting better and better!!! • Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard -Current Planning From: John Frewing [mailto:jfrewing @teleport.com] Sent: Monday, March 17, 2008 12:46 PM To: Patty Lunsford Subject: Fw: Tree Board Packet: Feb 20, 2008 Patty, I looked up 18.340 as to Director's Interpretations. It seems that it is expected that an interpretation would be 'requested' by somebody, but it looks like staff or City Council could be that somebody. I participated in the development of this interpretation by commenting to staff, who presented it to Tree Board on 2/20/08, although I received no notice of the issuance of the interpretation on any particular date. I am forwarding my comments which went to John Floyd for your record in this matter-you can see that they were not adopted nor responded to. Who was the originator of this 'director's interpretation'? Is there a record which I can review, ie the appeal itself, any testimony associated with the appeal, etc.? I plan to be at city hall on Tuesday, 3/18 at 10AM and (when done reviewing other matters) at 11AM would appreciate the opportunity to see such record. I will call you then. In 18.340, there is reference to 18.390.050D regarding an appeal hearing. This 050D makes reference (D.1..b) to 'the relevant decision criteria'. What are the relevant decision criteria in an appeal hearing on a director's interpretation? 050D also talks about'participants'. Who can be a participant in the appeal hearing of a director's interpretation? I guess I should here and now formally ask to be a party/participant in the appeal hearing. John Frewing Original Message 'From: John Frewinq To: John Floyd - - - -- -- -- -------- Cc: Gillis, Janet ; Rob Callan Sent: Saturday, February 16, 2008 3:02 PM Subject: Re: Tree Board Packet: Feb 20, 2008 John, Thanks for sending out packet for Wednesday's Tree Board meeting. A family event has come up which makes it not possible for me to attend, but I wanted to pass on several comments for the Tree Board to consider as the subject matter goes forward. DIRECTOR'S INTERPRETATION The proposed requirement for a narrative is fine, but it mentions 'building footprints'without any code requirement that such building footprints actually be submitted to the city as part of an application. Where trees do exist on a site, the interpretation should be augmented by requiring submittal of building footprints, not just the maximum building site, ie the area defined by the required setbacks from lot lines. It is this maximum building site which is commonly submitted today, and such a maximum building site often includes trees which can be preserved by moving the actual building footprint somewhat within that maximum building site. 1 • s The requirement to submit actual building footprints in order to evaluate whether trees have been preserved to the degree possible should also include the requirement to submit any other proposed impervious area, eg patios, driveways, sidewalks, decks, etc. DEFINITIONS '100 year flood plain' should stick with the physical meaning of this term. The 100 year flood plain is ANY area with a 1% chance of annual flooding, not only the FEMA certified areas. FEMA only evaluates major stream ways; there are other smaller stream ways which also include 100 year flood plains, and in Tigard, it is these smaller stream ways which have no protection at present. I am not suggesting that FEMA insurance programs apply to these smaller stream ways, but local development should restrict development in these smaller stream ways. 'CWS'. The description should include mention of the CWS role in defining and protecting stream buffers, including the vegetation thereon. 'Effective Impervious Area' should clarify whether a piped system with a conservatively designed detention vault results in the upstream impervious area being defined as'effective impervious area'. 'Greenspace'as written seems to ALWAYS include trail activities. I think this should be changed to say that a greenspace MAY include trail activities. Some greenspaces should not include trail activities for reasons of slope, soil stability, wildlife or plant habitat protection, etc. 'Hazardous tree' seems to allow anyone to declare a tree hazardous. I believe there should be a requirement that a licensed arborist make such determination and that such determination be submitted to City of Tigard urban forester for review and approval at least a week before such hazardous tree is altered or removed. 'Linear Park' has a parenthetical phrase associated with the term (Of adequate size to protect natural resources and accomodate intended uses)which should either be removed to the definition of'greenspace' or should be also added to the definition of'greenspace'. It is greenspaces which exist in significant part for natural resourses rather than linear parks, which may be along a railway or street anywhere. 'Parks SDC' is very limited in that it can only be applied to PAVED trails. The definition of trails correctly notes that there are differing standards for trails with different uses. Parks SDC monies should be available to any needed trail. 'Special Use Area' is a useful classification, however the definition should also include as an example an area from which public access is prohibited for reasons of slope, soil stability, wildlife and plant habitat protection, etc. 'Stream Corridor' should note the standard width specification of at least 50 feet(except Fanno Creek)which is required by CWS> 'Urban Forest' should also include'associated vegetation' and some clarification of this term should be attempted. Please distribute these comments before the Wednesday Tree Board meeting, so all members can see them and discuss them at the meeting. Thanks very much, John Frewing 2 1110 110 Todd Prager From: Todd Prager Sent: Tuesday, March 18, 2008 8:28 AM To: 'tonytree @easystreet.com'; 'global_1 @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net'; 'RobrtC @aol.com'; 'Janet.Gillis @jblk.com' Subject: Director's Interpretation Appeal Attachments: Director's Interpretation_Tree Plan Requirements.pdf; MIS2008-00005 Appellant's Submittal.pdf Dear Tree Board Members, There was some talk last night regarding the Community Development Director's Interpretation of a section of the current Tree Removal Chapter(18.790)of the Development Code. I have attached both the Director's Interpretation as well as the appeal filed by the Home Builder's Association. Tigard City Council has tentatively scheduled to hold a public hearing regarding the Interpretation on April 22, 2008. We can discuss this further at our April 2nd meeting at the Library. Please do not hesitate to contact me if you have any questions. Sincerely, Todd Prager City Arborist 503 718-2700 1 • • Todd Prager From: Todd Prager Sent: Tuesday, March 18, 2008 8:20 AM To: -Planning_Commission Cc: John Floyd; Ron Bunch Subject: Director's Interpretation Attachments: Director's Interpretation_Tree Plan Requirements.pdf; MIS2008-00005 Appellant's Submittal.pdf Dear Planning Commissioner's, There was some talk last night regarding the Community Development Director's Interpretation of a section of the current Tree Removal Chapter(18.790)of the Development Code. I have attached both the Director's Interpretation as well as the appeal filed by the Home Builder's Association. Tigard City Council has tentatively scheduled to hold a public hearing regarding the Interpretation on April 22, 2008. While the Interpretation and hearing do not directly impact your decisions on the Comprehensive Plan Amendment discussed last night, it is something that you may want to be aware of. Please do not hesitate to contact me if you have any questions. Sincerely, Todd Prager City Arborist 503 718-2700 1 Fy l • - - 410 Todd Prager From: Randy Killen [randy @aks-eng.com] Sent: Tuesday, March 18, 2008 8:52 AM To: Patty Lunsford; Todd Prager Cc: Keith Jehnke Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation Patty, Mine and Keith Jehnke's mailing address is 13910 SW Galbreath Drive Suite 100 Sherwood, Oregon 97140 If you have any questions please give me a call. Thanks Randy Killen CPESC,CESCL,Arborist,Certified Tree Risk Assessor AKS Engineering & Forestry, LLC. Sherwood Oregon Vancouver Washington Redmond Oregon 13910 SW Galbreath Drive,Suite 100 12011 NE 99th Street,Suite 1530 1810 S First Street,Suite K Sherwood,OR 97140 Vancouver,WA 98682 Redmond,OR 97756 Phone:(503)925-8799 Phone:(360)882-0419 Phone:(541)526-6975 Fax:(503)925-8969 Fax:(360)882-0426 Fax:(541)526-6974 Disclaimer.AKS Engineering and Forestry,LLC shall not be liable for any changes made to the electronic data transferred. Distribution of electronic data to others is prohibited without the express written consent of AKS Engineering and Forestry LLC. From: Patty Lunsford [mailto:PATTY @tigard-or.gov] Sent: Monday, March 17, 2008 11:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; Randy Killen; 'waltknapp @comcast.net; 'morgan_holen @pbsenv.com'; 'banjoist @gwest.net; 'kayk @tclu.com'; 'w.cand @verizon.net; 'jimmc @hbapdx.org'; 'info @tclu.com'; 'CBrown @legendhomes.com'; 'kritz @donmorissettehomes.com'; 'tom @terra-weber.com'; 'jswestland @aol.com'; 'ken @gertzco.com'; 'bill @h-mc.com'; 'Erniep @hbapdx.org'; 'kdalbey @beaconhomesnw.com'; 'jfrewing @teleport.com'; 'william.rasmussen @millernash.com'; 'fourdconst @msn.com'; 'jay @h-mc.com'; 'stever @srdllc.com'; 'aland @roundstoneproperties.com'; 'sbeilke @europa.com'; 'ken @eagoncapital.com'; 'jeffc @srdllc.com'; tonytree @easystreet.com'; 'global_1 @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net'; 'RobrtC @aol.com'; 'Janet.Gillis @jblk.com'; 'grillo @millernash.com' Cc: Todd Prager Subject: Notice of Public Hearing re: Appeal of Director's Interpretation Dear Interested Parties: The City of Tigard received an appeal on Friday March 14, 2008 pertaining to the 2/26/08 Director's Interpretation of Tree Plan Requirements (Chapter 18.790). Because Tigard's Community Development Code requires that the city mail notice of the public hearing, I am requesting that each of you provide by e-mail with your mailing address at your earliest convenience. A public hearing before the City Council has been tentatively scheduled for Tuesday, April 22, 2008 and notice will be mailed to all parties to the appeal on Monday, March 31, 2008. To simplify responding to this request, you can reply to my e-mail and attach your electronic business card. 1 ' Please provide me with your mailing address by this coming Frida y, March 21, 2008. Thank you advance for your assistance. Best regards, Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard -Current Planning 2 • Todd Prager From: Todd Prager Sent: Monday, March 17, 2008 12:56 PM To: 'Walsh, David' Subject: RE: Notice of Public Hearing re: Appeal of Director's Interpretation Attachments: MIS2008-00005 Appellant's Submittal.pdf Attached is a copy of the appeal. Their reasoning is within the appeal. No one action or decision prompted the appeal, I think they had the opportunity to read through it more carefully, and fully realize what it means. Thanks, Todd From: Walsh, David [mailto:David.Walsh @spnewsprint.com] Sent: Monday, March 17, 2008 12:08 PM To: John Floyd; Todd Prager Subject: FW: Notice of Public Hearing re: Appeal of Director's Interpretation What prompted the appeal? Dave From: Patty Lunsford [mailto:PATTY @tigard-or.gov] Sent: Monday, March 17, 2008 11:21 AM To: hac @spiritone.com; terry@teragan.com; randy @aks-eng.com; waltknapp @comcast.net; morgan_holen @pbsenv.com; banjoist @qwest.net; kayk @tclu.com; w.cand @verizon.net;jimmc @hbapdx.org; info @tclu.com; CBrown @legendhomes.com; kritz @donmorissettehomes.com; tom @terra-weber.com; jswestland @aol.com; ken @gertzco.com; bill @h-mc.com; Erniep @hbapdx.org; kdalbey @beaconhomesnw.com; jfrewing @teleport.com; william.rasmussen @millernash.com; fourdconst @msn.com; jay @h-mc.com; stever @srdllc.com; aland @roundstoneproperties.com; sbeilke @europa.com; ken @eagoncapital.com;jeffc @srdllc.com; tonytree @easystreet.com; global_i @hotmail.com; sizemore_dennis @msn.com; Walsh, David; clemos @verizon.net; RobrtC @aol.com; Janet.Gillis @jblk.com; grillo @millernash.com Cc: Todd Prager Subject: Notice of Public Hearing re: Appeal of Director's Interpretation Dear Interested Parties: The City of Tigard received an appeal on Friday March 14, 2008 pertaining to the 2/26/08 Director's Interpretation of Tree Plan Requirements (Chapter 18.790). Because Tigard's Community Development Code requires that the city mail notice of the public hearing, I am requesting that each of you provide by e-mail with your mailing address at your earliest convenience. A public hearing before the City Council has been tentatively scheduled for Tuesday, April 22, 2008 and notice will be mailed to all parties to the appeal on Monday, March 31, 2008. To simplify responding to this request, you can reply to • my e-mail and attach your electronic business card. Please provide me with your mailing address by this coming Friday, March 21, 2008. Thank you in advance for your assistance. Best regards, Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard -Current Planning 1 • • Todd Prager From: Tom Coffee Sent: Monday, March 17, 2008 11:34 AM To: Craig Prosser; Cathy Wheatley Cc: Dick Bewersdorff; Patty Lunsford; Todd Prager; John Floyd Subject: FW: HBA Appeal of Director's Interpretation Attachments: MIS2008-00005 Appellant's Submittal.pdf We will be scheduling this for the April 22, 2008 Council Meeting From: Patty Lunsford Sent: Friday, March 14, 2008 3:01 PM To: John Floyd; Todd Prager Cc: Tom Coffee; Dick Bewersdorff Subject: HBA Appeal of Director's Interpretation FYI Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard -Current Planning 1 �f l APPEAL FILING FORM k9C1P FOR LAND USE DECISIONSR 1 z 2008 City of Tigard Permit Center 13125 SW Hall Blvd., Tigard, ORP97223' V`=' T I GARD Phone: 503.639.4171 Fax:503.598.1960 ��trtr�!`�'''t� � � /GA 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. The following form has been developed to assist you in filing an appeal of a land use decision in proper form. 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 Recorder at the phone/fax listed at the top of this form. • GENERAL INFORMATION FOR STAFF USE ONLY Property Address/Location(s) arid Name(s) of the Application Case No.(s): k-00005 Being Appealed: Director's intrepretation, dated Feb. Case Name(s): 26, 2008 Code Chapter 18.790 (Tree removal) ReceiptNo.: c {5.1) '0��/ How Do You Qualify As A Party?: Trade Association Application Accepted By: S :7204'1 Date: d/woe Appellant's Name: HOMEBUILDERS ASSN. OF METRO PORTLArovedAsToFormBy.1�1B Date: Appellant's Address: !5555 SW Bangy Rd. #301 Denied As To Form By. City/State: Lake Oswego , OR Zip: 97035 Date: Day Phone Where You Can Be Reached:( 50) 684-1880 Rev. 7/1/07 c\curpin\masters\land use applications\appeal_land use app.doc Scheduled Date Decision Is To Be Final: March 14, 2008 Date Notice of Final Decision Was Given: Feb 26, 2008 REQUIRED SUBMITTAL ELEMENTS Specific Grounds For Appeal or Review: Attached ✓ Application Elements Submitted: Et Appeal Filing Form(completed) ErFiling Fee(based on criteria below) ----_` Director's Decision to Hearings Officer/Planning Commiss i Expedited Review(deposit) $ 300.00 i Hearing Referee $ 500.00 Planning Commission/Hearing's Officer to City Council $2,513.00 (+Transcript) • Signature(s) • 'Ap.ellant(s): Home :uil.ers Assn j' Metro Portland air -ff4dr ie Platt r Dir_ of Local Gov't Affairs 11 4111 APPEAL FILING FORM FOR LAND USE DECISIONS (Cont'd.) The Home Builders Assn. is appealing the Director's interpretation because we believe it drastically changes the intent of Tigard's tree protection requirements, and elevates tree protection standards well beyond the purpose and the practical application of a type 3 application. The Director's interpretation is contrary to the letter of the code: Sec 18.790.010 B.1 "Encourage the reservation,planting and replacement of trees in the City." Sec 18.790.010 B.6 "Provide incentives for the retention and protection;..." Sec 18.790.030 "...protection is preferred to removal." These sections do not require anyone to save a tree as long as they are willing to mitigate for the loss of a tree. Nothing is said about protecting the maximum amount of existing viable trees, or any tree for that matter. It is the sole responsibility of the applicant to determine if and when a tree can or should be saved. 1. To meet the terms of this interpretation, development cannot occur on dividable properties with trees unless a Type 3 process is used. 2. The cost of construction would spiral out of control if construction techniques that are used that "maximize"tree retention are required. State law requires that all jurisdictions must allow for an applicant to file a type 2 application provided they meet all of the provisions of the development code. Per the Director's interpretation, an applicant will now be REQUIRED to reduce the number of lots to maximize tree retentions stated in points 5, 6 an 7 of the interpretation. It is always possible to reduce the number of lots, use lot size averaging, and to reduce the width and depth of lots in order to maximize tree retention, however, this puts the applicant into the type 3 application process section of the code, which is OPTIONAL and entirely at the discretion of the applicant. Moreover, this interpretation does not provide a"CLEAR AND OBJECTIVE"standard from which a developer can base their decision to purchase developable property with trees on it. The type 3 application process is intended for sensitive sites, and is not intended to be used for the simple existence of a tree unless there is a link to an actual resource. Originally, the PD section of the code was written to accommodate wetlands and waterways, not trees, in order to flex the density from the undevelopable portions of the land. A PD was never intended to protect trees unless they happened to be in a wetland. No other jurisdiction requires applicants to make these types of considerations. rp. CITY OF TIGARD 3/14/2008 �� 13125 SW nail Blvd. 2:33:13PM Tigard,OR 97223 503.639.4171 TIGARD Receipt #: 27200800000000000851 Date: 03/14/2008 Line Items: Case No "Tan Code Description Revenue Account No Amount Paid MIS2008-00005 [LANDUS] Interpretation of CDC 100-0000-438000 250.00 Line Item Total: $250.00 • Payments: Method Payer User ID Acct./Check No. Approval No. How Received Amount Paid ip Check 1-IOMEI3UILDERS ASSN OF ST 14483 In Person 250.00 METRO PORTLAND Payment Total: $250.00 ckeceipt.rpt Page 1 of 1 • DIRECTOR'S INTERPRETATION C T I.GARD DATE: February 26,2008 CODE CHAPTER: 18.790 Tree Removal • TOPIC: How should the statement, "Protection is preferred over removal wherever possible" in Section 18.790.030 be interpreted? How can an applicant demonstrate that they have adequately considered tree protection given code preference for protection over removal? DIRECTOR'S INTERPRETATION: I. Introduction A tree plan is required when a development application is filed: 18.790.030 Tree Plan Requirement A. Tree plan required.A tree plan for the planting, removal and protection of trees prepared by a certified arborzst shall be provided for any lot,parcel or combination of lots or parcels for which a development application for a subdivision,partition, site development review,planned development or conditional use it filed. Protection is preferred over removal wherever possible. Historically,applicants have been required to identify all of the trees on the site, specify which will be removed, and propose protection methods for those to be retained. Any or all trees could be removed as long as they were appropriated mitigated. This process does not prioritize protection over removal as required by Section 18.790.030. In order to clarify the intent of the, "Protection is preferred over removal wherever possible" requirement, a Director's interpretation is needed. H. Interpretation One of the primary purposes of Chapter 18.790 of the Tigard Development Code is to preserve existing trees. Therefore,a development application is required to demonstrate that the site analysis and development plan protects the maximum amount of existing,viable trees (i.e.healthy and sustainable individuals or stands). • The City recognizes that some tree removal is unavoidable in order to meet certain planning and/or construction requirements as indicated in Section 18.790.010. 18.790.010 Purpose C. Recgtize need for exceptions. The City recognizes that, notwithstanding these purposes, at the time of development it may be necessary to remove certain trees in order to accommodate structures, streets utilities,and other needed or required improvements within the development. In order to determine that preservation of viable trees has been adequately considered, the tree plan shall include a narrative that addresses the following: 1. How does the site,lot and/or building layout maximize tree retention? 2. How have improvements such as roads,driveways,utilities, and walkways been designed and located to maximize tree retention? 3. Have tree compatible construction techniques been considered and utilized wherever possible to maximize tree retention? (examples of tree compatible construction techniques include but are not limited to tunneling for utilities,"no-dig"pavement installation,and use of retaining walls in certain situations to limit root disturbance) 4. Is it possible to reduce the number of parking spaces to maximize tree retention? 5. Is it possible to reduce the total number of lots to maximize tree retention? 6. Could lot size averaging per Section 18.790.040(2)be utilized to maximize tree retention? 7. Could lot width and/or depth per section 18.790.040(3) be reduced in order to maximize tree retention? 8. How have buildings and building footprints been designed to maximize tree retention? 9. Are offsite trees that may be impacted by development inventoried and adequately protected? 10. Describe additional techniques not mentioned above that have/will be used to maximize tree retention. Failure to demonstrate that the proposed development will preserve viable trees wherever possible may result in findings for denial of a development application. • This interpretation shall become effective immediately. By: Tom Coffee Community Development Director • • Todd Prager From: Todd Prager Sent: Thursday, March 13, 2008 9:32 AM To: Tom Coffee; John Floyd Cc: Ron Bunch; Dick Bewersdorff; Patty Lunsford Subject: RE: Tigard Community Development Director Interpretation of Section18.790.030 of TMC, Tree Plan Requirements Will do. Original Message From: Tom Coffee Sent: Thursday, March 13, 2008 8:54 AM To: John Floyd; Todd Prager Cc: Ron Bunch; Dick Bewersdorff; Patty Lunsford Subject: FW: Tigard Community Development Director Interpretation of Section18..790.030 of TMC, Tree Plan Requirements Would the two of you please collaborate on a draft Memo to Council that provides the rationale for the Director's interpretation. See if you can get a draft circulated by the 20th if possible. It will then be attached to a Council Agenda Summary for a future Council meeting to be scheduled for April 22th at the earliest. Patty - what are the hearing notice requirements for the Type III Council Appeal hearing? Also, when I get the appeal, we will want to share it with the Tree Board and the Planning Commission. Original Message From: aland @roundstoneproperties.com [mailto:aland @roundstoneproperties.com] Sent: Wednesday, March 12, 2008 4:58 PM To: Tom Coffee; Todd Prager Cc: Phil Grillo; John Floyd; Dick Bewersdorff; Craig Prosser; Ernie Platt; Jim McCauley Subject: Re: Tigard Community Development Director Interpretation of Section18.790.O30 of TMC, Tree Plan Requirements • Thanks, Tom. We will have the appeal filed by Friday. Best regards, Alan DeHarpport Alan DeHarpport Round Stone Development Original Message From: Tom Coffee <tomc@tigard-or.gov> Date: Wed, 12 Mar 2008 14:45:58 To: 'Alan DeHarpport' <aland Oroundstoneproperties.com>, Todd Prager<todd@tigard-or.gov> Cc:Phil Grillo <grillo(amillernash.com>, John Floyd <JohnflOtigard-or.gov>,Dick Bewersdorff <Dick(a}tigard-or.gov>, Craig Prosser <CRAIG(0tigard-or.gov> Subject: RE: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements 1 • 41/0 Alan - in reviewing the Code for an appeal process, it indicates that an appeal can be made by the "applicant" to the City Council provided it is made within 14 days of when notice of the interpretation was mailed. I believe that today is the 14th day from the day Todd mailed the interpretation to interested parties. Since your inquiry was made yesterday and I wasn't able to respond until today, I will consider your inquiry in this case as an intent to appeal and will process an appeal of my interpretation to the Council if you and/or other party(ies) file an appeal by 5:00 pm, Friday, March 14th, 2008. If you have any other questions regarding this matter, please contact me or Dick Bewersdorff. Tom Coffee From: Alan DeHarpport [mailto:aland @roundstoneproperties.com] Sent: Tuesday, March 11, 2008 4:36 PM To: Todd Prager; Tom Coffee Cc: Phil Grillo Subject: RE: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements Hi Tom, Can this Director's Interpretation be appealed? Alan Original Message From: Todd Prager [mailto:todd@tigard-or.gov] Sent: Wednesday, February 27, 2008 10:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; waltknapp @comcast.net; 'Morgan Holen' ; 'banjoist @gwest.net'; 'kayk@tclu.com' ; 'Barry Sandhorst' ; 'Jim McCauley' ; 'Ray Myer'; 'Craig Brown' ; 'Kelly Ritz' ; 'Tom Weber'; 'Jim Standring' ; 'Ken Gertz'; 'Bill McMonagle'; 'Ernie Platt' ; 'Kurt Dalbey' ; 'John Frewing'; 'Rasmussen, William' ; 'David DeHarpport' ; 'Jay Harris' ; 'Steve Roper' ; 'Alan DeHarpport'; Sue Beilke; Ken Eagon; John Floyd; 'jeffc @srdllc.com' Subject: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements F.Y.I. the Community Development Director issued the attached Director's Interpretation on 2/26/08 pertaining to Section 18.790.030 Tree Plan Requirements. Land use applicant's will be provided a copy of the detailed Tree Plan Requirements in their pre-application conference packets, and the pre-application conference notes have been updated to reflect reference to them as well. Feel free to forward this information to anyone who may be interested. Do not hesitate to call or email me if you have any questions. Todd Prager City Arborist City of Tigard 503 718-2700 2 • • Todd Prager From: Todd Prager Sent: Thursday, March 13, 2008 2:09 PM To: Patty Lunsford Subject: Email addresses for Director's Interpretation List hacPspiritone.com terry@teragan.com randy@aks-eng.com waltknapp @comcast.net morgan holen @pbsenv.com banjoist @qwest.net kavk @tclu.com w.cand @verizon.net jimmc @hbapdx.org info @tclu.com CBrown @legendhomes.com kritz @donmorissettehomes.com torn @terra-weber.com Lwestland @aol.com ken @gertzco.com bill @h-mc.com Erniep @hbapdx.org kdalbev @beaconhomesnw.com ifrewing @teleport.com william.rasmussen @millernash.com fourdconst @msn.com iav @h-mc.com stever @srdllc.com aland @roundstoneproperties.com sbeilke@europa.com ken @eagoncapital.com ieffc@srdllc.com tonvtree @easystreet.com global 1 @hotmail.com sizemore dennis @msn.com David.Walsh @spnewsprint.com clemos@verizon.net RobrtC @aol.com Janet.Gillis@jblk.com 1 • Todd Prager From: Patty Lunsford Sent: Thursday, March 13, 2008 11:45 AM To: Todd Prager Subject: FW: Tigard Community Development Director Interpretation of Section18.790.030 of TMC, Tree Plan Requirements Hi Todd, Will you please send me everyones email addresses that Tom indicates below at your earliest convenience? Some of them don't have the email addresses on this email. Thanks! Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard - Current Planning >>> Original Message >>> From: Tom Coffee >>> Sent: Thursday, March 13, 2008 11:10 AM >>> To: Patty Lunsford >>> Cc: Todd Prager; John Floyd; Dick Bewersdorff >>> Subject: RE: Tigard Community Development Director Interpretation of >>> Section18.790.030 of TMC, Tree Plan Requirements >>> >>> Thanks Patty - Please put this one on your claendar for notice of a >>> Council Hearing on April 22nd and mailed notice to the appellants >>> and the list of people that Todd sent the interpretation to >>> initially >>> >>> Original Message >>> From: Patty Lunsford >>> Sent: Thursday, March 13, 2008 9:25 AM >>> To: Tom Coffee >>> Subject: RE: Tigard Community Development Director Interpretation of >>> Section18.790.030 of TMC, Tree Plan Requirements >>> >>> - At least 20 days prior to the hearing date, notice is sent by mail to: >>> - Applicant/Appellant; >>> - Any other Party who has filed a notice of appeal; >>> - Any other person who has requested notice. >>> - At least 10 business days prior to the hearing, ad is published in the >>> newspaper. >>> - At least 7 days prior to hearing, staff report must be made available. >>> >>> Patty Lunsford (503.718.2438) >>> Administrative Assistant >>> City of Tigard - Current Planning >>> >>> >>> Original Message >>> >>> From: Tom Coffee >>> >>> Sent: Thursday, March 13, 2008 8:54 AM >>> >>> To: John Floyd; Todd Prager >>> >» cc: Ron Bunch; Dick Bewersdorff; Patty Lunsford • >>> >>> Subject: FW: Tigard Community Development Director >>> >>> Interpretation of Section18.790.030 of TMC, Tree Plan >>> >>> Requirements >>> >>> >>> >>> Would the two of you please collaborate on a draft Memo to >>> >>> Council that provides the rationale for the Director's >>> >>> interpretation. See if you can get a >>> draft >>> >>> circulated by the 20th if possible. It will then be attached to >>> >>> a Council >>> Agenda >>> >>> Summary for a future Council meeting to be scheduled for April >>> >>> 22th at the earliest. >>> >>> >>> >>> Patty - what are the hearing notice requirements for the Type >>> >>> III Council >>> Appeal >>> >>> hearing? >>> >>> >>> >>> Also, when I get the appeal, we will want to share it with the >>> >>> Tree Board and >>> the >>> >>> Planning Commission. >>> >>> >>> >>> Original Message >>> >>> From: aland @roundstoneproperties.com >>> >>> [mailto:aland @roundstoneproperties.com] >>> >>> Sent: Wednesday, March 12, 2008 4:58 PM >>> >>> To: Tom Coffee; Todd Prager >>> >>> Cc: Phil Grillo; John Floyd; Dick Bewersdorff; Craig Prosser; >>> >>> Ernie Platt; >>> Jim >>> >>> McCauley >>> >>> Subject: Re: Tigard Community Development Director >>> >>> Interpretation of Section18.790.030 of TMC, Tree Plan >>> >>> Requirements >>> >>> >>> >>> Thanks, Tom. We will have the appeal filed by Friday. >>> >>> >>> >>> Best regards, >>> >>> >>> >>> >>> >>> Alan DeHarpport >>> >>> Alan DeHarpport >>> >>> Round Stone Development >>> >>> >>> >>> Original Message >>> >>> From: Tom Coffee <tomc@tigard-or.gov> >>> >>> >>> >>> Date: Wed, 12 Mar 2008 14:45:58 >>> >>> To: 'Alan DeHarpport' <aland @roundstoneproperties.com>, Todd >>> >>> Prager<todd@tigard-or.gov> Cc:Phil Grillo >>> >>> <grillo @millernash.com>, John Floyd <Johnfl@tigard- >>> or.gov>,Dick >>> >>> Bewersdorff <Dick@tigard-or.gov>, Craig Prosser >>> >>> <CRAIG@tigard-or.gov> 2 >5> >>> Subject: RE: Tigard Communit Development Director • Subject: Y >>> >>> Interpretation of >>> Section >>> >>> 18.790.030 of TMC, Tree Plan Requirements >>> >>> >>> >>> >>> >>> Alan - in reviewing the Code for an appeal process, it indicates >>> >>> that an >>> appeal >>> >>> can be made by the "applicant" to the City Council provided it >>> >>> is made >>> within 14 >>> >>> days of when notice of the interpretation was mailed. I believe >>> >>> that today is >>> the >>> >>> 14th day from the day Todd mailed the interpretation to interested parties. >>> Since >>> >>> your inquiry was made yesterday and I wasn't able to respond >>> >>> until today, I >>> will >>> >>> consider your inquiry in this case as an intent to appeal and >>> >>> will process an appeal of my interpretation to the Council if >>> >>> you and/or other party(ies) file >>> an >>> >>> appeal by 5:00 pm, Friday, March 14th, 2008. >>> >>> >>> >>> If you have any other questions regarding this matter, please >>> >>> contact me or >>> Dick >>> >>> Bewersdorff. >>> >>> >>> >>> Tom Coffee >>> >>> >>> >>> >>> >>> >>> >>> From: Alan DeHarpport [mailto:aland @roundstoneproperties.com] >>> >>> Sent: Tuesday, March 11, 2008 4:36 PM >>> >>> To: Todd Prager; Tom Coffee >>> >>> Cc: Phil Grillo >>> >>> Subject: RE: Tigard Community Development Director >>> >>> Interpretation of >>> Section >>> >>> 18.790.030 of TMC, Tree Plan Requirements >>> >>> >>> >>> >>> >>> Hi Tom, >>> >>> >>> >>> >>> >>> >>> >>> Can this Director's Interpretation be appealed? >>> >>> >>> >>> >>> >>> >>> >>> Alan >>> >>> Original Message >>> >>> From: Todd Prager [mailto:todd@tigard-or.gov] >>> >>> Sent: Wednesday, February 27, 2008 10:21 AM 3 >S> >>> To: 'hac @spiritone•' ; 'terry@teragan.com' ; >>> >>> 'randy @aks-eng.com'; waltknapp @comcast.net; 'Morgan Holen'; >>> >>> 'banjoist @qwest.net' ; 'kayk@tclu.com' ; 'Barry Sandhorst' ; 'Jim >>> >>> McCauley' ; 'Ray Myer'; 'Craig >>> Brown'; >>> >>> 'Kelly Ritz' ; 'Tom Weber'; 'Jim Standring' ; 'Ken Gertz' ; 'Bill >>> >>> McMonagle'; >>> 'Ernie >>> >>> Platt' ; 'Kurt Dalbey' ; 'John Frewing'; 'Rasmussen, William' ; >>> >>> 'David >>> DeHarpport' ; >>> >>> 'Jay Harris'; 'Steve Roper' ; 'Alan DeHarpport' ; Sue Beilke; Ken >>> >>> Eagon; John Floyd; 'jeffc @srdllc.com' >>> >>> Subject: Tigard Community Development Director Interpretation >>> >>> of Section 18.790.030 of TMC, Tree Plan Requirements F.Y.I. the >>> >>> Community Development Director issued the attached Director's >>> >>> Interpretation on 2/26/08 pertaining to Section 18.790.030 Tree >>> >>> Plan Requirements. Land use applicant's will be provided a copy >>> >>> of the detailed >>> Tree >>> >>> Plan Requirements in their pre-application conference packets, >>> >>> and the pre- application conference notes have been updated to >>> >>> reflect reference to >>> them as >>> >>> well. Feel free to forward this information to anyone who may be interested. >>> >>> >>> >>> Do not hesitate to call or email me if you have any questions. >>> >>> >>> >>> Todd Prager >>> >>> City Arborist >>> >>> City of Tigard >>> >>> 503 718-2700 4 r • • • Todd Prager From: aland @roundstoneproperties.com Sent: Wednesday, March 12, 2008 4:58 PM To: Tom Coffee; Todd Prager Cc: Phil Grillo; John Floyd; Dick Bewersdorff; Craig Prosser; Ernie Platt; Jim McCauley Subject: Re: Tigard Community Development Director Interpretation of Section18.790.030 of TMC, Tree Plan Requirements Thanks, Tom. We will have the appeal filed by Friday. Best regards, Alan DeHarpport Alan DeHarpport Round Stone Development Original Message From: Tom Coffee <tomc@tigard-or.gov> Date: Wed, 12 Mar 2008 14:45:58 To: 'Alan DeHarpport' <aland(a)roundstoneproperties.com>, Todd Prager<todd(0tigard-or.gov> Cc:Phil Grillo <grillo(almillernash.com>, John Floyd <Johnfl(itigard-or.gov>,Dick Bewersdorff <Dick(a}tigard-or.gov>, Craig Prosser <CRAIG(0tigard-or.gov> Subject: RE: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements Alan - in reviewing the Code for an appeal process, it indicates that an appeal can be made by the "applicant" to the City Council provided it is made within 14 days of when notice of the interpretation was mailed. I believe that today is the 14th day from the day Todd mailed the interpretation to interested parties. Since your inquiry was made yesterday and I wasn't able to respond until today, I will consider your inquiry in this case as an intent to appeal and will process an appeal of my interpretation to the Council if you and/or other party(ies) file an appeal by 5:00 pm, Friday, March 14th, 2008. If you have any other questions regarding this matter, please contact me or Dick Bewersdorff. Tom Coffee From: Alan DeHarpport [mailto:aland @roundstoneproperties.cor] Sent: Tuesday, March 11, 2008 4:36 PM To: Todd Prager; Tom Coffee Cc: Phil Grillo Subject: RE: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements Hi Tom, Can this Director's Interpretation be appealed? 1 . • • Alan Original Message From: Todd Prager [mailto:todd@tigard-or.gov] Sent: Wednesday, February 27, 2008 10:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; waltknapp @comcast.net; 'Morgan Holen'; 'banjoist@qwest.net' ; 'kayk@tclu.com' ; 'Barry Sandhorst' ; 'Jim McCauley' ; 'Ray Myer'; 'Craig Brown'; 'Kelly Ritz'; 'Tom Weber' ; 'Jim Standring'; 'Ken Gertz' ; 'Bill McMonagle'; 'Ernie Platt'; 'Kurt Dalbey'; 'John Frewing' ; 'Rasmussen, William' ; 'David DeHarpport' ; 'Jay Harris'; 'Steve Roper' ; 'Alan DeHarpport' ; Sue Beilke; Ken Eagon; John Floyd; 'jeffc @srdllc.com' Subject: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements F.Y.I. the Community Development Director issued the attached Director's Interpretation on 2/26/08 pertaining to Section 18.790.030 Tree Plan Requirements. Land use applicant's will be provided a copy of the detailed Tree Plan Requirements in their pre-application conference packets, and the pre-application conference notes have been updated to reflect reference to them as well. Feel free to forward this information to anyone who may be interested. Do not hesitate to call or email me if you have any questions. Todd Prager City Arborist City of Tigard 503 718-2700 2 • Todd Prager From: Tom Coffee Sent: Wednesday, March 12, 2008 2:46 PM To: 'Alan DeHarpport'; Todd Prager Cc: Phil Grillo; John Floyd; Dick Bewersdorff; Craig Prosser Subject: RE: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements Alan-in reviewing the Code for an appeal process, it indicates that an appeal can be made by the "applicant" to the City Council provided it is made within 14 days of when notice of the interpretation was mailed. I believe that today is the 14th day from the day Todd mailed the interpretation to interested parties.Since your inquiry was made yesterday and I wasn't able to respond until today, I will consider your inquiry in this case as an intent to appeal and will process an appeal of my interpretation to the Council if you and/or other party(ies)file an appeal by 5:00 pm, Friday, March 14th, 2008. If you have any other questions regarding this matter, please contact me or Dick Bewersdorff. Tom Coffee From: Alan DeHarpport [mailto:aland @roundstoneproperties.com] Sent: Tuesday, March 11, 2008 4:36 PM To: Todd Prager; Tom Coffee Cc: Phil Grillo Subject: RE: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements Hi Tom, Can this Director's Interpretation be appealed? Alan Original Message From: Todd Prager [mailto:todd @tigard-or.gov] Sent: Wednesday, February 27, 2008 10:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; waltknapp @comcast.net; 'Morgan Holen'; 'banjoist @gwest.net'; 'kayk @tclu.com'; 'Barry Sandhorst; 'Jim McCauley'; 'Ray Myer; 'Craig Brown'; 'Kelly Ritz'; Tom Weber; 'Jim Standring'; 'Ken Gertz'; 'Bill McMonagle'; 'Ernie Platt'; 'Kurt Dalbey'; 'John Frewing'; 'Rasmussen, William'; 'David DeHarpport'; 'Jay Harris'; 'Steve Roper; 'Alan DeHarppor; Sue Beilke; Ken Eagon; John Floyd; 'jeffc @srdlic.com' Subject: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements F.Y.I.the Community Development Director issued the attached Director's Interpretation on 2/26/08 pertaining to Section 18.790.030 Tree Plan Requirements. Land use applicant's will be provided a copy of the detailed Tree Plan Requirements in their pre-application conference packets, and the pre-application conference notes have been updated to reflect reference to them as well. Feel free to forward this information to anyone who may be interested. Do not hesitate to call or email me if you have any questions. Todd Prager City Arborist City of Tigard 1 .+ • Todd Prager From: Todd Prager Sent: Wednesday, March 12, 2008 2:09 PM To: Tom Coffee Cc: John Floyd Subject: RE: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements I sent the email message out to the development community on 2/27/08. Therefore,today would be the 14th day. In my opinion, if it does not get appealed now, it will probably get appealed later when we actually apply it to a development application (i.e. tell someone they need to reduce their number of lots or parking spaces to preserve more trees). It may be better to get this resolved sooner rather than later. From: Tom Coffee Sent: Wednesday, March 12, 2008 1:57 PM To: Todd Prager Cc: John Floyd Subject: FW: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements Todd - How would the 14 day requirement apply in this situation-when did we "mail"the interpretation. My inclination is to forward the "appeal" to Council regardless but I am curious if it would be considered a "timely" appeal. From: Dick Bewersdorff Sent: Tuesday, March 11, 2008 5:06 PM To: Tom Coffee Cc: Todd Prager; John Floyd; Gary Pagenstecher; Emily Eng; Cheryl Caines Subject: RE: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements 18.340 says anyone who received notice of an interpretation may appeal within 14 days after the interpretation was mailed to an applicant. The appeal is initiated by fililng pursuant to Section 18.390.040.G.2. Council hears all appeals of a Director's interpretation. From: Tom Coffee Sent: Tuesday, March 11, 2008 3:50 PM To: Dick Bewersdorff Cc: Todd Prager; John Floyd Subject: FW: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements What's the answer From: Alan DeHarpport [mailto:aland @roundstoneproperties.com] Sent: Tuesday, March 11, 2008 4:36 PM To: Todd Prager; Tom Coffee Cc: Phil Grillo Subject: RE: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements Hi Tom, Can this Director's Interpretation be appealed? 1 • Alan Original Message From: Todd Prager [mailto:todd @tigard-or.gov] Sent: Wednesday, February 27, 2008 10:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; waltknapp @comcast.net; 'Morgan Holen'; 'banjoist @gwest.net; 'kayk @tclu.com'; 'Barry Sandhorst; 'Jim McCauley'; 'Ray Myer; 'Craig Brown'; 'Kelly Ritz'; Tom Weber; 'Jim Standring'; 'Ken Gertz'; 'Bill McMonagle'; 'Ernie Platt'; 'Kurt Dalbey'; 'John Frewing'; 'Rasmussen, William'; 'David DeHarppot; 'Jay Harris'; 'Steve Roper; 'Alan DeHarpport'; Sue Beilke; Ken Eagon; John Floyd; 'jeffc @srdllc.com' Subject: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements F.Y.I.the Community Development Director issued the attached Director's Interpretation on 2/26/08 pertaining to Section 18.790.030 Tree Plan Requirements. Land use applicant's will be provided a copy of the detailed Tree Plan Requirements in their pre-application conference packets, and the pre-application conference notes have been updated to reflect reference to them as well. Feel free to forward this information to anyone who may be interested. Do not hesitate to call or email me if you have any questions. Todd Prager City Arborist City of Tigard 503 718-2700 2 • • Todd Prager From: Tom Coffee Sent: Wednesday, March 12, 2008 1:57 PM To: Todd Prager Cc: John Floyd Subject: FW: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements Todd-How would the 14 day requirement apply in this situation -when did we "mail"the interpretation. My inclination is to forward the "appeal" to Council regardless but I am curious if it would be considered a "timely" appeal. From: Dick Bewersdorff Sent: Tuesday, March 11, 2008 5:06 PM To: Tom Coffee Cc: Todd Prager; John Floyd; Gary Pagenstecher; Emily Eng; Cheryl Caines Subject: RE: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements 18.340 says anyone who received notice of an interpretation may appeal within 14 days after the interpretation was mailed to an applicant. The appeal is initiated by filling pursuant to Section 18.390.040.G.2. Council hears all appeals of a Director's interpretation. From:Tom Coffee Sent: Tuesday, March 11, 2008 3:50 PM To: Dick Bewersdorff Cc: Todd Prager; John Floyd Subject: FW: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements What's the answer From: Alan DeHarpport [mailto:aland @roundstoneproperties.com] Sent: Tuesday, March 11, 2008 4:36 PM To: Todd Prager; Tom Coffee Cc: Phil Grillo Subject: RE: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements Hi Tom, Can this Director's Interpretation be appealed? Alan Original Message From: Todd Prager [mailto:todd @tigard-or.gov] Sent: Wednesday, February 27, 2008 10:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; waltknapp @comcast.net; 'Morgan Holen'; 'banjoist @gwest.net; 'kayk @tclu.com'; 'Barry Sandhorst'; 'Jim McCauley'; 'Ray Myer'; 'Craig Brown'; 'Kelly Ritz'; Tom Weber; 'Jim Standring'; 'Ken Gertz'; 'Bill McMonagle'; 'Ernie Platt'; 'Kurt Dalbey'; 'John Frewing'; 'Rasmussen, William'; 'David DeHarppot; 'Jay Harris'; 'Steve Roper; 'Alan DeHarpport'; Sue Beilke; Ken Eagon; John Floyd; 'jeffc @srdllc.com' Subject: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements 1 1110 • F.Y.I.the Community Development Director issued the attached Director's Interpretation on 2/26/08 pertaining to Section 18.790.030 Tree Plan Requirements. Land use applicant's will be provided a copy of the detailed Tree Plan Requirements in their pre-application conference packets, and the pre-application conference notes have been updated to reflect reference to them as well. Feel free to forward this information to anyone who may be interested. Do not hesitate to call or email me if you have any questions. Todd Prager City Arborist City of Tigard 503 718-2700 2 • • • • r Todd Prager From: Todd Prager Sent: Wednesday, March 12, 2008 9:41 AM To: 'Jeff Caines' Subject: RE: Tree Director's Decision In your narrative, under 18.790.030.A,you could write something to the effect of: As required, a tree plan has been prepared by ,a certified arborist. We have worked in conjunction with the project arborist to create a development plan that protects the maximum amount of existing,viable trees. The tree plan addresses all of the questions listed in the Director's Interpretation from 2/26/08 in order to demonstrate our preference for tree protection over removal wherever possible. Hope this helps. Thanks, Todd From: Jeff Caines [mailto:jeffc @srdllc.com] Sent: Wednesday, March 12, 2008 9:01 AM To: Todd Prager Subject: RE: Tree Director's Decision do I have to write anything or just submit the tree plan? From: Todd Prager [mailto:todd @tigard-or.gov] Sent: Wednesday, March 12, 2008 8:53 AM To: Jeff Caines Subject: RE: Tree Director's Decision The questions in the Director's Interpretation are intended to be answered in the tree plan. The tree plan will be reviewed for compliance with Chapter 18.790.030. Part A of 18.790.030 (Tree Plan Required) says that "Protection is preferred over removal wherever possible". The Director's Interpretation was intended to clarify how the City will evaluate that portion of the tree plan requirement. Does this answer you question? Let me know if you need any further clarification. Thanks, Todd From: Jeff Caines [mailto:jeffc @srdllc.com] Sent: Wednesday, March 12, 2008 8:31 AM - To: Todd Prager Subject: Tree Director's Decision I looked at the Director's Decision regarding trees. So my questions is what approval criteria in Chapter 18.790 should this be addressed? 18.790.030 talk about submitting a tree plan not approval criteria. Any thoughts? 1 • - • Jeff Jeff Caines,AICP Land Use Planner SR Design LLC 8196 SW Hall Blvd.Suite 232 Beaverton,OR 97008 503-469-1213-Phone 503-469-8553-Fax 2 • Todd Prager From: Dick Bewersdorff Sent: Tuesday, March 11, 2008 5:06 PM To: Tom Coffee Cc: Todd Prager; John Floyd; Gary Pagenstecher; Emily Eng; Cheryl Caines Subject: RE: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements 18.340 says anyone who received notice of an interpretation may appeal within 14 days after the interpretation was mailed to an applicant. The appeal is initiated by fililng pursuant to Section 18.390.040.G.2. Council hears all appeals of a Director's interpretation. From: Tom Coffee Sent: Tuesday, March 11, 2008 3:50 PM To: Dick Bewersdorff Cc: Todd Prager; John Floyd Subject: FW: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements What's the answer From: Alan DeHarpport [mailto:aland @roundstoneproperties.com] Sent: Tuesday, March 11, 2008 4:36 PM To: Todd Prager; Tom Coffee Cc: Phil Grillo Subject: RE: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements Hi Tom, Can this Director's Interpretation be appealed? Alan Original Message From: Todd Prager [mailto:todd @tigard-or.gov] Sent: Wednesday, February 27, 2008 10:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; waltknapp @comcast.net; 'Morgan Holen'; 'banjoist @gwest.net; 'kayk @tclu.com'; 'Barry Sandhorst'; 'Jim McCauley'; 'Ray Myer'; 'Craig Brown'; 'Kelly Ritz'; Tom Weber'; 'Jim Standring'; 'Ken Gertz'; 'Bill McMonagle'; 'Ernie Platt'; 'Kurt Dalbey'; 'John Frewing'; 'Rasmussen, William'; 'David DeHarppot; 'Jay Harris'; 'Steve Roper'; 'Alan DeHarpport'; Sue Beilke; Ken Eagon; John Floyd; 'jeffc @srdllc.com' Subject: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC,Tree Plan Requirements F.Y.I.the Community Development Director issued the attached Director's Interpretation on 2/26/08 pertaining to Section 18.790.030 Tree Plan Requirements. Land use applicant's will be provided a copy of the detailed Tree Plan Requirements in their pre-application conference packets, and the pre-application conference notes have been updated to reflect reference to them as well. Feel free to forward this information to anyone who may be interested. Do not hesitate to call or email me if you have any questions. Todd Prager 1 • • Todd Prager From: Todd Prager Sent: Tuesday, March 11, 2008 3:37 PM To: John Floyd; Ron Bunch Subject: FW: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements FYI From: Alan DeHarpport [mailto:aland @roundstoneproperties.com] Sent: Tuesday, March 11, 2008 4:36 PM To: Todd Prager; Tom Coffee Cc: Phil Grillo Subject: RE: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements Hi Tom, Can this Director's Interpretation be appealed? Alan Original Message From: Todd Prager [mailto:todd @tigard-or.gov] Sent: Wednesday, February 27, 2008 10:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; waltknapp @comcast.net; 'Morgan Holen'; 'banjoist @gwest.net; 'kayk @tclu.com'; 'Barry Sandhorst'; 'Jim McCauley'; 'Ray Myer'; 'Craig Brown'; 'Kelly Ritz'; 'Tom Weber'; 'Jim Standring'; 'Ken Gertz'; 'Bill McMonagle'; 'Ernie Platt; 'Kurt Dalbey'; 'John Frewing'; 'Rasmussen, William'; 'David DeHarpport'; 'Jay Harris'; 'Steve Roper'; 'Alan DeHarppot; Sue Beilke; Ken Eagon; John Floyd; 'jeffc @srdllc.com' Subject: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements F.Y.I.the Community Development Director issued the attached Director's Interpretation on 2/26/08 pertaining to Section 18.790.030 Tree Plan Requirements. Land use applicant's will be provided a copy of the detailed Tree Plan Requirements in their pre-application conference packets, and the pre-application conference notes have been updated to reflect reference to them as well. Feel free to forward this information to anyone who may be interested. Do not hesitate to call or email me if you have any questions. Todd Prager City Arborist City of Tigard 503 718-2700 1 • Todd Prager From: Tom Coffee Sent: Wednesday, March 05, 2008 8:43 AM To: Todd Prager Subject: FW: Tigard Community Development Director Interpretation of Section 18.790.030 and Funds Attachments: Director's Interpretation_Tree Plan Requirements.pdf FYI Original Message From: Ken Gertz [mailto:Ken@Gertzco.com] Sent: Tuesday, March 04, 2008 5:58 PM To: Alan DeHarpport; John Floyd; Tom Coffee Cc: Ernie Platt; Bill Rasmussen; Phil Grillo; Ken Eagon; Jim McCauley; Kurt Dalbey; Barry Sandhorst; David DeHarpport; Craig Brown; Bill McMonagle; Dave Nielson; Kelly Ritz; Jim Standring; Tom Weber; Steve Roper Subject: Tigard Community Development Director Interpretation of Section 18.790.030 and Funds Tom and John, I see you have made a new interpretation to the tree code. Can you give me a short history of why this has come about at this time? Also, we have been asking for an accounting of the tree mitigation fund since the first of the Tree Code re-hash, but so far there has been no response. I spent some time looking at the 170 pages of Tigard's 2007 Financial statement, and found no mention of these funds. Could you please provide this information? Could you please send me the latest Tree Packet that is being worked on? Thank you Ken Gertz 1 • • Todd Prager From: Todd Prager Sent: Thursday, February 28, 2008 8:29 AM To: 'John Frewing' Cc: Tom Coffee Subject: RE: Director's Interpretation re Tree Preservation Thank you for your comments John. Currently,we require information in the project arborist report to be accurately transferred and incorporated into the site plans. For example, if the project arborist recommends fencing to be a minimum of 20'from the trunk of a tree, then I require the plans to reflect those protection measures. I also use my discretion to add additional protection measures in some cases such as requiring the use of chain link rather than orange plastic tree protection fencing. The questions contained in the Director's Interpretation will be answered by the project arborist and reviewed by the City Arborist. If either one of us finds that trees are being removed that could apparently be retained,then the project will be required to retain those trees. Staff has the discretion to require additional findings (such as requiring the developer to show building footprints) if it is unclear whether or not a particular tree can be preserved. This will be a challenge, and a shift in our approach, but we feel it is necessary so that trees are preserved wherever possible and developers/builders have the ability to more fully explain why some tree removal is unavoidable in certain situations. -Todd From: John Frewing [mailto:jfrewing @teleport.com] Sent: Wednesday, February 27, 2008 5:11 PM To: Todd Prager Cc: Tom Coffee Subject: Director's Interpretation re Tree Preservation Todd, Thanks for getting this interpretation out. It certainly clarifies some things, but(I presume you saw my comments) doesn't require anything to be submitted except for a narrative, which could be pretty brief. If this interpretation is to have effect, city staff will have to stand up and say'the narrative submitted is incomplete or wrong'and then staff will have to show how the narrative is incomplete or wrong -- not always easy. John Frewing 1 • • Todd Prager From: Todd Prager Sent: Wednesday, February 27, 2008 10:25 AM To: 'tonytree @easystreet.com'; 'global_1 @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net'; 'RobrtC @aol.com'; 'Gillis, Janet' Subject: FW: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements Attachments: Director's Interpretation_Tree Plan Requirements.pdf F.Y.I.the Community Development Director issued the attached Director's Interpretation on 2/26/08 pertaining to Section 18.790.030 Tree Plan Requirements. Land use applicant's will be provided a copy of the detailed Tree Plan Requirements in their pre-application conference packets,and the pre-application conference notes have been updated to reflect reference to them as well. Feel free to forward this information to anyone who may be interested. Do not hesitate to call or email me if you have any questions. Todd Prager City Arborist City of Tigard 503 718-2700 1 Todd Prager From: Bill McMonagle [bill @h-mc.com] Sent: Wednesday, February 27, 2008 12:28 PM To: Todd Prager Subject: RE: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements TODD, THANKS BILL MC From: Todd Prager [mailto:todd @tigard-or.gov] Sent: Wednesday, February 27, 2008 10:21 AM To: hac @spiritone.com; terry@teragan.com; randy @aks-eng.com;waltknapp @comcast.net; 'Morgan Holen'; banjoist @qwest.net; kayk @tclu.com; 'Barry Sandhorst'; 'Jim McCauley'; 'Ray Myer; 'Craig Brown'; 'Kelly Ritz'; Tom Weber; 'Jim Standring'; 'Ken Gertz'; Bill McMonagle; 'Ernie Platt'; 'Kurt Dalbey'; 'John Frewing'; 'Rasmussen, William'; 'David DeHarpport'; Jay Harris; 'Steve Roper; 'Alan DeHarpport'; Sue Beilke; Ken Eagon; John Floyd; jeffc @srdllc.com Subject: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements F.Y.I. the Community Development Director issued the attached Director's Interpretation on 2/26/08 pertaining to Section 18.790.030 Tree Plan Requirements. Land use applicant's will be provided a copy of the detailed Tree Plan Requirements in their pre-application conference packets, and the pre-application conference notes have been updated to reflect reference to them as well. Feel free to forward this information to anyone who may be interested. Do not hesitate to call or email me if you have any questions. Todd Prager City Arborist City of Tigard 503 718-2700 1 • _ . Todd Prager From: Rasmussen, William [william.rasmussen @millernash.com] Sent: Wednesday, February 27, 2008 10:27 AM To: Todd Prager Subject: RE: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements Thanks for the heads up Todd. William L. Rasmussen • MILLER NASH LLP 3400 U.S. Bancorp Tower I 1 1 1 S.W. Fifth Avenue I Portland, Oregon 97204-3699 Direct: 503-205-2308 I Office: 503-224-5858 I Fax: 503-224-0155 william.rasmussenamillernash.com www.millernash.com Confidentiality Notice: This e-mail message may contain confidential or privileged information. If you have received this message by mistake,please do not review, disclose,copy,or distribute the e-mail. Instead,please notify us immediately by replying to this message or telephoning us. Thank you. Tax Advice Notice: IRS Circular 230 requires us to advise you that,if this communication or any attachment contains any tax advice,the advice is not intended to be used,and cannot be used,for the purpose of avoiding federal tax penalties. A taxpayer may rely on professional advice to avoid federal tax penalties only if the advice is reflected in a comprehensive tax opinion that conforms to stringent requirements. Please contact us if you have any questions about Circular 230 or would like to discuss our preparation of an opinion that conforms to these IRS rules. From: Todd Prager [mailto:todd @tigard-or.gov] Sent: Wednesday, February 27, 2008 10:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; waltknapp @comcast.net; 'Morgan Holen'; 'banjoist @gwest.net; 'kayk @tclu.com'; 'Barry Sandhorst'; 'Jim McCauley'; 'Ray Myer; 'Craig Brown'; 'Kelly Ritz'; 'Tom Weber; 'Jim Standring'; 'Ken Gertz'; 'Bill McMonagle'; 'Ernie Platt'; 'Kurt Dalbey'; 'John Frewing'; Rasmussen, William; 'David DeHarpport'; 'Jay Harris'; 'Steve Roper; 'Alan DeHarpport'; Sue Beilke; Ken Eagon; John Floyd; 'jeffc @srdllc.com' Subject: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements F.Y.I.the Community Development Director issued the attached Director's Interpretation on 2/26/08 pertaining to Section 18.790.030 Tree Plan Requirements. Land use applicant's will be provided a copy of the detailed Tree Plan Requirements in their pre-application conference packets, and the pre-application conference notes have been updated to reflect reference to them as well. Feel free to forward this information to anyone who may be interested. Do not hesitate to call or email me if you have any questions. Todd Prager City Arborist City of Tigard 503 718-2700 1 •• Todd Prager From: Todd Prager Sent: Wednesday, February 27, 2008 10:21 AM To: 'hac @spiritone.com'; 'terry@teragan.com'; 'randy @aks-eng.com'; waltknapp @comcast.net; 'Morgan Holen'; 'banjoist @gwest.net; 'kayk @tclu.com'; 'Barry Sandhorst; 'Jim McCauley'; 'Ray Myer; 'Craig Brown'; 'Kelly Ritz'; 'Tom Weber; 'Jim Standring'; 'Ken Gertz'; 'Bill McMonagle'; 'Ernie Plat; 'Kurt Dalbey'; 'John Frewing'; 'Rasmussen, William'; 'David DeHarppot; 'Jay Harris'; 'Steve Roper; 'Alan DeHarpport; Sue Beilke; Ken Eagon; John Floyd; 'jeffc @srdllc.com' Subject: Tigard Community Development Director Interpretation of Section 18.790.030 of TMC, Tree Plan Requirements Attachments: Director's Interpretation_Tree Plan Requirements.pdf F.Y.I.the Community Development