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Resolution No. 88-105 a CITY OF TIGARD, OREtluN { RESOLUTION NO. 88- )C,!5 A RESOLUTION ADOPTING FINDINGS AND CONCLUSIONS TO DENY A COMPREHENSIVE PLAN A!4F.NDMENT. (CPA 88-05) AND ZONE CHANGE (ZC 88-11) REQUESTED BY MORSE BROS. , INC. (D.E. MERCER). WHEREAS, the applicant requested a Comprehensive Plan Amendment for a 5.36 acre parcal from Light Industrial to Heavy Industrial and Zone Change from I-L (Light Industrial) to I-H (Reavy Industrial); cnxrrzraS, the Planning Commission heard the above application at its regular meeting of October 4, 1988, and recommended denial; and WHEREAS, the Tigard City Council heard the above application at its regular meeting of October 24, 1988. NOW, THEREFORF, BE IT RESOLVED by the Tigard City Council that: Section l.: The proposal is not consistent with all relevant criteria noted in the attached findings (Exhibit "A"). Section 2: The City Council upholds the Planning Commission's recommendation for denial of the Comprehensive Land Use Map and Zoning Map Amendment as set forth in Exhibit "S" (reap). Section 3: The Council, therefore ORDERS that the above-referenced request be DENIED. The Council 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. fh r PASSED: This ,J day of ��CCrr� a^, 1988. ATTEST: 4;;4'r-'City of Tigard Council President Deputy Recorder - City of Tigard APPROVFORM: City Recorder 2-W' cv/8185D RESOLUTION NO. 88-/OO) Page 1 i c FINDINGS OF FACT AND CONCLUSIONS OF LAW TO SUFPORT DENIAL OF REQUEST FOR COMPREHENSIVE PLAN AND ZONE MAP AMENDMENT TG HEAVY INDUSTRIAL AND I-H (Heavy Industrial)- Morse Bros., Inc. FILE NO. CPA 88-05 AND ZONE CHANGE 88-11 I. NATURE OF REQUEST. The applicant requests that the comprehensive plan map be amended to redesignate a 5.36 acre parcel Heavy Industrial from the current Light Industrial designation. The applicant also requests that the zone map designation for these lots be amended from I-L (Light Industrial) to I-H (Heavy Industrial) . The stated intent of the proposed redesignation is to permit development of a concz-et_ and asphalt manufacturing facility, together with a range of accessory uses. Since such a use is classified by the Community Development Code as manufacturing of semi-finished products from raw materials, this type of use is not permitted in the I-L zone designation. Other uses allowed in the I-H zoning district include major and minor impact services and utilities, heavy wholesale, storage and distribu- tion, scrap operations and manufacturing of all products from raw materials. The subject site is located approximately 600 feet south of SW Bonita Road., east of SW 74th Avenue and the Burlington Northern railroad tracks, and west of the Southern Pacific railroad tracks. The site, consisting of tax lots 1000, 1100, 1400 and 1500, is presently zoned for light industrial t uses (I-L) and carries a Light Industrial map plan designation. Uses in the area are primarily office and light industrial in nature, with such uses on land designated I-L located immedi- ately to the north, south and east of the site. Land to the west across the Burlington Northern railroad tracks are vacant and zoned Industrial Park (I-P) . II= A-- ICARLE CRI RT . Pursuant to Policy 1.1.2 and corresponding implementa- tion strategies, amendments to the City's comprehensive plan map are governed by the following criteria: a. The change is consistent with applicable plan policies; b. A change of physical circumstances has occurred since the original designation; or C. A mistake was made in the original land use designation. Based on state law, section 18.32.050 of the Community Development Code (Code) and the fact that only findings (b) and (c) are listed in the alternative, we construe this sectio., of the plan to rewire that an applicant for a comprehensive plan map amendment must demonstrate consistency with applicable comprehensive plan policies and compliance with either criteria (b) or (c). Under section 18.32.250(a) (3.) of the Code, the burden of proof of such compliance rests with the applicant. f` SLP-503 2 Amendments to the zoning map are governed by section 18.22.040, which provides as follows: ,(a) A recommendation or a decision to approve, approve with conditions or to deny an application for a quasi-judicial amendment shall be based on all the following standards: (1) The applicable Comprehensive Plan policies and map designations; and (A) The change will not adversely affect the health, safety and welfare of the c=ommunity.. (2) The statewide planning goals adopted under ORS 2.97 until acknowledgment of the Tigard Comprehensive Plan and Ordinances. (3) The applicable standards of any provision of this Code or other applicable implementing ordinance. (4) Evidence of change in the neighborhood or community or a mistake or r.cnsi.stency in the Comprehensive Plan or zoning map as it relates to the property which is the subject of the development application." As noted in this section, compliance with each of these criteria must be demonstrated before a decision may be made to grant a map amendment. A. Comprehensive Plan Policies Although the Council notes that numerous comprehensive plan policies are applicable to this map amendment request, it is recognized that approval cannot be granted if it is found that one or more such policies are not met. Accordingly, this t' section addresses those plan policies which the Council con- cludes are inconsistent with the applicant's request. 1. Policy 5.1.1 - Ecpnomic Growth This policy calls for continued economic growth within the city and, more particularly, requires that those economic opportunities and land uses which en?-a.ice the local job market to the greatest degree receive the highest priority. Testimony from the applicant indicates that development of a concrete and asphalt manufacturing facility at this location will produce approximately eight new jobs. Iiowever, the record contains substantial credible testimony from property owners, owners and operators of office and business complexes in the immediate area and the tenants of these facilities that the proposed use and t. other uses allowed in the I-H district would beincompatible with the continuation of their uses and activities. Mn addi- tion, such evidence indicates that application of the I-H district at this location would significantly diminisla the potential to continue to attract such light industrial and office park uses, together with related hotels, research facilities and high technology assembly plants, to the vacant land designated I-L to the east and south of the subject site. See correspondence and testimony of Pacific Realty Associates, Multi-Graphics, Speiker Partners, Avia and The Trane Corporation. sir.sa3 4 More particularly, a representative of Pacific Realty Associates indicates that recent land acquisitions by his company in the immediate area probably would not have occurred had the potential existed for I-H uses at this site. Based on this evidence and testimony, the Council finds that the intrusion of the I-H district at this location would slow or halt the continued utilization of property designated I-L and I-P between I-5 and Bonita Road and the Durham city limits for office, business park and limited industrial uses. Since these uses have a higher employee-per-acre density, and because there is no evidence to suggest that other compatible I-H uses offering comparable employment oppos�tunities would or could absorb such unutilized vacant land in the immediate area, the Council finds that the net result of the prognosed amendment would be a reduction in the number of job opportunities which can otherwise reasonably be expected to occur, based on the testimony and the historical land use pattern in the area. For these reasons, the council concludes that the applicant's proposal is inconsistent with this policy. 2. Policy 12.3.1 - Industrial Locational Criteria This policy establishes locational criteria which "apply to both legislative and quasi-judicial land use actions.„ See Introduction to Article 12 of Plan. Among the individual standards set forth under this policy, the following are most relevant to this request: sL?15os 5 OThe city shall require that: (e) It be demonstrated that associated lights, noise and other external effects will not interfere with the activities and uses on surrounding properties. (f) All other applicable plan policies can be met." a. Non-interference (subsection i e; The record is replete with testimony from businesses and property owners in the immediate area regarding the likelihood of substantial interference with the activities and uses on surrounding properties as a direct result of the proposed use and other potential I-H wars at this site. For the purposes of this policy, the surrounding properties are defined as those lying within an area bounded by Bonita Road to the north, I-5 on the east, the Durham city limits on the south and Hall Boulevard to the west. Based on the testimony in the record,, potential effects include: - adverse visual impacts from material piles, towers and other aspects of the aggnegate processing facility and other potential heavy industrial uses, - increase in dust and offensive odors from stored material_ r<_+nvey=.nce :peratioras and on-site truck and equipment traffic; - noise from concrete trucks traveling to and from the site and onsite aggregate and concrete processing activities; - traffic congestion due to proposed truck and train traffic and potential concrete spillage; and SLP.503 6 f diminution of property values and increased vacancy rates in surrounding office, light industrial and related commercial projects. We find the testimony and evidence regarding the nature and potential for such impacts from the proposed ;:se and other permitted industrial uses to be substantial and credible, and we find that such impacts can reasonably be expected to interfere with the !Casing operations and access .,o existing oiiicand cortmerciai activities in the surrounding area, as well as with the fu'"'ure development of such uses. Generally, testimony presented by the applicant suggests that such impacts could be diminished through the provision of screening, state of the art processing equipment and the use of enclosed structures. In addition, the applicant relies on future compliance with city, state and federal environmental requirements to establish non-interference. However, t..e applicant neither alleges nor demonstrates that such activities noted by the surrounding property owners and acknowledged by the applicants as integral to its processing operation 'will not interfere" to any degree with adjoining uses, and the applicant fails to establish that compliance with city, state and federal environmental standards is both feasible and sufficient to meet this absolute "non-interference" standard_ Further, the applicant has failed to demonstrate or even address the potential for similar impacts and interference sur.sus 7 x to surrounding uses and properties from other industrial uses permitted only in the I-H district, as alleged by various individuals. In summary, we find that the proposed use and other permitted I-H uses can be reasonably expected to generate significant impacts on surrounding properties, as noted above, which will interfere with the use and potential future develop- ment of such properties. we further find that the applicant has not demonstrated that the testimonv and evidence of such effects and corresponding interference with these properties is not credible. Accordingly, we conclude that this locational criterion has not been met. ® b, other applicable plan policies (subsection (f)) The Council incorporates by reference its analysis and conclusions regarding noncompliance with policies 5.1.1 and 12.4.1, as set forth elsewhere in this section. 3. pol'c 12.4.1 - Communit Facilities Locational. Criteria This policy presents locational criteria for the applicable comprehensive plan and zoning district designations which permit community utilities and facilities. as noted by the opponents to this proposal, major impact services and utilities and minor impact utilities are permitted only in the I-H zoning district. Such facilities are defined under this policy to include landfills, substations, hospitals, and a 8 SLP.503 number of similar intensive uses. Since such uses are permitted under the proposed designations, we find that the locational criteria set forth in this policy are applicable to this request. Subsections (1) through (4) of this policy establish a wide range of criteria which must be met as a condition of any approval of the applicant's requests, and the burden of demonstrating such consistency lies with the applicant. Notwithstanding the availability of such uses under the i-H designation, the applicant has provided no evidence or testimony regarding the application of these criteria to such uses. On the other hand, compatibility with "'surrounding development" is an express criterion under Policy 12.4.1(4) (2) (i) and the record contains substantial testimony and evidence of the incompatibility of the T-H district and the existing and futuro activities and surrounding land. See correspondence from Pacific Realty Associates, Avia, The Trane Company, Speiker Partners and The Koll Company. We find the record to be devoid of any credible evidence or discussion from which the Council can conclude that these locational criteria are met. This location is for the permitted major and minor utilities and service uses. Accordingly, we cannot find compliance with this policy and must, accordingly, deny the request. SLP.$03 S B. Change in Physical Circumstances. This criteria requires the applicant to document that a change in physical circumstances has occurred since the original designation. We construe the term "change of physical circumstances" to mean a change in the characteristics of the site or surrounding area which adversely affects its use under the current designation or calls fcr other uses based on a new land use pattern. Such change in circumstances may include a diminution of access to a property, the development of nearby incompatible uses or an area-wide shift from residential to commercial or industrial uses. We do not, on the other hand, find an increase in population growth or the intensity and location of development within the city as a whole, whether in excess of the current comprehensive plan or not, to constitute such a change. We find the latter circumstances to be foreseeable and of sufficient community-wide impact to be a proper subject for consideration daring the periodic review process. The applicant's sole basis for compliance with this criterion is the historical growth of this ....._....unity beyond the projections of the current comprehensive plan. ,used on the above construction of this standard, we find that such circumstances do not constitute "a change of physical circumstances" peculiar to this property or the immediate area. There is no evidence or testimony indicating that the subject ssr.so3 10 property is no longer available or suitable for the uses allowed under the current designation. Rather, all evidence available indicates that the character of the area, and therefore the applicable "physical circumstances,' has shitted to light industrial, office or certain commercial uses, which we find to be incompatible with the designation of I-H. Based on this evidence and reasoning, we conclude that the applicant has failed to demonstrate compliance with this criterion as a basis for its request. C. Mistake in Oriainal Designation. Under this criterion, the applicant presented testimony regarding the availability of vacant land within the city designated for heavy industrial use and argues that such limited availability demonstrates that a mistake was made in not designating this particular parcel for such use. However, the council cannot and does not find that the current inventory of vacant and heavy industrial land constitutes a mistake in the context of this criterion. It is apparent from the record that vacant parcels carrying the I-H designation are available, and, as the city enters its periodic review process, the council finds that the periodic review proceeding provides the most appropriate method by which to address any current and future inventory deficiencies within the city as a whole. Further, there is no credible evidence to demonstrate that the failure to designate this particular parcel as I-H was SLP.503 1�- a mistake at the time the current designation was adopted. Based on the testimony received by the representative of NPO #5, and property owners and tenants in the immediate area, we do not find the I-L designation to be inconsistent with specific Policies of the comprehensive plan or the surrounding .land use pattern. Moreover, testimony before the planning commission and the Council indicates that the noise, dust, odor, heavy traffic, visual blight and similar impacts reasonably expected of uses permitted in the I-H district are incompatible with existing office and light industrial use in the immediate area and with the continued development of vacant land to the west, east and south designated I-P and I-H. According to such testimony, the mere potential for perception and expectation of such impacts may adversely affect vacancy rates and future redevelopment of the immediate area for office and business park use. Based on the weight of this testimony and evidence, we find that the current designation of I-H is wholly consistent with the existing land use pattern and expected future use of the area, leaving the Council to conclude that there is no mistake in the current designation. III. Zo37I.NG_ jgp AMENbMENiS - Section 18.22,044 A. Comprehensive P a�r{� in-i - The Council incorporates herein its findings and conclusions addressing comprehensive plan policies, as set forth under Section II(A) . Further, we find, having denied the SLP.sos 12 requested plan map amendment +o Heavy Industrial, that the zone map amendment to I-H would exceed the permitted nature and intensity of land uses allowed under the controlling comprehensive plan designation of light industrial. B. Adverse Effect on Health. Safety and Welfare of the Community. In response to this standard, the Council relies upon its findings and conclusions relating to comprehensive plan policies 5.1.1, 12.3 and 12.4, together with its findings and conclusions under II(C) regarding mistake, as the basis for its conclusion that the reopiested zone map amendment to I-H would be inconsistent with this criterion. C. Statewide planning Goals r The Council finds this criterion to be inapplicable because (1) the city�s comprehensive plan and implementing ordinances have been acknowledged and (2) the requested zone map amendment constitutes a small tract zone change not subject to the demonstration of compliance with the goals. D. Applicable Code or Ordinance Standards With the exception of criteria set forth under section 18.22.040 and applicable comprehensive plan policies discussed herein, compliance with other aspects of the CDC is properly the subject of the Site Development Review process. E. Chznae or M,istalce The Council relies upon its findings and conclusions addressing change in physical circumstances and mistakes, as set Sl-P.303 13 forth herein, under I!(B) and (C) , as the basis for its conclusion that this standard is not met. Based on the foregoing, the appli;ation for a plan and zone map amendment are denied. t SLP.sos 14 - C-r� C-G . C-P . . . . . . . . . . . . . . . . . . . . . .... CBD . . . . . . . . . . . . . . . . . . . . . INDUSTRIAL. s 1 ® 7 I—H . . . _ . . . . . . OTHE PUB-INS . . . . . . . . . . . . . . . . . . 0 . . . . . . . . . . . . . . . . . . . . . . _ � 8 AP -Cie pj To OU PV ,? dlW . :MI + j p i NO now, t