Hearings Officer Packet - 08/26/1996• •
PUBLIC NOTICE:
Assistive Listening Devices are available for persons with impaired
hearing and should be scheduled for Hearings Officer meetings by
noon on the Monday prior to the meeting. Please call (503) 639-4171,
Ext. 320 (voice) or (503) 684-2772 (TDD - Telecommunications
Devices for the Deaf). Upon request, the City will also endeavor to
arrange for the following services:
? Qualified sign language interpreters for persons
with speech or hearing impairments; and
? Qualified bilingual interpreters.
Since these services must be scheduled with outside service providers, it is
important to allow as much lead time as possible. Please notify the City of
Tigard of your need(s) by 5:00 p.m. on the Wednesday preceding the
meeting date at the same phone numbers as listed above.
(OVER FOR MEETING AGENDA ITEM(S)
TIGARD HEARINGS OFFICER PAGE 1 OF 2
8/26/96 PUBLIC HEARING h:\patty\masters\agendho.mst
CITY OF TIGARD
HEARINGS OFFICER
AUGUST 26, 1996 - 7:00 P.M.
AGENDA
1. CALL TO ORDER
2. PUBLIC HEARING
City of Tigard, Oregon
2.1 ?WESTERN PCS MONOPOLE<
CONDITIONAL USE PERMIT (CUP) 96-0006NARIANCE (VAR) 96-0010
The applicant has requested Conditional Use Permit approval to a 130-foot tall
cellular communications monopole structure and associated equipment structures.
The applicant has also requested Variance approval to allow the use of a gravel
surface as an access driveway to this facility. LOCATION: 11744 SW Pacific
Highway (WCTM 1 S136CC, Tax Lots 2000 and 2100). COMPREHENSIVE PLAN
DESIGNATION: General Commercial (C-G). ZONING DESIGNATION: General
Commercial (C-G). APPLICABLE REVIEW CRITERIA: Community
Development Code Sections 18.62, 18.98, 18.100, 18.102, 18.106, 18.108,
18.130, 18.134 18.150 and 18.164.
2.2 >TRENT TERRACE SUBDIVISIONQ
SUBDIVISION (SUB) 96-0005
The applicant has requested to subdivide a 30,492 square foot parcel into seven
lots ranging in size from approximately 3,129 square feet to 3,878 square feet.
LOCATION: The site is located at the south east corner of SW Hall Boulevard
and SW Spruce Street (WCTM 1 S135AD, Tax Lot 00500). COMPREHENSIVE
PLAN DESIGNATION: County Designation R-9/Pending a City designation of
Medium Density Residential (7-12 dwelling units per acre). ZONING
DESIGNATION: County Designation R-9/Pending a City designation of R-12.
APPLICABLE REVIEW CRITERIA: Community Development Code Sections
18.54, 18.88, 18.92, 18.100, 18.102, 18.150, 18.160 and 18.164.
3. OTHER BUSINESS
4. ADJOURNMENT
TIGARD HEARING'S OFFICER PAGE 2 OF 2
8/26/96 PUBLIC HEARING h:\patty\masters\agendho.mst
CITY OF TIGARD
NOTICE OF CANCELLATION
NOTICE IS HEREBY GIVEN THAT THE HEARING'S OFFICER PUBLIC HEARING
SCHEDULED FOR MONDAY, AUGUST 26, 1996 AT 7:00 PM, HAS BEEN CANCELED
FOR CONSIDERATION OF THE FOLLOWING APPLICATION:
