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City Council Packet - 08/29/1995 a .4yrt ' F. i :•yiu ~}FR HS'~f•:ti [l•:~i CITY OF TIGARD fv'~Y :}f,Y iN.:>OFu} T+.'ti: [ •'l'•• 4+! ` Yi{ i'~1<C<V''ifi^}:~ry:•1:i:L~:O:~} .}4 •}}+;;Y. ~.''.`F. L.4Fyfr:li~: 'u f:. ti ~ •L'~i1v: ~ryF Y }}d ~F~Q,v^`: F.: [`du.:.:•}:Lh }ti;} :M/i:in r+Y u.}v^~" ~ ~^.H K+'{~:$.; `~~~}i~ v:•.Lti^:<. r.+;.~} } } 1u}` sf::L2• Y>j 'N• F ' ri r~>.,+J~' +f.+}'.. Ar~:~~;r •:4Y'+' ~i}'`:'.i+~Vn ~[n[' • r<:[. ~}%F, .if:, ~}i. ~L•':uiN+~L4LYF'id7 Y? J.:Xi.:y::{:;ii::}`,nr:.t.f : r~i;~ 'Fi^~`i~f'/.ib?;},r '•nS#.'+.}:~:v ~>,"',~C. t'i:r:r s:.:: •<..{•s'[,:'>,:,•; :'f`'4. .'~.G%:'• dn:3..,~ y.~... ^y:.S:F..•ihr+$:`:•Y/.<1r{.~::i: : Vii}: ii :}"l lN, }~iq; :~~7;f[~yE}:'' x:'•S'Y:;',•#~<?!~.>y>' fi~;i;x%s:~'i`uif„'~.<':oio'.'c'•~~i;+~'~1 ~~"rF[•`>:#h~~'.' PUBLIC NOTICE: Anyone wishing to speak on an agenda item should sign on the appropriate sign-up sheet(s). If no sheet is available, ask to be recognized by the Mayor at the beginning of that agenda item. Visitor°s Agenda items are asked to be two minutes or less. Longer matters can be set for a future Agenda by contacting either the Mayor or the City Administrator. Times noted are estimated: it is recommended that persons interested in testifying be present by 7:15 p.m. to sign in on the testimony sign-in sheet. Business agggda items can be heard in any order after 7:30 ®.m. Assistive Listening Devices are available for persons with impaired hearing and should be scheduled for Council meetings by noon on the Monday prior to the Council meeting. Please call 639-4171, Ext. 309 (voice) or 684-2772 (TDD - Telecommunications Devices for the Deaf). Upon request, the City will also endeavor to arrange for the following services: ® Qualified sign language interpreters for persons with speech or hearing impairments; and Qualifiled bilingual interpreters. Since these services must be scheduled with outside service providers, it is important to allow as much lead time as possible. Please notify the City of your need by 5:00 p.m. on the Thursday preceding the meeting date at the same phone numbers as listed above: 639- 4171, x3®9 (voice) or 684-2772 (TDD - Telecommunications Devices for the Deaf). h SEE ATTACHED AGENDA f~ ROOM A TIGJA" CITY COUNCIL ME G AUGUST 29, 1995 - 6:30 PM AGENDA 6:30 p.m. ® STUDY ME G > Executive Session: The Tigard City Council may so Into Executive Session under the provisions of CARS 192.660 (1) (d), (e), ex (h) to discuss labor relations, real property transactions, current and pending litigation issues. > Agenda Review 7:30 p.m. 1. BUS MESS MEETING 1.1 Call to Order - City Council IBC Local Contract Review Board 1.2 Roll Call 1.3 Pledge of Allegiance 1.4 Council Communications/Liaison Reports 1.5 Call to Council and Staff for Non-Agenda Items 7:35 p.m. 2. VISITOR'S AGENDA (Two Minutes or less, Please) 7:45 p.m. 3. CONSENT AGENDA: These items are considered to be routine and may be enacted in one motion without separate discussion. Anyone may request that are item be removed by motion for discussion and separate action. Motion to: 3.1 Approve City Council Minutes: June 27, July 11, 18, 25, 1995- 3.2 Ratify the Purchase of the Tavern Property at Main and Burnham Streets for $1®5,®®® 3.3 Grant Perma-rent Easement to the State; of Oregon, Department of Transportation, at 8777 S. W. Burnham Street 3.4 Local Contract Review Board: a. Purchase Infrastructure Management Software from Hansen Information Technologies b. Reject all Bids for the Contract for Construction of the Terrace Trails Pathway Project C. Award Contract for Construction of the Shady Lane Storm Drainage Capital Improvement Project to Miller ex Sons, Inc. ® Consent Atenda Items Re ed for Separate Discussion: Any items be removed from the Consent Agenda for seymate discussion will be considered immediately after the Council bw voted on those items which do not need discog-Agn. 7:50 P.M. 4. UPDATE COUNCIL ON THE STATUS OF E PURC E OF E BURLINGTON HORTHEIZU69 PROPERTY e City Administrator COUNCIL AGENDA - AUGUST 29, 1995 - PAGE 2 x i 8:00 P.M. 5. DISCUSS REQUEST TO TRANSFER JU SDI ON OF DURHAM ROAD e City Administrator 8:15 P.M. 6. CO TIOIN OF PUBLIC HEARING FROM JULY 18, 1995 (QUASI- JUDICIAL) - SITE DEVELOPMENT (SDR) 91 S/V CE (VAR) 91 -0010 DOLANJMENDEZ ► To Consider the U.S. Supreme Court remand of conditions related to the dedication of property for floodplain management and a bikepath relating to the determination of the rough proportionality of those requirements. LOCATION: 12520 SW Main Street (WCTM 2S I 2AC, tats lot 700). APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.32, 18.66, 18.84, 18.86, 18.1®®, 18.102, 18.106, 18.108, 18.114, 18.120, 18.134 and 18.164; the Parks Master Plan for Fanno Creels, and the City of Tigard Master Drainage Plan. ZONE: CBD (Central Business District). The Central Business District zone allows public administrative agencies, cultural exhibits and library services, parking facilities, public safety services, religious assemblies, and a variety of commercial and service activities, among other uses. Irnmes are estimated. a. Continue Public Dearing 8:15 P.M. b. Staff Report: Recap of procedure to date. 8:25 p.m. C. Staff Recommendation 8:35 p.m. d. Council Questions on Rebuttal Information Received 9:00 P.M. e. Close Public Hearing 9:35 p.m. f. Council Comments g. Council Consideration: Motion to approve/disapprove application. 1®:3® p.m. 7. MON-AGENDA ITEMS 1®:45 p.m. 8. OCECUTIVE SESSION: The Tigard City Council will go into Executive Session under the provisions of ORS 192.660 (1) (d), (e), ex (h) to discuss labor relations, real property transactions, current and pending litigation issues. As you are aware, all discussions within this session are confidential; therefore nothing from this meeting may be disclosed by those present. Representatives of the news media are allowed to attend this session, but must not disclose any information discussed during this session. 11 P.M. 9. AD30UPANEW caa(1t~29'.95 ' COUNCIL AGENDA - AUGUST 29, 1995 - PAGE 3 Jill, Eil Council Agenda Item ' TIGARD CITY COUNCIL MEETING MINUTES - AUGUST 29, 1995 0 Meeting was called to order at 6:33 p.m.' by Mayor Jinn Nicoll 1. ROLL CALL Council Present: Mayor Jim Nicoll; Councilors Wendi Conover Hawley, Paul Hunt, Bob Rohif, and Ken Scheckla. Staff present: Bill Monahan, City Administrator; Jim Ilendryx, Community Development Director; Liz Newton, Assistant to the City Administrator; Jim Coleman, City Attorney; Pam Beery, City Attorney; and Tim Pamis, Legal Counsel. STUDY SESSION ® City Engineer Wooley distributed map on water quality system locations. 0 Executive Session: The Tigard City Council went into Executive Session at 6:34 p.m. under the provisions of ORS 192.660 (1) (d), (e), & (h) to discuss labor relations, real property transactions, current and pending litigation issues. Executive Session adjourned at 7:15 p.m. Business Meeting called to order at 7:30 p.m. BUSINESS MEETING Council Communications/Laaison Reports - None ® Call to Council and Staff for Non-Agenda Items Jmi Hendryx, Community Development Director, asked to pull Item 5, the request to transfer jurisdiction of Durham Road for a future meeting. 2. VISITOR'S AGENDA Jack Polans, 16NO Victoria Place, reviewed a series of communications he received from various groups, both government and non-government, and newspaper articles he found regarding drinking water quality in Tigard. ~;,b Bledsoe, 800 S"W WWnnt, representing the Nest and Central CITs, mentioned their concerns abut the exchange UrbaiA Area Planning amendment and the legislative amendment to the Comprehensive Plan. He pointed out that the ivg.slatnve waaceuucut process eessU tv ue iaHegcaa aaarc %gca LU tHa2 pi- PUI'llM-ic than was now, and that currently only the Council or the Planning Commission could initiate changes to the Comprehensive Plan without paying a fee. He mentioned that the NP®s used to be able to but with the elimination of those groups, citizens had no way to make such a request without paying the fee. He asked that the Council 's; ,x waive the fee for the Comprehensive Plan change that his groups were asking to be considered so that the request could move forward to hearings at the Planning Commission and Council. He also requested the Council to ask Washington County to modify the Urban Planning Area agreement. Bill Monahan, City A tor, stated that he has read the request from Mr. Bledsoe and the two CITs and the language they proposed for the Comprehensive Plan. He said that Council had the option of initiating the request at no fee or charging those making a request the fee. He concurred that in taking the NP®s out of the citizen participation process, the City did eliminate the opportunity to make a request without a fee and stated that for different reasons they had not given that authority to the CITs. Mr. Hendryx stated that the meeting scheduled this morning between Mr. Bledsoe, himself and Ray Valone to discuss these issues did not occur. He agreed that waiving the fee and the application date was within the Council's purview. He said that he did not know at this time what the impact of such a waiver would be on current projects but that he thought that staff would deal with it in a timely fashion whatever Council's decision. Councilor Scheckla asked if granting the waiver would set a precedent. Pam Beery, City Attorney, stated that she did not think it would set a precedent because Council considered each request individually on its own merits. Councilor Scheckla asked if there was documentation on this request. Ms. Beery said that staff had not be able to provide their usual documentation because they did not get to meet with Mr. Bledsoe prior to the Council meeting. Councilor Hunt asked if the NP®s had had to request a fee waiver or if the fee was automatically waived.. Ms. Newton said that NP®s had had to request fee waivers from the Council. Councilor Hunt wondered if that prerogative was something Council should consider giving to the CITs. Councilor Rohlf expressed concern at giving that kind of power to the CITs, since he knew that the results could be achieved by "stacking enough bodies in there." Mr. I•Iendryx said that the NPOs had been a defined group of appointed people with experience and knowledge of the process. Mayor Nicoli stated that he didn't have a problem with CITs conning to Council on a per issue basis or with waiving the fee, if the process became abusive, Council could say no. Councilor Lunt suggested waiting until they could get staff's input. Councilor Rohlf commented that this was one more situation in which the folks in the area outside of Tigard "got to ride on Tigard's coattails" without paying their way but that this type of provision might make it easier for them to accept annexation. He said tthat was why he felt split on the issue. He stated that his CITY COUNCIL MEETING MINUTES - AUGUST 29, 1995 - PAGE 2 s evT;; concern was that the Council was making it easier to use the city's procedures without having to buy into being a resident of the city. Mayor Nicoli said that he was not prepared to take a stand on the issue though he could ;issue a waiver or wait for a staff report. Ms. Newton stated that, having attended most of the meetings Mr. Bledsoe attended, she thought the CITs were in support of Council considering the proposal, though not necessarily in total unanimity with the issue of the Comprehensive flan amendment and an amendment to the Urban Planning Area agreement. Mr. Hendryx said that he could return to Council with a written evaluation but that the decision to waive the fee was a Council decision. He said that he would tend to follow the guidelines of maintaining an annual review of the Comprehensive Plan amendment to retain more control over the broader scope of what was happening in the City and its future direction; many different jurisdictions had slimilar standards and he would include a comparison in his report. Mayor Nicoli reviewed the issues involved as a waiver of the standard fee, the request to consider the Comprehensive Plan amendment, and the request to consider forwarding the Urban Area Planning Agreement amendment. He said staff could submit a report so that Council didn't have to make a decision that it did not understand. Mayor Nicoli stated that they would ask for a staff report and put the issue on a future agenda. Mr. Hendryx suggested scheduling it for September 12 and scheduling a meeting between staff and Mr. Bledsoe next week. 3. CONSENT AGENDA 3.1 Approve Council Minutes: June 27, July 11, 15, 25, 1995 3.2 Ratify the Purchase of the Tavern Property at Main and Burnham Streets for $105,000 3.3 Grant Permanent Easement to the State of Oregon, Department of Transportation, at 5777 S.W. Burnham Street 3.4 Local Contract Review Board: a. Purchase Infrastructure Management Software from Hansen Information 'T'echnologies b, Reject all Bids for the Contract for Construction of the Terrace Trails Pathway Project C. Award Contract for Construction of the Shady Lane Storm Drainage Capital Improvement Project to Miller & Sons Inc. Motion by Councilor Hunt, seconded by Councilor Scheckla, to approve the Consent Agenda. L. Motion was approved by unanimous vote of Council present. (Mayor Nicola and Councilors Hunt, Hawley, Itohlf, and Scheckla voted "yes.") j CITY COUNCIL MEETING MINUTES - AUGUST 29, 1995 - PAGE 3 4 linisiliplig 4. UPDATE COUNCIL ON THE STATUS OF THE PURCHASE OF THE BURLINGTON NORTHERN pRopERTy Mr. Hendryx asked for formal direction from Council to staff to proceed with the proposed joint City and Chamber offer to Burlington Northern. Motion by Councilor Hunt, seconded by Councilor Rohlf, to authorize the City Administrator to proceed with the offer of purchase of the Burlington Northern Property, as discussed at the Executive Session, and with the agreement between the City and the Chamber. Motion was approved by unanimous vote of Council present. (Mayor Nicoli and Councilors Hunt, Hawley, Rohif, and Scheckla voted "yes.") 5. DISCUSS REQUEST TO TRANSFER JURISDICTION OF DURH" ROAD This item was pulled from the agenda to a date uncertain. 6. C® AT10N OF PUIILIC HEARIKG FROM JULY 18, 1995 (QUASI- JUDICIAL) - SITE DEVEL® ' REVIEW (SDR) 914)005/VARIANCE (VAR) 91-NIO D LAN EZ To consider the U.S. Supreme Court remand of conditions related to the dedication of property for floodplain management and a bike path relating to the determination of the rough proportionality of those requirements. LOCATION: 12520 SW Main Street (WCTM 251 2AC, tax lot 700). APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.32, 18.66, 18.84, 18.86, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.134 and 18.164; the Parks Master Plan for Fanno Creek, and the City of Tigard Master Drainage Plan. The Tone is CBD (Central Business District). The Central Business District zone allows public administrative agencies, cultural exhibits and library services, parking facilities, public safety services, religious assemblies, and a variety of commercial and service activities, among other uses. Mayor Nicola reviewed the circumstances under which new information and rebuttal had been allowed since July 18. He said that tonight was only for Council members to ask questions of staff and the applicant regarding that new information, and that no new evidence would be accepted into the record. Ms. Beery reviewed the evidence question surrounding Mr. Ramis' request to strike two exhibits from Mr. Shonkwiler's August 16 memorandum. She said that after reviewing the exchange of comments on the exhibits, staff recommended admitting those two exhibits into the record along with the rest of Mr. Shonkwiler's August 16 memorandum. The Council had no objections and the exhibits were accepted into the record. U-- R-11s, Le,-al Cnm1nwe1, stated that staff recommended granting the application subject to a condition requiring mitigation of the runoff and transportation impacts of the proposed development. He said that with respect to runoff, staff suggested dedication of an easement over the floodplain area to permit public access for the purpose of maintaining and improving the channel; with respect to traffic, staff CITE' CRUNCH, MEETING MINUTES - AUGUST 29, 1995 - PAGE 4 suggested requiring dedication of an easement for a bike path in the original location that the original condition had required. He said that staff also recommended that any action taken by Council tonight be tentative and that Council direct staff to return with a final set of findings for their consideration for adoption. Councilor Schee- la asked for des-11111me"t-4ion P-0-!kerning- the term "easement." Mr. Ramis explained that the language in the record specified the "dedication of an easement" that would define the rights of the public to come in and maintain the floodplain. Councilor Scheckla asked if there would be more than one easement obtained. Mr. Ramis said that there would be two separate easements, one to allow access to the floodplain for purposes of maintenance of the channel and improvement of it, and a second over the area beyond the floodplain to allow the public to come in and construct a bike path. Councilor Scheckla asked if one party dad the projects associated with both easements. Mr. Ramis explained that the easement for the floodplain would allow the City to come in and make the improvements while the easement for the bike path would allow the City to come in, build, and maintain a bike path and allow members of the public to use that bike path. Councilor Rohlf asked how the current conditions were changed from the conditions reviewed by the Supreme Court. Mr. Ramis explained that the change was, in general terms, to focus the easements on precisely the needs that the City had. He said that the idea was to tailor them specifically to the justification that the City had for the easements. In the case of the floodplain, the language should be tailored to make sure that the City's right was to come in and access it for the purposes of maintenance and improvement, not for some other recreational purpose. Councilor Rohlf asked if that meant that the Supreme Court found an essential nexus between the broader condition that they earlier had been trying to exact and the impact, and, if that was the case, the essential nexus then became more firm by narrowing the dedication requirement. Mr. Ramis concurred. Councilor R.ohlf stated that the Council had not done anything to upset the essential nexus and the analysis the Court went through, such that they would have to review. Mr. Ramis concurred. Councilor Rohlf asked for an account of the process which an applicant went through to get a building permit from the City, and how the Council ended up with these two narrow conditions instead of the stream of conditions that went on the application originally. Mr. Ramis explained that anyone wanting to build a building like this one had to go through a site design review process. If it was a major improvement (like this one was), then the applicant had to demonstrate that the City's infrastructure had sufficient rcapacity to serve the project. He said that the applicant had to demonstrate both what the projected runoff and the additional traffic impacts would be from the project. He stated that staff, the Planning Commission and the Council CITY COUNCIL MEETING MINUTES - AUGUST 29, 1995 - PAGE 5 V then fashioned conditions to mitigate the impact of the project based upon the unique characteristics of the property. Councilor Rohlf asked what the conditions were that had been imposed in 1990/91. Mr. Ramis said that the record showed that Main Street had been in bad repair at the time but that staff had rejected imposing a condition for a half street improvement because they did not think a piecemeal approach to that problem was the best solution. So staff looked at other options to mitigate the traffic impact and settled on improving pedestrian and bike access by requiring dedication of an easement. Councilor Rohlf asked how staff analyzed the traffic impacts of proposed developments. Mr. Ramis stated that it was typically done based upon a traffic study, which the applicant did not do in 1991. He said that the record dad not show why the applicant dad not complete a traffic study at that time. Councilor Rohlf asked if there had been any negotiations between staff and the applicant to reach a solution. Mr. Ramis reviewed the record. He said that at the Planning Commission hearing the applicant had objected to the original condition that he was to dedicate land for the bike path and build it. The Planning Commission continued the hearing and directed staff to negotiate with the applicant: since they were outside of the hearing process, none of those conversations were in the record but staff returned to the Planning Commission recommending that the applicant be required only to dedicate the land, and that the City at its own expense would build the path. The staff also recommended that the improvements put in by the City be counted against the landscaping and open space requirements to lessen the impact of the condition on the property. Mayor Nicoli asked if staff still recommended allowing the applicant to count the dedication of the floodplain easement as part of meeting the open space and landscaping requirements, thus not taking away additional building space. Mr. Ramis said yes. Mayor Nicoli asked how staff proposed to that, and if it would carry with the property. Mr. Ramis said that it was a condition with the property and ran with the land. He said that there was nothing that they would put on record at Washington County because of the difficulties in later amendments but that it would be on record in the City files. Ms. Beery pointed out that the easement itself would be recorded because it was a property interest, and that if the information was documented as part of the Council's adopted findings, it would be easily retrievable in the City files.. Councilor Rohlf asked for a review of the arguments that the City was looking at the Dolan development using the worse possible use of the zone with respect to the impact as opposed to the actual use of the zone. Mr. Ramis stated that the recommendation of the City was usually somewhere between an applicant coming in with an analysis that stated that this was a particular type of store that generated only a certain level of traffic and the City making someone examine every worst case scenario anywhere in the zoning code for CITY COUNCIL MEETING MINUTES - AUGUST 29, 1995 - PAGE 6 f G: _ . OHIO E that district. He said that this time staff did something different; they asked what the specific use in the zoning code was that the applicant wanted approval for, not what the whole range of uses in the zoning code were. He said that staff did a traffic analysis specifically on the uses to be included. He stated that he did not think the dispute over whether the project would generate 200 trips per day or 400 trips was relevant since the applicant's expert has admitted on record that the project would generate more than 200 trips per day and that was a sufficient dollar impact on the City to warrant the condition. Councilor Rohlf asked about the allegations that staff was treating this application differently than others. Mr. Ramis stated that he did not think that was borne out by the record, citing the chart staff submitted reviewing all the cases cited that demonstrated that the City had always required an examination of the storm system and street system capacities and placed conditions on properties to mitigate impact. Councilor Rohlf asked if there was anything in the record to show what the Dolans were willing to contribute. He said he was unclear on what the Dolans thought was fair for them to pay. Mr. Ramis said that the Dolans have made a proposal that stated if the Council granted them their proposal, they would not sue the City at LUBA. He said that, as he saw it, they admitted a certain level of impact and then presented a series of legal arguments saying that the City's hands were tied and that the City could not condition them but that if the Council would condition in the minimal way that they suggested, they would agree not to take it to LUBA. Councilor Rohlf asked about the procedures of the hearing. Ms. Beery confirmed Mayor Nicoli's explanation that once the hearing was closed, Council would not be able to ask any more questions of the staff or the applicant's people. Councilor Rohlf asked Mr. Shonkwiler to trace, from the applicant's point of view, how the situation got to this point from the original application. John Shonkwiler, attorney for the Dolans, stated that at the prior hearing the direction taken by the City was unacceptable to the applicant; they found the conditions imposed by the City not acceptable based upon the City's justification for those conditions. Councilor Rohlf asked if there had ever been any negotiating room with the conditions during the discussions. Mr. Shonkwiler said that there has never been an agreemeW between the City and the applicant as to what was fair common ground nor any settlement made. Councilor Rohlf asked what Mr. Shonkwiler thought was fair, since the applicant _ has admitted that there was an impact to the City of having a larger store in the downtown area. Mr. Shar» ureter state that the applicant has co Mended all alnna that tl?- documentation on which the City was basing its calculations and the analysis of the site application were flawed. He said that he thought the City was taking a philosophical point of view from the Legal Counsel of interpreting the word "rough" `in "rough proportionality" in a broad direction for the scope of the public interest. CITY COUNCIL MEETING MINUTES - AUGUST 29, 1995 - PAGE 7 MENEM 1110111 imam= I! Mills _ k He said that the applicants thought the interpretation needed to be more site specific than that. Mr. Shonkwiler'said that he thought what he had proposed was fair and would incorporate a benefit to both the City and the Dolans. He contended that it was an cernrpr~rtu ity for the City to cut its exposure substantially by terminating the claim of permanent takings (out of pocket expenses for the Dolans) through a resolution that the applicant would find acceptable at this stage. He said that if the Councilor was referring to an exact dollar amount for the traffic and storm water runoff impacts, he thought that the documents in the record spoke for themselves. He stated that they have identified how the City would be applying the TIF fee if the City were treating them like any other applicant, which they felt would be fair. Mr. Shonkwiler asked if he was allowed to rebut those issues raised by Mr. Ramis in his answers that went beyond the scope of the question asked or if he could only answer the question asked. Councilor Rohlf said he was trying to ask Mr. Shonkwiler the same questions he asked Mr. Ramis in order to give him that opportunity. Ms. Beery stated that Mr. Shonkwiler had a legal right to rebut any new evidence that came in as a result of the questioning; however she had not heard any new evidence come in. She said if Mr. Shonkwiler disagreed with that, they needed to know that. Mr. Shonkwiler stated that he felt he should have the right of rebuttal. Ms. Beery said that she did not disagree with that. Mr. Shonkwiler said that he would wait until Council questions were completed. Councilor Rohlf said that he understood Mr. Shonkwiler to have said that their traffic study dictated what they thought was fair for the traffic and stormwater impacts. Mr. Shonkwiler stated that the study they submitted on the stormwater impact identified what he thought was the actual impact coming from the property. He said there was a difference of opinion in what the City was asking for in exchange for that impact; the City was asking for something that was more than double the impact, and he did not call that "rough proportionality." He said that Mr. Ramis interpreted it differently but that he thought that interpretation contravened the Supreme Court decision and was not a proper legal interpretation. Councilor Rohlf asked how Mr. Shonkwiler thought the test of rough proportionality should be applied; would it be on the basis of dollars or quality of life issues or what? Mr. Shonkwiler stated that he thought the traffic impact could be addressed as they have proposed it. He said that with regards to the stormwater impacts, the City should follow the method of allocation for the projected cost that was in the storm d8a zaRa4gc Pastaa cant eetasy, iazdnaen e.aaaae gvsi% All CniE9 d1C°s'C' 4llHa Gi:llf/lf. Councilor Rohlf mentioned the City's response as shown in the record. Mr. Shonkwiler stated that the City's response had been that staff didn't feel there was a limitation in either the Comprehensive Plan or the ordinances that prevented them CITY COUNCIL MEETING MINUTES - AUGUST 29, 1995 PAGE 8 from taking a different approach than the CHZM Hill report methodology. He said that there was no evidence in the record to support that position, only a statement that the City should be open to taking a new direction. Councilor Rohlf commented that both the approach of Mr. Ramis and the approach of Mr. Shonkwiler translated into a dollar and cents type of analysis. Mayor Nicoli asked Mr. Shonkwiler if it was clear to him and his client that the City was no longer asking for the use of the property as a parkway. Mr. Shonkwiler said that he was not clear at all on that. He asked for clarification of the public access issue and how it was defined. He asked if the easement proposed by the staff was for full public access to the pathway on a 24 hour basis. Mayor Nicoli stated that he understood that the City had originally asked for a "parkway with a pathway through it" under full City ownership, and that now the City was asking for pedestrian bicycle pathway along the creek for general use by the citizens of the City. Mr. Shonkwiler asked if there were any limitations on the use of the pathway other than as a pedestrian bicycle path. Mayor Nicoli said that staff has recommended that the applicants, at their discretion, be allowed to put fences or other devices along either side of the pathway to restrict the access of the public to any other area. Mr. Itamis stated that, based on the record, he understood that the City never asked for a park, though it was accused of that in litigation. He said that the City had always purposed to ask for a right of way to allow transportation. He explained that staff could have interpreted the zoning district to allow a broader use than simply maintenance of the flood plain, and that the City was being very clear in the proposed conditions that it was not seeking recreational access to the floodplain. Mr. IBamis reiterated that access to the floodplain was solely for the purposes of flood and drainage control repairs and improvements, and that the easement for the path was solely to construct and maintain a bike and pedestrian path and to use it as necessary for activities allowed in the drainage area. He said that they proposed allowing the Dolans to fence the path in order to make that doubly clear and to protect their ability to exclude the public from other areas. Mayor Nicoli asked Mr. Shonkwiler if that was clear. Mr. Shonkwiler said that he was still confused and reviewed what he understood Mr. Ramis to be saying. He said that this was a complete public access pedestrian bicycle pathway which the Dohms could fence both sides of, and that the intention of the condition by the City was not to allow public access to the greenway or floodplain area but that the City nvn4n`d an Qdditi-I n,wanment for the Si. odplain area that weuvld be limited to Yt L3'11i.lr{A iilL ILYb........ YY.J.rbbl rbLC A%y tax bb,{t¢l6/jJ taiaa access only by the City for maintenance. rr CITE' COUNCEL MEETING MINUTES - AUGUST 29, 1995 -PAGE 9 { jqw I M1 Mayor Nicoli said that was his general understanding. Mr. Rands stated that that has always been the ~,voitiolt of the City ba_ssed upon the written conditions proposed. Mr. Shonkwiler said that there were two functions going on: the requirement of a pathway next to the greenway and floodplain, and an easement for the entire floodplain area. He asked if they were talking about a narrow pathway within the floodplain area for maintenance purposes. Ms. Beery stated that she agreed with Mr. Rands' statement. She clarified Mr. Shonkwiler's use of the term "greenway". She stated that the proposed bike path was not located next to the "greenway" but in the "greenway" as defined in the Tigard Cade; there was a greenway and a floodplain and the bike path was in the greenway. She confirmed that the City would permit only linear transportation along the creek. Mayor Nicoli asked if the City allowed other activities in greenways outside of linear transportation. Mr. Rands stated that the language of the condition limited the scope of use in this land use process because the Supreme Court said that the conditions had to be limited to the purposes for which the City was seeking the dedication of the easement. Mr. Shonkwiler asked for clarification on terminology. He asked if the easement for the floodplain was for the entire property within the floodplain or for a designed pathway leading to the creek for maintenance purposes. Mayor Nicoli reiterated that the City was asking for two separate easements, one to allow access for crews to maintain the Fanno Creek stream way and one for a linear walkway bicycle path along the edge of the creek. Mr. Rands said the easement was the area shown on the exhibit. Mayor Nicoli said that he understood there were three actions by the City: the dedication of the property in the floodway from the edge of the bank down to the bottom of the creek, and then the two separate easements. Ms. Beery and Mr. Rands clarified that the City was only asking for two easements to be dedicated. Mayor Nicoli asked for a definition of an easement dedicated to a particular use. Mr. Rands explained that the easements were dedicated to the City as a condition of development, one for floodplain maintenance and one for bike path construction. He clarified that the City was not nor ever had asked for ownership of the stream bed itself. Mayor Nicoli commented that Mr. Rands and Mr. Shonkwiler had two different opinions on what the Supreme Court meant by "rough proportionality." He said he understood what Mr. Rands' definition was and asked Mr. Shonkwiler to share his definition from a dollar and cents format or from a non dollars and cents format fLa L6W11 as gllaaYY.,' YMA uaa. or o..➢aaaaaaaxn .y OR.N3aa Mr. Shonkwiler commented on the takings issue. He said that if the City took property and it went beyond something that was related to the direct impacts from the property, he understood that to be a taking. He said that was the basic issue CITY COUNCIL MEETING MINUTES - AUGUST-29,1995 - PAGE 10 w iff"I U1119 i~KE OWN s. here, the staff was asking the Dolans to pay a certain share based upon staff's studies based upon a broad series of defined public interest needs, and that the Dolans held that the their share should be more specific to the actual impacts of their property. Mayor Nice!i. asked if Mr. Shonkwiler's use of "taking" included an easement. Mr. Shonkwiler, said that an easement could be a taking. Mayor Nicoli asked Mr. Ramis if he agreed. Mr. Ramis said yes, an easement could be a taking. Mayor Nicoli asked Mr. Shonkwiler what his definition of "rough" was in "rough proportionality." Mr. Shonkwiler said that the standard lawyer and court answer was "we look at these things on a case by case basis." He stated that he was not aware of any constitutional provision that said this exact percentage was "rough" or met "closeness." He said that he thought asking for a dedication that was twice as much as the impacts generated by the site went beyond "rough proportionality." He pointed out that there weren't many cases yet defining the term and recommended that the Council "play it more safe than sorry." Councilor Hawley asked for Mr. Rands' definition of "rough." Mr. Rands said that Chief Justice Renquist's opinion specifically rejected the concept that "rough" included mathematical precision. He said that, in this case, they didn't have to reach a definition of "rough" because the facts did not warrant it. He said that the applicant's own experts showed that there wasn't a doubling of the City's requirement of dedication over the impact to the Dolans. He cited the Dolans' traffic engineer's calculations that the traffic impact was $14,811.76; the comparable impacts to the property owner through the dedication were $4100. He reiterated that they dad not have that type of problem in this case. Councilor Scheckla asked Mr. Rands how the City has previously addressed the access issue with other businesses in the city on greenways and floodplains. Mr. Rands said that, based on the record, the City examined each situation on a case by case basis to determine the capacity and made an individual judgement in each case about what was necessary and what was a fair contribution by the property. He said that there was no mathematical formula applicable to every case. Councilor Scheckla asked Mr. ShonlKwiler if he agreed. Mr. Shonkwiler said that his review of past approvals indicated that the City was taking a brand new direction with the Dolans, and that they treated properties adjacent to floodplains differently than they treated other properties in the city. He submitted that the record clearly showed that the degree of requirement in this special category they were creating for the Dolan property was different from the degree of impact they imposed on others. He said that it was not a question of the City addressing traffic and storm drainage improvements with each a~s~ul'a aait; ii a ynawc:^v;: --.f burden was placed on the applicant during the approval process. He contended that the justification the City used for the Dolan application was a burden for which they had no factual basis for imposing. s; CITY COUNCIL MEETING MINUTES - AUGUST 29, 1995 - PAGE 11 r~ W ?t Mr. Ramis said that a more detailed and different analysis in this case should be expected because they now had the guidance of the Supreme Court as to how they were supposed to do it. He said this was the first time they'were examining a case 17 based upon a specific standard from the Court and a specific direction as to who bore the burden and what sort of evidences were required. Councilor Rohlf commented that he was hearing on one hand that they needed to give individualized attention to the property, and on the other hand that they were treating it differently than other properties. He said he thought that there would be a common treatment for properties along a floodplain and bike path, noting that unique properties gave rise to unique considerations. Mr. Shonkwiler stated that when the City approved other projects that did not involve essential pathways they did not make the same kind of requirements that they were of the Dolans. He said that they had no documentation in their general a ordinances for the type of requirement they were placing on the Dolans. He reiterated that the properties along a floodplain were not treated the same as properties not along a floodplain. The properties not near a designated pathway or floodplain did not have this degree of dedication requirement placed upon them. Councilor Rohlf pointed out that those properties that were next to those kind of physical attributes gave rise to unique considerations that gave rise to unique conditions. Mr. Shonkwiler asked Councilor Itohlf, based on his line of rezsoning, what the difference was in storm water runoff between a one acre parcel immediately next to a flood plain and a one acre parcel that was 200 or 300 feet in elevation above the floodplain. He asked why should one have to give up property and the other one not give up property or be required to make a substantial fee equivalent. Mayor Nicoli pointed out that in this application, the City's normal practice of requiring a half street improvement was waived, and that the applicants had not objected; yet now that the City's requirement was not being waived, they objected. Mr. Shonkwiler argued that the record did not document that the street was in such bad condition that there was any value in waiving the requirement. He said that he thought what had happened was that a series of questions were passed to Mr. Ramis who answered them in such a fashion that he gave out creating a new issue as if it were evidence. He stated that that was an interpretation of the evidence that was not fair. He said that he would like the opportunity to respond from an evidentiary standpoint. Mayor Nicoli mentioned the letter received from Mr. MacMonagle stating that there was previous fill on this site, prior to, when the Dolans bought it, that has resulted in a narrow channel. He said that he saw that as a unique characteristic of this ar*t cular pzopeft t Kilt was rvt t°Jt =l of vige-a iv ar vnw a~.`~'~wd:it .¢v a~~avvu"iaiuoy ,Y p p sw Y p Y Y and was of concern to Council. Mr. Shonkwiler cited his response in the record to that report in which he pointed out that the letter did not document any evidence of fill in the floodplain; it simply CITY COUNCIL MEETING MEi+~JTES - AUGUST 29, 1995 - PAGE 12 identified from an aerial photograph, some type of activity that Mr. MacMonagle speculated to be fill on the property. He also said that he could not tell from the natural characteristics of the site that there was any indication that the flood plain had been filled at all, pointing out that the floodway channel was far narrower on the west side than on the east side where the Dolans' property was. Mayor Nicoli mentioned the existence of a public walkway on the west side of the street and a pathway well up on top of the bank. Mr. Shonkwiler said that it was his understanding that the City did not have a recorded easement that gave the City a right to come down from the path to the floodway for floodplain maintenance. Mr. Ramis addressed the issue of unequal treatment between property owners because those adjacent to the creek were required to contribute to the drainage system while those away from the creek were not. He said that those property owners away from the creek dad contribute to the drainage system through dedications and improvements to street frontage which included part of the City's drainage system. He said he wanted it to be clear for the record that the City did impose requirements on property owners away from the creek to contribute to the City's drainage system through requiring street dedications and improvements. Mr. Shonkwiler commented that there was a world of difference between a dedication for a street and one for storm drainage. Mr. Ramis stated that the dedications for street frontage were based upon both traffic and drainage impacts. Councilor Rohlf asked Mr. Shonkwiler how the City's setting traffic impact fees within the general retail sales category was different from what the City has done in the past. Mr. Shonkwiler stated that in all the approvals on which he's worked, none of the cities doing an analysis of traffic or storm water drainage impacts did an analysis of all the possible uses for that particular application, such as a fast food restaurant or a video store, and then made the applicants make dedications beyond the street frontage. Councilor Rohlf asked Mr. Shonkwiler to clarify his position on where the bicycle path should be located under Condition 3. Mr. Shonkwiler said that he thought that the City could place the pathway in different locations that did not interfere with the proposed building. He said that he believed that now the City was attempting to make the interpretation that the pathway was part of the greenway and that the condition limited the ability to place the path outside the greenway. He contended that the ordinance said the pathway must be outside the greenway as "greenway" was defined in 1991 which meant the floodplain. He argued that the Council now had to make an interpretation that went against the clear face of the ordinance. He said that he thought the City was U-ti- tL......., A t.,. • ..t:F.. 4nirair.rs ill thr .8n~lw'r. +;"c nc +1 . re LIIIIl~ LY%PLLA LUC; a ALII XA LII,'LIIA5 LV JLLJLIII~ 9"ULLL .A..a~ Lea Lea .Lawwaavw..r, Lana J had been challenged on in 1991. Councilor Rohif asked Mr.Ramis to give the City's side of that issue. Mr. Ramis stated that the City has consistently interpreted the Code to be consistent with the CITY COUNCIL MEETING MU*4U ,ES - AUGUST 29, 1995 - PAGE 13 r 121141111 911" 911millizolat IMMM i 11.1-11 !111, 11 11 ! !.I -IM l: I idea that the bike path should be in the flood plain or outside of the flood plain and that "greenway" was a concept that included both an area inside and outside the floodplain that had a bike path. He said that there was nothing new, or unique a about that position. Mr. Shonkwiler said that if Council accepted Mr. Ramis' analysis, it meant that they could require of any application that it run a pathway through the middle of that particular property, and then define that where that path went was a greenway. He argued that the Council has not approached that interpretation in the prior approvals on record, and therefore they were not consistent in doing that tonight. Mayor Nicoli disagreed, stating that Mr. Ramis' analysis was a fair one of what the City has actually done. He stated that the community through its Comprehensive Plan has setup a transportation system fo: pedestrians and bicyclists outside of the street system. He said that he did not think doing that was arbitrary. Mr. Shonkwiler said that the applicant has told the City that they felt there was an opportunity for the City to take a reasonable approach and require that the pathway not interfere with the building. He cited an example of working with a subdivision to place streets and pathways where they both served the City's purposes and dad not restrict the applicant's ability to develop his property. He stated that the situation with the Dolans -was different. He said that there were other places they could put the pathway but that they have decided to make the $ Dolans move or lose a portion of their building; he did not consider that fair. He said that he thought the City imposing a pathway system networking through the City was a logical concept for the public purpose of having a pathway system but that they were imposing it unfairly here. He contended that the City had opportunities to lower the adverse impact to the proposed project and was choosing not to do that. Mr. Ramis stated that there was ample evidence in the engineering reports showing that the engineers put the pathway where they put it for reasons of safety and efficiency of the system. He pointed out that simply looking at a City map would show that not all bike paths were in floodplains, and that saying they had to be in one did not fit with the City's past practices. Mr. Shonkwiler argued that there was a difference between the location of pathways throughout the City and where the City required them as part of a dedication. Mr. Ramis said that, according to the Code the City had the ability to require dedication of a path whether or not it was in a floodplain. Mr. Shonkwiler said that he disagreed. Mr. Ramis argued that under that interpretation the City would never complete a system; they could only build in floodplains. Mr. Shonkwiler said that one could argue that the City couldn't complete a street system without requiring dedications but that that was what,eminent domain was all about. Councilor Rohif asked if they had to consider what the opportunity cost would be of not being able to build the building as the applicant wanted to (with respect to rough proportionality) or was that a non issue because they could possibly use the land in some other way and still get the building they wanted. CITY COUNCIL MEETING MINUTES - AUGUST 29, 1995 - PAGE 14 OEM Mr. Ramis stated that he thought the severance damages theory was a red herring that did not belong in this case. He said that someone could not claim severance unless he had an absolute right to, put a building somewhere and that was not the case hers. He acknowledged that Mr. Shonkwiler had a different point of view on the issue but reiterated that he did not think severance was relevant to the calculation of the impact. Mr. Shonkwiler stated that he disagreed. He said that the restrictions on-the property have been in the record since 1991, and that the City was aware of it. He said that it became critical in the balancing of the analysis of where the City was requiring the pathway to be located, and that the juxtaposition of those two concepts required even more justification by the City. Councilor Rohlf requested an engineer's comments regarding safety. Mr. Ramis said that Mr. Larson was out of town but that they had an engineer from MacKenzie here. Councilor Rohlf asked if there was a way to build the bike path safely inside the floodplain without creating a great cost to the City. The engineer said that he had worked with Mr. Larson on the traffic aspects of the project. He said that their review of the various location options showed that the proposed location of the pathway adjacent to the #loodway was the most efficient location in terms of safety. Mayor Nicoli recessed the meeting for a break. Mayor Nicoli reconvened the meeting. As there were no objections or further questions, Mayor Nicoli closed the public hearing. Councilor Lunt stated that his lack of questions did not indicate a lack of interest in the case but rather his belief that they have already heard 90% of what was said tonight, and that other people asked all the questions he had to ask. Councilor Rohlf said that he would rather see a prosperous A-Boy business downtown, as he understood previous Councils wanted also. He said that he saw an applicant who has admitted his development would have an impact on the City's infrastructure but who hasn't said what he was willing to pay to offset those impacts. He said that he k newt the City had made concessions to try to find something amenable to the applicant but that it seemed that no matter what the City came up with, the applicant still saw himself as paying dearly to offset the impacts. Councilor Rohlf noted that an issue that has arisen in the last two weeks was that the Council could not decide this issue fairly because of the Circuit Court case. He said that he wanted to clarify that these were two separate issues, subject to two different decision making processes and that the results were independent of each other. He said the issue arose in the first place because the applicant placed the case in the record and that he wondered, based on the timing of that case with the CITY COUNCIL MEETING MINUTES - AUGUST 29, 1995 - PAGE 15 hearing process, that it might be a set up for a later argument that they couldn't get a fair hearing. Councilor Rohif stated that he didn't have a problem with applying the Supreme Court test case to the facts specific to this hearing. He said that he had raised the issue of fairness earlier because he was interested in the applicant's commitment to -Mmm s,.:.....,.... 