Loading...
Resolution No. 92-19 CITY OF TIGARD, OREG9N RESOLUTION NO. 92- IN THE MATTER OF THE ADOPTION OF A FINAL ORDER UPON CITY COUNCIL REVIEW OF APPEALS OF A PLANNING COMMISSION DECISION TO APPROVE A SITE DEVELOPMENT REVIEWPLANNED DEVELOPMENT REVIEW APPLICATION (SDR 91- 0013/PDR 91-0006) PROPOSED BY TRIAD-TIGARD LIMITED PARTNERSHIP. WHEREAS, the Planning Commission reviewed this case at its meeting of October 7, 1991; and WHEREAS, the Planning Commission approved the application subject to certain conditions of approval (Planning Commission Final Order 91-11 PC); and WHEREAS, the Planning Commission's decision was appealed to the City Council by separate appeals filed by Marge Davenport and NPO #6; and WHEREAS, this matter came before the City Council at its meetings of Decembar 10, 1991; February 25, 1992; March 10, 1992; and April 14, 1992; and WHEREAS, the Council reviewed the evidence related to the applicants' appeals; THEREFORE, BE IT RESOLVED that the City Council upholds the Planning Commission's decision approving Site Development 'Revi-ew/Planned Development Review application (SDR 91-0013/PDR 91-0006) with some additional conditions of approval and modification of some of the Commission's conditions of approval. This resolution is based upon the facts, findings, conclusions and conditions of approval noted in the attached Exhibit "A". The City Council further orders that the City Recorder send a copy of this resolution and final order to the applicant and appellants as a notice of the final decision in this matter. PASSED: This Q��H� day of April, 1992. APPROVED: This 2f MENEM 1 EXHIBIT "A" CITY OF TIGARD CITY COUNCIL P114AL ORDER NO. A FINAL ORDER, INCLUDING FINDINGS AND CONCLUSIONS, WHICH AFFIRMS WITH MODIFICATIONS PLANNING COMMISSION ORDER NO. 91-11 PC, WHICH APPROVED AN APPLICATION FOR PLANNED DEVELOPMENT REVIEW DETAILED DEVELOPMENT PLATS APPROVAL, SITE DEVELOPMENT REVIEW APPROVAL, AND ACCESS VARIANCE APPROVAL REQUESTED BY TRIAD TIGARD LIMITED PARTNERSHIP.. Following an appeal from Planning Commission Final Order No. 91-11 PC, the Tigard City Council reviewed the above application at public hearings on December 10, 1991; February 25, 1992; March 10, 1992; and April 14, 1992, at which the Council received additional evidence. The Council bases its decision on the facts, findings, and conclusions noted below. A. FACTS 1. General Information CASE: Appeals by NPO #6 and Marge E. Davenport from Planning Commission Final Order 91-11 PC, which approved with conditions the application in: Planned Development Review PDR 91-0006 Site Development Review SDR 91-0013 REQUEST: Planned Development Review/Site Development Review of a plan for development of a 348 unit, 17 building multi-family residential complex on a 26.2 acre property. APPLICANT/OWNER: Triad Tigard, Ltd. Partnership 320 Andover Park East Seattle, WA 98138 ENGINEER-. Kampe Associates, Inc. 3681 SW Carmen Drive Lake Oswego, OR 97035 ARCHITECT: Driscoll Architects 2121 First Avenue, Suite 102 Seattle, WA 98121 LOCATION: 11165-11185 SW Naeve Street. North side of Naeve Street, west of SW 109th Avenue, south of the Little Bull Mountain Apartments {WCTM 2S1 IODB, Tax Lots 100 and 200 [also Tax Lot 300 for public road CFINAL ORDER - PDR 31-0006/SDR 91-0013 TRIAD 1 ® realignment purposes only]; WCTM 2S1 LOAD, 9 Tax Lot 9300; WCTM 2S1 10AC, Tax Lots 600, 700, 800, 900). PEAU DESIGNATION: Medium Density Residential (23 acres) Medium-High Density Residential (4.2 acres), ZONING DESIGNATION: R-12 (PD) (12 units/acre-Planned Development overlay) (23 acres) R-25 (PD) (25 units/acre-Planned Development) (4.2 acres) APPLICABLE LAW: Community Development Code Chapters 18.32, 18.54, 18.56, 18.80, 18.84, 18.92, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.150, and 18.164 and Comprehensive Plan Policies 2.1.1, 3.1.1, 3.4.2, 4.2.1, 6.1.1, 6.6.1, 7.1.2, 7.2.1, 7.4.4, 7.5.1, 7.6.1, 8.1.1, and 8.1.3. DECISION: Affirm Planning Commission Final Order No. 91-11 with modified conditions. 2. Background Information The subject parcels have been involved in a number of City of Tigard land use and development applications since annexation in 1981. Prior to annexation, the parcels were designated by Washington County with a zoning designation of RU-4 (Residential, 4 units/acre) . City of Tigard Comprehensive Plan Revision CPR 1-81 approved redesignation of the parcels from Low Density Residential to Medium Density Residential and a zone change to R-12 (Residential, 12 units/acre). The Planned Development (PD) overlay zone was added to the requested R-12 designation so that all development proposals for the properties would be required to be reviewed by the Planning Commission. In December, 1986, the Tigard City Council gave conditional approval to the Albertson's Comprehensive Plan Amendment for changing the Plan designation of several properties located at the southeast corner of Durham Road and Pacific Highway. This approval redesignated these properties from High Density Residential to General Commercial. _A result of this decision was the removal of the opportunity for approximately 400 potential multi-family housing units from Tigard,s inventory of vacant, buildable FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 2 land. The Metropolitan Housing Rule (Oregon Administrative Rules, Chapter 660, Division 7) requires that Tigard provide a housing opportunity for at least 50 percent multi-family units and a net minimum housing density of 10 dwelling units per acre on vacant buildable land within the City's Urban Planning Area. The Albertson's CPA was granted on the condition of redesignation of sufficient residential land to higher densities to make up for the housing opportunity shortfall created by the decision. Several sites throughout the City, including Tax Lot 200, were considered for increased residential densities to make up for the housing opportunity shortfall created by the Albertson's decision. The western half of Tax Lot 200 and the parcel to the west were proposed for Plan/Zone redesignation from Medium Density Residential/R-12 (PD) to Medium-High Density Residential/R-25 (PD) (Comprehensive Plan Amendment CPA 87-07(G)/Zone Change ZC 87-02 (G)) . No change in designation was proposed for the eastern half of Tax Lot 200 or the other parcels that are the subject of the current application. Redesignation of the western half of Tax Lot 200 and the adjacent parcel was approved by the City Council in April 1987. In April, 1989, the owners of Tax Lot 200 requested a Plan Map Amendment from Medium Density Residential to Medium-High Density Residential, and a Zone Change from R-12 (PD) (Residential, 12 units/acre, Pianned Development) to R-25 (PD) (Residential, 25 units/acre, Planned Development) for the eastern 4.27 acres of that parcel (Comprehensive Plan Amendment CPA 89-02/Zone Change ZC 89-02) . After review by the staff and Planning Commission, the City Council denied the proposed Plan Amendment/Zone Change on April 24, 1909. Tax Lot 100, which is located at the northwest corner of the intersection of S11 Naeve Street and SW 109th Avenue, was the subject of a Subdivision/Planned Development review by the Planning Commission on June 6, 1989 (Subdivision S 89-07/Planned Development PD 89-01) . That application requested Planned Development conceptual plan approval and subdivision preliminary plat approval to divide the approximately 10.3 acre parcel into 60 lots intended for single- family residential development. The proposed subdivision would have included a north-south street running through the approximate center of the parcel with connections to SW 109th Avenue as well as to the property to the west. SW 109th Avenue was proposed C. FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 3 to terminate in a cul-de-sac bulb at the northern end ( of the subdivision. SW 109th was to be improved to local street standards and have a number of single- family lots fronting on it. The proposed subdivision was approved by the Planning Commission but the approval has since expired. Also on June 6, 1989, the Planning Commission reviewed a proposal for Planned Development/Site Development Review approval of a request to construct a 72 unit apartment complex on Tax Lots 900 and 9300 north of the previously described proposed subdivision (Planned Development PD 89-02, Site Development Review SDR 89-06, Variance V 89-20). These tax lots are also part of the current application. The Commission approved the proposed development plan which included a cul-de-sac bulb at the end of the northern segment of SW 109th Avenue, approximately 250 feet north of the cul-de-sac bulb approved for the single-family subdivision. The proposed dual cul-de-saccing of SW 109th Avenue was intended to provide a separation between the predominately multi-family res-dential character on the top half of Little Bull Mountain from the proposed primarily single-family residential character of the neighborhood along the south slope i- of Little Bull Mountain and the properties to the south. The Planning Commission's final orders for both the subdivision and apartment proposals, however, noted that if either of the proposed developments did not occur as proposed, it would be necessary to re-evaluate the road patterns in this area. In September, 1989, the Planning Commission was presented with a request to recons;der the application for the proposed 72 unit apartment complex because a significant number of neighboring property owners that were entitled to notice of the public hearing on the matter did not receive notice and did not have the opportunity to testify before the Commission. The City Attorney's office reviewed this request and advised staff that the request be placed on the Commission's November 7, 1990 meeting agenda. The applicant, Terry Cook, requested that the hearing for reconsideration be indefinitely postponed until the applicant determined whether to pursue the application further. No further action was taken by that applicant. The current applicant, Triad Tigard Limited Partnership, filed a Site Development Review/Planned FINAL ORDER - PDR 91-0006/SDA 91-0013 TRIAD 4 Development Review application for development Of a 364 unit apartment complex for the entire subject site in early 1990 (SDR 90-0004/PDR 90-0002) . The proposal was fairly similar to the current proposal except that there was no public roadway proposed to cut through the site as is currently proposed. The development site was to be bounded by SW Naeve Street and SW 109th Avenue. The Commission approved this prior application subject to conditions on May 11, 1990, including a condition that the two segments of SW 109th Avenue abutting the site be permanently separated as well as closing SW 109th south of Naeve Street (Commission Final Order 90-11) . The Planning Commission's decision was reviewed by the City Council on June 25, 1990. The City Council remanded the application back to the Commission for further review regarding the proposed development's potential traffic impacts on nearby streets. included in the Council's discussions was a possible extension of SW Beef Bend Road from the west through the site to connect with SW 109th. On September 4, 1990, the Commission on remand approved an amended Site Development Review/Planned Development Review application including a variance to the maximum local street grade standard for SW 109tsr Aven:.ie (Commission Final Order 90-22). The approval also required development of an emergency vehicle access connection between SW Naeve Street and SW 109th Avenue in Summerfield, but no public street connection. This decision was appealed to the Council by NFO #6. on appeal, the Council reversed the Planning Commission's approval thereby denying the application (Resolution No. 90-71) . The Council's findings in support of this decision indicate that the Council did not feel that the public street connection between SW Naeve Street and SW 109th Avenue in Summerfield was acceptable because it would not provide for an efficient neighborhood circulation system and needed connections between residential neighborhoods with Pacific Highway. The Council also was opposed to the development plan's proposal to direct a significant amount of traffic onto an over-steep local street (SW 109th) . In addition, the Council was not convinced that a public road or private driveway connection to SW Pacific Highway at the Beef Bend Road intersection was not possible to serve the proposed development. In December of 1990 the City Council authorized NPO #6 to initiate consideration of a Comprehensive Plan Amendmentt focused on transportation issues in the l FIZ4AL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 5 MEMO" area of S.W. 109th Avenue and Naeve Street. After review of various alternatives, the NPO recommended specific amendments to the Transportation Map. The amendment changed the designation of Naeve Street from a minor collector to a local street; designated 109th Avenue as a minor collector; indicated that 109th Avenue is to be realigned to curve across the south slope of Little Bull Mountain, crossing Naeve Street at a point west of the Fountains development and continuing south of Naeve Street to intersect Pacific L-1ighway at Royalty Parkway; and indicated a minor collector street connection between 109th and 100th Avenue to intersect 100th in the vicinity of Sattler Street. The City Council approved this map change on August 13, 1991, (Ordinance 91--22) . The Council's decision was final on September 12, 1991. The Oregon Land Use Board of Appeals (LUBA) remanded the decision on January 28, 1992. On remand, the City Council approved a modified plan amendment that designated the connection between 109th and 100th Avenue as a local street rather than a minor collector, but the amendment left unchanged the proposed alignment of a minor collector street across the site now proposed for an apartment development (Ordinance 92-07). On October 14, 1991, the Planning Commission approved with conditions the current Planned Development Review/Site Development Review application submitted by the applicant (Planning Commission Final Order No. 91-11 PC) . This application incorporates the realignment of 109th Avenue approved by the City Council in the current site plan for a 348 unit apartment complex. NPO #6 and Marge E. Davenport separately appealed the Planning Commission's Decision to the Council. NPO #61s sole concern was that the completion of site development not occur before construction of 109th Avenue through to Pacific Highway was completed. Ms. Davenport's appeal raised a number of issues, including environmental effects, soil stability, and traffic effects. The Council held a public hearing on the appeal on December 10, 1991. The hearing was continued to February 25, 1992; March 10, 1992; and April 14, 1992. At the March 14th hearing, the applicant submitted a modified preliminary site plan that contained additional open space on the northern boundary of the property in order to further minimize any adverse effects the development might have on vegetation and wildlife. FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 6 3. vicinity Information The development pattern in the area of the subject site consists of existing duplexes and the 130-unit Timberline Apartments development to the north; the Canterbury Woods condominium development to the northeast; single family residences and a nursery on large lots to the east; an undeveloped parcel covered with tall fir trees to the west (t.l. 300); Pacific Highway and King City further west; and the Summerfield planned community to the south. The Fountains at Summerfield condominium complex is immediately south of the site. As previously noted, the City's Transportation Plan Map now calls for a minor collector extension of S.W. 109th to be constructed through the subject property. The subject property has approximately 890 feet of frontage on SW Naeve Street which is now functionally classified as a local street. SW Naeve Street is generally substandard in width and state of improvements, wit; rhe exception of the frontage of the Fountains at ❑merfield development to the south. Half-stre, , improvements, including approximately 30 feet of pavement, curbs, a sidewalk, and streetlights have been installed along the Fountain's frontage. The subject parcels have approximately 1500 feet of total frontage along the alignment of SW 109th Avenue. SW 109th Avenue, north of the intersection with SW Naeve Street, is a steep gravel road extending approximately 1200 feet to a dead end. Approximately 200 feet further north beyond this dead end, the northern segment of SW 109th Avenue continues. This northern section of SW 109th Avenue extends northward to Canterbury Lane. The subject properties *lave approximately 100 feet of frontage along this rthern section of SW 109th Avenue. SW 109th Avenut- is functionally classified as a minor collector street. Tax lots 600, 700 and 800 have approximately 360 feet of frontage on SW Pacific Highway. Pacific Highway is a 4-lane divided arterial under the jurisdiction of the Oregon State Highway Division. The southwestern corner of the subject site along SW Naeve is located approximately 500 feet east of the Naeve/Pacific Highway intersection. A left-turn lane is provided on Pacific Highway for southbound traffic FINAL ORDER - PDR 91-0006/SDR 91-0n?3 TRIAD 7 onto SW Naeve Street. The intersection of SW Naeve Street and Pacific Highway is not signalized. 4. Site Information and Proposal Description The subject 26.2 acre property previously contained houses on Tax Lots 200, 700, 800, and 9300. All have been removed except for the house on tax lot 9300. The remainder of the property is vacant, covered with a combination of tall rir trees, lower height deciduous trees, and brush. The property slopes predominantly to the south and southwest at varying grades. Approximately 0.8 acres on tax lots 600, 700, and 800 has a slope of greater than 25 percent. The applicants propose to develop a 348 unit apartment complex on this site. The development would include 101 one-bedroom, 151 two-bedroom, and 96 three bedroom units for a total of 348 units. The development site would be split by a curved collector street connection between SW Naeve Street and SW 109th Avenue intended to conform with the recently adopted Transportation Map amendment for this area. The alignment of SW Naeve Street to the west is proposed to be shifted somewhat northward in order to provide for a 90 degree intersection with this proposed new street. A minor reconstruction of Nae-ye Street is also proposed at 109th to from a 90 degree intersection. Also proposed would be a recreation building located near the center of the site. A gymnasium, indoor Pool, outdoor pool, and lounge within the recreation building are proposed. in addition, a jogging path is also proposed to provide recreational facilities for the proposed development. The areas of tax lots 600, 700 and 800 would not include any new improvements. Parking would be provided by 661 total parking spaces consisting of 360 covered parking spaces (combination of garages and under apartment buildings), 14 designated handicapped parking spaces, and 287 other uncovered spaces. The southern section of the proposed development which contains 60 units would be served by one-24- foot wide access driveway from the proposed connecting street. No other access would be provided to this section of the development from either SW Naeve Street, SW 109th Avenue, or from the proposed connecting street. The existing section of SW 109th \ FINAL,ORDER - PDR 91-0006/SDR 91-0013 TRIAD 8 Avenue, north of Naeve Street, is proposed to terminate in a hammerhead style turnaround short of connecting with the proposed connector street. The northern portion of the proposed development is proposed to be served by a 24 foot wide main access driveway from the proposed connector street extending northward through the site to a connection with SW 109th Avenue in the northeastern section of the site. The northern sect-Jon would also be served ari additional 2$-foot wide access driveway onto SW 109th Avenue that would extend westward to connect with the main internal roadway as well as one dead end access driveway which would stop short of SW 109t1-s_ A network of five foot wide sidewalks would be provided along the primary roadway and between parking areas and residential buildings. The north-south soft surfaced jogging path provided through landscaped and tree covered area on the eastern portion of the site would provide pedestrian access between the northern- most units and the recreation building. The preliminary landscaping plan shows existing trees that are proposed to be retained. The area along SW Pacific Hi-ghway on tax lots 600, 700 and 800 is to be left with existing vegetation. The landscaping plan calls £o27 removing underbrush and planting -Iaoan and a variety of bushes and trees throughout the portion of the site to be developed in order to create a park- like appearance on the site. The landscaping plan shows cross sections of proposed perimeter buffer material arrangements and lists plant materials. The applicant's revised site plan (included within the Wildlife Resources Habitat Survey report prepared by Fishman Environmental Services) modifies the site plan approved by the Planning Commission by moving the northernmost row of apartments and park:ing spaces to the south. This revision allows additional conifer trees and vegetation to be preserved and creates more open space on the site. The revision also enlarges the buffer area on the northern boundary of the site. 5. Agency- and NPO Comments The City Planning Division received comments on the application from the City of Tigard Engineering Division, the Oregon State Highway Division., the City of Tigard Building Division, Neighborhood Planning Organization 6, the Summerfield Civic Assooj.ation, the Tigard Water District, Tigard School District FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 9 23J, and the Tualatin Valley Fire and Rescue ( District. These comments were relayed to the Planning Commission and City Council through incorporation within the Planning Division staff report on the proposal. Washington County•s Department of Land Use and Transportation and PGE have also reviewed Lila proposal but have issued no comments or objections. Ring City, GTE, Northwest Natural Gas, and the Metropolitan Area Communications Commission were provided with plans and an opportunity to comment on the proposal. No comments were received from those agencies. B. ANALYSIS Resubmittal Within One Year of Denial The applicant submitted a new application less than 12 months after the Council's November 26, 1990, denial of the applicant's prior development application affecting this site. Code Section 18.32.280 contains the following language regarding resubmittal of an application that has been denied: t "An application which has been denied or an application which was denied and which on appeal or review has not been reversed by a higher authority, . . may not be resubmitted for the same or a substantially similar action for a period of at least 12 months from the date the final City action is made denying the application unless there is a substantial change in the facts or a change in City policy which would changes the outcome." The applicant has submitted a letter dated August 27, 1991, which addresses the criteria for resubmittal. The Council agrees with the applicant that the current site plan with a public road through the development eliminating the need for variances to public road improvement standards is a substantial change from the previously denied site plan thereby constituting a substantial change in facts from the previously denied application. In addition, the recently approved amendment to the Transportation Plan constitutes a change in City policy that may affect the outcome of the application. Therefore, review of the current application is consistent with Section 18.32.280. FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 10 _ —ism -� , -- ( R-25 and R-12 Zoning Districts Multi-family residential use of the site is a permitted use in both the R-25 and R-12 Zoning Districts. Eighty-eight dwelling units are proposed on area that provides an opportunity for approximately 88 units in the area of the site designated with the R-25 zone. Two hundred and sixty dwelling units are proposed on area that provides a maximum opportunity for 271 dwelling units on the portion of this site that is designated with the R-12 zone. The applicant's density calculations are noted on sheet A001 of the proposed site plan. Proposed site improvements comply with both the R-12 and R-25 district requirements for building height (45 foot maximum allowed in R-25, 35 feet in R-12; 35 foot maximum height proposed) , lot coverage (maximum allowed site coverage of 80 percent in both zones; proposed site coverage of less than 50 percent) , and landscaped area (minimum landscape coverage of 20 percent in both zones; proposed landscape coverage of greater than 50 percent). All proposed building locations satisfy minimum building setback requirements. Si-te Development Review The proposal complies with Community Development Code Chapter 18.120.180.A Site Development Review approval standards for provision of private outdoor areas (balconies), shared recreation facilities, (swimming pool, recreation center, pathways), screening of service facilities, multi-family residential building separation, and design offsets along building faces. Dwelling units and the recreation center have been situated toward the interior of the site and appropriately screened or buffered so as to reduce possible noise and lighting impacts on the site and on neighboring properties and to increase visual privacy between adjacent uses. Reasonable care has been taken to preserve existing topography, natural drainage, and mature trees on the site as shown on the site plans and landscaping plan (sheet L-100) although with the amount of development proposed and the grading necessary, a number of trees will be removed. As demonstrated by the applicant's geotechnical engineering study, the site is not subject to ground slumping or sliding and is otherwise suitable for the proposed apartment: complex. FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 11 germs Bsfcre the planni.ug Commission, NPO #6 and the staff recommended that the applicants be required to provide a pedestrian pathway between the northern portion of the development and the existing bus stop on SW pacific Highway at the Beef Bend Road intersection. The applicants, representative argued that although such a pathway would be beneficial in promoting use of mass transit by the development's residents, a pathway in this area could be unsafe due to its necessary steepness, inability to be seen from the development or public streets, and isolation_. The Council concurs with the applicants and the Planning Commission that the questionable safety of such a path outweighs the benefits that would be gained. The Council chooses not to require such a pathway. Other Site Development Review standards (Section 18.120.180.A.-I) related to other Community Development Code standards are reviewed below. Access and Circulation The proposal satisfies Community Development Code Chapter 18.108 standards for internal roadway widths (minimum width of 24 feet) and provision of adequate pedestrian circulation through the use of a soft surfaced pathway through the northern section of the development as well as hard surfaced sidewalks adjacent to both: the public streets adjacent to the site and adjacent to the internal roadways. The Proposed roadway system will provide good circulation for emergency vehicles through the site despite the site's steep grade. The two dead end private roadways within the site would be provided with hammerhead turnarounds. The Council agrees with the Commission's decision not to require an emergency vehicle access to the southern portion of the site from SW 109th Avenue in order to avoid creating a situation that could encourage foot or bicycle traffic from the development towards Summerfield. The southern section of the development would be surrounded by public roads and both the internal road and the southern section of SW 109th would be provided with appropriate turnaround areas for emergency vehicles. The Council finds that the public and private roadway system that is proposed will provide adequate access to the southern section of the development for emergency service purposes. FINAL ORDER - PDR 91-0006/SDA 91-0013 TRIAD 12 Code Section 18.108.070.D provides a sliding scale standard for number of required driveways for a multi-family development comr,lr_v_ basf!�d :. both the number of units and the number of parking spaces. At the public hearing before the Planning Commission, staff described a portion of this Code Section's access standards for a development of this size as being a probable typographical error since the access standard switches from being based on number of dwelling units (if a development of 100 or less units is being proposed) to a standard based on number of total parking spaces (if more than 100 parking spaces is proposed) . Reading the requirement literally, the proposed 348 unit development would be required to provide two access points for the first 100 units and the 150 spaces required to serve those units, and one more access point for each of the 100 additional spaces provided (six more spaces for the 511 additional spaces proposed beyond the first 150 required spaces) . Therefore, a development with 348 units and 661 parking spaces would be required to provide eight access points. Staff believes the I standard was probably intended to refer to number of units throughout the sliding scale calculation. Staff will propose a change in this standard in the future to clarify this section. However, until such a change is made, the standard must be read literally. The proposed development would have four access points; three to the northern portion of the development and one for the southern portion. The applicants intended to limit access points to the northern section of SW 109th Avenue and the new street to be constructed through the site in order to discourage traffic from the development from travelling through Summerfield. The Code recognizes that variances from the access standards may be necessary and provides standards for an access variance that are different than for variances in general. The access variance approval standards are; 1. It is not possible to share access; 2. There are no other alternative access points on the street in question or from another street; 3. The access separation requirements cannot be met; 4. The request is the minimum variance required to provide adequate access; FINAL ORDER PDR 91-0006/SDR 91-0013 TRIAD 13 5. The approved access or access approved with conditions will result in a safe access; and 6. The visual clearance requirements of Chapter 18.102 wi.11 be met. Because of the pattern of surrounding development on abutting lots to the north, it is not practical far the proposed development to share access with the Timberline Apartments. The steepness of slopes and the uncertainty regarding future development type make sharing access with the church property to the west impractical as well. The only other possible access points for the proposed development would either be dangerous due to being located on the downhill curve of the new street or else would direct traffic towards sw 109th through the Summerfield development. It is clear from the previous hearings regarding this site that the City and residents of the area would prefer to discourage traffic from this site from being directed through Summerfield. Any additional access driveways to the new collector street should be discouraged because of limited sight distance along the road's curve and inadequate separation of access points along a collector street. Any other access points would either create a potential unsafe situation. on the collector street or else would encourage traffic through Summerfield; therefore, the degree of variance considered is the minimum variance required to provide safe and adequate access. Because the proposed access points are located at points where adequate sight distance will be provided and because signs and landscaping wi11 make the access driveways very noticeable from the street, the proposed access points will provide for adequate and safe access for the use proposed. Parking The site plan provides for an appropriate number of parking spaces for a 348 unit apartment development (661 parking spaces required per Code Section 18.106.030.A.4; 661 parking spaces provided), covered parking spaces (349 co=rered Larking spaces required; 360 covered spaces provided), and allowable 1 to 4 compact to total required parking space distribution. 1 FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 14 MUM The site plan designates 14 handicapped accessible ( parking spaces that are distributed throughout the site (a minimum of 14 designated handicapped accessible spaces are required) . It is recommended that several of these designated handicapped parking spaces be relocated under cover to better serve the needs of handicapped residents of the proposed development and handicapped visitors. Landscaping The proposed landscaping plan provides appropriate locations, types, and spacing for requ__red street trees. However, the landscaping plan proposes minimum planting sizes for the street tress of 1 and 3/4 inch to 2 inch caliper whereas Code Section 18.1O0.035.A specifies a minimum caliper size of 2 Inches at planting. The landscaping plan will need to be revised accordingly. The plan also provides appropriate understory plantings along the site's frontages to reduce the effects of on-site lights on adjacent uses and upon traffic on the abutting streets. The revised site plan submitted to the Council with the Wildlife Resources Habitat Survey provides for retaining a ( substantial strip of existing large coniferous trees along the site's northern boundary to provide a wide buffer area that is well in excess of the required 10-foot buffar area between this site and the adjacent existing apartment complex(Sect lon 18.100.090). Proposed internal site landscaping will provide appropriate numbers of parking area trees, provide buffering and screening between the proposed buildings, and should supplement the trees and other existing vegetation that is to be retained to make an attractive development. The western section of the site above Pacific Highway will retain its existing vegetation. However in the remainder of the site, the proposed development and its attendant significant amount of grading will necessarily require removal of a number of large trees. The development nonetheless has been planned to minimize, to the greatest extent possible, the removal of existing trees and vegetation, particularly the large, mature coniferous trees on the northern and northwestern portions of the property. A tree removal permit pursuant to chapter 18.150 of the Codc iwiil be ecru red before trees with e a diameter of six inches orgreatercan be removed. An arborist's report will be required prescribing \, �II3AL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 15 Maw M — measures to be followed for protection of existing trees to be retained. Signs The site plan shows signs to be located at three entrances to the proposed development. Community Development Code Section 18.11^ 130 permits housing complex identification signs to�be located at all entrances to multi-family developments. Sign size and height details have not been provided at this time. Sign permits pursuant to chapter 18.114 of Code must be obtained prior to erecting any sign. Sign sizes and heights must be shown to conform with Code standards in order for sign permits to be issued. C. CONCLUSIONS The applicable criteria in this case are Tigard Comprehensive Plan policies 2.1.1, 3.1.1, 3.4.2, 6.1.1, 6.6.1, 7.1.2, 7.2.1, 7.4.4, 7.5.1, 7.5.2, 7.6.1, 8.1.1, and 8.1.3 and Tigard Community Development Code Chapters i 18.32, 18.54, 18.56, 18.80, 18.84, 18.92, 18.96, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.150, and 18.164. I. Policy 2.1.1 is satisfied because NPO #6, the Summerfield Civic Association, Icing City, and affected service providing agencies have been notified of this proposal directly by the applicant in advance of the actual application. These groups have been given an opportunity to comment to the applicant pp nt and the Cit of Tigard with regard to Y g g their concerns with the development plan. Direct notice of the hearing on this proposal has been sent to property owners within 250 feet of the site. In addition, all required hearing notices were provided. 