FILE NO: SITE DEVELOPMENT REVIEW (SDR) 96-0014
SENSITIVE LANDS REVIEW (SLR) 96-0004
FILE TITLE: LEARNING TREE DAY CARE CENTER
APPLICANT: Gary Kaufman OWNER: John Steiger
3622 Eldorado Loop S. 301 NW Murray Blvd.
Salem, OR 97302 Portland, OR 97229
REQUEST ? The applicant is requesting Site Development Review approval to allow the construction of an
approximately 6,460 square foot children's day care center. Also requested was a Sensitive
Lands Review approval to allow fill within the 100-year floodplain. THE APPLICANT HAS
REVISED THE PROPOSAL SUCH THAT THERE WILL BE NO NET FILL
WITHIN THE 100-YEAR FLOODPLAIN. THE REVISED PLAN WILL
PLACE A PORTION OF A SIDEWALK WITHIN THE 100-YEAR
FLOODPLAIN BUT ALSO PROVIDES FOR REMOVAL OF
APPROXIMATELY 40 CUBIC YARDS OF MATERIAL. GIVEN THE
CHANGE IN THE PROPOSED PLAN, THERE WILL BE NO NET RISE.IN
THE LEVEL OF THE 100-YEAR FLOODPLAIN. SINCE THERE IS LESS
THAN 50 CUBIC YARDS OF EXCAVATION IN THE FLOODPLAIN, THE
CITY DEVELOPMENT CODE REQUIRES ONLY ADMINISTRATIVE
REVIEW AND NO PUBLIC HEARING.
LOCATION: 10360 SW 87th Avenue (WCTM 1S1 35AA, Tax Lot 2000).
APPLICABLE
REVIEW Community Development Chapters 18.64, 18.84.040, 18.100, 18.102, 18.106, 18.108,
CRITERIA: 18.114, 18.116, 18.120, 18.150 and 18.164.
ZONE: C-P (Professional Commercial). The Professional Commercial zone allows public agency and
administrative services, public support facilities, professional services, financial, insurance, real
estate services, business support services, and multiple-family residential units, among others.
A NOTICE OF DECISION SHALL BE MAILED ON THURSDAY
AUGUST 29, 1996 REGARDING THE APPLICANT'S REVISED PLAN.
FOR FURTHER INFORMATION PLEASE CONTACT THE STAFF PLANNER WILLIAM D'ANDREA AT
(503) 639-4171, TIGARD CITY HALL, 13125 SW HALL BOULEVARD, TIGARD, OREGON.
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CITY OF TIGARD
PUBLIC HEARING NOTICE
NOTICE IS HEREBY GIVEN THAT THE TIGARD HEARINGS OFFICER, AT A MEETING ON MONDAY,
AUGUST 26, 1996 AT 7:00 PM, IN THE TOWN HALL OF THE TIGARD CIVIC CENTER, 13125 SW HALL
BOULEVARD, TIGARD, OREGON 97223 WILL CONSIDER THE FOLLOWING APPLICATION:
FILE NO: SITE DEVELOPMENT REVIEW (SDR) 96-0014
SENSITIVE LANDS REVIEW (SLR) 96-0004
FILE TITLE: LEARNING TREE DAY CARE CENTER
APPLICANT: Gary Kaufman OWNER: John Steiger
3622 Eldorado Loop S. 301 NW Murray Blvd.
Salem, OR 97302 Portland, OR 97229
REQUEST ? The applicant is requesting Site Development Review approval to allow the
construction of an approximately 6,460 square foot children's day care center.
Also requested is Sensitive Lands Review approval to allow fill within the 100-
year floodplain.
LOCATION: 10360 SW 87th Avenue (WCTM 1 S1 35AA, Tax Lot 2000).
APPLICABLE
REVIEW
CRITERIA: Community Development Chapters 18.64, 18.84.040, 18.100, 18.102, 18.106, 18.108,
18.114, 18.116, 18.120, 18.150 and 18.164.
ZONE: C-P (Professional Commercial). The Professional Commercial zone allows public
agency and administrative services, public support facilities, professional services,
financial, insurance, real estate services, business support services, and multiple-family
residential units, among others.
THE PUBLIC HEARING ON THIS MATTER WILL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF
CHAPTER 18.32 OF THE COMMUNITY DEVELOPMENT CODE AND RULES OF PROCEDURE ADOPTED BY THE
TIGARD CITY COUNCIL AND AVAILABLE AT CITY HALL, OR RULES OF PROCEDURE SET FORTH IN CHAPTER
18.30.