3.,.a r■na:. thn.+nla~ ~hwt tlseir r~7e nitI'I ne of fwirniam wt+rg so different they aseaxxa~a ivW a6u would probably never get at the concept. Councilor Rohlf said that the Supreme Court had found their process clean and without gimmicks, and had found a central nexus between the City's need to prevent flooding and limiting development and a nexus between the City's attempt to prevent traffic congestion and their provision of traffic alternatives. He commented that. the City's weakness appeared to have been lack of an adequate record to support the earlier decisions. He said that the Supreme Court basically said go make some findings and make a decision on those findings, and look at the record to establish "rough proportionality." Councilor Rohlf pointed out that "rough proportionality" was not a precise measurement, and required individualized determination related to both the nature and extent of the impact of the development. He said that the City has shown that there would be traffic and runoff impacts from putting that store down there, and that the IDolans would be disappointed if a new store dad not increase their traffic and customer counts. He said that the City was telling the IDolans that those impacts had to be mitigated to offset the impacts. Councilor Rohlf said that he understood that the mitigation steps were to be related to the impacts. They were to offset traffic impacts with a traffic alternative; they were looking at trading increased runoff with an ability to maintain the channel where the water would cut through. He said that the battle boiled down to the size of the impacts versus the size of the mitigation. He said that whether they took the applicant's numbers or the City's numbers, it looked like the cost of the dedication the City was asking for was less than the cost of the impact to the City. Councilor Rohlf said that, given the probable increase of the current non auto traffic to the store with the construction of a pathway, he thought the conditions were roughly proportional to the impact, and that the proposed conditions did meet the Supreme Court test. Mayor Nicoli commented that in these types of situations he frequently sat where Mr. Shonkwiler was sitting as part of his work and sometimes felt that the conditions were very unreasonable. fle said that when he read the entire CH21M Bill report to determine its accuracy and relevancy and to review its assumptions and costs. He was amazed to see the number and variety of projects they had recommended doing. He said that the City had acted very responsibly to carry out many of those requirements and in placing dollar costs on the different things needing to be done along the Eanno Creek greenway and other creeks in the city. Mayor Nicoli stated that he felt that the storm drain conditions the City was asking for were very reasonable and supported by that report. He said that in looking at the dollar impacts to the IDolans he felt that they have shown rough proportionality. CITY C®UNCII, M EE, TING MEVUTES -.AUGUST 29, 1995 - PAGE 16 t, He said that, with respect to the bike path, the history of Oregon showed a financial support of pedestrian and bicycle pathways throughout the state, to the extent that the County, the State and Metro were putting significant amounts of money into developing that form of transportation. Mayor Nicoli stated that based on his experience of living 100 feet or so off of a bike path, he believed the completed system would be more than simply a recreatiormsu leisure facility and would be safer for pedestrian and bike transportation. Mayor Nicoli said that considering what the City has accomplished with its dollars, the time spent planning, and the fact that they have ask other developments to extend or complete systems with respect to their areas of development, he felt comfortable asking for the easement across the Dolans' property, as long as it was restricted to a bicycle path. Mayor Nicoli said that he thought the City had been very fair in allowing the applicant to count this area for landscaping credit and not have to put in additional landscaping on their property. Councilor Hawley said that she thought they had been directed by the Supreme Court to complete some omissions from the original case, namely for further proceedings consistent with rough proportionality. She said that she believed that the City was in the process of doing that and that enough evidence has been submitted to create the argument for rough proportionality. Councilor Hunt said that while they were not supposed to reduce rough proportionality to a strictly mathematical process, they've done so as much as possible in order to be fair. She said that based on the numbers, it was roughly proportional in favor of the applicant. She said that she believed that the applicant's traffic study did show that the path was likely to offset some of the traffic demand, and than that was proportional. Councilor Hawley stated that the City has made an effort to provide documentation for rough proportionality; that, together with the applicant's information, has been deliberated as much as it could be at this point. She reiterated that translating the traffic into bicycle trips did offset the dedication of the easement. She said that she was in favor of saying that this was "rough proportionality." Councilor Hawley noted that the concept of A-Boy being singled out had been an accusation made early in this whole process, and that she believed it was left over from innuendo and hearsay that was not part of the record. She said that she was sorry to see it continually raised because she has seen numerous attempts by staff to make this a fair process based on the factys. Councilor Hawley commented that the A-Boy property sat where it sat and that was on a floodnlain which had to be dealt,%ith according to the Code. She said that it dad not compare to property of the same size not on -a floodplain because that other property did not have to deal with floodplain issues because of its location; each piece of property had its special conditions. She said that the conditions of approval in all the permitting processes demonstrated that each piece of property had its own CI'T'Y COUNCIL, MEETING MINUTES - AUGUST 29, 1995 - PAGE 17 r unique set of conditions. She said that she hoped they could put an end to that issue which she considered moot anyway because every piece of property had its own conditions that needed to be imposed in order for the public to have the infrastructure it needed. Councilor Hunt stated that he thought that the rough proportionality issue had been well covered by the other councilors. He pointed out that Metro has mandated more bike paths, and that the City has developed a system of pathways. He said that he dad not see any discrimination against A-Boy in asking for a dedication of an easement for a bike path; it was part of an overall plan and something that people simply had to live with. Councilor Scheckla stated that he thought the Council had inherited this situation but now had new City staff who were as reasonable as any he has worked with. He said that all of the remarks on the floodplain, greenway and easement were justified. He said that there was no way out of it; they had to abide by the Supreme Court's instructions. He commented that the arguments have really lain in the hands of the attorneys and hoped that they would be as reasonable as the Council would try to be in conning to a decision that would result in an attractive building on Main Street. Councilor Scheckla said that he was sorry about the problems the Dolans have had but hoped that they would see the Council as trying to work through difficult times. He commented that it did not help either the City or the Dolans to have this dragging on so long. He said that he hoped they had the fairest settlement here and pointed out that Council reached a troubled decision with good intentions. He complimented Mr. Shonkwiler for the fine job he dad in presenting his information. Motion by Councilor Hunt, seconded by Councilor Hawley, to approve the application with the conditions recommended by staff subject to approval of the findings at the October 10 meeting. Motion was approved by unanimous vote of Council present. (Mayor Nicoli and Councilors Hunt, Hawley, Rohlf, and Scheckla voted "yes.") 7. NON-AGENDA ITEMS: None 6. ADJOURNMENT: 10:00 p.m. ,2/ ~2 (JIVVA A/Ld";Ih/l Elizabeth Newo , Depufy a ecorder Attest: f 'ur, City ofIZate- Y'igard ! Di 10I q FArecorder\ccm\ccm6829.95 ~t - CITY COUNCIL MEETING 1 E14UTES - AUGUST 29, 1995 - PAGE 18 COMMUNITY NEWSPAPERS, I NC. Legal P.O. BOX 370 PHONE (503) 684-0360 Notice TT 8 2 9 3 BEAVERTON. OREGON 97075 Legal Notice Advertising ®City of Tigard ® C] Tearsheet Notice,;",°'. 13125 SW Hall Blvd. ®Tigard,Oregon 97223-8199 ® ® Duplicate Affidavit P.Y *Accounts Payable-Terry `i ~t T7J i 3~ ' AFFIDAVIT OF PUBLICATION STATE OF OREGON, COUNTY OF WASHINGTON, )as' 1, Judith Koehler H y f being first duly sworn, depose and say that I am the Advertising ` „l, y, x~..•. Director, or his principal clerk, of the . Bard-Tualatin mimes 'Ky r a newspaper of general circulation as defined in ORS 193.010 and 193.020; published at Tigard in the F aforesaid county and state; that the City Council Busin s M ing a printed copy of which is hereto annexed, was published in the entire issue of said newspaper for ONE successive and consecutive in the following issues: RECEIVED' August 24 1 KLA Subscribed and sworn to be ma this24Th of u„ sust ,1995 OFFICIAL SEAL Notary Pu c for Oregon ROSIN A. BURGESS NOTARY PUBLIC - OREGON My Commission Expires: COMMISSION NO, 024552 1 %„r„y„COA4~ M~ ! N ryPIRE3 LAAYt®,11197 i AFFIDAVIT i F The follou~.tsg meeting highl'to L- are pubtishe'o for yo~ir inforitiat~on: lull ageniias tray>be pbtained.from;tho City Recorder, 13125 S W:;Iall t ; Boulevard, Tfard, Oregon 97223, orby.calling L' 1 E CITY.COUNCIL BUSINESS MEETING 1 AUGUST 29.1995 ; TI0 AI2D;CITY HALL -.TOWN HALL 131' 5 S .W. HALL BOU1LEVARD,.TIGARD, OREGON Study Meet ig (RedAock Creek. Conference Room) (6:3011 .M.) Executive Session: The Tigard City Council may go into Execu i' Give Session ;under. the provisions of ORS°192.66.0~ l), (d) '(e), & (h) to discuss labor relations; "real property transactions; current; and pendingaitigadgn ssues: Agenda Review a Y Bustness Meeting.(Town Hall) (1:30 P.M') a AU rim ng '~o Mendez u To ons e U S SuP,reme Court: r'eirand of conditions related to the deaicatioti of'property: for. * p g g flood lain'mana emenrand'a bike path relatin to.the deter- mination of the rough proportionality of those requirements:! Location:, 12520 S.W. Main Street ,(WCTM'2S1:2AC'tax lot 700) Update Council an the Status of.the.Purchase of.Burlington:; r Northern Property '(property where Tigard Feed and Seed Store ; is located) o 'Discuss Request to Transfer Jurisdiction of Durham Road Local Contract Review Board Meeting.. TT8293 Publtsta: August 2 , ,1 995 31 NMI 5 11 11 il s AGENDA. m No. 3 - VISITOR'S AGEISI DA DATE:,,, Au st 29, im invited to 2 minutes or less, please) Please sign on the appropriate sheet for listed agenda items. The Council wishes to hear from you on other issues not on the agenda, but asks that you first try to resolve your concerns through staff. Please i;,"a°..act tue Cl j aAsE~"ui:a:5traiva ~fY'ioa to the start of the meeting. i ndnk you. { STAFF NAME, ADDRESS tai PHONE TOPIC CONTACTED -R4 p cis VA-T 6,t r fee, + a QF- r AG ENI3;tA ,YMM NG: 3_ - ITOI~'S AGENDA - PAGE 2 DATE: August 29, 1995 (1.imited to Z minutes or less, please) 4 Is 0lease sign on the appropriate sheet for listed agenda items. The Council wishes to hear from you on other issues rat on the agenda, but asks that you first try to resolve your concerns through staff. Please contact the City Administrator prior to the start of the meeting. Thank you. STAFF NAME, ADDRESS. & PHONE TOPIC CONTACTED S k din A t. t Depending on the number of person wishing to testify, the Chair of the Council may limit the amount of a each person has to speak. We ask you to limit your oral comments to 3 - 5 minutes. The Chair may Rumurlher limit time if necessary. Written comments are always appreciated by the Council to supplement oral testimony. 'r ay A A , ITEM NO.' 6 DATE: _ August 29, 1995 PIYASE SIGN IN TO TES7WY ON THE ATTACHED SHEETS ks' a v°a i ,r AGENDA. NO. v ~ l: t ...:.:.i:~ - PLEASE.. PRINT Proponent - (Speaking In Favor) Opponent - (Speaking Against) --Name, Address anone o. Name, Address an one No. Name, Address and No. Name, Address and No. ame, ress anone o. Name, ress anone No. Name, Address and No. Name, Address and No. Name, Address and Phone No. Name, Address and Phone No. 1F ame, Address and No. Name, Address and No. __R_am_e_,_AMr and Phone No. Name, Address and Phone No. Name, Address and No. Name, Address an one No. Name, Address and Phone No. Name, Address an one No. r u.' } PLEASE PRUff )Proponent - (Speaking In Favor) opponent - (Spearing Against) a Name, rests an one No. Name, Address an one o. Name, dress an one No. Name, Address an Phone No. me, ress an one No. M-Ra-medress an one o. Name, Address mm one No. le, Address an one No. IJame, Address and Phone No. 10 Name, Address an Phone No. Name, Address an one No. Name, Addr an one o. ame, Tess an One i o. am" a Address an aRe No. Name, fires one No. Name, Address an 3 one No. Name, Address and 0 0. Name, Address and Phone ogm o cst y a: ~je~ (4 C'- MEMORANDUM ~l !fit 5 CITY OF TIGARD, OREGON TO: Honorable Mayor and City Council pp FROM: B11 Monahan, City Administrator DATE: August 22, 1995 SUBJECT: Fee Waiver Request - Comprehensive Plan Amendment Attached is a letter from Mr. Bob Bledsoe requesting a waiver of the $675 application fee and any incidental fees for a proposed Comprehensive Plan Amendment application. Mr. Bledsoe plans on attending the Council meeting on August 29 to introduce this matter to the Council during the Visitor's Agenda. The advance letter is to give you and staff more information about the request. c: Bill Monahan Jim Hendryx, Community Development Director Ray Valoae, Associate Planner CwC0822.95 w 111111 ~ Bob Bledsoe 11800 S. W. Walnut Tigard City Council Tigard, OR 97223 August 22, 1995 Dear councilors, Basically, the request I am making is an exercise in the people's right to petition their government. We feel that an aspect of, the law needs to be more fair and reasonable. This part of the law is in the. City's Comprehensive Plan, and thus an application is required to start the process to review this law. The application must be accompanied by payment of a fee of $675, unless the Council waives the fee or starts the process itself. Some of us are not in the City yet, but live in neighborhoods built before the City grew out to and around us. Our neighborhoods are developed already to a quality that we want to preserve. One way to help preserve the quality of our established neighborhoods is to zone then at the density they are built. The proposed change in law we would like to be considered would allow the City to indeed assign zoning that matches individual neighborhoods upon annexing. The present law, in Policy 10.1.3, requires the City to assign the zoning that most closely matches County zoning. The County zones for residential areas are more dense than the City's, so as a result the City must assign R4.5, its most dense zone. We should have the option of asking you to assign one of the City's other zones, especially R2 and R3.5, for neighborhoods already built at these densities. The request will affect Walnut Island, Metzger, and Bull Mountain. In order to have this proposal considered, we request waiver of the $675 application fee and any incidental fees. Should the request be eventually denied by you, there will be no appeal to the courts. Also the Urban Area Planning Agreement (UPAA) with the County needs to be changed to allow the City to assign matching zoning to already built residential neighborhoods. Please schedule a time on your agenda, or that of the Planning Commission to consider UPAA changes. Attached are copies of the proposals. Sincerely, Bob Bledsoe to i AU6 2 2 1905 i':;"lam I OF 7:;rtiti P s` _ ra At the next time period when legislative amendments may be made to the City of Tigard Comprehensive Plan, the Central Tigard Citizen involvement Team proposes the following amendment, and requests a waiver of the application fee. AN A IENl3IviENT TO THE COMPREHENSIVE PLAN OF THE CITY OF TIGARD: A new policy 10. 1.4 is to be added, as Hollows: 10.1.4 AN EXCEPTION TO POLICY 10.1.3 IS THAT THE CITY MAY ASSIGN ZONING CLOSEST TO EXISTING (DEVELOPMENT IN LOW-DENSITY RESIDENTIAL ESTABLISHED AREAS. Approved by majority vote on this date: 9 9S igi d by the Facilitator of the C.I.T.. 3 ie N ELVAM 15 !J 11 w At the next time period when legislative amendments may be made to the City of Tigard Comprehensive Plan, the West Tigard Community Citizen Involvement Team proposes the following amendment, and requests a waiver of the application fee. Aiv' Aiv ~vtT"ai i~ T T v iii CvivaPRUMNSI ES PLAN OF `I'II CITY OF TIGARD: A new policy 10. 1.4 is to be added, as follows: 10.1.4 AN EXCEPTION TO POLICY 10.11.3 IS THAT THE CITY MAY ASSIGN ZONING CLOSEST TO EXISTING IDEYELOTMENT IN LOW-DENSITY RESIDENTIAL ESTABLISHED AREAS. Approved by majority vote on this date: Signed by the Faccilitator of the C.I.T. C. -Ij l` OEM a PROPOSED AMENDMENTS TO THE WASI-HNGTON COUNTY TIGARD URBAN PLANNING AREA AGREEMENT A new subsection S to be added to section III A on Page 6: III Comprehensive Planning and Development Policies A. Active Planning Area 8. The CITY may assign its Established Area Developing Area overlay to all parcels in the Active Planning Area, whether incorporated or not. The CITY may assign zoning closest to existing development in low-density residential established areas. A new subsection a to be added to section III B 4 on page 7: III Comprehensive Planning and Development Policies B. Area of Interest 4. The CITY may consider requests for annexations in the Area of Interest subject to the following: e. An exception to the preceding section d is that the CITE' may assign zoning closest to existing development in low-density residential established areas. 44B MEMORANDUM CITY OF TIGARD, OREGON TO: Honorable Mayor and City Council FROM: Bill Monahan, City Administrator DATE: August 22, 1995 SUBJECT: Fee Waiver Request - Comprehensive Plan Amendment Attached is a letter from Mr. Bob Bledsoe requesting a waiver of the $675 application fee and any incidental fees for a proposed Comprehensive Plan Amendment application. Mr. Bledsoe plans on attending the Council meeting on August 29 to introduce this matter to the Council during the Visitor's Agenda. The advance letter is to give you and staff more information about the request. c: Bill Monahan Jim Hendryx, Community Development Director Ray Valone, Associate Planner eWC0822.95 F Bob Bledsoe 11800 S.W. Walnut ; Tigard City Council Tigard, OR 97223 August 22, 1995 Dear councilors, Basically, the request I am making is an exercise in the people's right to petition their government. We feel that an aspect of the law needs to be more fair and reasonable. This part of the law is in the City's Comprehensive Plan, and thus an application is required to start the process to review this law. The application must be accompanied by payment of a fee of $675, unless the Council waives the fee or starts the process itself. Some of us are not in the City yet, but live in neighborhoods built before the City grew out to and around us. Our neighborhoods are developed already to a quality that we want to preserve. One way to help preserve the quality of our established neighborhoods is to zone them at the density they are built. The proposed change in law we would like to be considered would allow the City to indeed assign zoning that matches individual neighborhoods upon annexing. The present law, in Policy 10.1.3, requires the City to assign the zoning that most closely matches County zoning. The County zones for residential areas are more dense than the City's, so as a result the City must assign R4.5, its most dense zone. We should have the option of asking you to assign one of the City's other zones, especially R2 and R3.5, for neighborhoods already built at these densities. The request will affect Walnut Island, Metzger, and Bull Mountain. In order to have this proposal considered, we requestT,raiver of the $675 application fee and any incidental fees. Should the request be eventually denied by you, there will be no 'appeal to the courts. Also the Urban Area Planning Agreement (UPAA) with the County needs to be changed to allow the City to assign matching zoning to already built residential neighborhoods. Please schedule a time on your agenda, or that of the Planning Commission to consider UPAA changes. Attached are copies of the proposals. Sincerely; Bob Bledsoe AUG 2 2 1995 Eli I is F At the next time period when legislative amendments may be made to the City of Tigard Comprehensive Plan, the Central Tigard Citizen Involvement Team proposes the following amendment, and requests a waiver of the application fee. AN AMENDMENT TO THE COMPREHENSIVE PLAN OF THE CITY OF TIGARD: A new policy 10. 1.4 is to be added, as follows: 10.1.4 AN EXCEPTION TO POLICY 10.1.3 IS THAT THE CITY MAY ASSIGN ZONING CLOSEST" TO EXISTING DEVELOPMENT IN LOW-DENSITY RESIDENTIAL ESTABLISHED AREAS. Approved by majority vote on this date: 4 / d~d1L. tl~ Tom- . igi d by the Facilitator of the C:.I.T.. a y- 4. At the next time period when legislative amendments may be made to the City of Tigard Comprehensive Plan, the West Tigard Community Citizen Involvement Team proposes the following ,,amendment, and requests a waiver of the application fee. AN AM1E'rW7A4 iv 1' TO ITIffi COMPREHENSIVE PLAN OF THE CITY OF TIGARD: A new policy 14. 1.4 is to be added, as follows: 10.3.4 AN EXCEPTION TO POLICY 10.1.3 IS THAT THE CITY MAY ASSIGN ZONING CLOSEST TO EXISTING DEVELOPMENT IN LOW-DENSITY RESIDENTIAL ESTABLISHED AREAS. Approved by majority vote on this date: Vjr`.e.- l,C.~ G~ c / C~ 7LG / Q~ Signed by the Fa .1.tator of the Cc..I.T.: C. PROPOSED AMENDMENTS TO THE WASBINGTON COUNTY TIGARD URBAN PLANNING AREA AGREEMENT A new subsection 8 to be added to section III A on Page 6: III Com2rehensive Planning and Development Policies A. Active Planning Area 8. The CITY may assign its Established Area - Developing Area overlay to all parcels in the Active Planning Area, whether incorporated or not. The CYTY may assign zoning closest to existing development in low-density residential established areas. A new subsection a to be added to section III B 4 on page 7: III Comprehensive Planning and Development Policies B. Area of Interest 4. The CITY may consider requests for annexations in the Area of Interest subject to the following: e. An exception to the preceding section d is that the CITY may assign zoning closest to existing development in low-density residential established areas. A4 Ici AGENDA ITEM # For Agenda of August 29, 1995 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Purchase of property at Main and Burnham Streets PREPARED BY: R. Woolev DEPT HEAD OK i407-' CITY ADMIN OK J4 ISSUE BEFORE THE COUNCIL Approval of purchase price for the property at Main and Burnham. STAFF RECOMMENDATION By motion, ratify the purchase of the tavern property at Main and Burnham Streets for $105,000. INFORMATION SUMMARY Previously, Council has directed staff to negotiate for the purchase of the tavern property at the east corner of Main Street and Burnham Street. The roperty is needed for intersection improvements to add a turn lane on Opurnham Street and to provide a safer approach for pedestrians. In executive session, Council authorized staff to offer the appraised price and to negotiate up to $105,000. A settlement has been reached with the property owners to purchase the property for $105,000. Under the settlement agreement, the property will be vacated by August 18th, allowing the street project to proceed on schedule. In addition to -the purchase price, the City will pay relocation costs in accordance with state law. Staff is asking that Council ratify the settlement previously approved in executive session. OTHER ALTERNATIVES CONSIDERED e a FISCAL NOTES The costs of this project, included 'in the 1994°95 capital improvement program, are funded from traffic impact fees. /tav r 4. v MEN= AGENDA ITEM # For Agenda of August 29, 1995 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Grant permanent easement to the State of Oregon, Department of Transportation, at 8777 SW Burnham Street. PREPARED BY: M. Miller DEPT HEAD OK CITY ADMIN OK ISSUE BEFORE THE COUNCIL Shall. the City Council approve and authorize the City Administrator to sign an easement document, on behalf of Tigard Water District, to convey a parcel of land that contains 390 square feet outside the existing right-of-way along SW Hall Blvd. STAFF.RECOMMENDATION The City Council authorize the City Administrator to sign the easement document. INFORMATION SUMMARY %he Oregon Department of Transportation is requesting 390 square feet of additional right-of"-way at the north easterly corner of the Water Building property for slope and utility easements for the Hall Blvd Bikepath. According to the Division of Assets report the Water Building property is owned proportionately by the cities of Durham, King City, Tigard, and the Tigard Water District, however, title to the property has not been transferred. In accordance with the IGA, the granting of the easement has been brought before the Tigard Water District Board of Commissioners for their approval and the IWB. Both Boards have approved the easement. The final step is for the City Council to approve the easement. OTHER ALTERNATIVES CONSIDERED n/a FISCAL NOTES Just compensation for the 390 square feet of property has been made by a qualified Appraiser, based on market information. The compensation is $550. City council does have the right to donate the property if it desires. ODOT File 6237-017 1OB-1-10 PERMANENT EAS TIGARD WATER DISTRICT, a political subdivision of the State of Oregon, Grantor, for the true and actual consideration of 55Q,~(~ does grant to the STATE OF OREGON, bs and through its DEppRTMJENT OF TRANSPORTATION. Grantee, its successors and assigns, a permanent easement to construct and maintain slopes, and to relocate, construct and maintain water, gas, electric and communication service lines, fixtures and facilities, and appurtenances therefore, upon, over, through, and across the following described property: A parcel of land lying in the William Graham D.L.C. No. 39, Township 2 South, Range 1 West, W.M., Washington County, Oregon and being a portion of that property designated as Parcel I and described in that contract to Tigard Water District, recorded as Microfilm Document. No. 84-25846 of Washington County Book of Records; the said parcel being that portion of said property lying Northerly of a line at right angles to the center line of the relocated Beaverton-Tualatin Highway at Engineer's Station 127+15; Southwesterly of the right of way of Burlington Northern Inc. and included in a strip of land 40 feet in width, lying on the Westerly side of said center line which center line is described as follows: Beginning at Engineer's center line Station 112+00, said station being 4,394.57 feet North and 78.58 feet East of the Southeast corner of Section 2. Township 2 South. Range 1 West, W.M.; thence South 0° 42' 31" West 446.06 feet; thence on a 163.70 foot radius curve right (the long chord of which bears South 22° 43' 17.5" West 122.72 feet) 125.79 feet; thence South 44° 44' 04" West 455.01 feet; thence on a 179.05 foot radius curve left (the long chord of which bears South 23° 39' 52" West 128.74 feet) 131.69 feet; thence South 2° 35' 40" West 241.45 feet to Engineer's center line Station 126+00. Beginning at Engineer's center line Station 126+00, said station being 3.153.01 feet North and 357.19 feet West of the Southeast corner of Section 2. Township 2 South, Range 1 West, W.M.; thence South 2° 35' 40" West 510.56 feet to Engineer's center line Station 128+69.11. 1993. Bearings are based on County Survey No. 24,915, recorded February 11, . The parcel of land to which this description applies contains 390 square feet, more or less, outside of the existing right of way. IT IS UNDERSTOOD that the easement herein granted does not convey any right, or interest in the above-described property, except for the purposes stated herein, nor prevent Grantor from the use of said property; provided, however, that such use shall not 5-25-95 RETURN TO Account No.: •R2074501 OREGON DEPARTMENT OF TRANSPORTATION RIGHT OF WAY SECTION Property Address: 8777 SW Burnham St 417 TRANSPORTATION BLDG. Tigard OR 97223 SALEM, OREGON 97310 Mill Ill! ODOT File 6737-017 IOB-1-10 permitted to interfere with the rights herein granted or endanger the lateral support of the highway. or to interfere in any way with the relocation, construction. and maintenance of said utilities, and their appurtenances. as granted hereinabove. owner of an- relocated Also the rights of the utilities shall be the same as previously existed in that portion of the utilities being relocated. IT IS ALSO UNDERSTOOD that this easement shall be subject to the same conditions, terms and restrictions contained in the easements, licenses and/or permits granted to the owner of any facilities being relocated. IT IS ALSO UNDERSTOOD that Grantor shall not place or erect any buildings or structures upon the easement area without the written consent of Grantee. IT IS FURTHER UNDERSTOOD that nothing herein contained is intended to create any obligation on the part of Grantee for the maintenance of said utilities. Grantor covenants to and with Grantee, its successors and assigns, that it is the owner of said property, and will warrant the easement rights herein granted from all lawful claims whatsoever. Grantor agrees, the consideration recited herein is just compensation for the operty. including any and all damages to Grantor's remaining property, if any, which may result from the acquisition or use of said property and the construction or improvement of the highway. It is understood and agreed that the delivery of this deed is hereby tendered and that terms and obligations hereof shall not become binding upon the. State of. Oregon Department of Transportation, unless and until accepted and approved by the recording of this document. Dated this day of r TI9ARD WATER DISSTTRICT, a political subdivision of the State of Oregon By' Q, 04 05 •A;~e ft%. 1LA3'®eb $y ekeNI;11 "N ge4. Cana cm a° PC T-~&T 8Q1bC b~a6 6 dC'a.. STATE OF OREGON, County of r./ 19_. Personally appeared,, u and } xr who, being sworn, stated that they are the and of Tigard Water District, a political subdivision of the State of Oregon', and that this instrument was voluntarily signed in behalf of the political subdivision by authority of its Board of Directors. Before me: 1SV Q-4-, to l'°- otary'~I"ic for-Oregon 25-95 Commission expires 14 ge 2 - EA rfFIC1AL SEA, 1 ael / M JO ANN H.' • VOTARY PUBI • ~g ZrCOMMISStr, " :.GMMISSION EX% ~5• :SS~3 a- lmmmommomm Marked -Lit r ur PL S 737 SURVEY ACF r (3-20-87) ~ 1.41 N. 49.625.02 195.61 Fd Iron Rod wlRed Plastic Cap ~ Fd. 2%" brass Cap in Wn. Box E(C. S 2:.X22. 155) Marked „LEA INC. CONTROL Marked "CITY OF TIGARD SURVEY (5-271-92) ®s~ CONTROL POINT. N. 49,94989 s 29*56S9 POC PLS 737" E. 21,112.41 .t (5-19-92) N. 49,765.84 Fd. -Y4" Iron Pips E. 21.095.19 ~ ~ (3-20-87) Fd.„ Iron Rod r (CS 22,155) N. , 49,979.74 (3-20=87) r .b 0 / / e E. 21,103.72 N. 49,974.20 0 0 - - (CS #20.751) E. 21,103.51 33E'F~ja - O (CS -*20.7511 ~,e • 38 )a (Bent E.) r~ ~ L- ~ 4017 3.qo®r - 1il Fd. 2-Y4" brass Cap ~myn,;m II i in Mon. Box Marked r O CITY OF TIGARD ' SURVEY CONTROL POINT, - E'.213 ~I III 29¢55.06 PI PLS 737" (5-19-92) II N. 49.765.96 ® C' Fd.J%- Iron Pipe II I E. 21.076.82 34 a (3-20-87) II II (CS *22.155) 69 N 50.03205 I E. 21.060.04 II (CS X20,751) it II r , = -11~ emx~ f - ODOT File 6237-017 108-1-10 0 P dT £sAS T TIGARD 'RATTER. DISTRICT, a political subdivision of the State of Oregon, Grantor, for the true and actual consideration of 5550.00------ does grant to the STATE OF OREGON, by and through its DEPAn" OF TR?®MSPOATATION. Grantee, its successors and assigns, a permanent easement to construct and maintain slopes, and to relocate, construct and maintain water, gas, electric and communication service lines, fixtures and facilities, and appurtenances therefore, upon, over, through, and across the following described property: A parcel of land lying in the William Graham A.L.C. No. 39, Township 2 South, Range 1 West, W.M., Washington County, Oregon and being a portion of that property designated as Parcel I and described in that contract to Tigard Water District, recorded as Microfilm Document No. 84-25846 of Washington County Book of Records; the said parcel being that portion of said property lying Northerly of a line at right angles to the center line of the relocated Beaverton-Tualatin Highway at Engineer's Station 127+15; Southwesterly of the right of way of Burlington Northern Inc. and included in a strip of land 40 feet in width, lying on the Westerly side of said center line which center line is described as follows: Beginning at Engineer's center line Station 112+00, said station being 4,394.57 feet North and 78.58 feet East of the Southeast corner of Section 2, Township 2 South, Range 1 West, W.M.; thence South 0° 42' 31" West 446.06 feet; thence on a 163.70 foot radius curve right (the long chord of which bears South 220 43' 17.5" West 122.72 feet) 125.79 feet; thence South 440 44' 04" West 455.01 feet; thence on a 179.05 foot radius curve left (the long chord of which bears South 230 39' 52" West 128.74 feet) 131.69 feet; thence South 2° 35' 40" West 241.45 feet to Engineer's center line Station 126+00. Beginning at Engineer's center line Station 126+00, said station being 3,153.01 feet North and 357.19 feet West of the Southeast corner of Section 2, Township 2 South, Range 1 West, W.M.; thence South 2° 35' 40" West 510.56 feet to Engineer's center line Station 128+69.11. Bearings are based on County Survey No. 24,915, recorded February, 11, 1993. The parcel of land to which this description applies contains 390 square feet, more or less, outside of the existing right of way. IT IS UNDERSTOOD that the easement herein granted does not convey any right, or interest in the above-described property. except for the purposes stated herein, nor prevent Grantor from the use of said property; provided, however, that such use shall not f` 5-25-95 _ RETURN TO Account No.: R2074501 OREGON DEPARTMENT OF TRANSPORTATION RIGHT OF WAY SECTION Property Address: 8777 SW Burnham St 417 TRANSPORTATION BLDG. Tigard OR 97223 SALEM, OREGON 97310 i V S i:•{ y e ODOT File 6237-017 - 1OB-1-10 permitted to interfere with the rights herein granted or endanger the lateral support of the highway, or to interfere in any way with the relocation. construction, and maintenance of said utilities, and their appurtenances. as granted hereinabove. AiSO the rights of the owner of any relocated utilities shall be the same as previously existed in that portion of the utilities being relocated. IT IS ALSO UNDERSTOOD that this easement shall be subject to the same conditions, terms and restrictions contained in the easements, licenses and/or permits granted to the owner of any facilities being relocated. IT IS ALSO UNDERSTOOD that Grantor shall not place or erect any buildings or structures upon the easement area without the written consent of Grantee. IT IS FURTHER UNDERSTOOD that nothing herein contained is intended to create any obligation on the part of Grantee for the maintenance of said utilities. Grantor covenants to and with Grantee, its successors and assigns, that it is the K_ owner of said property, and will warrant the easement rights herein granted from all lawful claims whatsoever. Grantor agrees, the consideration recited herein is just compensation for the perty, including any and all damages to Grantor's remaining property, if any, which may %sult from the acquisition or use of said property and the construction or improvement of the highway. It is understood and agreed that the delivery of this deed is hereby tendered and that terms and obligations hereof shall not become binding upon the State of Oregon Department of Transportation, unless and until accepted and approved by the recording of this document. . Dated this 50day of (0111 ~ 194T TI9ARD WATER DISTRICT, a political subdivision of the State of Oregon By B, Tl ztlemde°6Qa ~ieaaa STATE OF OREGON. County of 19q Personally appeared and _ y+l+ , who, being sworn, stated that they are the,, a and of Tigard Water District, a political subdivision of the State of Oregon, and that this instzument was voluntarily signed in behalf of the political subdivision by authority of its Board of Directors. Before me: rotary fiTzc or Oregon 5-95 .---U Commission expires !~4 We 2 - EA OFFICIALS£A, i <'4 `O MOTARY PLIBI 5' :Cr+ COMMISSIr' .OMMISSION Ex' A. PL S 737 ('111 UP SURVEY AT (3-20-87) IN 11.41 / N. 49.625.02 Fd Iron Rod w/Red Piastio Cap Fd 2-y4" brass Cap in Mon. Box E. 21.195.61 Marked "DEA INC. CONTROL" Marked "CITY OF TlGARQ SURVEY (CS *22.1559 N. 49.94989 \ CONTROL POINT. E. "49..41 29f'"6.99 POC PLS 737" cs~ ,a (5-19-92) ,.p N. 49.765.84 - E. 21.095.19 Fd. 7" Iran Pi Fd" Iron Rod / (CS #22.1551 - - - - (3-20-87) H. 49,979.74 (3-20-87) E. 21.103.72 N. 49.974.20 0 - - (CS #20.751) E. 21.103.51 L~ 33 0 (CS *20.751) • 38 )o (Bent E.) Q1 32 j~ 4017 - - - - - - - - - - - - - - - - Wt a Fd. 2" brass Cap _ _ - - I ; in Mon. Box Marked "CITY OF TIGARQ / SUR11BY CONTROL POINT. E.21: ~I ELI 29$55.06 P! PLS 737" (5-19-92) II N. 49.765.96 ® C Fd.Y/" Iron Pipe ~I E. 21.076.82 30 00 (3-20-87) (CS *22.155) ® ji® 69 N. 50.032.05 E. 21.060.04 (CS 020.751) 4.J2 Ott Rt D dG 0 N• `fl gD a AGENDA ITEM CL For Agenda of Auu ust 29. 1995 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Purchase of Infrastructure Management Software from Hansen Information Technolo ies. PREPARED BY: M. Miller DEPT HEAD OK CITY ADMIN OK ISSUE BEFORE THE COUNCIL Shall the LCRB approve the purchase of an Infrastructure Management Software program for all Divisions of Maintenance Services as budgeted. STAFF RECOMMENDATION LCRB authorize the purchase of an Infrastructure Management Software program from Hansen Information Technologies. The purchase price for the software package is $61,300. INFORMATION SUrM~1ARY he purchase of Hansen Information Technologies, Inc. software will enable ll Divisions of Maintenance Services to be computerized, allowing for increased productivity, efficiency, planning , budgeting, scheduling, and customer service. Added benefits include the availability of information for the Building, Planning, and Engineering Departments as well as to the public in general. The software can be integrated with other modeling packages such as GIS and KYPIPE increasing its usefulness to our own Engineering Department and private engineering firms designing Capital improvements projects for the City. OTHER ALTERNATIVES CONSIDERED a. Do not purchase the software package. b. Continue present operations utilizing DOS based application that is not upgradeable'and is only for Sanitary and Storm eater programs. Water, Streets and Building Maintenance will not have Infrastructure Management Software. FISCAL NOTES The funding source for the purchase price of $61,300 is from Gas Tax revenues, Water, Sanitary and Storm Water user fees. These amounts were approved in the Fiscal Year 1995/96 Budget. m Y } MEMORANDUM CITY OF TIGARD, OREGON TO: Sill Monahan FROM: Ed Wegner 0- r DATE: May 2, 1995 SUBJECT: Hansen Software Justification We are requesting funding to purchase Hansen Information Technologies Inc. software that will bring all Divisions of Maintenance Services on line with Maintenance Management Software. This software will create vast improvements in how maintenance is scheduled, budgeted, and performed as well as for recordkeeping purposes. In the Water Division there currently is not a complete inventory of information of the water.distribution system that is centrally located. Various records regarding different aspects of the system are kept in various files. The software program would consolidate this information into a centralized data base. This would allow for having an inventory of such things as fire hydrants (what type, where located, feeder information, water main and valve cross-referencing), valves (manufacturer, size, high/low pressure), water mains (pipe type, pipe size, joint length, friction factor) hand storage facilities (wells, reservoirs, pumps and motors). This type of data could be pulled up within seconds on the computer and used to generate work orders for needed repairs, flushing dead end lines, checking valves, or replacing water meters. All of this type information can be programmed to establish specific work programs and establishing work schedules for those programs. For example, if by scheduling work orders for all the valves in the system to be operated and the associated information on valves were collected at that time, the department manager could then ask for a report be run o liseing those valves that need to be replaced, what type, and where located. The cost replacement of all the valves could be determined and shown as part of the maintenance budget, as well as the projected manhours needed to replace the valves, and all necessary tools and equipment needed to carry out the valve replacements. All valves could be scheduled or just those within a given area if money or time availability were in question. The Street Division which falls under Property Management is also one that does not have an inventory of what is installed in the field that is related to the street and street right of ways. When the software is purchased the Street Division will have the capability of having an accurate inventory of such things as number, type and location of street signs and barricades, crosswalk and school markings, road surface ing, types and locations, and other valuable maintenance information. This type information availability is very useful in budget preparation, such as, being able to generate a report in a few minutes of the total number of school crossing locations, and the total footage of the markings. With this information one could call up a street marking contractor and get costs for doing this work. This type of complete information should result in receivi^g more accurate bid or budget estimates. One could request a total number and -type of signs installed or replaced in a budget year. This would give a reasonably good projection of what the sign requirements would be for the new budget year. Work orders can be issued to the field employee's providing them with the most up to date information regarding the work they are to perform, location of work, what may be needed to perform the work, and a tracking procedure for who performed the work, how long did it take, what vehicles and equipment was used. One can determine which areas of town are requiring the most maintenance and what those costs are and for what activities. Currently the Storm Division is using a replicated version of its Sanitary Sewer software. This has worked well in some areas but does not provide as comprehensive a program as the Storm software. We are unable to input data related to detention, retention, and water quality ponds. This is a critical area considering the Surface Water Management requirements for all development are that they provide a water r` quality retention pond. We already have numerous water quality retention ponds that we do not have any information on, such as, location of pond, storage capacity, maintenance requirements, what date does it become city maintenance responsibility (Currently we are requiring the developers to be responsible for 3 years after there is 75% build out). The value of the software in relation to productivity, efficiency, planning, budgeting, scheduling, and customer service is hard to project at this time. I would estimate that conservatively we should see an across the board payback in 5 years. None of this includes the added benefit that could be derived from having this availability of information for the building, planning, and engineering departments. The software can also be integrated with other modeling packages such as GIS and KYRIPE. The breakdown of costs by division is as follows; ADMINISTRATIVE 5,800 WATER 11,450 STREET 11,450 STORM 1-7,400 SANITARY 15,200 TOTAL 61,300 This software will take us into the next century with it's maintenance capabilities and make us one of the organizations on the leading edge of computerization of maintenance activities. The future is todayl kehty\henjue.bud R y. i AGENDA ITEM # For Agenda of August 29r-_1995 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY LOCAL CONTRACT REVIEW BOARD ISSUE/AGENDA TITLE Award of contract for construction of the Terrace Trails Pathway Project PREPARED BY: .tPBpiVLq DEPT HEAD OK CITY ADMIN OK q1b - ISSUE BEFORE THE COUNCIL Shall the Local Contract Review Board award the contract for construction of the Terrace Trails Pathway Project? STAFF RECOMMENDATION That the Local Contract Review Board, by motion, reject all bids. INFORMATION SUMMARY On August 8, 1995, bids were opened as follows: C2E/Cross Continent Engineers, Inc., Portland Or. $ 103,946.50 Casper & Magera Inc., Spokane Wa. $ 46,050.00 Micheal-Mark, Ltd., Tigard Or. $ 39,092.00 Jerry Morrison Inc., Medford Or. $ 14,696.00 Engineer's Estimate $ 45,000.00 Rejection of bids is recommended because the low bidder's submittal was non- responsive in that the bidder neglected to sign the required bid bond. A disappointed bidder has submitted written intention to protest (attached) if the contract is awarded. Staff intends to remove this objection by informally requesting bids for the project with the expectation of awarding the contract for less than $15,000. Re-bidding is recommended, instead of award to the second lowest bidder, because it appears that re-bidding will save approximately $25,000 in City funds. OTHER ALTERNATIVES CONSIDERED FISCAL NOTES Funding for this project was included in the Capital Improvement Program adopted on June 13; 1995. r.ss i. ri 7 ON, ME MICHAEL-MARK LTD 15100 S.W. 150th Avenue Tigard, Oregon 97224 August 9 ; 19957 City of Tigard 13125 SW Hall Blvd. Tigard, OR 97223 Attention: Mr. Greg Berry, Engineer Mr. Mike Mills, Inspector Dears Sirs: Reference bids opened August 8, 1995 at 2:00 p.m. for Terrace Trails Pathways. We bring to your attention the proposal by Jerry Morrison, Inc. does not have a signature on the bid bond which would invalidate the bond and cause the bid to be non-responsive. We respectively request that Michael-Mark Ltd be awarded the contract as the responsible low bidder. Sincerely, MICH - LTD R. G. Thomas `F. Telephone 503/590-4411 Fax 503/590.4422 R 1~ ii !11121, AGENDA ITEM # 3 `'4 e For Agenda of Aug. 29, 1995 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY LOCAL CONTRACT REVIEW BOARD ISSUE/AGENDA TITLE Award of contract for construction of the Shady Lane Storm Drainage CIP PREPARED BY: DEPT HEAD OK CITY ADMIN OK ISSUE BEFORE THE COUNCIL Shall the Local Contract Review Board award the contract for construction of the Shady Lane Storm Drainage CIP. STAFF RECOMMENDATION That the Local Contract Review Board, by motion, award the contract to Miller & Sons, Inc. INFORMATION SUMMARY On June 13, 1995, the Local Contract Review Board rejected all bids received on May 30, 1995, and authorized staff to again advertise for bids. Last Wme, "low" bid was $63,721.00. On Aug. 8, 1995, bids were opened as follows: Miller & Sons, Inc., Sherwood OR $ 53,059.25 QJR General Contractors, Inc., Beaverton OR $ 53,294.00 Hubco Excavation, Inc., Gresham OR $ 59,092.50 Michael--Mark LTD, Tigard OR $ 61,875.00 Warren Brown & Assoc., Tualatin OR $ 71,392.10 CJ's Construction, Inc., Kent WA $ 72,703.09 CEMS, Inc., Vancouver WA $ 87,697.00 Engineer's Estimate $ 45,000.00 The purpose of the project is to replace a substandard storm drain along the north side of SW Shady lane, east of Greenburg Road, to eliminate frequent street flooding. The low bidder has successfully completed several other similar projects for the City. - OTHER ALTERNATIVES CONSIDERED FISCAL NOTES We project was added to the 1:994/95 Capital Improvement Program by Council on September 27, 1994 with a budget of $52,000. The small overrun will be, funded from other storm drainage projects. ShadyLane.S2' IL Il ISO il I;; OR.07'ROAR'D .•'YAYLOR ....J.-.._.... FEy ......._.._RO_.a,. FIT mss= -ice. -3® My t ~_ti...'....,1......_~...... _ 1"."~.. iiA k1 p`~ ~,.>'`"J i -t - < ' ~.~-_,.j ..i_ € F }t ~ t { ~`'ti_r!'~ ~...t...l..,;sr j t "r IT n I Ll.; A fY1,f~ ~ T } •~j f~,y , yZ _j`i.:~e. 'J ...._~6- ~ 7 Z `r'-7S h' i ~ J ,"`~,.,!p•'~`., °~yl~~~~/y~e~ 1 ~ ST ``:.:4 ~4 s - I~_t f r t A-~=1 8-13 `~T...,t .fit -'[.^'R'^-` j'„' r _ y ~j"~-...~ r l rte" "<(t_= t4f l~r'1 i A-5 oe 1--r sT ..•J~.{'' . ~r--..-...,.___.. ''"jj 1 I l• A 18:._ ~V i ~`G%. .i 3. p 1; t`.".w;,•.~? _ sum QPr .~B-1 i f ' i ..~.,y S gONIT,-}_,-„• RD LL R0. } M~ r= t 71 4 fit. f1 f I _.5..: may... , .1.-... ....).y T-I •~.\y~y..~. _ .--^'~•rr- :l: 1,~ _.~•..i ~ bra-'-_Cr_..~.__~'..,.r _.....,3_i:__ J 7,77 i mf .C`1"' j Ys ~L, 17 ^ WATER QUALITY FAGILII itS A Public Water Quality A 6 Facilities Private Water Quality NOTE: Map is not to scale Facilities ; IS 10 iI! 11,119:51 NMI ay3; ilia Qil all HAMMEM MEN= LIST OF PUBLIC WATER QUALITY FACILITIES . . A-1. Castle Hill II & Ill - SUB 93-08 Two dry ponds adjacent to Walnut St @ 135th Ave A-2. Castle Hill I - SUB 93-08 Wet pond adjacent to Walnut St that receives storm water from the dry ponds in Castle Hill and areas upstream from Bull Mountain A Z 1Jiiln6're Cn1.+bna. 111 0110 01.,13 n°v. w.oiv r.aauav~ vv.' Dry pond with detention for 25 yr storm A-4. MomingStar I & 11 - SUB 90-02 Open ditch bio-swale 250 feet long northerly of 130th Place below Greenfield Drive (132nd Ave extension) A-5. Mountain Highlands I - SUB 91-09 Dry pond southerly of 130th Place below Greenfield Drive (132nd extension) A-6. Arlington Ridge - SUB 93-02 Dry pond adjacent to the intersection of 121st Ave & Gaarde St A-7. Waverly Estates -SUB 93-07 Dry pond below SW 88th Place (private street) A-8. Greensward Park 11 - SUB 94-01 Dry pond at corner of 88th Ave & Greensward Lane A-9. Hillshire Woods I - SUB 94-03 Dry pond under-construction adjacent to Fern St, westerly of 136th Ave (Rose Meadows sub) A-10. Dakota Village I & II - SUB 94-04 Dry pond at the end of private street (public access easement) adjacent to City greenspace at Ash Creek A-11. Pebblecreek I - SUB 93-04 Dry pond north of Tallwood Dr (end of Phase I construction) and creek tributary to Summer Creek (near Scholls Ferry Dr) A-12. Renaissance Summit -SUB 93-11 Dry pond in the comer lot next to Naeve St at 109th Ave A-13. Berkley Estates - Open space lot within an existing wetland unimproved, north side of Titan Lane, east of 108th Ave A-14. Riverview - Open ditch bio-swale located at rear of properties adjacent to Tualatin River A-15. Clydesdale - Natural open space lot with sewer and storm drain pipes crossings at end of cul de sac of Clydesdale Place; site adjacent to tributary of Fanno Creek and Fanno Creek; access through unimproved 10' wide pedestrian easement A-16. Cloud Court - Open space lot located at end of Cloud Court A-17. Waverly Estates - SUB 93-07 Open ditch bio-swale along the edge of the wetlands at the rear of the properties on Waverly Drive A-18. Mountain Highlands 11 - SUB 91-09 Dry pond adjacent to future Greenfield Drive - under construction A-19. Black Bull Park Subdivison westerly of Ponderosa Place Natural open swale on Hart property that drains to the creek tributary to Fanno Creek A-20. Cascade Boulevard - Open ditch bio-swale at easterly edge of new street construction at "Place to Shoot", westerly of Greenburg Road pill 1-1,,,'11111,111'11'1251~,1111: 111 i 1:1 LIST OF PRIVATE WATER QUALITY FACILITIES B-1. Tarkianinen Industrial Buildings - SDR 93-19 Dry pond adjacent to 72nd Ave at driveway entrance B-2. Hampton Park Apartments - SDR 94-04 Dry pond adjacent to 72nd Ave at southwest corner of site B-3. Scholls Business Center - SDR 95-02 ri n ditch bio-swele in buffer area adjacent to Fanno Creek at the end of Nimbus Ave - under- construction B-4. Key Bank Center - SDR 94-14 Open ditch bio-swale behind Veterinary building at rear of property within buffer area - under construction B-5. Kenny Rogers Roasters - SDR 9428 Dry pond at rear of property, adjacent to wetland area off Garrett St - under-construction B-6. Boston Market - SDR 9425 Open ditch bio-swale at rear of site in buffer under-construction B-7. Sandburg Building - SDR 9412 Dry pond in front setback of industrial building at 7051 SW Sandburg St (east of 72nd Ave) B-8. Trend Buildings - SDR 9413 Dry pond in front setback of industrial building site at northwest corner of 72nd Ave and Tech Center Dr B-9. Cub Foods Site - SDR 93-02 Wet pond adjacent to Red Rock Creek that collects storm water from entire site B-10. Costco - SDR 93-18 Underground vault containing subterranean cells filled with composted filter material and baffles that drain to adjacent Red Rock Creek; facility located at southeasterly edge of site B-11. VIP Hotel - SDR 9408 Small dry pond in front setback at site located at NE corner of Locust St & Greenburg Road - under- construction 8-12. Stevens Marine - Open drainage ditch along westerly side of Stevens Marine that receives drainage pipe from Burnham Road B-13. Main Street Apartments - Open ditches between structures that drain to Fanno Creek B-14. Calvin Presbyterian - Open ditch bio-swale along northerly property line on Church site at 104th Ave and Canterbury Lane MAU.Isk+gf.mem - August 24. 1995 ~ . y 00 'tea g AGENDA ITEM # For Agenda of Aug gst 29. 1995 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Purchase of the Burlington Northern property. PREPARED BY: U^4''''7DEPT HEAD ®K CITY ADMIN OK ISSUE BEFORE THE COUNCIL Update Council on the status of the purchase of the Burlington Northern property. STAFF RECOMMENDATION Staff recommends that Council give direction to staff to submit an offer to purchase a portion of the Burlington Northern property on SW Main Street for the purpose of creating additional off-street parking to benefit the citizens of Tigard and the downtown area merchants. INFORMATION SUMMARY On July 25, 1995, City Council authorized the City Administrator to present an offer to Burlington Northern to purchase a portion of the Tigard Feed and Seed site from Burlington Northern. The City Attorney's office has prepared a draft offer which incorporates language addressing Council concerns as well as the concerns of the Tigard Area Chamber of Commerce. Staff will present the final draft of the offer and associated documents to City Council during Executive Session. OTHER ALTERNATIVES CONSEDE ID 1. Take no action to purchase the Burlington Northern property. FISCAL NOTES he City and Chamber of Commerce individually will be responsible for purchasing a portion of the roperty. If the Chamber is unable to complete its purchase and fulfill its development plans, the City has an option to purchase the Chamber's portion of the property. h:UuginVolsummshet.hnr ~ k r tier - AGENDA ITEM # S For Agenda of _August 29. 1995 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Should the City of Tigard submit a transfer of jurisdiction for a portion of SW Durham Road from the Oregon Department of Transportation (ODOT) PREPARED BY: -''f DEPT HEAD OIL CITY ADMIN OIL &v0-- ISSUE BEFORE THE COUNCIL The portion of Durham Road to be transferred is between Ball Blvd. and Lower Boones Ferry Road. _ STAFF RECOMMENDATION Staff recommends that the City Council authorize the City Administrator to forward a letter to Bruce Warner, ODOT Region 1 Engineer, requesting a transfer of jurisdiction effective upon the conclusion of Washington County's MSTIP/2 improvements to Durham Road. INFORMATION SUMMARY ODOT has indicated a willingness to consider transferring a portion of SW Durham Road to the City of igard. Washington County will be completing road improvements in 1996. By applying for a transfer now, Tigard can receive preliminary approval and begin to design for traffic signals at SW 79th and Durham Road. In the future, Tigard may choose to request a transfer of jurisdiction of Ball Blvd., another ODOT facility located within City limits. At this time, ODOT is not requiring that any additional transfers be required as a condition of this request. ODOT is preparing the necessary transfer language for Council consideration. As a result, the draft letter requesting transfer of jurisdiction is not available at the time of Council packet preparation. A copy of the letter will be forwarded to Council members as soon as possible. OTI R ALTERNATIVES CONSIDERED I. Take no action, leaving.jurisdiction of Durham Road between Fall Blvd. and Lower Boones Ferry Roast with ODOT. 2. Request a transfer of jurisdiction of the State-controlled portion of Durham Road, as well as that portion of Hall Blvd. that is within the City limits. FISCAL NOTES A trq nrfp.r nF iitrisdi~tionn -411 raemmiff d tlbe ri4., ncoswn:o... H LN I--- citV. AMR-% ~rcamca iaai[daaa.acna i~asaa9eaaaaela alD II~AiliLl~afliIfl ariirnain Road. In addition, certain traffic signals at the intersections of Durham Road and Hall Blvd., and Durham Road and Lower Boones Ferry Road could be proposed by ODOT for acceptance. The cost of nergizing the traffic signals as well as the expense of adjusting traffic signals could be borne by the City. I ctual cost is unknown. Ja\n:Naocs\sununsnec.aur Z F~. AGENDA ITEM # 6P. For Agenda of CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Continuation of Public Hearing from 7/18/95 (Quasi- Judicial) - Site Development Review (SDR) 91-0005/Variance (VAR) 91-0010 - Dolan/Mendez PREPARED BY: DEPT HEAD OK _ CITY ADMIN OK ISSUE BEFORE THE COUNCIL Continuation of public hearing for Dolan/Mendez as noted in the Agenda Title above. This phase of the hearing is for Council to review the written rebuttal material submitted by both the applicant and staff. STAFF RECOMMENDATION Staff recommendation will be summarized by City Attorney Ramis at the August 29, 1995, meeting. After consideration of all testimony received to date from the applicant and staff, Council will deliberate with regard to the remand from the Supreme Court to consider: Conditions related to the dedication of property for floodplain management and a bikepath relating to the determination of the rough t, proportionality of those requirements. INFORMATION SUMMARY Packet information consists of the following: 1. Letter Dated August 21, 1995, to Mr. William A. Monahan from Timothy V. Ramis - Request to Strike Exhibits 2. Supplemental Staff Report - August 16, 1995 3. Applicant's August 16, 1995 Memorandum. 4. Supplemental Report from Planning Staff - August 2, 1995 5. Applicant's August 2, 1995 Memorandum 6. Affidavit of Dan Dolan - Received August 2, 1995 7. Memorandum from Cathy Wheatley to File Regarding Transcripts for the June 27, and July 18, 1995, Dolan. Hearing Meetings. 8. Transcript of the Public Meeting on Dolan - June 27, 1995 9. Transcript of the Continuation of the Public Hearing on Dolan - July 18, 1995 Also, in Consent Agenda Item 3.1, the draft minutes of the June 27 and July 18 meetings are submitted for Council approval. These minutes also contain the summary of the hearing meetings which took place on those dates. III I'lex. f 1 ' 9 39 1 11 - ME FM ' o ODONNELL RRMIS ET AL 503-243-2944 Aug 21.95 13:47 No.004 P.02 4. ®'DONNELL RAMIS CR13W CORRIOAN & BACHRACH - N, A AT LAW CLACKAMAS COUNIT O tit tsar. 1 181 N.OML Swo 202 PAWMAa.IMY %1*04 owa=Ono onmps 0701a MARK L.2U$CH T~,Br' 11k(50)) tiC9 DOb18altC 0. COtJ~tM4 Kim 202 CHA1UM IL COr+ w• QW-f A. WVAJAM 1L GAI satnavt~sd~ , 8 81 0 0. PRANK K94MOW Vance, Wa gt MALCOLM JOMSOW HOM 707 MAU F. iv V &MIS August 21, 1995 c s' WILUAW.WrALMAXIM 4Y L WYMAN JAMES M. COISMAN aunt J. VAD spame emwoawaaaaro~~® Mr. William A. 1401 Administrator City of Tigard 13125 SW Fall Boulevard Tigard, OR 97223-9199 1E: 1201/Id ntng: ~a~u~ae en ~1, ahibit8 Dwr Mr. Monahan: I am writing to request that, as part of the August 29, 1998, hearing, the Council rule that Zxhibits A and R of Applicant's August 16, 1995, Memorandum cannot be included in the word for consideration in this . Bluth abibits am clearly "new evidencom which the Applicant is attempting to add to the rd In violation of the procedure agreed to at the July 18, 1995, mating. The agreed upon pwcadure required now evidence by 5:00, August 2, 1995. it was agreed and ap hied by the t7r1ci1 that the August 16, 1995, respanwo would not p 1de new evidence. The reament of the parties and the ruling of the Council is clearly dacribed in the July 19, 1995, letter from the City Administrator. The Council diractt that his letter be mt to the pudes w that there would be no uncertainty about tL r4r $ upon proms, Tho letter c1mly states that the August 16, 1995, mpon are to be submitted 'without raisins now rues or providing new evI..® 110 y q Y ''EMNIffAMETAM m ~ QDONNELL RAMIS ET AL 503-243-2944 Aug 21.95 13:48 No.004 P.03 O DONNELl. BAMIS CR9W CORRICIAN & BACH H Mr. William A. 'ARonahM Aupot 21, 1995 e 2 :x As the Pint *Wcr of buainm at the August 29, 1995, mating, Exhibits A and 11 dwuld be strickw from the ward. Very truly yours. Tilhothy V. Rarnia TVR/®b cc: Mr. John W. Shoinkiwiter F , 11 SAM 'll MEMORAN DUNi DATE: August 16, 1995 LAUB 16 1995 TO: Tigard City Council P FRONT: Planning Staff RE: Supplemental Staff Report for SDR 91-0005NAR 91-0010 I. INTRODUCTION .Y Considering all of the evidence, the City has shown that the dedications called for in revised Condition 1 are roughly proportional in nature and extent to the impact of the development. As reviewed below, the City has shown through several complementary methods that the floodplain easement is roughly proportional to the drainage impacts of the development. Similarly, the City has applied reasonable methodologies to show that the project's traffic impacts r will exceed the value of the required dedication. Furthermore, the City relied on the independent LUTRAQ study to show that the pathway will be effective in mitigating the increased traffic the ` n expansion will generate. In Applicant's most recent submission, she has continued to argue that the City has not } met its burden in this case. However, as detailed below, the recent arguments of Applicant's attorney, son and traffic consultant are in error. The City has justified the proposed exactions under the Supreme Court's test. Therefore, the Council should impose the condition as recommended by Staff. H. ANALYSIS A. The Condition is Roughly Proportional to the Drainage Impacts of the Proposed Development In Applicant's most recent submissions, Mr. Shonkwiler made several arguments concerning drainage. From the content of those arguments, Mr. Shonkwiler apparently is laboring under the belief that the exaction must be exactly proportional to the development's impacts. However, as detailed below, Mr. Shonkwiler's arguments are misplaced. In the end, the development will cause an impact of roughly the same magnitude as the value of the proposed exaction. The condition is roughly proportional. 1. Cumulative Effects In response to Mr. McGuire's Memorandum dated July 17, 1995, concerning cumulative impacts, Mr. Shonkwiler 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 f~ : z FE I Y k, Memorandum to Tigard City Council Re Supplemental Staff Report for SDR 91-0005NAR 91-0010 August 16, 1995 a Page 2 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. ' In fact, Mr. McGuire's analysis is a conservative estimate. If he had included all land in the Fanno Creek basin, the result would have been even more devastating to Applicant's position. Mr. Shonkwiler overlooked that while some of Tigard is outside the Fanno Creek basin, parts of Beaverton, Portland, Lake Oswego, Durham, Washington County, and Multnomah County 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. Further compounding the impact of these areas with respect to drainage, is their steeper topography. It results in proportionally greater volumes in peak flows of runoff. As in-fill occurs, streets are improved and storm sewers developed, storm water will quickly drain to the lower elevations and Fanno Creek. `t. Considering these factors, Mr. McGuire's is a brief and conservative analysis that accurately describes the cumulative effects of runoff in the drainage basin. A full accounting of the entire drainage basin area, 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 claimed that there has been no rise in the floodplain since the C112M Hill Report. To Staffs knowledge there is no evidence in the record to support that position. Figure 5.2 of the CI-12M Hill Report shows 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 is higher than the existing, indicating a rise in flood elevation resulting from development and increased flow rates. The CH2M Hill Report thus recognized the impact of development on existing flood plains. Future urbanization within the Fanno Creek basin will significantly increase flooding problems. The CH2M Hill Report 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 Report. We are also nearing the year 2000. To state, as does Mr. Shonkwiler, that there has been no rise in the floodplain elevation ignores the C112M Hill Report, basic hydrology and hydraulics, as well as common sense. Mr. Shonkwiler also criticized Mr. McGuire's analysis because it did not distinguish between residential and commercial development. He asserted that "commercial and industrial r properties are approximately three times higher in storm water runoff than residential." Again, this statement is damaging to Applicant. The Dolan site is proposed to be developed as a MEN Memorandum to Tigard City Council Re Supplemental Staff Report for SDR 91-0005NAR 91-0010 August 14, 1995 Page 3 commercial property and will generate runoff accordingly. The impact of development of this site will be "approximately three times higher" than a similar residential development. 2. Need for Public Control Mr. Shonkwiler continued to argue that the City has not shown the need for public control of the Fanno Creek floodplain, but the City has made such a showing. On July 17, 1995, Mr. McGuire, an expert engineer, testified as follows: 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 of public sewers is a traditional agency function. Providing maintenance on a larger scale allows purchase of specialized equipment and trained labor. Because 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 like the Panno Creek drainage. Uncoordinated maintenance by individual owners would not be effective. McGuire Memorandum dated July 17, 1995 (emphasis added). The Drainage Plan recognizes these factors in recommending that the City acquire easements to allow improvement and maintenance of the creek channel. Drainage Plan at 7-13 to 7-15. 3. Effect of Wader Quality Facilities .Applicant, through Mr. Shonkvviler, also continued to argue that the City has erred in not considering water quality facilities in computing the runoff effects of her development. However, the City has taken the correct approach. l,iIilill III NINE! lil 1, Egg, 1; ii IN I Ill Jr77 - Memorandum to Tigard City Council Re Supplementai Staff Report for SDR 91-0005NAR 91-0010 August 16, 1995 Page 4 In opposition to the testimony of Applicant's lawyer, the Council has received expert testimony as to the effectiveness of water quality facilities from Mr. Berry, a qualified professional engineer. Mr. Berry found that the water quality facilities do not provide any retention benefit in a 25 year or larger storm because they are not designed to operate in those circumstances. Furthermore, Mr. Berry has testified that CH2M Hilt did consider such facilities in its report, but did not find them to provide any benefits relating to severe flooding. Although Mr. Shonkwiler has criticized Mr. Berry's testimony, Mr. Shonkwiler is not an expert in the field and has presented no evidence to support his layman's arguments. For example, Mr. Shonkwiler claims that upstream water quality facilities have resulted in a 10 percent reduction in runoff However, staff is not aware of any evidence to support that claim, and Mr. Berry's August 1 memorandum notes that the Drainage Plan does not indicate any such mitigation in runoff that can be attributed to such facilities. Assuming for the sake of argument that Mr. Shonkwiler is correct that upstream water quality facilities offer some small benefit in detaining storm runoff, the argument is still not helpful to Applicant. The same development that is required to provide water quality facilities can also be expected to acid 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 Fanno Creek in greater volume and at higher peak rates following development. Hence, developments use up far more drainage capacity than the limited amount they might supply in water quality facilities. 4. Effect of Bridge Improvements In her last submission, Applicant, through the opinion of her lawyer, continued to argue that the replacement of the Main Street bridge negated the need for further protection of the public through control of runoff from her site. The City has, however, presented ample evidence showing that her position is incorrect. Mr. Shonkwiler claimed that because most of the storm water runoff in Fanno Creek is upstream of the bridge, replacement of that bridge is alone enough to create adequate capacity for the Dolan project. Mr. Berry, however, explained why that is not so. The City has established that most of the Main Street improvements were not done along `:,With the bridge. Accor A- t Mr. Berry, moreover, the bridge was not the primary cause of flooding. Instead, channel constrictions--some of which must be due to the fill placed on the Dolan property--are 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. The creek is like a coronary y~ - Vic... .c;rr-•~ ; ? _?mot.. _ a Memorandum to Tigard City Council Re Supplemental Staff Report for SDR 91-0005NAR 91-0010 August 16, 1995 , Page 5 artery. Removing a narrowed channel at one point, but not at another, does not cure the problem. Furthermore, 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. Shonkwiler apparently still believes that the C112M Hill report shows that replacement of the bridge alone solved the City's flooding problems. However, as Mr. Berry testified, the C112M Hill Report does not say that replacing the bridge will have that effect. Furthermore, the report does not say that making only a few of the other suggested improvements would solve the problem. Instead, the report predicted a 1.5 foot reduction in the floodplain if all of the improvements were completed. The City should reject yet another assertion of Mr. Shonkwiler. He claimed that improvements less than all of those called for in the, Drainage Plan have resulted in adequate capacity by partially achieving the goals of the Drainage Plan. He then asserted that the Dolan development's impact will be very slight. He was mistaken. Mr. Shonkwiler reasoned that the improvements have been able to prov-de sufficient capacity at the Dolan site. As a factual matter, no evidence in the record indicates that the floodplain has not risen since the Drainage flan was written. Indeed, as detailed above, the only reasonable conclusion is that the floodplain has risen. Additionally, Mr. Shonkwiler's argument was based on the assumption that 150 feet of elevation is an acceptable level of service for the drainage system. a The assumption is, however, badly misplaced. The Drainage Plan identified flood problems under the conditions existing at the time of the study. At that time 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, to providing an increased margin of safety and to mitigating the effects of new development. The Dolans, therefore, should be required to mitigate for the additional drainage impact they will have on the system. x Memorandum to Tigard City Council Re Supplemental Staff Report for SDR 91-0005NAR 91-0010 August 16, 1995 Page 6 5. The Condition is Roughly F roportional to the Drainage 1 tiapacEs of Applicant's Froposed'Development Unsatisfied with the City's analysis of drainage impacts, Mr. Shonkwiler continued in Applicant's last submission to claim that the City had failed to prove rough proportionality. The nut of his argument appears 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 is not entirely clear from this paragraph what approach Mr. Shonkwiler would find acceptable in allocating drainage costs, his contention does merit a response. In contending that the City must assign proportionate values to each property up and down Fanno Creek, Mr. Shonkwiler appears to be saying that the City must for each property make an exact analysis of impacts and proportionality. However, that is not the test selected by the United States Supreme Court. The Court held that the City had to show a rough proportionality between the impact ofthe project and the exaction. 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, the City has shown through several methodologies that the impact of the development is proportionate to the $1,300 value of the exaction. In summary, the City has shown the following: • The value of the exact;on is far less than the cost of on-site detention or retention, or the cost of in-stream detention. In response to Mr. Smith's argument that the City was required to use the Drainage flan methodology and that that methodology would satisfy the rough proportionality requirement, the City showed that the impact of the project would be $1,603.' 1 Applicant's reaction to the City's calculations under the Drainage flan shows a } lack of sincerity in claiming willingness to bear the cost of development. At the first hearing, W. Smith, one of Applicant's attorneys, commended the plan as the correct approach to calculating 7:5 n Memorandum to Tigard City Council Re Supplemental Staff Report for SDR 91-0005NAR 91-0010 August 16, 1995 Page 7 In the last submission, the City showed that by using USA's drainage system development charge methodology the impact would be calculated at $4,068 (for the 100 year flood). Through all of these methods one result stands clear: the value of the easement is less than the probable impacts of the development. Because the City is required only to show rough proportionality, these quantitative efforts more than meet the Supreme Court's requirements. B. Condition 3 Requires Repositioning of the Building Mr. Shonkwiler also contended that Condition 3, which Applicant did not appeal, does not control the location of Applicant's building. His view is mistaken. The City has reasonably interpreted Condition 3 to require Applicant to locate the building out of the area for the bike/pedestrian way as originally requested. Furthermore, Applicant has been on notice of that interpretation, and, as detailed below, Mr. Shonkwiler's arguments to the contrary miss the point.' Condition 3 provides in relevant part as follows: "The applicant shall submit a revised site plan showing the relocation of the phase one building outside of the greenway area. . . Whether the building must be relocated turns on the definition of "greenway" applicable to Condition 3. The Park Plan provides the needed definition: Creenways include both developed greenways with paved pathways and undeveloped natural areas in which pathways will be constructed in the future. Park Plan at 5. Hence, the definition of "greenway" incorporated in unappealed Condition 3 included the 15 foot wide pathway. Because Applicant did not appeal Condition 3, the order requires her to build outside the greenway defined to include the full pathway. Considering this interpretation, which the City has consistently adhered to and of which Applicant has been aware, Mr. Shonkwiler's arguments become irrelevant. Those arguments focus on general setback requirements, not on the specific requirements of Condition 3. Although his analysis of the general setback requirements may be correct, his analysis does not take issue with the effect of Condition 3. 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 the City on other grounds. Mr. Larson has also testified that a notched pathway would present safety issues. ,x 11~~jsgggl ISO WE W NQ=16W MEN= d y r - - - - - Memorandum to Tigard City Council Re Supplemental Staff Report for SDR 91-0005NAR 91-0010 August 16, 1995 Page 8 C. The City's Traffic Analysis is Correct Mr. Shonkwiler and Mr. Woelk also argued that the City's estimate of traffic impacts is deficient. Mr. Shonkwiler claimed that Mr. Woelk disagrees with the approach the City took in applying the LUTRAQ study, but the record shows that Mr. Woelk only disagrees with the traffic counts the City used. He admitted in his opening testimony that Mr. Larson had used the correct methodology to analyze impacts but had overstated the traffic counts. Mr. Shonkwiler also repeated his claim that the TIF Ordinance somehow bars the City from imposing this exaction. As shown below, that claim is without merit, as is Mr. Woelk's claim that the City used the wrong trip generation figures. Applicant continues to misunderstand the City's methodology in quantifying the impacts of her development. Mr. Shonkwiler said in his most recent submission that the City is improperly imposing an extra charge over the TIF.3 However, the City has used the TIF as a reasonable basis on which to show that the exaction is proportional to the impact of the development. The factual basis for the TIF provides a factual basis for deciding what costs are associated with increased traffic from development in the City. Applicant has never really taken issue with that position, and Mr. Woelk appears to agree with it. Once the impact of the development is calculated and an adjustment is made for TIF payments, a reasonable basis exists for calculating the impact of the development. The TIF is not being applied in this case. Instead, the City is relying on the work already done by the County to aid it in making the quantification required by the United States Supreme Court. Thus, because the City is making an adjustment in its exaction calculation for TIF fees Applicant will pay, the City's approach will not result in a double charge, as Mr. Shonkwiler apparently believes. Mr. Woelk and Mr. Shonkwiler also continued to argue that the City must apply trip counts specific to the A-Roy stores. However, Mr. Larson, an expert in this field, has advised the City that it should apply a range of potential results because the approval will allow the Applicant a range of potential uses. Considering the breadth of this approval, Mr. Larson's suggestion is eminently reasonable. When that approach is taken, impacts from the development include Mr. Woelk's estimate of $17,071.22 and Mr. Larson's estimate of $33,496.22. All of these values far exceed the value of the pathway easement, which expert appraisers have set at $4,300. The range thus shows the exaction to be roughly proportional to the impact of the development. 3 W. Shonkwiler has also claimed that the City is over-charging because of its Parks SDC. However, the capital improvement plan does not provide for acquisition of this property. Furthermore, commercial developments such as this do not pay the SDC. See Ord. 91-19. Therefore, Mr. Shonkwiler's argument is without merit. 7r~ . t Memorandum to Tigard City Council Re Supplemental Staff Report for SDR 91-0005NAR 910010 August 16, 1995 Page 9 Applicant also continued to argue that the pathway is not needed or will not achieve the trip reductions expected. In its last submissions, however, the City demonstrated that the path was necessary to achieve the trip reduction predicted in the LUTRAQ report. Mr. Larson also testified that the planned location for the path is reasonable and necessary, rebutting Mr. Dolan's claims in his affidavit. Finally, LUTRAQ is the only independent study presented to the 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 other factors is 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 for planning purposes local governments could expect the reductions in auto usage predicted by Mr. Larson's application of LUTRAQ in this case. Therefore, the Council should reject Mr. Dolan's arguments. Finally, Mr. Woelk argued that the City has not shown what effect this development will have on intersections in Tigard. He missed the point. Mr. Woelk has to agree that each new trip has a cumulative impact on the City's traffic system. Each individual trip thus has a cost that it imposes on that system. 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 has developed a reasonable basis for deciding the cost impact of the Dolan development. It has also shown that the exaction's value is far less than that impact. Therefore, the City has satisfied the Sup eme Court's test for rough proportionality. D. The City Should Reject the Affidavit of Dan Dotan Applicant also submitted an affidavit from her son, Dan Dolan. Mr. Dolan stated in his affidavit that the store will be limited to plumbing and electrical supplies. However, he missed the point. Mir. Larson has testified that the City must consider all possible uses for the store in making its traffic analysis. The record also contains evidence that other small stores in the A-Boy chain sell an expanded product lire and that the Barbur store is the "flagship" of the A-Boy stores. Moreover, Applicant has asserted that she has been damaged in not being able to expand the product lines in the Tigard store to meet competition. Notwithstanding Mr. Dolan's self- serving representations, the City must consider a range of traffic generation options in making its decision. Mr. Dolan also disputed the appraisals introduced by the City. His analysis is not credible because he is not an expert appraiser and offers nothing to substantiate his opinions. By way of comparison, .the City has submitted independent appraisals showing the easement.values to be $1,300 for the floodplain and $4,300 for the pathway. Those appraisals are based on comparable values and are in accordance with accepted professional standards, and they take into account the Memorandum to Tigard City Council Re Supplemental Staff Report for SDR 91-0005NAR 91-0010 August 16, 1995 Page 10 matter of severance damages. The same analysis applies to the testimony of the City's independent appraisers finding that security issues would not reduce the value of property not subject to the easements. Therefore, the Council should accept the appraised values and reject Mr. Dolan's self-serving statements. Mr. Dolan's claims concerning alternative locations for and the efficacy of the pathway are equally without merit when compared to the expert testimony now before the City. In the last staff submission, Mr. Larson analyzed other potential locations for the pathway on the Dolan site. He found that the pathway along the creek was the best and only practical location for the path. The City should rely on the advice of its engineer rather than Mr. Dolan's self-serving assertions. Mr. Dolan's final argument deserves special mention. He asserts that the City cannot give Applicant a fair hearing because the Dolans have sued the City in Circuit Court. However, it was Applicant who introduced facts concerning the Circuit Court case in this matter. And at the last hearing Applicant's attorney solicited a settlement discussion with the Council. Furthermore, it was Applicant who initiated the Circuit Court case. The upshot of the bias claim would be to disqualify the Council from exercising its land use authority whenever an applicant brings an action against the City. For these reasons, any claim that discussion of the lawsuit in these proceedings indicates bias is without merit. M. CONCLUSION The City has shown through several complementary methods that the floodplain easement is roughly proportional to the drainage impacts of the development. Similarly, the City has applied a reasonable methodology to decide that the impact of the development will exceed the value of the exaction. LUTRAQ, moreover, is the only independent study before the Council which analyzes the effect of pathway development on trip generation. As applied by the City's expert consultant to the specific facts of this case, LUTRAQ shows that the exaction will mitigate for the effects of the development. Considering all of these factors, the Council should impose Condition 1 in accord with Staffs recommendation. gfh/tigard/u ImVnegotitate/supplemtmmi(8/16/95) 1151'111'1111 P- I Y f ~Z ':14J m IC - - e i ILL-Lit LA 6 16 BEFORE THE CITY COUNCIL OF THE CITY OF TIGARD IN THE MATTER OF THE APPLICATION OF ) APPLICANT'S DOLAN/A-BOY SITE DEVELOPMENT REVIEW ) AUGUST 16, 1995 SDR 91-0005NAR 91-0010 ) MEMORANDUM The following are responses to evidence previously submitted and new issues raised. 1. DrainaM The City Staff asserts that the applicant says it is willing to pay its "fair share" of cost impacts but claims that the Dolan site itself will not cause the capacity of the creek to be exceeded. This, of course, is a mischaracteriaation of the Dolan's argument. The issue here is whether the City has met its burden of proof regarding the impacts for requiring a greenway easement. The Dolans argue that the reports the City rely upon are all flawed in their basic analysis. The projected improvements in the CH2M Hill plan adopted by the City and partially implemented to date, ultimately result in greater capacity of floodwater flows through the Fanno Creek basin. This, in turn, creates greater capacity or a lowering of the 100 year floodplain at the Dolan site. The City refuses and utterly fails to calculate a credit to the Dolan stormwater generation allocated for a shared basis in this excess capacity. Further, the Applicant has presented testimony and evidence that the water quality facilities being built in the drainage basin and the City's collected fees in lieu of these requirements (for City facilities that will be built from these fees) have the effect of reducing stormwater flow into the floodplain. These calculations were not included in the CH2M Hill report, and therefore the floodplain level analysis is out of date. The water quality facilities required by the City are substantial and provide an average pond water depth of 5 feet with approximately 1 foot of depth maintained for water quality (dead storage) and 4 feet for water quantity (live storage); maintaining a length to width ratio of 3 to 1 for a 25 year summer storm event. See Exhibit "A." Also, the proposed channel improvements at the Dolan site identified in the CH2M Hill plan, and as designated as necessary by the City Staff as justification for the greenway easement, create greater excess capacity than the stormwater runoff generated from the Dolan proposed developed. Again, the City has failed to calculate a credit for this excess capacity in its "rough proportionately" formula. The City Staff again asserts that benefits of improvements along the Fanno Creek drainage area cannot be evaluated unless virtually all the improvements are completed. First, this is illogical. Each improvement has an impact, otherwise the improvement would not be needed. There may be a cumulative effect on capacity, but the parts still are the sum of the whole. The City Staff's assertion that the City should only analyze the "contribution of runoff to the system" is an attempt to ignore one-half of the equation. The problem involves stormwater input, improvements to diminish impact, and resulting reduced stormwater output. The whole point of the problem-solving issue is to look at 2 the results, ie., reduced stormwater output. To calculate fair share responsibility, both the input and output must be evaluated. The City is essentially saying that one-half of this ewduation shall be completely ignored. As a result, the actual resulting impact of the Dolan's development is not being analyzed. Plan Policy 7.2.1 (c) is satisfied by the application and condition that the applicant pay a fee in lieu of stormwater detention. The fee is set forth in USA Resolution No. 93-33 and imposed by the City through intergovernmental agreement and its code. Where the City has required stormwater facilities contribution by an applicant, these contributions have been either the construction of an on-site detention facility or the payment of a fee in lieu of the construction. No requirement for contribution to the alleged excess or "unmitigated" impact above the calculated fee has been required. The Dolans are uniquely being required to meet a different standard than all other applicants. The City Staff then asserts that two prior decisions of the City (attached as Exhibit 2 to the City's Memorandum) support the City's policy of requiring dedications to offset drainage impacts. The first example is application "SL 7-85". Contrary to the City Staff's declaration, this application involves substantial landfill of the 100 year floodplain to create "a parking/outdoor storage area within the 100 year floodplain of Fanno Creek". Thus, the condition 5 for dedicating the greenway only pertains to what is remaining of the floodplain after the substantial landfill. This, of course, is a tradeoff between creating parking area in a floodplain that the applicant had no prior right to accomplish. The Dolan case is exactly the opposite. This application is only for construction of the Dolan development on lands completely outside the floodplain or greenway. There is no tradeoff incorporated in the Dolan proposal. In fact, the example by the City is rather ironic. There, the City was perfectly willing to allow the floodplain to be substantially violated by landfnlling. And, there is no evaluation of the stormwater runoff generated from the development of this site and a relationship to the greenway dedication. In fact, the greenway is substantially reduced by the development and so the dedication "rough proportionately" is equally reduced. This approval rather clearly identifies that the City had no policy or practice of imposing greenway dedications that compensate for stormwater runoff generated by a proposed development. The second example of "SUB 92-0001" is equally illustrative of the City's failure to apply an impact analysis to other developments in the same manner as they are attempting to apply it to the Dolan''s development. In this 1992 approval, the application was for a residential `subdivision. Residential subdivisions are treated differently under the City's regulations than are commercial projects. Thus, this is a poor example for the City to base its argument. In reviewing the decision, it is quite apparent that the street dedications for the project were all related to either on-site (internal) or frontage improvements. No additional traffic improvements were required. The pathways were all related to internal circulation or connection to a land locked parcel adjacent to the site. Again, there is no mention of integrating the sidewalks or pathways to a City 4 , i s 3 pedestrian/bicycle pathway system. No dedications for such a connection were required. Even the stormwater runoff is to be handled only by requiring a stormwater pipe (instead of an open drainage ditch). However, the stormwater is not handled to reduce the impact on the Fanno Creek or Tualatin River drainage basins. Instead, it is allowed to be dumped into this pipe (replacing the open ditch) and transferred to the King City stormwater system. No attempt is made to detain or provide a method of controlling this stormwater from adding to the 100 year floodplain accumulation. It is not surprising that the City can not show a prior or contemporary plan to require stormwater and traffic impacts that is similar to what they are attempting to impose on the Dolan's application. The City has no ordinance provision to impose or calculate this alleged excess or "unmitigated" stormwater impact and traffic impact. All decisions made by the City before, during and after the 1991 approval of fie Dolan development have not required any of these excess impact dedications. See the exhibits of all the commercial approvals granted by the City in 1991 (Memorandum of Dolan/A-Boy, Inc. Dated June 27, 1995, Exhibit I). With the exception of the George Morlan application, all other commercial developments were not required to make any such comparable dedications. 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). This approval pattern establishes that the City applies an unequal standard for lands that are abutting the floodplain and, thereby, requires those landowners to carry an unfair or disproportioned burden for implementing public interest projects and developments. This, of course, violates the equal protection, due process and taking clauses of both the Oregon and United States Constitutions. The exhibit identifying a "Conversation with Randy Wooley" only establishes that the City has no policy nor regular practice of maintaining the Fanno Creek drainageway. The City has only entered the drainageway to remedy emergency blockages. These emergency matters easily fall within the City's authority to resolve emergency conditions that cause a threat to public health, safety and welfare. In deed, the City has no easement or ownership rights for much of the floodplain, and their admitted emergency maintenance was carried out without the necessity of acquiring a public dedication. Periodic maintenance of the drainageway (clearing brush, etc.) can also be easily regulated by the City to require the landowners to carry out this maintenance. Thus, the City has failed to show any evidence supporting the necessity of a public ownership of the greenway or floodplain. The City Staff also alluded to possibly relocating the Unified Strange Agency sanitary sewer main that runs through the center of the Dolan property. All costs associated with ` such a removal and replacement would be "borne by the applicant". Albert R. Kinney, Jr.,PE., is a registered engineer and planner and has stated that the replacement of the sanitary sewer main involves more than: 250 feet of sewer main removal, special shoring of a new ditch and subsurface water removal, replacement of sewer pipe, new manholes, 1 !RAI e i 4 excavation of street, and additional pipe for extension to new location; all at a cost that would 'be approximately one-half of a million dollars. Mr. Dolan identifies that this would drive the cost of the project and related rental values to render the property as unmarketable. Exhibit B. In addition, the City's original order in 1991 determined that the Dolan phase 1 building would have to the located so as not to interfere with the fixed location of this sewer line. The City did not seek to modified or appeal that requirement. The City has waived its right to raise the issue of moving the sewer line as an alternative. The memorandum of Tim McGuire, dated July 17, 1995, further illuminates the equal protection and due process violation being proposed by the City for the Dolan application. The water quantity system development charges for the Dolan site are identified as $436.00. This is the comparable fee charged for all other approvals in the City ($180 times the Equivalent Service Give under Unified Sewerage Agency Resolution No. 93-33). However, the memorandum then proceeds beyond the systems development charge that the City employs to identify the County's overall water quantity improvements list resulting in an alleged "unmitigated impact" for a 25-year event (the standard the City uses) of $2, 019. In direct contrast to this asserted obligation for the Dolan's application, the City is not and has not imposed this alleged "excess" or "unmitigated" impact on other properties generating stormwater runoff in the City. The City only makes this requirement of an additional dedication for the landowners adjacent to the floodplain. This is a violation of equal protection , due process and taking provisions of both the Oregon and United States Constitutions. In addition, the McGuire memorandum mixes both water quality and water quantity evaluations together. The Dolans have long challenged the City's Master Drainage Plan for failing to include evaluation of floodplain reduction caused by implementation of the water quality requirements. Now the City seems to be stating that the water quality evaluation applies for calculating impact costs, but magically can not be used to analyze stormwater reduction for floodplain level or capacity purposes. 2. Transportation. The City Staff also asserts that the proposed pedestrian/bicycle pathway cannot be located around the proposed location of Dolan's phase 1 building because it allegedly would be reduced in width and cause a "safety" risk. The pathway can, in fact, be located adjacent to the proposed building and still be over ten feet wide without entering the floodplain. The pathway can also be located further south within the 50 foot wide slope next to Fanno Creek. This latter location would be a little below the 100-year floodplain, but much of the Fanno Creek pathway system is either already constructed or planned to be constructed well within the floodplain. At this location, the City's concern about a "blind spot" is completely resolved. The pathway would loop - - around the corner of the building without site obstruction or pathway narrowing. There is nothing in the ordinance or public purpose that necessitates that the proposed pathway must force the Dolan's phase 1 building to be moved. The ordinance also sets forth that the pathway is public and not related to the greenway public purpose of floodplain management. Indeed, the City did not assert that the pathway was an integral part of the greenway requirements in the prior approval and appeals. The City has consistently ftai;k~: §11111 1: 1111i!~! 5 maintained that the pathway is solely supported by enhancement of the public purpose for transportation. The City has waived any argument or interpretation that the pathway is needed for floodplain or greenway management. The City has not submitted any evidence or identified any requirements why the proposed pathway cannot be located on the south side of the creek where it would connect with the existing pathway west of Main Street. The City attempts to say that the pathway is necessary to connect to businesses in the City center at Main Street. But the City suggests that having the pathway run through or adjacent to the Dolan's proposed parking lot would be incompatible. This position is not consistent. The pathway runs next to many businesses in the City, crosses parking areas (including public), crosses between buildings (including between the City Hall and the City Library). Having the pathway sandwiched between a non-public access floodplain and the building is not a "more clearly defined public space" along the creek. Running the pathway along the creek is not a physically more direct route as asserted by the City. In fact, that location will bend the pathway southward and on a less direct line to Main Street. If the purpose of the pathway is to connect to "major generators," then connecting to be internal Dolan pedestrian circulation plan would allow a connection to the business district 200 feet earlier, thus more convenient and efficient. Also, there is no conflict with vehicles maneuvering because the pathway can follow the building plans and be along the side of the store. The City fails to evaluate why the pathway cannot be located at the north side of the property separately from the proposed Dolan development. Again, this location would meet all of the City's declared purposes and would not require removal of the phase 1 building. Placement of the pathway along the creek is not "the established standard" as asserted by the City. The pathway runs beside several buildings throughout the City and is proposed to be located in places throughout the City where there are no creeks or streams. See Exhibit "C." The Burnham Street alternative pathway has been previously discussed as satisfying the connection requirements. All that the City's comments add are the assertion that there will be "significant out-of-direction travel". An examination of the pathway system map in the above exhibit shows that this is completely without merit. The Burnham Street pathway parallels the proposed Dolan pathway, but is only one block away. There are no major generators for traffic that are located at or near the Dolan property other than the do--Amtown city itself. Interestingly, the City's pathway plan does not designate Main Street has a major generator. Also, Burnham Street connects Main Street to Hall Street in the most direct route (as opposed to the proposed meande.ing pathway along the creek). From Hall Street, pedestrians and bicyclist are a short distance from the City Hall and public facilities. Requiring the Fanno Creek pedestrian/bicycle pathway is duplicative and only supports recreational uses. The City's citations to the Pathway Plan at pages 1 through 2 do not aid its argument that the Fanno Creek pathway contributes to replacing 15% of automobile traffic. These 6 Pathway Plan provisions identify that it applies only to "certain neighborhoods" and for those areas where there is "major pedestrian and bicycle traffic generators". The Pathway Plan then defeats the City's argument by showing that there are no "major generators" within reasonable access to the Fanno Creek pathway system. Exhibit "C." In any event, the City is requiring a specific pathway system to be connected through the Dolan property. There is no evaluation or finding that this Fanno Creek pathway system possesses a 15% automobile traffic replacement allocation. Evidence submitted by applicant determines that this pathway will produce "0" pedestrian/bicycle replacement of vehicles. This evaluation is based upon actual surveys conducted by the Applicant. The City has failed to provide any reliable ,evidence to rebut these surveys. Essentually, the City's position is that it does not have to make a individualized evaluation of the impacts but can support its dedication requirements by only generalized pedestrian/bicycle calculations. The City also asserts the argument that impacts from the Dolan development must be considered on the basis of examining all the possible uses that are allowed in the zone. Essentially, this is arguing that consideration of all uses means calculating the development impacts upon only the worst possible impact generator. This is a novel approach that is not used by the City as part of its development standards when the Dolan approval was made in 1991. All traffic and other impacts for a specific application were calculated not by the worst possible use in the zone, but by the actual use proposed in the application being reviewed. See Exhibit I attached to the Memorandum of Dolan/A-Boy, Inc., dated July 27, 1995. Not only is the City's proposed policy, of calculating the worst case impact for purposes of development impacts and related public facilities analysis, illogical, it would result in public facilities capacity far exceeding the actual demands needed by developed uses. Everything would be overbuilt and landowners providing this excess capacity for overall City benefit would constitutionally be entitled to a reimbursement. Such a requirement should also violate LCDC Goal 11. The City's assertion that half street improvements would cost between $150 and $200 per lineal feet of street frontage is not support for requiring a pathway exaction. The street frontage along Main Street, including the sidewalks, are already fully developed. This construction was completed before the Dolans filed their application. Essentially, the City is saying that those who have the improvements already in place and paid for must pay for them again as if they were re-constructed. Whereas, those landowners without any street frontage improvements would only be required to contribute once. Again, the City is attempting to apply an unequal standard to the Dolan application. Finally, the City attempts to say that they can require the Dolans to dedicate land for a pathway, maintain the pathway and construct the pathway as part of a consistent policy the City has for such improvements. However, the past approvals of the City's commercial projects prove otherwise. See the above described Exhibit I that included the City's 1991 commercial project approvals. In deed, the City's own example of pathway requirements (SUB 92-0001) only required dedication of the pathways, and did not even require their construction, let alone their regular maintenance. The City's prime t - t4 7 example of their policy even establishes that the equal protection and due process clauses of the Oregon and United States Constitutions are being violated by the exactions proposed for the Dolans. 3. Notification of Condition No. 3. The City, on one hand says that they have provided notice that condition No. 3 applies to this remand review without modification. However, all references were just to the condition itself. On its face it only purports to require that the phase 1 building be located outside the area of the greenway and out of conflict with the existing sanitary sewer easement. The greenway is defined in the order as everything below 150.0 feet elevation. The City now appears to be asserting, but not directly stating, that the "greenway" includes the pathway. This is completely contrary to the ordinance language, the provisions of the City's order in 1991, and is not supported by any evidence in the record. Therefore, the proposed Dolan phase 1 building is located so as not to encroach upon the existing greenway and sanitary sewer easement. The only conflict that exists is with the City's proposed public pathway. Condition No. 3 is silent as to the public pathway. 4. Report on historic excavations. The William McMonagle's report is based upon several aerial photographs taken before the Dolans acquired the property. First, the issue being raised here is whether or not there was landfill brought to the property. This issue was not raised by the City in the prior approval hearings or on appeal. Since the photographs are from the 1970's and earlier, the City could have obtained this information and raised these issues back in 1991. The City failed to :so this. Therefore, the City has waived this issue. In addition, the photographs do not show any landfill being placed in the floodplain. All the work that appears to be occurring is on land above the floodplain. The photographs merely depict that the parking lot area is being leveled to match the street. The City has 4. no affidavits or testimony from parties observing the work to state anything to the a contrary. 5. Cfonstitutional standard. The actual standard for the second test of whether the exactions meet constitutional muster is that there be an "individualized determination that the required dedication is related both in nature and extent to the proposed development. " Here, the City is attempting to make only a generalized determination of pedestrian/ bicycle traffic replacing vehicular traffic, rather than a specific evaluation of the specific pathway being required for dedication by the Dolan's development. Further, the dedication required is not related both in nature and extent to the proposed development of the Dolans. The Dolans are not proposing the worst traffic generating use in the central business district. However, the City is attempting to hold them to that standard. It simply is not "individualized" nor related to the nature and extent of the Dolan phase 1 building use. The attempt by the City to use excess traffic impacts analysis (above the required TIF fee) also relies upon generalized impacts that do not directly relate to the Dolan application. As previously identified, the Washington County traffic improvements program included many projects unrelated to Tigard, many projects that _i 8 were earmarked for only public authorized funding, and the City has not adopted any regulations to implement this excess impact requirement. The City's past approvals clearly identify that it only applies this excess to the Dolans or other landowners adjacent to the floodplain (in fact, the City's own approval example shows that they are inconsistent with floodplain landowners). 6. TIF fee calculations. The City now asserts that it should not calculate TIF fees during this remand approval process. The City may have adopted a new policy regarding calculating TIF fees (at the building permit stage). However, the approval standards the City was using in 1991 establishes that the City calculated TIF fees during the approval hearings and included them in the approval order. See Exhibit I of the July 27, 1995 memorandum of the applicant. ORS 227.178 (3) requires their application during this remand. The City cannot rewrite all their pertinent regulations during this quasi-judicial proceeding merely to try to escape constitutional requirements. Calculation of the TIF fees, along with consistency with the previous order allowing reduction of parking spaces because the use was limited to bulky merchandise retail, involves recognition that the actual nature and extent of the proposed development is expansion of the existing electrical and plumbing store. As an electrical and plumbing store, the evidence is quite clear that the City's traffic impacts are based upon inappropriate and unreliable use categories, wrongfully resulting in approximately twice the actual traffic generation. This, in turn, unbalances the "rough proportionately" analysis of the City. The City attempts to play a game of semantics in applying the uses allowed in the Central Business District. The City notes that the District allows "general retail" and that the application seeks approval for "general retail". However, the Applicant's prior use of the existing building was for electrical and plumbing retail. This is specifically acknowledged in the 1991 order. The City admits that there is no category under the Code for this specific use. Instead, the City interpreted the Code back in 1991 to mean that "general retail" includes the specific use of electric and plumbing retail stores. The 1991 order allows this existing store usage to continue for the proposed phase 1 building. If the City wanted to interpret "general retail" as including all uses and not specifically electrical and plumbing stores, it did not make that interpretation back in 1991. Nowhere in any of the appeals records did the City raise this issue or interpretation. The City has waived making that interpretation now. i7. --&1 & The recommendations of the City Staff and City Attorney indicate that the City is being directed to apply only certain City code and plan provisions to escape constitutional invalidation of the exactions, while ignoring those provisions that are contrary to the City's directed approach. New methodologies for evaluating impacts are proposed for both stormwater drainage and traffic costs calculations. None of these new methodologies have ever been used by the City against anyone other than the Dolans (or other landowners adjacent to the floodplain). The Dolans are being required to face restrictions unique to their property or to 1991 approval standards. The City Council members have even stated in the public hearing that they have trouble deciding this case because of the constitutional issues raised in a separate Circuit Court case. Therefore, the, s. ' r ~ t ..fir ~ 5' , _ xs 9 City Council should not determine issues of fact, construe the applicable law or make interpretations of code or plan provisions that are related to or affect the preexisting Circuit Court case. Issues of fact that require evidentiary evaluation can be determined, by an evidentiary hearing conducted before LUBA under OAR 661-10-04--- _ The applicant requests that the City refrain from making any such ueierminations that co:allict with the Circuit Court case to avoid violating Applicant's rights of due process and a fair hearing under Articles I, Sections 10, 18 and 20 of the Oregon Constitution and Amendments 5 and 14 of the U.S. Constitution. 8. Imposing a condition of =roval for electrical and plumbing store. The City staff tries to assert that it does not have authority to limit the use of the phase 1 building to electrical and plumbing retail. However, CDC 18.32.090(c) allows the City to impose conditions as part of approving a development proposal. The applicant has identified that the impacts of the development are limited by the scope of the use, ie., an electrical and plumbing store. The City is therefore entitled to make as a condition of approval the requirement for a new application and review if the use changed. This would be necessary to evaluate whether the impacts were increased by the new proposal - requiring increased TIF fees, etc. The City has attempted to assert that CDC 18.120.020 would na, allow the condition. However, the City Staff only focused on the word "modification" to assume that it only applies to a "building". The term "modification" actually refers to tie term "existing developments". Developments includes buildings, improvements and uses. There is nothing in the code provision that limits its application only to a "building". A modification of a use, such as replacing the electrical and plumbing store use, can therefore require a review by the City under CDC 18.120.020; particularly if this is required by a condition of approval. 9. Authority to deny application. The City asserts that the Applicant's attorney has previously admitted that the City can deny the application based upon impacts to the floodplain and traffic. The City is misconstruing the prior comments. On appeal to the U.S. Supreme Court, Applicant's attorney agreed that certain public interests can justify both exactions and denials. However, the Applicant's attorney has never claimed that the City's evidence and findings for the exactions in this case were legally sufficient. Here, the City's evidence is insufficient to satisfy its burden for the exactions. The same insufficiency of evidence precludes a denial where the application otherwise satisfies all requirements of the Code. g ~he~tire range 10. New City policy to require public facilities addressed in 1i of, future uses. The City staff has asserted a new policy not found in the Code or comprehensive plan. Particularly, it is a policy that was not in place in 1991 when the application was approved. Therefore, ORS 227.178 precludes its application in this proceeding. In addition, the policy creates a violation of the equal protection, due process and taking clauses of the Oregon and U.S. Constitutions. The proposed new h policy would require each development to plan for and participate in providing public facilities to serve the entire range of uses allowed in the applicable zone. By its nature, this means providing public facilities capacity for the most impacting or intensive use. r MINES UNINJI11,11 ME NOW! 10 None of the City's approvals in 1991 required this standard. If all facilities were built out on this worst case scenario, the City would receive the benefit of excessive public facilities that far exceeded the actual needs, thereby creating substantial excess capacity. Since the City is applying this only to the Dolans or others who are adjacent to floodplain, there is also an equal protection violation. The acquisition by the public of this excess public facilities capacity beyond actual need would constitute a taking for each landowner who contributed more than his/her share. Finally, the City has adopted no regulations setting clear and objective standards for the imposition of these new requirements. This conflicts with both OILS Chapters 227 and 197. 11. New City policy of req~iri cost shares in drainage improvements in addition in conflict with the City's adopted Drainage Plan. The memorandum of Attorney David Smith, dated June 27,1995, identified that the City's Drainage Plan establishes that cost shares associated with floodplain improvements are to be calculated on the basis of the increase in impervious surface for specific developments. Each development's increase its to the calculated as a fraction of the area's total increase in impervious surface at buildout. Costs estimates for floodplain improvements are identified and each development's proportionate cost share can be accurately calculated. However, the City has abandoned this adopted methodology. Without direction or authorization from any code or comprehensive plan provision, the City now calculates costs of on-site water detention, percolation and floodway improvements increasing creek volume to accommodate the increase in runoff from the Dolan development. The City's response to this identification of unauthorized methodology is to assert that - the City's Drainage's methodology "is not an exclusive method of evaluating the impact cost of drainage from this site." Again, the City has failed to identify why it has not chosen to follow the City's adopted methodology for cost share calculation. The issue of waiver also arises since the City relied in the prior appeals upon the drainage plan and its methodology to support a first test constitutional evaluation of the dedication. It has also failed to identify why or how the "new methodology"' is more appropriate than the City's Drainage Plan methodology. Nor is there any explanation why the Dolan application requires a different methodology than used for all other applications in the City, other than the Dolans being the only landowner to appeal the violation of their constitutional rights to the U.S. Supreme Court. 12. CDC 6 18.120.180.A. 8. The applicant has pointed out that the ordinan ce clearly provides that a pedestrian/bicycle pathway is to be constructed "within the floodplain". The staff now attempts to say that this language is ambiguous. However, the language'is not ambiguous and can easily be read to be consistent. The "greenway" may be both outside,as well as, inside the floodplain. However, the pedestrian/pathway must be always located within the floodplain. That is not ambiguous. Further, the record identifies that the pathway can be located within the floodplain on either the south shore of Fanno Creek or within the 50 root wide slope area on the north shore of the creek (the Dolan's property). The Applicant's engineer identified that the slope area is sufficient and safe for a pathway, and other floodplain pathways exist throughout the City: There is k ~ a'" 11 no evidence that this location is unsafe and the City Staff's assertion that it is too steep is merely a conclusion unsupported by the evidence. The City Staff's request that the City Council adopt an interpretation that the public pathway should be interpreted as being part of the greenway raises interesting conflicts. First, the code and plan provisions do not support that interpretation. Second, the greenway dedication cannot pass constitutional muster because it would allow public access to the Dolan property wholly unrelated to a potentially valid public interest of flood control. The City Staffs request that a public pathway be automatically incorporated into the greenway and both be dedications, resurrects the constitutional violation. The City cannot avoid this dilemma by making the greenway prohibited to the public and place an unrestricted public pathway within that "greenway". The City Staff than suggests that the City's Parks Plan has been determined as not being applicable, because "the plan's concept of public access to the floodplain area could not be carried out". In direct conflict with this interpretation, the City Staff however is attempting to require a pathway dedication to provide public access and that the justification is a connection between this site and other portions of the pathway to the south that are located within the floodplain area. As with many other previously identified provisions, the City is attempting to require compliance with those regulations and Plan policies that support its cause, but wants to egnore the same regulations and policies when they support the landowner's cause. 13. Bridge replacement. The City asserts that the bridges do not act as "artificial dams" constricting the flow of stormwater through the Fanno Creek floodway. However, the CH2M Hill report identifies this artificial dam effect. Page 4-5 of the report specifically identifies the Main Street bridge as an a_*-tificial dam "high floodwaters created by the Main St. Bridge and the upstream channel constriction will inundate commercial and industrial structures on both signs of the creek." The report also identifies that the "100-year flood elevation on the upstream face of the Main St. bridge is projected to be one foot lower than the road surface." Exhibit "D." Figure 4.1 of the CH2M Hill report shows that where each bridge is located, the upstream side of the bridge causes a backup or "artificial dam" effect. Immediately downstream from these same bridges, the 100-year floodplain suddenly drops dramatically. On-- of the most dramatic drops downstream from a bridge is the one for the Main Street bridge. This Figure 4.1 also illustrates quite well the ponding that occurs upstream behind each bridge. The record is uncontested that the Main Street bridge has been replaced in accordance with the drainage plan. The formerly constricted channel under the bridge has also been improved in accordance with the plan. There is a direct beneficial effect upon the floodplain by this bridge replacement and it directly affects this location of the creek. The City has failed to quantify that benefit to determine if the Dolans stormwater drainage requires a proportionate contribution that is equivalent with the dedication of the greenway. ' Under the City's adopted Drainage Plan and its methodology, "rough proportionately" could not be satisfied by the City's continued demand for the greenway 12 dedication. Therefore, the City has invented a new methodology, applied only to the Dolan property, to attempt an escape from constitutional invalidation. This attempt still violates the Dolan's constitutionally protected rights. In a memorandum from Greg Berry dated August 1, 1995, the City challenges the Applicant's assertion that two-thirds of the storm water drainage basin is below the Applicant's property. Contrary to the City engineer's disagreement, Figure 2.2 of the CH2M Hill report identifies that between one-third and one-half of the City is in the Tualatin River drainage area, with approximately one-half of the remainder of the City draining into Fanno Creek below the Applicant's property. See Exhibit "E." Thus, a minimum of two-thirds of the City drains away and below the Dolan's property. Nevertheless, the City is attempting.to impose "excess" stormwater charges to the Dolans for impacts that are unrelated to the nature and extent of their application. Finally, the CH2M Hill report does not make any calculations or evaluations identifying whether or not the water quality facilities will have an effect on water quantity in the Fanno Creek basin. The report's reference to water quality is just a general description identifying that water quality is also important to the basin and City. Subsequent to this report, the City adopted water quality requirements and started enforcing those requirements during land use approvals or required fees in lieu of construction. The City's requirements allowing collection of a fee in lieu of construction provides the alternative of the City collecting fees to provide the necessary water quality detention facilities in more convenient or appropriate locations. The same purpose of storm water quality detention is still required to be carried out. The end result is that a probable ten percent reduction in stormwater flow to the Fanno Creek basin will occur. Respectfully submitted, JOHN W. SHONKWILER, P. C. / q _ L John W. Shonkwiler 112:1 gal r F; 00 ;r UNIFIED SEWERAGE AGENCY 'WATER QUALITY AND DETENTION FACILITIES SYSTEM DEVELOPMENT CHARGEUMPROVEMENT FEI COST ANALYSIS JUNE 5, 1991 I Brawn and. Caldwell EXHIBIT Consultants PAGE -L- OF r 2 The following steps describe the study method: ® Reach agreement with USA on the typical development acreage e Determine which hydrologic method to use for sizing the detention portion of a combined water quality and water quantity facility ® Develop hydrologid criteria for developing the hydrologic model ® Select a water quality facility which is most likely to be "typical" for future development e Size water quality and quantity facility components e Develop cost estimates for the combined facility and determine the percent of the total associated with water quality and water quantity Method The following steps/assumptions were made in developing concept designs for combined and cost estimates for water quality/quantity facilities: ® Evaluate 5 and 20 acre development parcels assuming three classes of land development: (1) residential, (2) commercial, and (3) industrial ® Use the Santa Barbara Hydrograph Method to estimate peak discharges d Use a water quality design storm event which is approximated by a mean summertime storm with a minimum total precipitation of 0.36 inches over a 6 hour storm duration e Design a wet pond as a typical water quality facility based on the recommendations presented in the Portland-Lake Oswego-Clackamas County-USA Water Quality Facilities Design Guidance Manual (a typical wet pond is shown in f=igure 1) . Design a detention facility for three situations: (1),a 25 year recurrence interval (inflow) with a release rats; (outflow) not greater than the predevelopment 25 year peal; discharge; (2) a 50 year recurrence interval with a release rate not greater than the 5 year predevelopment peak discharge; and (3) a 140 year recurrence interval with a release rate not greater than the 5 year predevelopment peak discharge s Use the rainfall depth-duration-frequency criteria as developed for the ongoing USA Subbasin modelling (see Table 1, Appendix A) Q Assume an average pond water depth of a feet with approximately one foot of depth maintained for water quality (dead storage) and 4 feet for water quantity (live storage); maintain a length to width ratio of 3 to 1 EXHIBIT Brown and Caldwell SAGE %L OF % Consultants JOR W. X713 Vl iKWILER, P.C. Attorney at Law 13425 SW 72nd Avenue Tigard, Oregon 97223 Fax 684-8971 Phone 624-0917 August 16, 1995 Tigard City Council Tigard City Hall h Re: Memorandum of Conservations with Albert Kinney, Jr. and Dan Dolan I discussed the issue of digging up the existing USA sewer main running through the Dolan property and relocating it so as not to interfere with the location of the proposed phase one building. Mr. Kinney is an engineer certified with the State of Oregon and a qualified planner. He identified that the sewer main involved over 250 feet of existing pipe that would need to be removed. In addition to excavating the old pipe, there would need to be a new excavation for relocating the sewer main approximately 15 to 20 feet away. The relocation would involve replacement of old pipe, excavation of the Main Street improvements where encroachment is necessary for alignment, shoring up the old and new pipe trench to meet State and federal requirements, providing a process for removal of water from the trench (the water table is high at this location as previously identified by the City's engineer), installation of a manhole at the beginning, end and at each bend in the new relocated pipe (consisting of 5 new manholes), the addition of extension pipe, special back falling, design fees and replacement of Main Street improvements where excavation occurred in street. The estimated cost for the entire removal and relocation of the sewer main would be approximately one-half million dollars. I also discussed the possibility of constructing the proposed pedestrianftyicycle pathway at or within the sloped area along the north bank of the lFanno Creels. This location would enable the phase one building to remain at its proposed location. His evaluation of the slope was that it was more than wide enough to accommodate the proposed pedestrian/bicycle pathway construction, and that this location would be safe for such construction. The distance to the building from this slope area would assure that there was no significant "blind spot" created by the phase one building far pathway use. Mr. Kinney identified that the City also has the option of constructing an elevated pedestrian/bicycle pathway through this section of the creek or, creek slope. EXHIBIT PAGE OF _72- Page - 2 Mr. Dan Dolan identified that an additional cost for development of approximately one- half million dollars (the cost of relocating the sewer main) would drive the cost of the project and the related rental value so high that it would not be marketable for commercial business in the Tigard commercial market for the reasonably foreseeable future. He also concurred that the physical features of the site would allow the pathway to be located at or in the sloped area of the creek's north bank. The City already has pedestrian/bicycle pathways located within the floodplain, and at greater depths within the floodplain than this proposed location. There were no foreseeable impediments to using this slope location for the proposed pathway. John W. Shonkwiler EXHIBIT PAGE R- OF IM: ill ii - All at y } ®E PERT OWrl - DR ss , Ta"o • r .IV~P(Y[SI CZ t I M L[wre. A M MLOCM ' .1 ter a.I.r 0.- PMET e•OeV mr .w wo• M[IVI alOn [pav ♦p r - was er j errrlS i e a [tlu , • ~ °I Der -;~~'~%•'~~r .l p° w Ot T _ _ sr / N601.w0 w I~A• ~ _ - • i 0•lr •pt ilr0 >r°r e'•°•a sew[ ST ' WIIA" p _ it Now\N D•® T~ t { wteN Nttl Ylsofw r ti•- ® • e~a..• IN 0.4- ~ r _ ' ® ewes ` c o f'?c•~ ! im 4(MOI~ r J r[wo •L~tale 00!af..~ =®s gyp'+✓ •O` , .•m.rya m gc.nr b.. met rwtewea.T a'I ~ `sartor ••Om • f. 7/~ ]Q' I p.. ' I ® _ ~Mw>HM it y: ' r.ePC, ® 9 ~ uCC•• . %..Dot •..r [ •a.••. aOst Ow ♦ I 00 • • D! _ • m • Dw•~ ♦r f~ AO iOww.iL w..M ON 1T _ X816 ~ 14 m 9C _ ° ~Y., _ 1. [ p~ S .~w[ r . Gw,ta a 'mom i \..G DV l nT ~ im 8 D_ \ rt~~~•Y°•4• nu.00(. '~lV~m sl e~A•~a• r >p of ~I• ri - .y Iw~ 1 1 L C j .0.9.0. _ IL q I]t~ t lY I, p 11 Si \Ll.6rtt U C `O~wmll Cr m P059 1 V 1 a O ~•IO °[Ylw OD ~Or. ? SO eeDla to tIII 6 ' a ~ °i°° r YD a y` f~,q 'D ~ ♦ o e~O. ° I ° 0 lei•C••~ i T' _ - el0l'T ,reC4 _ O Y ♦ .s r'!'. 1~.~ t CITE CIII •1' R ~ ° ' S .Pt••ep 0 m.KrlC [I + •r 0,%D\e\ _ oaD r,Ce fee ~ ' r1 Cwt 4. e.1 ~''I VA A r, i-'•[gran I 11 els.a. QU t ...f ; a I \ a 1 r ~ 'T 1 ~ ea _ ~ o q/tee. h b • i :Vcre Caton ?0/149-5 EX 91'T / gr1A/ ~ .Dose ~ PD .Wa,i c-,A4 aj ff D wl x I I i Mill III Mi 111111fiI 21; MINOR uo , AT. .165 x 1ao - L1J 155 J., I iu. 146 , 140 136 64ABTE:f1 DRAINAGE PLAN GIN OF TWARD ¢L~0 PROFILES 130 FIIPd a CREEK ? INFER FHRf16d STREAM CEO y~ E R , ~IRYb~A~fn,,,L, BE6ft?N ieuyti6tt 5XISTINO &-YQAA FLOW 1 220100 240DO •28000 28000 30000 32000 34000 38000 41=0 FOiL ' DISTANCE IN FEET FIGURE 4.1 (cont.) I ~~T??'i^"fi_F/ ~'5..srar. ~rt+'°,4't~Wr±K•T,: }?r"~~ T<.T `fMf!?4 . C- " r r ~ - ot. mwera_ _ 0 ;1 MIMI trial building south of Bonita Rd. between S.W. 76th Ave. and the creek will also experience some damage. The upstream flood elevation at Bonita. Rd. is approximately 0.5 foot lower than the road surface over the structure. Bonita Rd. to Hall Blvd. The flood-plain width along this reach will vary from 300 to 700 feet. Little or no flood damage will occur. However, two houses just east of Hall Blvd. and next to Fanno Creek may experience some damage. The 100-year flood is projected to be 0.6 foot over the Hall 'f Blvd. bridge. As a result, the structure may be damaged since the channel velocities will be close to 10 feet per second (fps) Hall Blvd. to Main St. The flood-plain width along this reach will vary from 150 to 700 feet. Industrial, commercial, and residential structures along both sides of the stream will j experience minor flood damages. Several major industrial and commercial structures mostly on the east side of the creek are just barely out of the 100-year flood plain. An increase s,. in the 100-year flood flow caused by future urbanization of the basin could create severe flooding problems in this reach of the creek. The 100-year flood elevation on the upstream face of the Main St. bridge is projected to be 1 foot lower than the road surface. Projected stream velocities of 9 fps may cause some structural damage. Main St. to Tiedeman Ave. The flooding problems along this reach of Fanno Greek are extensive and severe. The flood- plain width ranges from 100 to 1,200 feet. High floodwaters created by the Main St. bridge and the upstream channel constriction will inundate commercial and industrial struc- tures on both sides of the creek. Floodwaters up to 1.4 feet deep are projected to occur in the commercial and industrial structures on both overbanks just upstream of Highway 99W. Extensive residential flooding will occur on the west bank t of Fanno Creek in the vicinity of the cul-de-sac north of Johnston St. Some houses will be inundated on the east side of Fanno Creek just downstream of Tiedeman Ave. The 100-year flood elevation on the upstream face of Tiedeman Ave. is projected to be 0.2 foot lower than the road surface over the bridge. However, floodwaters will be approximately 0.8 foot deep over a low spot on Tiedeman Ave. located about 150 feet east of the east bridge abutment. The Grant Ave. bridge, which has been inundated many times in the past, is projected to be under 2.3 feet of water during the 100-year flood. The possibility of losing the bridge span during a 17. flood of this magnitude is-very great. Tiedeman Ave. to North Dakota St. The flood-plain width along this reach of Fanno creek ranges from 250 to 800 feet. Houses along Tiedeman Ave. next to Fanno Creek are projected to be a. - R -274D 4-5 EXHI BIT PAGE 2.®F 2 - 1 f- 'S• ,n { flT:`:`J~Pr SJ.~ }`.r ;•wn }.c r~ ~'•~S? .qti~. 1t1• r, 1' W i,.t' f 1 r ~ 4 1 1. N • i ' • ad j~,•~ ~ f'°~p :nc ( •`K. ~ I N '~f1,~4 li e. •~j. •l r.~•, ik~^' +ii ~C r ~ k ~i .t ` ' , 'jt, ai• ,•;~'1!i. , rt~~l,~ 1 }•'11 tia In to ~n~ , } G"a'j.,s. •1 J. 'S' a l~r~CSrQ4.•:<. ` {Y,.. .f•}S' •H l,G it ' R, .L.. }'~,1?tom t~ r`j ~y~:: vi. t'~ d~ i~•s''Q('i. ~ ~ • (Y~ ,t~^ Jr1a t • •a rrl\ 1~1• 1 ~ ' ~ ~ ff I f a, `'~3 '`,r 3,; iy ` ,.Y~',.,~,•E.' •+c,:,>~c'~!i tV ~ ` 9 N .1,, 11// I i. 4 {p• ~y' ~'.,},c,R ~.~Yp St ?Y ~t 1'R , +i .h..4 ~'•k i ~ ~ + 2fl; A d3+ta {fir. ~ (y.~ ! 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Dolan This memorandum supplements those previously submitted by staff (dated June 20 and July 11, 1995) concerning the remand of the referenced application. It responds to contentions made by the attorney for the Dolans, Mr. John Shonkwiler, in a memorandum dated July 18, 1995, as well as oral remarks made at the hearing of the same date. Drainage The first two sections of Mr. Shonkwiler's memorandum make various assertions about this project's impact on the City's storm drainage system. The thrust of these assertions is that because implementation of the Drainage Plan will "create greater capacity than is needed for the Fanno Creek basin," the drainage improvements which have either already been made or are to be made under the Drainage Plan "resolve the entire floodplain area impacting and impacted by the stormwater generated from the Dolan property." Shonkwiler July 18, 1995 Memorandum at 3 (emphasis added). Thus, while at the hearing he claims to reaffirm that "the Dolans are willing to of course pay for the actual impacts that they generate on the site," (July 18 Hearing Transcript, at page 2Q), Mr. Shonkwiler argues in his memorandum of the same date that there are no such impacts because the Dolan site itself will not cause the capacity of the creek to be exceeded. Mr. Shonkwiler's assertions about the impact of individual Plan improvements, i. e. replacement of the Main St. bridge, on the floodplain level and capacity of Fanno Creek are rebutted in the memorandum of City Utilities Engineer (Dreg Berry to City Attorney Tim Ramis, dated August 1, 1995, a copy of which is attached hereto as Exhibit 1. That memorandum addresses in detail why these assertions are factually incorrect. In addition to being factually incorrect, Mr. Shonkwiler's comments on the Drainage Plan proceed from the wrong premise. The Drainage Plan does not recognize, much less endorse, the concept of excess capacity in Fa nno Creek. Father, the purpose underlying the Drainage Plan is creation of a system which protects public health and safety by mitigating potential damage from stormwater runoff. Mr. ,5honkwiler's arguments about "excess capacity" are meaningless without, reference to the underlying standard of public safety. This project's impact on the City's drainage system is not measured against creek capacity; it is measured by contribution of runoff to the system. If there is added runoff, then there is impact. This is the basic standard relating to drainage, embodied in Plan Policy 7.2.1(c): "The City shall require ffi- Emil :'a; _y Memorandum to City Council Re Supplemental Report on SDR 91-05/VAR 91-10, Dolan August 2, 1995 Page 2 as a precondition to development that all drainage can be handled on-site or there is an alternative solution which will not increase the off-site impact." The Dolans and the City have both provided evidence of the amount of runoff which will be attributable to this project. Both arrived at figures which are significant, and which, when measured in terms of dollar impact, significantly outweigh the value of the required easement dedication. Mr. Shonkwiler also argues that prior decisions of the City indicate that the actual standard regarding drainage impacts is that so long as adequate capacity exists in the creek, development is not required to contribute to offsetting its drainage impact. However, attached to this report (as Exhibit 2) are prior decisions of the City which required dedications to offset drainage impacts. Also, attached to this report are the following documents related to drainage of this project. June 26, 1995, file memorandum of G. Frank Hammond of the City Attorney's Office (Exhibit 3) regarding a conversation with City Engineer Randy. Wooley about the City's past maintenance practices in the creek. July 10, 1995, letter of Lee Walker of Unified Sewerage Agency (USA) to G. Frank Hammond of the City Attorney's Office (Exhibit 4) regarding the ability of the applicant to get relocation of the USA easement crossing the site. 0 July 17, 1995, memorandum of Tim McGuire of Mackenzie Engineering (Exhibit 5) estimating the drainage cost impacts of the project based upon USA Resolution No. 93-33. Tm ans rtation Also attached to this report (as Exhibit 6) is a copy of the August 2, 1995, memorandum of Traffic Engineer Dave (arson responding to specific issues raised concerning the pathway. Staff will simply highlight those paints here: 0 Narrowing of the pathway to accommodate positioning the building as shown on the site plan leads to an unacceptable increase in safety risks to pathway users; ® Completion of the portion of the pathway system which includes the Dolan site is necessary to facilitate frill utilization of the pathway and full realization of the resulting reduction in vehicle trips; a The Burnham St. pathway is not an acceptable alternative route for bicycle traffic; 0 Routing the pathway through the parking lot shown on the site plan is not an acceptable alternative; r J , Memorandum to City Council Re Supplemental Report on SDR 91-05/VAR 91-10, Dolan August 2, 1995 Page 3 G The best method of analyzing traffic impacts at this site is to consider traffic generation data representative of the range of its potential uses, not the specific use to which the applicant says she intends to put the site. Mr. Shonkwiler also argued that requiring the Dolans to repair sidewalks, in addition to dedicating the pathway easement, violates the Equal Protection Clause by placing a requirement on the Dolans which is additional to that placed on other similarly situated developers. The claim is not persuasive for two reasons. 2inst, in the other cases the applicants were required to make half-street improvements, but the Dolans are not. Second, Condition 14 requires nothing more than fulfillment of the Dolans' preexisting legal obligation, pursuant to Tigard Municipal Code § 15.12.010, to maintain the repair of abutting sidewalks. Miscellaneous In his testimony at the July 15, 1995, hearing, Mr. Shonkwiler made the following allegations about the conduct of the City in this matter: a That the city had not been responsive on the issue of settlement of the circuit court case. The August 2, 1595, memorandum of City Attorney Tim Ramis, attached hereto as Exhibit 7, addresses this contention. 0 That the Dolans had no notice that the proposed building location on the site plan conflicted with the fall 15' pathway easement. In fact, an April 25, 1995 letter from David Scott of the City's Building Department to Albert Kenney (a copy of which is attached hereto as Exhibit 8), the applicant's engineer, clearly shows that the contrary is true. The final paragraph of that letter, copies of which were sent to Dan Dolan and David Smith in addition to Mr. Shonkwiler, reads as follows: "In addition, Condition #/3 was not appealed and is still in effect. That condition required relocation of the phase one building outside the area of the greenway and out of conflict with existing sanitary sewer easements." 15 IRA 1011: ping YMemorandum to City Council Re Supplemental Report on SDR 91-05/VAR 91-10, Dolan August 2, 1995 Page 4 Response to Council Questions NPO Participation in this Approval - NPO 1 completed the City's Request for Comments form in response to the Dolans original application (SDR 89-13), a copy of which is attached as Exhibit 9. Staff finds no other comments from NPO's. Prior fill at the site - The attached letter from William McMonagle of Farris/McMonagle Engineers to the Council, dated August 2, 1995, (attached hereto as Exhibit 10) details research undertaken at the site which indicates that a substantial amount of fill was placed at the site in the mid-1960's, and that that fill was graded in 1970-71. According Mr.,Shonkwiler, July 9, 1995 letter to Council, at page 4, the Dolans purchased the site "around 1970." Mr. McMonagle concludes that the amount of fill placed at the site easily exceeds the amount of excavation that would provide detention of the runoff attributable to this project discussed in the June 20, 1995, memorandum of Tim McGuire. Regulation of Drainageways - While specific drainageway regulation concentrates on the City's main artery for carrying storm runoff, Fanno Creek, the Comprehensive Plan and Community Development Code embody the concept that everyone who develops property must contribute to mitigation of stormwater runoff impacts. The form of contribution may differ - i.e. where upland properties would have to build a water storage facility, cre,°kside properties have the opportunity to address by dedicating a sinail area. As discussed above, the basic Comprehensive Plan standard relating to drainage requires that all development either handle the drainage on-site or provide an alternative solution which does not increase the off-site impact. Enter retation Issues Over the course of this proceeding the meanings of several City Comprehensive Flan and Community Development Code provisions have been discussed. Because the Council is the final interpreter of these provisions, this section is inserted to bring together the issues discussed thus far, and provide guidance on the interpretive process. Portions of Prior Order under Consideration. When considering an application on remand, a, part of the Council's function is to determine the scope of issues which are subject to review. After four levels of appellate review, this remand has a particularly narrow focus. The only portion of the Council's prior approval which was appealed to the U.S. Supreme Court was Condition 1. The only basis for appeal was the validity of that condition under the Taking Clause of the Fifth Amendment of the U.S. Constitution. ry Yy h _ of y OEM m Memorandum to City Council Re Supplemental Report on SDR 91-05/VAR 91-10, Dolan August 2, 1995 Page 5 The Court stated that under the Takings Clause the issue presented requires two distinct determinations: "In evaluating [the applicant's] claim, we must first determine whether the "essential nexus" exists between the "legitimate [municipal] 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." 129 LEd2d at 317 (citations omitted). The Court went on to find that the City had demonstrated the existence of the essential nexus, and therefore the previously undecided question of "the required degree of connection" would have to be answered. That required degree of connection, of course, turned out to be "rough proportionality," requiring an "individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development." 129 LEd2d at 320. It is this determination, and only this determination, which the Council is now required to consider. This means that the overwhelming majority of issues decided by the Council in its 1991 order approving this project are not subject to review in this remand hearing process. Among these issues not now subject to review are several which have been raised by the applicant, including calculation of the TIE' assessment, the approved use of the site, existence of the constitutionally required essential nexus of governmental interest and development impact, and the validity and applicability of Condition 3. CDC 1$.66 - CE%3: Central Puniness Distract - Mr. Shonkwiler claims that in applying for SDR approval, an applicant may designate specifically the intended uses of the site, and thereby limit the range of the impacts of the project which may be considered. In speck reference to this application, he argues that the applicant originally sought review for a "plumbing/electrical supply store," and that designation of the application as being for "general retail sales xacility" use was required by staff at the pre-application conference. Linder his interpretation of the Code, the Council may consider only the former, specifically intended use in this process. These arguments misinterpret the Code provision cited above and the Council's previous order, on this application.' ' The argument is also factually incorrect. The original application seeks SDR approval to allow "replacement of existing sales facility with a larger facility." Nothing in this des6ription can reasonably be said to limit the uses to which the site can be put, as Mr r r i MLC ~ Memorandum to City Council Re Supplemental Report on SDR 91-05/VAR 91-10, Dolan August 2, 1995 Page 6 The prior findings interpreted CDC Chapter 18.66, CBD: Central Business District, as an applicable standard to this application. The applicant did not appeal that interpretation. The basic requirement of that chapter, of course, is that the applicant prove that the use of the site is permitted in the zone. In order to make this determination, therefore, an applicant is not free to designate the use of his or her site. Rather, the applicant must state which of the permitted uses listed in the Code he or she is applying for. In this case, the current application describes plans to tear down the existing 9,700 square foot building and to replace it with a "17,600 square foot building having a general retail sales facility." The requirement of CDC Chapter 18.66 led to the following finding, which the applicant did not appeal: The applicant intends to construct a new and larger structure suited for 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. It has been clearly and conclusively determined, then, that the intended and approved use of site is general retail sales. Mr. Shonkwiler further claims that the 1991 order, in granting a parking variance, recognizes a specific use of the site, viz. "general retail sales, bulky merchandise. " As evidenced by other references in that order, however, this description was never intended as a general description of the uses of the site.' In fact, the order merely recognizes the similarity of the current use to sale of bulky :merchandise, and does not rely exclusively on the current use of the site for justification of the variance. Furthermore, the findings of approval of the variance recognize that the potential for greater impacts. Additionally, the current occupant of the building on the site, A-Boy Supply Co., merely leases the property. The fee title owner of the subject property, Mrs. Dolan, will obviously remain Shonkwiler argues. 2 For example, there is no discussion or recognition of this specific use in the findings on the bicycle parking standard. Rather, the site plan showed the Code required three bicycle racks, and the findings supported this requirement. Logically, if this specific use description had general application to this project, it would have impacted the bicycle parking requirement as well. a ' µ f a- 'r Memorandum to City Council Re Supplemental Report on SDR 91-05/VAR 91-10, Dolan August 2, 1995 Page 7 free to change tenants at any time she wishes. The City may not condition this approval on a restriction of her ability to alter the current landlord-tenant relationship. Plan Policy 7.1.2(b)(1): As set forth in the June 20, 1995, staff report, the Site Development Review process requires that transportation facilities be capable of serving the proposed development through Comprehensive Plan Policy 7.1.2(b)(1), which states as follows: "The City shall require as a precondition to development approval that the facilities are capable of adequately serving all intervening properties and the proposed development Interpretation of this provision is relevant in three contexts. 1) Authority to Impose Exaction. Mr. Shonkwiler has argued that the City lacks authority to impose the condition proposed by staff. However, as previously agreed to by counsel for the applicant, the City has authority to deny this application. The authority to deny on the basis of traffic impacts arises from this Phm policy. This provision implements Statewide Planning Goal 11, "Public Facilities and Services," which mandates that urban development must be supported by appropriate levels of public facilities and that cities must plan for key facilities. "Key facility" is defined to include transportation. To address this requirement, the CDC requires the 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.E ("The City Engineer may recommend changes or supplements to the standard specifications consistent with the application of engineering principles. Direct authority for the proposed condition arises from CDC §18.32.250.E.1.a., which authorizes the conditioning of permit. approval where it is "necessary to . . . [c]arry out provisions of the Tigard comprehensive plan." That code section goes on to specify certain allowed forms of such conditioning, including dedication of easements. CDC §18.32.250.E.2. 2) Scope of Uses which are Subject to Consideration. Mr. Shonkwiler has argued that under the site development review process only the public facility impacts of the specific use for which the development is intended may be, considered. He, therefore, advocates an interpretation of the term "proposed development" as used in this provision which would be restricted to the specific use to which the applicant states his or her intent to place the site. Essentially then, he advocates an extreme emphasis on phasing of public facility improvements. That is, that public NO i 5111131101 I -Rim R Memorandum to City Council Ri Si9pple*_nental Report on SDR 91-05/VAR 9I-10, Dolan August 2, 1995 Page S facilities should be provided for a given site only for the next specific phase of its development. Staff disagrees with this narrowing interpretation of the SDR process for two reasons. Instead, staff believes that the term "proposed development" as used in this provision should be interpreted to refer to the entire range of development options which are available under the SDR approval. First, the City's planning documents do not evidence such an intended reading. The Implementing Strategy 4 of Policy 7.1.2 specifically addresses providing public facilities to phased development as follows: "(b) [the CDC] shall allow for the phasing of services if a development proposal indicates such phasing. It is apparent that phasing of public facilities in the manner suggested by Mr. Shonkwiler was intended only to the extent that development itself is formally phased. Furthermore, the Strategy goes on to state: "The intent of these policies is to develop a mechanism for orderly and logical development and expansion of services to promote an efficient use of land and thus 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.) This statement clearly explains the intent of the Plan with respect to the timing of public facilities provision with the phasing of development. Specifically, it clarifies that the Plan does not intend for public facilities to be developed only in response to the immediate intended use of each given site, but rather that public facility needs be addressed in light of the entire range of future uses to which development approval allows the site to be put. Also, as discussed immediately below, the SDR process is not triggered by a simple change in the use of a site. This means that under the CDC there is only point in the development process at which public facility impacts rnw be assessed and addressed, viz. 5131:. In conclusion, in the prior order a general retails sales use was approved for this site. This order was based on the outright permitted use for which the applicant sought approval. 3) Allowable Methodologies for Determining Capability of Adequate Service. Nothing in this provision, nor any other of the Plan or Code, limits the evidence upon which the Council may consider traffic impacts 'to the County TIF ordinance. The only restriction on the evidence which the Council may consider on any issue is relevance and materiality. The TIP is an assessment of the county arising wholly apart from the City's Comprehensive Plan and III; NO 1:1 g 11111 111 11111 ffm 4 ,T ilk f . ~.a r Memorandum to City Council Re Supplemental Report on SDR 91-05/VAR 91-10, Dolan August 2, 1995 Page 9 Community Development Code. Therefore, nothing in the plan or Code refers to the TIF, much N less makes it the exclusive method of traffic impact analysis. In fact, the TIF is imposed by the County (Washington County Code (WCC) § 3.17.040(A)), in an amount set by the county (WCC § 3.17.050), in a process entirely separate and apart from this Site Development Review, and which may be appealed only to the county (see form letter from the City providing notice of TIP assessment, attached hereto as Exhibit 11). The assessment process allow for a credit to set-off other exactions. WCC 3.17.070. Furthermore, nothing in the T1F ordinance itself or in the City code limits the Council's authority to impose exactions to address transportation facility impacts to the TIF itself. To the contrary, the TIF ordinance recognizes that it is merely "one component of a multifaceted program." Washington County Ordinance 379, Section 2. Furthermore, as stated by City Attorney Tim Ramis at the July 18 hearing, the City replaced its own systems development charge for roads with the exaction approach to mitigating impact at the request of the development industry. Transcript, at S. Plan Policy 7.2.1(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 will not increase the off site itrpact. This policy clearly states a criterion applicable in this process. It allows applicants to choose from two possible methods to meet the basic requirement that there be no off site drainage impact. As discussed at page 2 of this report, the Dolans have not shown compliance with this criterion, notwithstanding evidence presented by their own expert of a .81 cfs increase in creek flow attributable to their proje^t. Emzuse of the many comments about the speck nature of the evidence which may be considered regarding this standard, staff wishes to clarify that neither the standard itself, nor anything in the Drainage Plan, limits the methodology by which the Council must determine whether this standard has been met. CDC 18. 120.020 Applicability of [Site Development Revi w Provisions - Mr. Shonkwiler has argued that because any change in use of the building would require a new site development review process, the City should consider only the traffic impacts of the specific use to which they intend to put the Phase I building. lip Lon ~ 1, Memorandum to City Council Re Supplemental Report on SDR 91-05/VAR 91-10, Dolan August 2, 1995 Page 10 r CDC 18.120.020 provides in relevant part that "[s]ite development review shall be applicable ;4} to all new developments and major modz, fication 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 from 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: "mod-i-fl-ca-tion 3 a : 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. At least three "somethings" are possible. First, a change in the use of a building might 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, provides 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 expand the footprint of an existing structure. It is not triggered by a mere change in 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 review. Drainage Plan - Many characterizations have been made about the content and meaning of the City's Master Drainage Plan. Particularly important in consideration of this and future applications is the contention that the Drainage Plan includes the idea that excess capacity can be created in Fanno Creels, thus alleviating developing properties from having to contribute to offset of their drainage impacts. As set forth more fully at page 1 of this memorandum, the Drainage Plan does not contain any such concept as excess capacity. Rather, it sets out a plan to provide adequate protection against flooding. Included as part of that plan are improvements to Fanno Creek and the surrounding area to facilitate a greater flow of water, restrictions on development within the 100-year r; floodplain. ~r ; Memorandum to City Council Re Supplemental Report on SDR 91-05/VAR 91-10, Dolan August 2, 1995 Page 11 A second key contention arising from reference to the Drainage Plan, put forth in the June 27, 2995, memorandum of David Smith, is that it specifies an exclusive method for determination of the relative impact of each property on the drainage system. In fact, the cost shares system discussed in the Drainage Plan is merely a suggested basis for development and imposition of a system development charge. (This fact notwithstanding, the City analyzed this development's a° relative impact under the suggested system and arrived at a cost figure well in excess of the value of the fioodplain easement.) As such, that cost shares system is not an exclusive method of evaluating the impact cost of drainage from this site. As set forth in reference to Plan Policy 7.2.1(c), there is no exclusive method for measuring a development's off-site drainage impact. Pedestrian/Bicycle Pathway Plan - The argument was made that the City's planned pathway system does not connect to major traffic generation points, but merely leads through recreational areas. This argument is rebutted by the text of the Pathway Plan itself where it lists the criteria which were used for selection of routes. These criteria included "providing better pedestrian- bicycle access around and through certain neighborhoods," access to major shopping areas generally, and access to downtown Tigard from the Greenburg neighborhood specifically. Pathway Plan at pages 1 -2. Furthermore, the plan states that "the route selection criteria were measured against a relationship to major pedestrian and bicycle traffic generators." Id. at 2. Among the listed major generation points is Downtown Tigard. The accompanying Pathway Plan map illustrates how the pathway routes interconnect with these major generators. As such, the plan text and map should be interpreted by the Council as connecting to major traffic generation points. A second interpretation of the Pathway Plan is necessary, viz. the purpose of the pathway. Mr. Shonkwiler contends that the purpose is purely recreational. The Comprehensive Plan lists several benefits of the pathway system, including reduction of pollution, energy use, noise, and auto related congestion. Page 1-257. Also, the Pedestrian-Bicycle Pathway Plan reflects that proximity to commercial areas was among the selection criteria for the pathways, at pages I-267- 68. Furthermore, the Parks Plan states, at page 42, that "as the . . . pedestrian/bicycle 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 Fann6 Creek." The park acts like a hub and, according to the plans, will encourage people to walk or bike to the City's commercial area. Furthermore, the pathway connects the City's civic center, a major employment area, to the downtown. The Council should interpret traffic mitigation as a fundamental puipose of the Pathway Plan. 0,11 r Memorandum to City Council Re Supplemental Report on SDR 91-05/VAR 91-10, Dolan August 2, 1995 Page 12 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 the dedication of sufficient open land area for greenway adjoining and within the floodplain. This area shall include portions at a suitable elevation for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted pedestrian/bicycle plan. " Mr. Shonkwiler argues that this Code section requires dedication of the pathway to be made within the floodplain. This code section allows for dedication requirements which include land within and adjacent to the floodplain. This area is to include portions at a "suitable elevation for construction of the pathway within the floodplain This provision therefore is ambiguous where, as here, there is no elevation within the floodplain which is suitable for construction of the pathway - due to steep slopes. In light of this ambiguity, the reasonable interpretation is one which allows pathway construction adjacent to the floodplain. Additionally, the Council should note in this interpretation that this provision clearly designates as "greenway" all dedications which consist of land either within or adjoining the floodplain, thus including both the floodplain and pathway " easements proposed for this application. Plan Policies 3.2.1 tlr~-ough 3.2.4 and 7.2.1 through 7.2.2 - Plan policies 3.2.1 through 3.2.4 restrict development activity in the floodplain areas of the City. Mr. Shonkwiler claims that they alone accomplish the City's interest in managing the drainageway. Review of the cited policies, however, reveals that they merely regulate landfonn alteration and development in the floodplain. Such regulation is not the purpose of requiring dedication of a limited easement to the City. Rather, the City requires that easement for maintaining and improving the drainageway. Maintenance involves necessary measures to keep the drainageway free from obstruction, either created by debris carried down the channel by the flow itself or created by natural growth of vegetation in the channel. Improvement refers to alteration of the drainageway to accommodate a greater flow of water. As implicitly recognized by Mr. Shonkwiler himself ("City can accomplish i4rtually every stormwater-floodplain purpose without requiring a public ownership"), these policies do not provide for complete realization of the City's goals with respect to management of the drainageway. The Council should explicitly interpret these policies as not making public ownership of the floodplain area unnecessary. Mr. Shonkwiler also cites Plan Policies 7.2.1 and 7.2.2 as accomplishing the same effect. These policies relate to the requirement that development address its drainage impacts. Again, they ON 1. b6i n Memorandum to City Council Re Supplemental Report on SDR 91-05/VAR 91-10, Dolan August 2, 1995 Page 13 do not assure the realization of the City's interests in maintaining and improving the drainageway without public ownership. Plan Policies 3.5.3. 3.5A, 3.6.2, 3.2.4, and Implementing Strategy 4 - Mr. Shonkwiler claims that each of these policies requires application of the City's Parks Plan. However, as discussed above application of the City's Parks Plan was conclusively decided in the prior appeal. Specifically, it was determined that the plan's concept of public access to the floodplain area could not be carried out. Because this issue has been conclusively decided, it is not among the issues subject to review in this remand proceeding. Plan Polly 8.1.3 - In his June 27, 1995 memorandum, Mr. Shonkwiler claims that the City is exacting from the Dolans costs in excess of applied TLP fees, and in so doing illegally modifies "Plan Policies 8.1, 8.1.3 and Implementation Strategies 2 and 5." 3 Policy 8.1.3 sets forth various pre-conditions to development for the provision of transportation facilities. Mr. Shonkwiler's argument does not specify which provision of this policy is "reinterpreted" by staffs suggested Condition 1. Staff would note that no portion of this plan policy, nor anything else in the plan limits the City's ability to seek offset of development impacts to the TIP. Again, the Plan does not incorporate or even refer to the TIP, so obviously the criteria requiring transportation impacts to be addressed, particularly Policy 7.1.2(b), were intended to exist apart from the TIF. Imlementataon Strategies 2 and 5 - Implementation Strategy 2 requires the City to develop implement a capital improvements plan containing certain listed elements. Mr. Shonkwiler does not specify how the City is misinterpreting this provision. Staff has not previously cited to it, and does not believe that it is a criterion applicable to this application. Implementation Strategy 5 requires land developers to dedicate necessary rights-of-way and construct necessary street improvements when they have not previously been constructed prior to review of the given development. While he does not explain his citation to the policy, Mr. Shonkwiler evidently feels that this represents an exclusive form of exaction for offsetting transportation impacts. ' Staff believes that the Council should reject this narrow view of the ordinance, and should instead interpret this implementing strategy as only a portion of the Comprehensive Plan's overall effort to ensure the adequacy of public facilities. In fact, there is no Plan Policy 8.1. t {i) tl ry Memorandum to City Council Ile Supplemental Report on SDR 91-05/VAR 91-10, ]Dolan August 2, 1995 Page 14 Placement of Fence - Mr. Shonkwiler expressed concern regarding the ability of the Dolans to prevent public access to the floodplain area adjacent to the pathway. Staff can find no Plan or Code provision which would prohibit the Dolans from constructing a fence between the two areas. The only restriction on such fencing would arise from the ]building Code (regulating its height) and the proposed condition (requiring access for maintenance and improvement by City workers). Staff also suggests the following language be added to the proposed condition to clarify this interpretation: Nothing in this condition shall be construed to infringe on the applicant's ability under the Code to construct a fence separating the easement areas. g:supprep2.5 4 !I %I i!i 14 -2 Mir NINE AL, v: cR?c 'i. EXHE9JT LIST FOR AUGUST 2, 1995, SUPPLEMENTAL STAFF REPORT SDR 91-05/VAR 91-10 1. August 1, 1995, memorandum of City Utilities Engineer Greg Berry to City Attorney Tian Ramis 2. Copieg of the City's Notices of Decision on SLR 7-85, Stevens Marine; and SUB 92-01, VAR 92-01, and SLR 92-01, Robinson/OTAK 3. June 26, 1995, file memorandum of G. Prank Hammond of the City Attorney's Office 4. July 10, 1995, letter of Lee Walker of Unwed Sewerage Agency '(USA) to G. Prank Hammond of the City Attorney's Office 5. July 17, 1995, memorandum of Tim McGuire of Mackenzie Engineering 6. August 2, 1995, memorandum of Traffic Engineer Dave Larson 7. August 2, 1995, memorandum of City Attorney Tim Ramis to the Council 8. April 25, 1995, letter from City Building Official David Scott to Albert Kenney, PE 9. Request for Comments form of NPO 1 regarding the Dolans' original application (SDR 89-13) 10. August 2, 1995, letter from William McMonagle of Harris/McMonagle Engineers to the Council 11. Form letter from City providing notice of Traffic Impact Pee assessment g:\exhibits MEN z r z~ ,1 0-~ y VMMMORANDUM CITY OF TIGA.:RD TO: Tim Ramis, City Attorney August 1, 1995 FROM: Greg Berry,, Utilities Engineer SUBJECT: Dolan Remand Hearing As requested, this is intended, to supplement my memo to you of July ,x 18, 1995, in an effort to respond more specifically to the points raised by Mr. 5honkwiler in his letter of July 18, 1995. 1. Drainage The applicant begins by asserting that Table 5.3 shows that "approximately 2/3 rds of the total drainage basin... lies downstream or below the Dolan property." This is incorrect; the table shows that less than 1/4 of the entire basin is downstream. Next, the applicant claims that the increased flow at the Dolan property "is completely accommodated or resolved by the construction of the Main Street bridge as identified an in Figure 6.2." While: the recent bridge replacement was in compliance with the Master Plan, it will not result in a significant reduction of the floodplain elevation since it was not accompanied by the channel improvements also required by the Plan. That Plan states at 5.2.3 that "All the recommended channel i%kDrovements and bridge replacements were incorporated into the hydraulic model that was used to produce Fig. 6.2." Therefore, the Main Street bridge replacement will not accommodate the increased flow at build-out. The situation is not unlike constriction of coronary arteries. Removal of the constriction at one point will not likely help the overall problem of maintaining the flog. Furthermore, applicant states that these improvements will result in a. 2-5 foot lowering of the floodplain elevation) thus "creating surplus capacity." Again, it-must be noted that the floodplain level reduction cited by the applicant would only result from completion of all recommended improvements. Also, review of Figure 6.3, comparing future 100-year flow elevation without creek improvements and future 100-year flow with improvements, clarifies that the reduction in fldodplain elevation is 1.5 feet at the applicant's property. 1 Page 6 of -Pages I Me .L .w. 5, ~ X33 fad - y ri~• In addition, I do not agree 4th the applicant's characterization of this effect 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 O"T requiring each applicant to provide a portion of the system with adecniate 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 drainageway 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." 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 drains) would cost anywhere from $10,000 to $20,000. To provide for adequate capacity along the creek in accordance with the Master Plan, dedication of the flood plain, a "nonstructural measure", is being required as part of the land use permit, 2. Effect of the Main Street Bridge The applicant's comment that less than all of the listed ir.Trovements of the Drainage Plan need to be completed i, order to realize a measurable reduction in floodplain level is incorrect. Again, that Plan states at Section 6.2.3 that 111511 the recommended channel improvements and bridge replacements were incorporated into the hydraulic model that was used to produce Fig. 6.2," Here, applicant returns to the assertion that the mere replacement of the main St. bridge provides adequate capacity but now adds that "the specified channel work at the Main Street bridge have already been accomplished." This is incorrect. 'f'irst, the tendency of floodwaters to backup against the bridge and create upstream flooding is not due to the bridge structure itself. Rather, it due almost entirely to constriction of the channel at that point. An stated above, those improvements have not been done, 2 EXHIBIT 1 Page - of Pages Similarly, the applicant is incorrect in stating that "The detention and significant channel work has been accomplished upstream from the Hall Street bridge with the redevelopment of the area. Any completed improvements in this area were ~ exclusively for park purposes. Therefore, directly contrary to the claims of Mr. Shonkwiler, t i the work done to date at the Main St. bridge and upstream of the Hall Blvd. bridge have had no measurable impact on the i floodplain level at the Dolan site. T 1 Applicant again asserts that these improvements will, create "greater capacity than is needed." However, as discussed above,;_ these improvements are only expected to lower the floodplain elevation to the acceptable level recommended by the Plan. Next, applicant states that "bridges act as artificial dams with their narrow spans constricting the width of the creek and its resulting flow." This is a misreading of the Drainage Plan in that the Plan does not evaluate the flooding caused by individual bridge structures, but rather determines the resulting floodplain elevation by considering all relevant factors such as channel width and depth. The primary purpose of the bridge replacements recommended in the Plan, is not to prevent bridges from acting as dams, but to accommodate the larger channels the Plan finds are required to reduce the floodplain elevation to an acceptable level. Furthermore, these bridge replacements and channel. improvements do not completely resolve the flooding problems as applicant asserts. The Plan also recommends "nom-structural measures" such as floodplain dedication. The reason that other structural improvements are not required downstream of the Dolan property is that the non-structural measures recommended by the Plan have successfully preserved an adequate flood-plain. Applicant also concludes that replacement and channel improvements at Hall Blvd. are not of concern since "the Hall Street bridge will be completed in the near ;future in accordance with the State Highway construction program." We have reviewed the published list of projects in this program and find no such project. Contrary to applicantfs statement, the benefit of a single improvement is not presented in. the master Plan. As set forth above, the Faster Plan at 6.2.3 states that "All the ° recommended channel improvements and bridge replacements were incorporated into the hydrological model that was used to produce Fig. 6.2." The plain cannot be validly cited to prove the impact of a single improvement. Applicant concluder by stating that these proposed bridge 3 ENHl®[T Z Page , of ----Pages VY k - ~Y replacements "resolves the entire floodplain area impacting' and impacting by the stormwater generated from the Dolan property. 11 As discussed above, this is mistaken because other improvements recommended by the Drainage Plan remain uncompleted. 3. Water Quality improvements As mentioned in the previous memo, since water quality facilities are designed to accommodate only smaller, summer- time storms, applicant's position that water quality facilities reduce flooding is incorrect. Applicant's statement that "the CH2H Hill report assumed that none of these stormwater quality facilities would be built" is also incorrect. The Flan at 4.2.3 "Urban Runoff Pollutant Controls" recommends that such facilities be considered. Table 4.5 lists various control measures including the "Store and Treat Runoff" facilities that are now being required of developments. There is no suggestion in the Drainage Plan that these described facilities will in any way reduce flooding. eyica,xy~,a.~ 4 EXH1B1T z Page 4 of &I Pages 1112111151 44 qT t N. B P.E. V odes Enghlear City of 7gard 13123 S.W. Hall Blvd. Turd OR 97223 EDUCATION J.D. - Northwwtern School of Lew at Lewis & Clinic B.S. - Civil EAShmdag - Oregon State Unive=ity B.S. - (Biology) - Ustiraity of Oregon REGISMTIONS Oregon Professional Fmgin= Oregon Starts Bar eve) u.' EWLO EMORY City ofTgXd- 7uly 1987 - Present MOW= Engineer - Provide civil engme+ering services for the planning, desvi, and constrtzt-mm o£ vzpM improvement artcA msiriteaaazace lzcajects, review and approve proposals for po.,ats constYuedon ofpubKc mss, rt comrncad pm tams ofland rase deddons, dmf t coasmic6on stanibuls, o din anm, and contracts, ensure City compliance with the regulations of various agmides artd cmir= admfi&wa om Consul -15'77 -1087.. " Preyamd cs mhuctica contracts, sp?citi ons, land use petit sppbcadons, prarAod ply, esbn a'tm and anspcewn for tx-aispoxtat m des, s md site imprm-6merxTPmjWts. EXHIBIT .Z Page of cSv Pages i I IN, iff1mill 111p 11,111 11 t BErORE THE ~Fb3tZ2JGS OFFICER FOP, THE CITY OF TIGARD, OREGON IN THE :MATTER OF THE APPLICATION ) FOR, A SENSITIVE LANDS PE MIT TO ~ No. SL 7385 ALLOW LMIDPORM ALTERATION AtM ) DEVELOPXM OF A PARXINO/OUTDOOR ) AREA WITHIN THE 200 YEAR FLOOD- ) PZAIN; .Stevens Marine, Applicant. ) The above-entitled matter c=e before the Hearinge,Officer, „ at the regularly scheduled meeting of July 25, 1955, at the D'arhata Waste Treatment Plant in Tigard, Oregon; and The applicant requests a sensitive lands pil to allow landform alteration and development aC a yar&.ing/outdoor scarage area within the 100 year floodplain of Fannin Creoee; and The Hearings Officer conducted a public hearing on July 23, 1983, at which time testL%ony, avicdm- ce and the Planning l eartmeat Staff report were received; and The H"rings3 Officer adopta the fludings of fact =,&d Y?r i conclusions contained in. the Staff Reeportp as copy of which it t: r4-ev '~cOwiti.hed_ha _ i- ~-nor. ai~twPs v, . n;,.-a:.. . n attae .Y••ato, marked "Exhibit V and incorpovacec~ by reference herein; . NOW. TW.RMRE, IT I5 Y CRUMM that SL 7-55 is apprav bject to the fo owing conditions: p 1 w SL 7-85 • ' EXIIIRIT. Page Or 22-Pages H y 1:1 M 1, ON :y 1 rF.. 7, unless otherwise noted, all conditions shall be met issuance of fill or grading permits. ;.'i+ Four (4) sets of plan-profile improvement construction C-4 ; pI and one (1) itemized construction cost estimate, stamped a e tar d Professional Civil Engineer, dscailing all px0p~ ad ~pedestrianlbike path (grading only), grading and soil. Stab fixation improvements shall be submitted to the Engineering Section for approval. 3. Existing sanitary sower plan-profile details shall bo provided as part of the improvement= plans. 4. Construction improvements shall no't commence until after the Engineering Section has issued approved improvement plans. The Section will require posting of a 100% Performance Eot'id and the payment of a permit fee. Also, the execution of a construction-dedication complian:a agreement shall occur . prior to, or concurrently with the Issuance of approvad imiprovenexat plaw. See the enclosed bandout: giving more specific informatloh regarding; fea schedules, bandin3 and . a~caa~sants. 1 . 5. The area below the ressalting 146 foot elovsitibn shall be dedleseed as zeenvaay to the My of TlWrd. A mol;nu ted boundary survey showing all. new title lines prepaved byia regai.tared Professional Land Surveyor shall mzbmitted. S. An as built drawing of all grading abal,l be q-h1+bb4,'.tr4~i N. .~®1Ad.~'.t l ti.• 1 c.-¢ . ....mpletio. ~aresxk within xa• - the floodplain. ' r uwithin 70 The necessary permits shall be obtainmd frots the U.S. AxW Corp of Engineers and Divisionlof State Lands. z Page 2 - SL 7-85 ~ ; EXHIBIT Page Z of _ 21= .Pages aF 'ca ~xolu rbz S79$®yg~. 'get, tbls ap"~ daY of ~v~y• tea' ol`Fxc~~ •l a • . "67 Page z CITY OF TIGARD Washington County, Oregon NOTICr OF FINAL ORDER - BY HEARINGS OFFICER 1. Concerning Case Number(s): SUB 92-0001/VAR 92-0001/SLR 92-0001 2. Name of Owner: Constance Robinson Name of Applicant: OTAR, Inc.:' , 3. Address 17355 SW Boones Ferry. Rd. City Lake Oswego State OR Zip 97035 4. Address of Property: 12000 SW Bull Mountain Road Tax'Map and Lot No(s).: 2S1 10BD tax lot 1200 & 2S1 l0BC, tax lot 1500 5. Request: A request for approval of the following development applications: 2) Subdivision approval to divide a 26.83 acre parcel into 50 lots ranging between 9,570 square feet to 67,495 square feet- 21 Variance approval for the following: 11 to allow local street grades of as much as 13.5 percent whereas Code Section 18.164.030 Ml allows a maximum local street grade of 12_p_ercent: 2) to allow development of two cul-de-sac local streets of 432 feet whereas Code Section 18.164.030 (ICI allows a maximum cul- de-sac length of 400 feet; 31 Sensitive Lands Review approval to allow road construction and residential development on slopes in excess of 25 percent. APPLICABLE REVIEW CRITERIA: Comprehensive Plan Policies 2.1.1, 3.1.1, 3.2.1 7.1.2 7.3.1. 7.4.4, 7.6.1, 8.1.1, 8.2.1, 8.1.3. and Community X)evelopment_Code S_ections_ 18.50, 18.92, 18.134, 18.150, 18.160, 18.164. Zone: R-4.5 (Residential, 4.5 units per acre) The R-4.5 zone allows single family residential units, public support facilities, residential treatment homes, farming, manufactured homes, famill}r day care, home occupations, temporary uses, residential fuel tanks, and accessory structures among other uses. 6.. Action: Approval as requested X Approval with conditions Denial 7. Notice: Notice was published in the newspaper, posted at City Ball, and mailed to: • The applicant and owner(s) X Owners of record within the required distance X The affected Neighborhood Planning Organizations Affected governmental agencies 8. Final Decision: TB E DECISION SRhLL BE YINAL ON A~sril 27R 1992 t7Nb.I±SS AN APPEAL IS FILED. `The adopted findings of fact, decision, and statement of conditions can be obtained from the Planning Department, Tigard City hall, 13125 Std Hall, P.O. Box 23397, Tigard, Oregon 97223. 9. Appeal: Any party to the decision may appeal this decision in accordance with 18.32.290(B) and Section 18.32.370 which provides that a written appeal may be filed within 10 days after notice is given and sent. The appeal may be submitted on City formo and must be accompanied by the appeal face ($315.00) and transcript costa (varies up to a maximum of $500.00). The deadline for filing of an appeal is 3:30 p.m. April 27, 1992 10. Questions: if you have any questions, please call the City of Tigard Planning Department, 639-4171. EXHIBIT 2 Page 4 of OREM . Pages ' INS J BEFORE THE LAND USE HEARINGS OFFICER FOR. THE CITY ORTIGARD, OREGON In the matter of an applicatio:e by The Aspen Group for ) FINAL ORDER approval of a preliminary plat for a 50-lot subdivision, ) SUB 92-0001 sensitive lands review, and cul-de-sac variance south of SLR 92-0001 Bull Mountain Road and west of McFarland Boulevard ) VAR 92-0001 in the City of Tigard, Oregon ) (Aspen Ridge) 1. SUMMARY OF THE REQUEST The applicant requests approval of a preliminary plat to subdivide about 16.83 acres into a 50-lot subdivision. Proposed lots comply with the dimensional and frontage requirements of the R-4.5 (Residential) zone and will be used for single family detached dwellings. Portions of the site exceed 25 percent grades. The applicant requests approval of a sensitive land review to allow roads, utilities, and homes on those portions of the site. The applicant will dedicate and improve a public streets on and adjoining the site. Two of the proposed streets are cul de sacs that exceed 400 feet in length. One of the proposed streets will have a grade that exceeds 12 percent. Both these circumstances violate City road standards. The applicant requests approval of a variance for these streets. Hearings Officer Larry Epstein held a duly noticed public hearing on March 23, 1992 to consider the application. City staff recommended conditional approval of the subdivision. The applicant accepted most recommended conditions of approval, with clarification. The applicant objected to having to identify finished floor elevations on required grading plans. Ten area residents testified with objections and concerns regarding the subdivision. Chief among those concerns were the impact of the subdivision on access to adjoining property, the substandard condition of Bull Mountain Road, the impact of the development on stone water and ground water drainage on downstream property, and the character of the area. At the conclusion of the hearing, the hearings officer held open the public. record for 10 days to provide time for additional public testimony, particularly regarding the "future street plan" and geotechnical conditions. The applicant and other witnes_ces introduced additional written evidence. City staff responded to that evidence by memorandum dated April 10. LOCATION: 12000 SW Bull Mountain Road, WCI'M 2S1 1OBD, Tax lot 1200 and WCTM 2S 1 IOBC, Tax lot 1500 ZONING: R-4.5 (Residential, 4.5 units/acres) (once City ironing is applied to the site) APPLICANT : The Aspen Group represented by OTAK, Inc. PROPERTY OWNER: Constance Robinson APPLICABLE LAW: Community Development Code Ch. 18.50, 18.84, 18.88, 18:92, 18.150, 18.160, and 18.164 and Comprehensive Plan policies 2.1.1, 3.1.1, 4.2.1, 7.1.2, 7.3.1, 7.4.4, 7.6.1, 8.1.1, and 8.1.3; Resolution and Order 91-47 STAFF RECOh NDATION.- Conditionally approve HEARINGS OFFICER DECISION: Conditionally approved page I - He-ings Order decision SUB 92-OOOIISU 92-OOOJIVAR 92-0011 (axpen ridge) EXHIBIT 2, Page _ Pages .11. FINDINGS ABOUT SITE AND SURROUNDINGS The.Hearings Officer incorporates by reference the findings about the site and surroundings in Section 11 of the City of Tigard Staff Report dated March 23, 1992. III. APPLICABLE APPROVAL STANDARDS. A. Community Development Code. 1. Chapter 18.50 contains standards for the R-4.5 zone. A single family detached residential unit is a permitted use in the zone. Lots in the zone and structures on those lots must comply with the following dimensional requirements: Minimum lot size...... 7500 sq ft Front setback .........20 feet Ave. min. lot width... 50 feet Interior side setback . 5 feet Rear setback ...........15 feet Street side setback... 15 feet (20 feet garage) Max. bldg. height..... 30 feet 2. Chapter 18.84 contains the regulations for land subject to sensitive lands review. Section 18.84.040B provides development on land with slopes of 25 percent or more must comply with the following criteria: a. The extent and nature of the proposed land form alteration or development will not create site disturbances to an extent greater than that required for the use; b. The proposed land form alteration or development will not result in erosion, stream sedimentation, ground instability, or other adverse on-site and off-site effects or hazards to life or property; c. The structures are appropriately sited and designed to ensure structural stability and proper drainage of found=-on and crawl space areas for development with may of the following soil conditions: wet/high water table; high shrank-swell capability; compressivelorganic; and shallow depth to bedrock; and d. Where natural vegetation has been removed due to land form alteration or development, the areas not covered by structures or impervious surfaces will be mplanted to prevent erosion in accordance with Chapter 18.100, Landscaping and Screening. 3. Chapter 18.88 contains solar access standards. A lot complies with this chapter if it has a north-south dimension of 90 feet or mom, and has a front lot line that is oriented within 30 degrees of a true east-west axis; or if a protected solar building line is designated on the plat or on documents recorded with the plat; or if solar performance- oriented standards are imposed on future structures. A subdivision complies with this section if 80% or more of the newly created lots comply with this standard. 4. Chapter 18.92 contains standards for density. The number of dwelling units permitted is based on the net development area, excluding sensitive land areas and land dedicated for public roads or parks. To determine the number of lots, multiply the net development area by the number of units allowed per acre in the zone. Page 2 . Hearings Officer decision SUP 92-OOOIISLR 92.00011VAR 92-0001 (Aspen Ridge) EXH 1®j f -2- Page & of Pages 5. Chapter 18.150 requires a permit and contains standards for removal of trees having ,tt a trunk 6 inches or more in diameter 4 feet above the ground on undeveloped land. A permit for tree removal must comply with the following criteria: a. The trees are diseased, present a danger to property, or interfere with utility service or traffic safety; b. The trees have to be removed to construct proposed improvements or to otherwise utilize the applicant's property in a reasonable manner, c. The trees are not needed to prevent erosion, instability, or drainage problems; d. The trees are not needed to protect nearby trees as windbreaks or as a desirable balance between shade and open space; e. The aesthetic character in the area will not be visually adversely affected by the tree removal; and £ New vegetation planted by the applicant, if any, will replace the aesthetic value of trees to be cut. 6. Chapter 18.160 contains standards for land divisions. To be approved, a preliminary plat must comply with the following criteria: a. It must comply with the City's comprehensive plan and the applicable zoning ordinance and other applicable ordinances and regulations; b. The proposed plat name is not duplicative, unless the land to be platted is contiguous to and platted by the same party that platted the subdivision originally bearing the name, or unless the applicant files and record the consent of the party that platted the subdivision originally bearing the name, and the plat otherwise satisfies the provisions of ORS Chapter 92; c. Tine st r=ts and roads are laid out so as to conform to the plats of subdivisions and maps of major partitions already approved for adjoining property as to width, general direction and in all other respects unless the City determines it is in the public interest to modify the street or road pattern 7. Variances to the Code development standards may be approved if: a. There are special circumstances or conditions affecting the property which are unusual and peculiar to the land as compared to other lands similarly situated; b. The variance is necessary for the proper design or function of the subdivision; c. The granting of the variance will not be detrimental to the public health, safety, and welfare or injurious to the rights of other owners of property; and d. The variance is necessary for the preservation and enjoyment of a substantial property right because of an extraordinary hardship which would result from strict compliance with the regulations of this title. AD Page 3 - Hearings Officer decision SUB 92.00011SLR 92-OOOIIVAR 92-0001 (Aspen Ridge) EXHIBIT 2- Page -7- of 2.2- Pages MA WE 1 .Z 11 11,11 1'. 8. Chapter 18.164 contains standards for streets and utilities. a. Section 18.164.030(A) requires streets within and adjoining a development to be dedicated and improved based on the classification of the street. b. Section 18.164.030(E) requires a cul de sac to be improved with a minimum 42- foot paved section between curbs in a 50-foot radius right of way. A local street is required to have a 34-foot paved section between curbs in a.50-foot right of way. c. Section 18.164.030(F) provides: Wbere necessary to give access or permit a satisfactory future division of adjoining land, streets shall be extended to the boundary lines of the tract to be developed... d. Section 18.164.030(x) states that a cul-de-sac shall be as short as possible, not more than 400 feet long, and shall terminate in a circular turnaround. e. Section 18.164.060 prohibits lot depth from being more than 2-1/2 times the lot width and requires at least 25 feet of frontage on a street f. Section 18.164.070, 18.164.090, and 18.164.100 requires sidewalks adjoining all local residential streets, sanitary sewer service, and adequate provisions for storm water runoff. B. Applicable Comprehensive Plan Policies. 1. Policy 2. 1.1 provides the City will assure citizens will be provided an opportunity for be involved in all phases of the planning process. 2. Policy 3. 1.1 provides the City will not allow development in areas with a high seasonal water table, severe erosion potential, earth movement, slopes exceeding 25%, or severely weak foundation soils except where it is shown that established and proven engineering techniques related to the site plan make the area suitable for development 3. Policy 4.2.1 provides that all developments within the Tigard Urban Planning Area shall comply with applicable federal, state and regional water quality standards. 4. Policies 7.1.2, 7.3.1, 7.4.4, and 7.6.1 provide the City will require as a condition of approval that public water, sewer, and storm drainage will be provided and designed to City standards and utilities placed underground, and that there is an adequate water supply for fire protection purposes, that the use will not reduce water pressure below level- needed for that purpose, and that the fire district has reviewed the request 5. Policy 8. 1.1 provides the City will plan for a safe and efficient street and roadway system that meets currant needs and anticipated future growth and development 6. Policy 8.1.3 provides the City will require as a precondition of approval that: a. Development abuts a dedicated street or has other adequate access; b. Street right of way shall be dedicated where the street is substa_n_da„d in wi:.3th; Paac 4 - Hearings Officer decision SUB 92-00011SLR 92-OOOIIVAR 92-0001 (Asper. Ridge) EXHIBIT Z- Page Of Zz_ Pages c. The developer shall commit to construction of the streets, curbs and sidewalks to City standards within the development; and d. Street improvements shall be made and street signs or signals shall be provided when the development is found to create or intensify a traffic hazard. C. Resolution and Order 91-47. Resolution and Order 91-47 requires all new developments that add additional impervious surface to include a water quality treatment facility. IV. HEARING, TESTIMONY, AND NPO & AGENCY COMMENTS A. Hearing. The Hearings Officer received testimony at the public hearing about this application on March 23, 1992 and from that date until April 10, when the public record closed. A record of that testimony is included herein as Exhibit A (Parties of Record), Exhibit B (Taped Proceedings), and Exhibit C (Written Testimony). These exhibits are filed at the Tigard City Hall. B. Summary of selected relevant testimony. 1. Jerry Offer and Chris Davies testified for the City. Mr. Offer summarized the staff report, highlighted issues raised by Tri-Met and area residents, and recommended an AD additional condition regarding geotechnical review and an amendment to a condition of approval regarding a pedestrian easement. Mr. Davies testified about road and drainage concerns. He noted that final engineered plans for the drainage system will require that the on-site storm water detention facility be adequate to accommodate design storm flows and to meter out water at no greater rate than can be handled by the King City treatment plant. He opined that on-site water quality enhancement is inappropriate, because of the steep grade of slopes on the site and problems regarding City access to water quality facilities. He conceded erosion control could be problematic; therefore, erosion control plans treed to be prepared in great derail and implemented as approved. 2. David Bantz testified for OTAK on behalf of the applicant. He discussed the proposed road plans at length, arguing that the proposed intersection with Bull Mountain Road provides the greatest sight distance possible; that shorter cul de sacs east and :vest of the main north-south street would be inefficient and create oddly- shaped lots; and that alternative street designs studied by OTAK created severe grade problems. Regarding the fhtiiti~ street plan, he explained the cul de sacs do not extend to the west edge of the site, because it would require a gater variance and would force new homes on land to the west to be closer to Bull Mountain Road.. He requested that the decision allow variations from existing City road standards if new City standards are adopted before the subdivision is built. He described the storm water drainage plan and testified that preliminary calculations show the detention pipeline can function as planned without increasing the rate of storm water ran-off. He described how the prbposed alley would work and why it is proposed. He olyjected to a recommended condition of approval that could be construed to require sidewalks and driveways to be installed before the final plat is recorded. Rot. Davies responded that improvements are not required if a bond securing such improvements is posted. He also objected to a .i -'..,ri;tinn srntssri- -orb gmrlino elan tR ehnw sfian chPA fl v x+ vra4e,a- at recoAJAlIcn"° wa..a hion rNubi _a _ -!T~-_O L"--v.ra wavv u.w redo w Page 5 - ]]earings Offker decision SUB 92-000I1SLR 92-OOOIIVAR 92-400] (Aspen Ridge) EX11181T 2- Page 1~ of -.Pages four points, on each lot, arguing that the applicant does not and cannot know for certain what finished floor elevations wall be, because that depends on the house plan and location selected ultimately by the purchaser of each lot He objected to a recommended condition requiring a pedestrian easement at the southeast corner of the site, arguing it leads only to private property and will not result in a continuous pedestrian system. He requestd, that the improvements the applicant will make to Bull Mountains Road qualify for Traffic Impact Fee credit, because it is a collector road. Mr. Bantz also responded to the neighbors' testimony. Luring that process, he agreed to accept public review of the final drainage and erosion control plan for the site. 3. Ken and Ellen Dickey, Thelma Perry, Shirley Burback, Nick Garrett, I.W. Morgan, Richard Stelow, Beverly Froude, Bruce Strahan and Paul Whitney testified with objections and concerns. Mr. Whitney, Mr. Stelow and Larry Westerman also introduced written statements. a. Several of these witnesses testified with concerns about the density of the proposal when compared to the density of surrounding development generally. These witnesses requested that the density of the subdivision be reduced, noting that also would reduce drainage and traffic concerns. b. Most of these witnesses testified with concerns about the existing substandard level of improvements along Bull Mountain Road, particularly the lack of sidewalks and sight distance constraints. Witnesses requested that the road be improved beyond the limits of the project in question, particularly sidewalks between the site and Highway 99W. One witness requested a signal at the intersection of Bull Mountain Road and McFarland Boulevard and another requested a center turn lane. c. Many of the witnesses, particularly those south and east of the site, testified with concerns about storm water and ground water drainage. Witnesses noted that the project requires considerable grading that will remove vegetation and could allow erosion to occur. Changes in surface and subsurface conditions could change ground water drainage patterns, as it has on other property in the vicinity. Some witnesses argued that the lack of drainage, calculations, geotechnical information, and detention system performance details makes it impossible to ensure that erosion and adverse drainage effects will not occur. One witness requested a continuance to have a geotechnical study prepared. d. Owners of property east and west of the site testified with objections to the futu m street plan, arguing that the lack of vxtension of street stubs to their property effectively landlocks them. The owner of the property to the east explained how access could be provided to his site. He; argued the future street plan is unrealistic, because it requires aggregation of several smaliez parcels to be able to provide access. He also raised concerns about drainage impacts and loss of trees on his . property. The owner of the prope=rty to the west also requested that the applicant extend a sewer lateral to their common boundary and a fence along the common boundary. 4. After the hearing, the Hearings Officer received written statements from Mir. Garrett, Mr. Staahan, and Mr. Stelow raising many of the same issues raised in their earlier testimony. OTAK submitted a written statement, preliminary grading and utility plans, an on-site detention calculation sheet, and a preliminary soils investigation. City staff also submitted a written statement about the information received after the hearing. Page 6 - Hearings G,f"user derisim SUB 92-[WJIS[ R O-d1Q UVAR 924VOI (.Aspen Ridge) EXHIBIT Page -0:70f Pages C. NPO and Agency Comments. 4 The Hearings Officer incorporates by reference the NPO and agency comments in Sections IV of the City of Tigard Staff Report dated March 23, 1992. V. EVALUATION OF REQUEST A. Compliance with Community Development Code. 1. The proposed lots comply with Chapter 18.50. The lot comply with the use standards of the R-4.5 zone, because they will be used for single family detached dwelling units. The lots comply with the dimensional standards of the R-4.5 zone, because they each contain at least 7500 square feet and a minimum average lot width of 50 feet. The existing dwelling on proposed lot 1 will continue to comply with minimum required setbacks. 2. The proposed land form alterations on slopes exceeding 25 percent do or can comply with Chapter 18.84, because: a. The development does not disturb the site more than is required to provide streets, utilities, and developable areas for each lot, based on the preliminary grading plan. Less grading might be required to develop a subdivision with fewer lots; however, the Hearings Officer finds such a reduction in density is not required to comply with this chapter. b. The proposed development could cause significant erosion. The applicant proposes to use fabric fences and and erosion control fabric in areas of steep slopes ` to minimize the potential for erosion and to trap sediment before it leaves the site. The applicant also will pmtect catch basin inlets by some means to prevent them from being clogged by sediment. The applicant proposes to re-establish vegetation before removal of these erosion control measures. The applicant also lists alternative measures and supplementary measures in the erosion control matrix on the preliminary grading plan. Hydroseeding is not proposed except for construction occurring between October i and April 30. Based on successful implementation of primary or alternative erosion control measures and supplemental methods listed for the "wet" season, including maintenance of those measures and methods, the development is not reasonably likely to cause significant erosion of sedimentation. Conditions of approval are warranted to ensure measures listed on the preliminary grading plan are implemented and maintained, and to require submission of a final erosion control plan before development on steep slopes, c. The development could cause slope instability due to its steep slopes. However, based on the preliminary grading plan and the soils analysis dated March 31, 1992 by James McDonald Engineering, the development will not cause slope instability. The soils analysis does not contain any recommendations for how to protect slope stability. A condition is warranted requiring the applicant to submit a report by a professional engineer licensed in Oregon listing recommendations to protect slope stability and the reason for each recommendation, and requiring the applicant to comply with those recommendations: d. Based on the soils analysis, the site does not contain the following soil conditions: wet/high water table; high shrink-swell capability; compressive/organic; and shallow depth to bedrock- Page 7 - Hearings Oflicer decision SUR 92-OOOIISL.R 92-OOIIVAR 92-0001 (Aspen Ridge) EXHIBIT 2. Page A-of --Z-2-Pages 1: lig w m • ~*r ESSEN= ,SEE= s e. The applicant will remove most existing natural vegetation. Based on the erosion control measures on the preliminary grading plan, the applicant will replant areas disturbed by the development in accordance with Chapter 18.100. f. Because of the size of the area of steep slopes that will be affected by development and the potential for downhill adverse effects, a condition is warranted requiring public notice and an opportunity for public review of final drainage, soil stability, and erosion control plans before the City approves those plans. 3. The subdivision complies with Chapter 18.88, because at least 80 percent of the proposed lots, (i.e., 80% x 50 = 40), will comply with solar access standards. Thirty- five proposed lots have a front lot line oriented with 30 degrees of a true east-west line and a north-south dimension -of at least 90 feet, and the applicant proposes to use solar building lines on five other lots. Conditions are warranted to ensure the final plat contains solar building lines on at least five lots. 4. The proposed subdivision complies with the density standards of Chapter 18.92, because the net developable area of the site (11.86 acres, excluding rights of way and land sloped more than 25 percent) divided by 4.5 units per acre equals 67.9 lots and only 50 lots are proposed. The City Code does not require the applicant to increase the size of proposed lots to conform to the size of surrounding lots. The density proposed does not exceed City limits. The subdivision will be more densely settled than surrounding land, but that does not violate City standards or policies. Therefore, much of the public testimony objecting to the density of the development because of its inconsistency with surrounding lot sizes is not relevant. 5. The proposed subdivision will comply with Chapter 18.150, because the only trees to be removed from the site are filbert trees. Unless removed, those trees could harbor insects and diseases harmful to other nearby filbert orchards. Many of the trees have to be removed for proposed improvements and building pads. The trees are not needed to prevent erosion, instability or drainage problem and do not protect nearby trees from wind. The development of the subdivision will have a much greater visual effect that removal of the trees. The applicant will revegetate the site, based on the erosion control measures on the preliminary grading plan. Therefore, the applicant can remove the filbert trees p=uant to this decision and without applying for a tree removal permit on a lot by lot basis. 6. The proposed subdivision complies with Chapter 18.160, because: a. It complies with the Comprehensive plan map designation of the site, the applicable plan policies, the regulations of the R-4.5 zone, and other applicable regulations, except as otherwise noted herein. b. The proposed name of the subdivision is not similar to the name of other subdivisions in Washington County. c. Streets are laid out to serve the subject site and to serve adjoining underdeveloped land west of the south portion of the site. There are no approved plats adjoining the site with which proposed streets must conform. (1) Proposed streets do not serve the underdeveloped land west of the north portion of the site (the Garrett property). Page 8 - -Hearings Officer decision ' SUB 92-OOOIISLR 92.OOOIIVAR 92-0001 (Aspen Ridge; Mina Page &&Of " Page (a) Access could be provided to the south portion of the Garrett property from the southerly cul de sac by extending the cul de sac to the west edge of the site or by granting an easement from the cul de sac or along the flag pole for proposed lot 19 to the Garrett property. (b) Such a right of way or easement is not required by Chapter 18.160, because it is not necessary to conform to the plat of an approved subdivision or partition. Such a right of way or easement may be required by Section 18.164.0300 and Policy 8. 1.1 to provide for an efficient street system that serves anticipated future development. The south portion of the Garrett property could be divided in the future, because of its size. The issue is whether the City should require access to the Garrett property from the subject site. (c) Because access to lots that could be created from the Garrett property can be served by a private street along the west edge of that property, and there is more than 400 feet of sight distance where such a street intersects Bull Mountain Road, the easement is not necessary to serve the Garrett property. Therefore, the Hearings deer finds that the applicant should not be required to grant an easement to the Garrett property. (2) Proposed streets do not serve the underdeveloped land east of the north portion of the site (tax lots 1300 [the Strahan property), 1400, 1500 and 1600 of 2S1 l0BD). (a) Aright of way or easement for the Strahan property is not required by Chapter 18.160, because it is not necessary to conform to the plat of an approved subdivision or partition. Such a right of way or easement may be required by Section 18.164.030(F) and Policy 8.1.1 to provide for an efficient street system that serves anticipated futum development. The Strahan property and tax lots 1400, 1500 -nd 1600 could be divided in the future, because of their size. The issue is -i.,vhed er the City should require access to the Staahan property from the subject site. (b) Access could be provided to the Strahan property from the north-south strut on the site by extending a right of way or granting an easement from the street to the Strahan property. (i) Extending the northern cul de sac to the east would have negligible value, because it would intersect (or nearly intersect) the home on the Strahan property. Therefore, it would not provide desirable access to the property unless the existing substantial home there is removed, and it would create a lot with roads on three sides. (ii) Extending the southerly cut de sac would not serve the Strahan property. (iii) An easement for a private street between proposed lots 46 and 47 or 47 and 48 could provide access to the three lots that could be developed on the south portion of the Strahan property without requiring removal of the home on that property. It would create an intersection within 100 feet of the cul de sac streets. The applicant + Page 9 - Hearings Offscer decision SUB 92-OOOIISLR 92-OOOIIVAR 92-0001 (Aspen Ridge) EXHIBIT Page_ of Z? Pages NEW, argued this would create a hazardous condition; however, the City does not require intersections on a local street to be separated by a minimum distance, and there would be ample sight distance from the intersection of a private drive to the Strahan property and the north-south street on the subject site. Therefore, the Hearings Officer concludes that a private driveway to the Strahan property from the north-south street would not create an inherently dangerous condition. (c) The subdivision could be redesigned to serve the Strahan property. For instance, the north-south street could be aligned along the east edge of the subject site, although that would increase the variance-needed for the proposed cul de sacs on the site. Or the northerly cul de sac street could be relocated south, although that would decrease the efficiency of development on the subject site. Due to the adverse effects of such a redesign, the Hearings Officer concludes the applicant should not be required to substantially redesign the preliminary plat to provide access to the Strahan property. (d) Steep slopes on the south portion of the Strahan property make an ease- west street across that property problematic; it would- have a grade of 22 percent based on the applicant's analysis. Further east, the slopes are even greater, making a safe east-west street there impossible. 't'herefore, ghat part of the Off-site Analysis Circulation Plan (Exhibit C) showing such an east- west street is not realistic. The only access feasible from the site to properties to the east is an access that would serve the Strahan property exclusively. ® (e) A north-south street extending south of Bull Mountain Road at McFarland Boulevard (Exhibit 3) is possible within City street grade standards. Such a street would require cooperation of three property owners, making it more difficult to develop. (f) Based on the foregoing, access to lots that could be created from the Strahan property cannot be provided except across other properties. The instant subdivision provides an immediate opportunity for such access to be created. The Hearings Officer concludes that, under these circumstances, there is a public interest in requiring the applicant to grant a minimum 30- foot easement for vehicle and pedestrian access to the Strahan property between (or over) lots 46 and 47 or 47 and 48 so that the Strahan property can be developed as permitted by existing zoning without relying on cooperation by third parries who do not propose to develop their property. 7. Variances to the cul de sac length standard and street grade standard are warranted based on the following bindings: a- The street grade variance is wan-anted by steep slopes. The cul de sac length variance is warranted by the limitations on sight distance along Bull Mountain Road. Steep slopes and sight distance limitation constitute special circumstances affecting the property that are unusual and peculiar to the subject site as compared to other land in the same zone and vicinity. b. The street grade variance is necessary to provide access to the site without requiring excessive grading with more significant potential adverse effects. The cul Page 10 - Hearings Otter decision SUER 92-0001/SLR 92-00011VAR .02-0001 (keen Ridge) EXHi8iT,2-. Page L`'_ of __7_2= Pages r IFR de sac length variance is necessary to prevent creation of lots that exceed lot depth to width standards or that violate frontage standards. c. The street grade variance will not be detrimental to the public health, safety and . welfare or to the rights of owners of other properties, because of the short length of the street section that will be affected by the variance, and because emergency vehicle access is adequate based on responses from the Fire District. The cul de sac length variance will not be detrimental to the public health, safety and welfare or to the rights of owners of other properties, because of the relatively small size of the variance and the number of lots served by each cul de sac. d. Denial of the variance would result in an extraordinary hardship to the applicant, because of the loss of at least one lot and the resulting design of the subdivision which would. be inconsistent with the design of other recently approve subdivisions in the vicinity. 8. The proposed subdivision can comply with Chapter 18.164, because: a. The applicant will dedicate to the City right of way for streets on and adjoining the site and will improve those streets to applicable road standards, with the exceptions noted above. The Hearings Officer agrees with City staff that immediate improvement of Bull Mountain Road is warranted, despite the recommendation of Washington County Department of Land Use and Transportation. A bus turn-out should be provided east-bound along the Bull Mountain Road frontage as recommended by the school district to accommodate increased use from the subdivision. A turn-around should be provided at the west end of the stub street to provide adequate maneuvering for emergency vehicles. b. The applicant should be required to grant an easement for access needed to permit future division of adjoining land to the east, pursuant to Section 18.164.030(F). See finding V.A.6.c.(2). c. The propose lots are consistent with Code standards for maximum lot depth-to- width ratio, minimum lot frontage, and other lot standards. Although proposed lots 1 through 6 will have frontage on Bull Mountain Road and the northerly cul de sac, deed restrictions can prohibit direst vehicular access to Bull Mountain Road to protect the traffic carrying capacity of that street and minimize the potential for intersection conflicts. A joint use and maintenance easement should be executed for proposed lots 26 through 31 regulating use and maintenance of the private alley that will serve those lots, and the alley should be signed as recommended by City staff. d. The street on and adjoining the site will be improved with sidewalks. e. All lots will be served by public water, sanitary sewer and stogy drainage systems. Conditions are wan-anted to require the applicant to provide for extension of sewer lines to the west cadge of the subject site, in the public right of way of the southerly street and in an easement from the southerly cul de sac to the east edge of ` the Garret property, given the need to consider and serve potential additional development in the vicinity. Conditions also are warranted as recommended by the City Engineering Division to ensure that adequate stores drainage is provided along the east edge of the site, to use storm sewers rather than open drainage channels, to provide system details and capacity calculations, and to ensure downstream properties are not adversely affected by off-site flows. The Hearings Officer Page 11 - Hearings Officer decision SUB 92-0001 /SLR 92-0001 iVAR 92-0001 ('Aspen Ridge) EXHIBIT2,- Page IS` of -ZZ.,~-Pages 1110M amm; own- concludes that the proposed development will not increase the potential for adverse off-site drainage effects due to effects on subsurface water p ~ a. atterns, based on the report by Mr. McDonald. B. Compliance with Comprehensive Plan policies. 1. The subdivision complies with Policy 2.1.1, because notice of the application or hearing was provided to the neighborhood planning organization, to the community planning organization, and to owners of property in the vicinity of the site, and notice of the hearing was posted on the subject site. 2. The subdivision complies with Policy 3.1.1, because the applicant provided sufficient detailed information that shows development of portions of the site sloped more than 25 percent will not cause erosion or soil instability. More detailed information about the proposed grading, drainage, erosion control measures should be required and subject to public review before development to. fulfill this policy and Policy 2.1.1. Conditions recommended by the Building Division regarding grading should apply to development. 3. In order to comply with Policy 4.2.1, a condition is warranted to require the applicant to prepare an erosion plan as part of the grading permit application, consistent with standards for the Tualatin River Basin and Resolution and Order 91-47 or subsequent amendments thereto. 4. The subdivision complies with Policies 7.1.2, 7.3.1, 7.4.4, and 7.6.1, because the applicant will extend public sewer and water system to the site, will proVide a storm drainage system and will provide underground utilities. 5. The subdivision will comply with Policy 8. 1.1 and 8.1.3, because the subdivision provides a sale and efficient stmt system and includes dedications and improvements necessary for that system. See findings V.A.6 through 8. C. Compliance with Resolution and Order 9147. The proposed use can comply with Resolution and Order 91-47 by providing on-site surface water duality features or alternatives permitted by law. VI. SITE VISIT BY HEARINGS OFFICER The Hearings Officer visited the site and surrounding area. VIL CONCLUSION AND DECISION The Hearings Officer concludes that the proposed subdivision and variances will promote the general welfare of the City, and will not be significantly detrimental nor injurious to surrounding land uses, provided development that occurs after this decision complies with applicable local, state, and federal law. In recognition of the findings and conclusions contained herein, and incorporating the Staff Report and other reports of affected agencies and public v-,stimony and exhibits received in this matter, the Hearings Officer hereby approves SUB 92-0001 (Aspen Ridge), SLR 92- 001, and VAR 92-OWI, subject to the following conditions. Staff contact for all conditions is Chris Davies, Engineering Division, 639-4171, unless otherwise noted. Page 12 - Hearings Officer decision SUB 92-OOOIISL.R 92-OODIIVAR 92-Ml (Aspen Ridge) EXHIBIT Page ib of Pages ,J 11111111, ur ri 1. The applicant shall submit a final plat to the City for review and approval within 18 months of the effective date of this decision. Before the City accepts the final plat for review and approval, an order annexing the subject property to the City shall be executed and filed with the Oregon Secretary of State. 2. Unless otherwise provided by this decision, before the City issues any permits for construction of the subdivision, the applicant shall: a. Fulfill all conditions of approval; and b. Either complete public improvements and have those improvements accepted by the City. or financially secure completion of those improvements. 3. Before the final plat is filed with the Washington County Recorder, the applicant shall comply with the following: a. The final plat shall: (1) Provide for the creation of not more than 50 lots substantially similar to those illustrated on the preliminary plat; (2) Show lot dimensions comply with the dimensional requirements of the R- 4.5 zone; (3) Comply with ORS 92, City of Tigard Community Development Code standards except as otherwise allowed herein, and Washington County standards except to dne extent otherwise provided.by the County; (4) Provide for dedication of rights of way for public streets in and adjoining the subdivision substantially similar to those illustrated on the preliminary plat. A minimum 50-foot right of way shall be provided for streets within the subdivision. A minimum 33-foot half-width right of way shall be provided for Bull Mountain Road, increased as necessary to accommodate a bus turn-out adjoining the east bound travel lane. The applicant shall submit to the City Engineering Department written proof that an instrument dedicating required right of way has been submitted to Washington County; (5) Show a one-foot non-access reserve strip along the Bull Mountain Road frontage except at its intersection with the north-south stmt on the site, (6) Show a minimum 10-foot wide pedestrian easement from the west end of the southerly cul de sac to the west edge of the site, and identify the easement as such. The applicant is not required to improve this easement. (7) Show a minimum 30-foot wide vehicular and pedestrian easement from the north-south street to the east edge of the site roughly between proposed lots 46 and 47 or lots 47 and 48, and identify the easement as such. The applicant is not required to improve this easement. (8) Show a utility easement for a sewer line from the southerly cul de sac to the west edge of the property for extension of public sewer to land to the west, and label the easement as such. This easement may include land burdened by the pedcstr<'an easement required by condition 3.a.(6) above. Page 13 - hearings Officer decision SUB 92-00011SU 92-MIIVAR 92-0001 (Aspen .Ridge) EXHIBIT Page .L7_ of .Pages KzIENIN' =~W :r (9) Show a one-foot reserve strip at the west end of the east-west street that stubs to the west edge of the site and convey that strip to the City. (10) Identify the private alley as such and note that the City has no responsibility for the improvement or maintenance of that alley and that owners of property served by that alley are subject to a joint use and maintenance agreement regarding the alley. (11) Show easements for private storm drain lines along the west property lines of proposed lots 14 through 17 and the east property line of proposed lot 18 to serve proposed lots 7 though 11, unless an alternative location for such lines is approved by the City Engineer. (12) 'Show easements for a public storm sewer along the south edge of proposed lots 32 through 41-and along the"cast edge of proposed lots 41 through 50 and for access to that sewer approved by the City Engineer. (13) Show or note a 20-foot setback is required on the north and south sides of proposed lots 2 through 6 and a 15-foot comer yard setback is required for proposed lots 1 and 50. Staff contact. Jerry Offer. (14) Show protected solar building lines on at least 5 lots in the subdivision that do not comply with the basic standards for solar access, and prohibit development south of the line on each lot unless it complies with the solar balance point regulations of the City. (15) Note that, before the City issues a building permit for development on slopes exceeding 25 percent before development, an applicant must show that the proposed structure Kill be sited and designed to ensure structural stability. Also note that development on each lot shall comply with approved erosion control measures for the subdivision, a copy of which is available from the City Engineering Department. b. The applicant shall submit two (2) sets of detailed public improvement plans and profile construction drawings to the Engineering Department for preliminary review and approval. The applicant shall submit seven (7) sets of approved drawings and one (1) itemized construction cost estimate. The plans and estimate shall be prepared by a professional engineer licensed in Oregon. These plans are in addition to plans required by the Building Division and should include only those sheets relating to public improvements. (1) The plans shall show that the maximum grade on proposed streets will not exceed 12 percent,generally and, for any given 200-foot section., will not exceed 13.5 percent. The plans also shall show that proposed cul de. sacs will not exceed 440 feet in length. (2) The applicant shall submit a statement from the Tualatin Valley Fire and Rescue District approving the final proposed grades for the streets. (3) The plan for the southerly east-west street shall provide for a temporary turn-around and barricade at the west stub of the street. Page 14 - Hearings Officer decision SUB 92-OOOJISLR 92-00011VAR 92-0071 (Aspen Ridge) EXHIBIT Page M~ of = Pages ZIK~ low- UNIM, M (4) The street plans shall provide for full width street improvements to local street standards, including traffic control devices, mailbox clusters, concrete sidewalks, driveway aprons, curbs, asphaltic concrete pavement, sanitary sewers, storm drainage, street lights, and underground utilities. f (5) The applicant shall submit a plan profile and cross section details for the proposed private alley. (b) The applicant shall submit details of the proposed drainage system, calculations about the capacity of existing, proposed and future on- and off-site system features assuming full build-out of the drainage basin, and a topographic map of the drainage basin as part of the public improvement plans. The plans shall show that the storm drainage system will not significant adversely affect downstream properties and facilities to the satisfaction of the City Engineer. (i) The applicant shall use a pipe material for the storm water detention facility that complies with City standard or apply to the City Engineer for an alternative material that has a minimum design service life of 75 years consistent with Oregon Department of Transportation standards. (ii) The applicant shall replace the proposed private storm drain line between lots 7.through 18 with a public line and an appropriate access road or provide private easements and systems along the west property lines of lots 14 through 17 and along the east property line of lot 18 to serve lots 7 through 11; or an alternative acceptable to the City Engineer. (iii) The applicant shall provide a public storm sewer along the rear lot lines of lots 32 through 50 with adequate access for maintenance purposes as approved by the City Engineer. (iv) The applicant shall submit a geotechnical report by a professional engineer licensed in Oregon that investigates and evaluates soils and subsurface drainage conditions on the site and recommends specific measures to prevent development from causing significant soil erosion and slope instability. The public improvement plans shall comply with recommendations in the geotechrrical report. (7) N6t less than 20 days before approving the plans and details required by condition 3.b.(6), the City shall provide written notice to owners of property entitled to notice of the hearing regarding the subdivision application that final drainage plans have been subrmtie,..:. That notice shall invite public review of and comanents regarding those plans. (8) Flans for the proposed sanitary sewer system shall include extension of a line to the west edge of the property within the public road right of way and a line within an easement extending west of the southerly cul de sac, or an alternative location approved by the City Engineer. (9) The plans shall provide that the applicant will install all public sanitary and storm lines in public rights of way except as otherwise provided herein or approved by the City Engineer. The applicant shall install the approved lines. Page IS - Hearings Officer decision SUB 92-OODIISL.R 92-00011VdR 92-0001 (Ashen Ridge) EXHIBIT Page _L- of `Z?--Pages c. The applicant shall submit plans, obtain City approval, and provide financial assurance for the construction of all public streets within the subdivision and for a storm drainage system to serve the subdivision. These improvements shall be designed and constructed in accordance with the requirements of the City of Tigard. The improvements shall be completed and accepted by the City within the time frame specified in the public assurance contracL d. The applicant shall submit a grading plan showing existing and proposed contours and typical finished floor elevations on each lot, including elevations at 4 different corners of the floor plan tied to the top of the curb elevations as shown on the public improvement plans. (1) The 4 comer elevations shall be based on the proposed grading plan and reasonable assumptions about finished floor elevations. The actual finished floor elevations, may vary from those on the approved plan, provided such variations are approved in the review process for building permits and any subsequent grading permits necessary to implement them. (2) The grading plan shall identify proposed tree removal. A copy of the approved grading plan shall be available on-site during tree removal activities. (3) The finished slope of cuts and fills shall have a maximum slope of 2:1 or else a professional engineer shall certify the stability of steeper slopes. e. The applicant shall submit and receive approval of an erosion control plan. The plan shall conform to "Erosion Control Plans - Technical Guidance Handbook," November, 1989. Areas not covered by structures or impervious surfaces shall be revegetated as soon as possible after gradi f. The applicant shall make an appointment for a pre construction. meeting with the City of Tigard Engineering Department after approval of the plans but prior to starting any work on the site. Tire applicant, applicant's engineer, and contractor shall attend this meeting before receiving approved plans/permits. g. The applicant shall pay a fee in lieu of construction of a water quality facility as authorized by Washington County Resolution and Order No. 91-47. h. The applicant shall submit to the Engineering Department a profile of Bull Mountain Road adjoining and within 300 feet of the site, showing the existing and proposed road grades and improvements. The applicant shall submit a written statement by a professional engineer licensed in Oregon certifying that the sight distance at the proposed intersection of Bull Mountain Road and the proposed north-south street complies with City standards. i. The applicant shall submit plans for Bull Mountain Road improvements to and obtain approval of those plans from the Washington County Engineering Division and City of Tigard Engineering Department and submit a Facility Permit for those improvements from Washington County to the City. The applicant shall install standard half-street improvements along the Bull Mountain Road frontage, including concrete sidewalk, curb, asphaltic concrete pavement, storm drainage, street lights, underground utilities, and a bus turn-out Page 1 d - Hearings Officer decision SUB 92-000111 92-00011VAR 92-0001 (Aspen Ridge) Page 2D of -Pages 01,11:111,11i p, :1 :11, WIll All, i j. The applicant shall execute joint use and maintenance agreements on forms provided by the City for lots served by 'the private alley and any other common driveways and file those aareements with the Washington County Recorder. k. The applicant shall improve the private alley, post signs on the alley prohibiting parking there, and post a sign at the entry to-the alley noting that the alley is privately owned and maintained. ATE this 15th da April, 1992. Larry Epste' , H g afficer Page 17 - Hearings Officer decision SUB 92-OOOIISLR 92-OOGIIVAR 92-001 (Aspen Ridge) EXHIBIT Page , of Paaes 1511 i ~ T a bed e - d r~. VIA t _ CA ~ ~ cam= 1 0 V , 1 ff f X/1 / f • I r f •+i t t U~ ~ Mom! AUG- 2-95 WED 13:37 HSA/MEI FAX NO. 5032749812 P.02 CKMZIE ENGINEERING INCORPORATED OfM a STRUCTURAL v TRANSPORTATION 0690 LW. BMCRM 8'8'1= C Sri. 0. WX 69034 F01tTSJeNI ORECM Mo1-O039 9 (503) 22"160 a FAX(S03) 229-1285 MMORANDUM PATE: August 1, 1995 SUBJECT: Dolan Remand Hearing • City of Tigard p_o eot-Number 195159 BY, Dave Larson TO: Tigard City Council The following is provided as additional or clarify* testimony on behalf of the City of Tigard A. PATHWAY CONSTRUCTION / EASEIvI N T CONFIGURATION Considwable discussion has o=urod during the two public hearings relative to the width of the pathway and the Musrm of the adjacent proposed A-Boy building. In one proposed location, the pathway and easement ate required to narrow significantly to clear the building cooler in two locations. This condition causes two unacceptable safety concerns: 1. The pathway width is narrowed to a point of causing insufficient width to safely pass two bicycles moving in opposite directions; and 2. A. "blind spot" is created along the inside of the cwve by dw building, similar to a condition along a madway with inadequate horizontal culve, safe stopping sight distance. With thass two conditions =uabg at the some location, the likelihood exists for collisions between ~g bid,~cllee~sy~andffcc p7e~dpcaiiam. p,7~q'.~+y~P~ p,,y~+ +gE.ggy~ B. PATHWAY BUILDOU g il`~YAYRCO~51RR'.CTIVITY As presented in the last hearing, the main element of the Fmmo Creek pathway is nearly complelcd - the slit linkjust do nstrc m of Main Street resltains to be built. Major Smeratom, smix as Qy Hall and the Senior Center, as well as signifacanit businm and residential arnas, have dirod scams to t11s Fay Creel: pathway. The fill utilization of the pathway will not occur until this link is coaaplate and, therefore, tho Podestrisa Environment F&--tor and resulting vehicle trip reduction will not be realized. n MAMNMENGMERINOIN,Oer;&ORATM FAWPI)ATAW-60513001MI.F.C1 E EXN I B IT -(zz_._ Page -.L.- of .Pages AUG- 2-95 WED 13:37 PISA/MEI FAX NO. 5032749812 P.03 Dolan Remand! Hearing Project Number 195159 August 1, 1995 Pap 2 C. BLWQLW STREET AS ALTERNATIVE PAT IMAY In the July 18, 1993, bearing„ Mr. Woclk indicated that the Blr huh Street pathway is an accePtable alternative to omVIeiiggthe Fanno Creek Pathway. First, the Burnham Steer and Fanno pathways are both indicated on ttr City's Pathway p1m. Second, the Burnliarts Street pathway, as a replacement to the Fanno pathway, would result in less direct access to Main Street from areas currently connected to the Farina pathway, Significant o-ue-of-dir on travel would result, reducing the attractiveness of ieycle travel ae diellinishing pathway efifeetiverless. Standing alone, the Burnham Street pathway is net an adequate alternative. D. PATHWAY THROUGH A -BOY 1PARI(1 G LOT? It vms saWjwad at the July 13, 1995. hearing that the pathway co;dd be route through the parking lot for the A-Boy facility. Tbm following reasons make tleis alternative unfeasible: 1. The pathway along the creek is the mom direct rcuta to Main Street. To route through the A-Bay 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 parldng spaces, irk an ares where neither vehicles, b0ces, tact pedestrians would expect conflicts. 3. The pathway along the creek is a more clearly defined public spa= 4. The pathway along the cry icy the assts attrsctivc routs, rcia forcing pathway utility and LIMRAQ goals; it vhll attract moro riden. 3. The pathwwj along tkw cm* is the established standard, and therefore is consistent and elcarly idenhfssble. B. PROBABLE vs SPECIIr'IC L. USE OVACM The Dolan Craft for an A-Boy plumbing supply atom addresses only one of the uses applied for and approve. The mom Quay to asset irupacts to 69 transportation system for the property under this =W is to awaim tiro het can, W mode vaithcslat tiu6w hearings. our testimany of July 15,1995, vdth on accompanying table of range of possible u3es, clearly dernsnsts that die outright pcrtrlil~ed use ofthis property a W resulting impacts are si cantly higher than the A-Eby p!ropwal. This is the cmmt logy, because it does not ignore the impacts that can c wjr under the permitted rases as the ATEP report does. AAAd^=NZMENQTNEE1r G1NCoRF0RATM SIWPIDATA\95-a a31591 WILE: EXHIBIT l? Page .@- of pages S M, IN 1 15,1111"1 '1 111 1,, AUG- 2-95 WED 13:38 KSAME I FAX NO. 5032749812 P.04 Dolan Rem Homing ProjecMumber 195159 August 1, 199S Psga 3 F. IA.? STREET IMPROVE S M" ead foe half street iniprovern ata is approximately S 150 to 5200 per lifted foot of street frontage. DGMS k Ar 910505 ' Av~~ 43 L MAC gK(illvg pzm WCORPORATED F.\R'PDATAi93dB195i3S~01Ml.BC3 EXHIBIT la- Page 3 - of Pages a ~ -e AUG- 2-95 WED 13:39 MSA/MEI FAX NO. 5032749812 P.05 DAVID G. LARSON, PE Nice President / Director Civil Engineering Civil / Traffic Engineer Mackenzie Engineering Incorporated ~sc!rt_toat a Oregon State University, Bachelor of Science, Civil E slueerft (1975) Professional Registration 19 Licensed Professional Civil and Traffic Engineer in the State of Oregon N Licensed Professional Civil Engineer in the State of Washington Professional Eapedence Mr. Larson has 20 years experience in bath the private and public sectors, including prior worts for the Oregon Department of Transportation and the City of Hillsboro, and ;as a private consultant in Beaverton, Oregon, His work experience includes all phases of commercial, industrial, and residential design, including street and highway design, storm drainage. stream flow hydraullcs, sanitary sewerage, water system and grading design. He has extensive experience in transportation engineering, project administration, construction ubservation, and construction cost estimating. TIMOTHY MCGURE, PE Civil Engineer Macicenzie Engineering Incorporated Educadon va Oregon State University, Bachelor of Science, Civil Engineering (1578) Professional Registr4dan Incensed Prof ssloraal Bngi err in the States of. A Oregon st Washington Professional 1xped ence Mr. McGuire has 17 years experience in many aspects of civil engineering planning, design, and construction. His recent projects include a vari*.ty of commercial, residential, and industrial developments. M., r. McGuire's project reWnsibilifies have included site evaluations, preliminary design and development cost estimates, site engineering, construction administration, and construction reviews. His design experience includes streets, storm and sanitary sewers, water systems, and related utilities, including plans, specifications, and contract documents. Mr. McGuire has considerable awrtence in the planning and engineering of residentia". subdivisions. Recent projects include locations in Oregon and southwest Washington. Specific project experience ranges from conceptual planning, drainage and environmental analysis, public hearings and approvals, through fatal engineering and construction assistance. EXHIBIT Page ' oP _ __q-_Pages r O'DONNELL RAMIS CREW CORRIGAN & BACHRACH ATTORNEYS AT LAW 1727 N.W. Hoyt Street Pordand, Oregon 97209 TELEPHONE: (503) 222-4402 FAX (503) 243-2944 DATE: August 2, 1995 T®: City Council FROM: Tim Ramis City Attorney RE: Response to Testimony The staff has asked me to prepare a short response to two claims made by Mr. Shonkwiler at the most recent hearing. I am providing the following comments for your consideration. 1. Responsiveness To Settlement Proposals. While we have agreed with the Dolan's legal representatives not to discuss the content of settlement conversations, Nir. Shonkwiler has made certain references to those conversations which must be rebutted because they are not accurate. First, the claim that no conversation took place regarding settlement until Mr. Shonkwiler initiated the contact does not reflect the true facts. In fact, I called Mr. Shonkwiler and made the initial contact regarding settlement issues immediately after the filing of the case. Second, the claim that the city has not been responsive to the Dolan's settlement ideas is also an inaccurate statement. The city has responded in meetings and in writing and has clearly indicated a direction for settlement that would be fruitful. The characterization of my phone conversation with Mr. Shonkwiler regarding the implications of condition number three, and its effect on condition number one, was no more accurate than the other claims regarding settlement. 2. Notice of Condition Number Three. During the hearing the statement was made on behalf of the Dolans that they had received no notice that condition number three, the setback condition, controlled the location of their EXHIBIT-I_ Page _1of ----'--Pages F OTONNELL RAMIS CREW CORRIGAN & BACHRACH Memo re: Dolan v. City of Tigard Case August 2, 1995 Page 2 building. The claim is not supportable for several reasons. The condition of course speaks for itself in indicating that the building must be set back. Also, the fact that condition number three prevented relocation of the building to the Dolan's desired location was pointed out to them in private conversations with their legal representatives in the context of settlement. Finally, the Dolan's technical and legal representatives have been informed of the implications of condition number three in writing. c: \orcc\TNR\Ciry.M01(Icvw) (08/02/95) FXH131T Page of Pages MISS c -Up CITY OF TIGARD April 25, 1995 OREGON Mr. Albert Kenney, P.E. Consulting Engineer/Planner 9500 SW Barbur Boulevard, Suite 111 Portland, OR 97219-5425 Project: A-Boy - plan check #2-26c 12520 SW Main Street Re: Building Plan Review (1991 UBC with Oregon Amendments) Dear Mr. Kenney: The plans for this project were reviewed for conformity with applicable codes. Please submit the following items for completion of the plan review process at your earliest convenience: 1. Submit typical details for handicapped parking stalls, access aisles, etc. 2. One in eight accessible parking spaces, but not less than one, shall be served by an access aisle 96 inches wide minimum and shall be designated van accessible (Table 31-A, figure 9, and Section 3104(g)2B). Please submit a signage detail for the handicapped parking stalls. Parking stall widths to be a minimum of 108 inches wide and 17 feet in length. 3. Van accessible parking spaces shall have an adjacent access aisle on the passenger side of the vehicle (Section 3104(g)213). 4. Accessible parking spaces and access aisles shall be located on a surface with a slope not to exceed 1 vertical in 50 horizontal (Section 3104(g)4). 5. Indicate curb/sidewalk ramps for the accessible parking spaces at the sidewalks. 6. Provide a grading plan that shows existing and new contour lines with general site preparation/grading notes. 7. Submit erosion control plan which complies with all of the requirements from USA (Unified Sewerage Agency). 8. What is the volume of cut and the volume of fill in cubic yards? Efto T 13125 SW Hall Blvd., Tigard, OR 97223 (503) 639-4171 MD (503) 684-2772 Page of Pages 71"i Q, r Mr. Kenney April 25, 1995 Page 2 9. Submit two sets of the sitework specifications. 10. Please complete the attached forms and return to the Building Division. 11. Provide a foundation investigation report pursuant to the requirements of Section 2905. 12. Please provide general grading notes, especially for compaction and subgrade preparation. All material shall be compacted to a minimum of 90% maximum density using the ASTM ;utandards in Section 7002. 13. Provide a note on the plans similar to: Special Inspections shall be provided pursuant to Sections 7015, 7015 and 306 of the Current UBC. 14. Submit Oregon Energy Compliance forms for review. 15. The perimeter insulation shall extend downward from the top of the slab for a minimum distance of 24 inches or downward to the bottom of the slab, then horizontally beneath the slab for a minimum total distance of 24 inches (Section 5303(4)4). The possibility to eliminate the perimeter insulation is an option, if the energy compliance forms can justify compliance with Chapter 53 for the entire building. 16. Provide an accessible route. from the building entry to the public right-of-way. The boundary between the areas shall be defined by a marked crossing having a continuous, detectable ;=laming not less than 36 inches wide, complying with Section 3109(f), (Sections 3103(a), and (b)3B). 17. Submit plumbing-isometrics and mechanical plans for review. 18. Submit a door schedule (including hardware types) for review. 19. The maximum allowable area for this building is 12,000 square feet based on the following submitted information: 1. Occupancy - B2 2. Type of construction - 5N 3. Number of yards - 2 i` 4. Number of stories - 1 5. Sprinklers - none This building will require sprinklers throughout or two-hour area separation walls constructed per the requirements of Section 505(f), as the total area is 17,600 square feet. 20. Submit details for the handicapped restrooms. EXHIBIT . Page of Pages 1% J:jg%an 1111111 vilipi! -ti Mr. Kenney April 25, 1995 Page 3 21. Pursuant to Table 5-E, one water fountain shall be accessible complying with Section 3109(1), and at least one fountain shall be mounted at a standard height (section 3108(d)). Please submit an elevation detail for such drinking fountains. - 22. Provide guardrails at the loading dock per the requirements of Section 1712. 23. Will a ceiling be installed in any portion of this building? If a ceiling system is planned, sub-nit a reflected ceiling plan, seismic bracing for seismic zone 3, and draft stops per the requirements of Section 2516(f)4b. 24. Handles, pulls, latches, locks and other operating devices on doors, windows, cabinets, plumbing fixtures and storage facilities shall have lever or other shape permitting operation by wrist or arm pressure and not requiring tight grasping, pinching or twisting P to operate. The force required to activate such equipment shall be not greater than 5 pounds force (Section 3109(c)l). 25. The highest operable part of environmental and other controls, dispensers, receptacles and other operable equipment shall be within at least one of the reach ranges specified in Section 3109(b), and not less than 36 inches above the floor. Electrical and communications systems receptacles on walls shall be mounted a minimum,of 15 inches high above the floor (Section 3109(c)2). 26. Regardless of the occupant load, there shall be floor or landing on each side of a door. Landings shall be level except for exterior landings. The floor or landing shall not be more than 1/2 inch lower than the ?imshold of the doorway. Ti landing shall have a width not less than the width of the door. Landings shall have a length measured in the direction of travr,l not less than 44 inches (Section 330-4(i) and 0)). Provide landings at all of the south exit doors. 27. Key-locking hardware may be used on the main exit only if there is a. readily visible,. durable sign on or adjacent to the door stating, "THIS DOOM MUST REN AIN UNLOCKED DURING BUSINESS HOURS" (Section 3304(c) exception). 28. If installed, special egress-control devices shall comply with all of the requirements of Section 3304(e). 29. When two or more exits are required from a room or area, exit signs shall be installed at the required exits from the room or area and where otherwise necessary to clearly indicate the direction of egress (Section 3314(a)). 30. In addition to item 19 above, sprinklers are required pursuant to Section 3802(a)l (need 20 square feet of opening every 50 feet in at least two exterior walls). EXHIBIT 8? Page _ of 1-Pages Mr. Kenney April 25, 1995 Page 4 31. Tempered glazing is required in fixed or operable panels adjacent to a door where the nearest exposed edge of the glazing is within a 24-inch arc or either vertical edge of the door in a closed position and where the bottom exposed edge of the glazing is less than 60 inches above the walking surface (Section 5406(d)1,6). Also, any glazing in doors to be tempered. The following structural concerns are noted: 1. What type of bolts are used? 2 Call out all bolts used. 3. Provide structural calcs for review. Additional comments. or corrections may follow pending review. As you know, the City Council will be considering the remand of your site development permit approval, Condition #1, in a future public hearing. You are being issued a. separate letter from the City relating to your current site development permit application. Both the site development permit and the building permit would be subject to an agreement to abide by the final result of the remand hearing and any appeals as to Condition #1. In addition, Condition 43 was not appealed and is still in effect. 't hat condition required relocation of the phase one building outside the area of the greenway and out of conflict with existing sanitary sewer easements. Sincerely_ , P.E. David Scott Building Official cc: Mr. Dan Dolan Mr. John Shonkwiler r- Mr. David Smith _ Mr. Tim Ran-is Mr. Robert Franz PJb\,ach\ 0036,kcaney.81 EXHIBIT !E? Page A_ of _ : Pages Y JUN 131999 ~ RHQUE= FM CONK== TO: 0 f DATE: May 30•, 1989 FROH: Tigard Planning Department RE: SDR 89-13/V 89-21 Dolan/A-Boy For Site Development Review approval to allow replacement of an existing sales facility, the A-Boy Electric and Plumbing Supply building, with a new facility. Also requested is a Variance to the required parking standard for general retail sales (one space per 400 sq. ft. of gross floor area) to allow 39 parking spaces where 44 spaces could be required. ZONE: CBD (Central Business District) LOCATION: 12520 SW Main Street (WCTX 2S1 2AC, tax lot 700) Attached is the site Plan and applicant's statement for your review. From information supplied by various departments and agencies and from other information available to our staff, a report and recommendation will be prepared and a decision will be rendered on the proposal in the near future. If you wish to comment on this application, we need your comments by June 9, 1989. You may use the space provided below or attach a separate letter to return.your comments. If you are unable to respond by the above date, please phone the staff contact noted below with your comments and confirm your comments in writing as soon as possible. If you have any questions regarding this matter, contact the Tigard Planning Department, PO Box 23397, 13125 SW Hall Blyd., Tigard, OR 97223. PRONE: 639-4171. STAFF COWZACT: Viola Goodwin PLEASE. CHECK THE FOLLOWING ITEYS THAT APPLY: We have reviewed the proposal end-have- !TS o65ections to it. C6-1/-F-lelli7S Please contact of our n£fice. Please refer to the enclosed letter. i Written Comments: a~I-~"f1T QA1 L•• AN,19S'<A ~ 101_,4AI CO 111- 112 16 /_O6-1 l1- 1/i w 0e6~_ z5F497- ,60e/11l~ GOrAV for T/9,UC4 .S'WOUI 0 I-M tie S'QVAW 5eZ26,EW1A6• FFFWC E 411,11f NOT- 60 c-//A/ / /S 'AMY /~r AICIA16 619 FoQ GOf ,r4=k-_,0 aLQ grok€ ~S .001N? Name of Person Commenting: Phone Number: !o 1 31 - 306,5 f b1m/SDR89-13. BKM LUBA FILING CITY OF TIGAF- EXHIBIT # 91 EXHIBIT 9 PAGE Page _L of ~_Pages Haar ris-McMonagle Ass®ciateis, Inc. ENGINEERS-SURVEYORS RECEIVE' 12.555 S.W. HALL BLVD. TIGARD, OREGON 97223-6287 1blephone (503) 639-3453 A U G 0 2 j g a c, . COMMUNITY OEVELOI`i,_ August 2, 1995 City Council City of Tigard P.O. Box 23397 Tigard, Oregon 97223 We were requested by Ty K. Wyman of the legal firm of O'Donnell Ramis Crew Corrigan & Bachrach to research any available information relating to the placement of on the site known as the "A-Boy" property. The photogrammetri,; engineering firm of Spencer B. Bross Inc., was contacted to provide copies of aerial photos of the site over the past years. The photos provided were taken on the following dates: June 14, 1963, August 11, 1966, August 29, 1969 and July 3, 1971. Upon review of these photos it was determined that dump truck loads of material has been placed on the site. Spencer B. Gross; Inc. was requested to count the dump loads shown in the 1966 photo and confirm the presence of dump piles in the later photos so that a rough determination of the volume of fill could be determined. Our observations of the previous grading and filling activity, based on the aerial photographs, are the following:. June 14, 1963 Aerial Photo. a. This photo shows the original building prior to the addition to be seen in future photos. b. The area between the parking, drive access to the rear of the building and Fanno Creek appears to be in a native, undisturbed condition. August 11, 1966 Aerial Photo. a. The addition to the building east of the original building is shown. b. This photo shows dump load piles of material southerly of and adjacent to the parking, drive access. C. The native trees and vegetation shown in the 1963 photo have been removed in the area of the fill activity. EXHIBIT J,© Page ._Iof Pages I A H-McASSOC., INC. August 29, 1969 Aerial Photo. a. The building addition is the same as the 1966 photo. b. The dump load area is still evident and vegetation is beginning to grow on the dump piles. C. The area between the parking, drive access and Fanno Creek adjacent to Main Street has been graded, vegetation removed and possibly some fill made. July 31, 1971 Aerial Photo. a. The building is the same as the 1966 and 1969 photos. b. This photo shows more vegetation growing on the dump piles and possibly some grading, leveling of the piles towards the creek may have taken place. C. The area adjacent to Main Street has been put to some use after the grading shown in the 1969 photo. Spencer B. Gross, Inc. reports that there are 51 dump piles counted in the 1966 photo of the site. Using an average of 11 cubic yards per dump pile there would be approximately 561 cubic yards of loose fill material dumped on the site. The 1963 photography will be used to determine the contours of the site prior to the dump plies being placed. The City's 1989 photography will be utilized to compare with the 1963 topography and determine the volume of fill placed on the site and below the 100 year flood plain if any. When this data is available it will be transmitted to the City. Sincerely, Willia cMonagl , v -boy EiXH I B IT -I&Q- Page -a_ of Pages 1 111 12kIR'l 1121! 1; _ j ; t _ wt,,. hk OTONNELL RAMIS CREW CORRIGAN & BACHRACH u ATi OFN YS AT LAW 1727 N.W. Hoyt Street Por0and, Oregon 97209 TELEPHONE (503) 222-4402 FAX: (503) 243-2943 DATE: June 26, 1995 - TO: Tigard/Dolan Claims and Negotiations File FROM: G. Frank Hammond RE: Conversation with Randy Wooley On June 26, 1995, I interviewed Randy Wooley, the City Engineer for the City of Tigard, k concerning creek maintenance. Mr. Wooley said that from time-to-time the City takes action y to maintain those portions of Fanno Creek to which it currently has access. For example, the City has in the past gone into the floodplain areas to remove blockages. In addition, the City has in the past gone into the floodplain areas to remove vegetation that was presenting a threat. Mr. Wooley also said that the City does maintenance work on the creek channel in conjunction with other projects, such as bridge construction. He continued by noting that he believes that approximately ten years ago the City did a significant amount of work on the creek channel in the City Hall area. GFH/sb gih/dgu&dolsninegotinW i3e.mmt P i EXHIBIT 3.._- Page of iPages i 3. UNIFIED SEWERAGE AGENCY OF WASHINGTON COUNTY July 10, 1995 G. Frank Hammond O'Donnell, Ramis, Crew, Corrigan & Bacharach 1727 N.W. Hoyt Street Portland, Oregon 97109, Dear Mr. Hammond: Subject: Relocation of Public Sanitary Sewer Main Mr. Will Selzer of your office has asked that I provide a statement of policy relating to the relocation of existing sanitary sewer mains. The Agency has allowed the relocation of an existing public trunk main by.a developer when it has been shown that the existing location conflicts with reasonable development or redevelopment of a site. The responsibility for design, construction, legal documentation, other jurisdictional permits and approvals, performance and maintenance guarantees will fall to the applicant in accordance with Agency Resolution and order 91-47 as it is amended by R&O 91-75. All costs associated with a project of this scope would be borne by the applicant. Upon completion of construction, Agency acceptance of the relocation project, and submittal of new easements, the Agency will release interest in the existing easement. The City of Tigard, or other jurisdictions may also have easement restrictions on this site. Your request was made for information on a "hypothetical" basis. In the event of an actual request for relocation, please advise the applicant to contact my office to address details and site specific issues. I hope this letter satisfies your needs. If I can be of more assistance please contact me at 648-8678. Since ply, ee Walker Design and,Plan Review Supervisor /eb _ _.w__ _..s,... EXHIBIT 155 North First Avenue, Suite 270 Phone: 503/648.662 Page Hillsboro, Oregon 97124 FAX: 5031640.354' 0$ --~_Par Nam" MACKENZIE ENGINEERING INCORPORATED CIVIL u SMUCTURAL a TRANSPORTATION 0690 S.W. BANCROFT STREET • P. O. BOX 69039 PORTLAND, OREGON 97201-0039 a (503) 224-9560 • FAX (503) 228.1285 MEMORANDUM FIR DATE: July 17, 1995 GI 11uE~~ Ol SUBJECT: Dolan / Tigard Hearing Project Number 195159 GO BY: Tim McGuire ► 16. Z9s~ ,Q o~Y W. TO: File /Z ESTIMATED COST OF IMPACTS TO THE REGIONAL DRAINAGE RESULTING FROM THE PROPOSED SITE PLAN AND BASED ON THE UNIFIED SEWERAGE AGENCY RESOLUTION NO. USA 93-33 z Resolution No. USA 93-33 establishes System Development Charges that are assessed to capital improvement projects increasing impervious surface areas. The fees are used for various drainage construction and maintenance costs. The basic unit of measure used to determine storm water fees is the Equivalent Service Unit (ESU). The ESU is defined as: - ESUs = Impervious Area 2,640 sf Based on the proposed site plan, added ESUs are approximately: Existing Impervious Area Roof 9,600 sf AC/Sidewalk 18,000 sf TOTAL 27,600 sf Proposed Impervious Area Roof 17,600 sf AC/Sidewalk 21.500 sf TOTAL 39,100 sf Added ESUs = 39.100 - 27.600 - 4.36 ESU 2,640 The storm water SDC fees are: \ Water Quality = $180/ESU Water Quantity = $100/ESU For the Dolan site, the SDC fees are: Water Quality = ($100) (4.36) = $785 Water Quantity ($180) (4.36) = 436 TOTAL - $1,221 EXHIBIT 12- - _ " Page -L- of MACKENZIE ENGINEERING INCORPORATED FAWP0ATA\95-07\95159\17M;Pages r v- 4. 1 . Dolan / Tigard Hearing Project Number 195150 July 17, 1995 Page 2 The SDC fees are based on a study by Brown and Caldwell Consultants (June 5, 1991) that calculated the costs of mitigating stormwater impacts resulting from development. Based on this study, the actual estimated cost to mitigate the impacts to water quantity, per ESU, is: 25-Year Storm Event = $563 / ESU 100-Year Storm Event = $1,033 / ESU ` (This is the cost for just the quantity component only and does not include water quality costs.) This indicates that the SDC fees contribute only a portion of the actual cost of mitigating impacts resulting from development that adds impervious areas. For the Dolan site, costs to the drainage system not covered in the site fees are: 25-Year Storm Event = (4.36) ($563 - $100) = S2,W (unmitigated impact) 100-Year Storm Event = (4.36) ($1,033 - $100) }A = $4.068 (unmitigated impact) TWM/ks EXHIBITS- - Page.` o~ MACKENZIE ENGINEERING INCORPOWED F:\WPDATiA\95-07\95159\17M3. _ --~PageS '~'I~E F'OII.~VV6~I1~G JiVIEN'TS DOUU A OF POOR ORIGINAL QUALlr-rn-"Y _ r u qa~A,. a Yt' c fis Y :,a { T ,yam. r' IBM . r- go" K r YOU - Via vu, g PY: MS. W_ A of mom. .4 - NEW a ' [ rr a' w ' 'n~r'~ s ~ _ Fi.`. •9 :r~,~ ~H 9.`'d F 3''~,~Er'~,z; rrt rug 'i'v'' '€t Ya a g• e~ ri.~~ s 4,Ms -y, p'x'x ~,rat• k &< w ~,y, = ' 4:f-a• y ; , < 1, s OR, y +.'xt J si'r'e k•f x f~ 3~ . t R~ one - 96:~- ~w _ n. •.emsso ~A"A~ e'`,W~ Y} - T ~13~~.~ (~,~'`ZK r - rx a -r• irx e„ wf e~ ~»Y'f„r~~ x,5,'€4 } r oil. a:. i~,n. s- *a'~ 'vc-4dx, 'od.,~s >yA soma s i j f E t E i ~ l 1 - 1 4 f. i. 1 I _ P.Z O Copyright 1 994 SPENCER B. GROSS, INC. 3 13545 N.W. Science Park Drive PORTLAND, OR 97229 646=1733 411M -,W. MAN r looks "Ovid ,_.~r• - ~,Ic 1£.Ln ffi w' g~s5x'.'sti;i<!,~''wuL:vr~7.$2e'Fa yf r'';S G:<~ A7 I . tug. ~ r ~ ~ aw f irk ff- 's L- ~ F 3 F j F j r a ? t ~ t c { 1- 'I E 4 Sp tj i' e ~ SPENCER B. GROSS, INC. 13545 N.W. Science Park Drive PORTLAND, OR 97229 C46-1733 ~ ` `lk:.•~... ' +j1 rv.xy+~~,~t~g~t~, ,~,J yau~~t""p.,,g~fSa+ . c my §.,b Via, vi a .,~{n•;xt ~3,„.. b. .er4e..w' R, tt x:0,7 ~ rr & • 'arc Mg, _ Via' ~ ~ 4 ,~;p y~• y a ~ ~Sj 10"N mg, vq% 3 e {t 1 S~061PI.'~~ 4 _ S qj a p 47 i E. j t - r, ! r 1 is E : 1 j aa I ~ t t{ j I f 1} ep F91 l ~ - I fRl-3 l Copyright 1994 SPENCER B. GROSS, INC. 13545 N.W. Science Drive PORTLAND, OR 97229 Pa6 - 3 j i ® j/ l ARM fi Y t 'a f N-", A 1 d IN t VWI - ; AA 7-4 •!r t h tk~~ tl f F{ MO. &V lgw- 11 lip - I"h mat `.w A S t a se a ' a. „v wCS- u rsd - I i f f S i L I _i i f f 7 ` 1 a 1 B j t F 1 E ~ .L Copyright 1994 i SPENCER 0. GROSS, INC, 13545 N.W. Sciences Park € rive cr r PORTLAND, OR 372219 646-1733 r ZN! 1- July 20, 1935 TRAFFIC IMPACT FEE FOR Enclosed with this letter you will find a calculation sheet showing the computation that has been performed to determine the amount of the Traffic Impact Fee (TIF) to be paid for the project noted above. The amount of the TIF is $0000.00. You have three payment options available to you. The first is to pay the TIF at the time you are issued a building permit. The second is to arrange for payment over time by signing a promissory note (if you wish to exercise this second option please contact me for additional details). The third option is to defer payment until occupancy. Traffic impact fees are subject to an annual increase of up to 6% if not paid or financed prior to July 1St of each year. Please note that you may appeal the discretionary decisions made in determining the appropriate category and the amount of the fee leased on that category. A notice of appeal must be received by the no later than 5.00 p.m. on (14 days) and must be accompanied by the $625.00 appeal fee required by Washington County. Although filed with the City Recorder, an appeal would be heard by the Washington County Hearings Officer. If you have any questions, or if I can be of further service, please contact me at 539-4171. C-. nr- M3 8W[d'tng So EXHIBIT J,_ Page Lof ---_.l--Pages f., . 1 RECEIVED BEFORE THE CITY COUNCIL OF THE CITY OF TIGARD IN THE MATTER OF THE APPLICATION OF ) APPLICANA"""' DEVELOPMENT. DOLAN/A-BOY SITE DEVELOPMENT REVIEW ) AUGUST 2, 1995 T -Qr~►-~, w h SDR 91-0005/VAR 91-0010 ) MEMORANDUM The following are responses to evidence previously submitted and new issues raised. 1. Exhibit 76 and_51. Mr. McGuire attempts to describe the "cumulative impacts of development" for stormwater runoff into the Fanno Creek floodplain. By his analysis, he assumes an increase in population for the entire City from 1970 and extrapolates that this increase in development will also increase the height of the 100-year floodplain by 4 feet. There are several errors in his analysis. First, not all of the City land mass is in the Fanno Creek drainage basin. In fact, only approximately 2/3rds of the City drains into Fanno Creek. The remainder of the City drains directly into the Tualatin River and other smaller drainage basins. See Exhibit "A". Assuming only a 1/4th land mass on the southwest side of the City drain Q directly into the Tualatin River, all of the buildable lands and density development shoo d have been excluded from his calculations. However, they were not excluded. Significantly, this southwestern area of the City is where most of the developable land and fixture annexation areas are located. This area comprises approximately 60 to 70% of the growth expected by the City in its comprehensive plan. See Exhibit "B." The Fanno Creek drainage basin, in contrast, is mostly developed with fixture expansion expected only for "in fill" lots. Expansion of this area is limited by other city boundaries: Beaverton to the north, Lake Oswego to the east and Tualatin to the south. As a result, Mr. McGuire's calculations would require adjustment to reflect the elimination of the direct Tualatin River drainage. Assuming the Tualatin River drainage area constituted 60% of the City's growth, the number of "sheets" would be reduced to only 4, 763 or approximately 1 and one-half feet; and assuming 70% the number of "sheets" would be reduced to 3, 572 or a little over 1 foot. Secondly, Mr. McGuire's example is clearly misplaced. The results of his calculations declare that the floodplain has risen 4 feet since 1970. However, the floodplain at the Dolan property was calculated by CH2M Hill as being at 150.0 feet elevation. It is this study that forms the basis for all calculations by both the City and the Dolans. Contrary to Mr. McGuire's conclusion, the floodplain level at the Dolan property is still at the 150.0 foot elevation today. There has been no rise in the floodplain since the CH2M Hill report. 110101 011 a 1," 7 n _ 51 ~!r P r e ~v v7 2 Thirdly, Mr. McGuire has "lumped." all residential development with commercial development for purposes of impervious surface calculation affecting stormwater runoff. However, the commercial runoff is substantially higher than residential property runoff. This is because residential property typically has substantially less impervious surface. Mr. McGuire applied the Dolan runoff ratio to all developable residential lands as if they were commercial. Commercial and industrial properties are approximately three times higher in stormwater runoff then residential. Thus, Mr. McGuire's calculations are proportionately in error. Mr. McGuire also asserts a justification for the floodplain or greenway exaction by assuming a need for public maintenance of the floodplain. However, there is no justification identified or supported for public ownership (even assuming there is a need for floodplain maintenance). The City has the authority to regulate a floodplain area requiring property owners to maintain it to assure no "accumulation of brush and debris". The City and the Fire Marshall already exercise this authority for tall grass and overgrown fields to eliminate fire hazards. The City already possesses penalty and enforcement authority to insure compliance with code requirements by landowners. In calculating the Fanno Creek basin 100-year flow, Mr. McGuire again makes incomplete assumptions for his calculations. He leaves out the water quality detention facilities required by the City for all new development and their effect in reducing the peak flow to Fanno Creek. He also admits that the predominant stormwater generation is up stream from the Dolan property and , if this was retained up stream, the Dolan site stormwater could be added to Fanno Creek and the resulting down stream peaks not increased to those predicted by the Drainage Master Plan. The issue is not whether the Dolans are generating stormwater froin their site, they are. The City has made no attempt to calculate or proportionately assign stor-rnwater drainage 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 stormwater management. Here, it is not and the Dolans are being required to pay or contribute more than their fair share. Similarly, Exhibit 51 also misinterprets the effects of stormwater improvements in the City. Mr. Berry asserts that the stormwater quality detention facilities will have no effect on Fanno, Creek basin because these facilities are only for water quality treatment. That assumption ignores the fact that the water quality detention facilities also detain a certain quantity of stormwater while it is being treated. The applicant has never claimed that it equals the 100-year storm event. However, it does have the effect of a 10% reduction. Also, the calculation is required under the ordinances to a 25-year event. Thus, the City's assumptions for saying that there is no effect are groundless. Finally, Mr. Berry asserts that there is no reduction in the floodplain by the replacement of the Main Street bridge because channel improvements were not done as fully required in the C112M Hill report. This statement is very misleading. First, charnel improvements were completed at the bridge when the Main Street bridge was replaced. However, not all improvements further up stream and down stream were completed. The a'a~ 'f t'i'f 3 point here is that C112M Hill recognized that making these improvements would lower the floodplain. The City is attempting to say that some of the improvements have been made but there will be no effect until all the improvements are made. That simply is not how reduction of channel obstructions works in relation to stream flows. The CH2M Hill report clearly identified that the backup at the Main Street bridge was due to the bridge and its related channel restriction. That has now been eliminated and flow has increased. The City has failed to make an adequate evaluation and determination of the reduced floodplain allocated to the Main Street bridge replacement. Mr. Berry can not claim that the key issue for the floodplain level is "flow" so that water quality detention facilities are irrelevant, and then assert that improvements that have increased the flow potential are also irrelevant. 2. Restriction of Condition No. 3 of original 1991. Order. The City Attorney asserted that condition No. 3 of the original order was not appealed by the applicant, and therefore a 15 foot setback will be required for the first phase building, whether a pedestrian/bicycle pathway is required or not. This is inaccurate. Condition No. 3 provides: "The applicant shall submit a revised site plan showing: 1) building plans which show the proposed design and location of outdoor lighting and rooftop mechanical equipment; 2) the location and screening of the trash disposal area; 3) the relocation of the phase one building outside of the greenway area and out of conflict with existing sanitary sewer easements; and 4) a minimum of two appropriately located designated handicapped accessible parking spaces." This condition does not establish any special setback requirements for the side yard (the southern boundary of the Dolan property abutting and including the Fanno Creek). Even assuming setback requirements of the ordinance, the setback requirements for the Central Business District are "0" feet for the side yard. CDC 18.66.050 (3) sets a "0" setback for the side yard except as otherwise provided in CDC 18.96 and 18.100.130. CDC 18.96 does not establish any side yard setbacks affecting this property (the section deals with front yard setbacks and other conditions). CDC 18.100.130 includes a setback requirement under a "buffer matrix" between different abutting zoning districts. CDC 18.100.130. The Dolan's property is located in the Central Business District. The property located on the other side (south side) of Fanno Creek is also located in the Central Business District. Pursuant to the buffer matrix, the side yard setback for the Dolan property is "0". In fact, the property south of Fanno Creek was developed as commercial well over 20 years ago and remains a commercial stricture. There is no basis for the City's newly asserted claim of a setback equivalent to the pathway exaction width. See also Exhibit "C" of ordinance provisions and zoning map. 3 In addition, the property line for the Dolan property lies within the Fanno Creek. At one point where the City is proposing to place the pathway and require removal of the " proposed phase one building, the southern edge of the building is over 60 feet from the southern property line. This southeastern comer and wall of the proposed building clearly exceeds even the most restrictive of side yard setbacks for all zones (however, ' there is only a "0" foot setback for the Central Business District). Similarly, at the IW I! Will a ROMIN 4 middle of the southern wall of the proposed building (at a location where a required pathway would necessitate removal of the proposed building), the building is approximately 20 feet from the southern property line. The City's new assertion is completely groundless and a very weak attempt at trying to raise doubt that the location of the required pathway will have no adverse effect on the property development. In fact, the required 'pathway will be the only reason necessitating removal of the buiiding; and will cause a direct economic loss to the remaining property. 3. ATEP reference to traffic impact of $17 071 22. The City during oral testimony asserted that ATEP's report supports the City's position that the cost of traffic impact far exceeds the pathway value by citing the reference to $17, 071.22. However, the ATEP report referred to how the City's analysis of total traffic impact cost was in error. By showing just one error in assumptions by the City, ATEP readjusted the City's figures to show that it was reduced to $17, 071.22 from $33,496.57. Neither ATEP nor the Dolans ever asserted that the $17, 071.22 was a legitimate figure for traffic impact cost. This figure actually represents the 68% traffic cost above the TIF fees that the City already collects for traffic impact costs. The Dolans have consistently contended that the City improperly and unlawfully is attempting to charge the Dolans for traffic costs above. their authorized TIF fee requirements. This is improper and unlawful due to all the reasons we have previously identified in our submittals and testimony. In addition, the City has now testified that the 68% falls under the original intent it had in adopting the TIF fee participation. The City gave the example of a "three legged stool" (one leg being the County TIF fees, one leg being City public financing through assessments and taxes, and the third leg being exactions). Contrary to the City's testimony, `chat the City actually is now attempting to do is impose a "four legged stool". The City's four legged stool includes the other three plus adopting the City's own TIF fees percentage. In essence, the City is tripling the collection of traffic impact costs by imposing City allocated TIF fees, exactions and additional exactions for 68% above County TIF fees. 4. Pedestrian/bicycle pathway The City has asserted that the pathway through the Dolan property is necessary to make a connection from the existing pathway system east of the Dolan property to Main Street. This is very misleading. First, there is no pathway system located on the property adjacent to the Dolan property on the east. The pathway is only partially completed in the area near Hall Boulevard where the public grounds and City Hall are located. The Dolan property is not the last property necessary for completion of a link to Main Street. In addition, there already exists a parallel connection to Main Street. As previously identified, the pedestrian/bicycle pathway along Ash Street (including the pedestrian/bicycle pathway bridge crossing Fanno Creek running north and south) already exists. This pathway will allow direct linkage with the existing pathway along Burnham and Frewing, which run east and west. These linkages connect to tho Main Street 1! 1; 11111:1 1111,11~ 1111INAN!,! S sidewalk and essentially surround the area that includes the Dolan property. A connection through the Dolan property is not supportable by public need or interest. Respectfully submitted, J W. SHONKWILER, P. C. John W. Shonkwiler 1 1 A I 9~ k Y ro a s i 7a - w u rW6 bwm: ~ t ~ p ~ .`.I a. r w a s ..:''ty'3~`.L a J i It r^ p,N awns ~ b y b r alw~ a ■ 't .a~ a G e6 ® ♦q aa5 ~ $ t • _ D aerra a a 8 n aua M t 4 a . ` A . ar ~,i 1 MAro ai S~ , R Q r t}ii F ^a' A e~ .iCA ~~ti - a sc'K'"T~ tkN ~ ytaF-., 14a, > At... ' ~ u Q i r> ~ " t ks A as a c~. wasp .i o a 'ww, 7 "T i~~' ' o • J .alnm wmaA -.~.•x't¢o~:F}`Q°'~ d ' n ~~lu e a _ I to t l 1 a 6~ t aro A as a1Q' a t, A X bL w. _ Ht rt 9 } a LL. '.EsVla t. C4, ~tlaa.asA1' 0 a R M p~ QR.[[ y r~ L !tl' ?y. x3 ~ l !y . '..q d ve' Q ~c m ~ W p b ,tea ~:.t t TU Intl W: A Ar : mm DIAGRAM I ~ ; - I ~ .L~~~LJUrlll~>.1111~ ~E ~~~~~f~• ~ ~~IF l.^.:j•.:n,~'•A~j 1i IL UH1110i: lilP~UWIi,''' E i 1I r ' :?d ~~t11~1 illll::~IlilifS III~~'ili ail 2 -This area is not show on the 1479 US Corps bf Engineers I~ Floodplain study. This map _ is preliminary and will be revised pr or to ado tion: i , FLOOD PLAIN AND WETLANDS ~ - r a IM 100 YEAR FLOOD PLAIN Sao ® DfiA71.1AGEWAYS and WETLANDS _ 4ax0-- seasonally wittnn 1S! Peet of tha surface? 1 , \ - --1 ~ ~ T r i J TKI~RD Oy av.M AR!• _ 11. S. ~ I . •1 I ,\d ,.`,Hf.^'~ j~ s<. I !R~ r - i = ter:; 1- 23 EXHIBIT PAGE O N 012 4,009i K, I,- i i 2-1m NOR,, 0311 .0-MI'''Ron, ONE= MEMEM CITY OF TIGARD BUILDABLE LAND INVENTORY LAND USE: Residential Net Acreage No. of Units R-1 5.98 6 R-2 54.23 108 R-3 63.50 19, R-4.5 444.37 2,018 R-4.5 (PD) 105.93 477 R-7 79.09 554 R-7 (PD) 68.87 482 R-12 200.55 2,407 R-12 (PD) 35.88 431 R-25 222.17 5,554 R-25 (PD) 11.32 283 R-40 14.98 599 Subtotal 1,310.87 73% 13,110 Commercial Net Acreage C-N 4.00 C-G 76.38 C-G (PD) 63.67 CBD 5.44 CBD (PD) 11.84 C-P 108.68 Subtotal 270.01 15% Industrial Net Acreage I-H 2.14 I-L 95.57 I-P 126.81 Subtotal 224.52 12% TOTAL 1,801.10 UHIBI 1 293 PAGE Y 1 AREAS WITH REDEVELOPMENT POTENTIAL LAND USE CBD TRIANGLE AREA Commercial 5.91 3.58 Residential 9.56 19.22 Total Acreage 15.47 22.80 25% of total acreage for residential development 3.87 5.7 No. of housing units 155 228 Total No. of Units 383 units u., EXHIBIT I - 293-1 PAGE OF 1 NPO #1 . LAND USE: Residential Net Acres - R-3.5 .39 R-4.5 3.78 R-4.5 (PD) 6.76 Single Family 69% A-12 (PD) 4.82 Multi-Family 31% Commercial C-G 12.01 CBD 5.44 CBD (PD) 11.84 Subtotal: Residential 15.75 35% Commercial 29.29 65% TOTAL: 45.04 EXHIBIT T - 293-2 PACE OF NPO #2 LAND USE: Residential Net Acres R-4.5 16.05 R-12 17.57 Single Family 45% R-25 2.04 Multi-Family 55% Commercial C-G 6.31 C-P 4.46 Industrial I-P 28.85 Subtotal: Residential 35.66 48% Commercial 10.77 14% Industrial 28.85 38% TOTAL : 75.28 l I I EXHIBIT. I 293•-3 PAGE OF y L ; NPO #3 r- / LAND USE: Residential Net Acres R-1 5.98 R-2 54.23 R-3.5 5.98 R-4.5 108.75 R-4.5 (PD) 26.03 Single Family 98% R-40 4.3 Multi-Family 2% Commercial C-G 9.94 C-P 6.65 Subtotal: Residential 272.97 93% Commercial 20.89 7% TOTAL: 293.86 ,z - 293-4 PAEXHIBIT C : OF . gm! v: NPO #4 LAND USE: Residential Net Acres R-3.5 1.88 Single Family 100% Commercial C-G 40.52 C-G (PD) 49.42 C-P 62.33 Subtotal: Residential 1.88 1% Commercial 153.47 99% TOTAL: 154.15 EXHIBIT 1 - 293-5 PAGE OF ni lS, NPO d#5 LAND USE: Residential Net Acres R-3.5 2.69 R-4.5 34.57 R-4.5 (PD) 1.49 R-7 41.75 R-7 (PD) 8.15 Single Family 58% R-12 65.37 Multi-Family 42% 1 Commercial C-G 6.94 C-P 20.51 Industrial I-H 2.14 I-L 95.57 I-P 94.32 Subtotal: Residential 154.02 41% Commercial 27.45 8% Industrial 192.03 51% TOTAL: 373.50 t, EXHIBIT . % - 293-6 PAGE -7- OF z y NPO #6 LAND USE: Residential Net Acres R-3.5 51.56 - R-4.5 132.01 R-4.5 (PD) 30.49 R-7 15.60 R-7 (PD) 28.86 R-12 60.14 R-12 (PD) 22.82 R-25 52.61 R-25 (PD) 11.32 Single Family 62% R-40 10.68 Multi-Family 38% Commerical C-G (PD) 14.25 Subtotal: Residential 416.09 97% Commercial 14.25 3% TOTAL : 430.34 J i - IT I 293-7 H4 PAGE OF v~ L^ S~gy'~ffitRJrox%S}~Jb f NPO #7 / LAND USE: Residential Net Acres R-3.5 1.00 - R-4.5 81.21 R-4.5 (PD) 41.16 R-7 21.74 R-7 (PD) 31.86 R-12 57.47 R-12 (PD) 8.24 Single Family 43% R-25 167.52 Multi-Family 57% Commercial C-N 4.00 C-P 6.08 Industrial I-P 3.64 Subtotal: Residential 410.20 97% { Commercial 10.08 2% Industrial 3.64 1% TOTAL: 423.92 (Rev. Ord. 84-46) P r EXHIBIT I - 293-8 0 ~ OFD PAGE I !I (M) Participation sports and recreation: (i) Indoor l (ii) Outdoor ,f (N) Personal services: general (O) Professional and administrative services (P) Religious Assembly (Q) Repair services: consumer (R) Retail sales: general (S) Transient lodging (3) Residential Use Types (See R-40 and R-12 for development standards) (A) Single family attached residential units (8) Multiple family residential units The CBD zoning district allows for R-40 residential development except within the area south of Fanno Crook defined as follows: All lands bounded by Fanno Creek, Hall Blvd., Omara, Ash Ave. and Hill Street within the CBD shall be designated R-12 (PD) and shall be developed as planned developments in conformance with the R-12 district standards. (C) Home-Occupations subject to provisions of Chapter 18.142. a 18.6E.040 Conditional Use (Section 18.1301 Conditional Uses in the CBD district are as follows: I~ (1) Adult Entertainment 2 Automotive and Equipment Sales/Retail, Eight Equipment (3) Day Care Facilities I II (4) Utilities (5) Heliiports, in accordance with the Aeronautics Division (ODOT) and the FAA (6) Hospitals ~I (7) Spectator Sport and Entertainment Facilities (8) Group Care Residential (9) Vehicle Fuel Sales i; (10) Wholesale, Storage and Distribution, Eight 18.66 050 Dimensional Requirements - Non-Residential Uses Dimensional Requirements for Pion-Residential Uses in the CBD district are as follows: s• (1) There are no minimum lot area or- lot width requirements. i (2) There are no minimum lot width requirements. j (3) Except as otherwise provided in Chapter 18.96 and Section 18.100.130, there are no setback requirements. i III - 108 Rev. '6086 OXHIBIT FACE F OF. 4..- . Propoted Use 5-8a Q -A- K=U V-20 Q-40 ~ ~ ~ (Z ID 1A L 1-1 0' 01 0' 0° L° to, 10' 1S' 101(s) 10'(3) lolls) IS•(s) 201(5) 2111(3) 2S'(s) IY 10' 2-2 o• 01 0° 0•. 2' to, 10° 11' lolls) 10'(31 lolls) 151(8) 201(s) 2S•(s) 2S•tS) y 10• 1-3.5 0' 0' 01 0' Q, 20, 10' Is, 10•(S) lolls) tolls) 151(3) 20'(S) 2S•tS) 251(5) ' to, ~c t(-4.5 0• 0' 0° 0• 00 10' 10' 151 10'(S) 10'(S) 10'tS) 1S'(S1 20'(3) 21'(3) 21'(S) D 01 01 a• a1 Q: 3.41`. 10: 12= I.'_(s) 14= 1 14L o? :(s) 11=S1 25.:_132 01 A 10• 10• !01 10• 0' 0 S• S' S' 10';a) 10'(3) to'($) ISI(S) 20'(S) 25'(3) 25'(S) r y 2-12 10, 10' to' 10• 0' S. S. S lolls) 101(3) lolls) 151(;) 201(5) 251(s) 2S'(S) _ C -r 2-20 10' 10' 10' 10' S. S. S' lolls) 101(3) 10'23) 13'23) 20'(S) 25'(S) 25'(5) C S, x v 3-a0 15' 15' IS• 1S' ? S• S' 31 lolls) lolls) 101(3) 1S'(S) 20'(S) 25'(S) 2S•(s) p _ N 11 1 ~ w - X ^ [-N 101(3) 10'(31, lolls) lolls) lolls) lo'l3) lolls) lolls) 01 0' - 0' 0' 10' 10' 10' lolls) V -n C-C lolls) lolls) lolls) lolls) 01 S 101(5) lolls) lolls) 0^ 0' .0' 0• 10' 10• 10• l0'{5) C-P lolls) 101(3) lolls) lolls) 0• S 10'(s) tolls) 101M 0• 0' 0' 0• 101 it, to, 101(s) CeD 151(5) ISI(S) 151(S) 151(1) Mill 151(3) 10'(3) lolls) 0• 01 0' ~ 0' 101 10' 10• S1 1-? 201(2) 20'(S) 20'(S) 201(x) 9S.-aY.i 201(3) 20')21 20'(51 t0' 10' to, 10• 0' 0• 10• 20'(S) I-t. 2S'(2) 23'(S) 25'(S) 251(3) ;m 25'{3) 2$'(2) 25'(x) 10' t0' 10' lo' 0' G• 0• 25•(5) y I-M 251(5) 231(s) 231(3) 25'(S) 21°(S) 25°(a) 25'(S) 251M 10' 10' 10' 10' 1,01 0' 0• 2S'(S) k' (S) indicates screening required. S • t-) D a detached dwelling units.` A - attached dwelling units. T h yy - r r J d a~ M yL N R t w' n~•a --~l~~S~~d ° a....,,,,y../, ~ d C-ysyxa t u 14 r 411 k, 3 r~`. _ _ _ ' ~1.1~~1 1 .~-...1 '~k' . o,~ t , ~'~\/..4 f''; ',I / ~ ~ ~ ~Y'4+\, ~~<,f~ a Ccc W f,il~ Ilk ;r. 41 ECEIVED a BEFORE THE CITY COUNCIL OF THE CITY OF TIOARD 995 R :u;.i;.1J":7 [Y DEVELOPMENT IN THE MATTER OF THE APPLICATION OF ) AFFIDAVIT J99 C. DOLAN/A-BOY SITE DEVELOPMENT REVIEW } OF uuh2~l~e~. SDR 91-0005NAR 91-0010 ) DAN DOLAN U ' 1, DAN DOLAN, certify the following as accurate and truthful, and of my own personal knowledge: Products sold in the Tigard stare. The City staff included items in the record (Eyhibits 62 through 64) that assert that the proposed expanded A-Boy store in Tigard would or could sell paint, general hardware, yard and garden stock, etc. This is not truthful. The Tigard store, even. as expanded, %&rill include only electrical and plumbing, and their accessory products. The proposed 17, 600 square foot store would be too small to include any of those additional items (paint, general hardware, yard and garden stock, etc.) beyond the regular electrical and plumbing related products. The City's exhibit identifies advertisements over the years for A-Boy stores in the Portland metropolitan area. My company owns several different stores of varying sizes. All of the advertisements showing the various branches identified products that were only plumbing and electrical related. Specifically, items in the Tigard store include the primaiy products for plumbing and electrical, such as electrical wire, electrical switches, plumbing sinks, bath tubs, plumbing pipe and fittings, etc. The assessor plumbing and electrical products are also included, as is typical and necessary in the plumbing and electrical retail industry, such as bolts and screws for fastening electrical and plumbing parts, plumbing faucets, plumbing caulk, etc. The advertisements that show sales of other products such as paint, general hardware, and yard and garden stock are only associated with the Barbur Avenue store and the main warehouse in Portland. The Barbur Avenue store is a significant exception to the A-boy Company business. The Barbur Avenue store was acquired from Pay N Pak while they were in bankruptcy and the existing store stock and most of the employees were continued. This store is also significantly different from all the other A-Boy stores in that it is approximately 30, 000 square feet in size. This is approximately a third larger than the largest of the other A-Boy stores. The advertisement pertaining to a warehouse sale involved only the main warehouse of the company in downtovm Portland. That is unrelated to the type of merchandise that is and would be sold at the expanded Tigard store. t= WRI 2 2. Property Values. I am one of the owners of the Tigard store and property. I have had full knowledge of the fair market value of this property for at least the last ten years. I am also experienced at owning, leasing, buying and selling commercial property similar to the property in Tigard. It is my informed opinion that the fair market value for the land required to be dedicated to the City for a greenway easement and pedestrian/bicycle pathway is $84,000. it is also my informed opinion that requiring the building to be relocated and diminished in size due to the placement of the pathway as proposed by the City Attorney, will force an. irregular shape of the building and a reduction in usability of the remaining property. This in turn will cause a substantial diminution in the fair market value of this remaining property in the amount of $115, 000. This issue of fair market value and severance damages has previously been raised and is already part of the review being conducted by the Washington County Circuit Court in case No. C 94-1259 C V. This Circuit Court case was originally filed on December 29, 1994. A copy of the Amended Complaint is attached hereto.Thus, the fair market value for the pathway is $42,000. There is no "rough" propo.tionately between this cost to the landowner and the comparatively minor cost associated with the traffic impact of our proposed project. 3. Impact of pathway on property value. The assertion in exhibit 66 that since the future building will have the pathway behind it (thus out of sight from the front) and without any doors or windows in the back, there is no security risk that is recognized in the marketplace. Mr. Walker and Mr. Pietka fail to cite any examples or authority for this position other than their own advocacy for their client-the City. It is well recognized in the commercial marketplace that security risk is a major business cost that must be considered in purchasing any commercial property. It is also completely unrealistic, if not naive, to assume that a commercial property purchaser will not walk around the back of the property and notice the public access pathway next to this building. A potential purchaser will also notice that the pathway cannot be controlled because it is public and no fences can be physically placed to prevent tresspass due to the City's required pathway location. The absence of doors and windows on the back of the building will not prevent graffiti and vandalism. Their absence will not prevent access by thieves and vandals to the roof, one of the primary illegal entry points typically used in burglarizing commercial buildings. It has been my experience that this security risk situation will have a significant adverse affect on the fair market value of the property. This is somewhat analogous to commercial properties in high crime areas such as southeast Portland where commercial properties are substantially less in value as compared to identical properties in northwest Portland. The security risk or crime rate is one of the significant factors affecting fair market value in both of these areas. Indeed, it is generally recognized by the public (the purchasing and selling public) that one of the primary attractions of suburban residential property is that it is perceived as having safer living conditions than inner-city residential properties. This perceived absence of a security risk directly and r 4 A I 3 positively affects the suburban property values. Therefore, the impact of this unrestricted pathway through my property will adversely effect the property value of the remaining G developable property. That is part of the existing Circuit Court severance damage claim. 4. Pathway location. The pathway, in accordance with the Code and comprehensive plan provisions, should be located within the greenway, and not upon developable land outside the floodplain. The pathway could also be located in other places that would not interfere with the proposed building location and size. For example, the pathway could run inbetween the two proposed buildings or on the north side of the second phase building. There is ample room for both locations. Both alternative locations would also satisfy all the City's code and comprehensive plan requirements. Also, there is no public pathway on the west side of Main Street that runs along the north side of Fanno Creek. The existing public pathway on the west side of Main Street is located south of the Main Street bridge. Thus, a pedestrian or bicyclist would have to cross Main Street and then also cross back over the Main Street bridge to continue westward on the existing pathway. Obviously, the proposed pedestrian pathway should be located on the properties south of Famio Creek, and not on the A-Boy property. Indeed, the existing pedestrian/bicycle bridge just east of the A-Boy property would provide an access to locating this pathway on the south side of Fanno Creek (providing a link to the pathway from Hall Boulevard to Main Street, and then to the existing pathway West of Main Street). In any event, there has been no evaluation by the City for defining pedestrian traffic separately from bicycle traffic, nor recreational traffic on the Fanno Creek pathway system. Our studies show that there is no pedestrian/bicycle traffic that comes to or from our store by the Fanno Creek pathway system. Indeed, all pedestrian traffic to our store is along the Main Street sidewalk, rather than any pedestrian/bicycle pathway. Along with the traffic studies done by ATEP which show, at best, only 5% pedestrian traffic (as opposed to the City's assumed 15%), attached is a survey of all our customers at the Tigard store during April of this year. The survey showed that only 2% were pedestrians and 0% were bicyclists. Our survey also points out another problem or deficiency with the City's study. Pedestrian and bicycle traffic is directly and profoundly affected by seasonal weather conditions. During good weather-summer conditions, my store may receive up to 5% pedestrian traffic. During bad whether-winter conditions, the pedestrian traffic drops to less than 2%. This conforms to my personal observations over the last five or six years.There is no analysis by the City on this obvious traffc pattern in pedestrian/bicycle activity. In other words, the City cannot rely upon a peak usage calculation to claim a percentage usage averaged throughout the year. 5. Fairness and Due Process. It appears to me that the City is not able to fairly evaluate and decide these exactions or I IR 1111 1111 mmat AS :tr Ims, 0- 4 conditions of approval. Here, the City is not an independent and unbiased trier of fact. The City will be liable for damages to my property interests if the exactions go too far. The City Council is motivated to determine facts in this remand hearing in such a way as to support the City not being liable for damages. Nevertheless, the City is conducting this hearing as both the judge, prosecutor and jury. I do not believe this allows me to have a fair hearing. Recently, City Council members have openly stated that they had a difficult, if not impossible, problem in deciding these exactions while the Circuit Court case is still active. A fair trial or hearing is a fundamental right under both the Oregon and United States Constitutions. If the City Council determines that there is "rough proportionately" for the greenway exaction and the proposed pathway exaction (requiring relocation of my proposed building), I believe I will have been deprived of a fair hearing , due course of law and due process. 6. George Morlan Plumbing Co. The City staff introduced into the record the commercial development approval for George Morlan Plumbing Co. store along Highway 99 W. It is true that the City required that they dedicate land for greenway and a pathway in that approval. However, I believe that approval would not comply with constitutional requirements. Indeed, Ehe approval findings were just as inadequate as those found unconstitutional by the U.S. Supreme Court in my case. Therefore, the George Morlan application-approval is not substantial evidence that can support the City's decision in my case. Further, I have attached to this affidavit the Oregonian article published earlier this year discussing the George Morlan approval. The president of George Morlan Plumbing Co. identified that he felt he was not treated fairly by the City and characterized the land use hearing process as a "nightmare". He also characterized the City's conduct and exactions as "similegal extortion" and costing the company over $100, 000. That is comparable to the $84, 000 fair market value loss to my family for these two exactions. 1 Mmsffl; 1: 2: I'Vi 1:10 _CowTp`~Nr ~ ~ 12 C1 41 °i 2 3 5 6 7 8 IN THE CIRCUIT COURT OF THE STATE OF OREGON 9 FOR THE COUNTY OF WASHINGTON 10 FLORENCE DOLAN; DAN DOLAN; JOHN 11 T. DOL AN AND FLORENCE T. DOLAN No. C ~4-1259 CV r ~ j R PVOCABLE LIVING TRUST; A-BOY i2 SUPPLY CO., INC., an Oregon Corporation; 3 AMENDED COMPLAINT FOR IrvvVERSE is and OI~G~ON7AIVS IN ACTION LEGAL ~ CONDEMNATION, DUE PROCESS, CIVIL CENTER, an Oregon non-profit corporation, ) RIGHTS AND TORT DAMAGES 19 Plaiitiffs, 15 DEMAND FOR JUR'Y' TRIAL VS. 16 CITY OF TIGARD, an Oregon municipal corporation, 17 Defendant 18 19 Plaintiffs allege: 20 GENERAL AT,i E1-_ A -r^lfn?,Tc X, 1_J 11 1 1 V I V 21 22 I. 23 A. Plaintiff Florence Dolan is a resident of Oregon and possesses an ownership interest in 24 A-Hoy Supply Co., Inc., and a certain parcel of real property consisting of approximately 1.67 zs acres located at 12520 SW Main Street, Tigard, Oregon, described as Tax Lot 700 (Map No. } 26 Page 1 -COMPLAINT JOHN W. SHONKWIL£P, F.C. ATTORNEY AT LAW 13425 SW 72nd fvenve ri$ard, Oregon 97223 Telcphone; (SQ3) 624-09 f 7 11121- A. F~. 1 251-2 AC), as more fully described in Exhibit "A" incorporated herein by reference (hereinafter 2 the "Property"). ' 3 E. Plaintiff Dan Dolan is a resident of Oregon and possesses an ownership interest in the - 4 Property and A-Boy Supply Co., Inc. 5 C. Plaintiff John T. Dolan acid Florence T. Dolan Revocable Living Trust is a duly formed 6 Dolan family trust and possesses an ownership interest in the Property. 7 D. Plaintiff A-Boy Supply Co., Inc., is an Oregon corporation doing business as a s plumbing, electrical and related building retail supply business, and possesses a leaschold 9 ownership interest in the Property. to F. Plaintiff Oregonians In Action Legal Center ( OIA) is an Oregon non-profit corporation 11 duly registered with the State of Oregon seeking the protection of all other Plaintiffs' 12 constitutionally protected rights under the Fifth and Fourteenth Amendments of the United States 13 Constitution and Article I, Section 18 of the Oregon Constitution, and possessing assignment 014 rights to recoverable attorney foes in -the legal proceedings. IS 2. 16 At all times mentioned, Defendant City was and is an existing, duly incorporated 17 and organized municipal corporation under the laws of the State of Oregon. Defendant City was 18 and is vested with the statutory authority to condemn real property or any part thereof and to 19 regulate land uses in order to carry out a public purpose otherwise authorized by statute. 20 3. 21 At all times mentioned, the Property was and is improved with a commercial 22 building approximately 0.7/00 square feet in size and a paved parking lot. A large portion of the 23 remainder of the Property is surfaced with asphalt and gravel. Fanno Creek is a small streem that 24 runs adjacent to the west side of the Property. Part of the land is within the creek's 100 year 25 floodplain. The commercial building has been and is used as a retail plumbing, electrical and 026 Page 2 - COMPLAINT JOHN W. SHONKNVILER. P.C. ATTORNEY AT LAW • 13425 SW 72nd Avenue Tigard. Oregon 97223 Te1ephone:(503)624-0917 lap 1:1111g; 1;111;1p~ M. e P . 7 i3: _ wk T a z t related building supply store. The Property is zoned by Defendant as "Commercial Business 2 District (CBD)." 3 4. 4 A.' Plaintiffs (excepting 01A), desiring to expand and modernize their business investments 5 to meet commercial competition, applied to Defendant for a land use development to raze the 6 existing 9700 square foot building and replace it with a 17, 600 square foot building. In the 7 secoiid phase of the project, Plaintiffs proposed to build an additional structure on the northeast s side of the site for complimentary businesses, and to provide more parking. In approving the 9 Plaintiffs' land use development application, the proposed expansions and intensified uses were 1o determined by Defendant to be consistent with the City's zoning and comprehensive plan 11 requirements for the Central Business District. 12 B. In approving the Plaintiffs' lend use development permit, the Defendant imposed 13 conditions of approval (exactions) for dedication of floodplain lands and an additional 15 foot 19t4 wide strip for storm water drainage and a public pedestrian and bicycle pathway, constituting 1 s approximately 7000 square feet or 10% of the Property as follows: "Where landfill and/or development is allowed within and 16 adjacent to the 100-year floodplain, the City shall require the 17 dedication of sufficient open land area for greenway adjoining and within the floodplain. This area shall include portions at a suitable 18 elevation for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted 19 pedestrian/bicycle plan." 20 "1. The applicant shall dedicate to the City as Greenway all 21 portions of the site that fall within the existing 100-year floodplain [of Fanno Creek] [ie., all portions of the property below elevation a 22 150.0] 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 23 intrude into the greenway area." 24 25 In addition to these exactions, the Defendant also required for approval the 26 payment of $14, 256.02 in traffic impact fees and other fees in lieu of water quality. Defendant Page 3 - COMPLAINT JOHN W. SHONK:4'ILER. P.C. ATTORNEY AT LAW 13425 S%%' 72nd Avenue Tigard. Oregon 47223 Telephone: (503) 624.0917 r Oil ill, J, Ili ~l~ .sE T'.', c e v,. s also approved a reduction in the minimum required automobile parking spaces to 39 spaces for 2 the first phase of development because the Plaintiffs' use was equivalent to general retail sales of 3 "bulky merchandise use" for customers who decide in advance of travel that a product is needed 4 and ulio travel to a specific designation to obtain that product. 5 Plaintiffs appealed this decision to the Oregon Land Use of Appeals (LUBA) 6 upon constitutional grounds that the exactions constituted a taking of their property without just 7 compensation. LUBA denied the appeal, holding the constitutional claim was not ripe for review s 9 because of Plaintiffs' failure to pursue an available variance procedure [20 Or LUBA 411 10 (1991)]. 1 t C. Plaintiffs thereafter reapplied to Defendant for a variance. After appealing the Defendant 12 City Director's denial of the variance, Defendant's planning commission affirmed both the 13. variance denial and the imposition of the previously challenged exactions. Plaintiffs appealed 14 the Planning Commission decision to the Defendant's City Council. The City Council upheld 15 the Planning Commission Final Order on September 17, 1991. 16 D. Plaintiffs thereafter appealed the Defendant's final decision to LUBA raising 17 18 constitutional violations of tak-irg Plaintiffs' property without just compensation. LUBA 19 affirmed Defendant's decision [22 Or LUBA 617 (1992)]. On May 20, 1992, the Oregon Court 20 of Appeals affirmed LUBA's decision [Dolan v. City of Tigard, 113 Or.App. 162, 832 P.2d 853 21 (1992)]. Thereafter. the Oregon Supreme Court accepted review and ultimately affinned 22 LUBA's and Defendant's decision determining that the exactions imposed by the Defendant on 23 24 Plaintiffs did not constitute an "impermissible taking of. Plaintiffs' property without just 25 compensation" [317 Or. 110.854 P.2d 437 (1993)]. ~6 Pace 4 - COMPLAIM JOHN W. SHONKM ILER. P.C. ATTORNEY AT LAN' 13424 SW 72nd Avenue 9 Tigard. Oregon 97223 Telephone: (503)624-0917 MOM" - _ - - 'fi • r ~ r l .E. Prior to receiving appellate review by the U.S. Supreme Court, the principal owner of 2 the property, John T. Dolan, died of natural causes. John T. Dolan took an active participation in 3 the defense and stress of seeking appellate protection for Plaintiffs' constitutionally protected a rights; and all ownership rights to the Property possessed by John T. Dolan passed to Plaintiffs - - 5 Florence Dolan (his widow) and Plaintiff John T. Dolan and Florence T. Dolan Revocable Living Trust. 7 F. Plaintiffs thereafter appealed the Defendant's decision to the U.S, Supreme Court. On 8 9 June 24, 1994, the U.S. Supreme Court decided that the Defendant's decision imposing the 10 exactions, requiring dedications to the Defendant of floodplain lands and the additional 15 foot 11 wide strip, violated Plaintiffs' constitutionally protected rights against the taking of their property 12 without just compensation under the Fifth Amendment, as applied through the Fourteenth 13 Amerldnlent, of the U.S. Constitution; and reversed the prior decision of the Oregon Supreme 014 Court [512 U5____,129 L. Ed.2d 304 (1994)]. 1s 5. 16 17 A. Defendant's decision and specifically the challenged exactions included therein, caused 18 Plaintiffs (excepting 01A) alone to bear the public burdens which, in constitutionally required 19 fairness and justice, must be borne by the public as a whole; and thereby unlawfully deprived 20 Plaintiffs of the right to exclude others from their property. 21 B. Defendant's decision on September 17, 1991 required Plaintiffs (excepting ®IA) to give 22 up their constitutional right to receive just compensation when property is taken for a public use 23 in exchange for the land use development permit conferred by Defendant where the property to 24 25 be dedicated has little or no quantifiable relationship to the benefit. In order to preserve their 26 constitutionally protected rights, Plaintiffs were and still are thereby deprived by Defendant from Pace 5 - COMPLAINT JOHN W. SHONKA ILER, P.C. ATTORNEYAT LAN' - 13425 SCI' 72nd Avenue Tigard. Oregon 97223 Teiephone:(503)624.0917 developing and malting economic use of the approved land use development until the l 02 unconstitutional exactions were invalidated by final order of the U.S. Supreme Court. 3 6. 1lSt~Ga.escuat ci ujLir 2xnJ.rtaryccS, vsaaCi~aiS w'Eu agents g.n~5 atadG CCUTA U Gui is p--cm ui~u practice of having acted in bad faith, vexatiously, wantonly, for oppressive reasons or with 6 reckless disregard, and all in violation of societal norms, in injuring and interfering with the f 7 Plaintiffs' rights to due process and their other constitutionally protected rights. 7. 9 10 A. Defendant's actions have irreversibly and directly or proximately caused damage or loss 11 to Plaintiffs (excepting OIA) from September 17, 1991 until the date of this Complaint as 12 follows: 13 1. General damages in the approximate sum of $1, 277, 150; 4914 2. Loss of rental value to Plaintiff Florence Dolan in the approximate sum of 15 $481, 676; 16 17 3. Increased costs of construction in the approximate sum of $66, 102; 18 4. Maintenance costs to existing building, that would not have been required 19 had the land use development permit been granted without unconstitutional exactions, in the 20 approximate sum of $50, 000; zl 5. Loss of market share in the approximate sum of $130, 000; 22 6. Loss of property taxes paid on approximately 7000 square feet of land 23 allocated to public dedication and precluding development or any economic uses in the 24 25 approximate sum of $9, 500. r 26 Page 6 - COMPLAINT JOHN W. SHONKWILER. P.C. ATTORNEY AT LAW 13424 SW72nd Avenue Tigard. Oregon 97223 Teiephone: (503) 624-0917 B. Defendant has not initiated nor carried out proceedings after the U.S. Supreme Court 1 2 reversed their land use decision, to either grant Plaintiffs' land use permit without said 3 unconstitutional exactions or grant the land use permit with payment of just compensation for the v unconsti-twilonal CxaCiions. Defendant's actions have precluded all economic use of the exaction 5 property and all economic use pertaining to the approved expansion use of the property, and 6 Plaintiffs have no economically viable mitigation alternative available; and Defendant`s actions 7 have thereby directly or proximately caused the damages identified heretofore to continue and s increase until such time as the unconstitutional exactions are terminated or permanently imposed. 10 Upon permanent deprivation of said property, Plaintiffs (excepting OIA) shall irreversibly incur , 11 loss of fair market value for the land required to be dedicated to Defendant in the sum of 12 $84,000; incur irreversible depressed or diminution in fair market value for the remaining portion 13 of the Property along with loss of ability to locate buildings and related improvements on site for 014 additional severance damages in the sum of $115, 000. 15 C. After filing this complaint and requesting that the Defendant initiate a remand 16 17 proceeding pursuant to the order of the U.S. Supreme Court, Plaintiffs applied to the Defendant 18 for building permits to implement their development plans described in Paragraph 4 herein. On 19 or about April 25 and May 2, 1995, Defendant completed its building plans review and site 20 development application review and issued statements that the building and site development 21 ` application permits could be issued by Defendant upon completion of specified conditions, 22 t including a requirement that issuance of both the building permits and site development 23 9 r 24 application permit be subject to Plaintiffs agreeing to abide by the final result of a future remand 25 heating and any appeals thereof; and that Plaintiffs must relocate the phase one building outside V 026 Pace 7 - COMPLAINT JOHN W. SHONI:W'ILER. P.C. ATTORNEY AT LAW 13425 SW' 72nd Avenue Tigard. Oregon 97223 Telephone (503) 624-0917 I s the greenway and pedestrian pathway areas as originally required by the Defendant as exactions .t 2 in their September 17, 1991 decision identified in Paragraph 4 (C) herein. 3 Defendant is now requiring additional improvements as conditions of approval for 4 the building permits and site development application permit (as well as in the related future 5 remand hearing decision) that were not required, or would not have been required, by Defendant 6 or any other pertinent land use regulatory authority as of or about September 17, 1991; thereby 7 increasing the Plaintiffs' costs of construction (damages) in an additional amount to be S 0 determined at trial. Defendant's above described conditions of approval preclude all economic 10 development of Plaintiffs' property; deprive Plaintiffs of their reasonable investment-backed 11 expectations; are arbitrary, capricious and unreasonable; and further constitute a taking 'of 12 Plaintiffs' property without due process or just compensation in violation of the Fir''cta and ' A 13 Fourteenth amendments to the U.S. Constitution and Article I, Section 18 of the Oregon 14 Constitution as follows: 15 I.Plaintiffs' proposed development will not generate any significant storm water 16 17 drainage offsite or pedestrian/bicycle traffic, nor is Plaintiffs' proposed 18 development capable of producing any significant pedestrian/bicycle traffic to 19 offset motorized vehicle traffic generation of the development. 20 2. Defendant's recreational usage of the required greenway and additional 15 foot 21 wide strip of land bears no rough proportionately in nature and extent to the 22 impacts of the proposed development. 23 3. Defendant's required dedication of ownership of the greenway and additional 24 n 25 15 foot wide strip of land bears no rough proportionately in nature and extent to 026 the impacts of the proposed developed. Pace 8 - COMPLAINT JOHN w. SHONawILER. P.C. ATTORNEY AT LAW 13425 SA. 72nd Avenue Tigard. Oregon 97223 Telephone: (503) 624-0917 1:1111111 11111R, 15 1:1151111 111C I. ~WE h" 4r: 7 5 is aw 4. Defendant's requirement of a pedestriantbicycle pathway dedication and 2 construction bears no rough proportionately in nature and extent to the impacts of 3 the proposed development. 4 5., Defendant's legitimate public interest are fully compensated and addressed for 5 any offsite adverse impacts related to Plaintiffs' proposed development traffic 6 generation, storm water generation and water quality control by the traffic impact 7 frees and other fees in lieu of water quality that are separately required of s Plaintiffs. 9 to D. As a direct and proximate result of Defendant's conduct, Plaintiffs Florence Dolan and it Dan Dolan have incurred physical and mental anguish, dress, paint and suffering in an amount of 12 $250,000. 13 E. Plaintiffs are entitled to recover their reason attorney's fees and costs incurred as a result 14 of said injuries. 15 FIRST CLAIM FOR RELIEF 16 17 (Inverse Condemnation) is 8• 19 Paragraphs l through 7 (D) and 7 (D) of the Complaint are incorporated by 20 reference herein as if fully set forth. 21 COUNT ONE - 22 9. 23 Defendant has substantially interfered with Plaintiffs' use and enjoyment of their 24 25 property and further frustrated Plaintiffs' attempts to develop their property for commercial use 26 in accordance with their.relsopable. investment-backed expectations, and deprived them of their Page 9 - COMPLAINT 1014N W. SHONKW'ILER. P.C. ATTORNEY AT LAW 13425 SW 72nd Avenue Tigard. Oregon 97223 Telephone: (503) 624-0917 property since September 17, 1991 without due process and just compensation in violation of the t 2 Fifth and Fourteenth amendments of the U.S. Constitution and Article I, Section 18 of the 3 Oregon Constitution; and such violations and resulting damages are continuing until the 4 ('unconstitutional exactions are terminated. 5 COUNT TWO 1 b 10. 7 Defendant has substantially interfered with Plaintiffs' use and enjoyment of their s 9 property, and further frustrated Plaintiffs' attempts to develop their property for commercial use 10 in accordance with their reasonable, investment-hacked expectations, and deprived them of such 11 use by a permanent taking of their property without due process and just compensation in 12 violation of the Fifth and Fourteenth amendments of the U.S. Constitution and Article 1, Section 13 18 of the Oregon Constitution upon determination or election by Defendant to continuously 14 require or impose the challenged exactions to the Property. 15 COUNT THREE 16 17 18 A. Defendant's variance code provisions require on their face and Defendant has so 19 interpreted their meaning that, as applied to the Property, no variance alternative is available to 20 Plaintiffs to avoid or mitigate the Defendant's exaction requirements. 21 B. Plaintiffs were induced by Defendant to believe and reasonably did believe that 22 Defendant did and would continue to require the imposition of the exactions upon the Property as 23 part of any land use permit sought by Plaintiffs; and that no variance modification or mitigation y. 24 25 for the exactions would ever be approved by Defendant for the Property. 26 Pap 10 - COMPLAINT JOHN W. SHONKWILER. P.C. ATTORNEY AT•LAW 13425 M%'72nd Avenue Tigard. Oregon, 57223 Telephonc: (503) 624-6917 IrAp I C. Defendant's variance code provisions, on its face and as applied to Plaintiffs' application 2 for a land use permit and the Property, interfere with Plaintiffs' use and enjoyment of their 3 property for commercial use in accordarice ienua their re-aava>isble inv=ti i°en.: tbacked v'.,`pect-----tin-Ti-C r---• - 4 and deprived them of property without due process and just compensation in violation of the 5 Fifth and Fourteenth amendments of the U.S. Constitution and Article 1, Sections 111 and 20 of the Oregon Constitution. 7 SECOND CLAIM FOR RELIEF 8 9 (Equal Protection) 10 12. 11 Paragraphs 1 through 1 I of the Complaint are incorporated by reference herein as 12 if fully set forth. r 13 13. 014 A. Defendant's required dedication of all property in the greenway and all property 15 feet 15 above and east of the Fanno Creek 100-year €loodplain boundary as a permanent public 16 17 recreational access and City greenway provides unrestricted use of the recreational access and 18 greenway to all pedestrians and bicycle patrons throughout the City; and thereby does not restrict 19 all pedestrian and bicycle patron use to only those patrons originating from or needing access to 20 properties that are required to make such dedications, as is required of Plaintiffs and their 21 property. 22 B. Defendant's Comprehensive Plan and Code provisions, on their face and as applied to 23 the Property, unreasonably create a class of property owTiers that are adjacent to the Fanno Creek 24 25 floodplain and are required to bear the cost burdens of constructing the pathway and dedicate the 026 land for the pathway and greenway, but allowing another class of all other landovkmers in the City Pace 11 - COMPLAINT JOHN W. SHONWAILER. P.C. ATTORNEY AT LAN' 13425 SW 72nd Avenue Tigard. Oregon 97223 'telephone- (503) 624-0917 Z - e".eti^ to receive the benefit of use of such public recreational access and greenway without any cost 1 2 burden or dedication. 3 C. Defendant's required dedication of all lands witllirl be finnrl4,la;*+ frr ~rrPen.xra`- - - 4 additional 15 feet above the floodplain and required construction of the public recreational access 5 imposed upon Plaintiffs and other similar properties adjacent to the Fanno Creek floodplain b unreasonably creates a class of property owners that are required to bear the cost burdens of the 7 construction and dedication that is not required as a policy or practice of other landowners within s 9 or adjacent to the same floodplair; but are zoned other than "Central Business District" and 10 landowners having land within or adjacent to other floodplain designated areas in Defendant's i i Comprehensive Plan and Code. 12 14. 13 Defendant's actions have abridged the privileges and immunities of the Plaintiffs (914 allowed other citizens under the laws of the State of Oregon and the United States, and denied 15 Plaintiffs the equal protection of the laws, in violation of the Fourteenth Amendment of the U.S. 16 17 Constitution and Article 1, Section 20, of the Oregon Constitution. 1E Tl-IIRD CLAIM FOR RELIEF 19 (Due Process) 20 15. 21 Paragraphs l through 14 of the Complaint are incorporated by reference herein as 22 if fully set forth. 23 16. 24 25 A. Prior to Plaintiffs applying for a land use permit to expand their property uses as 63 26 identified in Paragraph 4 herein, John T. Dolan and Florence Dolan opposed a Defendant Page 12 - CO'APLAINT JOHN %V..SHONKW ILER. P.C. ATTORNEY AT LAS' 13425 SW 72nd Avenue Tigard. Orcgon 97223 Telephonc: (503) 624-1917 11 N ON i V. sponsored urban renewal and tax increment financial plan, provided the principal remonstration 1 2 in opposition; financial backing and activator of an assembly of opposition to the amendment; 3 and :irac thereby viewed by DeLendant officials, and in particular the land use planning r 4 department, as the principal cause for the failure of the urban renewal and tax increment financial - a plan in a City-wide election for its adoption. 6 B. Defendant thereafter retaliated against Plaintiffs' above described opposition by 7 imposing the exactions upon. Plaintiffs' subsequent land use permit without any justifiable 8 9 demonstration that Plaintiffs' proposed use created adverse impacts that the exactions might t0 alleviate or the need for a dedication to the public of ownership interests in the portions of the t t Property. 12 C. Defendant's actions have caused, and were intended to cause and were done with such 13 ree'kless disregard as to cause, a chilling effect upon Plaintiffs' First Amendment rights and in to particular to abridge their freedom of speech, their right to peaceably assemble, and their right to 15 petition the government for a redress of grievances; as all applied through the Fourteenth 16 17 Amendment of the U.S. Constitution; and thereby deprived Plaintiffs of due process in violation 18 of the Fifth and Fourteenth Amendments of the U.S. Constitution and Article I, Sections S, 20 19 and 26 of the Oregon Constitution. 20 FOURTH CLAIM FOR RELIEF 21 (Civil Rights) 22 17. 23 24 Paragraphs I through 16 of the Complaint are incorporated by reference as if fully 25 set forth. 026 Pace 13 - COMPLAINT JOHN W. SHONKW'ILER. P.C. ATTORNEY AT LAW 13325 SW' 72nd Avenue Tigard. Orcgon 97223 Telephonc.(503)624-0917 c, PIS 7, 40, aF 18. 1 2 Defendant acted under color of state law, statute, ordinance, regulation, custom 3 and usage of the State of Oregon and its political subdivisions and thereby subjected and - 4 abridged Plaintiffs' rights and privileges to use and enjoyment of their Property, caused Plaintiffs s to be deprived of property without just compensation and without due process of law; and denied 6 Plaintiffs the equal protection of the laws, in violation, of 42 USC Section 1983. Plaintiffs are 7 entitled to their reasonable attorney's these under 421_TSC Section 1988. s FIFTH CLAIM FOR RELIEF 9 to (Tort Claims) 11 COUNT ONE 12 (Intentional Interference with Contractual Relations and 13 Business Prospective Advantages) 014 19. is Paragraphs I through 16 of the Complaint are incorporated by reference as if fully 16 17 set forth. 18 20- 19 Defendant intentionally interfered with the existing contractual relations of the 2e individual Plaintiffs, with each other and between Plaintiffs, and their customers and contractors; zI and the prospective advantage that Plaintiffs would bane in the retail plumbing. electrical and 22 related building supply business by precluding immediate construction and operation of an 23 expanded business facility, and thereby allowing subsequent expansion of competitors's facilities 24 25 to serve and absorb the same market. 26 Pacc 14 - COMPLAINT JOHN W. SHONKwILER. P.C. ATTORNEY AT LAW 13425 SWUM Avenue Tigard. Oregon 97223 Telephone. (503) 624-CP917 21. 2 Defendant's interference with Plaintiffs's contractual relations and business 3 prospective advantage occurred with an improper motive of retaliation to Plaintiffs and by using 4 unla%vful or otherwise improper means, and thereby directly or proximately caused the heretofore 5 described damages to Plaintiffs. 6 COUNT TWO 7 (Negligence) s 22. 9 10 A. Paragraphs l through 7 (B), 7 (D) and 8 through 16 of the Complaint are incorporated 1 I by reference as if fully set forth. 12 B. Defendant's actions resulting in the imposition of the challenged exactions arose dining 13 quasi-judicial proceedings in which Defendant carried out the functions of trier of fact and issues 14 of law, and had a duty to limit its decision making to the restrictions mandated in the Oregon and 15 U.S. Constitutions. 16 17 VvrHEREFORE, Plaintiffs pray for a judgment against Defendant as follows: Is 1. For First Claim for Relief (Counts One and Three): economic damages in 19 the sum of $2, 014,428; 4 ' t 20 2. For First Claim for Relief (Counts Two and Three): economic damages in 21 the sum of $2, 014, 428; plus $199, 000 for permanent severance and devaluation damages to 22 ' Plaintiffs's Property; 23 - 3. For Second through Fourth and Count One of Fifth Claims for Relief: 24 25 economic damages in the sum of $2, 014.428: plus mental anguish damages in the sum of 026 $250,000; Page 15 - COMPLAINT JOHN W. SHONKW'ILER. P.C. ATTORNEY AT LAW 13425 SW 72nd A%cnuc Tigard. Orcgon 97223 Telephone 0011624-0917 i PIZ 4. For Count Two of the Fifth Claim for Relief: general damages in the sum 1 2 of $2, 014, 428; 3 5. For all claims for relief, Plaintiffs' additional increased costs of 4 cons nt action since September 1 7, 1991 in an amount to the deten pined at trial. - - 5 6. For all claims for relief: reasonable attorney's fees, costs and 6 disbursements incurred herein; and for such ocher relief as the Court may deem just and proper. 7 JOHN W. SHOP3KWILER, P. C. 9 e; 10 John W. Shonkwiler, OSB 75337 I 1 bead Counsel for Plaintiffs DOROTHY S. COFIELD, OSB 92261 12 (Oregonians In Action Legal Center) 13 DAVID B. SMITH, OSB 88315 Of Attorneys for Plaintiffs 0 14 15 16 17 18 19 20 )Y 21 r' 22 23 24 25 yy_, 26 Pagc 16 - COMPLAINT JOHN N'. SH6NKWILER, P.C. AT"i ORNEY AT LAN' 13425 SN' 72nd Avenue Tigard. Oregon 97223 Telephone: (503)624.0917 i 1 CERTIFICATE OF SERVICE 0z 1, John W. Eyhonkwiler, hereby certified that I served a true and correct copy of AMENDED COMPLAINT of Plaintiffs on: 3 Robert E. Franz 4 Attorney at Law F. O. Box 62 5 Springfield, OR 97477 6 Attorney for Defendant City of Tigard 7 8 by placing a copy thereof in a sealed, first-class, postage prepa} envelope, addressed to each 9 attorney's last-known address and depositing it in the U.S. mail at Tigard, Oregon on the date set 1o forth below. 7% 11 DATED this the of June, 1995. 12 JOHN] W. SHONKWILER, P. C. 13 0 14 4 15 John W. Shonkwiler, OSB No. 75337 i 15 V Of Attorney for Plaintiffs M 17 18 19 20 21 22 23 F~ 24 25 26 fate 1 C'L111111CA11 OY SCRVIC E JOI IN SI IONKWILER. P. C. Aunrne\ ai Lai. 13425 S\\ 72nd A%e 1 ic.ud. (heron 9-223 I CIr 150311,24-091? r' TE AUTO 'BICYCLE BUS WALK 'OTHER TOTAL 4-12-95 _ 83 0 0 2 0 85 -4-13--85 75 ______a - a 2 a 77 4-14-95 85 0 0 10 86 4--15-95 101 0 0 2 0 103 -4-17-95 _______0 4 0 1063 p^ 4-18-95 0 0 74 4-°19-95 53 0 0 1 0 54 TOTALu r~ 567 -0 0 12 0 573 98% Drove 2% Walked 0% Rode Pius 0% Eiked 0% used "Other_" Transportation L r 1. