Resolution No. 85-108 i
CITY OF TIGARD, OREGON
RESOLUTION NO. 85-108
A FINAL ORDER IN THE MATTER OF THE APPLICATION FOR A COMPREHENSIVE
PL.4N AMENDMENT AND A ZONE CHANGE REQUESTED BY PORTLAND FIXTURE CO.
AND S & J PROPERTIES, FILE NO. CPA 3-85 AND ZC 3-85, DENYING THE
APPLICATION REQUESTS, ENTERING FINDINGS AND CONCLUSIONS.
WHEREAS, the Tigard City Council heard the above application at its
regular meeting of November 25, 1985. The applicants appeared and
were represented by Sumner S?i—,rpe, Jack L. Orchard and Dave Pietka;
appearing in opposition were Richard Boberg of NPO *7 and Howard
Williams.
WHEREAS, the Council finds the following FACTS in this matter.
1. The applicants for this matter, Portland Fixture Co. and S
& J Properties, requested a reclassification from C-P
(Commercial Profess+onali to C-G (Commercial General) for a
5.4 acre site designated as Washington County Tax Map 1S1
34BC, Tax Lot 400. The explanation supporting the request
is found in File No. CPA 3-85. Portland Fixture Co.
withdrew as an applicant on October 25, 1985, and S & J
Builders has proceeded as the sole applicant.
2. The Council had before it the record of the proceedings
before the Tigard Planning Commission which voted to
approve the request, with three dissenting votes, on April
2, 1985.
3. After reviewing this application at its regular meeting of
April 22, 1985, the City Council denied the request
(Resolution No. 85-2a) .
4. A Petition for Review was filed with the Land Use Board of
Appeals (LUBA) on May 9, 1985.
5. On August 1, 1985, a Motion for Voluntary Remand was filed
by the City in order to improve the findings contained in
Resolution No. 85-28, and LUBA entered its Final Order
remanding the case on August 22, 1985.
6. On September 9, 1985, the City Council held a public
hearing on the record to consider the procedure to be
followed on repand and to identify the criteria which
should have been addressed in the earlier application and
proceedings. Public testimony was heard, and the matter
was continued to allow additional time for the Council and
parties to identify the applicable existing Goal, Code and
RESOLUTION NO. 85-108
Page 1
Comprehensive Plan criteria. On September lb, 1985, the
matter was again continued to allow the Planning Director
to prepare and submit to the applicant a representative,
although not all-inclusive, listing of the applicable
criteria as requested by the applicant. On October 28,
1985, at the applicant's request, the hearing was again
continued to November 25, 1985.
7. On September 27, 1985, a letter was sent to the applicant
Identifying relevant criteria which should have: been
applied to the earlier application but which the applicant
and parties did not fully address.
WHEREAS, based on the record in this case from the Planning
Commission hearing of April 2, 1985, and the City Council hearings of
April 22, 1985 and November 25, 1985, the Council makes the following
FINDINGS IN THIS MATTER:
1. The relevant approval criteria in this case, as identified
ias the September 27, 1985 letter to the applicant are:
a. Statewide Planning Goals and Guidelines.
b. Tigard Comprehensive Plan.
1. Policies 2.1.1, 5.1.1., 5.1.4, 8.1.3, and 12.2.1a
2. Locational Criteria, Section 12.2 pertaining to
General Commercial and Commercial Professional.
C. Tigard Community Development Code.
1. 18.22.020 Purpose (Amendments to the Code and
Map) . (sic - Purpose section is numbered
18.22.010) .
2. 18.22.040 Quasi-Judicial Amendments and Standards
for Making the Decision.
3. 18.30.120 Standards for the D--eision.
4. 18.52.010 Purpose (C-G Zone) .
5. 18.54.010 Purpose (C-P Zone) .
2. Locational Criterion 12.2.1(2)(B)(2)(a) of the Tigard
Comprehensive Plan, relating to access for General
Commercial uses, l s not been met. This criterion requires
that the proposed General Commercial area or expanded
existing area "shall not create traffic congestion or a
traffic safety problem." One factor in determining whether
a requested plan amendment meets the criterion is "the
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traffic generating characteristics of the various types of
uses" allowed under the requested zoning.
At the various Council meetings, the Council heard
conflicting testimony regarding traffic issues. The
applicant presented the report and testimony of its traffic
engineer. Opponents presented testimony and illustrative
slides. The photographs and accompanying testimony
established that present traffic conditions in the area are
very congested and hazardous. The applicant responded to
this situation with the report of a traffic engineer.
The central feature of this analysis is that the change
from the existing C-P to the proposed C-G would have no
appreciable effect on traffic volumes and that the level of
service, after certain improvements were made, would be
similar under either designation. The engineer reached
this conclusion by making ce=rtain assumptions about trip
generation. Under the present zoning the engineer assumed
that 90% of the 5.4 acre parcel would be developed as
professional offices, producing about 1,170 trips per day,
about g® of which would be expected to occur during the
evening peak hour. He then posited that the remaining 10%
would be developed as a 3,000 square foot convenience store
which would almost double the number of trips per day and
add 100 trips to the evening peak hour. Greenway Town
Center Phase II Traffic Impact Study at 2.
Under the proposed zoning, the report assumes the
development of a 58,000 square foot retail center
generating about 4,760 trips per day, of which 450 would
occur during the evening peals hour. An addition to the
Impact study argues that if the property were developed
under existing zoning to include offices, a convenience
store, a restaurant and a bank, the level of service at the
Intersection would be unaffected by a change in zone
resulting in retail development of the property.
We cannot accept the conclusions of the study because we do
not agree with its premises_ The applicant has not made
any attempt to justify the assumption that the property
will be developed with a convenience store. Neither has it
shown any evidence that restaurant development would occur.
The opponents have introduced photographic evidence and
testimony indicating large amounts of empty retail space in
the existing center. Given this situation, we are
skeptical that a convenience store would be developed at
this location. No evidence was offered to demonstrate that
such development would occur.
Evidence of the development of a convenience store was
crucial to the traffic impact analysis because the effect
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of this assumption was to more than double the anticipated
el number of evening peals hour trips. Without this
assumption, the traffic analysis might show that
development under the current zoning would produce only
about one-fourth of the trips projected from the retail
development specifically assumed to take place under the
proposed zoning. The report offers no analysis to inform
us of whether traffic flow and level of service would be
affected if the existing zoning produced only about one-
quarter of the trips that would be produced by the proposed
zoning. From the evidence submitted we cannot analyze this
issue. The fact that a convenience store was assumed,
without any supporting evidence, causes us to question tLe
credibility of the traffic study. There exists in our
minds the lingering doubt that such a use might have been
chosen for analysis in order to produce the desired
conclusion.
The report is incomplete in other respects. For example,
improvements to Sorrento will no doubt increase traffic
hazard problems on Scholls Ferry Road. Adequate traffic
arialysis should provide more Information about tree impacts
on Scholls Ferry Road and Scholls Ferry intersections in
the vicinity.
For these reasons we decide not to rely upon the
applicant's traffic impact study, and, therefore, we are
not persuaded that evidence has been introduced which would
prove that the proposed zoning would result in a safe and
efficient traffic system for the area.
These traffic matters also relate to Section 28.22.040(1)
which requires an applicant for a quasi judicial amendment
to prove that the change will not adversely affect the
health, safety and welfare of the community. The evidence
Is clear that the retail development assumed by the traffic
study would increase the trip generation in the area. For
the reasons described above, this report is not reliable in
proving its conclusion. The applicant therefore has not
met its burden to prove that the change will not adversely
affect the health, safety and welfare of the community
compared to what would occur under the present zoning.
The applicable Locational Criterion also relates to
transportation in that it requires that the proposed use
for expansion of existing area shall not create traffic
congestion or a traffic safety problem. For the reasons
Qitlined above the traffic impact study fails to adequately
address this criterion. We cannot determine from the
evidence submitted whether the conclusion that this change
in zone would produce no additional traffic safety problems
As a-eliable. In addition to the matters described above we
are also concerned that no effort was made by the traffic
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engineer to validate his trip projections for this
particular area by comparing them with the actual number of
trips coming from the present adjoining shopping center.
The engineer admitted he had not done this at pages 13 and
14 of the transcript of the first City Council hearing.
Until the shortcomings of the traffic impact study are
remedied we are unable to determine whether or not various
proposed conditions and improvements to the area will be
sufficient to satisfy the traffic related criteria.
3. Section 18.22.040(4) of the Community Development Code
requires:
"Evidence of change in the neighborhood or community
or a mistake or inconsistency in the Comprehensive
Plan or zoning map as it relates to the property which
is the subject of the development application.
This section of the Code is essentially a qualification of
the traditional "change or mistake rule." No effort in
this case has been made to argue that the plan designation
is a mistake. Instead, the applicant presented evidence of
changes that have taken place in the neighborhood or
community.
Under this standard the applicant must produce proof to
support the conclusion that substantial change has occurred
In the neighborhood or community which would justify the
proposed zone change. Anderson American Law of Zoning 2nd,
Section 507. In the November, 1985 memorandum from Sumner
Sharpe, the applicant submits evidence of zone changes and
other information to support a claire of change of
circ•xmstances. A achool has declared a future school site
as surplus, adding approximately 22 acres of residentially
zoned land to the area. In Beaverton 8 acres was rezoned
from R-5 to R-7, thus increasing the allowable density.
Also, 2.5 acres of R-5 land was rezoned to Office
Commercial.
We agree that the changes have taken place. However, we
have not been offered an adequate analysis demonstrating
that these changes have produced a change in the character
of the neighborhood that would justify the requested zone
change. We have been offered anecdotal evidence of
particular changes but no overall analysis to justify the
proposed change. First, there has been no effort to net
out the effects of these changes on the relative ratio of
land zoned for residential, CP and CG. There is no
anmlyais of what impact these changes have on this ratio,
if any. Nor is there any indication of why these changes
would cause is to conclude that there is a change
justifying additional CG. Has there been a departure from
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the overall pattern in the plan? To what extent is the
w loss of residential land in one area balanced by the
addition of residential land in another? In order to
demonstrate change in the character of the area, the
applicant should provide this kind of missing information.
:3econd, without more information and analysis of the effect
of these changes, it is just as likely that we can
conclude, based upon the evidence introduced so far, that
the changes confirm retention of C-P rather than change to
C-G. The Beaverton change from residential to Office
Commercial may show that, even with some slight increase in
residential density, there is already sufficient CG to
service the neighborhood. In fact, this point of view
seems to be validated by the substantial number of
photographs in the record of currently available but
unoccupied retail space. The Beaverton zone change to
Office commercial may also show that certain basic precepts
of the plan are being carried out and that there has not
been a change in the essential character of the area. This
change may reinforce the pattern of the area which is
designed to provide office job opportunities in close
proximity to residential development. It also clearly
supports the existing plan policy "to locate office
employment where it can support other commercial uses."
TMC Section 18-64.010(6) .
Absent more information and detailed analysis by the
applicant, it is just as likely that the anecdotal evidence
of changes reinforces the current character of the
neighborhood rather, than proving a change in character
justifying CG on the subject property.
The information which comes as close as any to providing an
overall analysis appears on pages 2 through 4 of the
November 20, 1985 memorandum submitted by Mr. Sumner
Sharpe. Mr. Sharpe analyzes the population necessary to
support a comnuniry shopping center based upon the criteria
is the Shopping Center Development Handbook (Urban Land
Institute, 1977 edition). Upon reflection we find this
analysis lacking in several respects. First, the handbook
indicates that a site of 10 to 30 acres can be supported by
a population of 35,000 to 40,000 people within a service
area approximately ttvo miles in size. The existing
shopping center is eleven acres and therefore falls within
the range indicated. Therefore the existing plan for the
area meats the criteria without any further zone change.
The Sharpe report apparently recognizes this fact and
therefore cites the admonition in the handbook that "the
prudent developer of a community center will plan to have
adequate land available for expansion when the growth and
sale volume warrants and the drawing power justifies, the
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community center can often be increased. ..by the
introduction of. . .additional shops, offices, and services."
k- The report then makes the observation that the existing
center has no room for expansion and that the subject
parcel would provide that potential.
The second problem with the analysis provided in the report
is that it ignores the qualifiers contained in the handbook
criteria. Phrases such as "when the growth and sale volume
warrants" and "[when] drawing power justifies" are the
salient points in the handbook's criteria. In presenting
Its analysis the report provides no information on sales
volume and drawing power. In fact, the record indicates
that there are many empty stores at this time in the
existing centers and, therefore, it is unlikely that a case
can be made that "sales volume warrants" and "drawing power
justifies" the expansion of the existing center. The
analysis presented demonstrates the need for a center such
as the existing one. However, it does not prove the need
for expansion under the criteria which are cited.
Furthermore, the applicant controls the subject property
and can therefore follow the suggestion of the handbook
that land be made available for expansion. The land is
available and when sales volume warrants the applicant may
apply to change the zone designation.
We would be more comfortable with the analysis provided if
it somehow linked the evidence of changes in zone to the
overall character of the community and the justification
for an expansion site for a community commercial center.
The evidence provided does not show these linkages and
therefore we do not find it reliable in addressing the
criteria contained in Section 18.22.040(4).
4. Because the applicant has failed to introduce evidence
satisfying its burden under the above described criteria
this application cannot be granted. We will not
exhaustively address each of the other relevant criteria
because, even if they were satisfied, the application
cannot be granted due to failure to satisfy the above
described requirements.
HOW, THEREFORE, BE 1T RESOLVED by the Tigard City Council that:
1. Based upon the above findings the Council has determined
that the requirements of the Code and Comprehensive Plan
have not been satisfied by the subject application.
2. Based on Finding No. 2, Locational Criteria have not all
been met. The change of zoning would create additional
traffic congestion and related problems, contrary to Code
Section 18.22.040(±) and Comprehensive Plan Section
12.2.1(2) (B)(2)(a) -
RESOLUTION NO. 85-108
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3. Based on Finding No. 3, the Council finds that the
v applicant has not provided persuasive arguments to change
the comprehensive plan and zoning designations and then
reduce the amount of available C-P zoned land in this
section of the City.
The change applied for would violate Section 18.64.010(6)
by reducing land available for office employment to support
the existing and planned commercial development. Applicant
has failed to prove changed circumstances or any mistake or
Inconsistency in the Comprehensive Plan which would warrant
the requested change, as required by Section 18.22.040(4) .
i
Section 2.
The Council, therefore ORDERS that the above referenced
request be, and the same hereby is, DENIED. The Council
I FURTHER ORDERS that the Planning Director and the City
Recorder send a copy of the Final Order as a Notice of
final decision to the parties in this case.
PASSED: This C�T1, day ofC1 _rlcc;Lr1_/1 1986.
1-IF
Mayor City of Tigard
ATTEST:
(/I®eputy City Recorder - City of Tigard
RESOLUTION NO. 65-108
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