ASSISTIVE LISTENING DEVICES ARE AVAILABLE FOR PERSONS WITH IMPAIRED HEARING. THE CITY WILL
ALSO ENDEAVOR TO ARRANGE FOR QUALIFIED SIGN LANGUAGE INTERPRETERS AND QUALIFIED
BILINGUAL INTERPRETERS UPON REQUEST. PLEASE CALL (503) 639-4171, EXT. 320 (VOICE) OR
(503) 684-2772 (TDD - TELECOMMUNICATIONS DEVICES FOR THE DEAF) NO LESS THAN ONE WEEK PRIOR
TO THE HEARING TO MAKE ARRANGEMENTS.
SDR 96-0014/SLR 96-0004 LEARNING TREE DAY CARE CENTER NOTICE OF 8/26/96 HEARING'S OFFICER PUBLIC HEARING
ANYONE WISHING TO PRESENTgWITTEN TESTIMONY ON THIS P OSED ACTION MAY DO SO IN
WRITING PRIOR TO OR AT THE PLWIC HEARING. ORAL TESTIMONY MW BE PRESENTED AT THE PUBLIC
HEARING. AT THE PUBLIC HEARING, THE HEARINGS OFFICER WILL RECEIVE A STAFF REPORT
PRESENTATION FROM THE CITY PLANNER; OPEN THE PUBLIC HEARING; AND INVITE BOTH ORAL AND
WRITTEN TESTIMONY. THE HEARINGS OFFICER MAY CONTINUE THE PUBLIC HEARING TO ANOTHER
MEETING TO OBTAIN ADDITIONAL INFORMATION, OR CLOSE THE PUBLIC HEARING AND TAKE ACTION ON
THE APPLICATION. IF A PERSON SUBMITS EVIDENCE IN SUPPORT TO THE APPLICATION AFTER AUGUST 5.
1996. 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.
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 HEARINGS OFFICER WILL BE BASED UPON THESE CRITERIA AND
THESE CRITERIA ONLY. AT THE HEARING IT IS IMPORTANT THAT COMMENTS RELATING TO THE REQUEST
PERTAIN SPECIFICALLY TO THE APPLICABLE CRITERIA LISTED.
FAILURE TO RAISE AN ISSUE IN PERSON OR BY LETTER AT SOME POINT PRIOR TO THE CLOSE OF THE
HEARING ON THE REQUEST OR FAILURE TO PROVIDE SUFFICIENT SPECIFICITY TO AFFORD THE DECISION
MAKER AN OPPORTUNITY TO RESPOND TO THE ISSUE PRECLUDES AN APPEAL 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 (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 (25C) PER PAGE, OR THE CURRENT RATE CHARGED FOR
COPIES AT THE TIME OF THE REQUEST.
FOR FURTHER INFORMATION PLEASE CONTACT THE STAFF PLANNER WILLIAM D'ANDREA AT
(503) 639-4171, TIGARD CITY HALL, 13125 SW HALL BOULEVARD, TIGARD, OREGON.
sRRucE
SDR 96-0014/SLR 96-0004 LEARNING TREE DAY CARE CENTER NOTICE OF 8/26/96 HEARING'S OFFICER PUBLIC HEARING
NEW EEARING
AGENDA ITEM
•
CITY OF TIGARD
PUBLIC HEARING NOTICE
NOTICE IS HEREBY GIVEN THAT THE TIGARD HEARINGS OFFICER, AT A MEETING ON MONDAY,
AUGUST 26, 1996 AT 7:00 PM, IN THE TOWN HALL OF THE TIGARD CIVIC CENTER, 13125 SW HALL
BOULEVARD, TIGARD, OREGON 97223 WILL CONSIDER THE FOLLOWING APPLICATION:
FILE NO: CONDITIONAL USE PERMIT (CUP) 96-0006
VARIANCE (VAR) 96-0010
FILE TITLE: WESTERN PCS MONOPOLE
APPLICANT: Western PCS Corporation OWNER: Hans & Marilyn Grunbaum
7535 B NE Ambassador Place 21390 SW Edy Road
Portland, OR 97220 Sherwood, OR 97140
REQUEST: ? The applicant is requesting approval to develop a 130-foot tall cellular
communications monopole structure and an associated equipment structures. A
variance has been requested to allow the use of gravel surface for an access
driveway to this facility.
LOCATION: 11744 SW Pacific Highway (WCTM 1 S1 36CC, Tax Lot 2100).
APPLICABLE
REVIEW
CRITERIA: Community Development Code Chapters 18.62, 18.100, 18.102, 18.106, 18.108,
18.114, 18.130, and 18.164.
ZONE: General Commercial (CG). The CG zoning district permits a range of retail service uses and
utility uses, subject to conditional use permit approval.
THE PUBLIC HEARING ON THIS MATTER WILL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF
CHAPTER 18.32 OF THE COMMUNITY DEVELOPMENT CODE AND RULES OF PROCEDURE ADOPTED BY THE
TIGARD CITY COUNCIL AND AVAILABLE AT CITY HALL, OR RULES OF PROCEDURE SET FORTH IN CHAPTER
18.30.
ASSISTIVE LISTENING DEVICES ARE AVAILABLE FOR PERSONS WITH IMPAIRED HEARING. THE CITY WILL
ALSO ENDEAVOR TO ARRANGE FOR QUALIFIED SIGN LANGUAGE INTERPRETERS AND QUALIFIED
BILINGUAL INTERPRETERS UPON REQUEST. PLEASE CALL (503) 639-4171, EXT. 320 (VOICE) OR (503) 684-
2772 (TDD - TELECOMMUNICATIONS DEVICES FOR THE DEAF) NO LESS THAN ONE WEEK PRIOR TO THE
HEARING TO MAKE ARRANGEMENTS.
CUP 96-0006NAR 96-0010 WESTERN PCS MONOPOLE NOTICE OF 8/26/96 HEARING'S OFFICER PUBLIC HEARING
ANYONE WISHING TO PRESENT?ITTEN TESTIMONY ON THIS OSED ACTION MAY DO SO IN
WRITING PRIOR TO OR AT THE P IC HEARING. ORAL TESTIMONY P BE PRESENTED AT THE PUBLIC
HEARING. AT THE PUBLIC HEARING, THE HEARINGS OFFICER WILL RECEIVE A STAFF REPORT
PRESENTATION FROM THE CITY PLANNER; OPEN THE PUBLIC HEARING; AND INVITE BOTH ORAL AND
WRITTEN TESTIMONY. THE HEARINGS OFFICER MAY CONTINUE THE PUBLIC HEARING TO ANOTHER
MEETING TO OBTAIN ADDITIONAL INFORMATION, OR CLOSE THE PUBLIC HEARING AND TAKE ACTION ON
THE APPLICATION. IF A PERSON SUBMITS EVIDENCE IN SUPPORT TO THE APPLICATION AFTER AUGUST 6
1996. 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.
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 HEARINGS OFFICER WILL BE BASED UPON THESE CRITERIA AND
THESE CRITERIA ONLY. AT THE HEARING IT IS IMPORTANT THAT COMMENTS RELATING TO THE REQUEST
PERTAIN SPECIFICALLY TO THE APPLICABLE CRITERIA LISTED.
FAILURE TO RAISE AN ISSUE IN PERSON OR BY LETTER AT SOME POINT PRIOR TO THE CLOSE OF THE
HEARING ON THE REQUEST OR FAILURE TO PROVIDE SUFFICIENT SPECIFICITY TO AFFORD THE DECISION
MAKER AN OPPORTUNITY TO RESPOND TO THE ISSUE PRECLUDES AN APPEAL 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 (25t) 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 (25C) PER PAGE, OR THE CURRENT RATE CHARGED FOR
COPIES AT THE TIME OF THE REQUEST.
FOR FURTHER INFORMATION PLEASE CONTACT THE STAFF PLANNER MARK ROBERTS AT
(503) 639-4171, TIGARD CITY HALL, 13125 SW HALL BOULEVARD, TIGARD, OREGON.
71
CUP 96-0006NAR 96-0010 WESTERN PCS MONOPOLE NOTICE OF 8/26/96 HEARING'S OFFICER PUBLIC HEARING
COMMUNITY NEWSPAPERS, INC. Legal
PHONE (503) 684.0360 Notice TT 8 5 9 9
P.O. BOX 370
BEAVERTON, OREGON 97075
Legal Notice Advertising
*City of Tigard • ? Tearsheet Notice
13125 SW Hall Blvd. ?a ??
•Tigard,Oregon 97223 0 ? Duplicate Affidavit
? v OF TIGARD
.Accounts Payable •
AFFIDAVIT OF PUBLICATION
STATE OF OREGON, )as.
