Resolution No. 95-61 CITY OF TIGARD, O EIj GON
RESOLUTION NO 95-LOI RESOLUTION UPON CITY COUNCIL REVIEW TO CONSIDER THE IT.S. SUPREME COURT
REMAND OF CONDITIONS RELATED TO THE DEDICATION OF PROPERTY FOR
FLOODPLAIN MANAGEMENT AND A SIKEPATH RELATING TO THE DETERMINATION OF
THE ROUGH PROPORTIONALITY OF THOSE REQUIREMENTS - SITE DEVELOPMENT
REVIEW (SDR) 91-0005/VARIANCE (VAR) 91-0010 DOLAN/MENDEZ
I
WHEREAS, the Tigard City Council held a public hearing on the U.S.
Supreme Court Remand of Conditions, and
WHEREAS, the Council reviewed the evidence related to the application
and remand in a public hearing setting on June 27, 1995, July 18, 1995,
and August 29, 1995.
NOW, THEREFORE, BE IT RESOLVED by the Tigard City Council that:
Section 1. The findings and conditions of approval are specified as
set forth in Exhibit A attached hereto.
Section 2. The Council orders that the City Recorder send a copy of
this final order to the applicant as a notice of final
decision in this matter.
PASSED: This 44 444 day of 195.
-T� City of Ti and
M
ATTEST:
City Recorder - City of Ti and
f:\1ogia,\Cathy\d01an.res
RESOLUTION NO. 95-_&L_
FINAL SUBMITTAL
EXHIBIT A (REVISER) TO
CITY COUNCIL OF TRE CITY OF TIGARD
FINAL ORDER IN (SDR) 91-005/(VAR) 91-0010
TABLE OF CONTENTS
I. GENERAL MATTERS .. . . . . ... . . .... .. . . . . . . . . . . ... . ..... .... . . . . . . . . . 1
A. Overview&Approach to Findings . . . . . . . . . . . . . ... . .. ........ . . . . . . . . 1
B. Evidence Admitted Into the Record . . . . . . . . . . . . .. . .......... . . . . . . . . .
C. Adoption of Staff Reports . . . .... ... . . . . . . . . . ... ...... .... . . . . . . . . .4
II. BACKGROUND . .. . . . . . . . . .. . .. .... ... . . . . . . . . . ... ...... ... . . . . . . . . . . 5
A. Basic Facts .. . . . . . . . . .. . .. .... . . . . . . . . . . . . ......... ..... . . . . . . . . 5
B. Procedural Posture . . . . .. . . . .... .. . . . . .. . . . . ... ......... .. . . . . . . . . 5
III. ANALYSIS . . . . . .. . . . . . .. . .. . . . ... ... . . . . . . . . . . ... . .......... . . . . . . . . 5
A. Introduction . . . . . . . . . .. . . . ...... . . . . . . . . . . .. . . .......... . . . . . . . . 5
B. Remand Condition One Passes the Nexus Test . . . . ... . .... . .... . . . . . . . . . 9
1. The Supreme Court Found in Dolan i`I That Tigard Had Satisfied the
Nexus fest--Council Did Not Need to Revisit That issue . .. . . . . . . . . 9
a. The Court Upheld Tigard's Decision Concerning Original
Condition One Under the Nexus Test .. .......... . . . . . . . . . 9
b. Because of the Court's Holding, Council Could Find That
Remand Condition One Satisfied the Nexus Test Without
Reapplying That Test . .. . . . . . . . ............. . . . . . . . . 11
2. Although Unnecessary to Its Decision,Council Found that Tigard Had
Satisfied the Nexus Test... .. . . . . . . . . . . ... .......... . . . . . . . . 12
-t.
a. Tigard Could Have Denied the Peradt Without Effecting an
Unconstitutional Taking . .. ........ . . .. . . . . . . . . . . . ... . 13
(1) Denial of the Permit Would have Served Legitimate
State Interests . . . ...... ..... ... . . . . . . . . . . . .... 13
(2) Denial of the Application Would Not Have Deprived the
Property of Economically Viable Uses . . . . . . . . . . ... . 14
(3) Applicant,Through mer Attorney,Admitted That Tigard
Could Deny the Application ..... .. . . . . . . . . . . . .. . . 14
b. Remand Condition One Advances the Same Legitimate State
Interests Affected by Applicant's Project .. . . . . . . . . . .. . . .. . 15
(1) The Nexus Test Required That Tigard Show a Relation-
ship Between the Impact of Applicant's Development
and a Solution Mitigating That Impact . . . . . . . . . . .. . . 15
(2) A Nexus Existed Between Remand Condition One and
the Drainage and Traffic Impacts of Applicant's Project . 17
(3) Remand Condition One is Not a Gimmick or Ruse . .. . . 17
(4) Tigard Justified the Limited Public Floodplain Access in
Remand Condition One .......... . . . . . . . . . . . .. . . 18
(5) The Bicycle/Pedestrian Way is Meant to Reduce Auto
Traffic,Not Just Provide Recreational Opportunities . . . 21
C. Remand Condition One Satisfies the New Rough Proportionality Test from
DolanII.... ... . . . . . . . . . . . . . . . . . . .. . ........ ... . . . . . . . . .. . .. . . 24
1. Requirements of the Rough Proportionality Test .. . . . . . . . . . .. . .. . . 24
2. The Required Flood Plain Easement Satisfies the Rough Proportionality
Test ... . . ... . . . . . . .. . . . .. . .. . ........ .. . . . . . . . . . .. . .. . . 31
a. Tigard,Through an Individualized Evaluation, Showed That
Applicant's Project_would Have Sigcdficant Impacts . . . . . .. . . 31
i
EXIIIBIT A(REVISED)TO FINAL ORDER
Page-ii
b. Tigard Established a Reasonable Correspondence Between the
Impacts of the Development and the Purposes It Offered in
Support of Remand Condition One . . . . . .. . . .. ..... . . . . . . 31.
(1) Tigard Fixed the Deficiency the Court Identified . .. . . . 38
(2) Tigard Showed a Reasonable Correspondence Between
the Impacts of Applicant's Development and the
Requirement of a Limited Public Easement for
Enhancement and Maintenance of the Floodplain and
Creek Channel .. . . . . . . . . ... . . .. . .... .... . . . . . . 39
(3) Remand Condition One Does Not Call on Applicant to
Provide"Excess Capacity" . . .. . . .. . . I...... . . .. . . 41
C. Tigard Showed that the Floodplain Easement Called for in
Remand Condition One Would or Would Be Likely to Mitigate
for the Impacts of Applicant's Development . ... ..... . .. . . . 46
d. Tigard Showed That the Floodplain Easement in Remand
Condition One Was Roughly Proportional in Extent to the
Impacts of Applicant's Development . . . ... . ........ . .. . . .47
3. The Required Bike/Pedestrian Path Easement Satisfies the Rough
Proportionality Test .. .... . . .. . . ... . . . . . . .. . . ........ . . . . . .48
a_ Tigard,Through an individualized Evaluation,Showed That
Applicant's Project Would Have Significant Impacts ... . . . . . .48
b. Tigard Established a Reasonable Correspondence Between the
Impacts of the Development and the Purposes It Offered in
Support of Remand Condition One .. . . . . . . . ... .... . .. . . . 56
C. Tigasd Showed That the Bicycle/Pedestrian Pathway Easement
Called for in Remand Condition One'vVould or Would Be Likely
to Mitigate for the Impacts of Applicant's Development . .. . . . 57
d. Tigard Showed That the Bicycle/Pedestrian Path-,.-.,ay Easement
in Remand Condition One Was Roughly Proportional in Extent
to the Impacts of Applicant's Development . . ... ..... . .. . . . 6 i
EXHIBIT A(REVISED)TO FINAL ORDER
Page-iii
D. Most of Applicant's Other Arguments in Opposition to Remand Condition One
Were Not Properly Before Council In This Remand Proceeding . .... . . . . . . .65
E. A Condition Requiring Dedication of Easements for Flood Control and
Alleviation of Traffic Impacts is Appropriate Under Tigard's Land Use
Regulations ........... . . . . . . . . . ....... . . . . . . . . . . .. ... . . . . . . . . . 67
1. Tigard's Land Use Regulations Required Council to Impose Remand
Condition One or to Deny the Application. . . . . . . . . . . .... . . . . . . . . 67
I
2. Applicant's Arguments Under Tigard's Land Use Regulations Were
Not Well-Founded . . . . . . . . . . ...... . . . . . . . . . . .. ... . . . . . . . . . 70
a. Applicant Received Adequate Notice of Tigard's Interpretation
of Certain Land Use Regulations . . . . . . . . . . .. ... . . . . . . . . . 70
b. Council Found That Approval Would Allow Applicant to Site
Any General Retail Use on the Property . . . ... . ... . . . . . . . . 71
C. Comprehensive Plan Policy 7.12(b)(1)and Related Land Use
Regulations Supported Imposition of Remand Condition One . . 73
(1) Tigard Had Authority Under Its Land Use Regulations
to Impose Remand Condition One . . . .. . ... 74
(2) Comprehensive Plan Policy 7.1.2 Did Net Limit the
Scope of Possible Uses Which Council Could Consider
When Fashioning Conditions of Approval .... . . . . . . . 74
(3) Comprehensive Plan Policy 7.1..2 and Related
Regulations Did Not Limit the Evidence Which
Coimoil Could Consider in Structuring Remand
Condition One ........ . . . . . . . . . . . . . .... . . . . . . . 77
(4) Remand Condition One Did Not Violate the CDC By
Calling for Placement of the Pathway Outside of the
Floodplain . . . ......... . .. . . . . . . .. .... . . . . . . . .78
(5) Role of the Parks Plan ... . . . . . . . . . . . .... . . . . . . . . 79
EXHIBIT A(REVISED)TO FINAL ORDER
Page-iv
(6) Remand Condition One Is Consistent With Comprehen-
sive Plan Policy 8.1.3 .. . . . . . . . . . . ... ..... . . .. . . . 80
(7) Remand Condition One Does Not Violate Implemen-
tation Strategies 2 and 5 . . . . . . . . . . ....... . . . .. . . . 80
F. Remand Condition One and Council's Rationale for That Condition Do Not
Violate the WTIF ... . . . . . . . . ........... . . . . . . . . . . ... ..... . .. . . . . 81
G. Remand Condition One and the Council's Rational for That Condition Do Not
Violate State Land Use Statutes ........... . . . . . . . . . . ......... ... . . . 81
Fl. Remand Condition One and the Council's Rational for That Condition Do
Not Offend Article I,Section 20 of the Constitution of the State of Oregon
or the Equal Protection Clause of the Fourteenth Amendment to the
Constitution of the United States .......... . . . . . . . .. . ........ . .. . . . . 85
1, Applicant Did Not Show That Remand Condition One Violated
Article I,Section 20 . . . . .......... . . . . . . . . . . ... ..... . . . . . . . 86
2, Applicant Did Not Show That Remand Condition One Violated the
Equal Protection Clause . .......... . . . . . . . . . . .... .... . .. . . . . 88
L The Procedure Used in Adopting Remand Condition One Did Not Offend
the Due Process Clause of the Fourteenth Amendment to the Constitution
of the United States . . . . . . . . . . .......... . . • - - - - . . .... ..... . ... . . . 93
IV. CONCLUSION ..... ..... . . . . . . . . . ........... . . . . . . . . . ... . .... . . .. . . . 93
Appendix One-Evidence in Record . . . . . . . . .......... . . . . . . . . . . ... ..... . . . . . . . A
Appendix Two: Equal Protection Analysis of Cases Cited by Applicant . . ....... .. . . . . . . . a
EXHIBIT A(REVISED)TO FINAL ORDER
Page-v
EXHIBIT A(REVISED)TO
CITY COUNCR OF THE CITY OF T!GARD
FINAL ORDER IN(SDK)91-005/(VAR)91-0010
i. GENERAL MATTERS
A. OVERVIEW&APPROACH TO FINDINGS
This Exhibit A sets out the findings supporting the Final Order in(SDR)91-005/(VAR)91-
0010 (the "Final Order"), which the City of Tigard("Tigard") issued through its City Council
("Council")in response to the decision of the United States Supreme Court in Dolan v. City of
Tigard,_US._, 114 S.Ct.2309, 129 L.Ed.2d 304(1994). Because of the,long history of
this case and the nature of the proceedings or remand,these findings begin with a review of the
events leading to the Final Order as they influenced the approach Council took to making its
decision.
On September 17, 1991, Council approved the application of Florence and John Dolan'
for site development review of a substantial expansion of retail uses on their property in downtown
Tigard (the "September `91 Approval"). CR 01018.2 Council imposed several conditions of
approval,including one requiring Applicant to dedicate property in and near a floodplain to allow
drainage improvements and constriction of a bicycle/pedestrian way("Original Condition One").'
Applicant appealed either Original Condition One or its similar 1989 predecessor in two LUBA
appeals and one appeal to the courts,cuhmnating with a decision from the United States Suprerne
Court. See Dolan v. City of Tigard, 114 S. Ct. 2309 rn her .Ye—ls, Applicant challenged
Mr.Dolan died while he and Mrs.Dolan were appealing aspects of the City's conditional approval. T'nis
Exhibit A will refer only to Mrs.Dolan,designating her as"Applicant."
2 In this Exhibit A,references to the record generated in the remand proceedings are prefixed with the code
"CR"followed by the page number in the current record at which the supporting materials can be found.
3 Original Condition One provided as follows:
The applicant shall dedicate to the City as Greenway all portions of the site that fall within
the existing 100-year Iloodplair.[of Fanno Creek](i.e.,all portions of the property below elevation
150.0)and all property 15 feet above(to the east of)the 150.0 foot floodplain boundary. The
building shall be designed so as not to intrude into the greenway area.
CR 01043-44.
Original Condition One solely because through that condition, Tigard had allegedly taken her
property without paying just compensation, in violation of the Takings Clause in the Fifth
Amendment to the Constitution of the United States°and Article 1, Section 18 of the Constitution
of the State of Oregon.' See Dolan v. City of 77gard,20 Or.LUBA 411(1991)[hereinafter cited
as Dolan 1];Dolan v. City of Tigard, 22 Or. LURA 617(1992).
Al-u,augl,TB° and the courts rejected Applicant's h L1
enge, the United States
Supreme Court applied its rough proportionality test,newly minted in the Court's Dolan opinion,
to hold that Tigard had not justified Original Condition One adequately. The Court found that
although the September `91 Approval satisfied the essential nexus requirement of Nollan v.
California Coastal Commission,483 U.S. 825(1987),see Dolan, 114 S. Ct. at 2318-18, Tigard
had not made a sufficient,"individualized determination that[Original Condition One was]related
both in nature and extent to the impact of the proposed development." Id. at 2319-20. The Court
remanded the case for further proceedings, allowing Tigard to make the required findings. Id.
at 2322.
On June 27, 1995, July 18, 1995,and August 29, 1995, Council conducted hearings to
comply with the Court's decision(the"Remand Hearings"). Applicant then made arguments under
the Court's new test;but she also made arguments not raised in her appeals, challenging Tigard's
authority to impose exactions like those in Original Condition One. Those arguments were based
on statutes,Washington County's Traffic Impact Fee(the'TaIF"),Tigard's Comprehensive Plan
4 The Takings Clause in the Fifth Amendment to the Constitution of the United States provides: "[�Ilor shall
private property be taken for public use,without just compensation." It applies to the actions of state and local
governments by virtue of the Fourteenth Amendment to the Constitution of the United States. See Dolan v.City of
Tigard,_U.S. 114 S.Ct.2309,2316,129 L.Ed.2d 304(1994),citing Chicago,B.&Q.R.Co.v.Chicago,
166 U.S.226,239(1897);Dept.of Transportation v.Hewett Professional Group,321 Or 118,131 n.7,— P.2d
(1995);Dodd v.Hood River County,317 Or.172,181 n.11;855 P.2d 608(1993)(dictum).
5 Article 1,Section 18 of the Constitution of the State of Oregon provides:
Private property shall not be taken for public use,nor the particular -
services of c y man be demanded,without just compensation;nor except in the
case of the state,without such compensation first assessed and tendered;provided,
that the use of all roads,ways and waterways necessary to promote the
transportntion of the raw products of mine or farm or forest or water for beneficial
use or drainage is necessary to the development and welfare of the state and is
declared a public use.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-2
(the"Cors}rehensive Plan"),Tigard's Community Development Code("CDC"),Article 1. Section
r--
20 of the Constitution of the State of Oregon and the Equal Protection and Due Process Clauses
of the Fourteenth Amendment to the Constitution of the United States.
In making its decision, Council found that it should first consider procedural and
substantive aspects of the Court's new test. Applying that test to the specific facts here, Council
concluded that exactions like those imposed in Original Condition One would not result in an
unconstitutional taking. Council also addressed Applicant's other arguments. Most of those
arguments were not before Council in this narrow remand proceeding, however; Council
nevertheless considered the substantive merits of each argument, finding none to be valid.
Council was anxious to see Applicant develop her new store,but it could not ignore its
responsibility to the city's taxpayers to ensure that Applicant contributed her fair share toward
mitigating the impacts of har project. Thus, after undertaking its analysis and for the reasons
detailed below,Council decided to impose a condition of approval similar to Original Condition
One. The condition replacing Original Condition One provides as follows:
The applicant shall dedicate by easement to the City all portions of the site that
fall within the existing 100-year floodplain of Fanno Creek(i.e.,all portions of the
property below elevation 150.0)(the"Drainage Area")and all property 15 feet above
(to the east of)the 150.0 foot floodplain boundary(the"Bike/Pedestrian Path Area")
(the Drainage Area and the Bike/Pedestrian Path Area shall be collectively referred
to as the"Easement Area"). The easement required by this Condition shall allow the
City to undertake only the following uses in the Easement Area:
-� A. The easement will allow the City access to the Drainage Area only for
the purpose of conducting or constructing flood and drainage
controls, repairs and improvements for the purposes of reducing or
preventing flooding and erosion and or irr Droving drainage within the
City. The easement will not allow the general public to access the
Drainage Area.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-3
B, The.easement—iii nil ow the City access to the Bike/Pedestrian Path
Area for the purpose of constructing and maintaining a bicycle and
pedestrian path and to use as necessary for activities allowed in the
Drainage Area. The easement will allow the general public access to
the Bike/Pedestrian Area only for the purpose of walking and using
unmotorized forms of transportation such as bicycles.
The building shall be designed so as not to intrude into the Easement Area. Applicant
may build a fence to exclude the general public from the Drainage Area and from
access to the rear of the proposed building.
(hereinafter referred to as"Remand Condition One.")
B. EvrDENcE Aummmo INTO TnE REcoxn
In this remand proceeding,Council held two hearings at which it received written and oral
evidence. Council also held a third hearing to allow representatives of Applicant and Tigard's staff
("Staff')to answer questions. In addition, Council accepted evidence and testimony during the
periods between hearings,and it left the record open 29 days after the July 18, 1995, hearing for
submission of evidence and arguments. Appendix One to these Findings lists evidence received and
admitted by Council during these remand proceedings. Council also admitted into evidence and
actually had before it the complete record of Tigard's earlier consideration of the applications of May
19119 and March 1991, the record of proceedings in the two LUBA cases, and the record of
proceedings throughout Applicant's appeal to the courts. It was Council's intent to admit into
evidence all materials and testimony that were actually before it for consideration in this matter.
C. ADOPTMON OF STAFF REPORTS
Staffsubmitted reports dated June 20, 1995,July 11, 1995,August 2, 1995,and August 16,
1995,to Council for its consideration. Council adopted those reports as findings supporting its
decision incorporating them into this Exhibit A by this reference,excepting any portion of such a
report which contradicted or was inconsistent with the findings set out herein.
EXHIBIT A(REVISED)TO FRITAL ORDER
Page-4
H. BACKGROUND
A. BASIC FACTS
Applicant and her son ovm 1.67 acres of property(the"Property")fronting on Main Street
in downtown Tigard. See CR 00311(ownership);CR 01022(size); Dolan v. Cary of Tigard,22 Or.
LUBA at 618(relationship to downtown). Fanno Creek runs along the southwest property line, and
the Property is improved vrith a 9,700 square foot building and a partially paved parking lot. CR
01022. A-Boy Supply Co.,Inc.("A-Boy"),"an Oregon corporation doing business as a plumbing,
electrical and related building retail supply business"is leasing the building on the Property as a store.
CR 00311. A-Boy operates several such stores in the Portland Metropolitan Area. See CR 00757,
et seq. (advertisements for several A-Boy stores).
Tigard's zoning maps designate the Property CBD,Central Business District, subject is the
Action Area Overlay,AA,Zone. CBD zoning allows for many land uses. Examples include retail
sales,civic uses,meeting halls,offices,restaurants,motels and high density residential developments
(40 units per acre). CDC§ 18.66.030. The Action Area Overlay Zoning District, CDC Chapter
18.86, applies in areas of intensive land uses. CDC § 18.86.010_ Its requirements ensure that
projected public facility needs,pursuant to CDC Chapter 18.64,are addressed during redevelopment.
CDC§ 18.86.040.A.
B. PROCEDURAL.POSTURE
On May 5, 1989,Applicant and her late husband filed an application for site developr:ert
review. In paragraph 2.ofthe application,they described their project as being for"replacement of
existing sales facility with a larger building."Dolan I,Record at 250. Applicant and her husband
sig^.PA t'he agpt-c?tion and were the sole applicants. A-Boy was not a party. Id at 251.
..,_ ..
Construction of the new 17,600 square foot building was only part of Applicant's plans for
the Property. She expected to completely pave the gravel portion of her parking lot,tear down the
9,600 square foot existing building,and to develop later a"Phase II"retail building on the site. The
Application did not,however,include a request that Tigard approve the Phase II building:
EXHIBIT A(REMISED)TO FII IAL ORDER
Page-5
c ;on 15.1.20.020 oftlhe Cnr required Applicant to file tits Application for the first phase
of her development. That section requires"site development review"when a person plans to
undertake a"major modification"of an"existing development." Applicant has always agreed that
her proposed redevelopment of the improvements on the Property was a"major modification"
sufficient to trigger site development review.
Tiaard's Planning Commission ("Commission") issued a decision approving the
Application. That approval was subject to 15 conditions. Among those conditions was the
precursor to Original Condition One. As drafted by Commission, that condition required
Applicant to dedicate the flood plain and an area for the bicycle/pedestrian way, but it also
included a requirement that Applicant build the bicycle/pedestrian way and provide a survey of
the flood plain.
Applicant appealed Commission's decision to Council, assigning error to, among other
things,the dedication and construction requirements. Council approved the Application subject
to 15 conditions,adopting most of Commission's requirements. With regard to the precursor of
Originai Condition One,however, Council removed the requirements that Applicant build the
bicycle/pedestrian way and provide a survey. Council also allowed Applicant to count the area
of the flood plain and bicycle/pedestrian way towards the CDC's requirement that fifteen percent
of the site be landscaped.'
Applicant, who had objected to the precursor of Original Condition One solely on the
ground that it was a taldng in violation of the federal and state prohibitions on takings without just
compensation, appealed Council's decision to LUBA. In that appeal, Applicant challenged
Original Condition One,and she based that challenge solely on her allegation that the condition
effected an unconstitutional taking. See Dolan I,20 Or LUBA 411. LUBA,however, found that
Applicant's talings claim was not ripe because she had not applied for a variance that -would allow
her to avoid the requirements in Original Condition One. Id. at 425-26.
6 In the September`91 Decision,Council also allowed Applicant to count the areas covered by the f1rodplain
and pathway dedications towards the landscaping requirement. CR 01035.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-6
II
Rather than--p—peal LUB A's dec skm in Doo=;Applicant filed a new application seeking
a variance to avoid the requirements of Original Condition One as imposed in Council's earlier
decision. In that application,Applicant described the purpose of the project as follows: "[t]he
construction of a 17,600 square foot building having a general retail sales facility." CR 00754.
Applicant and her husband signed the application and were the sole applicants. A-Boy was not a
party. Irl The application set out the following justification:;r t e va*„*tce:
The variance requested by the applicant should be allowed as the conditions
and dedications required by the City of Tigard violate the applicant's rights under
the Oregon and United States Constitutions. Specifically,the City's demand for
dedication constitute [sic: constitutes] an unlawful taking and violation of the
Oregon Constitution,Article 1 [sic:I],Section 18 and the Fifth Amendment_to the
United States Constitution.
The proposed variance will not materially be detrimental to the purposes of
the title nor conflict with the policy of the comprehensive plan as no park e::dsts at
this time nor does the City have sufficient funding in which to create a park that
the bicycle/pedestrian path is theoretically going to be used to access.
There are special circumstances that exist which are peculiar to the lot in
that the building which the applicant proposes to construct cannot be erected
without invading the City's proposed bicycle/pedestrian path if the land is
dedicated.
This hardship is not self-imposed but rather imposed by the City's
d.dication and the variance requested is the minimum variance which would
alleviate the hardship to the applicant_.
Brief for'Responded, United States Supreme Court No. 93-518, Appendix E at E-4, quoting
"Statem- ent of Justification for Variance."
in its September `91 Approval, Council rejected Applicant's request for a variance. The
September'91 Approval therefore reimposed Original Condition One. CR 01043-44.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-7
Applicant appealed the September`91 Approval to LURA,and,ater LUBA upheld Council's
decision,to the 0,-egon appellate courts and,ultimately,to the United States Supreme Court. Dolan
v.City of Tigard,22 Or.LURA 617,aff d, 113 Or.App. 162,832 P.2d 853(1992),aff'd,317 Or,
110,854 P.2d 437(1993),rev d&remanded,_U.S.____,11.3 S.Ct.2309,order on remand,319
Or. 567,877 P.2d 1201 (1994)(per curiam)[hereinafter cited as Dolan 11]. The findings in this.
Exhibit A respond to the new constitutional test the United States Supreme Court promulgated in
D^.1_^n 1 as provided for in that Court's remand decision. Dolan 11, 114 S.Ct.at 2322.
111. ANALYSIS
A. IN-rRODucTioN
In these proceedings, Council was presented with a narrow remand issue based on a test
applied for the first time by the United States Supreme Court in Dolan 11. There,the Court found
that while Original Condition One had the requisite nexus with Tigard's legitimate interests in
preventing flooding, securing adequate storm water drainage, and reducing traffic congestion, as
required by Nollon, Tigard had not shown a rough proportionality between the condition and the
impacts of Applicant's development. Because the Court remanded the case solely on that issue,
Maw giving Tigard an opportunity to make findings in compliance with the new test,Council found that
the only issue properly before it was whether Tigard could satisfy the rough proportionality test.
Applicant nevertheless argued on remand that several other issues were before Council. She
claimed that Council had to decide whether Tigard had proven a nexus between the state interests
proffered in support of Remand Condition One,the impacts of her development,and the required
easement dedication. Applicant also advanced several arguments based on provisions of law other
than the federal Takings Clause.
Because Applicant advanced several alternative theories in opposition to Remand Condition
One,Council considered the merits of her theories. Council nevertheless continued tc believe that
ordy the narrow issue remanded by the Supreme Court was before it. In making these findings,
Council first analyzed whether it had+o reapply the nexus test and,assuming that the test had to be
reapplied,whether Tigard continued to satisfy that test. Council then considered the issue remanded
from the Supreme Court, and finally decided the availability and merits of Applicant's other
EXHIBIT A(REVISED)TO FINAL ORDER
Page-8
arguments. After_-naidng this analysis, Council concluded that it should impose Remand Condition
One.
B. REMAND CONDITION ONE PASSES THE NEXUS TEST
1. The Suprema Court.mound in Dolan II That Tigard I-ad Satisfied the
Nexus Test—Council Did Not Need to Revisit That A sue
Original Condition One and Remand Condition One call for similar exactions,except that
Remand Condition One clarifies that Tigard is not requiring Applicant to make the floodplain area
available for recreational purposes and that Tigard does not intend to acquire fee title.' Because the
conditions are so alike,the Supreme Cou is decision that Original Condition One satisfied the nexus
test equally applies to Remand Condition One. Indeed,the Court's holding on that point was not
legally subject to reconsideration here.
a. The Court Upheld Tig ard's Decision Concerning Original
Condition One JJnder the Nexus Test
In.Nollan a Califomia Coastal Commission,483 U.S. 825(1987),source ofthe nexus test,
the plaintiffs owned a small beach-front house situated between the beach and a coastal road. They
decided to expand the size of the house greatly,which they could not do without a permit from the
Commission. When the Commission granted the permit,it required as a condition of approval that
the plaintiffs give it an easement allowing the public lateral access on the adjoining beach,whist:the
plaintiffs'owned. In support of the condition,the Comrtvssion argued that the larger house would
block views of the beach from the coastal road. The Commission said that giving the public lateral
access along the beach would mitigate for the loss of the view.
In rejecting the Commission's justification,the Court created the nexus test,which Applicant
said Council must reapply here. The Court found that requiring an easement without compensation
or other justification would have been an unconstitutional taking. Id at 841-42. To avoid such a
' Remand Condition One also provides that Applicant can fence the floodplain area to prevent the public from
accessing that area. Such a provision was not included in Original Condition One. Council felt it appropriate to insert
such a provision because of Applicant's concerns about security expressed during the remand hearings.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-9
result,the Court required the Commission to show that the condition had a nexus to legitimate state
interests affected by the larger house. Id at 837. If,for example,the Commission had required the
plaintiffs to dedicate part of their property as a view point from the road to the beach,the condition
would have passed the Court's scrutiny. Id at 836. The Court found,however,that the requirement
of an easement allowing people to walk along the beach had no relationship to protecting the view
from the road. Because the exaction did not advance the state interest offered as justification,the
Court held that the Takings Clause forbade the Commission from imposing the condition. Id.at 837.
In Dolan II, the Court found that Original Condition One passed the nexus test. Tigard
argued that the city's legitimate interests in preventing flooding and reducing traffic congestion
justified the condition. The Court agreed,finding that Original Cundiiiou One was quite uivareLt
from the condition invalidated in Nollan.
[In Nollan,] [w]e agreed that the Coastal Commission's concern with
protecting visual access to the ocean constituted a legitimate public interest. . . . We
resolved, however, that the Coastal Commission's regulatory authority was set
completely adrift from its constitutional moorings when it claimed that a nexus existed
between visual access to the ocean and a permit condition requiring lateral public
access along the Nollan's beachfront lot. ... The absence of a nexus left the Coastal
Commission in the position cf simply trying to obtain an easement through gimmickry
No such gimmicks are associated with the permit conditions imposed by the
city in this case.
Dolan ll, 114 S. Ct.At 2317(emphasis added). According to the Court in Dolan II,the interests
Tigard advanced in support of Original Condition One did have a sufficient nexus to the impacts of
Applicant's project.
It seems . . .obvious that a nexus exists between preventing flooding along Panno
Creek and limiting development within the creek's 100-year floodplain. Petitioner
proposes to double the size of her retail store and t�-p:-.c her now-gravel parking lot,
EXHIBIT A(REVISED)TO FINAL ORDER
Page- 10
thereby expanding the impervious surface on the property and increasing the amount
of stormwater run-off into Fanno Creek.
The same may be said for the city's attempt to reduce traffic congestion by
providing for alternative means of transportation. it.theory, a pedestrian/bicycle
pathway provides a useful alternative means of transportation for workers and
shoppers. . . .
Irl at 2318(emphasis added).
After deciding that Originai Condition One passed the nexus test,the Court in Dolan II
reached the issue it had left open in Nollari. That issue concerned the required degree of relationship
be'-ween the condition,the interests iustifying the condition,and the impacts of the development. The
Court held that Tigard was required to show rough proportionality between the condition and the
impacts ofthe development. Because it found that Tigard had not made such a showing,the Court
remanded the case to allow'he city to make findings satisfying the new test. Hence,the only issue
before Counci_was whether Tigard satisfied the new rough proportionality test in these remand
proceedings.
b. Because of the Court's UA ding, Cauncil Could Find Thsit
Remand Condition One Satisfied the Nexus Test Without
Rapplying_That Test
On remand,"parties may not raise old,resolved issues again." Beck v. Tillamook,313 Or.
148,153,831 P.2d 678(1992). Old issues include those which the local government and appellate
bodies have actually resolved and those-,viii-ch"could have been but were riot, raised in the first
appeal." Louisiana Pacific v. Umatilla County,28 Or.LUBA 1086, 1090(1994).
Here,Applicant argued throughout the appeal of Original Condition One that the floodplain
and pathway dedications did not meet the nexus test. In that argument, she raised all of the
challenges she has raised on remand,including contentions that the dedication did not have a nexus
with the drainage inipacts of her project and that the pathway was only for recreation. Every
EXHIBIT A(REVISED)TO FINAL ORDER
Page-11
appellate body to consider her argument,includi-T the Supreme Court of the United States,found
that it was mistaken. Each body held that Tigard had satisfied the:nexus test.
Applicant claimed to Council that the Court's decision on the nexus test was not binding
because Remand Conditiou One differed in some respects from Original Condition One. However,
as pertains to the ne cus test,Council found that no significant differences existed. Indeed,the only
change of any account in that regard was that Remand Condition One clarified that the floodplain
dedication was not meant to further recreation. Because the issues concerning the nexus test were
resolved in the previous appeal,they were not before Council on remand.
2. Althou .: Unnecessary to its Decision, C'ouncii Found that Tigard idad
.Satisfied the Nexus Test
Although Council found that the Supreme Court's decision prevented reconsideration of the
nexus test,Applicant asserted that minor differences between Remand Condition One and Original
Condition One made this decision subject to that test. Accordingly,Council found that it should
reapply the nexus test on the chance that LUBA or the courts would agree with Applicant.
As detailed above,the nexus test,if applicable to this decision,required Tigard to show that
Remand Condition One advanced the same legitimate state interests affected by Applicant's
development. With regard to traffic,for example,Tigard was required to show that the easement
dedication for the bicycle/pedestrian way had a nexus with mitigating the increases in traffic that the
larger store would cause.
ResirieC establishing g a..e uS 1 ve n t he irtw, cd b e development P.nt and the state
::pa y• opme
interests supporting the condition,some dictum in Nollan and Dolan II implied--but did not hold--
that Tigard was required to show that the supporting interests would have justified denial of the
Appl:cation. If such a rule did zWply,Tigard was required to show that denial of the permit would
advance legitimate state interests and would not deprive the property of all economically viable uses.
See Agins v.City of Tiburon,447 U.S.255,260(1980)(stating test for finding regulatory takings).'
s In Section III.E.1.infra,this Exhibit A sets out Council's grounds for finding that Tigard's local land use
regulations would have allowed it to deny the Application.
EXHIBIT A(REVISED)TO FINAL ORDER
Page- 12
1
Council did n(."'
t� had satisfied even the strictest version of the nexus test. Council therefore PP
decide whether such a showing was mandatory,however,because it found that
Ti d applied the nexus
„zv
test with the assumption that Tigard was required to show that it could deny the Application without
effecting an unconstitutional taking.
In applying the nexus test, Council was not concerned with the proportionality of the
relationship between the easement dedications and the impacts from the development. Council's
reasoning on that issue--the rough proportionality test--is set out below. Here,Council addressed
only whether the type of relationship tree Court required in Nollan was present.
a. Aipard Could agave D-_j_l he o_ _ Weaa._u. EM-cling .
Unconstitutional Taking
(1) IDeninl of the Permit Would Have Served Legitimate State
Interests
The Court has "not elaborated on the standards for determining what constitutes a
`legitimate state interest,"'but it has made clear"that a broad range of governmental purposes and
regulations"satisfy the test. Nollan v. California Coastal Commission,483 U.S. at 834-35; see,
e.g.,Agins, 447 U.S.260(scenic zoning);Fenn Central t-ransportation Co. v. New York City,
438 U.S. 104(1978)(landmark preservation);Euclid v. AmblerRea4 Co.,272 U.S. 365 (1926)
(residential zoning). In Dolan 11 the Court held that Tigard's interest in managing the floodplain and
drainage system and in mitigating traffic congestion were legitimate state interests. Dolan 77, 114
S.Cf.at 2317-18. Tigard proffered those same interests in support of Remand Condition One,and
they would have supported denial of the Application.
App;cant,through her representatives,freely admitted that her project would have draina,a
and traffic impacts. As detailed in Section IH.C,infra,those i,uyacis wuuid be significant. Had
Council denied the permit,the impacts of the project on Tigard's drainage and street systems would
never occur. Therefore,denial of the Application would have advanced Tigard's legitimate state
interests in preventing flooding,managing drainage,and mitigating traffic impacts.
EXHIBIT A(REVISED)TO FINAL ORDER
=Page-13
(2) Denial of the Application Would Not Have Deprived the
Property of Economically Viable Uses
If Council had denied the Application,its decision would not have deprived the Property of
economically viable uses. Evidence in the record showed that Applicant is currently leasing a store
on the property to A-Boy. CR 01421. This use or a similar use would have remained if Council had
denied the Application. Therefore,denial of the Application would not have deprived the property
of economically viable uses. As the Court held in Dolan H,"There can be no argument that the
permit conditions would deprive[Applicant] `economically beneficial us[e]' of her property as she
currently operates a retail store on the lot. [Applicant]assuredly is able to derive some economic
use %[1%%{her proper.-j;.' Dol.—H 11, 114 S.Ct.a,2J 1 V n.V e:, ddcd
✓` p mer y.' ( mph "---
(3) Applicant,Through Her Attorney,Admitted That Tigard
Could Deny the Application
In summary, Council could have denied the Application to advance the legitimate state
interests of flood and drainage control and traffic mitigation. Indeed, Applicant's attorney, Mr.
Smith,admitted that Tigard had the authority to deny the Application in the following colloquy during
oral argument before the Supreme Court of the United States:
QUESTION Mr. Smith,are you going to comment on the question whether the
city woud have bee:: within its rights to deny the building permit
entirely?
MR.SMITH Yes,Your Honor. And we would agree that the C;-,wou d h r„e
been within its authority to deny the permit outright. However,that
—that of course might raise a different takings question that's outside
the realm of dedications and municipal exactions, and not only that,
that--no,Your Honor,we are not.
QUESTION: We--we take the case on the assumption that the City could have
denied it?
EXHIBIT A(REVISED)TO FINAL ORDER
Page-14
MR. SNIITH: Yes,Your Honor,that is correct.
CR 00823(emphasis added).
b. Remand OOnditL4-,i3One Advances the Same Luitimate State
Interests Affected by Aoni cant's Project
(f) The Nexus ']Gest Required That Tigard Show a
Relationship Baween the Impact of Applicant's
Development and a Solution N-11tigating That Impact
Council found, as did the Court in Dolan II,that the existence of an impact on legitimate
interests plus a regulatory soiution directed toward mitigating the impact were sufficient to satisfy
he nexus test. See Dolan H,114 S.Ct.at 2318. Council was concerned,however,that this holding
not be misinterpreted. The distinction which the Court has drawn between the nexus test and the new
Yes 'Wia nenfei Yes Yes / Yes
waule[he uewlopment rs trot interest ,WW[dthemnamm Isthe mrCHlon rol9MY
Im{aG a legnlmete atmos vin not nmy the owner of seine Wryott es pepertimel In rotve 8
idenaz
—neb
1-111 Hle irotl.p by ite mF.ertT
(P erhepa nd Esvelopnentt
mw�ma.)
No No
No No
The mmm�t:
pennisslble
Ths mMttim Is
im eermlitible
Figure I Arollan/Dolan Decision Process
EXHIBIT A(REVISED)TO FINAL ORDER
Page- 15
rough proportionality test is somewhat artificial. The nexus test requires a showing that the proposed
condition will address a development's impacts on legitimate state interests,but it does not require
a finding that the proposed condition is proportional to C-tose impacts. Instead, it leaves that
requirement up to the next step in the analysis,the rough proportionality test,which this Exhibit A
applies below. Thus the nexus test concerns itselfwith an either/or proposition. A condition survives
scrutiny under the nexus test so long as it advances a legitimate state interest which the development
impacts to any degree. it is the rough proportionality test of Dolan II which examines whether a
condition passing the nexus test is sufficiently tailored to survive scrutiny under the federal Takings
Clause. The resulting decision process is set out in Figure 1 and is the process Council used here.
A comparison of the Nollan decision with the decision in Dolan H confirmed the accuracy
of Council's holding. In Nollan, the Court did not reach any issue concerning the required degree
of relationship between the impact of the development and the nature and extent of a condition
purporting to mitigate that impact. The Nollan Court held that no such inquiry was necessary
because in that case the facts showed that th�'t ,io nexus between the development's impacts
and the challenged condition. Aollan,483 U.S.a=i— ';V. In Dolan If,byway of comparison,the
Court found that Original Condition One satisfi , n:.-xus test appli�I in Nollan because it was
reasonable to believe that the condition would mitf les for the project's impacts on the floodplain and
Tigard's traffic system. Dolan H, 114 S.Ct.at 2318. After making that finding,however,the Court
in Dolan Hfound that Tigard had not satisfied the rough proportionality test,showing that the Court
believed the two tests to be analytically distinct. See Dolan 11, 114 S.Ct.at 2318("The second part
of our analysis requires us to determine whether the degree of exactions demanded by the city's
permit conditions bear the required relationship to the projected impacts of petitioner's proposed
development.")(emphasis added).'
9 In Dolan dl,the Court explained its reasoning process as follows:
In evaluating petitioner's claim,we must first determine whether the
`essential nexus'exists between the`legitimate state interest'and the permit
condition exacted by the city.... If we find that a nexus exists,we must then
decide the required degree of connection between the.exactions and the projected
impact of the proposed development. We were not required to reach this question
in Nollan,because we concluded that She connection did not meet even the loosest
standard.... Here,however,we must decide this question.
Dolan 11,114 S.Ct.at 2316.
EXHEBIT A(REVISED)TO FINAL ORDER .
Page- 16
(2) A Nexus?waisted Between Remand Condition One and the
Drainage and Traffic Impacts of Applicant's Project
Applicant admitted that her project would increase the amount of storm water running into
Fanno Creek and the number of automobile trips that would be on the city's streets. See,e.g.,CR
00104("The issue is not whether the.Dolans are generating stormwater from their site,they are.");
CR 00146("The expansion ofthe Tigard A-Boy store will add 206 trips per day to the surrounding
street systen."). Evidence in the record showed that Remand Condition One would mitigate for
these increases,thereby advancing Tiga:d's legitimate interests,which also would have supported
MEOW denial of the Apitic8tion, ii_ manasu-.g f,00diiig and drainage and mitigating traffic impacts.io
Therefore,the condit_on satisfied the nexus test by advancing the same legitimate state interests that
Applicant's project impacted and which would have supported denial ofthe Application.
(3) Remand Condition One is Not a Gimmick or Ruse
Applicant made several argument: that Tigard had not shown a sufficient nexus to pass the
test. She began those arguments by claiming that Remand Condition One was"trickery"or a"ruse"
to justify acquisition of the floodplain for recreational purposes. According to Applicant, the
bicycle/pedestrian way will draw the general public to her property and will induce those people to
go into the floodplain in violation of the easements called for in Remand Condition One.
Council found that Applicant's accusation that Remand Condition One was a trick or ruse was
not well taken. The Supreme Court ofthe United States rejected a similar accusation in Dolan II,
finding that Tigard's decision to impose Original Condition One involved "[njo sch gimmicks."
Dolan II, 114 S. Ct. At 2317(emphasis added). Further, Council reviewed several slides,which
showed the steepness of Fanno Creek's banks on the Property. CR 01553. They showed that the
creek's banks are very steep, which will deter persons who use the path from going into the
floodplain. Moreover,Remand Condition One would not cluninate the of Applicant to exclude
the general public from the floodplain area. Under Remand Condition One,Applicant would remain
entitled to all ofthe remedies,such as an action for trespass,that she currently had to exclude others
to Council's detailed analysis the evidence showing that Remand Condition One would mitigate for the impacts
of Applicant's project appears infra at 46,58. This Exhibit A incorporates that analysis in support of Council's finding
that Remand Condition One satisfied the nexus test by this reference.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-17
from the floodplain. The condition also provides that Applicant can fence offthe floodplain so that
the public is not lured into a belief that they can freely access the area.
(4) Tigard Justified the Limited Public Floodplain Access in
Remand Condition One
Applicant also argued that Remand Condition One failed the nexus test because,according
to her,Tigard had failed to justify ownership by the public of an easement allowing limited access to
the floodplain. According to Applicant's lawyer,Tigard could just as well rely on private landowners
to maintain the floodplain in a piecemeal fashion. Evidence in the record ref.:tcd her lay.;er's
assertions,however.
Mr.McGuire,an expert drainage engineer(CR 00085),testified that public ownership of an
easement in the floodplain was essential. Mr.McGuire noted that Tigard's Blaster Drainage flan,
part of the Comprehensive Plan,provides that...Natural drainageways require regular maintenance
to be efficient hydraulic conduits for flood flows. Required maintenance items include debris
removal,mulching,seed n&erosion control,vegetation clearing and sediment clearing.— CR 00778.
To undertake the required maintenance, Mr.McGuire testified,a public easement is essential:
Efficient and cost-effective maintenance of drainageways requires that the City have
the physical and legal ability to access the drainageway. High labor costs typically
dictate the use of large mechanical equipment. Adequate access for this equipment
reduces the time required for maintenance work and its cost. Emergency maintenance
or repair to the drainageway is also accomplished quicker with proper access.
Fanno Creek serves to remove storm water from upstream areas much the same as
a sanitary sewer does with waste water. While Fanno Creek may offer aesthetic
benefits,the two function in similar capacities. Sanitary sewers also require periodic
maintenance to function as intended. Where sewers are located out of public rights-
of-way,easements are provided to allow municipal access for maintenance.
Maintenance cfpublic sewers is a traditional agency function. nrovid ng maintenance
on a larger scale allows purchase of specialized equipment and trained labor. Because
E)MMIT A(REVISED)TO FINAL ORDER
Page 18
the drainageway functions as a complete channel,the proper maintenance of the entire
channel by a single agency is important. It is not practical to rely on individual
property owners to adequately maintain a large system liko- the ranno Creek
drainage. Uncoordinated maintenance by individual owners would not be effective.
CR 00778(emphasis added).
Tigard's justification for acquiring a public easement to maintain the floodplain should not
have come as any surprise to Applicant. The National Floodplain Managers Association submitted
a brief on precisely this point to the United States Supreme Courts as a friend of the Court. T hat brief
was placed in the record of the remand proceedings.In its brief,the Association explained precisely
the rationale advanced by Mr.McGuire. According to the Floodplain Managers Association,
the most efficient flood management system requires that channels remain unblocked
and be capable of receiving the full water flowing into a portion of a channel from
upstream. The alternative would be large flows feeding water into more constricted
areas so that the system could actually increase flood problems. Flood management
systems can only work if the flow discharge and conveyance systems on each property
Go are intelligently integrated.
Not only is comprehensive flood management more efficient,it is also more
accurate and more fair. A comprehensive analysis permits a greater dedication of
technical resources and allows a cumulative analysis of how potential development
can impact overall flooding levels. A comprehensive plan reduces the likelihood that
individual decisions will be capricious and i-!pose bur dens w1fairly.
CR 01300-01(emphasis added).
Notwithstanding the strong evidence supporting public ownership,Applicant's lawyer claimed
that the Comprehensive Plan said that Tigard had adequate regulations to administer the.floodplain
without acquiring floodplain easements. However, the lawyer seriously misunderstood the
Comprehensive Plan.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-19
Section 3.2 of the Comprehensive plan s•;:ts out some of Tigard's approaches to floodplain
management." Part cftliat section,which Applicant'n lawyer used to make his argument,states that
"[t]he City of Tigard currently has ordinances,policies and standards within ine Tigard Community
Development Code which provide adequate controls for development within floodplain areas."In
taking this section out of context,Applicant's lawyer claimed that it showed that public access to the
floodplain was unnecessary. However,in context that is not what the section says. The regulations
which led Tigard to find that its floodplain controls were adequate anticipate,among other things,
that Tigard will require dedication of easements,such as that imposed here,to allow Tigard access
to the floodplain. For example,Policy 3.2.4 provides that"[t]he City shall require the dedication of
all undeveloped land within the 100-year floodplain. . . Although because of Dolan 11,Tigard
cannot apply Policy 3.2.4 without first conducti-ng a nexsslrough proportionality review,the policy
shows that Tigard evaluated the adequacy ofits floodplain regulations based on an understanding that
they included dedications offloodplain easements. Thus,the language on which Applicant's attorney
relied does not show that Tigard found its regulations to be adequate without the need for public
ownership.
Another portion of the Comprehensive Plan supports this conclusion The Comprehensive
Plan at Volume I,page 193, provides that Tigard should implement the recommendations of the
Master Drainage Plan. The Master Drainage Plan calls for the dedication of floodplain easements
to prevent floodplain development and to allow maintenance of the floodplain and creek channel.
Master Drainage Plan at 9-1. The CDC carries out these provisions by requiting dedication of
easements where necessary to address drainage problems in accord with the Master Drainage Plan.
See CDC §18.164.100; see also CDC §18.120.180.A.8 ("Where landfill and/or development is
allowed within and adjacent to the 100-year floodplain,the City shall require dedication of sufficient
open land area.");CDC 18.120.18.A..15("All drainage plans shall be designed in accordance with
the criteria in the adopted 1981 master drainage plan[sic].").
Applicant also argued that no essential nexus existed with the floodplain easement because,
she asserted tbro»gh her lawyer,Tigard has no policy calling for maintenance ofthe floodplain and
creek channel. That assertion is untrue. The Master Drainage Plan, which is part of the
Comprehensive Plan, calls for major channel improvements near Applicant's property and for
11 Chapter 7 the Comprehensive Plan also sets out floodplain policies.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-20
AM maintenance of the floodplain and creek channel. See, e.g.,Master Drainage Plan at 7-11,7-2-7-4.
Furthermore,the Master Drainage Plan recognized that improvements would occur over many years
because of funding and other limitations. See, e.g., Master Drainage Plan at 9-1 ("Only the full
implementation of the recommended plan will provide relief from the 100-year flood throughout the
Tigard area. Fiscal and political constraints,however,will dictate the need for phasing the various
strategies."). Tigard has undertaken improvements and maintenance required in the Master Drainage
Plan. For example,as Applicant's lawyer testified,Tigard replaced the Main Street Bridge,one of
the improvements called for in the Master Drainage Plan. Sec,e.g., CR 00104(noting replacement
of the Main Street bridge). Evidence in the record also showed that Tigard has exercised its
maintenance responsibilities under the Master Drainage Plan.CR 00095. Finally,Applicant's claim
that Tigard has the right under general municipal law to go on property during emergencies to clear
the creek channel misses the point. The Master Drainage Plan calls for improvements and
- maintenance to prevent emergencies.
(5) The Bicycle/Pedestrian Way is Meant to Reduce Auto
Traffic,Not Just Provide Recreational Opportunities
Applicant argued that the bicycle/pedestrian way could not satisfy the nexus test because
Tigard's planning documents said that its purpose was recreational. She reasoned that the trips which
her project will generate will be for shopping and commercial pkirposes. Ths:efore,according to
Applicant,a nexus did not ex!:;.between her impact--more shopping grid commercial trips--and the
bicycle/pedestrian way. Applicant's argument was not well taken, however, because Tigard's
planning documents and expert testimony showed that the bicycle/pedestrian way was intended to
and will serve shopping and commercial trips,mitigating the traffic impacts of the project.
To make her argument,Applicant introduced selective quotations from Tigard's planning
documents to give the mis-impression that the city intended that the bicycle/pedestrian way serve only
rc
--•hcn w'a'-.auvr�di trips. However, w .,u..uu put all of the relevant provisions together,it found that
Tigard intended the bicycle/pedestrian way to serve a wide variety of trips, including those for
shopping and commercial purposes.
Tigard's Park and Pathway Plans showed the multiple purposes that the bicycle/pedestrian
way would serve. Applicant,for example,criticized the bicycle/pedestrian way because it would run
EXHIBIT A(REVISED)TO FINAL ORDER
Page-21
into Fanno Creek Park,claiming that connection proved the pathway to be solely for recreational
purposes. The Park Plan directly refuted this inference. Instead,it established that the park was
mean:.to act as a hub," drawing people to use the path for both recreational and commercial
purposes.
Beside-- helping to meet the recreational needs of the comriunity, and preserving
important natural areas,the implementation of the[Park and Pathwayl i'vvfaster.-!a.-.--
will
lanswill work to support commercial and residential development in the City. The
? development of Fanno Park will directly complement anticipated improvements to the
City Center. The outdoor recreational opportunities offered in the park will attract
area residents to the Main Street area and increase their exposure to this commercial
center. Further,the park improvements will provide an attractive setting for the
commercial area, making it a more pleasant experience for shoppers and the
commercial clients.
CR 01522. Fanno Park, to which the pathway runs, "is designed to be intensively used and
programmed for a variety of recreational,civic,and commercial(Unctions. . .. This site is seen as
an important part ofdeveloping the Main Street and City Center area into an important focus for the
citizens of Tigard and surrounding areas." Id. Similarly,the Pathway Plan included among its criteria
12 Tigard made its intent that the park ret as a hub for alternative mode trips clear in the Park Plan,as follows:
Access to the site[Fanno Creek Park]can be made at various points throughout the
park. The principle locations are found at the end of Ash Street,at Hall Boulevard,
from the Civic Center and Senior Center,and from the residential areas south of the
park. Pathways and bridges through the developed area of the park provide safe
and convenient access between the Senior Center,the Civic Center,residents from
the Chelsea subdivision,and other visitors to the park. As more pathways and
_ .,
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� .,l""'w wga Yi11 JIIUiJ Wiii llaVc l)Cttcr
access to the park and the downtown commercial area. As the greenway
pedestriantbicycle pathways are completed,Fanno Creek Park will serve as an
important connection and provide access to the downtown area for residents both
north and south along Fanno Creek.
CR 01395. This part of the Park Plan responds to Applicant's claim that the path avoids major development area. From
its review of the maps in the record Council found that this path does use the parkas a hub,connecting it to outlaying
areas and to the downtown:By running through the park,the path will provide an attractive route to the downtown not
provided by other bicycle/pedestrian links. The path thus does not limit access"like a freeway,"as Applicant's lawyer
mistakenly claimed.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-22
in establishing paths that they would serve major shopping areas, CR 01406, and, contrary to
Applicant's asse,tions,inchided downtown Tigard,which this path will serve,as a major generator
of such trips. CR 01407.
Expert testimony also established that the bicycle/pedestrian way would reduce trips.
Although analyzed in more detail below,Mr.Larson,an expert traffic engineer,testified that Tigard's
pathway system would result in a nine percent reduction in automobile trips. CR 00781. He also
testified that the segment ofthe pathway running through the Property was essential to obtaining that
reduction:
In order to achieve the,the,pedestrian environment f ctor...such that traffic
by pedestrian and bicycles can reach a 14 to 15%of total trips,we need to complete
critical elements ofthe project. And in particular the pathway system is missing this
one last link,just downstream from the Main Street bridge. Completing that pathway
system is critical to reaching the pedestrian environment that,that will allow 85%of
all trips. . . 15%of all trips to be accomplished by pedestrian or bike travel.
7-18-95 Tr.at 16..
Council's review of Oversized Exhibits 69,70,71,and 79 confirmed this conclusion. Those
exhibits mapped out all ofthe pathways intended under the Bicycle Pathway Plan. The maps showed
that Tigard is developing an interconnected system and that this pathway is an integral part ofthe
system to provide access to downtown from outlying areas. Based on this evidence and the
statements in the Diaster Pathway Plan and the Parks Plan, Council found that a nexus did exist
between the traffic impacts of Applicant's project and the bicycle/pedestrian way called for in Remand
Condition One.
Before closing its consideration ofthe nexus test,Council addressed one additional argument
of Applicant having to do with the bicycle/pedestrian way. She argued that the pathway had to be
for recreation because it would be located along the floodplain and not next to a city street. Her
inference that the location ofthe pathway implies that it would be solely for recreation was mistaken.
A bicycle/pedestrian way located away from auto traffic would provide a greater margin of safety
than would an on-street path. "The interaction between pedestrians and vehicles places pedestrians
EXHIBIT A(REVISED)TO FINAL ORDER
Page-23
at a distinct disadvantage. One obvious result is the annual pedestrian accident toll of more than erne-
quarter of a million casualties including 10,000 de:_ths." CR 01326. "h ie absence of separated
pedestrian and automobile facilities,pedestrian casualties rise.. . .[I]n the au.ence of sidewalks and
pathways,the risk of pedestrian accidents increases by 72 percent."CR 01339;see also CR 01328
("The pedestrian function extends to bicycling pathways as well. Bicycle aiding in many American
towns and cities, like walking, is neither enjoyable nor safe because of the dominance of the
automobile."). The Master Pathway and Parks Plans recognized these dangers and called for off-
street facilities. CR 01406,01395. Moreover,witnesses testified that walking and bicycle riding in
Tigard was dangerous and that they would be more likely to walk or use their bikes for shopping and
other commercial purposes if the path called for in Remand Condition One was built. CR 00468,
000467, 00465. For these reasons, -r "he idea that separate f cilit;es are-needed to -cm-in
LJ s pr
vehicles and walking is several thousand years old." CR 01328. Tigard did t-stablish the required
nexus.
C. RENLIND CONDITION ONE.SATISFIES THE NEW ROUGH PROPORTIONALITY TEST
x'RoMDoL4NH
1. Requirements of the Rough Proportionality Test
In Dolan II,the Court required the city to show that the condition also passed the new rough
proportionality test. Before reviewing evidence on that issue,Council decided what that test required
of Tigard.
In Dolan II,the Court granted review"to resolve a question left open by[its]decision in
Nollan. . . of what is the required degree of connection between the exactions imposed by the city
and the projected impacts of the proposed development" Dolan II. 114 S. Ct_ at 2312. The Court
found this question to be germane because,unlike the Commission in Nollan,Tigard had satisfied the
nexus test. Id at 2316. "Since state courts ha[d]been dealing with this question a good deal longer
than"the Court,it"turned to representative decisions made by them for guidance"in formulating its
test. Id at 2318.
From its review of state cases, the Court gleaned three different approaches. First, it
identified a group of cases "where very generalized statements as to the necessary connection
EXHIBIT A(REVISED)TO FINAL ORDER
Page-24
between the required dedication and the proposed development seem[ed]to suffice.".Id. The Court
found this standard to be"too lax to adequately protect[Applicant's]right to just compensation if
her property[was]taken for a public purpose." Id.
The Court next considered a group of cases where state courts had"require[d]a very exacting
correspondence,describes:as the`specifi[c]and uniquely attributable test."' Id., quoting Pioneer
Trust&Savings Bank v.Mount Prospect,22 Ill.2d 375, 176 N.E.2d 799, 802(1961).
"Under this standard,if the local government cannot demonstrate that its exaction is
directly proportion-al to t'-c specifically created need,the exaction becomes"a veiled
exercise of the power of e......ent domain and a co^fiscation of private prone
behind the defense of police power regulations."
Dolan II, 114 S.Ct.at 2318,quoting Pioneer Trust&Savings Bank, 176 N.E.2d at 802. But the
Court held that the specific and uniquely attribu*able test did not apply,stating bluntly that it did"not
think the Federal Constitution requ es such exacting scrutiny given the nature of the interests
involved." Dolan ll, 114 S.Ct.at 2318-19.
After rejecting the lenient test of some states and the exacting test of others,the Court found
a third category of cases where the state courts had taken a middle course,applying a"reasonable
relationship test." Id at 2319. The Court quoted with approval the following description of that test:
"The distinction, therefore, which must be made between an appropriate
exercise of the police power and an improper exercise of eminent domain is whether
the requirement has some reasonable relationship or nexus to the use to which the
property is being made or is merely being.used as an excuse Ler taking.s..,...
..g. y.oype
ci sy.
simply because at that particular moment the landowner is asking the city for some
license or permit."
Id quoting Simpson v.North Platte,206 Neb.240,292 N.W.2d 297,301(1980)(emphasis added).
Although the Court referred to the reasonable relationship test with approval,it did"not adopt
it as such." Dolan II, 114 S. Ct. at 2319. It did not do so`partly because the term`reasonable
EXHIBIT A(REVISED)TO FINAL ORDER
Page-25
relationship'seems confusingly similar to the term`rational basis'which describes the minimal level
of scrutiny under the equal protection clause of the Fourteenth Amendment." Id(emphasis added).
The Court did not describe its other reasons for not adopting the reasonable relationship test,but its
use of the word"partly"in describing its justification for not to adopting that test implies that such
reasons did exist. Considering the Court's favorable attitude towards the reasonable relationship test,
Council believed it most logical to think that the test the Court ultimately chose was a new form of
that test refined to address federal concerns.
Thus,instead of adopting the reasonable relationship test per se,the Court minted a new
for:mulation to be applied alter a local government had shown the nexus required by Nolla.2:
We think a term such as"rough proportionality"best encapsulates what we hold to
be the requirement ofthe Fifth Amendment. No p-ecise.mathematical calculation is
required, but the city must make some sort of individualized determination that the
required dedication is related both in nature and extent to the impact of the proposed
development.
Id. (emphasis added). The Court offered no list of factors that must be proven to satisfy the test.
Nor did it set out black letter rules governing the required degree of relationship,merely saying that
the test required only rough proportionality and not a precise mathematical calculation. The Court's
factual analysis,however,went a way towards filling in these blanks.
Original Condition One required Applicant to dedicate an easement to the floodplain,which
might have allowed public access for recreation. Nevertheless,the Court found that the floodplain
dedication satisfied the nexus requirement. Dolan II, 1 1 d C _* a±2 18 I3�we»r 1=4 1—
..»11.1-.b...-
rough proportionality test,the Court decided that the findings supporting the floodplain dedication
did"not show the required reasonable relationship." Id at 2321 (emphasis added). The Court
reasoned that although Tigard had shown adequate grounds to forbid development of the floodplain,
it had not justified public ownership. The Court was concerned that Original Condition One allowed
the public access to the floodplain for recreation because Tigat:i had not shown that Applicant's
project would affect that interest. Id at 2320-21.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-26
At first blush,the Court's ruling appears to be only an application of the nexus test. At least
Justice Souter thought so. Dolan 11, 114 S. Ct. at 2330(Sauter, J., dissenting). But the Court
emphasized that it was creating a two-step process and that the floodplain dedication had satisfied
the first step.Dalen 11, 114 S.Ct.at 2318. Council therefore realized that it must find and adopt the
explanation of the rough proportionality test fully honoring the approach required by the Court.
To that end, Council first observed that to pass the nexus test Tigard needed only to satisfy
an either/or proposition. Either Remand Condition One advanced a legitimate state interest to some
extent or it did not do so. Because Council four_d that Remand Condition One did advance such an
ME interest,it,like the Court with regard to Original Condition One,r_,_mr?that Remand Condition One
MIME passed the nexus test. Saa s f ra,at q. TiIvwcv8r,unlike the n:;us test,Council Found that the r^ gl
proportionality test required proof that Remand Condition One reasonably related to impacts from
Applicant's project as a function of their nature and extent. See Dolan II, 114 S. Ct.at 2321(finding
that Tigard had failed to"show the required reasonable relationship between the floodplain easement
and the petitioner's proposed new building.")(emphasis added). The Court's application of the test
of Dolan II exemplified how it governs evaluation of an exaction as a function of its nature and
qY;
l extent ;larifying that the analysis is not limited to an either/or proposition. Instead,the holding in
Dolan 11 shows that a condition's purpose must roughly correspond to the interests impacted by the
development. Thus,the Court found that although Original Condition One satisfied the nexus test
by advancing the legitimate state interest of flood and drainage management,the city had not shown
that its purposes for acquiring a public greenway roughly corresponded to the drainage impacts of
the project. Accordingly,the Court held that the condition had passed the nexus test but that the
city's findings were insufficient to show rough proportionality.
Ther Court's analysis of Tiger d's justification of the bicycle/pedestnar.pathway was also
illuminating. There,the Court found that Applicant's project would seriously affect Tigard's street
system. Dolan 11, 114 S.Ct.at 2321. The Court also found that pedestrian and bicycle ways often
help reduce traffic congestion. Id at 2318. Nevertheless,the Court held that Tigard had not"met
its burden of demonstrating that the additional number of vehicle and bicycle trips generated by
[Applicant's] development reasonably relate to the city's requirement for a dedication of the
pedestrian bicycle pathway easement." Id at 2321(emphasis added). The reasons the Court gave
for this conclusion illustrate another facet of the rough proportionality test.
EXfIIBIT A(REVISED)TO FINAL ORDER
Page-27
In its firkdings,Tigard had justified the pathway easement by saying that the path"could offset
some of the traffic demand . . . and lessen the increase in traffic congestion." Id. at 2321-22
(emphasis added). The Court held that the city's use of the word"could" was too equivocal,
adopting the suggestion in the dissenting opinion of Oregon Justice Peterson that Tigard be required
to show that the path"`would"'or"`would be likely to"'offset traffic demand. Id. at 2322,quoting
DolanlI,317 Or.at 127(Peterson J., dissenting). In imposing this requirement,though,the Court
emphasized that"[nJo precise mathematical calculation is required." Dolan II, 114 S.Ct.at 2322
(emphasis added). Under the rough proportionality test,"the city must make some effort to quantify
its findings in support of the dedication for the pedestriantbicycle pathway beyond the conclusory
statement that it could offset some of the traffic demand generated." Id. (emphasis added).
Based on its review of the steps taken by the Court,Council found that the new test placed
the following obligations on the city:
Tigard was required to make an individualized evaluation of the impacts from
Applicant's development.
Tigard was required to establish a reasonable correspondence between the
impacts of the development and the purposes offered in support of the
easement dedications.
Tigard was required to make some showing that the proposed easement
dedications would or would be likely to mitigate for the impacts offered in
justification for the condition. A-nd,
Tigard was required to show that the extent of the exaction was roughly
proportional to the expected impacts of the project.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-28
In considering these requirements, ILLUSTRATION OF ROUGH PROPORTIONALITY
Council found that the Court Legend
expressly rejected any demand for Range of Roughly Proportior-al Exactions
specific or exact proportionality ® Exaction Clearly Less Than Impacts
between the exactions .and the
project's impacts. indeed, the b
Court's approval ofthc reasonable €
relationship test,which it Found to
be a middle ground between s
exacting and permissive scrutiny,
.
_,_ .=-
d
: €
a,ivirocu;iiiAt ii;nth„ucu,to allow av, 'a" - _ :•_:.;'�-_ __ - _ _ - _ _
a range of possible outcomes that a
city could adopt in any given case. 1 I
Figure 2 illustrates this concept as a Naw.8 Extert of Impacts
discrete band of outcomes Figure 2: Graph illustrating rough proportionality concept
allowable under the Court's
decision.
Council found confirmation of its interpretation in the Court's explanation of the competing
interests which must be weighed in deciding exaction cases. In Dolan II,the Court began by noting
that cases such as the present raise two competing constitutional principles. On one hand,the Court
found it obvious that if Tigard had simply demanded the easements from Applicant,the Takings
Clause would have required the city to pay her just compensation. Dolan II, 114 S.Ct.at 2316. On
the other hand,the Court has historically granted local governments broad discretion in zoning cases.
Id. Here,the Court held that the quasi-judicial nature of the decision and the fact that Tigard was
to acquire an interest in the Property,` a the balance against o ving the city's decision
proposing cq tippc.. .. - -- -
the full deference usually accorded by courts to local zoning legislation. Imo. Indeed,it was for this
reason that the Court imposed the burden on Tigard to show that the exactions passed the rough
proportionality test. Id. at 2320 n.8.
Although the Court selected a rule granting less deference than usual to Tigard's decision,it
still recognized a zone of discretion based on the authority of local governments to regulate land use,
illustrated in Figure 2 by the gray-shaded band,in which the city,not the courts,would be charged
EXHIBIT A(REVISED)TO FINAL ORDER
Page-29
so 11111 1
with deciding whether particular exactions were justified. This is what led the Court to describe its
choice of tests as a requirement of only"rough proportionality," id. at 2319, and to reject the
specifically and uniquely attributable test,saying,"[w]e do not think the Federal t'onstituWn requires
such exacting scrutiny, given the nature of the interests involved." Id. at 2';%1- -19 (emphasis
added)."
Council was not sure whether Applicant disagreed with this understanding of the governing
legal rule.14 Applicant appeared at some points to be arguing for a standard similar to the specific and
uniquely attributable test. She claimed,for example,that the dedication must relate"directly"to the
impacts and that"[t]he[city's]analysis must show how it relates to the size,scale,and eriect ofthe
Solan property_ and its uses." Although these statements are not necessarily inconsistent with
Council's understanding of Dolan II,to the extent Applicant meant to suggest that a very exacting
test should apply here,she was mistaken. The Court expressly rejected such an approach.
As with most abstract legal tests,the rough proportionality test draws real meaning from its
application to specific facts. Therefore,rather than further debate Applicant's legal arguments in the
abstract, Council chose to address them in its analysis of the evidence. Thus, after gaining an
understanding ofthe Court's new test,Council moved on to decide whether Remand Condition One
fell into the permissible range of exactions,considering the circumstances presented here.
13 A zone of discretion is also appropriate because"there never has been(and probably never will be)an ultimate
criterion by which to distinguish clearly between regulation and taking,the tests(in corollary fashion)are lacking in
standards that are precise,easy to apply,and productive of uniform results."J.C.Vance,Exaction of Right ofWav by
Exercise of Police Power,in R.D.Netherton,Ed.,2 SELECTED STUDiEs ry HtoiiwA't LAw 936-N227,at 936-N227
(1988).
14 Applicant has not consistently advocated a single approach to the takings question. Her lawyers have,
however,made statements that imply she agrees with the formulation o;'!a test set out here. In her Supreme Court
Brief,for example,her counsel said the following,which appears to be a_;,�cord with Council's understanding of the
rough proportionality test:
If the city had,by a study,determined how much storm water entered Fanno Creek,and specifically
how much more runoff would be caused by the Dolans'new store,it might have been able to
constitutionally justify the dedication for the storm drain and greenway.... If it had,by a study,
determined the number of additional pedestrians,bicyclists,and automobiles the new store would
generate,and how those numbers compared to the existing traffic loads on city streets,sidewalks,and
bike paths,it might have been able to justify the pedestrian and bike path dedication.
CR 00734.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-30
M.-
2. The Regrsired Flood Plain Easement Satisfies the Rough Proportionality
Test
a. 'Tigard. Marough an Individualized Evaluation Showed That
AUplicant's Project Would 1{rygSigniticaot Impacts
Applicant proposed to almost double the size of her store and to pave a now gravel parking
lot. She thus planted to increase substantially the amount of impervious surface on the Property.
"It is axiomatic that increasing the amount of impervious surface will increase the quantity and rate
of storm-water flow from [Applicant's] property." Dolan 11, 114 S Ct at 2320. Indeed, Mr.
McGuire, an expert drainage engineer, CR 00085, calculated that the project would increase the
runofffrom the site during a251-year storm.event from 1.32 cubic feet per second C'cfs")to 1.91 cfs,
an increase of 0.59 cfs. CR 00847. Applicant's own engineer,Mr.Harris,testified that the runoff
from the project would be even higher, anticipating an increase of 0.91 cfs. CR 01531. Council
therefore found that the project would increase runoffto Fanno Creek from the Property.
Tigard used several methods to estimate the significance of the increase in runoff,including
a method recommended by Applicant's attorney. In his testimony to Council on June 27, 1995,Mr..
Smith, one of the lawyers for Applicant," argued that Council was legally required to use the
methodology in the city's Master Drainage Plan to calculate impacts from the development. Mr.
Smith not only argued that the city must use the Drainage Plan,but in the following testimony he also
recommended it to Council as the best way to find the impact of increased runoff from the site:
Similarly let me tum to the,to the master drainage plan.. I've also asserted to
you that the master drainage plan which was part of your Comprehensive Plan
provides a methodology to you for computing how the proportionate share of cost
10i JL0111i lllaluagu unpiuvemenis should be caluulatell. And WL solltC puila in time,
the City spent what,what appeared to be a substantial sum of money to hire C112M
Hill to do an excellent master drainage plan. One that I commended with,with favor
15 Mr.Smith was also lead counsel fc=Applicant before the Supreme Court of the United States in Dolan 11.
EXHIBIT A(REVISED)TO FINAL.ORDER
Page-31
09
ig
to the Supreme Court[of the United States]in oral argument as,as being a model of
how one could calculate impacts an storm water runoff.
6-27-95 Tr,at 27(emphasis added).
In response to Mr.Smith's recommendation,Mr.McGuire undertook the calculation called
for in the Master Drainage Plan. Using the increase in runoff calculated by Applicant's drainage
engineer,Mr.Harris,Mr.McGuire found that"[i]f the Dolan site were to contribute toward the
Fanno Creek improvements based on the impact of their proposed additional impervious area,the
cost would be approximately...$1,603." CR 00779. Because Mr.McGuire's calcula:,;on was based
on the testimony of Mr.Smith and Mr.Harris,witnesses for Applicant,Council found it to be highly
credible and concluded that the project would result in impacts on Tigard's drainage system of at
leas116$1,603.
Council did not rely solely on calculations under the Master Drainage Plan in its effort to fix
the likely drainage irmpacts of Applicant's development. It also considered two alternative
approaches.
In one such approach, Mr. McGuire calculated the impact of increased runoff from the
Property using a methodology originally developed to support system development charges of the
Unified Sewerage Agency("USA!')for storm water drainage. See USA R&O 93-33 and exhibits,
at CR 00626. Council reviewed the USA ordinance establishing the charges and the underlying
methodology developed by Brown&Caldwell,a firm with expert experience in this field. CR 00680.
System development charges such as those imposed by USA must be based on actual impacts
and be proportional with such impacts,see ORS 223.297,et seq. and,as indicated in the following
.quotation from the Brown&Caldwell study,the USA ordinance was esiablisited based On a is r
allocation of costs:
16 Council inferred that as representatives of Applicant,Mr.Smith and Mr.Harris would take a conservative
approach to estimating impacts. Therefore,it concluded that their approach represented a conservative estimate of the
probable impacts from the development.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-32
i 2t NMI 1
RagI
The purpose of the analysis was to determine atypical range of costs for storm water
facilities. These facilities are designed to. . .reduce peak food discharge increases
associated with urban development. The intent of this study was to develop cost
estimates which could be used in establishing a system development charge.
CR 00682. Therefore,Council found the Brown&Caldwell study and the USA charges to be highly
credible indicators of costs associated with increased runoff.
The USA system development charge is$280 per equivalent service unit ("ESU"). CR
00654." Ofthat amount,$180 is allocable to water quality impacts and$100 is allocable to water
quantity impacts. CR 00654. Using the Brown&Caldwell Report,Mr.McGuire fund that the total
quantity impact for storm water was$563
per ESU for the 25 year storm and$1033
per ESU for the 100 year storm. CR Range of Impacts
00097. Mr.McGuire further testified that Drainage Plan&USA Methodologies
it was appropriate to subtract the $100 — �
system development charge from these 5000
total impacts to determine the otherwise 4000
unmitigated impact of new development 3000
0 2000
:..........
on Tigard's drainage system. Id. 1000
Therefore, because Mr. McGuire 0
determined that Applicant's project would Drainage Plan USA(25 Yr.) USA(100 Yr.)
cause runoff equal to 4.36 ESU, he Method
testified that it would have unmitigated
impacts
impacts of$2019 for the 25 year storm
and $4,068 for the 100 year storm. CR Figure 3: Extent of Likely Impacts
n0097-9 9.
Besides estimating the impacts of Applicant's project under the Master Drainage Plan and the
USA ordinance,Staff presented evidence ofthe costs which would be associated with+mitigating for
17 Under the USA resolution and order,a single ESU is equal to the amount of surface water runoff that would be
generated by a single fa.-nily residence. CR 00633.
EXFIIBIT A(REVISED)TO FINAL ORDER
Page-33
the increased runoff. Mr.McGuire testified that three options existed for mitigating for the increase
.n storm water without acquiring the easement called for in Remand Condition One. They were
retention,detention, and in-stream detention. Mr.McGuire estimated the cost for each solution,
respectively,to be$6,800,$8,500 and$2,500. CR 00848.
Council found that the alternative methodologies substantiated Mr. McGuire's testimony
under the Master Drainage Plan. They showed that the$1,600 prediction derived from that plan was
probably conservative,and that the project would generate at least that much of an impact,if not
significantly more.
Applicant objected to Tigard's use of methodologies other than that called for in the Master
Drainage Plan to estimate the impacts of her development. She argued,for example,that Tigard's
land use regulations required the city to use the Master Drainage Plan. Council,however,did not
interpret its regulations to place such a requirement on Tigard. The methodology in the Master
Drainage Plan,which is part of Tigard's Comprehensive Plan,was set out as a recommendation.
Master Drainage Plan at 8-10. Nothing in the Master Drainage Plan or other portions of the land use
regulations created a binding rule requiring use of the Master Drainage Plan as the sole means of
estimating drainage impacts from development. Furthermore,Tigard did determine the impacts from
Applicant'sproject usmg the methodologym the Master Drainage Plan. That methodology showed
that the project would cause an impact ofat least$1,600 on the drainage system. Council relied on
the other methodologies proposed by stafl'to verify the accuracy of that number.
Applicant also argued that Council was bound to use only the methodology in the Master
Drainage Plan because it had applied that plan in Dolan 11. Her argument is irrelevant because
Council did use the Master Drainage Plan. Furthermore,although issues decided or which could have
been decided in Dolan II were not before Council, Council properly considered evidence and
ISM arguments concerning new issues arising from the C'ourt's remand dgricin-m r„Dolan rT *he Cou
placed a new responsibility on Tigard to quantify its findings;therefore,Council could consider new
evidence and argument addressed to that instruction. The USA regulations,Brown&Caldwell
Study,and Mr.McGuire's testimony all concerned new issues raised in the Court's opinion. Council,
therefore,properly considered that evidence.
EXH£BIT A(REVISED)TO FINAL ORDER
Page-34
Applicant relied on testimony from Mr.Harris to claim that the predicted increase in storm
water runoff would be;nsignificant. Although T.&.Harris found that the project would increase
runoff from the site, he argued that the increase of flow in the creek would amount only to the
thickness offive sheets of paper. CR 01532.. 14.-.plc--.-irc responded to this argument by shov ing
that even such an increase,if not mitigated,would be significant because of the cumulative effect of
the runoff. If Tigard did not require developments to mitigate for even small increases in stream flow,
according to Mr.McGuire,eventually the curn-alative impact of the developments would break the
drainage system.
To demonstrate his point,Mr.McGuire used the Master Drainage Plan to formulate how
much runoff development has or will add to the system. He estimated that,without mitigation,all
o:the development would lead to an increase in the stream equal to 11,908 sheets of paper,a stack
four feet high. CR 00778. "Clearly, 11,908 sheets of paper is significant and is the result of
considering only residential development in Tigard. Adding commercial and industrial sites,with their
higher impervious areas,plus basin area outside of Tigard,would further increase impacts." Id
In response to Mr.McGuire's testimony concerning cumulative impacts,Mr.Shonl-wiler.one
of Applicant's attorneys, argued that some of Tigard is outside the Fanno Creek basin. He then
concluded that Mr.McGuire's analysis was in error. He also made the point that the areas of Tigard
outside the Fanno Creek basin include some of the more undeveloped areas,and,thus,represent areas
of higher expected growth and,he asserted,runoff.
Council rejected Mr. Shonkwiler's criticism for several reasons. Not least among those
reasons was Council's realization that Mr. Shonkwiler had missed the point. Mr. McGuire's
testimony established that all increases in runoff have a cumulative effect if not mitigated. Even if his
estimate of an increase in the stream level of four feet was inaccurate,Mr,McGuire's testimony
established that ail inure ses in runoff have a significant impact on the system. hisis,in turn,showed
that all such increases result in a cost to the City by using up capacity. Based on the testimony of Mr.
McGuire and others,Council found that here that cost was at least$1,600.
Council found,moreover,that Mr.McGuire's analysis was conservative. If he had included
all land in the Fanno Creek basin,the result would have been even more dramatic. Mr.Shonkwiler
overlooked that while some ofTigard is outside the Fanno Creek basin,parts of Beaverton,Portland,
EXHIBIT A(REVISED)TO FINAL ORDER
Page-35
Lake Oswego,Dearsnn,Washington County,and Multnomah Couney are all in the basin and were
not included in Mr.McGuire's analysis. These all add up to significantly more area than that part of
Tigard outside of the basin. See Comprehensive Plan at I-192("The major drainage problem in
Tigard is the storm. water runoff throughout the area. This problem results from the increase in
impervious land surfaces that can alter the quantity and quality of runoff from the land.");
Comprehensive Plan at II-13("In addition,there is the issue of the cumulative effect of development
upstream of'rigard. Flood levels in Tigard v rill be substantially determined by the controls exercised
over development outside the plan area as well as inside Tigard's Planning Area.");see also CR
01530(testimony of Harris)(Fanno Creek"is the major drainage way for the City of Tigard;in fact,
the—extent ofthe City approximates the watershed of Fanno Creek.");CR 01530(testimony of Harris)
("At the Main Street bridge,Fanno Creek drains a watershed of 25.1 square miles, equivalent to
16,064 acres.").