Director issued the attached Director's Interpretation on 2/26/08 pertaining to Section 18.790.030 Tree Plan Requirements. Land use applicant's will be provided a copy of the detailed Tree Plan Requirements in their pre-application conference packets, and the pre-application conference notes have been updated to reflect reference to them as well. Feel free to forward this information to anyone who may be interested. Do not hesitate to call or email me if you have any questions. Todd Prager City Arborist City of Tigard 503 718-2700 1 • . Todd Prager From: Patty Lunsford Sent: Wednesday, February 27, 2008 9:42 AM To: Webteam Cc: #Cdadmin; #CPlanning; #Capital Construction &Transportation; #Private Development Engineering; #Lplan Attachments: Director's Interpretation_Tree Plan Requirements.pdf F.Y.I. the Community Development Director issued a Director's Interpretation on 2/26/08 pertaining to Section 18.790.030 Tree Plan Requirements. Land use applicant's will be provided a copy of the detailed Tree Plan Requirements in their pre-application conference packets, and the pre-application conference notes have been updated to reflect reference to them as well. I am requesting that the webteam place a link to the attached Director's Interpretation on the Tigard Municipal Code - Title 18: Community Development Code page at http://www.tioard- or.gov/business/municipal code/title-18.asp, at 18.790 Tree Removal on the city's website. Please call or email me if you have any questions. Thanks! Patty Lunsford (503.718.2438) Administrative Assistant City of Tigard -Current Planning • Todd Prager From: Todd Prager Sent: Monday, February 25, 2008 3:49 PM To: Tom Coffee Subject: RE: Director's Interpretation Regarding Tree Preservation Will do. From: Tom Coffee Sent: Monday, February 25, 2008 3:24 PM To:Todd Prager Subject: RE: Director's Interpretation Regarding Tree Preservation Todd - please prepare a non-draft version with Logo that I can sign.Thanks From: Todd Prager Sent: Thursday, February 21, 2008 12:42 PM To: Tom Coffee Subject: Director's Interpretation Regarding Tree Preservation Hi Tom, The Tree Board,the Home Builder's Association (HBA), and others have had a chance to review and comment on the Director's Interpretation. The HBA did not raise any concerns about the interpretation. The Tree Board was also satisfied with it. One member of the Board commented that"viable" trees should be more clearly defined. In response, I added a clarification of viable trees to the interpretation, defining them as"healthy and sustainable individuals or stands". This is how viable trees were defined by San Francisco's Bureau of Urban of Forestry when I worked there. We also received a comment from John Frewing suggesting that development plans need to show building footprints. I think question 8 at the end of the interpretation opens the door to that. I attached a copy of the revised interpretation to this email for your review. If you are ok with the changes, I can produce a cleaned up version for your signature. Also, upon your approval,we will begin presenting the new tree plan requirements to applicants during pre-application conferences, so they know that their sites need to be laid out in a way that tree preservation is maximized. Feel free to let me know if you have any questions,suggestions, or edits. Thanks, Todd • • Todd Prager From: Todd Prager Sent: Monday, February 25, 2008 3:38 PM To: Patty Lunsford Subject: Director's Interpretation Attachments: Directors interpretation, tree plan requirements,Final Version, 2-08.doc Dear Patty, Could you please review the attached Director's Interpretation and make sure the formatting and presentation of this is adequate? Tom is OK with the content and ready to sign, but I wanted to run this by you before he does. Thanks, Todd 1 • Todd Prager From: Todd Prager Sent: Thursday, February 21, 2008 12:42 PM To: Tom Coffee Subject: Director's Interpretation Regarding Tree Preservation Attachments: Directors interpretation, tree plan requirements, Draft 9, 2-08.doc Hi Tom, The Tree Board,the Home Builder's Association (HBA), and others have had a chance to review and comment on the Director's Interpretation. The HBA did not raise any concerns about the interpretation. The Tree Board was also satisfied with it. One member of the Board commented that"viable" trees should be more clearly defined. In response, I added a clarification of viable trees to the interpretation, defining them as"healthy and sustainable individuals or stands". This is how viable trees were defined by San Francisco's Bureau of Urban of Forestry when I worked there. We also received a comment from John Frewing suggesting that development plans need to show building footprints. I think question 8 at the end of the interpretation opens the door to that. I attached a copy of the revised interpretation to this email for your review. If you are ok with the changes, I can produce a cleaned up version for your signature. Also, upon your approval,we will begin presenting the new tree plan requirements to applicants during pre-application conferences, so they know that their sites need to be laid out in a way that tree preservation is maximized. Feel free to let me know if you have any questions, suggestions, or edits. Thanks, Todd 1 0 - -0 ' City of Tigard Tree Board — Agenda TIGARD MEETING DATE: February 20, 2008, 6:30-8:00 p.m. MEETING LOCATION: Tigard Public Library, 2nd Floor Conference Room, 13500 SW Hall Blvd.,Tigard, OR 97223 1. Call to Order 6:30-6:35 2. Introductions and Opening Remarks 6:35-6:40 3 Approve Minutes 6:40-6:45 4. Adoption of a formal recommendation to the Tigard Planning Commission regarding"Key Findings" section of a Comprehensive Plan Amendment for the Urban Forest 6:45-7:15 5. Presentation of Draft Director's Interpretation 7:15-7:45 6. Future Agenda items, announcements and other business 7:45-7:55 7. Closing Remarks and Adjournment 7:55-8:00 TIGARD TREE BOARD AGENDA— February 20, 2007 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 1 of 1 • _ • Todd Prager From: John Floyd Sent: Tuesday, February 19, 2008 9:06 AM To: 'tonytree @easystreet.com'; 'global_1 @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos@verizon.net; 'RobrtC @aol.com'; 'Gillis, Janet' Cc: Todd Prager; 'John Frewing'; Darren Wyss Subject: FW: Tree Board Packet: Feb 20, 2008 Attachments: Glossary_revised Feb19.pdf Members of the Tree Board, Attached are two items of relevance to tomorrow night's meeting. First,John Frewing has provided comments which are provided below. Second, I have revised the Glossary(Attachment"E") by restricting it to new terminology introduced in this Comprehensive Plan Amendment. Some of the unrelated definitions in the glossary are out of date and do not reflect the latest versions adopted by Council. As a result staff wishes to avoid unnecessary confusion by focusing conversation on the relevant definitions. See you all tomorrow night. John From: John Frewing [mailto:jfrewing @teleport.com] Sent: Saturday, February 16, 2008 3:02 PM To: John Floyd Cc: Gillis, Janet; Rob Callan Subject: Re: Tree Board Packet: Feb 20, 2008 John, Thanks for sending out packet for Wednesday's Tree Board meeting. A family event has come up which makes it not possible for me to attend, but I wanted to pass on several comments for the Tree Board to consider as the subject matter goes forward. DIRECTOR'S INTERPRETATION The proposed requirement for a narrative is fine, but it mentions 'building footprints'without any code requirement that such building footprints actually be submitted to the city as part of an application. Where trees do exist on a site, the interpretation should be augmented by requiring submittal of building footprints, not just the maximum building site, ie the area defined by the required setbacks from lot lines. It is this maximum building site which is commonly submitted today, and such a maximum building site often includes trees which can be preserved by moving the actual building footprint somewhat within that maximum building site. The requirement to submit actual building footprints in order to evaluate whether trees have been preserved to the degree possible should also include the requirement to submit any other proposed impervious area, eg patios, driveways, sidewalks, decks, etc. DEFINITIONS '100 year flood plain' should stick with the physical meaning of this term. The 100 year flood plain is ANY area with a 1% chance of annual flooding, not only the FEMA certified areas. FEMA only evaluates major stream ways; there are other smaller stream ways which also include 100 year flood plains, and in Tigard, it is these smaller stream ways which have no protection at present. I am not suggesting that FEMA insurance programs apply to these smaller stream ways, but local development should restrict development in these smaller stream ways. 1 'CWS'. The description should inclu�mention of the CWS role in defining and protecting stream buffers including the P 9 9 vegetation thereon. 'Effective Impervious Area' should clarify whether a piped system with a conservatively designed detention vault results in the upstream impervious area being defined as'effective impervious area'. 'Greenspace' as written seems to ALWAYS include trail activities. I think this should be changed to say that a greenspace MAY include trail activities. Some greenspaces should not include trail activities for reasons of slope, soil stability, wildlife or plant habitat protection, etc. 'Hazardous tree' seems to allow anyone to declare a tree hazardous. I believe there should be a requirement that a licensed arborist make such determination and that such determination be submitted to City of Tigard urban forester for review and approval at least a week before such hazardous tree is altered or removed. 'Linear Park' has a parenthetical phrase associated with the term (Of adequate size to protect natural resources and accomodate intended uses)which should either be removed to the definition of'greenspace' or should be also added to the definition of'greenspace'. It is greenspaces which exist in significant part for natural resourses rather than linear parks, which may be along a railway or street anywhere. 'Parks SDC' is very limited in that it can only be applied to PAVED trails. The definition of trails correctly notes that there are differing standards for trails with different uses. Parks SDC monies should be available to any needed trail. 'Special Use Area' is a useful classification, however the definition should also include as an example an area from which public access is prohibited for reasons of slope, soil stability, wildlife and plant habitat protection, etc. 'Stream Corridor' should note the standard width specification of at least 50 feet(except Fanno Creek)which is required by CWS> 'Urban Forest' should also include 'associated vegetation' and some clarification of this term should be attempted. Please distribute these comments before the Wednesday Tree Board meeting, so all members can see them and discuss them at the meeting. Thanks very much, John Frewing 2 • Todd Prager From: John Floyd Sent: Friday, February 15, 2008 1:38 PM To: 'tonytree @easystreet.com'; 'global_1 @hotmail.com'; 'sizemore_dennis @msn.com'; 'David.Walsh @spnewsprint.com'; 'clemos @verizon.net'; 'RobrtC @aol.com'; 'Gillis, Janet' Cc: Todd Prager Subject: Tree Board Packet: Feb 20, 2008 Attachments: John Floyd.vcf; Meeting Packet 2-20-08.pdf; image001.jpg Members of the Tree Board, Attached is the agenda packet for next Wednesday. There are two main items on the agena. First,the Board must grant approval to the "Key Findings" section of the Comprehensive Plan Amendment for the Urban Forest(Attachment "D"). Second, staff is requesting the Board's comments on a draft Director's Interpretation of the Tree Removal chapter of Tigard's Development Code (Attachment"F"). Please note that minutes will be forthcoming,the packet is being sent out so that you have ample time to review and comment upon the two main agenda items. I hope to see you all there. If you have questions before the meeting, please do not hesitate to contact Todd or I. Regards, John Floyd John Floyd` INI City of Tigard Associate Planner U Community Development N ' •° (503)718-2429 01110"1"■.-- ' johnfl @tigard-or.gov 13125 SW Hall Blvd. TI CARD Tigard,OR 97223 1 • Todd Prager From: John Floyd Sent: Friday, February 15, 2008 1:41 PM To: 'Bill McMonagle'; 'Alan DeHarpport'; 'sbeilke @europa.com'; 'John Frewing'; 'brian @tualatinriverkeepers.org'; 'walt.knapp @comcast.net; 'stever @srdllc.com'; 'troym @srdlic.com'; 'Jeff Caines'; 'Rasmussen, William'; 'Ken Gertz'; 'Tom Wright' Cc: Todd Prager Subject: FW: Tree Board Packet: Feb 20, 2008 Attachments: Meeting Packet 2-20-08.pdf; image001.jpg Members of the Public, Attached is the Tree Board Packet for February 20, 2008. If you have questions or comments upon its contents, please feel free to contact Todd Prager or myself. Regards, John Floyd 503-718-2429 From: John Floyd Sent: Friday, February 15, 2008 1:38 PM To: Tree Board Cc: Todd Prager Subject: Tree Board Packet: Feb 20, 2008 Members of the Tree Board, Attached is the agenda packet for next Wednesday. There are two main items on the agena. First,the Board must grant approval to the "Key Findings" section of the Comprehensive Plan Amendment for the Urban Forest(Attachment "D"). Second, staff is requesting the Board's comments on a draft Director's Interpretation of the Tree Removal chapter of Tigard's Development Code (Attachment"F"). Please note that minutes will be forthcoming,the packet is being sent out so that you have ample time to review and comment upon the two main agenda items. I hope to see you all there. If you have questions before the meeting, please do not hesitate to contact Todd or I. Regards, John Floyd John Floyd City of Tigard Assodate Planner V Community.Development IIIIII ' s (503)718-2429 l0rr . johnfl@iigard-or.gov .13125 SW Hall Blvd. T I G A R D Tigard,OR 97223 1 • • • Todd Prager From: Todd Prager Sent: Wednesday, February 13, 2008 11:09 AM To: John Floyd Subject: RE: how's this? Attachments: image001.jpg Perfect. I knew you could do it. From: John Floyd Sent: Wednesday, February 13, 2008 11:02 AM To: Todd Prager Subject: how's this? Pursuant to Tigard Municipal Code Section18.340 (Director's Interpretations),an official administrative interpretation is being issued to clarify ambiguities contained within the Tree Removal chapter of Tigard's Development Code. As stated at the February 6 meeting, this interpretation does not change the current code,only clarifies ongoing changes to administrative practices.The document is being presented to allow the Board an opportunity to comment on the draft interpretation prior to its signing and distribution by the Community Development Director. John Floyd City of Tigard Associate Planner V Community Development s c ' (503)718-2429• johnfl@tigard-or.gov 13125 SW Hall Blvd. T I G A R D Tigard,OR 97223 1 •' Todd Prager From: Todd Prager Sent: Wednesday, February 13, 2008 10:20 AM To: John Floyd Subject: RE: Director's Draft Interpretation Yes. From: John Floyd Sent: Wednesday, February 13, 2008 10:15 AM To: Todd Prager Subject: FW: Director's Draft Interpretation Is this still the latest and most current draft? From: Todd Prager Sent: Thursday, January 17, 2008 9:20 AM To: John Floyd Subject: Director's Draft Interpretation Hi John, Attached is the draft of the Director's Interpretation that Tom would like the Tree Board to comment on. Thanks, Todd • • • • Todd Prager From: Todd Prager Sent: Friday, January 18, 2008 2:48 PM To: Ron Bunch Subject: Director's Interpretation Attachments: Directors interpretation, tree plan requirements, Draft 8, 1-08.doc Hi Ron, Thanks for listening to my concerns this afternoon. Attached is the latest draft of the Director's Interpretation. It has been reviewed by staff as well as our City Attorney's office. Tom asked that the Tree Board review and comment on it prior to issuing. We expect to do that in the next few weeks. -Todd • • Todd Prager From: Todd Prager Sent: Thursday, January 17, 2008 9:20 AM To: John Floyd Subject: Director's Draft Interpretation Attachments: Directors interpretation, tree plan requirements, Draft 8, 1-08.doc Hi John, Attached is the draft of the Director's Interpretation that Tom would like the Tree Board to comment on. Thanks, Todd 1 w' • 11/ . Todd Prager From: Todd Prager Sent: Friday, December 21, 2007 1:46 PM To: 'Cindy Phillips' Subject: RE: City of Tigard's Director's Interpretation Thank you Cindy. I spoke with Tom after he spoke with you. Your review of the interpretation was very helpful. I hope you have a Merry Christmas. -Todd From: Cindy Phillips [mailto:Cindy.Phillips @jordanschrader.com] Sent: Friday, December 21, 2007 1:41 PM To: Todd Prager Cc: Jenny De Gregorio; Tim Ramis Subject: RE: City of Tigard's Director's Interpretation Todd - I discussed the Director's Interpretation with Tom Coffee earlier this morning. He will revise and get it back to me in a week or so. Original Message From: Todd Prager [mailto:todd @tigard-or.gov] Sent: Friday, December 07, 2007 11:27 AM To: Cindy Phillips Cc: Tom Coffee Subject: RE: City of Tigard's Director's Interpretation Dear Cindy, Please find the attached Director's Interpretation of Tigard's tree plan requirements. Tom Coffee,our Community Development Director,would like for you to review it and comment on the legality of implementing this policy. Per our conversation,the deadline is December 21, 2007 (two weeks from today). Please do not hesitate to contact me at 503 718-2700 if you have any questions. Sincerely, Todd Prager City Arborist From: Jenny De Gregorio [mailto:J enny.DeGregorio @jordanschrader.com] Sent: Friday, December 07, 2007 10:40 AM To: Todd Prager Cc: Cindy Phillips; Tim Ramis Subject: RE: City of Tigard's Director's Interpretation Dear Todd, Attorney Cindy Phillips will assist you with this. I will forward your email to her. If you need to speak with her, her direct line is 503-598-5587. She will need to know your deadline for her to finish her review, if you would kindly provide her with that information. Thank you, 1 • • Jenny De Gregorio Paralegal Jordan Schrader Ramis PC Attorneys at Law PO Box 230669 Portland OR 97281 Direct Line: 503-598-5535 Main Line: 503-598-7070 Fax: 503-598-7373 www jordanschrader.com Original Message From: Todd Prager [mailto:todd @tigard-or.gov] Sent: Friday, December 07, 2007 10:09 AM To: 'tim.ramis @jordanschrader.com'; 'jenny.degregorio @jordanschrader.com'; Tom Coffee Subject: City of Tigard's Director's Interpretation Did anyone in your office have a chance to review the Director's Interpretation of Tigard's tree plan requirements? If so, please contact me at your earliest convenience. Sincerely, Todd Prager, City Arborist From: Todd Prager Sent: Monday, December 03, 2007 4:53 PM To: 'tim.ramis @jordanschrader.com' Subject: City of Tigard's Director's Interpretation Dear Mr. Ramis, Tom Coffee,the City of Tigard's Community Development Director, has approved the attached Director's Interpretation of Tigard's tree plan requirements. He would like for you to review it and comment on the legality of implementing this policy in the future. If you have any questions regarding the attached interpretation, please do not hesitate to contact me at 503 718-2700. Sincerely, Todd Prager, City Arborist CONFIDENTIALITY NOTICE: Please do not read, copy, or disseminate this communication unless you are the intended addressee. This e-mail may contain confidential and/or privileged information intended only for the addressee. If you have received this in error, please notify me via return e-mail. TAX ADVICE NOTICE: IRS Circular 230 requires us to advise you that if this communication or any attachment contains any tax advice, the advice is not intended to be used, and cannot be used, for the purpose of(i) avoiding tax-related penalties or(ii) promoting, marketing, or recommending any transaction, plan, or arrangement. A 2 • ' - taxpayer may rely on profess onal advice to avoid tax-related penalties only if the advice is reflected in a comprehensive tax opinion that conforms to stringent requirements. Please contact us if you have any questions about this requirement, or would like to discuss preparation of an opinion that conforms to these IRS rules. CONFIDENTIALITY NOTICE: Please do not read, copy, or disseminate this communication unless you are the intended addressee. This e-mail may contain confidential and/or privileged information intended only for the addressee. If you have received this in error, please notify me via return e-mail. TAX ADVICE NOTICE: IRS Circular 230 requires us to advise you that if this communication or any attachment contains any tax advice, the advice is not intended to be used, and cannot be used, for the purpose of(i) avoiding tax-related penalties or(ii) promoting, marketing, or recommending any transaction, plan, or arrangement. A taxpayer may rely on professional advice to avoid tax-related penalties only if the advice is reflected in a comprehensive tax opinion that conforms to stringent requirements. Please contact us if you have any questions about this requirement, or would like to discuss preparation of an opinion that conforms to these IRS rules. 3 • • Todd Prager From: Todd Prager Sent: Thursday, December 20, 2007 10:03 AM To: Tom Coffee Subject: Director's Interpretation Attachments: Directors interpretation, tree plan requirements, Draft 3, 11-07.doc • • • Todd Prager From: Todd Prager Sent: Friday, December 07, 2007 11:27 AM To: Cindy Phillips Cc: Tom Coffee Subject: RE: City of Tigard's Director's Interpretation Attachments: Directors interpretation, tree plan requirements, Draft 3, 11-07.doc Dear Cindy, Please find the attached Director's Interpretation of Tigard's tree plan requirements. Tom Coffee, our Community Development Director,would like for you to review it and comment on the legality of implementing this policy. Per our conversation,the deadline is December 21,2007 (two weeks from today). Please do not hesitate to contact me at 503 718-2700 if you have any questions. Sincerely, Todd Prager City Arborist From: Jenny De Gregorio [mailto:Jenny.DeGregorio @jordanschrader.com] Sent: Friday, December 07, 2007 10:40 AM To: Todd Prager Cc: Cindy Phillips; Tim Ramis Subject: RE: City of Tigard's Director's Interpretation Dear Todd, Attorney Cindy Phillips will assist you with this. I will forward your email to her. If you need to speak with her, her direct line is 503-598-5587. She will need to know your deadline for her to finish her review, if you would kindly provide her with that information. Thank you, Jenny De Gregorio Paralegal Jordan Schrader Ramis PC Attorneys at Law PO Box 230669 Portland OR 97281 Direct Line: 503-598-5535 Main Line: 503-598-7070 Fax: 503-598-7373 www.jordanschrader.com Original Message From: Todd Prager [mailto:todd @tigard-or.gov] Sent: Friday, December 07, 2007 10:09 AM To: 'tim.ramis @jordanschrader.com'; 'jenny.degregorio @jordanschrader.com'; Tom Coffee Subject: City of Tigard's Director's Interpretation Did anyone in your office have a chance to review the Director's Interpretation of Tigard's tree plan requirements? If so, please contact me at your earliest convenience. 1 R ' • • Sincerely, Todd Prager,City Arborist From: Todd Prager Sent: Monday, December 03, 2007 4:53 PM To: 'tim.ramis @jordanschrader.com' Subject: City of Tigard's Director's Interpretation Dear Mr. Ramis, Tom Coffee,the City of Tigard's Community Development Director, has approved the attached Director's Interpretation of Tigard's tree plan requirements. He would like for you to review it and comment on the legality of implementing this policy in the future. If you have any questions regarding the attached interpretation, please do not hesitate to contact me at 503 718-2700. Sincerely, Todd Prager, City Arborist CONFIDENTIALITY NOTICE: Please do not read, copy, or disseminate this communication unless you are the intended addressee. This e-mail may contain confidential and/or privileged information intended only for the addressee. If you have received this in error, please notify me via return e-mail. TAX ADVICE NOTICE: IRS Circular 230 requires us to advise you that if this communication or any attachment contains any tax advice, the advice is not intended to be used, and cannot be used, for the purpose of(i) avoiding tax-related penalties or(ii) promoting, marketing, or recommending any transaction, plan, or arrangement. A taxpayer may rely on professional advice to avoid tax-related penalties only if the advice is reflected in a comprehensive tax opinion that conforms to stringent requirements. Please contact us if you have any questions about this requirement, or would like to discuss preparation of an opinion that conforms to these IRS rules. 2 • • • Todd Prager From: Todd Prager Sent: Friday, December 07, 2007 10:09 AM To: 'tim.ramis @jordanschrader.com'; 'jenny.degregorio @jordanschrader.com'; Tom Coffee Subject: City of Tigard's Director's Interpretation Attachments: Directors interpretation, tree plan requirements, Draft 3, 11-07.doc Did anyone in your office have a chance to review the Director's Interpretation of Tigard's tree plan requirements? If so, please contact me at your earliest convenience. Sincerely, Todd Prager, City Arborist From: Todd Prager Sent: Monday, December 03, 2007 4:53 PM To: 'tim.ramis @jordanschrader.com' Subject: City of Tigard's Director's Interpretation Dear Mr. Ramis, Tom Coffee,the City of Tigard's Community Development Director, has approved the attached Director's Interpretation of Tigard's tree plan requirements. He would like for you to review it and comment on the legality of implementing this policy in the future. If you have any questions regarding the attached interpretation, please do not hesitate to contact me at 503 718-2700. Sincerely, Todd Prager, City Arborist 1 • • Todd Prager From: Todd Prager Sent: Monday, December 03, 2007 4:53 PM To: 'tim.ramis @jordanschrader.com' Subject: City of Tigard's Director's Interpretation Attachments: Directors interpretation, tree plan requirements, Draft 3, 11-07.doc Dear Mr. Ramis, Tom Coffee,the City of Tigard's Community Development Director, has approved the attached Director's Interpretation of Tigard's tree plan requirements. He would like for you to review it and comment on the legality of implementing this policy in the future. If you have any questions regarding the attached interpretation, please do not hesitate to contact me at 503 718-2700. Sincerely, Todd Prager, City Arborist • Todd Prager From: Todd Prager Sent: Friday, November 30, 2007 10:05 AM To: Tom Coffee Subject: Director's Interpretation of Tree Preservation Attachments: Directors interpretation, tree plan requirements, Draft 3, 11-07.doc Hi Tom, Please find my draft director's interpretation of tree preservation requirements. The planning staff has had a chance to review it and make comments. Dick has approved this version of it. Please let me know if you have questions or would like to see some changes. The most common request from staff is that our attorney and City Council approve of it as well. There has been some question as to the legality of requiring developers to retain trees wherever possible. I did some research and pulled some information from both Lake Oswego's and Durham's codes (cut and pasted below). It appears that both require tree preservation during development on a consistent basis. I confirmed this by speaking with Dave Odom, City Arborist of Lake Oswego, and Roland Signett, City Manager of Durham. Both said that they regularly require developers to do things like configure subdivisions and building plans to incorporate high quality trees. Mr. Odom told me that his CD director often points at certain trees on a tree inventory and requires developers to redesign around them. Mr. Signett said that they regularly require developers to move things such as driveways and structures around in order to incorporate trees. Mr. Signett told me that he has never encountered a developer or builder who has accused them of lacking clear and objective standards because of their tree policy. I mention this research in order to give us some assurance that we are not going too far out on a limb with this interpretation since other neighboring communities already have similar requirements. Lake Oswego Community Development Code Excerpt Section 55.02.080 Criteria for Issuance of Type II Tree Cutting Permits. An applicant for a Type II tree cutting permit shall demonstrate that the following criteria are satisfied. The City Manager may require an arborist's report to substantiate the criteria for a permit. 1. The tree is proposed for removal for landscaping purposes or in order to construct development approved or allowed pursuant to the Lake Oswego Code or other applicable development regulations. The City Manager may require the building footprint of the development to be staked to allow for accurate verification of the permit application; 2. Removal of the tree will not have a significant negative impact on erosion, soil stability, flow of surface waters, protection of adjacent trees, or existing windbreaks; and 3. Removal of the tree will not have a significant negative impact on the character, aesthetics, or property values of the neighborhood. The City may grant an exception to this criterion when alternatives to the tree removal have been considered and no reasonable alternative exists to allow the property to be used as permitted in the zone. In making this determination,the City may consider alternative site plans or placement of structures or alternate landscaping designs that would lessen the impact on trees, so long as the alternatives continue to comply with other provisions of the Lake Oswego Code. 4. Removal of the tree is not for the sole purpose of providing or enhancing views. 5. The City shall require the applicant to mitigate for the removal of each tree pursuant to LOC 55.02.084. Such mitigation requirements shall be a condition of approval of the permit. (Ord.No. 2097, Amended, 12/20/94) Section 55.02.094 Conditions ofTproval for Tree Cutting Permits. • 1. The City may impose conditions of approval on any tree cutting permit if the condition is reasonably related to preventing, eliminating or mitigating a negative impact or potential impact on natural features or processes or on the built environment of the neighborhood which is as created or contributed to by the approved tree removal. 2. Conditions of approval may include, but are not limited to: a. Cutting a tree or stump flush with the grade instead of grinding or fully removing a stump; b. Requiring modifications in the location, design or intensity of a development or activities on a site or to require or prohibit certain construction methods; c. Requiring vegetation not requiring a tree removal permit to remain in place or be planted. d. Requiring the removal of injurious vegetation(English Ivy) from other trees on the property City of Durham Tree Ordinance Excerpts Section 4. Criteria for Issuance of Tree Cutting Permits 1. Normal Conditions. A tree Cutting permit, as requested in the application, may be issued in part or denied in part, or it may be issued subject to compliance by the applicant with reasonable conditions to promote the purposes of this ordinance. A permit shall state the period of time for which it is valid. The burden is on the applicant to show that granting a permit will be consistent with the stated purpose of this ordinance. The following criteria shall be considered: a. The condition of the trees with respect to danger of falling, proximity to existing or proposed structures, interference with utility services or traffic safety, and hazards to life or property. b. The necessity to remove trees to construct proposed improvements or to otherwise utilize the applicant's property in an economically beneficial manner. C. The topography of the land and the effect of tree removal on erosion, soil retention, stability of earth, flow of surface water,protection of nearby trees, windbreaks and a desirable balance be tween shade and open space. d. The number of trees existing in the neighborhood, the character and property uses in the neighborhood, and the effect of tree removal on neighborhood characteristics, beauty and property values. e. The adequacy of the applicant's proposals to plant new trees as a substitute for the trees to be Cut in accord with Section 7 and Section 8 of this ordinance. f. The tree is diseased. g. The tree is dead. 2 Todd Prager From: Todd Prager Sent: Thursday, November 29, 2007 4:34 PM To: John Floyd Subject: RE: Director's Interpretation on Tree Plan Requirements I haven't heard from him about this draft, but he basically told me that is how he wanted it. We'll see if I put his thoughts into writing sufficiently. -Todd From: John Floyd Sent: Thursday, November 29, 2007 4:32 PM To: Todd Prager Subject: RE: Director's Interpretation on Tree Plan Requirements Any word on Tom's opinion of this interpretation? Probably not since he's been out,though he might be working from home which is why I'm asking. From: Todd Prager Sent: Wednesday, November 28, 2007 11:19 AM To: Todd Prager; John Floyd; Cheryl Caines; Gary Pagenstecher; Emily Eng; Christine Darnell; Ron Bunch; Markus Mead; Kristie Peerman; Shirley Treat Subject: Director's Interpretation on Tree Plan Requirements Dick has approved the draft of the director's interpretation regarding tree preservation during development. I will forward along the draft for Tom's review and approval. There has been some question as to the legality of requiring developers to retain trees wherever possible. I did some research and pulled some information from both Lake Oswego's and Durham's codes (cut and pasted below). It appears that both require tree preservation during development on a consistent basis. I confirmed this by speaking with Dave Odom, City Arborist of Lake Oswego, and Roland Signett, City Manager of Durham. Both said that they regularly require developers to do things like configure subdivisions and building plans to incorporate high quality trees. Mr. Odom told me that his CD director often points at certain trees on a tree inventory and requires developers to redesign around them. Mr. Signett said that they regularly require developers to move things such as driveways and structures around in order to incorporate trees. Mr. Signett told me that he has never encountered a developer or builder who has accused them of lacking clear and objective standards because of their tree policy. I mention this research in order to give us some assurance that we are not going too far out on a limb with this interpretation since other neighboring communities already have similar requirements. If anyone has any final comments that they think should be incorporated into the interpretation, please forward them to me ASAP. Thanks, Todd 1 • • Todd Prager From: Todd Prager Sent: Wednesday, November 28, 2007 2:57 PM To: Todd Prager; John Floyd; Cheryl Gaines; Gary Pagenstecher; Emily Eng; Christine Darnell; Ron Bunch; Markus Mead Subject: RE: Director's Interpretation on Tree Plan Requirements Here is one more excerpt from the Lake Oswego Code related to regulating tree removal during the development phase: Section 55.02.094 Conditions of Approval for Tree Cutting Permits. 1. The City may impose conditions of approval on any tree cutting permit if the condition is reasonably related to, preventing, eliminating or mitigating a negative impact or potential impact on natural features or processes or on the built environment of the neighborhood which is as created or contributed to by the approved tree removal. 2. Conditions of approval may include,but are not limited to: a. Cutting a tree or stump flush with the grade instead of grinding or fully removing a stump; b. Requiring modifications in the location, design or intensity of a development or activities on a site or to require or prohibit certain construction methods; c. Requiring vegetation not requiring a tree removal permit to remain in place or be planted. d. Requiring the removal of injurious vegetation(English Ivy)from other trees on the property From: Todd Prager Sent: Wednesday, November 28, 2007 11:19 AM To: Todd Prager; John Floyd; Cheryl Caines; Gary Pagenstecher; Emily Eng; Christine Darnell; Ron Bunch; Markus Mead; Kristie Peerman; Shirley Treat Subject: Director's Interpretation on Tree Plan Requirements Dick has approved the draft of the director's interpretation regarding tree preservation during development. I will forward along the draft for Tom's review and approval. There has been some question as to the legality of requiring developers to retain trees wherever possible. I did some research and pulled some information from both Lake Oswego's and Durham's codes (cut and pasted below). It appears that both require tree preservation during development on a consistent basis. I confirmed this by speaking with Dave Odom, City Arborist of Lake Oswego, and Roland Signett, City Manager of Durham. Both said that they regularly require developers to do things like configure subdivisions and building plans to incorporate high quality trees. Mr. Odom told me that his CD director often points at certain trees on a tree inventory and requires developers to redesign around them. Mr. Signett said that they regularly require developers to move things such as driveways and structures around in order to incorporate trees. Mr. Signett told me that he has never encountered a developer or builder who has accused them of lacking clear and objective standards because of their tree policy. I mention this research in order to give us some assurance that we are not going too far out on a limb with this interpretation since other neighboring communities already have similar requirements. If anyone has any final comments that they think should be incorporated into the interpretation, please forward them to me ASAP. i *, . • • Todd Prager From: Todd Prager Sent: Wednesday, November 28, 2007 11:19 AM To: Todd Prager; John Floyd; Cheryl Caines; Gary Pagenstecher; Emily Eng; Christine Darnell; Ron Bunch; Markus Mead; Kristie Peerman; Shirley Treat Subject: Director's Interpretation on Tree Plan Requirements Attachments: Directors interpretation, tree plan requirements, Draft 3, 11-07.doc Dick has approved the draft of the director's interpretation regarding tree preservation during development. I will forward along the draft for Tom's review and approval. There has been some question as to the legality of requiring developers to retain trees wherever possible. I did some research and pulled some information from both Lake Oswego's and Durham's codes (cut and pasted below). It appears that both require tree preservation during development on a consistent basis. I confirmed this by speaking with Dave Odom, City Arborist of Lake Oswego, and Roland Signett, City Manager of Durham. Both said that they regularly require developers to do things like configure subdivisions and building plans to incorporate high quality trees. Mr. Odom told me that his CD director often points at certain trees on a tree inventory and requires developers to redesign around them. Mr. Signett said that they regularly require developers to move things such as driveways and structures around in order to incorporate trees. Mr. Signett told me that he has never encountered a developer or builder who has accused them of lacking clear and objective standards because of their tree policy. I mention this research in order to give us some assurance that we are not going too far out on a limb with this interpretation since other neighboring communities already have similar requirements. If anyone has any final comments that they think should be incorporated into the interpretation, please forward them to me ASAP. Thanks, Todd Lake Oswego Community Development Code Excerpt Section 55.02.080 Criteria for Issuance of Type II Tree Cutting Permits. An applicant for a Type II tree cutting permit shall demonstrate that the following criteria are satisfied. The City Manager may require an arborist's report to substantiate the criteria for a permit. 1. The tree is proposed for removal for landscaping purposes or in order to construct development approved or allowed pursuant to the Lake Oswego Code or other applicable development regulations. The City Manager may require the building footprint of the development to be staked to allow for accurate verification of the permit application; 2. Removal of the tree will not have a significant negative impact on erosion, soil stability, flow of surface waters, protection of adjacent trees, or existing windbreaks; and 3. Removal of the tree will not have a significant negative impact on the character, aesthetics, or property values of the neighborhood. The City may grant an exception to this criterion when alternatives to the tree removal have been considered and no reasonable alternative exists to allow the property to be used as permitted in the zone. In making this determination,the City may_consider alternative site plans or placement of structures or alternate landscaping designs 1 • • • that would lessen the impact on trees, so long as the alternatives continue to comply with other provisions of the Lake Oswego Code. 4. Removal of the tree is not for the sole purpose of providing or enhancing views. 5. The City shall require the applicant to mitigate for the removal of each tree pursuant to LOC 55.02.084. Such mitigation requirements shall be a condition of approval of the permit. (Ord.No. 2097, Amended, 12/20/94) City of Durham Tree Ordinance Excerpts Section 4. Criteria for Issuance of Tree Cutting Permits 1. Normal Conditions. A tree Cutting permit, as requested in the application, may be issued in part or denied in part, or it may be issued subject to compliance by the applicant with reasonable conditions to promote the purposes of this ordinance. A permit shall state the period of time for which it is valid. The burden is on the applicant to show that granting a permit will be consistent with the stated purpose of this ordinance. The following criteria shall be considered: a. The condition of the trees with respect to danger of falling,proximity to existing or proposed structures, interference with utility services or traffic safety, and hazards to life or property. b. The necessity to remove trees to construct proposed improvements or to otherwise utilize the applicant's property in an economically beneficial manner. C. The topography of the land and the effect of tree removal on erosion, soil retention, stability of earth, flow of surface water,protection of nearby trees, windbreaks and a desirable balance between shade and open space. d. The number of trees existing in the neighborhood, the character and property uses in the neighborhood, and the effect of tree removal on neighborhood characteristics, beauty and property values. e. The adequacy of the applicant's proposals to plant new trees as a substitute for the trees to be Cut in accord with Section 7 and Section 8 of this ordinance. f. The tree is diseased. g. The tree is dead. • 2 Todd Prager From: Todd Prager Sent: Wednesday, November 28, 2007 10:22 AM To: Markus Mead Subject: RE: Director's Interpretation on Tree Plan Requirements Attachments: Directors interpretation, tree plan requirements, Draft 3, 11-07.doc Here is the latest draft approved by Dick. -Todd From: Markus Mead Sent: Wednesday, November 28, 2007 9:58 AM To: Todd Prager Subject: RE: Director's Interpretation on Tree Plan Requirements Todd, I didn't receive the initial document. Could you please send it to me? —Markus From: John Floyd Sent: Monday, November 26, 2007 4:37 PM To: Todd Prager; Dick Bewersdorff; Cheryl Caines; Gary Pagenstecher; Emily Eng; Christine Darnell; Ron Bunch Cc: Markus Mead Subject: RE: Director's Interpretation on Tree Plan Requirements Hi Todd, Looks good overall. One thing I'd address is the last paragraph. In particular, what does"all possible steps" look like? Should the interpreation include specific examples of measures to save trees? I don't have an answer to that, but it's the first question that popped into my head and I'm sure the public will ask the very same thing. Best to discuss it now. Thanks for the opportunity to chime in. John From: Todd Prager Sent: Monday, November 26, 2007 4:25 PM To: Dick Bewersdorff; Cheryl Caines; Gary Pagenstecher; Emily Eng; Christine Darnell; Ron Bunch; John Floyd Subject: Director's Interpretation on Tree Plan Requirements Hi All, I put together a draft interpretation of the tree plan requirement of protecting existing trees wherever possible. We want to let developers know that you can't necessarily just"cut and pay". Instead, they need to develop in such a way that trees are incorporated into the design as much as possible. He does not want to set specific criteria for how developers can demonstrate maximum preservation, because each project is unique and we want to have flexibility in our approach to various situations. 1 • When tree preservation is not occurring,we know it when we see it. We just want to begin to establish a precedent for responding appropriately to those developers who would just as soon clear a site to avoid the "hassle" of dealing with tree preservation. If you have time, please review the attached draft director's interpretation, and let me know what you think. I will incorporate your suggestions before presenting it to Tom for approval. Thanks, Todd 2 • v Todd Prager From: Todd Prager Sent: Tuesday, November 27, 2007 2:04 PM To: Dick Bewersdorff; Gary Pagenstecher Cc: John Floyd; Cheryl Caines; Emily Eng; Christine Darnell; Ron Bunch Subject: RE: Director's Interpretation on Tree Plan Requirements Attachments: Directors interpretation, tree plan requirements, Draft 3, 11-07.doc Attached is the draft interpretation with a few examples at the end of how to maximize tree retention. I am hesitant to add the alternative site plan idea because I see it as too prescriptive to tell people exactly how to demonstrate maximum tree retention. I think it should be up to the applicant to sufficiently demonstrate how they meet our requirements. Also, if they show one alternative where they retain less trees and another alternative where they retain more trees,won't we be obligated to choose the one that maximizes tree retention? I'm not sure how much I would (or should)weigh the economic hardships of retaining trees when evaluating a tree plan. From: Dick Bewersdorff Sent: Tuesday, November 27, 2007 1:32 PM To: Gary Pagenstecher; Todd Prager Cc: John Floyd; Cheryl Caines; Emily Eng; Christine Darnell; Ron Bunch Subject: RE: Director's Interpretation on Tree Plan Requirements Todd, please send out a list of examples when you get it done like alternative site plan; lot reductions; parking stall reduction; moving to another country,etc. From: Gary Pagenstecher Sent: Tuesday, November 27, 2007 10:50 AM To: Todd Prager Cc: John Floyd; Cheryl Gaines; Emily Eng; Christine Darnell; Ron Bunch; Dick Bewersdorff Subject: RE: Director's Interpretation on Tree Plan Requirements Todd, "Therefore, all land use applicants shall be required to demonstrate that the configuration of their development protects the maximum amount of existing, high quality trees." Perhaps, "demonstrations" should employ an alternatives analysis showing how trees can be retained and identifying the costs associated with the alternative proposal. This would get the applicant thinking of alternatives and require them to quantify the cost of saving the tree(s). It could be an effective tool that applies across the board, responsive to the condition of each case. Gary From: Dick Bewersdorff Sent: Monday, November 26, 2007 4:42 PM To: John Floyd; Todd Prager; Cheryl Caines; Gary Pagenstecher; Emily Eng; Christine Darnell; Ron Bunch Cc: Markus Mead Subject: RE: Director's Interpretation on Tree Plan Requirements As we discussed this with Tom we were stuck without a good set of guidelines that would be applicable to the myriad of development conditions and scenarios and as a result he suggested that it be kept simple and evaluate on a case by case 1 • basis. The lack of definition can be troubling just as more definition that doesn't contemplate all the scenarios. If any 1 one has ideas that can be applied across the board send the suggestions to Todd. From: John Floyd Sent: Monday, November 26, 2007 4:37 PM To: Todd Prager; Dick Bewersdorff; Cheryl Caines; Gary Pagenstecher; Emily Eng; Christine Darnell; Ron Bunch Cc: Markus Mead Subject: RE: Director's Interpretation on Tree Plan Requirements Hi Todd, Looks good overall. One thing I'd address is the last paragraph. In particular,what does"all possible steps" look like? Should the interpreation include specific examples of measures to save trees? I don't have an answer to that, but it's the first question that popped into my head and I'm sure the public will ask the very same thing. Best to discuss it now. Thanks for the opportunity to chime in. John From: Todd Prager Sent: Monday, November 26, 2007 4:25 PM To: Dick Bewersdorff; Cheryl Caines; Gary Pagenstecher; Emily Eng; Christine Darnell; Ron Bunch; John Floyd Subject: Director's Interpretation on Tree Plan Requirements Hi All, I put together a draft interpretation of the tree plan requirement of protecting existing trees wherever possible. We want to let developers know that you can't necessarily just"cut and pay". Instead, they need to develop in such a way that trees are incorporated into the design as much as possible. He does not want to set specific criteria for how developers can demonstrate maximum preservation, because each project is unique and we want to have flexibility in our approach to various situations. When tree preservation is not occurring,we know it when we see it. We just want to begin to establish a precedent for responding appropriately to those developers who would just as soon clear a site to avoid the "hassle" of dealing with tree preservation. If you have time, please review the attached draft director's interpretation, and let me know what you think. I will incorporate your suggestions before presenting it to Tom for approval. Thanks, Todd 2 • Todd Prager From: Dick Bewersdorff Sent: Tuesday, November 27, 2007 2:20 PM To: Todd Prager; Gary Pagenstecher Cc: John Floyd; Cheryl Gaines; Emily Eng; Christine Darnell; Ron Bunch Subject: RE: Director's Interpretation on Tree Plan Requirements The great thing about interpretations is that they can be changed or amended easily. From: Todd Prager Sent: Tuesday, November 27, 2007 2:04 PM To: Dick Bewersdorff; Gary Pagenstecher Cc: John Floyd; Cheryl Caines; Emily Eng; Christine Darnell; Ron Bunch Subject: RE: Director's Interpretation on Tree Plan Requirements Attached is the draft interpretation with a few examples at the end of how to maximize tree retention. I am hesitant to add the alternative site plan idea because I see it as too prescriptive to tell people exactly how to demonstrate maximum tree retention. I think it should be up to the applicant to sufficiently demonstrate how they meet our requirements. Also, if they show one alternative where they retain less trees and another alternative where they retain more trees, won't we be obligated to choose the one that maximizes tree retention? I'm not sure how much I would (or should)weigh the economic hardships of retaining trees when evaluating a tree plan. From: Dick Bewersdorff Sent: Tuesday, November 27, 2007 1:32 PM To: Gary Pagenstecher; Todd Prager Cc: John Floyd; Cheryl Caines; Emily Eng; Christine Darnell; Ron Bunch Subject: RE: Director's Interpretation on Tree Plan Requirements Todd, please send out a list of examples when you get it done like alternative site plan; lot reductions; parking stall reduction; moving to another country,etc. From: Gary Pagenstecher Sent: Tuesday, November 27, 2007 10:50 AM To: Todd Prager Cc: John Floyd; Cheryl Caines; Emily Eng; Christine Darnell; Ron Bunch; Dick Bewersdorff Subject: RE: Director's Interpretation on Tree Plan Requirements Todd, "Therefore, all land use applicants shall be required to demonstrate that the configuration of their development protects the maximum amount of existing, high quality trees." Perhaps, "demonstrations" should employ an alternatives analysis showing how trees can be retained and identifying the costs associated with the alternative proposal. This would get the applicant thinking of alternatives and require them to quantify the cost of saving the tree(s). It could be an effective tool that applies across the board, responsive to the condition of each case. Gary From: Dick Bewersdorff Sent: Monday, November 26, 2007 4:42 PM 1 T • 111 o: John Floyd; Todd Prager; Cheryl Caines; Gary Pagenstecher; Emily Eng; Christine Darnell; Ron Bunch Cc: Markus Mead Subject: RE: Director's Interpretation on Tree Plan Requirements As we discussed this with Tom we were stuck without a good set of guidelines that would be applicable to the myriad of development conditions and scenarios and as a result he suggested that it be kept simple and evaluate on a case by case basis. The lack of definition can be troubling just as more definition that doesn't contemplate all the scenarios. If any one has ideas that can be applied across the board send the suggestions to Todd. From: John Floyd Sent: Monday, November 26, 2007 4:37 PM To: Todd Prager; Dick Bewersdorff; Cheryl Caines; Gary Pagenstecher; Emily Eng; Christine Darnell; Ron Bunch Cc: Markus Mead Subject: RE: Director's Interpretation on Tree Plan Requirements Hi Todd, Looks good overall. One thing I'd address is the last paragraph. In particular,what does "all possible steps" look like? Should the interpreation include specific examples of measures to save trees? I don't have an answer to that, but it's the first question that popped into my head and I'm sure the public will ask the very same thing. Best to discuss it now. Thanks for the opportunity to chime in. John From: Todd Prager Sent: Monday, November 26, 2007 4:25 PM To: Dick Bewersdorff; Cheryl Caines; Gary Pagenstecher; Emily Eng; Christine Darnell; Ron Bunch; John Floyd Subject: Director's Interpretation on Tree Plan Requirements Hi All, I put together a draft interpretation of the tree plan requirement of protecting existing trees wherever possible. We want to let developers know that you can't necessarily just"cut and pay". Instead,they need to develop in such a way that trees are incorporated into the design as much as possible. He does not want to set specific criteria for how developers can demonstrate maximum preservation, because each project is unique and we want to have flexibility in our approach to various situations. When tree preservation is not occurring,we know it when we see it. We just want to begin to establish a precedent for responding appropriately to those developers who would just as soon clear a site to avoid the "hassle"of dealing with tree preservation. If you have time, please review the attached draft director's interpretation, and let me know what you think. I will incorporate your suggestions before presenting it to Tom for approval. Thanks, Todd 2 • • Todd Prager From: Dick Bewersdorff Sent: Monday, November 26, 2007 4:42 PM To: John Floyd; Todd Prager; Cheryl Caines; Gary Pagenstecher; Emily Eng; Christine Darnell; Ron Bunch Cc: Markus Mead Subject: RE: Director's Interpretation on Tree Plan Requirements As we discussed this with Tom we were stuck without a good set of guidelines that would be applicable to the myriad of development conditions and scenarios and as a result he suggested that it be kept simple and evaluate on a case by case basis. The lack of definition can be troubling just as more definition that doesn't contemplate all the scenarios. If any one has ideas that can be applied across the board send the suggestions to Todd. From: John Floyd Sent: Monday, November 26, 2007 4:37 PM To: Todd Prager; Dick Bewersdorff; Cheryl Caines; Gary Pagenstecher; Emily Eng; Christine Darnell; Ron Bunch Cc: Markus Mead Subject: RE: Director's Interpretation on Tree Plan Requirements Hi Todd, Looks good overall. One thing I'd address is the last paragraph. In particular, what does "all possible steps" look like? Should the interpreation include specific examples of measures to save trees? I don't have an answer to that, but it's the first question that popped into my head and I'm sure the public will ask the very same thing. Best to discuss it now. Thanks for the opportunity to chime in. John From: Todd Prager Sent: Monday, November 26, 2007 4:25 PM To: Dick Bewersdorff; Cheryl Caines; Gary Pagenstecher; Emily Eng; Christine Darnell; Ron Bunch; John Floyd Subject: Director's Interpretation on Tree Plan Requirements Hi All, I put together a draft interpretation of the tree plan requirement of protecting existing trees wherever possible. We want to let developers know that you can't necessarily just"cut and pay". Instead,they need to develop in such a way that trees are incorporated into the design as much as possible. He does not want to set specific criteria for how developers can demonstrate maximum preservation, because each project is unique and we want to have flexibility in our approach to various situations. When tree preservation is not occurring, we know it when we see it. We just want to begin to establish a precedent for responding appropriately to those developers who would just as soon clear a site to avoid the "hassle" of dealing with tree preservation. If you have time, please review the attached draft director's interpretation, and let me know what you think. I will incorporate your suggestions before presenting it to Tom for approval. Thanks, 1 • Todd Prager - From: Todd Prager Sent: Monday, November 26, 2007 4:25 PM To: Dick Bewersdorff; Cheryl Caines; Gary Pagenstecher; Emily Eng; Christine Darnell; Ron Bunch; John Floyd Subject: Director's Interpretation on Tree Plan Requirements Attachments: Directors interpretation, tree plan requirements, Draft 2, 11-07.doc Hi All, I put together a draft interpretation of the tree plan requirement of protecting existing trees wherever possible. We want to let developers know that you can't necessarily just "cut and pay". Instead,they need to develop in such a way that trees are incorporated into the design as much as possible. He does not want to set specific criteria for how developers can demonstrate maximum preservation, because each project is unique and we want to have flexibility in our approach to various situations. When tree preservation is not occurring,we know it when we see it. We just want to begin to establish a precedent for responding appropriately to those developers who would just as soon clear a site to avoid the "hassle" of dealing with tree preservation. If you have time, please review the attached draft director's interpretation, and let me know what you think. I will incorporate your suggestions before presenting it to Tom for approval. Thanks, Todd 1 • Todd Prager From: Todd Prager Sent: Tuesday, November 13, 2007 3:33 PM To: Christine Darnell Subject: Director's Interpretation Attachments: Directors interpretation,tree plan requirements 11-07.doc Hi Christine, Please review my director's interpretation for"protection is preferred over removal wherever possible". This is a rough draft, and it is way too wordy, but I wanted to get all of my thoughts and code provisions down. Any suggestions for organization and clarity would be helpful. Thanks, Todd Todd Prager Subject: New Development Around Existing Trees Location: CR_-_2_Permit_Center Start: Thu 11/8/2007 9:00 AM End: Thu 11/8/2007 9:30 AM Recurrence: (none) Meeting Status: Meeting organizer Required Attendees: Emily Eng; Gary Pagenstecher; Tom Coffee; Cheryl Caines; Ron Bunch; John Floyd Resources: CR_-_2_Permit_Center