COUNTY OF WASHINGTON, )ss.
1 Kathy Snyder
being first duly sworn, depose and say, that I am the Advertising
Director, or his principal clerk, of theT?$ard-Tt?a 1 at-i n Times
a newspaper of general circulation as defined in ORS 193.010
and 193.020; published at Tigard in the
aforesaid county and state; that the
Public Hearin_cl CUP96 0006/VARA6-0010
a printed copy of which is hereto annexed, was published in the
entire issue of said newspaper for ONE -successive and
consecutive in the following issues:
August 15,1996
AFFIDAVIT
c
51 M Cicei
The following will be considered by the Tigard Hearings Officer on Mon-
day, August 26 1996, at 7 P.M., at Tigard Civic Center - Town Hall,
13125 S.W. Hall Boulevard, Tigard, Oregon. Both public, oral and written
testimony is invited. The public hearing on this matter will be conducted
in accordance with the rules of Chapter 18.32 of the Tigard Municipal
Code, and rules and procedures of the Hearings Officer. Failure to raise an
issue in person or by letter accompanied by statements or evidence suffi-
cient to allow the hearings authority and all parties to respond precludes
an appeal, and failure to specify the criterion from the Community
Development Code or Comprehensive Plan at which a comment is
directed precludes an appeal based on that criterion. Further information
may be obtained from the Planning Division at 13125 S.W. Hall
Boulevard, Tigard, Oregon 97223, or by calling (503) 639-4171.
PUBLIC HEARING:
CONDITIONAL USE PERMIT (CUP) 96.00061
VARIANCE (VAR) 96.0010
> WESTERN PCS MONOPOLE <
The applicant is requesting approval to develop a 130-foot tall cellular
communications monopole structure and an associated equipment struc-
tures. A variance has been requested to allow the use of gravel surface for
st, an access driveway to this facility. LOCATION: 11744 S.W. Pacific
Highway (WCTM 1S136CC, Tax Lot 2100). ZONE: General Commer-
cial (CG). The CG zoning district permits a range of retail service uses
`a and utility uses, subject to conditional use permit approval. AP-
PLICABLE REVIEW CRITERIA: Community Development Code
Chapters 18.62, 18.100, 18.102, 18.106,18.108, 18.114, 18.130, 18.150
and 18.164.
TT8599 - Pubis) Aug-,;s! ' .5,'995.
My Commission Expires:
0
•
CITY OF TIGARD HEARING'S OFFICER
SIGN-IN SHEET
44 A
CRY of Tigard, OreOol
NOTICE: ALL PERSONS DESIRING TO SPEAK ON ANY ITEM MUST SIGN THEIR
NAME AND RECORD THEIR ADDRESS ON THIS SHEET ...(Please PRINT Leaibhll
AGENDA ITEM #: 1 12.1 11 DATE OF HEARING: 8/26/96 Page _L_ of
FILE NAME(S): [WESTERN PCS MONOPOLE
CASE NUMBER(S): Fc USE PERMIT (CUP) 96-00040VARIANCE (VAR) 96-0010
OWNER(S) PAGE STEVENS
APPLICANT(S): SAME AS OWNER
LOCATION: 11744 SW PACIFIC HIGHWAY
MAP(S) & TAX LOT(S) NO(S). WCTM 1 S1 36CC, TAX LOTS 2000 & 2100
PLEASE PRINT YOUR NAME, ADDRESS, AND INCLUDE YOUR ZIP CODE
PROPONENT (For the proposal)
(Print Name/Address/Zip aAtnliation]
OPPONENT (Against the proposal)
(Prim Name/Addross/ap aAfifilation]
Name: Name:
Address: Address:
City: State: Zip: City: State: Zip:
Name: Name:
Address: Address:
City: State: Zip: City: State: Zip:
Name: Name:
Address: Address:
City: State: Zip: City: State: Zip:
h lpattyVn a ste rs\s ig n i n h o. mal
• •
BEFORE THE LAND USE HEARINGS OFFICER
FOR THE CITY OF TIGARD, OREGON
Regarding an application by Western PCS Corporation for a
conditional Use Permit to develop a 130 foot cellular
communications monopole and a variance from paving
requirements for the access.
1. SUMMARY OF THE REQUEST
FINAL ORDER
CUP 96-0006
VAR 96-0010
(Western PCS)
The applicant requests approval of a conditional use permit to develop a cellular
communications monopole to improve cellular phone service along the Highway 217 and
Highway 99 corridors and a variance to allow use of a gravel surface as an access
driveway to this facility.
Hearings Officer Deniece Won held a duly noticed public hearing regarding the application
on August 26, 1996. City staff recommended conditional approval of the permit. The
applicant accepted the staff report, recommendation and conditions.
LOCATION: 11744 SW Pacific Highway; WCTM 2S1 36CC, Tax Lots 2000 and 2100
COMPREHENSIVE PLAN AND ZONING DESIGNATION: C-G (General Commercial)
APPLICANT: Western PCS Corporation
OWNER: Hans & Marilyn Grunbaum
APPLICABLE LAW: Community Development Code Chapters 18.62, 18.98, 18.100,
18.102, 18.106, 18.108, 18.120, 18.130, 18.134 and 18.164.
STAFF RECOMMENDATION: Conditionally approve
HEARINGS OFFICER DECISION: Conditionally approve
Page 1 - Hearings Officer decision
CUP 96-0006 and VAR 96-0010 (Western PCS Monopole)
• •
II. HEARING
A. Hearing
Hearings Officer Deniece Won received testimony at the public hearing about this
application on August 26, 1996. A record of that testimony is included herein as Exhibit
A (Parties of Record), and Exhibit B (Taped Proceedings). These exhibits are filed at the
Tigard City Hall.
B. Summary of Oral Testimony.
1. City Planner Mark Roberts testified for the City. He summarized the staff report
and recommendation. City staff recommended approval of the permit with conditions.
2. Hearings Officer Won said she had some doubt about whether the variance
request conforms to the Code's variance criteria. She said her concern was particularly
with the second criteria requiring that there be special circumstances peculiar to the site
rather than peculiar to the use, and with the fifth criteria which requires that the hardship
not be self imposed and that the variance be the minimum variance necessary to alleviate
the hardship.
3. City Planner Mark Roberts stated that concerning criteria two, much of the
reason for the location of the leasehold area is to maximize the redevelopment potential of
the site. The variance is also justified because this type of use only requires a monthly
service call. He said the staff considers this as one-way access. The Code does not
specify a minimum width. He thinks that fifteen (15) feet is acceptable.
4. Mike Berndorf testified for the applicant. He said that the applicant accepts the
conditions of approval. He stated that this site was chosen to cover a service gap in
Western PCS's cellular system along Highway 217, along Highway 99 and in the
downtown area of Tigard. He said the variance is requested because the cellular tower
facilities are accessed infrequently. He said that the facility is unmanned and typically
there is a only monthly service inspection with a service vehicle, such as a small pickup
truck. He said that part of the reason the applicant chose to locate the facility on this
particular part of the property is because it is an under-utilized portion of the property. The
leasehold area is a triangular area in the corner of the property that would not likely be
useful for some future commercial use. Locating the communications tower at that corner
allows maximum use of the property for future development. He said this property is a
good location for their cellular communication lines because of the site's line of sight to
Highway 217 and its off-ramps. He stated that the applicant is asking for the minimum
vehicular access that will meet Fire District requirements. He said that the applicant will
comply with the requirement of Oregon Department of Transportation (ODOT) to pave the
first 20 feet of the access road.
Page 2 - Hearings Officer decision
CUP 96-0006 and VAR 96-0010 (Western PCS Monopole)
III. FINDINGS
The Hearings Officer adopts and incorporates in this order the Tigard Community
Development Staff report dated August 19, 1996 (the "Staff Report") including the
summary, findings about the site and surroundings, applicable approval standards, agency
comments and evaluation of the request, except to the extent expressly modified herein.
IV. EVALUATION OF REQUEST
A. Compliance with Community Development code and Comprehensive Plan.
1. Community Development code Section 18.134.050 allows the Hearings Officer
to approve, or approve with conditions, a request for a variance based on the following
findings:
11 The proposed variance will not be materially detrimental to the
purposes of this title, be in conflict with the policies of the
comprehensive plan, to any other applicable policies and
standards, and to other properties in the same zoning district
or vicinity;
2) There are special circumstances that exist which are peculiar
to the lot size or shape, topography or other circumstances
over which the applicant has no control, and which are not
applicable to other properties in the same zoning district;
3) The use proposed will be the same as permitted under this title
and City standards will be maintained to the greatest extent
that is reasonably possible while permitting some economic
use of the land;
4) Existing physical and natural systems, such as but not limited
to traffic, drainage, dramatic land forms, or parks will not be
adversely affected any more than would occur if the
development were located as specified in the title; and
5) The hardship is not self-imposed and the variance requested is
the minimum variance which would alleviate the hardship.
a. Before 1992, LUBA and the Oregon Courts strictly construed city and
county traditional variance criteria, such as contained in the Tigard Community Development
Code. After 1992, LUBA and the Courts have backed away from strict interpretation and
deferred to local governments' interpretation of ambiguous code terms unless the term is not
ambiguous or that interpretation is clearly wrong. The petitioner has the burden to prove that
his request complies with the criteria. Main Auto Body v. City of Salem, Or LUBA 95-076.
Page 3 - Hearings Officer decision
CUP 96-0006 and VAR 96-0010 (Western PCS Monopole)
The Tigard Development Code contains five criteria applicable to a variance request. Each
of the five criterion contains more than one factor.
b. Criteria 1 requires that the proposed variance will not be: a) materially
detrimental to the purposes of the Code, and b) in conflict with: 1) the policies of the
comprehensive plan, 2) any other applicable polices and standards, and 3) to other
properties in the same zoning district or vicinity.
1) The applicant's submittal argued that public safety and welfare will
not be jeopardized by approving the variance. I find that this is an overly broad statement of
the Code's requirement that approval of the variance request will not be materially
detrimental to the purposes of the Code. The applicant's submittal does not address the
criterion's requirement that the variance will not be in conflict with other properties in the
same zoning district or vicinity.
2) The City staff report found that the proposed driveway pavement
variance is not materially detrimental to the purposes of the Code nor in conflict with polices
of the Comprehensive Plan because if its limited nature. I accept these findings.
3) The City staff found that developing this use closer to the street
would limit future development of the property. The staff seems to conclude that the
purposes of the comprehensive plan and Development Code are more fully fulfilled by
approving the use at the proposed location, with the variance, than would occur if the use
were located closer to the public street, thereby reducing the access length that needs to be
paved under the Code's requirements. While this may be true, the variance criteria does not
set forth a balancing of benefits test, but rather requires that granting the variance not be
materially detrimental to the Code's purposes. I find this staff finding of fact to be irrelevant
to deciding whether to approve the requested variance.
4) 1 find that there was no evidence submitted that the variance is in
conflict with other properties in the same zoning district. I conclude that the variance request
complies with the first criterion.
c. Criteria 2 requires that there are special circumstances that exist, a) which
are peculiar to the 1) lot size or shape, 2) topography, or 3) other circumstances over which
the applicant has no control, and b) which are not applicable to other properties in the same
zoning district.
1) Under the Tigard Community Development Code, the "special
circumstances" that exist must be peculiar to the lot or other circumstances over which the
applicant has no control. The "lot size and shape, or topography" standards relate to the site
and not to the owner or the proposed use of the land involved with the requested variance.
Because the "other circumstances" requirement is limited to circumstances over which the
applicant has no control, this criterion requires that the special circumstances relate to land,
not to the owner or the proposed use. This standard requires proof that the "special
circumstances that exist" arise from conditions inherent in the land which distinguish it from
Page 4 - Hearings Officer decision
CUP 96-0006 and VAR 96-0010 (Western PCS Monopole)