Considering these factors, Mr. McGuire's was a conservative analysis that accurately
described the cumulative effects of runoff in the drainage basin. A full accounting of the entire
drainage basin are:,,topography,and past and potential development would more than offset for the
small area of Tigard outside of the Fanno Creek basin.
Mr. Shonkwiler also criticized Mr.McGuire by claiming that there had beer n,y rise in the
floodplain since the Master Drainage Plan was adopted,as Mr.McGuire's calculations would have
predicted. Council found no evidence in the record to support that position. Figure 5.2 of the Master
Drainage Plan showed the 100-year flood profile as it existed when the report was written and the
future 100-year flood profile. As expected,the future profile was higher than the existing,indicating
a rise in flood elevation resulting from development and increased flow rates. The Master Drainage
Plan thus recognized the impact of development on existing flood plains.
Future urbanization wwithin.the Fanno Creek basin will significantly increase flooding problems.
The Master Drainage Plan considered a 20-year planning period that ends in the year 2000.
Development in the Fanno Creek basin has occurred at least to the level anticipated by the Plan. Also
we are now nearing the year 2000. To state,as did Mr.Shonkwiler,that there has been no rise in the
floodplain elevation ignores the Master Drainage Plan,basic hydrology and hydraulics,as well as
common sense.
AM EXHIBIT A(REVISED)TO FINAL ORDER
Page-36
1W Shonkwiler also criticized NW McGuire's analysis because it died not distinguish between
residential and commercial development. He asserted that"commercial and industrial properties are
z?proximately three times higher in stonn-Vater runoff than residential." Again,this statement did
not support Applicant. She proposed to develop her site as a commercial property,and it would
generate runoff accordingly. The impact of development of this site would thus be"approximately
three times higher"than a sir il_ar residential development.
Based on the foregoing analysis, Council found that Applicant's project would generate
;conal runoff that would,by any reasonable measure,have a significant impact of at least$1,600
on'ligard's drainage system.
Applicant's attorney tried to avoid this conclusion by arguing that Tigard's calculation of the
impacts was not sufficiently specific to satisfy the rough proportionality test. Unsatisfied with the
city's analysis of the drainage impacts,Mr.Shonkwiler claimed that Tigard had failed to prove rough
proportionality. The nut of his argument appeared to be the following paragraph:
The issue is not whether the Dolans are generating storm water from their site,
they are. The City has made no attempt to calculate or proportionately assign storm
water costs to properties both up and down stream. The issue is whether the cost
assessed by the City is proportionate with the overall cost for storm water
management. Here,it is not and the Dolans are being required to pay or contribute
more than their fair share.
Although it was not entirely clear what approach Mr. Shonkwiler would have found acceptable, his
contention did merit a response.
In contending that Council had to assign proportionate values to each property up and dov,n
Fanno Creek,I'Ar. Shonl—wiler was saying that the Council must for each property make an exact
analysis of impacts and proportionality. However,that was not the test selected by the United States
Supreme Court. The Court held that the City had to show only rough proportionality between the
impact of the project and the exaction.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-37
Mr.Shonkwiler tacitly acknowledged this point by saying that"[t]he issue is whether the cost
assessed by the city is proportionate with the overall cost for storm water management." (Emphasis
added.) However, Council found that Tigard had shown through several methodologies the
proportionate impact of the development on tate total system:
• In response to Mr. Smith's argument that the City was required to use the
Drainage Plan methodology and that that methodology would satisfy the
rough proportionality requirement,the City showed that the impact of the
project would be at least$1,603.18
• Tigard showed that by using USA's drainage system development charge
methodology the impact would be calculated at $4,068(for the 100 year
flood).
• The value of the exaction is far less than the public would pay to provide
onsite detention or retention,or in-stream detention.
Through all of these methods one result stood clear: the probable impacts of the development wo,e
equal to at least$1,600.
b. Tigard Established a Reasonable Correspondence Between the
Impacts of the Development and the Purposes It Offered in
Support of Remand Condition One
IBM (P) Tigard, -d the Deifciency the Court Identified
In its Dolan II decision,the Contr�found that Tigard had not shown a reasonable relationship
between the drainage impacts of Applicant's project and its requirement that sire dedicate the
1s Applicant's reaction to the city's calc dations under the Master Drainage Flan showed a lack of sincerity in her
repeated claims of willingness to bear the cost of development. At the first hearing,Mr.Smith,one of Applicant's
attorneys,commended the plan as the correct approach to calculating impacts. Indeed,he said that the City was required
to use that method. However,once Applicant discovered that the method did not give rise to a favorable result,
Applicant's attorneys abandoned the plan and began criticizing Tigard on other grounds.
EXHIBIT A(REVISED)TO FINAL ORDER
Page 38
floodplain area to the public. What seemed to especially bother the Court was its percep°:',ion that
Original Condition One would allow the public to use the floodpiain for recreational purposes.
Because Tigard had not shown that the project would 'impact its legitimate interest in providing
recreational opnnrtLnities,the Court held that the city had not established the requisite relationship
between impacts and purposes. Dolan 11, 114 S.Ct.at 2320-21.
Responding to the Court's decision,Remand Condition One expressly provides that Tigard
is acquiring the floodplain easement only to further its legitimate interests in managing flood and
drainage problems. Remand—Condition One expressly disavows any intent that the floodplain be used
for recreational purposes. Furthermore,the condition allows Applicant to fence offthe floodplain
to make clear to the general public that it is not open for their use. Thus,Council foune..that Tigard
had corrected the problem the Court perceived in Original Condition One and,therefore,satisfied this
element of the rough proportionality test.
(2) Tigard Showed a Reasonable Correspondence Between
the Impacts of Applicant's Development and the
Requirement _of a Limited Public Easement for
Enhancement and Maintenance of the Floodplain and
Creek Channel
Notwithstanding Tigaru's correction of the problem identified by the Court, Applicant's
attorneys continued to argue that it had not shown a sufficient correspondence between the purpose
of the easement and the need for an easement allowing Tigard's agents access to the floodplain.
Council fund,however,t hal Tigard had justified the easement.
Mr.McGuire,an expert drainage engineer(CR 00085),testified that public ownership of an
easement in the floodplain was essential. Mr.McGuire noted that Tigard's Master Drainage Plan,
part of the Comprehensive PIan,provides that"`Natural drainageways require regular maintenance
to be efficient hydraulic conduits for flood flows. Required maintenaree itemis i.-,clude debris
removal,mulching,seeding,erosion control,vegetation clearing and sediment clearing."' CR 00778.
To undertake the required maintenance,Mr.McGuire testified,a public easement is essential.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-39
Efficient and cost-effective maintenance of drainageways requires that the City have
the physical and legal ability to access the drainageway. High labor costa typically
dictate the use of large mechanical equipment. Adequate access for this equipment
reduces the time required for maintenance work and its cost. Emergency maintenance
or repair to the drainageway is also accomplished quicker with proper access.
Fanno Creek serves to remove storm water from upstream areas much the same as
a sanitary sewer does with waste water. While Fanno Creek may offer aesthetic
benefits,the two function in similar capacities. Sanitary sewers also require periodic
mainte^---irg to fiynetion as intended. NVhcre sewers are located out of public tights-
of-way,easements are provided to allow municipal access for maintenance.
Maintenance of public sewers is a traditional ag_•:^_zy function. Providing maintenance
on a larger scale allows purchase of specialized equipment and trained labor. Because
the d.ainageway functions as a complete channel,the proper maintenance of the entire
channel by a single agency is important. It is not practical to rely on individual
prgperty owners to adequately maintain a large system like the Fanno Creek
drainage. Uncoordinated maintenance by individual owners would not be effective.
CR 00778(emphasis added).
Tigard's justification for acquiring a public easement to maintain the floodplain was also
confirmed by RTa Tonal Floodplain Managers Association. In its brief to the Court,the Association
explained that,
the most efficient flood management system requires that channels remain unblocked
and be capable of receiving the full water flowing into a portion of a channel from
upstream. The alternative would he l argc flows feeding water into more constricted
areas so that the system could actually increase flood problems. Flood management
systems can only work if the flow discharge and conveyance systems on each
property are intelligently integrated.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-40
Piot only is comprehensive flood management mere efficient,it is also;pore
accurate and more fair. A comprehensive analysis permits a greater dedication of
technical resources and allows a cumulative analysis of how potential development
can impact overall flooding levels. A comprehensive plan reduces the likelihood that
individual decisions will be capricious and impose burdens unfairly.
CR 0 13 00-01 (emphasis added).
(3) Remand Condition One Does Not Call on Applicant to
Provide"Excess Capacity"
Applicant argued to Council that Remand Condition One was improper because it would
require her to provide more capacity than necessary to handle the increase in runoff from her site.For
example,her lawyer said the following in one of his submissions to Council:
The pro]2;ted improvements in the CH2M Hill plan adopted by the City and partially
implemented to date, ultimately result in greater capacity of the floodwater flows
through the Fanno Creek basin. This,in tum,creates greater capacity or a lowering
of the 100 year floodplain at the Dolan site. The City ref.:ses and utterly fails to
callculate a credit to the Dolan sto,n water generation allocated for a shared basis in
this excess capacity.
Council found Applicant's argument to be meaningless and factually incorrect.
The argument is meaningless for the following reasons,supplied to Council by the National
Floodplain Manager's Association,which it adopted as findings:
WM [Applicant]seems to suggest that there must be a quantitative equality between the
amount of runoff water generated by a development and the amount of water that
would be controlled by the channel improvement. But that is a physically
meaningless comparison.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-41
The purpose of a channel improvement is not to store water but to convey it
rapidly downstream and out of the problem area. It will convey floodwaters from a
wide variety of sources,and the amount of conveyance will therefore be far greater
'aan the amount of rinoff from anv one site. But that does not represent a huge
cc^*ribution by each individual channel area.improved because the utility of a channel
improvement at any one point depends on the utility ofthe adjacent channel. There
is little v�iue,and generally a problem,in conveying water more rapidly through one
portion of a strewn if the downstream portion lacks the same conveyance capacity
because that would simply mean more flooding at the point of bottleneck. Any one
channei area only makes a small but necessary contribution to the utility of the channel
as a whole. There is no obvious way to compare the improved utility of any portion
of a channel witi:the amount of increased runoff from one particular site.
CR 01299(emphasis added). This reasoning was consistent with the opinion of Mr.Berry,the city's
utility engineer,who testified as follows: "I do not agree with the applicant's characterization of this
effect[building out the improvements called for in the Master Drainage Plan]as`creating surplus
capacity.' The intent of Comprehensive Plan Policies 7.1.2(a)and 7.2.1(c)is to provide a complete
drainage system by requiring each applicant to provide a portion of the system with adequate capacity
to convey the upstream flood waters." CR 00056;see also Master Drainage Plan at 9-1 ("Only the
full implementation of the recommended plan will provide relief from the 100-year flood throughout
the Tigard area.").
The Flood Plain Managers Association and Mr.Berry are experts in the field. Council found
them to be much more qualified than Applicant's lawyer to opine on this issue. Therefore,Council
found that the drainage improvements called for in the Master Drainage Plan did not cause Applicant
to make a disproportionate contribution to Tigard's drainage system.
Council also found Applicant's argument concerning excess capacity to have no basis in fact.
Her lawyer, Mr. Shonkwiler, claimed that improvements less than all of those called for in the
Drainage Plan had resulted in adequate capacity by partially achieving the goals of the Master
Drainage Plan. He then asserted that the impact of Applicant's development would be so slight as
to not justify any additional improvements. Council found him to be mistaken.
E3GIMIT A(REVISED)TO FINAL ORDER
Page-42
Mr. Shonkwiler reasoned that the improvements have been sufficient to provide a capacity
sufficient to maintain the floodplain at 150 feet of elevation at Applicant's site. This argument was
based on the assumption that 150 feet of elevation was an acceptable level of service for the drainage
system. That assumption,however,was badly misplaced. The Master Drainage Plan identified flood
.problems under the conditions existing at the time of the study. Indeed,Appiicant's own drainage
expert,Mr.Harris testified that"Master Drainage Plan,part 6.2.1 deals with extensive improvements
proposed for the channel close to the Main Street Bridge. These improvements were proposed in
3uly 1981,atnost seven years before the Dolan site improvement plan was prepared,demonstrating
that the problems of flooding on Fanno Creek are quite independent of any activities proposed by Mr.
Dolan" CR 01532. When Tigard adopted the Master Drainage Plan the creek's floodplain was at
150 feet. In essence,the plan identified a deficiency in the existing drainage system. It proposed
steps to correct that deficiency and steps to prevent new development from negating the City's efforts
to reach a better standard of service:
This observation means that the improvements which have occurred to date have not created
"excess capacity." Instead,they have been directed toward curing existing problems,prt; "ding an
increased margin of safety and to mitigating the effects of new development. Council thus found that
Applicant must be required to mitigate for the additional drainage impact her project will have on the
system. Cf. CR 00155 (Amicus Brief of Flood Plain Managers Association) ("All of those who
support risky behavior,either directly or indirectly,must share in floodplain management and in the
costs of reducing that risk. The federal government can lead by example; but state and local
governments must manage their own floodplains. Individual citizens must adjust their actions to the
risk they face and bear a greater share of the economic costs.").
In a twist on her excess capacity argurnent, Applicant contended that Tigard's recent
replacement of the Main Street Bridge provided so much additional capacity in the creek channel that
she should not have to mitigate for her own impacts. Again,Council found Applicant's argument to
be meaningless and factually incorrect.
Straying far outside his field of expertise, Applicant's lawyer argued, without, so far as
Council could tell,any expert assistance,that construction of the bridge solved any drainage problem
her project might create. Mr.Berry,an expert engineer,responded to Mr. Shonkwiler by explaining
that the Master Drainage Plan could net be used to estimate the effect of any given improvement.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-43
Instead,its predictions were reliable only if all of its recommended improvements were completed.
CR 00055, 00056, 00057, 00464; see also Master Drainage Plan at 9-1 ("Only the full
u«plementation ofthe recommended plan will provide relief from the 100-year flood throughout the
Tigard area."). Furthermore,Mr.Berry testified that merely changing the bridge structure,without
making channel improvements on the Property would not mitigate for additional runoff. CR 00055,
00056,00057,00464. Although Mr.Shonkwiler claimed that the cure of a drainage problem was
the sum ofits parts,that claim only illustrated his ignorance of hydraulics. As Mr.Berry explained,
the creek functions much like a coronary artery. The goal is to have water run swiftly throughout its
entire reach. Fixing a blockage at the Main Street bridge, without making the major channel
improvements called for on the Pr '`;Ty would only shift the flood back upstream. CR 00055.
� r
Mr.Berry established that many of the channel improvements were not done along with the
bridge. According to Mr. Berry, moreover, the bridge was not the primary cause of flooding.
instead,channel constrictions--some of which must have been due to the fill placed on the Dolan
property"—were the primary culprits. As explained by Mr.Berry,these channel restrictions are the
reason why simply replacing the bridge did not cure flooding problems in the city. Furthermore,as
Mr. Berry testified, to achieve a reduction in the floodplain both structural--e.g., channel
improvements--and nonstructural improvements--e.g., regular and coordinated maintenance--are
essential.
Mr. Shonkviile claimed that because most of the Gtorm water runoff in Fanno Creek is
upstream of the Main Street bridge,replacement of that bridge is alone enough to create adequate
capacity for the Dolan project were completed. As Mr.Benny testified,the report cannot be used to
extrapolate other results. The Master Drainage Plan does not say that replacing the bridge would
alone solve the City's flooding problems. The Plan does not say that making only a few of the other
suggested improvements would solve the problem. Instead,the Plan predicted a 1.5 foot reduction
lit the floodplain nt all of the unyrovements were cm pie ed. its_.....on—i G c......., be exi apo'ated f-
some other,partial solution.
r' See CR 00093 i sport of Harris-McMonagle Associates,Inc.concluding that previous owner of the Property
put fill in the floodplain).
EXHIBIT A(REVISED)TO FINAL ORDER
Page-44
1111M i! 11 11:
Ems
'Applicant,through Mr. Shonkwiler,also argued that the city had erred in not considering
water quality facilities in computing the runoff effects of her development. however,Council found
that Tigard had taken the correct approach.
In opposition to the testimony of Applicant's lawyer,the Council received expert testimony
as to the effectiveness of water quality facilities from.Mr.Berry,a qualified professional engineer.
Mr.Berry found that water quality facilities co not provide any retention benefit in a 25 year or larger
storm because they are not designed to operate in those circumstances. CR 00058, 00464.
Furthermore,Mr.Berry testified that C112M Hill did consider such facilities when it prepared the
Master Drainage Plan,but did not find them to provide any benefits relating to severe flooding. CR
00058.
Although Mr.Shor.kwiiler criticized Mr.Berry's testimony,Mr. Shonkwiler was not an expert
in the field and he presented no evidence to support his layman's arguments. For example, Mr.
Shonkwiler claimed that upstream water quality facilities had resulted in a 10 percent reduction in
runoff. However,Council could nc I identify any evidence supporting that claim,and Mr.Be-ry's
August 1 memorandum noted that the Master Drainage Plan did not indicate any such mitigation in
runoff attributable to such facilities.
Assuming for the sake of argument that Mr. Shonkwiler was correct that upstream water
quality facilities offer some small benefit in detaining storm runoff,the argument was still not helpful
to:Applicant. The same development that is required to provide water quality facilities can also be
expected to add impervious areas, decreasing the time required for runoff to concentrate.
Furthermore,storm sewers may be built both on site and off site,that will further speed discharge of
runoff to Fanno Creek. Even if the water quality facilities provide some detention value,the reduced
time of concentration on site and through the developed conveyance system will deliver water to
Faar.G Cr-'- lUille
ccn ira y�catcr 'vvau...c <cr.d di lugitec peak iaies following Cs2JelGp;a^.e:... I-INnre,
developments use up far more drainage capacity than the limited amount they might supply in water
quality facilities.
'.eater quality facilities,even if they work to retain some storm water,also do not eliminate
the cost imposed on the city by Applicant's development. Council found the following testimony of
EXHIBIT A(REVISED)TO FINAL ORDER
Page-45
AlOil
McGuire to be persuasi-,•e on this point and adopted it as findings in support of Remand
Condition One:
If it is assumed that all r.-w development located upstream from the Dolan site
were to detain,w.vu to existing levels,then it could be concluded that the peak flow
rates would not increase at the Dolan site. Runoff from the Dolan site(not detained)
Ili]he Udder? Fannn Creek and the P
_ resulting downstream peaks not increased to
those predicted by the Drainage Master Pian.
While the downstream peak flows would be less in this scenario,the Dolan
site would still produce an increase in peak flows and impact to flood levels. The cost
to mitigate the impacts would be less with the upstream detention;however, the
assessment area paying Tor mitigations[sic]would be smaller(if upstream sites were
to provide detention,they should not be assessed for impacts caused by downstream
sites). In this case, impacts to the Dolan site would be similar to those occurring
without the assumption of upstream detention.
CR 00780.
Based on the preceding evidence and analysis, Council found that Tigard had shown a
reasonable correspondence between the interests it advanced in support of Remand Condition One
and the probable impacts ofApplicani'-.development.
C. Tigard Showed that the Floodplain Easement Called for in
Remand Conditipa One 3Yould or bS euld Be Likely to ldiitigate
for the Impacts of Applicant's Development
Council found that Tigard showed that Remand Condition One would facilitate mitigation
for the significant impacts that the development would cause. The Master Drainage Plan found that
making major channel improvements at the Property would, when combined with other system
improvements, help mitigate for increased runoff. Furthermore, Applicant did not argue that
dedication of the floodplain area would not help mitigate for drainage problems. Instead,she agreed
that the projects in the plan would create additional capacity,but argued that the plan would result
EXI-r.IBIT A(REVISED)TO FINAL ORDER
Page-46
in excess capacity. Although her argument about excess capacity was not correct,she apparently
agreed that the channei improvements calf for in the plan would or likely would result in improved
drainage.
d. TjL-ard Showed 'U t the Flondnlaen Easement in Remand
Condition One Was t_ouahly Proportimal in Extent to the
Irnpacts of Applicant's Development
Ass explained above,Council found that Applicant's project would impose costs on Tigard
ofat least$1,600. It found those impacts to be proportional in extent to the value ofthe easement
called for in Remand Condition One.
L=aunch received conflicting testimony concerning the value ofthe floodplain easement. Staff
presented an appraisal done by Palmer,Groth&Pietica,Inc.,a firm of professional appraisers,which
concluded that the floodplain easement likely had no value,or at most was worth$1,300. CR 00912.
Applicant, however, submitted an affidavit from her son claiming that the floodplain and bicycle
easements together had a value of$84,000. Council was required to choose between these two
evaluations beforz it could decide whether the value ofthe easement was proportional to the probable
AM TW
impacts of the project.
Council found that it should adopt the$1,300 value provided by the independent appraisal
firm. That appraisal was conducted according to professional standards and according to standard
procedures. The appraisers,for example,based their valuation on comparable properties,which were
shown in the record. Applicant's son,on the other hand,did not detail his qualifications to appraise
the property--as opposed to making an educated guess about its value--and he did not provide
comparable values. Furthermore,when he made his guess,Applicant's son was involved in a law suit
with the city for inverse condemnation. For purposes ofthat suit,it was in his personal interest to
maximize the value of the floodplain property. Accordingly,he was undoubtedly biased toward
overestimating the value of the floodplain property, in which he has an ownersbip interest. This
observation was borne out by the great disparity between his valuation and that of the independent
appraisers. Put simply,Council found Applicant's son to be without credibility in this regard,while
it found the valuation ofthe appraisers to have been conducted in an objective, independent manner.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-47
Because the
floodplain easement had Proportionality
a value of only a 1,300,20 Easement Value vs.Impact
while Applicant's project -
would have drainage $16M
impacts of at least
$1,600, Council found
Remand Condition One �!f
to be proportional to the
exaction. figure 4
visually illustrates this
conclusion. 0 impact of Development
Value of Easement
Figure 4: Visual Illustration of Proportionality
3. The Required Bi&elPedestrFan Path Easement Satisfies the Rough
Proportionality Test
a. Tigard Through an Individualized Evaluation Showed That
Applicant's Project Would Have Significant Impacts
Applicant acknowledged that her project would increase the number of car trips on the city's
street system. CR 00146("The expansion ofthe Tigard A-Boy store will add 206 trips per day to
the surrounding street system."). Applicant disagreed only about the number of new trips,arguing
that Staffs projection was an overstatement. Council thus had to choose between conflicting
evidence,but began its analysis with a recognition that the project would have a significant traffic
BEN ii-npact wiuchever evidence it accepted.
20 Indeed,Council found this amount to overstate the value of the easement because the decision allowed
Applicant.to comt the easement area toward the mandatory fifteen percent landscaping requirement.By allowing
Applicant to count the easement property toward the landscaping requirement,the city allowed Applicant to develop
more of her more valuable and usable upland property. Without the easement,Applicant would have been required to
devote fifteen percent of that more valuable property to landscaping. -
EXHIBIT A(REVISED)TO FINAL ORDER
Pago-48
Council began by noting that in the September`91 Approval it found that,for purposes of
estimating the WTIF,the project would generate an additional 419.29 trips per day_ CR 01026.
Because the WTIF did not contain a trip generation number for general retail, the use for which
Applicant applied,Council had relied on the traffic generating characteristics of hardware and paint
stores. CR 01026.
Council included this trip generation figure and reasoning in the September`91 Approval.
Applicant did,not appeal Council's finding. Moreover-,the Supreme Court of the United States relied
on the finding to conclude that traffic impacts from the development were likely. Dolan II, 114 S.
Ct. at 2321 r,.9. Because Applicant could have presented c,idcnce of actual trip generation at the
earlier hearing and did not do so,and because she did not appeal Council's finding,the issue of trip
generation from the project was decided in the earlier proceedings. Council's finding that the project
would generate an additional 419.29 trips is an old, decided issue and was not subject to further
review.See,supra,at 11.
Notwithstanding this finding,Council felt it should make new findings on evidence concerning
trip counts in case LUBA or the courts held that evidence to have been properly before it on remand.
Hence,the following discussion of trip generation assumes for the sake of argument only that the
question of trip counts was actually before Council for decision.
In approaching this issue,Council found that the project would generate at least as many trips
as Applicant said it would. Applicant submitted evidence from Mr.Woelk,a traffic engineer,which
purported to state the number of trips a plumbing and electrical store could be expected to generate.
Mr. Woelk concluded from his study that the new building proposed for the Property, if it was
occupied by an A Boy store,would generate an additional 206 automobile trips per day. CR 00146.
Therefore,Council four, that-
d approval t of the application would result in an increase of at least 206
trips per day on the city's street system. Council next considered evidence showing that the actual
trip generation from the project was likely to be much higher than Mr.Woelk predicted.
Tigard retained David Larson,an expert traffic engineer,CR 00085,to determine the likely
impacts of Applicant's project. Mr.Larson found that the proposed development was properly
characterized as a Hardware/Paint Store for purposes of predicting trip generation. Based on that
E3MMIT A(REVISED)TO FINAL ORDER
Page-49
conclusion,Mr.Larson used the I7EMmmal,a respected industry source,to predict that Applicant's
project would result in an additional 404.17 trips per day. CR 0093 1.
Mr.Woelk admitted that Mr.Larson's projection was in accord with accepted engineering
prances--,idvias the method he would normally select to make predictions regarding trip generation.
6-27-95-fr.at 22("'the methodology that your traffic engineer used would be the same methodology
that I would use in an evv'z:a.ion such as this. Everything that Mr.Larson has done is within the
realm of practice.");id.at 24("The City's methodology is consistent with what is done in the traffic
engineering field"). Mr.Woelk,however,disagreed with Mr.Larson's prediction here. He argued
that thelTEMiumal used only four studies in projectirs trips that a hardware/paint store was likely
to generate. 6-27-95 Tr.at 24. He said that under those circumstances,and pursuant to the WTIF,
Council should rely on the predictions in his study,which were generated from a sample of A-Boy
stores. See, e.g, 6-27-95 Tr. at 20. Council found for several reasons that it should reject Mr.
Woelk's argument and rely on the trip generation figure provided by Mr.Larson.
Applicant applied for site development review approval for general retail uses. Although
Applicant said that A-Boy would occupy the larger store,A-Boy was not a party to this application.
A Boy was merely the current lessee of the existing store. Furthermore,as landlords Applicant and
her son could rent the new store to another tenant. Mr.Woelk's study is only valid,if at all,as to A-
Boy stores. Although Mr.Woelk claimed that his study showed trips expected from a plumbing and
electrical store,he obtained his data only from A-Boy stores.Therefore,Council believed it more
correct to say that Mr.Woelk's study is relevant only to estimating trip generation from A-Boy
stores. Plumbing and electrical stores operated by other companies conceivably could generate more
ITE ALLOWED USES DAILYTRIP
RATE/1000
SF
816 Hardware and Paint 5 i 29
A-Boy(ATEP) 26.45
814 Specialty Retail 40.67
9i2 Walk-in Bank 140.61
;Figure 5: Potential uses
EXHIBIT A(REVISED)TO FINAL ORDER
Page-50
or less trips than a typical-k-Boy. Mr.Larson testified that given the range of uses available to
Applicant upon receiving approval of a general retail use,Council should consider the trip generation
rates of a variety of possible uses in predicting the impacts of the projects.CR 00083.25 Figure 5 sets
curt some ofthose uses and their relative trip generating characteristics. Mr.Larson concluded,and
Council accented his opinion, that given the range of possible uses for the development and the
li:d:t ons;--Mr.Woelk's study," Councu s,c: d erect the development to generate 404 additional
trips.
Council also found the designation"Hardware/Paint Store"appropriate,even for an A-Boy
store. Evidence in the record showed that other A Boy stores sold hardware and held themselves out
to the public as hardware/paint stores. See CR 00048,00049. Applicant submitted much evidence
saying that A-Boy needed to expand the Tigard store to meet competition,presumably by expanding
its product line. E.g. CR 0018_ Although her son testified that the Tigard A-Boy would not sell
hardware and paint, Council did not find him io be credible. His testimony was self-serving and
appeared to be contradicted by pleadings filed in the Circuit Court action he and Applicant have
brought against the city. Id Put'thermore,his testimony was not credible because other stores in the
A-Boy chain, which Applicant apparently represented to Mr. Woelk to be only plumbing and
electrical ores,actually sell.hardware and paint. CR 0078!;CR 00773;CR v^0771;CR 00757;see
also, e.g., CR 00765 (advertisement for A-Boy beginning with banner caption"LARGE PAINT
21 Mr.Larson testified on this point as follows:
The Dolan traffic study for an A-Boy plumbing supply store addresses
only one of the uses applied for and approved. The correct way to assess impacts
to the transportation system for the property under this zone is to examine the uses
that can be made without further hearings. Our testimony of July I 8,I 995,with an
accompany g table ofrange ofpossible uses,clea;IN,demonstrates that the outright
MW permitted use of this property and resulting impacts are significantly higher than the
A-Boy proposal. This is the correct methodology,because it does not ignore the
impacts that can occur under the permitted uses as the ATEP report does.
CR 00083.
22 In addition to the other flaws in his study,Mr.Woelk apparently misunderstood the test applicable here. He
"agreed❑there are many multitudes of uses that could be doue in a general retail area. But we're talking about a
specific use." 7-18-95 Tr.at 24. However,Council's task was not to evaluate a single use. instead,it had to predict the
likely impacts of the project based on all of the uses open to Applicant.
EXHIBIT A CKEVISED)TO FINAL ORDER
Page-51
DEPARTMENT").' Council can only assume that the Tigard A-Boy store will eventually follow
suit,especially considering that A-Boy considers its Barbur Boulevard store,which sells a wide range
of home improvement items,to be its"flagship"store. CR 00773.
In addition,evidence in the record showed that Applicant had sought the flexibility inherent
in approval of a general retail use.. In paragraph 2, Proposal Swixinary, of the application, the
following was typed in as a summary of the project: "The construction of a 17,600 square foot
building having a general retail sales facility." John and Florence Dolan signed the application,not
A-Boy,a separate legal entity. Bef re their signatures,the following appeared:
THE APPLICANT(S)SHALL CERTIFY THAT:
C. All ofthe above statements[including the project description set out above]
and the statements in the plot pian, attachments, and exhibits transmitted
herewith,are true;and the applicants so acknowledge that any permit issued,
based on this application, may be revoked if it is found that any such
statements are false.
The applicant has read the entire contents of the application,including the policies and
criteria,and understands the requirements for approving or denying the application.
CR 00754. Thus,if anything was inaccurate about the request,Applicant and her husband were on
notice to correct the project description. However,they represented to the city that it was accurate
23 Council found much of Mr.Woelk's testimony that Council should consider A-Boy to be only a pl•,rrnbing and
electrical business to be questionable because he did not seem to know the product line sold in such stores. On June 26,
1995,for example,he testified that it was his opinion that the ITE classification"hardwarelpaint store"did"not
represent the A-Boy Plumbing Stores since A-Bo-y plumbing stores[sic]do not sell paint r-or what could be considered
as`Hardware."' CR 01360. However,later he had to admit that several A-Boy stores did sell such items,saying,"[e]s I
testified in my original presentation on June 27,1995,I randomly picked four of the A-Boy Stores to survey. At that
time I did not know that these stores were also part of the ACE Hardware system. Only this week did I become aware
that they were in part hardware stores." CR 00145. Because the nature of the stores was so basic to Mr.Woelk's
testimony,his lack of care in that regard discredited much of the rest of his testimony by implying that his other
conclusions were reached with a similar lack of care.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-52
=nd true. The objective evidence from the time when the application was made shows that Applicant
intended to receive a broad approval that could support many different retail uses.
Mr. Sh-nkwiler argued that Council should not consider a range of uses because the city
would have an opportunity to impose new conditions if A-Boy did not or ceased to occupy the
building. Council did not accept this claim because the CDC would not require a review of conditions
under those circumstances.See,infra, at 76.
Mr.Shonkwiler invited Council to condition approval on a requirement that the building be
used only by A-Doy and oruy Or the sale of plumbing and electrical supplies. Council found his
suggestions to be unworkable. Almost constant inspection would be required to know whether the
A-Boy was selling something other than plumbing and electrical supplies. Tigard lacks the resources
to undertake such an aggressive enforcement responsibility. Furthermore, enforcement of the
condition would be rife v rith disputes. The distinction between electrical and plumbing supplies and
those carried by a hardware store is far from clear. For example,screws can be both"hardware"and
electrical or plumbing components. See, e.g., CR 00756("In a visit to the[Tigard A-Boy]store on
Monday,June 26, 1995,I observed items for sale at the store which ranged in size from assorted
nuts,bolts and screws,light bulbs,faucet handles,phone jacks,tubes of bath caulk and light switches
to larger items such as toilets,sinks and bathtubs. Additionally,I observed a person purchase a roll
of duct tape."). In addition,A Boy,a legal entity apart from Applicant will be running the store. A-
Boy has stated that it plans to expand the line of goods sold in the store to"meet competition"(CR
00128),and it identified the Barbur Boulevard store as its flagship(CR 00773). Therefore,it likely
would try to expand the types of goods it was selling in the store,and the inspection condition would
require continual monitoring of an entity that was not a party to this application. Council,therefore,
declined Mr. Shon_k4viler's invitation.
EXEIIBIT A(REVISED)TO FINAL ORDER
Page-53
76n
atever the result of
proposal, be it 404 trips, Added Trips
or something in between, Range of Predicted Trip Increases
established that the
nt would have a significant 500
impact. Although Council found the 4000
404 trips to be more credible, that F 300
finding was not essential to its a 200
decision. Any number in the range <100
between 206 and 404 was sufficient to
0
satisfy the first requirement of the Minimum Expected Likely Increase
rough proportionality test.
Increase in Auto Trips
Roth Staff and Applicant Figure 6: Range of'Traffic Impacts
submitted evidence and made
arguments over how to quantify the cost of additional trips from the development,but Council did
not believe it essential to quantify the cost of the additional trips. Because Dolan II required proof
only of the impacts from the development,which the Court said did not need to be mathematically
certain, Council's finding that the development would cause at least 206 additional trips,with the
probability that it would cause 404,was sufficient to satisfy the test. Council concluded that it should
nevertheless make findings going beyond the strict requirements of Dolan li to ensure that in
imposing Remand Condition One, Tigard had fully honored the decision of the United States
Supreme Court.
Mr.Larson provided Council with a report setting out a methodology for deciding the cost
of the additional trips based on his review of the infrastructure costs used to sei the ITuO. Cour-6-1
found based on its review of the WTIF and Mr.Larson's testimony,that Washington County had set
the WTIF based on a proportional allocation of all infrastructure needed to support traffic growth in
Washington County,including Tigard,through the year 2005. CR 00931 This allowed W.Larson
to determine the total cost of building infrastructure in Tigard and Washington County as a whole.
Mr.Larson then determined that the WT_TF would cover only 32 percent of Tigard's projected costs
for building transportation infrastructure to accommodate growth. Id. He testified that it was thus
EXHMIT A(REVISED)TO FINAL.ORDER
Page-54
appropriate for Council to find that approval of the application would result in unmitigated impacts
of$33,496.22. CR 00931 32.
Applicant's attorney,Mr. Shonlaviler,argued that the approach taken by Mr.Larson was
invalid. He claimed that the projects supporting development of the WTIF were somehow
controversial and that it was therefore inappropriate to use them as a basis for estimating the cost of
development. He funther argL_d that the WTIF somehow forbade Council from using the facts
supporting the WTIF methodology as a basis for judging the impacts of Applicant's development.
Council rejected Mr. Shonkwiler's arguments for several reasons. As an initial matter,
nowhere did the WTIF forbid using its supporting data as a basis for judging the costs of
infrastructure. Based on its review of the WTIF methodology and Mr.Larson's testimony,Council
found that the data supporting the WTIF were intended to be a proportional allocation of
infrastructure costs which provided the best and most fair basis on which to judge cost impacts.
Furthermore, Mr. Shonkwiler was not an expert on traffic impacts. He was just a lawyer. Mr.
Lars.,, on the other hand,whose testimony Council chose to accept,was an experienced traffic
engine- h4r.L4rson testified that the w i Ir methodology was the best possible basis on which to
base Council's cost projections.
Perhaps more telling in this regard was the testimony of Mr.`#Voelk. i`-ir.Woelk,like Mr.
Larson,is an experienced traffic engineer. As a representative of Applicant,Council would have
expected him to criticize Mr.Larson's work wherever possible. Indeed, Council noted that Mr.
Woelk did disagree with M, Larson on several points. In his testimony concerning cost projections,
however,Mr.Woelk agreed with and supported Mr.Larson's selection of methodology. 6-27-95
Tr. at 22,24;see also CR 01362("Tigard used the correct methodology in their analysis"). Mr.
Woelk's only disagreement with Mr.Larson concerned whether the project would generate fewer
trips than Nir.Larson predicted. 6-:Z7-95 Tr.at 24.
Council found that Mr.Larson used the correct methodology in predicting the cost impacts
of Applicant's development. Using Mr.Larson's trip generation figures,the methodology yielded
a cost impact of$33,496.22 in otherwise unmitigated costs. CR 00931-32. Although Council found
Mr.Larson's trip generation figures to be more appropriate than those of Mr.Woell- it noted that
Mr. Woelk estimated that the project could be expected to have an unmitigated impact of around
E)=IT A(REVISED)TO FINAL ORDER
Page-55
$17,000. 6-27-95 Tr.at 23("The actual,based upon the actual trip generation rates,you can see that
all of that comes down to an actual unmitigated impact of$17,000.");accord CR 01361 Either way,
Council found that the impact would be significant.
b. Tigard Established a Reasonable Correspondence Between the
Imlacts of the Development and the Purposes It Offered in
Support of Remand Condition One
In Dolan II,the Court held that Tigard had not established a reasonable relationship between
' the need for public access to the floodplain and the drainage impacts of Applicant's proposed
development. Dolan 17; 111 S_Ct.at 232i. It did not find the same deficiency as to the easement
requiring the bicycle/pedestrian way. Instead,it found that the city had not shown that the pathway
would or would be likely to mitigate for the traffic impacts of the expansion. The Court thus held
that as to the pathway Tigard had established the reasonable correspondence required by this element
of the rough proportionality test. Council therefore found that this element of the test was not an
issue on remand. See, supra, at l 1. Council nevertheless chose to make factual findings on the
question.
The Court held that the city had not justified public access to the floodplain because it had
shown no justification for a public easement to the floodplain and because of a concern that the
easement was intended to support wholly recreational uses. Remand Condition One corrected for
those problems with regard to the floodplain,and it did not present similar concerns with regard to
the pathway.
Tigard's land use regulations establish several purposes for the pathway,including support
of bicycling and walking for commercial and shopping purposes. See,supra at 2 i_ Although Mr.
Shonkwiler argued ihat file pathway was pureiy for recreational purposes,those arguments were
refuted above. Furthermore,as detailed below,Cou_cil found that the pathway would mitigate for
car trips occurring for commercial and shopping purposes. Therefore,Council found the easement
to have a reasonable correspondence between the increase in traffic caused by Applicant's store and
the purpose of mitigating for those trips.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-56
Applicant made one additional argument that might have been addressed to this element of
the rough proportionality test. She argued that the city had not shown that the pathway would
mitigate for trips that would otherwise have come by cns to the A-Boy store. Council found that
Tigard did not bear such a burden. In Dolan Il,the Court recognized that traffic is fungible. For
example,if Applicant's project generated a trip from her store but the pathway removed a commercial
trip otherwise destined for downtown,no net increase in trips would have occurred. Thus,so long
as the pathway removes trips from the road system,it would create capacity for new trips generated
by Applicant's project and prevent increased traffic congestion. Council held this to be a sufficient
correspondence to satisfy the Court's new test. Cf. CR 01347("Even when an argument can be
made that a particular commercial tenant has no use for bicycle traffic this relationship is reasonable
since tenants come and go but commercial activity per se is dependent on all forms of traffic.").
C. Tigard Showed That the Bicycle/Pedestrian Pathway Easement
Called for in Remand Conditior One Would or Would Be Like
to Iblitigate for the Impacts of Applicant's Development
In Dolan 11, the Court identified only one deficiency in Tigaeu's findings concerning the
pathway. There, Tigard had found that the pathway"could" offset some of the traffic demand
created by the development. The Court held that finding to be too equivocal,adopting the suggestion
of Oregon Justice Peterson that Tigard be required to show that the easement"would"or"would be
likely to"mitigate for the project's traffic impacts."No precise mathematical calculation is required,"
however. Dolan 11, 114 S.Ct.at 2321.
Responding to the Court's instructions, Tigard arranged for Mr. Larson to evaluate the
importance of this segment of pathway. Mr. Larson used a recent study, 4A The Pedestrian
Environment, 1993 f"LUTRAQ") by parson Brinke_.rhof QuadP&Dna(!lac,Inc,,in cnnneratinn with
Cambridge Systematics,Inc. and Calthorpc Associates, all recognized experts in this field,which
carefully analyzed the effect of among other things,pedestrian and bicycle ways on automobile trips
in the Portland Metropolitan area. CR 01072. As Mr.Larson explained,LUTRAQ established a set
of factors which together resulted in a value referred to in LUTRAQ as the Pedestrian Environment
Factor("PEF ). CR 00932. Based on application of the LUTRAQ factors to Tigard,Mr.Larson
found that the area in the vicinity of the Property currently has a PEF of 4-6. 16L
EXHIBIT A(REVISED)TO FINAL ORDER
Page-57
LUTP—AQ used sophisticated statistical analysis to show that PEF strongly correlates to trips.
For example,LU'I'RAQ found that in areas with PEF 4-6 about 94 percent cf the trips were by car.
In areas with PEI: 9-10,LUTRAQ found that about 86.7 percent of trips were by car.
Based on its current PEF of 4-6,Mr.Larson testified that LUTR AQ would predict that only
four to six percent ofthe trips in the vicinity ofthe Property currently are made by bicycle or walking.
Mr. Woelk's report verified the accuracy of this prediction, and increased the credibility of the
methodology,by showing that about five percent ofthe trips to the Tigard A-Boy occurred on foot.
CR 01361,
Mr.Larson testified that by increasing the PEF in downtown Tigard,the city could expect to
replace car trips with trips by bicycle or by foot. Testimony from sev;ral Tigard residents confirmed
the likelihood of this occurring. CR 00468;CR 00467;CR 00465_ Mr. Larson said that he had
undertaken a careful analysis of existing and planned bicycle and pedestrian ways in the city. He
found that the city could expect to achieve a PEF of 9-10,and an additional nine percent reduction
in car trips,by building the planned pathway system. CR 00932. tte further testified that completion
of the pathway link on the Property was"essential"to obtaining that reduction. CR 00781.
Michael A Replogle submitted evidence confirming Mr.Larson's testimony. Mr.Replogle
was highly qualified to address the issue before Council,being cc-director of the Transportation
Project ofthe Environmeniza Defense Fund with outstanding credentials in planning and engineering.
CR 01133. W.Replogle testified that he was familiar with Tigard and the Portland metropolitan area
.He reviewed the specifics of the current case with staff from METRO, Tigard and other planners.
Based on that review he testified that"the proposed dedications will certainly offset a portion of the
traffic and associated air quality impacts generated by the Dolan's[new]facility."Id. Mr.Replogle
continued by saying that LUTRAQ showed"that increasing pedestrian/bicycle friendliness(and the
corresponding PEF)in suburban areas like Tigard...can reduce Vehicle Miles of Travel by motor
vehicles by as much as 10 percent. However,such an increase will not be possible without creation
of significant new pedesuian/bicycle facilities,including the trail that requires dedication of a portion
ofDolan's property." CR 01137.
Considering this testimony,Council found that the Fanno Creek pathway would or would be
likely to mitigate for the new car trips that Applicant's project will generate. Although not required
EXHIBIT A(REVISED)TO FINAL ORDER
Page-58
to specifically quantify that reduction,Council found that the pathway would or would be likely to
mitigate for at least nine percent of those new trips.24
Not surprisingly, Applicant did not agr-e with Mi. Larson's conclusions. She did not,
however,take issue with the basic methodology underlying LUTRAQ,perhaps because her expert,
Mr. Woelk,testified that Mr.Larson had made appropriate use of the study. Instead, Applicant
argued that the path was unnecessary or that the city did not consider all relevant factors in making
its analysis. Council did not agree with these arguments for several reasons.
The city demonstrated with Mr.Larson's testimony that the path was necessary tz achieve
the trip reduction predicted it.LUTRAQ. Mr.Larson also testified that the planned location for the
path is reasonable and necessary,rebutting Mr.Dolan's claims in his affidavit 21 Firaliy,LUTRAQ
24 Applicant introduced the results of some informal surveys taken at the Tigard A-Boy to argue that the path
would result in zero pedestrian/bicycle replacement. Council found the evidence from Mr.Larson,Mr.Replogle and the
citizens who testified in person to be more persuasive than Applicant's unscientific survey. Indeed,even Mr.Woelk
admitted that current pedestrian ways provide five percent of the store's business.
25 Applicant raised several arguments that alternative locations were available for the path. However,Council
found that the proposed pathway route was the only suitable one for the reasons provided by Mr.Larson,as follows:
It was suggested at the July 18,1595,hearing that the pathway could be
routed through the parking lot for the A-Boy facility. The r"ollowing reasons make
this alternative unfeasible:
I. The pathway along the creek is the more direct route to Main
Street. To route through the A-Boy parking lot would require
angle points to be constructed in the pathway.
2. The parking lot pathway would be in conflict with the vehicles
maneuvering in and out of parking spaces,in an area where
neither vehicles,bikes,nor pedestrians would expect conflicts.
3. The pathway along the creek is a more clearly defined public
space.
4. The pathway along the creek is the more attractive route,
reinforcing pathway utility and LUTRAQ goals;it will attract
more riders.
5. The pathway along the creek is the established standard,and
therefore is consistent and clearly identifiable.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-59 ,
was the only independent study presented to Council. Mr.Dolan's attempt to challenge the City's
traffic analysis by alleging that the City failed to consider the effect of weather and otrter factors was
mistaken because of the statistical method used in LUTRAQ. LUTRAQ found that PEF factors had
independently significant effects on transportation mode decisions. Thus, other factors such as
weather,while perhaps also relevant to such decisions,do not detract from LUTRAQ's predictions
as to the results to be expected from pedestrian and bikeway improvements. LUTRAQ found that
jorp1mmingpurposes local governments could expect the reductions in auto usage predicted by Mr.
Lars3n's application of LUTRAQ in this case. Therefore,Council rejected Applicant's arguments.
Applicant also argued that currently existing paths were sufficient to serve downtown.
However,she was mistaken. As Mr.Larson testified,the Fanno Creels path is needed to achieve an
adequate PER See,supra,at 58. In addition,Applicant's argument concerning the adequacy of the
existing system was founded primarily on Mr.Woelk's testimony that the Burnham Street pathway
was adequate to serve downtown. However, Mr. Larson explained why that path was not a
replacement for the Fanno Creek Pathway:
In the July 18, 1995,hearing,Mr.Woelk indicated that the Burnham Street
pathway is an acceptable alternative to completing the Fanno Creek Pathway. First,
the Burnham street and Fanno pathways are both indicated on the City's Pathway
plan. Second,the Burnham street pathway,as a replacement to the Fanno pathway,
would result in less direct access to Main Street from areas currently connected to the
Fanno pathway. Significant out-of-direction travel would result, reducing the
attractiveness of pedestrian/bicycle travel and therefore diminishing pathway
effectiveness. Standing alone, the Burnham Street pathway is not an adequate
alternative.
CR 0083(emphasis in original). Council found Mr.Larson's testimony to be persuasive and found
that the Burnham Street pathway was not an adequate substitute for the Fanno Creek pathway.
Finally,Mr.Woelk argued that the sty has not shown what effect this development will have
on intersections in Tigard. He missed the point. Mr.Woelk had to agree that each new trip had a
CR 00083.
EXHMIT A(REVISED)TO FINAL ORDER
Page-60
cumulative impact on the city's traffic system. See CR 00 782(shovAng that any increase in trips has
a significant impact):see also 7-18-95 Tr. at 25(testimony of WToelk: "I concur that when you
incrementally add traffic,just like you incrementally add water,the cumulative is the result. We have
no,we have no problem with that."). Each individual trip thus has a cost which it imposes on that
system. Id. It is fair to impose that cost on the trip generator,whether or not it is that generator who
breaks the system. Here, the city developed a reasonable basis for deciding the cost impact of
Applicant's development. It also showed that the exaction's value is far less than that impact.
d_ jeard Showed That the Bicycle/Pedestrian Pathway Easement
n Remand C'ond'ition One Was Roughly Proportional in Extent
to the Impacts oi'Applicant's Development
To analyze this element of the test,Council first considered evidence establishing the value
ofthe pathway easement. After finding that property to be worth$4,500,Council then considered
whether that amount was roughly proportional to the traffic impacts expected from the
development a6
Council received conflicting testimony concerning the value of the pathway easement. Staff
presented an appraisal done by Palmer, Groth&Pietka, Inc., a firm of expert appraisers, which
concluded that the easement was worth$4,500. CR 00776. Applicant, however, submitted an
affidavit from her son claiming that the pathway and floodplain easements had a combined value of
$84,000. Council was required to choose between these two evaluations before it could decide
whether the value of the easement was proportional to the probable impacts of the project.
Council found that it should adopt the$4,500 value provided by the independent appraisal
firm. That appraisal was conducted according to professional standards in the appraisal field and
according to standard procedures. In addition,the appraisers based their valuation on comparable
properties, which were shown in the record. Applicant's son, on the other hand, did not supply
26 At the fust of the Remand Hearings Staff suggested a modification to the bicycle/pedestrian way in Oversized
Exhibit 18. That diagram showed a notch in the pathway to accommodate Applicant's building as originally proposed.
Council chose not to take Staffs suggestion for two reasons. First,h4r.Larson testified that the notched path would
create significant safety concerns. CR 00082. Second,Council adopted the interpretation of unappealed Condition
Three set out in the August 16,1995,Staff Report. CR 00016. Under that interpretation Council could not allow the
building to be placed in the notch.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-61
comparable values. Furthermore,when he made his guess,Applicant's son was involved in a law suit
with the city for inverse condemnation. For purposes of that suit,it was in his personal interest to
maximize the value of the pathway property. Accordingly, he was undoubtedly biased toward
overestimating the value of the property,in which he has an ownership interest. This observation was
bom out by the great disparity between his valuation and that of the independent appraisers. Put
simply, Council found Applicant's son to be without credibility in this regard,while it found the
valuation of the appraisers to have been conducted in an objective,independent manner.
Applicant criticized the appraisal for not including severance damages,which she claimed
would result because she would have to redesign her building to accommodate the proposed pathway.
Council rejected her argument for several reasons. First,under Oregon law,severance damages are
not available for the condemnation of bare land. Council found that this same rule should apply when
the city requires an exaction that is otherwise constitutional. Second, the appraisers found the
severance claim to be without merit. They testiried that a buyer of the Property would not discount
the price he or she was willing to pay because of the easement. CR 00776. Finally, up.rebutted
evidence in the record showed that the pathway would not prevent Applicant from building a
structure of the same square footage while accormnodating the pathway. Oversized Exhibit 72 is a
set of diagrams Staff submitted showing possible alternative designs that would accommodate the
pathway but fully carry out the purposes for this application.17 Therefore,Council found based on
unrefuted evidence that the easement could not and would not result in severance damages.
Council also rejected a related argument made in art affidavit submitted by Mr.Dolan. There,
he argued that the location of the pathway would cause security concerns by transversing tae rear of
the proposed building. Staff,however,submitted testimony by independent appraisers saying that
the location ofthe path would not cause security concerns sufficient to reduce the Property's value.
CR 00776. Because,unlike Mr.Dolan,the appraisers did not have an ax to grind,Council believed
27 These exhibits also show that Applicant could have built the new building any time after the September`91
Approval_ After that approval,f7he had the land use permit she needed to build on the building. As the exhibits show,
she could have slightly modified her des;gn to build precisely the same number of square feet of space any time after she
received that approval.
MCMBIT A(REVISED)TO FINAL ORDER
Page-62
their testimony to be more credible and relied on it to find that the location of the pathway did not
reduce the Property's value.28
After finding the pathway easement to be worth$4,500,Council next considered whether that
amount was proportional to the traffrc impacts from the development. In undertaking that analysis,
Council noted that the Court did not promulgate black letter rules as to hove specific a local
government must be in making this analysis. However, the Court was clear that mathematical
certainty was not required.
Council compared the relatively small value of the easement dedication to the likely traffic
impacts of the development. At the very least,the development will generate 206 additional trips per
day. Council found that the cost imposed by that minimum number would be$17,000. The exaction
was thus very much smaller than the project's impacts using the most conservative numbers available.
Council thus found the easement to be roughly proportional to the project's impacts.
This conclusion became
especially obvious when Council Value Comparison
considered the more likely result that the Value of Easement v.Cost of Impacts
development would generate an
additional 404 trips per day, having an 35000
3000Q
impact of about$33,496_ Considering 25000
20000 ,.
15000
10006
`sc''rY
s. e
5000 ..a.
Q
Dollars
0 I_prson Woelk
Eq Easement
Figure 7:Value/Cost Comparison
28 In deference to Mr.Dolan's concerns Council modified Remand Condition One to allow Applicant to fence the
easement areas off from other portions of her property.
EXHMIT A(REVISED)TO FINAL ORDER
Page-63
that number,an easement worth$4,50029 appeared to be a very small burden to expect Applicant-to
bear."
After concluding that the easement satisfied the Court's requirements,Council considered one
final measure, not required by the Court in Dorn IL Using the methodology developed by Mr.
Larson and his predictions concerning mitigation,Council determined the value of the mitigation the
pathway would or would be likely to provide. Mr.Larson predicted and the Council found that the
pathway would result in a nine percent reduction in automobile trips. Multiplying this amount by the
predicted increase in trips from the development(404)and by the cost each trip would have imposed
on the system,showed that the pathway would result in mitigation of$4,433.06. CR 00933. This
29
Indeed,Council found this amount to overstate the value of the easement because the decision allowed
Applicant to count the easement area toward the mandatory fifteen percent landscaping requirement. By allowing
Applicant to count the easement property toward the landscaping requirement,the city allowed Applicant to develop
more of her more valuable and usable upland property. Without the easement,Applicant would have been required to
devote fifteen percent of that more valuable property to landscaping.
30 Requiring Applicant and others to bear the cost of automobile traffic generated by their develop—.•ents is fair to
the city's taxpayers and has strong support in basic policies. According to Dr.Nelson,an expert in planning practice
and economics,
automobile-dependent property,including downtowns and commercial areas devoid of pedestrian and
bicyclist facilities,enjoy considerable automobile subsidies proffered by society at-large[sic]. These
subsidies are not paid by benefiting property. As such,society is entitled to have these subsidies
compensated through a variety of public-serving planning decisions including dedications and
improvements resulting in improved walking and bicycling activity.
CR 01333. Dr.Nelson explained the consequences of not requiring developers to bear the actual costs of their
developments as follows:
By not having automobile users face up to these costs[generated by automobile use],the costs are
home by the public and the avoidance of such costs are internalized as benefits by private property. If
these costs were accounted for,land use patterns would change to reflect the true cost of automobile
use relative to alternative modes. Public agencies need to devise:ways in which to offset this
inefficient outcome. A logical method is to exact the provision of pedestrian and bicycle access ways
from new development. Such an exaction would have at least three important positive outcomes.
First,congestion,pollution,and other adverse effects of automobile-dependency are reduced. Second,
private development is made somewhat more responsible for otherwise contributing to the adverse
effects of automobile-dependency. Third,by improving access to property,property value improves.
In this latter regard,commercial and residential property would likely see the largest gains in value
attributable to the provision of pedestrian and bicycle ways,although all property value is likely to
gain in some respect.
CR 01344.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-64
in number was proportional to the$4,5 00 value of the easement. Therefore,Council found the city to
I
ave met even the most demanding ir.trpretation of the rough proportionality test.
D. MosT OF APPLICAN'T'S OTHER ARGUMENTS IN OPPOSITION TO REMAND
CONDITION ONE WERE NOT PROPERLY BEFORE COUNCIL IN THIS REMAND
PROCEEDING
When considering an application on remand, Council must determine the scop:-of issues
which are subject to review. That discretion,however,is not without limits. Old issues or issues that
could have been raised in earlier proceedings are not subject to reconsideration in a proceeding ager
remand. See,supra,at 11. This case had gone through four levels of appellate review before coning
back to Council on remand. Hence,the questions before Council mere were narrow. They were
limited to the question whether Remand Condition One satisfied the rough proportionality test and
any issues which were created by the Supreme Court's decision that could not have been raised in
the earlier proceedings.
Applicant made many arguments other than those concerning the Court's rough
proportionality test. Most of those arguments, as shown in Table 1 were not subject to
reconsideration in these remand proceedings.
TABLE ONE
STATUS OF "OTHER"ARGUIl2ENTS ON REMAND
Issue Properly Before Council? Rationale
Whether Tigard's land use No. Applicant had ample opportunities
regulations allowed Tigard to in the earlier proceeding to raise any
impose a condition requiring the argument she would have liked
dedication offioodplain and pathway concerning Tigard's authority to
easements. impose a condition lice Remand
Condition One under its land use
regulations. She chose not to make
any such arguments,but focused
only on her claims under the Takings
Clause.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-65
TABLE ONE
STATUS OF "OTHER"ARGUMENTS ON RETVIAND
Issue Properly Before Council? Rationale
Whether Tigard's decision to impose No. Applicant had ample opportunities
the exaction based on the trip in earlier proceedings.to challenge
generating characteristics of a the characterization of her
hardware/paint store violated the development as a hardware/paint
WIRE store. She chose not to raise such
cttallenges and therefore was
precluded from doing so on remand.
Whether Tigard's interpretation of No. Tigard made substantially the same
its land use regulations violated state interpretations of its land use
law. regulations in the a slier proceedings
1 to impose Original Condition Ona
'Applicant should have made her
_ ._
_ en*s aho„r code:.,rP,rretArin.,
then.
Whether Tigard's decision violated No. Applicant's arguments under the
the Equal Protection Clause of the Equal Protection Clause and Article
Fourteenth Amendment to the I,§20 in this remand proceeding
Constitution of the United States and were entirely based on local land use
Article I,§20 of the Constitution of decisions made before or while her
the State of Oregon. application was pending.
Furthermore,she actually contended
in the earlier proceedings that
Original Condition One was unfair
because Tigard treated upland land
owners differently than Applicant.
CR 00736("The fact that the city
approves many applications that
have similar effects and does not
require property dedications was of
no concern to the Oregon court.")
No review body accepted that
argument,and it is now decided and
not available to Applicant on
remand.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-66
TABLE ONE
STATUS OF "01'HER"ARGUMENTS ON'REMAND
Issue Properly Before Council? Rationale
Whether these rgmand proceedings Yes. Technically Applicant's argument
violated the Due Process Clause of under the Due Process Clause was
the Fourteenth Amendment to the before Council,but only because she
Constitution of the United States made the facts in her lawsuit against
- - i where Applicant introduced the fad I the city part of the record.
of a pending lawsuit against the city
and her lawyer actively solicited a
settlement discussion with Council
during the remand hearings.
Although Council was not required to address issues not properly before it,Council chose to
snake findings concerning those issues in case a review body disagreed with its understanding of the
rules governing reconsideration of old issues on remand. However,Council's findings under the old
issues were made for the sake of argument only. Council did not intend to waive any argument of
Tigard that the issues were already decided and not subject to further decision and review.
E. A CONDITION REQUIRING DEDICATION OF EASEMENTS FOR FLOOD CONTROL
AND ALLEVIATION OF TRAFFIC IMPACTS Is APPROPRIATE UNDER TIGARD'S
LAND USE REG.,.,ATIOP:S
1. Tcgard's Land Use Regulations Required Council to Impose Remand
Condition One or to Deny the Application
Althcugh the Supreme Court's opinion in Dolan II required Tigard to show that a con'ition
requiring dedication of property satisfied certain constitutional requirements,that case did not alter
the rule under the CDC that Applicant bore the burden of proving that she was entitled to approval
of her application. CDC§18.32.250.A.1. Applicant failed to show that the proposed development
would,without Remand Condition One,meet the Tigard's approval criteria,
EXHIBIT A(REVISED)TO FINAL ORDER
Page-67
Applicant tried to satisfy the approval criteria governing flood control and transportation
impacts by filing a variance request.See, supra,at 7(quoting variance request). Petitioner's one-
half page statement attempting to justify a variance did not, however, contain the information
required concerning storm drainage and traffic impacts,including an analysis of the impact of the
development on the city's storm drainage and traffic systems. CDC §§ 18.32.050, 18.84,
18.120.630, .100, 18.164.030 and 18.164.100. For example,CDC§ 18.164.100.A provided that
a permit may be issued"only where adequate provisions for sto.;n water and floodwater runoff have
been made." The cited CDC sections when read together implemented the Comprehensive Plan
requirement that development address storm drainage and traffic impacts. With regard to drainage,
the Comprehensive Plan provided in relevant part as follows:
The City shall require as a precondition to development that:
a. the site deveiopiiieni study be subrniaed for development in areas subject to
poor drainage, ground instability or flooding which shows that the
development is safe and wiii not create adverse otT-site impacts;
b. natural drainage ways be maintained unless submitted studies show that
alternative drainage solutions can solve on-site drainage problems and will
ensure no adverse off-site impacts.
C. the City shall require as a pre-condition to development that...all drainage can be
handled on-site or there is an alternative solution which vrill not increase the off-site
impact on the drainage system.
Comprehensive Plan Policy 7.2.1. The Comprehensive Plan also explained that,
[p]roper administration of the floodplain areas relies heavily upon the availability of
adequate information upon which to assess the environmental impacts of a project.
The development,which creates the need,should be responsible for providing the city
with the necessary data for making sound decisions. The burden is on the applicant
to prove that a project will not adversely affect the environment or create undue
future liabilities for the city.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-68
Comprehensive Plan Policy 3.2 Floodplain,Findings,p.I1-14. Tigard implementzd these policies
through the Sensitive Lands Chapter(CDC§18.84)and-Utilities Standards Requirements for Stone
Drainage(CDC§ 18.164.100).
Similarly, the Comprehensive PIan addressed transportation facilities by requiring that
infrastru--tore be capable ofsesving the proposed development. Comp.Plan Policy 7.1.2(b)(1). This
requirement implemented Statewide Planning Goal. 11, "Public Facilities and Services," which
mandated that urban development be supported by appropriate levels ofpublic facilities and that cities
plan for key facilities. Goal I 1 defined"key facility"to include transportation. To address this
requirement,the CDC required Applicant to submit a site plan detailing existing and proposed streets,
ways and easements,including those on surrounding properties. CDC§ 18.120.120.A.3.
The exact nature of the street, sidewalk and bikeway improvements required of each
development depends on the facts of the specific application. CDC § 18.164.020.B ("The City
Engineer may recommend changes or st _ tents to the standard specifications consistent with the
application ofengineering principles.");CDC§§ 18.164.030, 18.164.070, 18.164.1 10. Tigard must
condition developments that would"principally benefit"from bikeways identified on the adopted
pedestrian/bikeway plan to include the cost of bikeway improvements. CDC§ 18.164.110.13.
Applicant completely flailed to address these standards in the Application. She thus failed to
meet her burden of proof.
Applicent likewise failed to use her opportunity to prove facts justifying a variance. She did
not produce evidence of the"possible negative or positive attributes of the proposal"or show that
there had been changes or mistakes in the comprehensive plan or the zoning man as it related to the
Appiication. CDC§18.32.250.8. The submission of an incomplete application did not"negate the
applicant's burden ofproof." CDC§ 18.32.050.G.
Based on the lack of evidence concerning drainage and transportation impacts,Council could
have denied the Application. CDC§§18.32.250.A,.E,18.10.010,18.16.010.B. indeed,Applicant's
attorney admitted to the Supreme Court of the United States that the city could have done so.See,
supra,at 14. Instead of denying the application,however,Tigard processed it using information in
the record. Based on the impacts of the proposed development, see supra at 31, 48, Remand
E}—F1ryBIT A(REVISED)TO FINAL ORDER
Page-69
Condition One,which requires dedication of easements for flood control,drainage manap.ment,and
alleviation of traffic impacts,was necessary to address the requirements of the CDC and to allow
Council to issue an approval. See CDC§ 18.32.250.E.La(conditions of approval authorized where
"necessary to carry out provisions of the Tigard comprehensive plan."); CDC § 18.32.250.E.7.
(authorizing the City to require property dedications as conditions of approval).
2. Applicant's Arguments UnderTigard's Land Use Regulations Were Nor
Well-Founded
Applicant, through her attorneys, made a series of arguments under Tigard's land use
regulations. She claimed that those regulations did not allow Council to impose Remand Condition
One. Although,as set out supra at 65,Applicant had lost the opportunity to raise such arguments,
Council nevertheless considered them. After analyzing Applicant's arguments, Stafr's response,and
the reievant regulations, Council found none of Applicant's arguments to have merit. Council
reached this finding based on the reasoning set out below.
a. Annliennt Received Adequate hlotire of TiAard's$nterwr__ pts�tinn
of Certain L9gad LTse Regulations
Applicant claimed that Tigard had not provided her with adequate notice of several
interpretations Staff proposed for various local land use regulations. However,Council found her
argument not to be well taken because she had adequate notice of triose interpretations and a
sufficient opportunity to respond.
Staff did not propose and Council did not adopt any unreasonable interpretations of
Tigard's land use regulations. Under Oregon law, Council had primary responsibility for making
interpretations cf the city's land use regulations which applied to the Application. So long as those
provisions could reasonably be identified as applicable,parties were expected to discern their
Potential significance. Moreover, this process, in which Staff published its report a fiill week
before the initial hearing and Council allowed one continuance and an opportunity for the
submission of additional evidence and argument after the close of oral testimony provided ample
opportunity for Applicant to contest any of the interpretations proposes!by Staff and adopted by
Council.
E7ar11"lT A(rcEVISED)TO FINAL ORDER
Page-70
b. Council]Found`17rat1Lnrzroyal Would Allow AU12 irmnt to Site
Any General Retail Use en the Property
Applicant's lawyer argued that Council would violate the city's land use regulations if it
applied traffic counts for a"general retail use"in evaluating the likely impacts of the project. He
claimed that Council should find that any approval would be limited to the A-Boy and that A-Boy's
use would be limited to selling"bulk}:merchandise." He further claimed that Applicant sought
approval for a"general rto:ail facility"only because that designation was required by Staff'at the pre-
application conference. Council did not accept this argument,but held that under the local land use
regulations Council was required to consider all possible uses for the site allowed under the
Application.
Although Applicant's lawyer suggested that Staffhad somehow required Applicant to request
approval for a general retail sales facility when all she wanted was a plumbing store,evidence in the
record showed otherwise. A-Boy is the company that would use the new store for selling plumbing
and electrical supplies. It is a legal ertity distinct from Applicant, yet was not a party to the
Application. Instead,it was at the time of these proceedings a tenant of Applicant. Accordingly,an
approval would not limit the tenant to an A-Boy. Indeed,under the Constitution of the United Slates
and the Constitution of Oregon,Tigard could not condition Applicant to rent solely to A-Boy because
such a condition would impair the obligation of contract existing between herself and A-Boy under
the lease. U.S.CONST.ART.I,§10("No state shalt. . .pass any. ..law impairing the obligation of
contracts.. ."); ORE.CONST.ART.1,§21 ("No. . .law impairing the obligation of contracts shall
ever be passed. . . .").
Other evidence in the record showed that Applicant had sought the flexibility inherent in
approval of a general retail use. In paragraph 2,Proposal Summary,of the Application,the.foilo'y 2rb
is tTed in as a summary ofthe project:"The construction of a 17,600 square foot building having
a general retail sales facility." John and Florence Dolan sighed the application,not A-Boy,a separate
legal entity. Before their signatures,the following appeared:
THE APPLICANTS)SHALL CERTIFY THAT:
EXHIBIT A(REVISED)TO FINAL ORDER
Page-71
C. All of the above statements(including the project description set out above]
and the statements in the plot plan, attachments, and exhibits transmitted
herewith,are true;and the applicants so acknowledge that any permit issued,
based on this application, may be revoked if it is found that any such
statements are false.
The applicant has read the entire contents of the application,including the policies and
criteria,and understands the requirements for approving or denying the application.
CR 00754. Thus,if anything was inaccurate about the request,Applicant and her husband were on
notice to correct the project description. However,they represented to the city that it was accurate
and true. The objective evidence from the time when the application was made shows that Applicant
intended to receive a broad approval that could support many different retail uses.
Assuming that Appiicatii did intend to limit herself to a plumbing and electrical store,
however,Council still could not agree with her argument. In the Original Decision,Council found
CDC Chapter 18.66,CBD:Central Business District,to be an approval standard. Applicant did not
appeal that interpretation. That chapter required Applicant to prove ghat the use proposed in the
Application was permitted in the zone. To allow such proof, Applicant was not free to design a
description of her proposed use not specified as alowed in the CDC. Instead,the CDC required
Applicant to state which of the permitted uses listed in the CDC she proposed for the Property.
Here,the Application selected such a listing. It said that Applicant planned to tear down the
existing 9,700 square foot building and to replace it with a"17,600 square foot building having a
generall retail sales facility." The requirement of CDC Chapter I3.66 led to the following finding,
which Applicant did not appeal:
The applicant intends to construct a new and larger structure suited br general retail sales
use. Such a use is permitted outright in the CBD(Central Business District)zone. Therefore,
the intended use is acceptable for this site.
Applicant thus bound herself to conduct only general retail sales in the building,but not to operate
only a plumbing and electrical store.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-72
Applicant's claim that somehow Staff persuaded her to apply for more than she wanted was
factually incorrect for another reason. The Application explained that the project would allow
"replacemew,of[the]existing sales facility with a larger facility." Indeed,the record showed that
Applicant had sought the flexibility inherent in approval of a general retail use.See, supra,at 71. The
objective evidence for the time when the application was made shows that Applicant intended to
receive a broad approval that could support many different retail uses."
Applicant also tried to claim that the Originai recision,by granting a parking variance based
on a"bulky merchandise"exception,limited use of the site to the A-Boy operation. Council found
no merit in that argument. Council allowed the parking variance as an accommodation to Applicant,
but it did not limit her use to bulky merchandise. Instead,Council found that A-Boy would most
likely be a tenant of the new building,at least at first. During that period,Council found that it could
allow Applicant to build three fewer parking spaces than the CDC otherwise would have required.
However,Council also found that it would have opportunities to require additional parking on the
site when Applicant built the Phase II building. 1 hat park-mg, Council believed, would provide
sufficient assurance that adequate parking existed on:.he site,whatever use ultitnatcly canine to occupy
t;e budding. Because Council sa.-.,an opportunity to regez..e additional parking in the long-run and
because it did not limit the uses to which Applicant could put the new building,its grant of a parking
variance was irrelevant to the question whether the CDC required Council to limit its impacts
evaluation solely to those likely from an A-Boy store.
C. Comprehensive Place Policy 7.1.20(1) snd Related Land Use
Regulations Suppoirted Imposition of Remand Condi#ion One
Asset out in Section III.E.1,supra,Council found that Remand Condition One was necessary
partly because under Comprehensive Plan Policy 7.2.2(b)f 1)and related regulations, Tigard cannot
grant approval in site development review unless it finds affected transportation facilities to be
31 Applicant criticized Council's consideration of all uses allowed under general retail sales by arguing that it
would result in speculative planning for only worst case situations. Council disagreed with that critique for two reasons.
First as explained supra at 63.:3ard satisfied the rough proportionality test even when using Mr.Woelk's calculations,
wh�eb were specific to A-Boy. Second,Council's determination that it should consider a range of uses was limited only
to those which could be classified as being"general retail."
EXHIBIT A(REVISED)TO FINAL ORDER'
Page-73
tapable of serving the proposed development. Applicant raised three challenges ur-der this policy and
related regulations which Couneii addressed ire the f0ii0wing findings.
(1) Tigard Had Authority Under Its Land Use Regulations to
I
n pose Remand Condition One
Applicant argued that Tigard did not have authority to impose Remand Condition One
However, as Applicant's attorney told the Supreme Court of the United States,Tigard did have
authority to deny the Application. Plan Policy 7.1.2(b)(1),which required provision of adequate
transportation facilities,was one source of Tigard's authority to refuse approval. Because Tigard had
authority to deny the Application pursuant to the Comprehensive Plan, it also had authority to
condition its approval. CDC §1832.250.E.1.a-,authorized Council to condition approval of the
Application because such a condition was"necessary to. . . [c]any out provisions of the Tigard
comprehensive plan." Furthermore, CDC§18.32.250.E.2 allowed Council to require Applicant to
dedicate an easement. See also CDC§ 18.164.020.B(exact character of the street,sidewalk and
b—.!Cc7,W ^ e uen.S regU ed of each devei0pinerti. de ends Oil the facts of the —c
ay prgV ij-ir 1�'" p npcC:....
application).
(2) Comprehensive Plan Policy 7.1.2 Did Not Limit the Scope
of Possible Uses Which Council Could Consider When
Fashioning Conditions of Approval
Applicant argued that under Comprehensive Plan Policy 7.1.2, Council could impose only
conditions based on the public facility impacts of the precise use proposed by Applicant. Applicant
thus suggested that the city should micro-manage the phasing of developments. As Council
understood the argument,it would,for example,require a new site development review when a candy
store moved and was replaced by a book store. Or,Council supposed,Applicant's reasoning would
require a new review even where a book store specializing in history was replaced with a store selling
murder mysteries. Surely,thought Council,this approach was too intrusive and unworkable to be
required by the Comprehensive Plan and CDC.
Council's review of the relevant land use regulations confirmed this reaction. Council rejected
Applicant's crimped and unworkable approach for two reasons.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-74
First Tigazd's land use regulations did not require the city to play big brother over the affairs
of property owne s,searching out all deviations in use or tenancy. Instead,they provided for review
of developments in phases only where applications propose a formal phasing plan calling for such a
review. Implementing Strategy 4 of policy 7.1.1 addressed the provision of public facilities to
phased development as follows: "(b) [t2t;CDCj shall allow for the phasing of. . . services ,-f a
de 1opment proposal indicates such phasing." (Emphasis added.)" From this provision it was
apparent that Tigard's land use regulations allow approvals for developments based on phasing of
public f ci itties cruly-where the application sets out a formal has-i g plan. Furthermore, Council
..pp.:............ p.
fbiand that the CDC does not envision such a phasing plan to be based on the ebb and flow of new
uses but on the development of new improvements on property to which the plan attaches. Council
found this to be a sensible approach, because a phasing plan would allow the city to conduct
enforcement activities according to a rational plan and with the consent of property owners. As
explained later in Strategy 4,
The intent of these policies is to develop a mechanism for orderly and logical
developm.e
.,p „t ar=.,axpa�estoi�of services to promote an efficient use of land and tires
an efficient growth pattern. This mechanism will basically be concerned with:
Planning for public facilities in advance of need in a manner which will implement
land use policy. This shall help direct the urban expansion and growth.
(Emphasis added.)
Council found that Strategy 4 explained the intent underlying the Comprehensive Plan
concerning the timing of public facilities. Council held that it established that the Comprehensive Plan
did not require Council to require only those public facilities which address only immediate needs
gznerated by precise uses,but required Council to consider public facilityneeds in light of the entire
,:urge of future uses which an approval would allow.
32 Council noted that this principle was applicable here. Applicant plans to develop a second Phase on the
Property,which will include another retail store. However,in this review Council did not consider the impacts of that
second proposed store.
EXFMIT A(REVISED)TO FINAL ORDER
Page-75
Council also rejected Applicant's suggestion that the city micro-r-nanage uses because it was
unworkable. Council found that Tigard had no way of learning of changes in use so that it could
enforce Applicant's suggested approach.
Applicant argued through her attorney,Mr. Shonkwiler,that because any charge in use of
the building would require a new site development review process, Council would have an
opportunity to impose new conditions if A-Boy did not use the new store. He thus concluded that
Council should have considered only the traffic impacts of an A-Boy store in evaluating traffic
impacts. Council,however,ound-A4-r. Shonlawiler's interpretation of the CDC to be incorrect.
CDC § 18.120.020 provides in relevant part that "[s]ite development review shall be
applicable to ali new developments and major modification of existing developments,as provided in
Section § 18.120.070 . . . .' (Emphasis added.) Before considering the elements in CDC §
18.120.070 that distinguish a major iiom a minor modification,the City must select an interpretation
of the word"modification." Only when an applicant suggests a modification is it necessary to decide
whether that modification is major or minor_
The CDC does not define the word "modification"; therefore, the City must give it its
common,dictionary meaning. See CDC§ 18.26.010. Webster's New Collegiate Dictionary gives
"modification"the following relevant definition: "r„od-i-:i-ca-tion. . . 3 3: the making of a limited
change in something..." To apply this definition it is necessary to decide the"something"to which
a change will trigger design review.
Council found three"somethings"to be possible. First, a change m the use of a building
aught trigger the review. Second,a cosmetic change in a building might be a trigger. Or,third,a
change in the placement of structures on a site might be the trigger. CDC§ 18.120.010,which sets
out the purpose for design review,provided the basis for choosing between these alternatives.
CDC§ 18.120.010 emphasizes that the purpose of site development review is to serve the
public interest in the proper placement and orientation of buildings and other structures. It focuses
on the importance of good site planning and the preservation of environmental amenities. This focus
shows that site development review is triggered only when an applicant proposes to place a new
structure on a site or to change the footprint of an existing structure. It is not triggered by a mere
EXHIBIT A(REVISED)TO FINAL ORDER
Page-76
change in outright allowed use,by remodeling the interior of a building,or by cosmetic changes to
the exterior of a building,none of which implicate the purposes of site development revie::.
Because a simple change in use will not trigger site development review, Tigard's only
meaningful opportunity to evaluate the impacts of development is during site development review
triggered by a modification to improvements or when a party proposes a conditional use. Council
thus concluded that it must,therefore,consider all potential uses of Applicant's project to properly ,
gauge the Application's likely impacts on the city's infrastructure.
Now
(3) Comprehensive Plan Policy 7.1.2 and Related Regulations
Did Not Limit the Evidence Which Council Could
Consider in Structuring Remand Condition One
Applicant's attorney claimed that Plan Policy 7.1.2 or other portions of Tigard's land use
regulations required`_'- uncil to use traffic counts specific to A-Boy stores because of requirements
established in the WTIF. However,nothing in Policy 7.1.2 or any other part of Tigard's land use
regulations limited the e-, deuce which Council could consider in that regard. The only limit on the
evidence Council could consider was the general requirement that the evidence be relevant and
reliable.
Council found the WTIF to be an assessment imposed under county ordinance, being
completely separate from the City's Comprehensive Pian and Community Development Code.
Therefore,nothing in Tigard's Plan or the CDC refers to the WTIF,much less makes it the exclusive
method of traffic impact analysis in the city. In fact,the WTIF is imposed by the County(Washington
County Code(WCC)§3.17.040(A)),in an amount set by the county(WCC§3.17.050),through
a process entirely separate and apart from this Site Development Review,and which may be appealed
only to the county. CR 00102.
Furthen-pore, nothing in the WTIF or in Tigard's land use regulations limits Council's
authority to impose exactions to address transportation facility impacts. To the contrary,the WTIF
recognized that it was merely"one component of a multifaceted program." Washington County
Ordinance 379,Section 2. As City Attorney Tim Ramis testified,Tigard replaced its own systems
E7r_HIBIT A(REVISED)TO FINAL ORDER
Page-77
development chargi.for roads with an exaction approach to mitigating impacts at the request of the
development industry. 7-18-95 Tr.,at 5.
(4) Remand Condition One Did Not Violate the CDC By
Calling for Placement of the Pathway Outside of the
Floodplain
Applicant argued that Remand Condition One violated CDC § 18.120.180.A.8 by requiring
the hath- av to be located outside,f thp.flnor!nlnin.
Where landfill and/or development is aliowed within and adjacent to the 100-year
floodplain, the City shall require the dedication of sufficient open land area for
greenway adjoining and within the floodplain. This area shall include portions at a
suitable elevation fr the construction of a pedestrian/bicycle pathway within the
floodplain in accordance with the adopted pedestrian/bicycle plan.
Applicant argued that this section required the pathway to be located within the floodplain,to the
exclusion of any other location.
Council found Section 18.120.020 to be ambiguous. It allowed dedication requirements
which included land within and adjacent to the floodplain, including property at a "suitable
elevation for construction of the . . pathway within the floodplain . . . .' Compounding this
ambiguity was the section's requirement that the dedications be-in accord with the adopted pathway
pian,which shows the pathway on the Property to be outside the floodplain. Thus,
the section does not adequately explain what is required when,as here,there is no elevation within
the floodplai*r which is suitable for construction due to steep slopes of a pathway segment called for
in the Pathway Plan. CR 01553(slides showing steep slopes).3'
33 Council found that the bicycle/pedestrian way could not be located in the floodplain because,besides existing
steep banks,the channel improvements called for in the Master Drainage Plan called for relocation and Stabilization of
the bank. CR 01025. "The Engineering Division has stated that the proposed stricture should be at least 10 feet away
from the relocated outer bank in order to accommodate an eight foot wide pathway and the planned reconstruction of the
storm drainage channel along the floodplain." CR 01043(from the September`91 Decision).
EXHIBIT A(REVISED)TO FINAL ORDER
Page-78
Consideeing this ambiguity,Council found that it should interpret the section as requiring the
® pathway to be pla—ce mediiately a 'acent to the floodplain. Council found this interpretation to be
supported in that the section designates as"greenway"all dedications which consist of land either
within or adjoining the floodplain, thus including both the floodplain and pathway dedications.
Further, Council found its interpretation to be consistent with the Pathway Plan, a part of the
Comprehensive Plan,which called for the Fanno Creek pathway to be adjacent to the floodplain.
Indeed,this section nowhere mandates placement of the path in the floodplain. It only says
that the city should require a land dedication when possible that includes space in the floodplain for
:.hr path. Further,it dees not set the location ofthe path. It relies on the pathway plan to do that.
Thus,Applicant's argument that Remand Condition One would violate this section is simply wrong.
(5) Role of the Parks Plan
Applicant asserted that Comprehensive Plan Policies 3.5.3, 3.5.4, 3.6.2, 3.2.4 and
Implementing Strategy 4 required Council to apply the City's Parks Plan to require Applicant to allow
public access to the floodplain for recreational purposes. Applicant then claimed that because the city
could not constitutionally impose such a requirement,it could not impose any easement condition on
Applicant. Council,however,did not believe itself to be in such a Catch-22. The Court did not hold
that the Parks Plan was per se unconstitutional. Instead,it held that before Tigard could implement
that plan the Constitution required that it make certain findings. Under the Supremacy Clause,"
Tigard's local land use regulations must be interpreted consistently with. supervening federal law.
Therefore, Council interpreted the Parks Plan's dedication provisions to be subject to findings as
required inDolan H. Because Council had never intended that the floodplain easement would serve
as a park,it decided as a matter of policy that it did not need to secure a:ecreational easement to the
floodplain to carry out the intent of the Parks Plan. Accordingly,in deference to federal law,it did
not atter npt to Justify a recreational easement under Dolan H.
34. The Supremacy Clause of Article VI of the Constitution of the United States provides as follows:
This Constitution,and the lays of the United States which shall be made in pursuance
thereof;and all treaties made,or which shall be made,under the authority of the United States,shall
be the supreme law of the land;and the judges in every state shall be bound thereby,anything in the
Constitution or laws of any Sate to the contrary notwithstanding.
EXHRIIT A(REVISED)TO FINAL ORDER
Page-79
(6) Remand Condition One Is Consistent With
Comprehensive Plan Policy 8.1.3
Applicant argued that Demand Condition One would result in an exaction in excess of allowed
WTIF fees,thus illegally modifying"Plan Policies 8.1,8.1.3 and Implementation Strategies 2 and
5.s35 Council rejected this argument because it was not sufficiently developed to allow a response.
Policy 8.1.3 set forth various preconditions to development for the provision of transportation
facilities. Applicant did not specify which provision of this policy was"reinterpreted"by Staff or
Council. Council noted that no portion of this policy,or any other provision of the Comprehensive
Plan,limited the city's ability to seek offset of developme_Zt impacts in excess of the WTIF. Indeed
the Comprehensive Plan did not incorporate or even refer to the WTIF, so the criteria requiring
Applicant and the city to mitigate transportation impacts existed apart from any consideration of the
R/TIF.
(7) Remand Condition One Does Not Violate Implementation
Strategies 2 and 5
Implementation Strategy 2 of the Comprehensive Plan required the city to develop and
implement a capital improvements plan containing certain listed elements. Applicant argued that
Council would violate this strategy if it imposed Remand Condition,One. However,her argument
lacked merit because it was not sufficiently specific to allow a response. Applicant did not explain
how Remand Condition One would violate this strategy. Neither Council nor Staff had cited it as an
approval criterion, and neither believed it was relevant here.
Implementation Strategy 5 required land developers to dedicate necessary rights-of-way and
construct necessary street improvements when: such improvements did not already exist. While
Applicant's attorney did not explain why he cited to this strategy in submissions to Council, he
evidently felt that Strategy 5 set an exclusive form of exaction for offsetting transportation impacts.
Council rejected this narrow view, finding the implementing strategy to be only part of the
Comprehensive Plan's overall effort to ensure the adequacy of public facilities.
3s In fact,there is no Plan Policy 8.1.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-80
F. RNEMAND COmoi%I ONE AND CouNcIL's RATIONALE FO 2'DUT CONDITION DO
NOT VIOLATE THE QAI'Q'FT
Applicant argued that by imposing Remand Condition Ore, Council would be violating
the WTIF by classifying the proposed larger building as a Hardware/Paint store for purposes of
the 1'i"E trip generation study,rather tk-n allowing Applicant to elect to make the determination
based on u gcnemition numbers- Her a*giment is completely meritless because Council
did not 3pply the V;=.- in this t.-oceedarg, having only estimated the RPTIF fee in the `91
Recision. CR 01026. Applicant will have the opportunity to propose actual trip counts later,
when she applies for building permits. CR 00934.
Council did not apply the WT .F. Rather,Council relied on the facts which the County
used in establishing the V F as substantial evidence of the cost associated with the traffic the
proposed development will generate. It was reasonable for the Council to rely on the trip
generation figures set in the Vr=. .See, supra,at 54.
G. REm!AN CONDITION ONE AND THE CouNc.'s 1tiATIONAL FOR THAT CONDITION
Do NOT VIOLATE STATE LAND USE STATUTES
Applicant's attorney argued at various points in the remand process that the City was
violating statutory Hass regarding what standards and criteria apply to this application.
► "[T]he City's required placement of the pathway outside the floodplain is an attempt
to impose land us^restrictions that were not adopted at the time of the application
acceptance. Tlus is in violation of ORS 227.178(3)and the requirements for clear and
objective standards under ORS Chapters 227 and 197." Shonkwiler,June 27, 1995
memorandum,at 5.
► "The City has attempted to impose an assessment for traffic impacts in excess of its
legislatively adopted WTIF fee(Traffic Impact Fee)requirements.. .. [T]he City has
no comprehensive plan nor code provision specifically authorizing the imposition of
this excess assessment upon property owners. Imposition of land use requirements
that are not in conformance with clear and objective standards and have pct been
EXHIBIT A(REVISED)TO FINAL ORDER
Page-81
adopted prior to the City's acceptance of the application is in violation of the
provisions of ORS Chapter 197 and ORS 227.178." Shonkwiler, June 27, 1995
memorandum,at 6-7.
► "[T]he comprehensive plan requires implementation of the City's Parks Plan. The
City's proposed easement restriction for the floodplain to preclude the public is in
violation of these Ciy mandatory provisions. The City cannot change these
provisions without seeking a comprehensive pian and zoning ordinance text
amendment reviewable during a separate public hearing and by LCDC. This did not
occur before the 1991 application was accepted. The City's legal choices now include
impusirg the rem*e*nents or finding them invalid pursuant to the U.S. Supreme
Court decision. ORS 227.178:' Shonkwiler,June 27,1995:memorandum,at 8.
► "The City's standards for approval of all other applications in 1991 did not require
imposition of these dedications. Thus, the City is precluded from asserting an
unwritten special standard just for floodplain abutting properties. ORS 227.178(3)."
Shonkwiler,August 16, 1995 memorandum, at 3.
► "[T]he approval standards the City was using it.. 1991 establishes that the City
calculated W--Lw fees during the approval hearings and included them in the approval
order. . . . ORS 227.178(3) requires their application during this remand."
Shonkwiler,August 16,1995 memorandum,at S.
► "The City staff has asserted a new policy not found in the Code or comprehensive
plan. Particularly,it was a policy that was not in place in 1991 when the application
was approved. Therefore,ORS 227.178 precludes its application in this proceeding.
. . . The proposed new policy would require each development to plan for and
participate in providing public facilities to serve the entire range of uses allowed by
the applicable?one. . . . [T]he City has adopted no regulations setting clear and
objective standards for the imposition of these new requirements. This conflicts with
both ORS Chapters 227 and 197." Shonkwiler, August 16, 1995 memorandum,at
9-10.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-82
These arguments are based on two statutory requirements. ORS 227.178(3)requires that:
If the application was complete when first submitted or the applicant submits the
requested additional information within 180 days of the date the application was first
submitted and the city has a comprehensive plan and land use regulations
acknowledged under ORS 197.251, approval or denial of the application shall be
based upon die standards and criteria that were applicable at the time the application
was first submitted.
The application became complete in 1991. Moreover,the city's comprehensive plan and land use
regulations were acknowledged then. Therefore,the statute requires that the city's approval or denial
of the application be based on the standards and criteria applicable when Applicant submitted the
application.
Applicant's arguments, without specific citation to authority, regarding a statutory
requirement of clear and objective standards are a bit confusing,as no statute requires that the city's
applicable land use regulations be "clear and objective,"per se. It is most likely that Applicant
intended to argue here that the city was failing to stick to the requirements of ORS 227.173(l),which
requires that:
Approval or denial of a discretionary permit application shall be based on
standards and criteria, which shall be set forth in the development ordinance and
which shall relate approval or denial of a discretionary permit application to the
development ordinance and to the comprehensive plan for the area in which the
development would occur and to the development ordinance and comprehensive plan
for the city as a whole.
InBCTPartnership v. CitygfPortlam tr.an OA,-p-..• QO
- -rr27 � l I,•2d 176(i 7y4),the court
clarified that standards and criteria applicable to a land use application need not detail now they might
apply in any circumstance. That is left for the interpretive function of local decision makers. Id,at
276. "[I]f an ordinance contains provisions that can reasonably be interpreted and explained as
embodying the standards and criteria applicable to the particular decision,it is specific enough to
satisfy ORS 227.173." Id
EXHIBIT A(REVISED)TO FINAL ORDER
Page-83
Applicant's first and third arguments pertain to Council's interpretations of code and plan
provisions. Specifically- ucant is arguing inai iii i;;tei rear. ';ac rc re^^=a r adcinnc__C1lC SS
18.120.180.A.8 and 18.86.040.A-Lb.and the Parks Plan--the City is imposing regulations that were
not in effect at the time the application was completed. Applicant misapprehends the interpretive
function of local governments. Interpretation of an erdinance provision does not constitute adoption
of a"new"standard or criten:)n for purposes of ORS 227.178(3).
The intervretive authority of a local government is triggered whenever a local ordinance
provision"is capable of more than one tenable interpretation." Weeks v. City of Tillamook, 117 Or,
App.449,454, 844 P.2d 914(1992). Moreover,this interpretive function is not discretionary,but
is a responsibility of local governing bodies. Ick Applicant can point to no case that holds that in
carrying out this function, local governments are adopting new standards for purposes of ORS
227.178(3).
Applicant's second argument pertains to Council's authority to impose Remand Condition.
One. Specifically, Applicant claims that no standard existed on the date of submission of the
application which would authorize imposition of an assessment besides the WTIF,and that,pursuant
to the same statutory provisions just discussed,the City has no standard upon which to base such an
assessment. As discussed supra at 81,the dedication requirements of Condition One do not impose
an assessment beyond the WTIF. The County imposes the WTIF,in an amount set by the County.
Contrary to Applicant's contention,the 1991 order specifically states that Council is not imposing the
WTIF as part of this approval. Instead,CDC § 18.32.250.E authorizes Remand Condition One,
which was adopted and applicable as of the date of submission of this application and,therefore,is
not a new standard.
Applicant's fou,-th argument is that the fact that other application--pprovals have not included
the same sort of dedication condition shows that Council is applying an"unwritten standard"to this
application. Again,the standard under which Council has imposed Remand Condition One,CDC§
18.32.250.E,is not new for purposes of this statute.
Applicant's fifth-argument is similar to the second. She claims that calculation of the expected
WTIF assessment in the September '91 Approval required application of the WTIF during this
remand process. Again,Applicant misreads the decision. Council did not impose the WTIF then
EMMIT A(REVISED)TO FINAL.ORDER
Page-84
MGM
because the WTIF was not a criterion applicable under the plan or code. Indeed,the WTIF ordinance
7d98M itself states that the tax is not clue until"the issuance of a huiiciing nermit by the. . .city." 'r`v'CC Q
3.17.060.A.
Applicant's sixth argument is that the City is here applying a new standard that"would require
each development to plan for and participate in providing public facilities to serve the entire range
of uses allowed by the applicable zone." Under Plan Policy 7.1.2 each applicant provide
transportation infrastructure capable of serving the proposed development. As discussed supra at
71, Council found that this application sought approval of"general retail use"of the property,and
was approved as such. Council further found that Pian Policy 7.1.2 did not limit the scope of
potential uses of the Property which Council could consider when fashioning an appropriate condition
of this development's approval, and therefore requires each applicant to provide transportation
facilities based or.this range. because, Applicant did not dispute that Plan Policy 7.12 was
applicable to the application when submitted,the policy referred to in the above quotation is not a
new standard for purposes of the statute.
H. REMAND CONDITION ONE AND THE COUNCIL'S RATIONAL FOR THAT CONDITION
Do NOT OFFEND ARTICLE I,SECTION 20 OF THE CONSTITUTION OF THE STATE
OF OREGON OR THE EQUAL PROTEC'T'ION CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
Applicant argued that Tigard had singled her out for disparate treatment from other property
owners,3`'attacking Remand Condition One under Article I,Section 20,the Privileges and Immunities
Clause of the Constitution of Oregon," and the Equal Protection Ci use of tho Fourteenth
36 Although she claimed that this argument also supported her claim that Remand Condition One was a taking,
Council did not agree. The tests of Nollan and Dolan 11 were the sole legal grounds for her taking claim. Because
Tigard satisfied the requirements of those tests,Remand Condition One did not violate the Takings Clause.However,if
Applicant's arguments concerning alleged discrimination do provide an independent basis for a claim under the Takings
Clause,Council intended that the findings in this section also be considered findings in response to that cl::
37 Article I,§20 of the Oregon Constitution provides as follows: "I10 law shall be passed g p p granting to any citizen
or class of citizens privileges,or immunities,which,upon the same terms,shall not equally belong to all citizens."
EXHIBIT A(REVISED)TO FINAL ORDER
Page-85
Amendment to the Constitution of the United States.38 Although Applicant did not distinguish
between her federal and state equal protection theories,different legal tests apply under the different
constitutional provisions. Article I, Section 20 bars the state mom conferring a privilege or an
immunity on one class of persons while excluding other classes or individuals based on immutable
characteristics,such as race,for invidious reasons,or through arbitrary rules. The Equal Protection
Clause,in contrast,forbids the state from discriminating against a particular class unless,in the case
of cconomic regulations,the state has a rational basis for drawing such a distinction."
1. Applicant Did Not Show i rtat Remand Condition a nc Kola.-d Artirle'
Section 20
The law under Article 1,Section 20 is currently uncertain,see Ag West Supply v.Hall, 126
Or, App.475,478, 869 P.2d 383 (1994);however,the courts have made a sufficient number of
decisions under the section to derive an outline of the approach to such a case. To prove that
Remand Condition One violated Article I,Section 20,Applicant was required to show that it denied
her of a"constitutionally recognized privilege or immunity." D, Schuman, The Right to `Equal
Privileges and Immunities": A State's Version of`Equal Protection,-- 13 VT.L.REV. 221,244
(1988). Assuming she made such a showing,Article I, Section 20 established three categories of
classification, each creating a separate requirement. Those categories are cases in which the
challenger is in a"true class," cases in which the challenger is in a"pseudo-class,"and cases w:xere
the challenger is not a member of a class,but is considered to be an"individual." Id.
Applicant did not identify the constitutionally recognized pri d',ege o. �mr,.uruty of which
Remand Condition One allegedly deprived her. Thus,she did not articulate her argument sufficiently
to allow a specific response, and she did not meet her burden to identify and prove that Remand
78 The Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States provides as
follows: "No State shall...deny to any person within its jurisdiction the equal protection of the lays."
Under the Equal Protection Ciausc,wh-a,as;.c,a peT,-,n challenges reo dations not drawing distinctions
based on a suspect category--e.g.,race,or,to a lesser degree,sex--that person bears the burden to prove that the
government had no rationai basis for the distinctions.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-86
Condition One deprived her of such a privilege or immunity. Therefore, Council found that her
argument under Article I, Section 20 had failed.'
Assuming,however,that Applicant did have some basis for claiming that Remand Condition
One deprived her of some constitutionally recognized privilege or immunity,Applicant did not explain
the basis for her allegations. She did not,for example,say whether she was proceeding as part of a
true class,a pseudo class,or as an individual. Thus,her argument was not sufficiently developed to
allow a specific response,and she failed to meet her burden of proof.
Although Applicant's claim under Article I, Section 20 failed because of a lack of proof,
Council considered,for the sake of argument,how such a claim might be structured. The first step
in structuring such a claim would be to decide Applicant's status.
"[A]`true class'is one that is created not by the law itself but is based on antecedent personal
or social characteristics or societal status." Ag Mest Supply,126 Or.App.at 480. Race,sex,and
nationality are examples of true classes. D.Schuman,supra, 13 VT.L.REV. at 232. Here,Applicant
did not claim that Remand Condition One was based on any such factors. Therefore,Applicant was
not a member of a true class.
Applicant argued that the city through its decision created two classes of persons. One class
owning property next to the creek and the other, favored class being those who owned upland
property. Thus.the classification system she attacked was created by the city's land use regulations
and its land use decisions.Furthermore,she was free to bring herself within the"favored class"by
purchasing upland property. Thus,she claimed to be a member of a pseudo-class. See Hale v.Port
of Portland 308 Or. 508, 515-16,783 P.2d 506 (1989). However, such a class is entitled to no
protection under Article I, Section 20, see id at 516, or is entitled to protection only from
government decisions which lack a rational basis,see Ag West Supply, 126 Or.App.at 480&n.3.
Either she had no claim under Article I, Section 20 or that claim failed because, as shown below,
Remand Condition One has a rational basis. See, infra, at 89.
40 In addition,as detailed below,the city has not discriminated between upland and riparian owners in any -
meaningful way. See,infra,at 90.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-87
Applicant also appeared to believe that she was denied a privilege or immunity as an individual
wlach Tigard grants to other citizens_ ?Jr-der these circumstances,Applicant was required to show
th it Tigard applied the law in an arbitrary or haphazard manner. D.Schuman,supra, 13 VT.L.REV.
at 245. As shown below, however, Tigard did not apply its land use laws in such a manner,but
imposed similar conditions in similar cases. See,infra,at 89. Therefore,her claim under Article I,
Section 20 failed.
2. Applicant Did Not Show That Remand Condition One Violated the Equal
Protection Clause
The Supreme Court of the United States has established three levels of review to be applied
when a regulation is challenged under the Equal Protection Clause,referred to as"strict scrutiny,"
"intermediate rcAew,"and"rational basis," respectively. Strict scrutiny applies where the state
discriminates against a class based on race,religion,legitimacy or,possibly,some other immutable
characteristic("suspect classifications"). The Court applies intermediate review when a lai-. -draws
distinctions similar to those triggering strict scrutiny, such as sex("intermediate classifications").
Finally, the rational basis test applies to classifications not based on suspect or intermediate
classifications. That final set of classifications includes any created by Remand Condition One,
because Applicant has not shown—and cannot show—that the city is requiring Remand Condition One
based on a classification such as race or sex.
Under the Equal Protection Clause,Council could find Remand Condition One to be valid if
the city"could ra:ionatiy have decided'the measure adopted might achieve a legitimate objective.
Minnesota v. Clover Leaf Creamery,4,!,,U.G 456,466(198 1) (emphasis in original);see also
Medford Assembly of God v. City of Medford, 72 Or. App. 333, 339, 695 P.2d 1379 (1984)
("selective enforcement of an ordinance violates equal protection`only if there is no rational basis to
justify the selective enforcement"')(quoting City of Eugene v. Crooks,55 Or.App. 351,354,637
P.2d 1350(1981),rev.denied 292 Or.772(1982)); Wagner v.Marion County, 15 Or.LU13A 260,
272 (1985) ("Mnequal application of the law is not by itself a constitutional violation. The
complaining party must establish intentional or purposeful discrimination, i.e., that the has been
singled out based on an unjustifiable standard such as race,religion,or other arbitrary classification.
Unless such suspect classes are involved,the equal protection clause is violated only if there is no
rational basis to justify the selective application of the ordinance."). Applicant apparently believed
EXHIBIT A(REVISED)TO FINAL ORDER
Page-98
r.
that Remand Condition One offended this standard for two reasons. First,she claimed that upland
owners were not required to make similar dedications for flood and drainage control. Second,she
claimed that other Tigard developers had not been required to make similar dedications for
transportation infrastructure. However,her claims were without any foundation.
In an attempt to establish her equal protection claims, Applicant submitted several cases
decided by the city around the time of the September`91 Approval. She argued that the city had
unposed different drainage and traffic dedications in those cases,proving,she claimed,that the city
had improperly discriminated against her.
Council had to admit to some confusion about this argument and to what Applicant expected
from the city. In making her takings argument, Applicant emphasized that the Takings Clause
re-luired Council to make an individualized determination whether the impacts of her project justified
the exactions called for in Remand Condition One. Not surprisingly, such an approach leads to
somewhat different conditions in different cases. However,in making her equal protection argument,
Applicant criticized the city for allowing such differences to exist. Applying her wooden equal
protection approach—requiring ail cases to be treated identically--would lead to the absurd result that
any decision satisfying the Takings Clause would be a violation of the Equal Protection Clause and
vice versa. Council did not believe the law to require such s result. Instead, Council found that
differences arising because of factual distinctions between cases were rationally based because such
results were necessary to meet the requirements of the Takings Clause, a legitimate government
objective. Therefore,the premise underlying Applicant's equal protection argument failed and along
with it,her entire argument.
Although Applicant's equal protection claims were wholly invalid because of her faulty
premise, Council nevertheless reviewed the specific cases she introduced in support of her claim.
Each of those cases involved an upland property owner,and in each the city did impose conditions
differing in specifics from Remand Condition One. However,those differences were not sufficient
to establish a claim.
Interestingly,Applicant omitted from her submission the case decided by the city most closely
resembling the present. SDR 89-21,George Morland Plumbing,involved site development review
for a plumbing business also bordering Fanno Creek. The city required dedication of the floodplain
EXEMIT A(REVISED)TO FINAL ORDER
Page-89
and a bike path area,it required the developer to build the path,and it also required a half-street
improvement, which included storm drainage improvements. CR 00746. Thus, based on almost
identical facts,Tigard imposed exactions very simlar to those in Remand Condition One. If anything,
they were more extensive.
To escape the fact that Tigard 3t.rs treated similarly situated land owners similarly,Applicant
in her later submissions claimed that Tigard created two classes of landowners: Plumbing stores next
to the creek and upland developments. She alleged that Tigard discriminated between these two
classes by putting more significant drainage and traffic requirements on developments next to the
creek than were imposed on upstream land owners.
With regard to drainage,Applicant's claim was meritless because any distinctior•s drawn in
the cases had a rational basis. As a general matter, the city had a rational basis to treat riparian
owners differentiv than those in the upland areas, as explained by the Floodplain Managers
Association: "Developments near the floodplain have unique impacts that differentiate them from
upland developments. They result in"increased exposure to flooding caused by development near
the existing 100 year floodplain,which,absent structural improvements to the flood channel,would
be exposed to flooding in the future." CR 01295.
[Applicant's]claim that the e<_»ment dedication condition does not relate to
impacts of[Applicant's;development requires that[the city]ignore the distinction
be-tween property in or adjacent to iloodplains and property that itself is at no risk of
Flooding. The floodplain easement dedication was designed to address the increased
property damage likely to result from [Applicant's] expanded development in a
floodprone area. To address that problem,Tigard undertook in large part at public
expense to improve the flood carrying capacity of the original 100 year channel.
Although[Applicant]and other floodplain landowners were required to donate the
property,the City nicked up the substantial expense of the channelization work:itself.
CR 01298.
In addition to this general justification, Council's investigation of the facts of each case
submitted by Applicant showed that dedications for drainage and traffic were required. Although
EM-BBIT A(REVISED)TO FINAL ORDER
Page-90
different in kind from those required here, the dedications were proportional in magnitude. For
example, in several of the cases the city required dedication and construction of half-street
improvements. Such improvements E.Aigate for traffic impacts and also contribute to the city's
drainage system. See, infra, note 42.41 Moreover, they are much more expensive than the
dedications called for in Remand Condition Or1e.42 Coun oil's reasoning and justification for the
41 Council found that it was not proper to impose a requirement for a half-street improvement here for the
following reasons,which it stst described in the Septenwct'9 1 Appro.al:
A 1986 engineering study of the condition of S.W.Main Street recommends that the
pavement be completely reconstructed and that the storm drainage system be replaced. It appears to
be impractical to perform the proposed reconstruction of Main Street in a piecemeal fashion on a lot-
by-lot basis;instead,the reconstruction needs to occur in larger segments beginning at Fanno Creek
Bridge and working uphill. Therefore,we do not propose that any reconstruction of Main Street be
required as a condition of approval of this development proposal.
CR 01024(citing recommendations of City Engineering Division). This observation rebuts Applicant's argument that
Council should not conpare the half-street dedications called for in other cases and the floodplain and pathway
easements called for in Remand Condition One. She claimed that the comparison would be invalid because such
improvements had already been installed next to the Property. However,the record did not show that she had paid for
those improvements,they were not required as part of this decision,and their cost would have been equal to or greater
than the easements required of her. See,infra,note 42. Furthermore,the city derided that restoration of the
improvements on Main Street should not be done by exactions. Tigard will pay for any such improvements. Thus,
Council found the street and drainage improvements called for in the other cases to be similar or greater.in magnitude
than the exac,dons called for in Remand Condition One.
42 The following testimony from Mr.Berry sup
ported this conclusion:
In addition,I do not agree with the applicant's characterization of this
effect as'creating surplus capacity.' The intent of Comprehensive Plan Policies
7.12(a)and 7.2.1(c)is to provide a complete drainage system by requiring each
applicant to provide a portion of the system with adequate capacity to convey the
upstream flood waters.
This is most commonly accomplished by dedicating additional
right-of-way along street frontages and installing drains. Therefore,development
throughout the City is required to provide adequate facilities for the conveyance of
drainage.
The condition proposed in this case is no different. The applicant is
simply being asked to dedicate an easement for a dramageway which is open and
not part of a half-street improvement. Similar requirements are imposed by the
City's Master Plan on developments that include open channels such as
drainageways and creeks: 'structural and non-structural programs necessary to
reduce damages to the 100-year flood to an acceptable level.'
E"X HBIT A(REVISED)TO FINAL ORDER
Page-91
conditions in each case is set out in tabular form in Appendix Two to this Exhibit A. Because
Applicant was not required to make dedications and improvements more extensive those required in
her example cases,no violation of equal protection occurred.. The city had a rational basis for
distinguishing the exactions from those imposed here based on the facility needs and geographical
location of the developments. Cf.,Seto v Tri-CountyMetropolitcm Trarsp.Dist of Oregon,311 Or.
456,466-67,814 P.2d 1060(1991)(upholding classifications based on geographic location where
they had a rational basis).
Applicant's final argument concerning equal protection was an allegation that she had been
discriminated against because Council approached this remand proceeding with a more thorough
review than in earlier cases. She cited,for example,the use Council made of the WTIF and argued
that such a use had never been made before. Council,frankly,found her argument to be incredible
and almost frivolous. The United States Supreme Court had never imposed the rough proportionality
requirement before it made its decision in this case. Furthermore,earlier cases decided by the Oregon
courts indicated that the process Tigard used in making the September`91 Approval,which was like
the process used in Applicant's example cases, did satisfy the Takings Clause. Thus, it is not
surprising that Council applied a different and more involved approach to thase remand proceedings
than the city had taken in earlier cases. Council could not accept Applicant's claim that the procedure
she demanded in the United States Supreme Court violated the Equal Protection Clause merely
because her's was the first case to which that procedure applied.
Since full street improvements along applicant's Main Street frontage,
including drainage,were previously installed,additional improvements and
dedication are not now being required. Had the applicant been required to provide
these improvements,the drainage components(curbs and drairm)would cost
anywhere from$10,000 to$20,000.
CR 00056;see also CR 00084 ("The cost for half street improvements is approximately$150 to$200 per lineal foot of
street frontage.")
EXHIBIT A(REVISED)TO FINAL ORDER
Page-92
TI. T'flm PROCFbuRE USED IN ADOPTING REMAND CONDITION ONE.DID NOT
OFFEND THE DUE PROCESS CLaUSE OF THE FOiIRTEENTH AMENDMENT
TO THE CONSTITUTION OF THE UNITED STATES
Applicant asserted that Council could not give Applicant a fair hearing because Applicant had
sued the city in Circuit Court. However, it was Applicant who introduced facts concerning the
Circuit Court case in this matter,and it was Applicant's attorney who solicited a settlement discussion
with Council during the Remand Hearings. Furthermore,it was Applicant who initiated the Circuit
Court case. The upshot oftile iiias alar:acul�'be to dis;uglify Council-om,exercising its land use
authority whenever an applicant brought an action against the city. For these reasons,any claim that
discussion of the lawsuit in these proceedings indicates bias is without merit.
In addition,each member of Council considered whether he or she could render a fair decision
in this matter in light of'Appiicant's law suit. Each found that he or she could and would separate
the two matters when making this decision. Council thus found that these remand proceedings did
not deny due process to Applicant.
IV. CONCLUSION
Council found that Tigard had presented evidence satisfying the rough proportionality test of
Dolan IL It therefore found it appropriate to impose Remand Condition One to mitigate for the
flood,drainage, and traffic impacts of Applicant's project. Although most of the other arguments
raised by Applicant were not before Council,Council ncverthe!zss considered their merits. It found
them to have none. Thus Council entered its Final Order imposing Remand Condition One.
C:\GFH\DOLAN\FINDINGS\FINDMAST.wPD
EXHIBIT A(REVISED)TO FINAL ORDER
Page-93
Appendix One W Evidence in Record
Item 'o. De-srption Page No.
1 Council Agenda Item Summary, Agenda Item_, dated CR 1-5
10/10/95
2 Continuation of Public Hearing(8/29/95)
d Council Agenda Item Summary,Agenda Item 6 CR.6
dated 8/29/95(Exhibit 82)
0 Letter to City Council from John Shonkwiler re CR 7
Request to Strike Exhibits dated 8/26/95
(ExhiINt 83)CR 7
0 Letter to William Monahan from Timothy Ramis re CR 8-9
Request to Strike Exhibits dated 8/21/95
(Exhibit 84)
0 Supplemental Staff Report dated 8/16/95 CR 10-19
(Exhibit 85)
0 Applicant's 8/16/95 Memorandum(Exhibit 86) CR 20-39
0 Supplemental Staff Report dated 8/2/95 CR 40-102
w/exhibits 1-11 (Exhibit 87)
0 Applicant's 8/2/95 Memorandum(Exhibit 88) CR 103-121
0 Affidavit of Dan Dolan received 8/2/95 (Exhibit 89) CR 122-144
® Memorandum from Dick Woelk to John Shonkwiler CR 145-147
dated 8/1/95(Exhibit 90)
0 Memorandum from Cathy Wheatley to file re CR 151-150
6/27/95 and 7/18/95 Transcripts(Exhibit 91)
3 Continuation of Public Hearing(7/18/95)
EXHMIT A(REVISED)TO FINAL ORDER
Page-A
Item
Deccri tYon �UiGt�ii.
0 Council Agenda Item Summary, Agenda Item 5 CR 151-152
dated 7/18/95(Exhibit 40)
0 Draft transcript of 6/27/95 public hearing CR 153-201
(Exhibit 41)
0 Copies of slides presented by the City Attorney at CR 202-216
6/27/95 public hearing(Exhibit 42)
0 Letter to City Council from Join Shonkwiler dated CR 217-237
7/9/95 w/exhibit(Exhibit 43)
0 Letter to John Shonkviler from Richard Woelk CR 238-256
dated 6/27/95 w/attachments(Exhibit 44)
0 Letter to City Council from John LeCavalier, CR 257-267
President of Friends of Fanno Creek,dated 6/29/95
w/"From Rooftop to River"article and "Coutes
Reject Wetlands Takings" article(Podubit 45)
0 Memorandiz€n of Dolan/A-Boy Inc. w/exhibits A-L CR 268-434
submitted 6/27195(Exhibit 46)
0 Memorandum from Cathy Wheatley to Bill CR 435-436
Monahan re past Council and Planning Commission
meetings dated 7/10/95(Exhibit 47)
0 Supplemental Staff Report dated 7/11/95 CR 4:37-454
(Exhibit 48)
0 Memorandum to City Council from Timothy Ramis CR 455-462
dated 7/13/95(Exhibit 49)
0 Letter to City Council from Loreta Pickerell,Vice CR 463
President of STOP, dated 7/18/95 (Exhibit 50)
0 Memo to Tim Ramis from Greg Berry dated CR 464
7/18/95(Exhibit 51)
EXFRD31T A(REVISED)TO FINAL ORDER
Page-B
Item Na. BJescri Piysr Pae Na.
0 Letter to City Council from Brian Mardn dated CR 465
7/18/95 (Exhibit 52)
O Letter to City Council from Marti McCausland CR 466
dated 7/18/^5(Exhibit 53)
O Letter to City Council from Jeff Paine(Exhibit 54) CR 467
Letter to City Council from Dan Velasquez dated CR 468
7/17/95(Exhibit 55)
O List of exhibits submitted by Timothy Ramis for CR 469
7/18/95 continued hearing w/notes by James
Coleman
A Unified Sewerage Agency Resolution and Order CR 470-625
No. 91-47(Exhibit 56)
O Unified Sewerage Agency Resolution and Order CR 626-678
No. 93-33(Exhibit 57)
O Unified Sewerage Agency-Water Quality and CR 679-715
Detention Facilities System Development Charge 1
Improvement FII Cost Analysis dated 6/5/91
(Exhibit 58)
O US Supreme Court Brief for petitioner in Dolan v. CR 716-745
City of Tigard(Exhibit 59)
O Notice of decision Site Development Review, CR 746-753
SDR 89-21,George Morland Plumbing(Exhibit 60)
O Site Development Review Application(SDR 91- CR 754-755
0005),Joseph Mendez,applicant(Exhibit 61)
O Memorandum to file from Dick Bewersdorff dated CR 756
6/26/95(Exhibit 62)
EXHIBIT A(REVISED)TO FINAL ORDER
Page-C
Item No. Description f'-a---NO.
® A-Boy Steres advertisements from the Hillsboro CR 757-769
Argus and Oregonian newspapers(Exhibit 63)
® A-Boy Stores Yellow Pages advertisement CR 770-771
(Exhibit 64)
O Memorandum from Jay Featherston to Frank CR 772-7 75
Hammond dated 7/5/95(Exhibit 65)
O Memorandum from Rick Walker and David Pietka CR 776
to Pamela Beery dated 7!10/95(Syhibit 66)
O List of maps retained by the City until time of oral CR 777
argument under OAR 661-10-025(2) (Exhibits 67-
75 and 79)
O Memorandum to File from Tim McGuire dated CR 778-780
7/17/95(Exhibit 76)
® Memorandu n to file from Dave Larson dated CR 781-783
7/17/95(Exhibit 77)
O Copies of slides presented by Tim Ramis at 7/18/95 CR 784-798
hearing(slides have been retained by City until time
of oral argument under OAR 661-10-025(2))
(Exhibit 78)
O Testimony of Charles Swindells on behalf of 1000 CR 799-800
Friends of Oregon dated 7/18/95 (Exhibit 80)
O Letter to City Council from John Shcnkwiler dated CR 801-805
7/18/95 w/three color phntos(Exhibit 81)
4 Public Hearing-Remand of Conditions Related to
Dolan/A-Boy-SDR 91-0005/Var 91-0010(6/27/95)
4 Council Agenda Item Summary,Agenda Item 5, CR 806
dated 6/27/95(Exhibit 1)
EXHIBIT A(REVISED)TO FINAL ORDER
Page-D
to o. description page Nc,
0 Memorandum to City Council and City CR 807
Administrator from Pamela Beery dated 6/20/95
(Exhibit 2)
0 Staff Report to City Council from Planning CR 808-820
Department dat d 6/20/95(Exhibit 3)
0 Exhibit list for 6/20/95 staff report(Exhibit 4) CR 821
0 Partial transcript of US Supreme Court Case CR 822-823
(Exhibit 3,staff report) (Exhibit 5)
0 US Supreme Court Opinion,Dolan v. City of CR 824-839
Tigard(Exhibit 4, staff report)(Exhibit 6)
0 Notice of Public Hearing for 4/25/95 remand CR 840-841
hearing(Exhibit 5, staff report)(Exhibit 7)
0 Applicant's Request for Continuance dated 4,17/95 CR 842-844
and 5/10/95(Exhibit 6 staff report)(Exhibit 8)
0 Amicus Brief: Association of State Floodplani CR 845-846
Managers,pages 12-13 (Exhibit 7, staff report)
(Exhibit 9)
® Drainage Impact Study prepared by Tim McGuire CR'2,4 -379
dated 6/20/95 (Exhibit 8, staff report)(Exhibit 10)
® Appraisal of Proposed Bike Path and Flood Control CR 880-926
Easements dated 5/3/95 (Exhibit 9, staff report)
(Exhibit 11)
® "Privates provision of Public Pedestrian and Bicycle CR 927-930
Access Ways" article by Prof.Arthur Nelson,
pages 11-13(Exhibit 10,staff report)(Exhibit 12)
0 Transportation Impacts Study by David Larson CR 931-933
dated 6/16/95 (Exhibit 11, staff report) (Exhibit 13)
EXHIBIT A(REVISED)TO FINAL ORDER
Page-E
Rem n. Vffs rintion a e o.
0 Washington County Traffic Impact Fee Ordinance CR 934-982
w/related schedules and reports(Exhibit 12, staff
.report) (Exhibit 14)
0 Notice of Final Order and Resolution Adopting CR 983-10 11
Final Order dated 9/17/91 (Exhibit 15)
4 Memorandum to Cathy Wheatley from Ty Wyman CR 1012-1014
dated 6/27/95 w/easement map(Exhibit 16)
0* Site Plans-8 sheets of plans(Exhibit 17) CR 1015
0* Large.map of site illustrating easements(Exhibit 18) CR 1016
0 List of exhibits submitted by .iimothy Ramis for CR 1017
6/27/95 hearing w/notes by Pamela Beery
0 Notice of Final Order and Resolution Adopting CR 1018-1046
Final Order dated 9/17/91 (Exhibit 19)
0 Memorandum to Cathy Wheatley from Ty Wyman CR 1047-1049
mated 6/27/95 w/easement map(Exhibit 20)
0 Article by John Vance in Selected Studies in CR 1050-1071
Highway Law,Vol. 2(Exhibit 21)
0 LUTRAQ Study, "The Pedestrian Environment," CR 1072-1125
dated 12/93(Exhibit 22)
0 National Flood Insurance Program Flood Insurance CR 1126-1127
Rate Map(1982)(Exhibit 23)
0 Letter to Mayor Nicoli from Andrea Ferster, CR 1128-1162
General Counsel for the Rails to Trails conservancy,
dated 6/26/95`Txhibit 24)
0* LUBA Record for Dolan v. City of Tigard,LUBA CR 1163
No. 90-029(Exhibit 25)
EXIEBIT A(REVISED)TO FINAL ORDER
Page-F
,Wm.?Vo fEonF!Q�
+9* LUBA Record for Dolan v. qty of Tigard,LUBA CR 1164
No. 91-161 (Exhibit 26)
2I Brief for respondent,Dolan v. City of Tigard,US CR 1165-1264
Supreme Court(Exhibit 27)
Copies of slides presented by Tim Ramis at 6/27/95 CR 1265-1279
hearing(slides have been retained by the City until
time of oral argument under OAR 661-40-025(2))
(Exhibit 28)
O Amicus Brief:Association of State Floodplain CR 1280-1301
Managers,Dolan v. City of Tigard,US Supreme
Court(Exhibit 29)
� Amicus Brief:Rails to Trails Conservancy,et al, CR 1302-1320
Dolan v. City of Tigard, US Supreme Court
(Exhibit 30)
"Private Provision of Public Pedestrian and Bicycle CR 1321-1353
Access Ways,"article by Prof. A thurNelson
(Exhibit 31)
q�* Tigard Comprehensive Plan w/Pedestrian/Bicycle CR 1354
Plan,Master Drainage Plan, Parks Master Plan,
Parks Improvement Progra_na,and Tigard Park Plan
(Exhibit 32)
® Letters to John Shonkwiler from Timothy Ramis CR 1355-1357
dated 4/19/91 and 4/20/95 (Exhibit 33)
®* Four traffic studies for Beaverton,Vancouver, CR 1358-1377
Hillsboro,and Tigard A-Boy Stores w/letter to John
Shonkwiler from Richard Woelk dated 6/27/95
(Exhibit 34)
EXEIIBIT A(REVISED)TO FINAL ORDER
Page-G
Item o. Ilcscriotfon e
0 Memorandum of Dolan/A-Boy,Inc., CR 1378-1542
w/--xhibits A-L submitted 6/27/95(Exhibit 35)
0 Letter to City Counzil from David Smith dated CR 1543-1546
6/27/9-5 (Exhibit 36)
0 Memorandum to Cathy Wheatley from Ty Wymai CR i547-1549
dated 6/27/95 (Exhibit 37)
0 Memorandum to file re Dolan telephone calls CR 1550
(Exhibit 38)
0 "Sharing the Challenge: Floodplain Management CR 1551-1552
Into the 21st Century," Report Abstract dated 6/94
(Exhibit 39)
0* Slides presented by Jim Hendryx at the 6/27/95 CR 1553
hearing
*These items have been retained by the City until time of oral argument under
OAR 661-10-025(2).
C:\GFn\TM'.I--NMFINDINGS\FINDNIAST.W PD
EXHIBIT A(REVISED)TO FINAL ORDER
Page-H
APPENDIX TWO:
EQUAL PAOTECTIONANALYSIS
OF CASES CITED BYAPPLICAINT
En'T�—T�T_T A(REVISED)TO FINAL ORDER
Page-a
Case Applicant's Allegation Response
SDR 91-0002 "The City approved the construction of a new Although the City did not exact a pathway in
commercial buildings[sic]of 8,000 sq.ft. this casa,it required transportation
Standard street frontage dedication was required. improvements in the form of dedication of
In addition,no traffic impact costs were assessed street frontage and sidewalk improvements.
to SDR 91-0002 in excess of the required TIF Those requirements were not put on
fees. As in the Dolan application,sidewalks are Applicant. Instead,Applicant was required
required from to build=n_g to the street frontage to dcdicaie land for the pathway. Tne
and along the street frontage. However,in direct Supreme Court requires that all dedications
contrast with the requirements for the Dolans,this be individualized determinations. Moreover,
applicant did not have to dedicate or be assessed an individualized interpretation necessarily
for storm water drainage(the requirements for results from any quasi-judicial process.
water quality are a different subject and ordinance There,street exactions were imposed. In the
restriction). The stormwater was allowed to run Dolan case,the city imposed a pathway
into an existing storm line in 72nd Ave. This exaction. Both developments were thus
storm line,in turn,flows into the Faro Creek required to mitigate for traffic impacts,but
drainage system. Similarly,there is no mention of through different methods.
a requirement for additional transportation costs
related to an alleged 68%unreimbursed costs In SDR 91-0002 the City found that the
Lsic]in excess of the required TIF fee." central storm drain probably was sufficient to
handle runoff From the site. The City
imposed a condition requiring applicant to
"demonstrate that storm drainage runoff can
be discharged into existing drainageways
Without significantly impacting properties
_ downstream." That is the same burden that
the city placed on Applicant Moreover,the
property is not located on the creek.
Therefore,it is not surprising that the City
imposed a different drainage requirement on
this applicant.
Applicant's argument concerning imposition
of a fee in excess of the WTIF fee is a red
herring. Here,the City is not attempting to
impose such a fee on Applicant. Instead,it is
using the WTIF methodology to decide rough
proportionality in accordance with the
requirements created by the Supreme Court.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-b
Case Applicant's Allegation Response
SDR 91-0007 "The City approved the construction of a two[sic] Applicant incorrectly asserts that no
- MLP 91-0004 new industrial buildings totaling 112,960 sq.ft. dedication was required in SDR 91-0007.
A sidewalk was required along the street frontage. The City required a sidewalk along the street
No Dedications[sic]nor any street construction frontage. No similar dedication 4vas required
Icosts were required of the applicant. In addition, of Applicant. Instead,they were required to
Ino traffic impact costs were assess, to SDR 91- dedicate the pathway.
0007 in excess of the required TIF fees."
Applicant's argument concerting imposition
of a fee in excess of the WTIF fee is a red
herring. Here,the City is not attempting to
impose such a fee on Applicant. Instead,it is
using the WTIF methodology to decide rough
I
proportionality in accordance with$ie
requirements created by the Supreme Court.
It did not apply such a methodology in its
earlier cases because the existence of rough
I proportionality was not av issue.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-c
Case Applicant's Allegation Response
SDR 91-0004 "The City approved the construction of a new Applicant ignores that the City did require a
commercial buildings[sic]in the Central dedication of a street frontage and
Business District in the Action Area overlay zone improvement. The City did not place such a
(same as the Dolan pr6perty designations). requirement on Applicant. Instead,it
Standard street frontai;e dedication and required dedication of the path. Although
improvement were required. In addition,no different mitigation methods were required in
traffic impact costs were assessed to SDR 91- the cases,the purpose of each dedication was +
0004 in excess of the required TIF fees. In deed to mitigate for traffic impacts. I
[sic],the actual trip generation of a same or
similar use was specifically identified as Applicant's argument concerning imposition
acceptable for calculating the TIF fees. There is of a fee in excess of the W-fIF fee is a red
no mention of a requirement for additional herring. Here,the City is not attempting to
transportation costs related to an alleged 68% impose such a fee on Applicant. Instead,it is
unreimbursed costs i7 excess of the required TIF using the WTIF methodology to decade rough
fee."(Emphasis in original.) proportionality in accordance vvith the
- requirements created by the Supreme Court.
It did not apply such a methodology in is
earlier cases because the existence of rough
proportionality was not an issue.
Applicant's argument concerning use of
actual trip generation is misleading in that it
implies the City is applying a different
standard here. Until the Remand Hearings in
this matter Applicant did not argue that the
City should use actual trip counts in
estimating the WTIF. In the earlier
decisions,the City used the ITEManual,a
decision that was not appealed or disputed.
EXIIBIT A(REVISED)TO FINAL ORDER
Page-d
Case Applicant's Allegation Response
SDR 91-0011 "The City approved tht,.construction of anew Applicant ignores that the City did require
commercial building. A sidewalk was required dedication of half street improvements
from the street frontage to the building being including sidewalks and curbs. The City did
constructed. No additional transportation impact not place such a requirement on Applicant.
costs were assessed to the property other than the Instead,it required dedication of the path.
street frontage dedication and improvements(as Although different mitigation methods were
was already dedicated and improved at the required in the cases,the purpose of each
Dol:rs'property). In addition,no traffic impact dedication was to mitigate for traffic impacts.
costs were assessed to SDR 91-0011 in excess of
the required TIF fees." The City also required the applicant to
demonstrate"that stonn drainage and runoff
can be discharged into tha existing
drainageways without significantly impacting
properties downstream."
Applicant's argument concerning imposition
of a fee in excess of the WTIF fee is a red
herring. Here,the City is not attempting to
impose such a fee on Applicant. Instead,it is
using the WTIF methodology to decide rough
proportionality in accordance with the
requirements created by the Supreme Court.
It did not apply such a methodology in its
earlier cases because the existence of rough
proportionality was not an issue.
EMUBIT A(REVISER)TO FINAL ORDER
Page-e
ENRON MINE=
Case Applicant's Allegation Response
SDR 91-0016 "The City approved this commercial use Applicant ignores that the City did require a
(conversion from a lesser residential use)and only dedication of a street right-of-way. The City
required the dedication of widening the street did not place such a requirement on
frontage and bringing a sidewalk from the street Applicant. Instead,it required dedication of
frontage to the building Similarly,the City the path. Although different mitigation
required the Dolans to bring the sidewalk from methods were required in the cases,the
the street frontage to their proposed building(the purpose of each dedication was to mitigate
widening of the frontage sleet had already been for traffic impacts.
ccomplished). Tlo.-ever,the C.'ity also requize3
an additional transportation impact costs[sic]in Applicant's argument concerning imposition
excess of TIF fees by requiring the Dolans to of a fee in excess of the WTIF fee is a red
dedicate a pathway in the rear of the building. In herring Here,the City is not attempting to
addition,no traffic impact costs were assessed to impose such a fee on Applicant. Instead,it is
SDR 91-0016 in excess of the required TIF fees." using the WTIF methodology to decide rough
proportionality in accordance with the
requirements created by the Supreme Court.
It did not apply such a methodology in its
earlier cases because the existence of rough
proportionality was not an issue.
SDR 91-0017 "The Tigard Pedestrian/Bicycle Pathway Plan The City required dedication of right-of-way
requires a pathway along Hall Boulevard and along Hall and Burnham streets. The City
Burnham Street at this location. However,the found that no justification existed to exact
City does not require both a pedestrian/bicycle additional water quantity facilities bezause
pathway and a frontage street sidewalk as was existing storm drains were adequate to
required of the Dolans. In addition,no traffic handle ranofffrom the property. The City
impact costs were assessed to this development in required the dedication of right of way as
excess of the required TIF fees." adequate mitigation of traffic impacts,just as
in this case it required dedication of the
pathway as mitigation for traffic impacts.
Here,Applicant was not required to dedicate
right of way. The conditions require only
that they repair damaged sidewalks and
curbs.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-f
Case Applicants Allegation Response
SDR 91-0019 "The City approved an expansion of an existing The City did require a dedication and
commercial office building that would generate construction of a sidewalk. The City delayed
additional traffic. The City only required the requirement of construction of the the
construction of a sidewalk along the frontage of sidewalk to allow that work to be coordinated
Nie property for pedestriantbicycle traffic impacts. with similar construction required of
In fact,the City allowed the landowner to delay neighboring developments. The City did not
constructing any portion of the sidewalk until it place such a requirement on Applicant.
was ready to develop the remainder of its Instead,it required dedication of the path. It
property. In addition,no traffic impact costs were is worth noting that the City is not requiring
assessed to SDR 91-0019 in excess of the Applicant to build the pathway. Although
required TIF fees." different mitigation methods were required in
the cases,the purpose of each dedication was
to mitigate for traffic impacts.
Applicant's argument concerning imposition
of a fee in excess of the WTIF fcc is a red
herring. Here,the City is not attempting to
impose such a fee on Applicant. Instead,it is
using the WTIF methodology to decide rough
proportionality in accordance with the
requirements created by the Supremc Court.
It did not apply such a methodology in its
earlier cases bxausc the existence of rough
proportionality was not an issue.
EXHIBIT A(REVISED)TO FINAL ORDER
Page-g
Case Applfcaar'.s Allegation Response
SDR 91-0020 "The City approved this expansion of a The City had good reasons for not requiring
cotnme.cial building that involved an additional transportation dedications in SDR 91-0020.
67,000 square flet in building size. Additional At the time of the expansion considered in
traffic would be generated from this increased the application,the City had already
size. the City noted that the applicant was a identified a need for street and transportation
participant in a public facilities study for the area improvements in the area. A-s found in t"e
and therefore did not require any additional decision,those improvements were needed
transportation-related conditions of approval. No regardless of any increase in traffic that
condition of approval was imposed to require the approval of the application would cause.
applicant to participate in any public facilities, Furthermore,the City found that no
including transportation facilities,that would be improvements proportional to the impacts of
deemed necessary by the identified study. In the the expansion were possible. Therefore,
addition,no traffic impact costs were assessed to the City found that it did not have any basis
this development in excess of the required TIF justifiying the imposition of transportation
fees." exactions on the facts of the specific case. It
also noted that the applicant was committed
to assiting with traffic improvements in the
future.
Applicant's argument concerning imposition
of a fee in excess of the WTIF fee is a red
herring. Here,the City is not attempting to
impose such a fee on Applicant. Instead,it is
using the WTIF methodology to decide rough
proportionality in accordance with the
requirements created by the Supreme Court.
It did not apply such a methodology in its
earlier cases because the existence of rough
proportionality was not an issue.
C:\GFH\DOLAN\FINDINGS\FINDNlAST.WPD
EXHIMIT A(REVISED)TO FINAL ORDER
Page-h