2. Policy 3.1.1, which is implemented through chapter 18.84 of the Code, is met because the northwestern portion of the property, which has slopes over 25 percent, and which therefore is significantly constrained for development purposes, is proposed to remain in its natural state. As shown by the applicant's geotachnical engineering study, prepared by Terra Associates, Inc., the na-inder of the site has few, if any significant development constraints. ( The proposed apartment buildings and associated `. FINAL ORDER - FDR 91-0006/SDR 91-0013 TRIAD 16 development can be constructed without difficulty through the use of the established and proven engineering techniques described in the study. Appellant Marge E. Davenport argued at the hearings and in letters to the City that development of the site was inappropriate because of unstable soils and other potential adverse geologic conditions. These issues were not raised in her notice of review, and therefore the issues are not properly before the Council. (Code Sections 18.32.320.B.2, 18.32.340.A.3.) Even were the Council required to consider appellant's arguments with respect to these issues, the Council does not find the arguments persuasive. The arguments are based on very general information described in the background Volume I resource document of the Comprehensive Plan, which in turn is based on the U.S. Soil Conservation Survey for Washington County. The Terra Associates, Inc. . geotechnical survey submitted by the applicant is much more detailed than the information referred to in the Comprehensive Plan. The Terra Associates report is based in part on data obtained from test pits dug at 28 locations throughout the site and subsequent laboratory testing of soil samples. Furthermore, the Terra Associates report is specifically directed to -.:he suitability of the site for the apartment complex proposed by the applicant. The general information referred to in Comprehensive Plan Volume I is not addressed to any specific type of development. i The types of soils reported by Terra Associates at the site are nonetheless consistent with the general soils description in the Comprehensive Plan. Based on their study, Terra Associates described the specific weight-bearing limits of the soils, their stability, and the design and construction methods that should be employed to assure soil stability. The design and construction methods recommended are not unusual in the Tigard area. The Council finds no credible evidence of geologic problems that would preclude approval of the proposed development or otherwise make it infeasible. The Terra Associates recommendations will be considered when detailed construction and grading plans are prepared for the development. 3. Policy 3.4.2 applies to designated tree areas and to habitat values delineated on the City's "Fish and FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 17 Wildlife habitat Map." The policy does not directly ( apply to development proposals; it is implemented through the development standards imposed by the Planned Development and Site Development Review processes, which, for example, incorporate the Code's tree removal standards in order to minimize tree removal. Policy 3.4.2 and its implementing measures apply directly only to the mature coniferous forest on the northern portion of the site, which is identified as "Area A" in figure 3 of the March 1992 Fishman Environmental Services report. Area A is the portion of the site within the Little Bull Mountain Natural Forest, the only significant natural resource that the Comprehensive Plan's Goal 5 analysis designates for the site. No significant wildlife habitat areas are designated on the site by the Plan. Pursuant to the requirements of Statewide Planning Goal 5, the City of Tigard inventoried Goal 5 resources and designated in its Comprehensive Plan those Goal 5 resources that it has determined to be significant. (Comprehensive Plan Vol. I, pp. 94- For these designated Goal 5 resources, the Comprehensive Plan identifies potential conflicts; performs an economic, social, environmental, and energy consequences analysis of the conflicts; and adopts a program to resolve the conflicts. (See id.) The City's Comprehensive Plan, including its Goal 5 provisions, were acknowledged by the Land Conservation and Development Commission. on October 11, 1984. The ,summi-t of Little Bull Mountain" is mentioned as a "special area" and an area of scenic value in the City's Natural Features and Open Space Comprehensive Plan Report. (See Comprehensive Plan Vol. ,I, pp. 42- 42) . The summit area of Little Bull Mountain, however, was not inventoried as a significant Goal 5 resource, with the exception of those resources included within the designation of the Little Bull Mountain Natural Forest. The Comprehensive Plan identifies the Little Bull Mountain natural forest as an area of mature coniferous trees on the west side of Little Bull Mountain. (Comprehensive Plan, Vol. 1, P. 96.) The forest was designated as a Goal 5 resource because it was determined to be "an outstanding scenic site.,, (Id.) The Comprehensive Plan explains that the scenic value of the site stems from the visual FINAL ORDER - PDR 91-0006/SDR 9i-0013 TRIAD 18 ( landmark provided by the large stand of mature coniferous trees at an elevated location within the City. In contrast, the Comprehensive Plan notes that "wildlife within [the forest) . . . is limited to small birds and animals." The Comprehensive Plan anticipated and resolved conflicts between the scenic values of the Little Bull Mountain natural forest and other land uses, in accordance with Statewide Goal 5. All of the areas included in the Little Bull Mountain natural forest are designated by the Comprehensive Plan for future residential development. Although the Plan's background document noted that the area was zoned for low-density residential development, the City, as noted above, approved Plan amendments that increased the residential density of the area. These amendments are an acknowledged part of the Plan. The Plan's Goal 5 analysis, which applies equally to any density of residential development, notes that future development may create conflicts with the designated Goal 5 resources of the Little Bull Mountain natural forest (see Comprehensive Plan, Vol. 1, pp. 96-97, 106-107) and resolves the conflict as follows: "The significant wooded areas are identified and mapped. The policy of the City's comprehensive plan is that these areas will be preserved in a natural state as much as possible or integrated into the design of any development, i.e, parking lot island, building setbacks, street rights-of- way and landscaping areas whenever possible. If it is necessary to remove a portion or all of the trees, the replacement landscape features shall be subject to approval by the applicable approval authority." (Comprehensive Plan, Vol. 1, p. 95.) The Plan expressly requires that "development proposals in designated timbered or tree areas be reviewed through the planned development process to minimize the number of trees removed." (Plan Policy 3.4.2.b.) The Plan thus expressly anticipates that future residential development may destroy some or all of the designated resource, provided that the development complies with the implementing provisions of the Code. FINAL ORDER PDR 91-0006/SDR 91-0013 TRIAD 19 The Code also requires all new developments and major modifications of existing developments, even those not in designated timber or tree areas, to undergo site development review. Code Section 18.120.020. The Code defines "development" broadly to include not only buildings but also any material change in the use or appearance of land. Code Section 18.26.030. Approval criteria for site review include the tree removal provisions of Code Chapter 18.150. See Code Section 18.120.180.A.1.1. These provisions require, among other things, that the tree removal be necessary and that the tree removal will not adversely affect the aesthetic character of the area. See Code Section 18.150.030.A. The City's acknowledged Comprehensive Plan thus expressly anticipates that development, and in particular residential development and associated roadways, may create conflicts with the designated Goal 5 resources in the Little Bull Mountain natural forest. Following the required Goal 5 analysis, however, the Plan chose not to absolutely protect these resources but to conditionally protect them by requiring scrutiny of development proposals to ensure that the number of trees lost through development was minimized. The proposed development complies with the Code provisions that implement Policy 3.4.2. The development minimizes to the greatest extent possible the number of trees to be removed, particularly the mature coniferous trees that lie within the Little Bull Mountain natural forest in the northwestern and northern portions of the site. The northwestern portion of the site is left entirely undisturbed, and a large buffer of coniferous trees is left along the northern boundary of the site; as recommended by the Fishman Environmental Services report. In addition, the site plan incorporates several groves of existing mature trees within the landscaped areas of the developed portion of the site and provides substantial replacement landscaping in areas that will be disturbed. Furthermore, the applicant will be required to obtain a tree removal permit in accordance with the provisions of (lode Chapter 18.150 before removing any trees. Permits may be granted only if the City finds that the removal of the tree is necessary to accommodate structures, driveways, utilities, or other proposed site improvements. The site plan illustrates trees within the development that will be FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 20 T retained and demonstrates compliance with Policy 3.4.2 and its implementing provisions. In order to ensure that the actual development of the apartments i remains consistent with these provisions, a detailed tree survey and an arborist's report outlining methods of protection of the trees to be retained must be submitted prior to issuance of a site grading Permit or a tree removal permit. Appellant Davenport suggests that the proposed development will adversely affect the Ixallstrom fir grove, a small linear grove of trees that lies several hundred feet east_ of the site. Lille the Little Bull Mountain natural forest, the Kallstrom fir grove is a Goal 5 resource that the City designated solely for its scenic values. The development of the site will not require any disturbance of the Kallstrom fir grove. Appellant does not specify in what respect she believes the grove or its scenic values would be harmed by the development, nor does she identify how any approval criterion would be violated with respect to the grove. Appellant Davenport also contends that the proposed development will violate Policy 3.4.2 or Pian ,r provisions because it will adversely affect wildlife. <._ The Council disagrees. Policy 3.4.2 applies only to stream corridors and other habitats designated on the City's "Fish and Wildlife Habitat Map. - No fish or wildlife habitats are designated on the site or in the vicinity of the site by the Comprehensive Plan's map of "areas with important values for wildlife (Diagram V at page I-41 of Volume I of the Plan). Accordingly, Policy 3.4.2 and other Plan provisions related to wildlife do not apply. The Comprehensive Plan Resource Document at pages I-36 through I-43 discusses wildlife and notes wildlife habitat values associated with the "Summit of Little Bull Mountain. " The City's ESEE analysis of the Little Bull Mountain Natural Forest, however, described the wildlife within the forest as "limited," and chose not to protect thiswildlifeagainst conflicting uses, as is further evidenced by the failure to .include this area on Diagram V of Volume I of the Plan) . Moreover, even if the City were obliged to consider the proposed development's effects on wildlife, Policy 3.4.2 and its ,implementing Code provisions would not require the City to deny development FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 21 r approval because of adverse effects on wildlife. Policy 3.4.2 requires only that any adverse effects be minimized through cluster development and other measures. The proposed development minimizes any adverse effects on wildlife by leaving much of the coniferous forest In the northern portion of the site undisturbed, by leaving mature trees standing within rN the developed area, and through planting replacement vegetation. These minimization efforts are consiRtent with +}+e recommend t_cns for open space contained in the Fishman Environmental Services Report, which concluded that the northern portions of the site had the greatest importance for both wildlife and scenic values. The Fishman Environmental Services Report described wildlife habitat values throughout the site as low to moderate. Appellant Davenport submitted reports by a wildlife biologist, Mr. Paul Whitney, who concluded that the site areas outside the coniferous forest were more important as wildlife habitat. This opinion was seconded by Oregon Department of Fish and Wildlife Urban Wildlife Biologist Doug Cottam in a letter to staff dated April 6, 1992. Staff had contacted Mr. Cottam for review and comments on the Fishman study. The Council finds that these reports are generally consistent with the Fishman Environmental Services Report. The Council, however, disagrees with the report's conclusions that additional open space should be provided in the southern portions of the site. First, as discussed above, the Council does not believe that protection of wildlife habitat is an approval criterion for this site. Second, the Council agrees with the Fishman Environmental Services Report that the site's habitat values are limited by the site's isolation from other wildlife habitats and by the absence of water on the site. The site is adjacent to a major four-lane state highway (Highway 99W) and is surrounded by extensive commercial and residential development in an area that is designated by the Comprehensive Plan for substantial additional development in the future. Third, the Fishman Environmental Services Report evaluated the site's wildlife habitat in conjunction with the site's scenic resources, which are the only resources deemed significant by the Comprehensive Plan. Given the need to protect these scenic resources, the effects on both wildlife and scenic resources could only be minimized through placing the bulk of the site's open space in the northern portion of the site, as the revised site pian does. FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 22 Providing additional open space in the southern ( portion of the site would adversely affect the site's scenic values. Finally, appellant Davenport suggests that the site plan is deficient because it does not show "what may be wetlands" on the site. This issue was not raised before the Planning Commission or in appellant's notice of review. The issue is therefore not properly before the Council. (Code Sections 18.32.320.8.2 and 18.32.340.A.3)./ Even were the Council required to consider appellant's arguments concerning the asserted wetland, the Council finds no basis in the arguments for denying the application. Appellant's argiurents are based on Air. Cottam's observation that a small area of standing water on the site should be evaluated to determine whether it is a wetland and on Mr. Whitney's reference in his report to a "small wetland." Neither Mr. Cottam nor Mr. Whitnev evaluated the area to determine whether it qualified as a wetland; and indeed, Mr. Cottam did not actually assert that the area is a wetland.. Jerry Offer of the City's planning staff noted, however, that the area observed by Mr. Cottam may not qualify as a wetland as it is apparently only a small area of wet season water accumulated in old vehicle tire tracks as reported by Mr. Cottam's letter and ve=rified in the field by Mr. offer. In addition, the subject site does not appear as a potential wetland site in the National Wetlands Inventory or a city-wide wetlands inventory conducted by Scientific Resources, Inc. (SRI) , and is not indicated as an area of hydric soils on maps in the SRI inventory. Furthermore, Mr. Offer noted that, even if the area is a wetland, it may be sufficiently small that it could be filled with less than 50 cubic yards of fill and therefore be exempted from state and federal wetland regulations. There is further testimony in the record that the asserted wetland could in fact be filled with less than 50 cubic yards and would qualify for a general nationwide permit from the U.S. Army Corps of Engineers. The Council finds that there is no conclusive evidence that there is a wetland on the site. Nonetheless, in order to resolve any wetland issue that may be present, the Council agrees with the applicant's suggestion to add a condition of approval to require the applicant to have the site evaluated by a qualified wetland biologist to determine whether { FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 23 Olic raw 11 a wetland exists on the site. Further, if a wetland exists on the site, the applicant would be required to satisfy the requirements of Code Chapter 15.84 related to wetlands including satisfaction of any applicable state or federal wetland regulations prior to the issuance of permits for the proposed development. The Council concludes that, if a wetland is present, the wetland likely could be filled with less than 50 cubic yards and under a nationwide permit from the Corps of Engineers. Accordingly, the wetland likely would not pose any constraints on the property. No evidence was presented that them are wildlife or other resource values associated with this wet area. 4. In order to comply with Policy 4.2.1, a condition is warranted to require the prospective developer to prepare an erosion control plan ensuring compliance with erosion control standards for the Tualatin River basin as part of the grading permit application. The Council finds that the erosion control standards can be satisfied at the site. 5. Policy 6.1.1 is satisfied because the City is obligated to provide for a variety of housing types and rent levels. This proposed multi-family project would add to that diversity in a community that is L predominantly developed with single family residences at lower densities. The site has been designated for multi-family development by the Comprehensive Plan for some time. 6. The landscaping plan satisfies Policy 6.6.1 by providing suitable building setbacks and landscaping between this project and the properties designated for single family development on the east side of SW 109th Avenue. All other properties in the immediate vicinity are designated for multi-family use. 7. Policy 7.1.2 is met because adequate public water, sanitary sewer, and storm sewer facilities are available to serve the proposed development. Extension of these facilities to or through the site will be required to be constructed to City and Tigard Water District standards. 8. In order to satisfy Policy 7.2.1, the applicant will, as a condition of approval, provide an appropriately engineered plan for disposing of storm water runoff from the site in a manner that will not adversely affect any downstream property owners or jurisdictions. Based upon the geotechnical evidence FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 24 and agency comments, the Council finds that it is feasible for the applicant to satisfy this condition. 9. Policy 7.4.4 is met because the entire apartment complex would be connected to the public sanitary sewer system. 10. Policies 7.5.2 and 7.6.1 have been satisfied because the Tigard Police Department and the Tualatin Valley Fire District have been involved in the review of this application and have offered comments that have been incorporated into this report. 11. Policy B.1.1 calls for the provision of a safe and efficient street system that mee-s current needs and anticipated future growth and development. This policy is satisfied because: a. The main driveway entrance to the development is proposed to be on the new 109th Ave., a minor collector street, which is intended to accommodate the approximately 2000 vehicles per day that this development is calculated to generate. Secondary access is provided onto SW 109th Avenue, which will in turn direct traffic from the development south ontothe new street or north to SW Canterbury Lane, also a minor collector. As indicated in the applicant's traffic report, some traffic will travel south of SW Naeve Street on SW 109th Avenue if the street is left open. The proposed segmenting of both SW Naeve Street and SW 109th Avenue will largely discourage southbound traffic on SW 109th Avenue through Summerfield. b. The applicant will be responsible for the construction of street improvements along the frontages of the development to City standards. C. Based upon traffic studies in the record, the Council concludes that the traffic generated by the development will be within the capacity of the adjacent street system. This conclusion holds true even if 109th Avenue is not constructed between Naeve Street and Pacific Highway (Highway 99W) . Naeve Street will have sufficient capacity to handle safely and efficiently traffic generated by the development and any additional traffic from north of the development that might choose to make use of the opening of 109th Avenue. FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 25 d. Nonetheless, to allay the concerns of area ( residents with respect to the timing of the construction of the southern portion of the extension of 109th Avenue, the applicant has proposed to enter into an agreement with the City whereby the applicant will contribute $300,000 to the construction of this portion of 109th Avenue south of Naeve in exchange for a $300,000 traffic impact fee credit. Appellant Davenport objected that 109th Avenue has not been added to Washington County's "base facility list," to which traffic impact fee credits may be applied. 109th Avenue, however, has in fact been added to the list of facilities eligible for credits /City of Tigard Resolution 91-68, adopted October 28, 1991) . 12. Policy 8.1.2 is satisfied because the State Highway Division, the Washington County Department- of Land Use and 1'rarsportation, and other agencies and jurisdictions noted above have been involved in the review of the transportation issues pertaining to this application. 13. The conditions of approval for this project will ensure that Policy 8.1.3 Is satisfied because- a. The development abuts three public streets. The proposed driveways should provide adequate and safe access to the proposed development. b. Sufficient street right-of-way shall be dedicated as a condition of approval along the existing SW Naeve Street as well as full right- of-way dedication being required for the new collector street through the project. C. The applicant will be responsible for the improvement of the new street, SW 109th Avenue, SW Naeve Street, and SW Pacific Highway abutting the site in a manner that is consistent with city and state standards. d. Due to the location of the project on a street not served by public transit, a bus turnout is not necessary. e. Pa=king spaces for disabled persons will be provided as required by city and state standards. l FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 26 f. The property is not affected by the adopted bicycle/pedestrian plan for the city. The Council concludes that the proposal, with minor modifications that are required to be made prior to building permit issuance, is consistent with applicable portions of the Community Development Code based upon the following findings: 1. Chapter 18.32 (Procedures for Decision Making: Quasi- rudl =1) = y4tisfied because the - for resubmittalofa previously denied application are satisfied as described? above and because notice and decision making standards applicable to this type of review that are included in this chapter have been followed. 2. Chapter 18.54 (R-12 Zone) is satisfied because the proposal conforms with use, density, and applicable dimensional requirements of the R-12 zone. 3. Chapter 18.56 (R-25 Zone) is satisfied because the proposal conforms with use, density, and applicable dimensional requirements of the R-25 zone applied to the western portion of Tax Lot 200. 4. Chapter 18.80 (Planned Development) is satisfied because the propo3al has been reviewed as required by the provisions of the Planned Development overlay zone. 5. Chapter 18.84 (Sensitive Lands) is satisfied because the development plan_ avoids development of areas of the site with slopes in excess of 25 percent, therefore not triggering the Sensitive Lands Review process for steep slopes. In addition, the site does not contain any designated drainageways, 100 year floodplain areas, or wetlands regulated by this Code chapter. The National Wetlands Inventory maps and the City of Tigard Wetlands Inventory and Assessment conducted by Scientific Resources, Inc. do not indicate the presence of any wetlands on the site. However, two commenters on the development plan have identified a small area of surface water that existed on the site in early April of 1992. City staff have verified the presence of this wet area. For the reasons stated above under Policy 3.4.2, the Council concludes that the issue of whether a wetland present on the site is not properly before it. Nonetheless, in o=_^der to resolve any wetlands issues that may be present, the Councilagrees with the applicant's suggestion that to add a condition of development FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 27 8 Ww) fta - - ggq� - all approval to require the applicant to have this area evaluated as to whether it is a wetland and to satisfy any provisions of Code Chapter 18.84 related to wetlands. Based on the evidence in the record, the Council concludes that if a wetland is present, the wetland likely could be filled with less than 50 cubic yards and under a nationwide permit from the Corps of Engineers. Accordingly, the wetland likely would not pose any constraints on the property, and the applicant could satisfy the requirements of Code Chapter 18.84. 6. Chapter 18.92 (Density Computations) is satisfied because the site plan provides an appropriate calculation of the permitted number of housing units for the site and the proposed development would provide fewer than the allowed number of dwelling units. 7. Chapter 18.96 (Additional Yard Setback Requirements and Exceptions) is satisfied because the site plan provides for appropriate distances as required by this chapter between the proposed multi-family residential buildings so as to assure privacy to residents and to also provide adequate light to all units. 8. Chapter 18.100 (Landscaping and Screening) is sa•_i.sfied because plans for tree retention and added landscaping satisfy Code requirements for minimum site area landscaping, street trees, perimeter buffering, and vision clearance at intersections. 9. Chapter 18.102 (Vision Clearance Areas) is satisfied because proposed improvements at driveway/road intersections are located or sized with respect to maintaining clear vision for motorists and pedestrians. 10. Chapter 18.106 (Off-Street Parking) is satisfied because the site plan satisfies Code requirements for number of total parking spaces provided, covered parking spaces, compact/total parking space ratio, designated handicapped parking spaces, and parking area lighting. 11. Chapter 18.108 (Access, Egress, and Circulation) is satisfied because the site plan provides for safe and efficient access and egress for the proposed use and forcneral c- "c-1= ion on the si_e. The pian also provides for adequate and safe pedestrian sidewalks through the site. The proposed access and internal FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 28 AM An Alinn roadway plan provides for adequate emergency vehicle access and maneuverability through the site. The proposed development will be provided with an adequate number of drisreuray accesses to serve the proposed development, despite not meeting the required number of access driveway standard of j 18.108.070.D. The road situation affecting this site dictates a reduction in possible access points on the streets abutting the site in order to direct traffic onto higher order roads and in order to avoid driveways onto the proposed curve of SW 109th Avenue. The approval criteria for an access variance are addressed above. 12. Chapter 18.114 (Signs) --;s satisfied with regard to permitted sign locations. Sign permits must be obtained prior to the erection of any sign on the site. 13. Chapter 18.120 (Site De-,>elopment Review) is satisfied because the site plan generally provides for the proposed buildings and other site improvements to be located so as to preserve existing trees and to minimize alterations to the site topography and drainage systems. The site plan also situates the buildings so as to provide for privacy and light for the proposed dwelling units and to assure compatibility between the proposed development and adjacent uses. The proposed recreation center, pool, and walking trail will provide appropriate recreational facilities for the development's residents. 14. Chapter 18.150 (Tree Removal) will be satisfied for the reasons discussed above and because the applicant will be required to obtain a tree removal permit prior to removing trees in preparation for development. Permits wi 11 be granted only if it is found necessary to remove the trees to accommodate structures, driveways, utilities, or other proposed site improvements. The site plan illustrates trees within the development that will be retained. A detailed tree survey and an arborist's report outlining methods of protection of the trees to be retained must be submitted prior to the issuance of a site grading permit or a tree removal permit. 15. Chapter, 18.164 (Street and Utility.Standards) will be satisfied upon approval of public imp,o=aersen� plans for and construction of the recommended improvements to the proposed new Naeve/109th connecting street, SW FINAL ORDER PDR 91-0006/SDR 91-0013 TRIAD 29 ®Mmu MW us Naeve Street, SW 109th Avenue, and SW Pacific Highway. Approval of public improvement plans is required prior to the issuance of building permits for the proposed development. Although the proposed development will contribute a substantial amount of traffic to nearby streets, the additional traffic will not result in the design capacity of these roads being exceeded or require additional traffic control measures. The creation of the 107th-Naeve connecting streei will discourage traffic from travelling through the Summerfield area, especially when this street is extended through to the SW Royalty Parkway/Pacific Highway intersection. The proposed storm drainage system will collect stormwater from the portion of the site to be developed and direct this water to the storm sewer at the intersection of SW 109th and Naeve. The public improvement plans will include an analysis of the anticipated stormwater flow from this area. Drainage pipes can be and shall be sized accordingly. Total stormiwater flow from this site to the gest will be reduced because the on-site storm drainage system will capture some overland flow that would drain westward if the site remained undeveloped. D. DECISION The Council affirms the Planning Commission's approval of Planned Development Review PDR 91-0006/Site Development Review SDR 91-0013 and the associated access variance subject to the following conditions, as modified by the Council: THE FOLLOWING- CONDITIONS SHALL HE SATISFIED BEFORE ANY TREE REMOVAL, GRADING OR SITE-WORK ON THE SITE. 1. The site plan and landscaping plan shall be revised to be consistent with Figure 3 of the Wildlife Habitat Resources Survey report prepared by Fishman Environmental Services for the proposed site prior to any tree removal, grading, or site work. STAFF CONTACT: Jerry Offer, Planning Division. 2. During all construction of the on-site and off-site improvements, all construction traffic shall travel to and from the site via the intersection of Naeve Street and Pacific Highway. Construction vehicles, �. FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 30 a including employee vehicles, shall not be allowed to park on Naeve Street, 109th Avenue or within the public right-of-way. 3. A detailed tree protection plan shall be submitted for Planning Division approval which includes locations and types of trees to be removed or retained, an arborist's recommendation for methods of protecting retained trees during construction of the proposed apartments as well as for the long-term health of these trees. This tree p::-otection plan shall include at a minimum all trees designated for retention on the preliminary landscaping plan and should endeavor to add additional mature trees as practicable. The trees to be saved shall be protected during construction by fencing or similar means approved by the Planning Division. No site grading, clearing or tree removal shall occur prior to satisfaction of this condition. STAFF CONTACT: Jerry Offer, Planning Division, (639-4171) . 4. The landscaping plan shall be revised to provide for a minimum caliper of 2 inches at planting for all street trees along public streets abutting the site. STAFF CONTACT: Jerry Offer, Planning Division (639- 4171) . t 5. A demolition permit shall be obtained prior to destruction or moving any of the existing buildings on the site. If the buildings are on septic tanks, the tanks shall be pumped out and either removed or filled with sand or gravel. If the buildings are connected to sanitary sewers, the lines shall be capped off in an approved manner. An inspection shall be obtained after the tank is filled or the sewer capped. A copy of the receipt for septic tank pumping shall be provided to the Building Division. STAFF CONTACT: Brad Roast, Building Division (639- 4171) . 6. The finished grade of cuts or fills shall have a maximum slope of 2:1, or else a professional engineer shall certify the stability of any steeper slopes. Prior to the issuance of building permits, a report from a registered engineer shall be submitted. The report shall indicate the location of any fill placed on building sites, suitability of the soil for building construction, and soil bearing capacity. In addition, a grading plan shall be submitted (To the Engineering Department) showing the existing and proposed contours. STAFF CONTACT: Brad Roast, Buildina Division (639-4171). FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 31 UNLESS OTHERWISE NOTED, THE FOLLOWING CONDITIONS SHALL BE SATISFIED AND PUBLIC IMPROVEMENTS SHALL BE COMPLETED, OR ELSE COMPLETION SHALS, BE FINANCIALLY ASSURED, PRIOR TO RECEIVING BUILDING PERMITS. STAFF CONTACT FOR ALL CONDITIONS OF APPROVAL IS CHRIS DAVIES OF THE ENGINEERING DEPARTMENT UNLESS OTHERWISE NOTED. 7. Two (2) sets of detailed public improvement plans shall be submitted for preliminary review to the Engineering Division. Seven (7) sets of approved drawings and one (1) itemized construction cost estimate, all prepared by a Professional Engineer, shall be submitted for final review and approval (NOTE: these plans are in addition to any drawings required by the Building Division and should only include sheets relevant to public improvements). 8. Standard half-street improvements, including concrete sidewalk, curb, storm drainage, and streetlights shall be installed along the Pacific Highway frontage. Improvements shall be designed and constructed to State Highway Division standards and shall conform to the alignment of existing adjacent improvements or to an alignment approved by the Oregon State Highway Division. A copy of the approved plans shall be provided to the City Engineering Division prior to issuance of a Public Improvement Permit. 9. The applicant shall obtain a permit from the State of Oregon Highway Division, to perform work within the right-of-way of Pacific Highway. A copy of the permit shall be provided to the City Engi-neering bivision prior to issuance of a Public Improvement Permit. 10. Sanitary sewer and storm drainage details shall be provided as part of the public improvement plans. Calculations and a topographic map of the storm drainage basin and sanitary sewer service area shall be provided as a supplement to the public improvement plans. Calculations shall be based on full development of the serviceable area. The location and capacity of existing, proposed, and future lines shall be addressed. 11. The applicant shall demonstrate that storm drainage runoff can be discharged into the existing drainage-Rays without significantly impacting properties downstream. FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 32 12. The proposed privately-operated and maintained ( parking lot and/or roadway plan-profile and cross section details shall be provided as part of the public improvement plans. 13. An erosion control plan shall be provided as part of the improvement drawings. The plan shall conform to "Erosion control Plans - Technical Guidance Handbook, November 1989." 14. Prior to the receipt of building permits, a delineation of wetland boundaries, if any, on the site shall be completed by the applicant, and, if necessary, applicable provisions of Section 18.84 (Sensitive Lands) shall be met prior to issuance of such permits. 15. At all parking lot entrances, a minimum of 20 feet between the public sidewalk and the first parking stall shall be maintained. 16. There shall be no vehicle connection between Old 109th and New 109th. A turnaround, i.e. hammerhead meeting the city's and fire department's approval shall be provided at the end of Old 109th. No other improvements shall be required north of the intersection of Old 109th and Naeve Street. 17. Naeve Street shall be realigned at Old 109*•h to intersect old 109th at approximately a 90-degree angle, and shall conform to the alignment shown on the submitted preliminary plans. The existing south curb shall be reconstructed to match the new alignment. NOTE: Old 109th shall be considered from the existing intersection of SW Naeve/109th; New 109th Shall be considered from the new intersection of S.W. Naeve to where it intersects with the existing 109th in the northeast corner of the development 18. S.W. Naeve Street shall be improved in the followi-ng manner (NOTE: All stationing is taken from the preliminary submitted plans): A. Full street improvements, meeting local street standards, shall be provided from STA. 2+37 to STA. 7+00. Full width street improvements shall include traffic control devices, concrete sidewalks, driveway aprons, curbs, asphaltic concrete pav`inert, sanitary sewers, storm drainage, streetlights, and underground utilities. C_ FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 33 Mai B. Two-thirds street improvements, meeting local :street standards, shall be provided from STA. 7+00 to STA. 14+59. Two-thirds street improvements shall include concrete sidewalk, drive-way apzosis, curb, asphaltic concrete pavement, sanitary sewer, storm drainage, streetlights, underground utilities, and interim improvements to maintain traffic flow in the eastbound lane. 19. S.W. 109th Avenue shall be improved in the following manner (NOTE: All stationing is taken from the Preliminary submitted plans): A. Full street improvements, meeting minor collector street standards, shall be provided from STA. 10+00 to STA. 19+20. Full width street improvements shall include traffic control devices, concrete sidewalks, driveway aprons, curbs, asphaltic concrete pavement, sanitary sewers, storm drainage, streetlights, and underground utilities. B. Two-thirds street improvements, meeting minor collector street standards, shall be provided from STA. 19+20 to STA. 27+80. Two-thirds street improvements shall Include concrete sidewalk, driveway aprons, curb, asphaltic concrete pavement, sanitary sewer, storm drainage, streetlights, underground utilities, and interim .Lmprovements to maintain traffic flow in the northbound lane. C. The City Engineer may approve reduced lane widths within that portion of New 109th; between STA. 10+00 to STA. 28+00. 20. The applicant shall be required to do the following with respect to the storm sewer, system: A. The existing pipe to be connected to in 109th Avenue should be evaluated to determine if it has adequate capacity to handle ultimate development of the entire drainage basin; E That the on-site water quality facility shall meet current Unified Sewerage Agency ( design standards and that it shall be the 1. FINAL ORDER - PDR 91-0005/Sag{ 91-0013 TRIAD 34 -=--- responsibility of the owners of the site to maintain such facilities; and C. Design the system(s) so that there is a clear delineation between the private and public systems. 21. The applicant shall be required to dedicate the following right-of-wav (NOTE: 8tat?oning, 4^ bazad i;. preliminary plans as submitted to the Planning Department): A. S.W. Naeve Street: (1) From STA. 2+00 to STA. 74-00 - 50 feet Of R.O.W., i.e.,25 feet either side of the new center line alignment; (2) From STA. 7+00 to 14+58 - 25 feet of R.O.W., 25 feet from centerline; R. Old S.W. 109th Avenue: (1) Provide R.O.W. for the hammerhead turnaround. C. New S.W. 109th Avenue: (1) From STA. 10+00 to STA. 19+20 - 60 feet of R.O.W.; 30 feet either side of the new centerline; (2) From STA. 19+20 to STA. 27+28 - 30 feet of R.O.W.; 30 feet either side of the new center line alignanent. 22. Prior to the issuance of building permits, the developer and the City shall enter into an agreement substantially similar to the draft agreement proposed by Triad and attached to this approval. Final wording of the agreement shall be reviewed and approved by the City Attorney. STAFF CONTACT: Randy Wooley, City Engineer. t, FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 35 Mwy am MEW - _ PRIOR TO THE ISSUANCE OF AN OCCUPANCY PERMIT FOR A-NY NEW d BUILDINGS ON THIS SITE, THE FOLLOWING CONDITIONS SHALL BE SATISFIED OR A SATISFACTORY PERFORMANCE ASSURANCE MAY BE POSTED GT3AEANTEF.ING C011PLETIOR OF THE NECESSARY IMPROVEMENTS WITHIN NO MORE THAN SIX MONTHS OF THE ISSUANCE OF A TEMPORARY OCCUPANCY PERMIT. 23. All landscaping materials and other proposed site improvements shall be installed as per the revised landscaping and site plans. STAFF CONTACT: Jeffry Offer; Planning Division (639-4171) 24. A sign permit shall be obtained from the Planning Division prior to the erection of an identification sign. Sign location and size must be in accordance with the provisions of Section 18.114 of the Community Development Code. APPROVAL SHALL BE VALID IF EXERCISED WITHIN EIGHTEEN (18) MONTI•IS OF THE FINAL APPROVAL DATE. l (. FINAL ORDER - PDR 91-0006/SDR 91-0013 TRIAD 36 -BID c� �!inni - - —_ CL�LtLdlPe�z%� .t�.Y � ROAD IMPROVEMENTGREEMENT This Agreement is made this day of 19_, by and between TRIAD TIGARD LIMITED PARTNERSHIP, a Washington limited partnership, hereinafter referred to as "Triad" and the CITY OF TIGARD, hereinafter referred to as the "City." WHEREAS Ordinance No. 91-22 of the Tigard City Council approved an amendment to the Tigard Comprehensive Plan Transportation Map providing for the realignment and extension of SW 109th Avenue to intersect Pacific Highway opposite the existing intersection of Royalty Parkway and designating SW 109th Avenue as a minor collector street. WHEREAS Ordinance No. 91-22--has been appealed to the Oregon Land Use Board of Appeals_ WHEREAS Resolution No. 91-68 of the Tigard City Council found that the purpose of the proposed extension of SW 109th Avenue between Naeve Street and Pacific Highway is to mitigate traffic impacts of future development on the surrounding street system, including Pacific Highway and that the portion of the proposed extension of SW 109th Avenue between Naeve Street and Pacific Highway should be designated 1 as an eligible facility and an eligible project under the Washington County Traffic Impact Fee Ordinance and requested that Appendix "D" (Base Report) of the Washington County Traffic Impact Fee Ordinance No_ 379 be amended to include the portion of SW 109th Avenue extension between Naeve Street and Pacific Highway as an eligible facility in Table 2 of the Base Report and as an eligible project in Table 4 of the Base Repert_ WHEREAS the City of Tigard desires to commence construction of the extension of the SW 109th Avenue between Naeve Street and Pacific Highway during the spring of 1992_ WHEREAS the City Engineer for the City of Tigard estimates the cost of construction of the portion of the SW 109th Avenue extension between Naeve Street and Pacific Highway to be approximately $900,000_ WHEREAS the Tigard City Council, on October 28, 1991, approved a budget authorizing the expenditure of $300,000 in fiscal year 1991-92 for the improvement of the extension of SW 109th Avenue between Naeve Street and Pacific Highway. WHEREAS it is anticipated that the City of Tigard Transportation Advisory Committee will recommend a budget authorizing the expenditure of an additional $300,000 in fiscal i Y-PP13<O .,ca year 1992-93 for the improvement of the extension of SW 109th Avenue between Naeve Street and Pacific Highway. WHEREAS Final Order Pio. 91-11 PC of the City of Tigard Planning Commission approved, subject to conditions, an application for Planned Development Review Detailed Development Plan Approval, Site Development Review Approval, and Access Variance Approval requested by Triad for the development of a 348-unit, 17 building multi-family residential complex on 26.2 acres of property located at 11165-11185 SW Naeve Street. WHEREAS Final Order No. 91-11 PC of the City of Tigard Planning Commission has been appealed to the Tigard City Council and the Tigard City Council has affirmed Final Order No. 91-11 PC and eliminated the condition in Final Order No. 91-11 PC which requires Triad to provide interim improvements on-Naeve Street from the realignment of Naeve Street west to the Pacific Highway- WHEREAS the Washington County Traffic Impact fee Ordinance (TIF) imposes a tax of approximately $292,960 on Triad's development. WHEREAS the Washington County Traffic Impact Fee ordinance (TIF) entitles a developer to a credit against the tax for constructing eligible capital improvement. WHEREAS the City Engineer of the City of Tigard has determined that the extension of SW 109th Avenue between Naeve Street and Pacific Highway is within the impact area of Triad's development_ WHEREAS the City Engineer of the City of Tigard has determined that the timing, location, design and scope of the extension of SW 109th Avenue between Naeve Street and Pacific Highway is consistent with and furthers the objectives of the capital improvements program of. the City of Tigard. WHEREAS Triad desires to participate in the construction of the extension of SW 109th Avenue between Naeve Street and Pacific Highway and to receive a credit against the TIF tax for such construction. WHEREAS City desires for Triad to participate in the construction of the extension of SW 109th Avenue between Naeve Street and Pacific Highway. WHEREAS the parties desire to resolve the terms of Triad's participation in the construction of the extension of SW 109th Avenue between Naeve Street and Pacific Highway and to otherwise set forth their respective requirements and obligations thereto. r -PP1J<0 2 NOW, THEREFORE, in consideration of the mutual promises and stipulations set forth herein, it is agreed between the parties as follows: 1. Construction of Road Improvements. Triad agrees to participate in the construction of the extension of SW 109th Avenue between Naeve Street and Pacific Highway on the terms and conditions set forth in this Agreement. - 2. Participation_. Triad agrees to pay $300,000 of the cost of constructing the extension of SW 109th Avenue_between Naeve Street and Pacific Highway. 3. Preconditions to Participation- Triad's obligation to participate is conditioned upon (i) the expiration of all periods for further appeal of the affirmance of Final Order No. 91-11 PC by the Tigard City Council; (ii) the expiration of all periods for appeal of the elimination by the Tigard City Council of the condi tion in Final Order No. 91-11 PC which requires Triad to provide interim improvements on Naeve Street from the realignment of Naeve Street west to the Pacific Highway; and (iii) -the ultimate affirmance of Ordinance No. 91-22 and the expiration of all periods for further appeal of .such affirmance. If the foregoing conditions are not satisfied, this Agreement shall terminate and all obligations of the parties under this Agreement will thereafter cease. 4. Deposit in Escrow. Triad shall deposit a pro rata portion of the $300,000 in escrow upon receipt of all required permits for each building in Triad's development to be held in accordance with the terms of this Agreement. The pro rata portion shall be based on the ratio that the value of such building (as set forth in the permit application) bears to the value of all buildings constructed and to be constructed in the development. Notwithstanding the foregoing. Triad shall deposit the entire $300,000 in -escrow prior to the issuance o7- a certificate of occupancy for any building in Triad's development. 5_ Escrow. - Triad shall deposit the $300,000 in escrow with Title Insurance Company (the "Escrow") at its offices in , Oregon or at such other place as the parties may 3 T_??17cO ( mutually select. Escrow shall deposit the $300,000 in an interest-bearing account with interest accruing to Triad. The parties shall execute joint instructions to escrow directing it to disburse the funds in accordance with the provisions of this Agreement. Triad shall pay the escrow fee. 6. Participation. The city of Tigard shall use the $300,000 solely for the purpose of constructing the extension of SW 109th Avenue between Naeve Street and Pacific: Highway. The City shall spend such funds only on improvements which are eligible for credit under the Washington County Traffic Impact Fee Ordinance (TIF). Escrow shall disburse the $300,000 to City upon presentation of invoices by the City, certified by the City Engineer as accurate, for the cost of constructing credit-eligible improvements to the onxtensi.on of SW 109th Avenue between Naeve - Street and Pacific Highway. Credit-eligible improvements may include right of way acquisition costs and survey, engineering and inspection costs as provided in the Washington County Traffic Impact Fee Ordinance (TIF) 7. Credit. The City shall grant Triad a credit against the tax due on Triad's development under the Washington County Traffic -� Impact Fee Ordinance in the amount of $300,000 for Triad's participation in the construction of the extension of SW 109th Avenue between Naeve Street and Pacific Highway pursuant to this Agreement. The City shall direct the City Engineer to grant Triad such credit in accordance with the terms of this Agreement. 8. Default. If either party defaults under this agreement the other party shall be entitled to such remedies for breach of contract that may be available under applicable law including without limitation the remedy of specific performance. 9. Miscellaneous Provisions. 9.1 Attorneys' Fees. In the event suit or action is instituted to interpret or enforce this Agreement, the prevailing party shall be entitled +_o recover from the other party such sums as the court may adjudge reasonable as attorneys' fees at trial or on any appeal, and on any petition for review, in addition to all other sums provided by law. 9.2 Time of Essence. Time is of the essence of each and every provision of this Agreement. I-PP1340 4 9.3 Notices. Notices under this Agreement shall be in writing and shall be effective when per delivered, c if mailed, upon deposit as certified mail, postage 'prepaid, L directed to the other party at the address shown below. Either party may change its address for notices by written notice to the other. Triad: Triad Tigard Limited Partnership city: City of Tigard 9.4 Binding Effect- T Agreement shat i his A,reem____ be minding upon and inure to the benefit of the parties ,and��their respective successors and assigns. 9.5 Changes in Writing. This Agreement and any of its terms may only be changed, waived, discharged or terminated by a written instrument signed by the party against whom -enforcement of the change, waiver, discharge or termination is sought. 9.6 Authority. The persons who have executed this C Agreement have been duly authorized to do so by the party. The party has a good and legal right to enter into this Agreement and to perform all covenants of the party contained in this Agreement in accordance with its terms. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in duplicate as of the day and year first above written. Triad: Triad Tigard Limited Partnership a Washington limited partnership By Title: General Partner City: City of Tigard 13y Title T-PP1340 5 Cvu��cC �c�tiK2c32.��� 2 ��Qf✓UM� �C V �o ROAD IMPROVE14ENT AGREEMENT 1 This Agreement is made this day of 19_, by and between TRIAD TIGARD LIMITED PARTNERSHIP, a Washington limited partnership, hereinafter referred to as Zriad" and the CITY OF TIGARD, hereinafter referred to as the ity-" WHEREAS Ordinance No. 92-07 of the Tigard City Council approved an amendment to the Tigard Comprehensive Plan Transportation Map providing for the realignment and extension of SW 109th Avenue to intersect Pacific Highway opposite the existing intersection of Royalty Parkway and designating SW 109th Avenue as a minor collector street. 19AER AS Resolution No. 91-68 of the Tigard City Council found that the purpose of the proposed extension of SW 109th Avenue between Naeve Street and Pacific Highway is to mitigate traffic impacts of future development on the surrounding street system, including Pacific Highway and that the portion of the proposed extension of SW 109th Avenue between Naeve Street and Pacific Highway should be designated as an eligible facility and an eligible project under the Washington County Traffic Impact Fee Ordinance and requested that Appendix I'D" (Base Report) of the Washington County Traffic Impact Fee Ordinance No. 379 be amended to include the portion of SW 109th Avenue extension between Naeve Street and Pacific Highway as an eligible facility in Table 2 of the Base Report and as an eligible project in Table 4 of the Base Report. WHEREAS the City of Tigard desires to commence construction of the extension of the SW 109th Avenue between Naeve Street and Pacific Highway during the spring of 1992. WHEREAS the City Engineer for the City of Tigard estimates the cost of construction of the portion of the SW 109th Avenue extension between Naeve Street and Pacific Highway to be approximately $800,000. WHEREAS the Tigard City Council, on October 28, 1991, approved a budget authorizing the expenditure o£ $300,000 in fiscal year 1991-92 for the improvement of the extension of SW 109th Avenue between Naeve Street and Pacific Highway. WHEREAS it is anticipated that_the City of Tigard Transportation Advisory Committee will recommend a budget authorizing the expenditure of an additional $200,000 in fiscal year 1992-93 for the improvement of the extension of SW 109th Avenue between Naeve Street and Pacific Highway. Y-PP1340 cam ik'HEREAS Final Order No. 91-11 PC of the City of Tigard Planning Commission approved, subject to conditions, an application for Planned Development Review Detailed Development Plan Approval, Site Development Review Approval, and Access Var3iance Approval requested by Triad for the development of a 348-unit, 17 building multi-family residential complex on 26.2 acres of property located at 11165-11185 SW Naeve Street. WHEREAS Final Order No. 91-11 PC of the City of Tigard Planning Commission has been appealed to the Tigard City Couracil and the Tigard City Council has affirmed Final Order- No. rderNo. 91-11 PC and eliminated the condition in Final Order No. 91-11 PC which requires Triad to provide interim improvements on Naeve Street from the realignment of Naeve Street west to the Pacific Highway. WHEP.EAS the Washington County Traffic Impact fee Ordinance (TIF) imposes a tax of approximately $292,960 on Triad's development. WHEREAS the Washington County Traffic impact Fee Ordinance (TIF) entitles a developer to a credit against the tax for constructing eligible capital improvement. WHEREAS the City Engineer of the City of Tigard has determined than the extension of SW 109th Avenue between Naeve Street and Pacific Highway is within the impact area of Triad's development. WHEREAS the City Engineer of the City of Tigard has determined that the timing, location, design and scope of the extension of SW 109th Avenue between Naeve Street and Pacific Highway is consistent with and furthers the objectives of the capital improvements program of the City of Tigard. WHEREAS Triad desires to participate in the construction of the extension of SW 109th Avenue between Naeve Street and Pacific highway and to receive a credit against the TSF tax for such construction. WHEREAS City desires for Triad to participate in the construction of the extension of SW 109th Avenue between Naeve Street and Pacific Highway. WHEREAS the parties desire to resolve the terms of Triad's participation in the construction of the extension of SW 109th Avenue between Naeve Street and Pacific Highway and to othcaxwlse set forth their respective requirements and obligations thereto. C T-PP1340 2 man .® �_.®ate__. --- 11,11RI! :J111illil,ill 11 NOW, THEREFORE, in consideration of the mutual promises and stipulations set forth herein, it is agreed between the parties as follows: 1. Construction of Road Tmnrovements. Triad agrees to participate in the construction of the extension of SW 109th Avenue between Naeve Street and Pacific Highway on the terms and conditions set forth in this Agreement. 2. Participation. Triad agrees to pay $300,000 of the cost of constructing the extension of SW 109th Avenue between Naeve Street and Pacific Highway. 3. Preconditions to Participation. Triad's obligation to participate is conditioned upon (i) the expiration of all periods for further appeal of the affirmance of Final Order No. 91-11 PC by the Tigard City Council; (ii) the expiration of all periods for appeal of the elimination by the Tigard City Council of the condition in Final Order No. 91-11 PC which requires Triad to provide interim improvements on Naeve Street from the realignment of C Naeve Street west to the Pacific Highway; and (iii) the ultimate affirmance of Ordinance No. 92-07 and the expiration of all periods for further appeal of such affirmance. If the foregoing conditions are not satisfied, this Agreement shall terminate and all obligations of the parties under this Agreement will thereafter cease. 4. Deposit in Escrow. Triad shall deposit a pro rata portion of the $300,000 in escrow upon receipt of all required permits for each building in Triad's development to be held in accordance with the terms of this Agreement. The pro rata portion shall be based on the ratio that the value of such building (as set forth in the permit application) bears to the value of all buildings constructed and to be constructed i.. the development. Notwithstanding the foregoing, Triad shall deposit the entire $300,000 in escrow prior to the issuance of a certificate of occupancy for any building in Triad's development. 5. Escrow. Triad shall deposit the ^.x300,000 in escrow with Ticor Title Insurance Company (the 0°Escrow") at its offices in Tigard, Oregon or at such other place as the parties may C mutually select. Escrow shall deposit the $300,000 in an T-PP1340 3 m_ interest-bearing account with interest accruing to Triad. The parties shall execute joint instructions to escrow directing it to disburse the funds in accordance with the provisions of this Agreement. Triad shall pay the escrow fee. 6. Par ticioation. The City of Tigard shall use the $300,000 .solely for the purpose: of constructing the extension of SW 109th Avenue between Naeve Street and Pacific Highway. The City shall spend such funds :ly on i pro a-meats which are eligible for credit under the Washington County Traffic Impact Fee ordinance (TIF) . Escrow shall disburse the $300,000 to City upon presentation of invoices by 'the City, certified by the City Engineer as accurate, for the cost of constructing credit-eligible improvements to the extension of SW 109th Avenue between Naeve Street and Pacific Highway. Credit-eligible improvements may include right of way acquisition costs and survey, engineering and inspection costs as provided in the Washington County Traffic Impact Fee ordinance (TIF). 7. Credit. Tie City shall grant Triad a credit against the tax due on Triad's development under the Washington County Traffic Impact Fee ordinance in the amount of $300,000 for Triad's participation in the construction of the extension of SW 109th Avenue between Naeve Street and Pacific Highway pursuant to this Agreement_ The City shall direct the City Engineer to grant Triad such credit in accordance with the terms of this Agreement. 8. Default. If either party defaults under this agreement the other party shall be entitled to such remedies for bleach of contract that may be available under applicable laws including without limitation the remedy of specific performance. 9. Miscellaneous Provisions. 9.1 Attorneys, Fees. In the event suit or action is instituted to interpret or enforce this Agreement, the prevailing party shall be entitled to recover from the other party such sums as the court may adjudge reasonable as attorneys' fees at trial or on any appeal, and on any petition for review, in addition to all other sums provided by law. 9.2 Time of Essence. Time is of the essence of each and every provision of this Agreement. 9.3 Notices. Notices under this Agreement shall be in writing and shall be effective when personally delivered, or S-PP1340 Q. if mailed, upon deposit as certified mail, pottage prepaid, directed to the other party at the address shote below. Either party may change its address for notices by written notice to the other. Triad: Triad Tigard Limited Partnership City: City of Tigard 9.4 Binding Eff ct . This Agreement shall be bindin ` uaon and inure to the benefit of the respective successors and assigns. parties and their 9.5 Changes In writing. This Agreement and any of Its terms may only be cha_ncred, waived, discharged or terminated by a written instrument signed by the party against whom enforcement of the change, 'waiver, discharge or termination is sought, 9-6 Authority. The persons who have executed this - Agreement have been duly authorized to do so by the party. The party has a good and legal right to enter into this ,Agreement and to perform all covenants of the party contained in this Agreement in accordance with its terms. IN WITNESS WHEREOF, the parties have caused this- Agreement to be executed in duplicate as of the day and year first above written. Triad: Triad Tigard Limited Partnership a Brassington limited partnership I By Title. General Partner City: City of Tigard By Title x T-PP3340 Jc. F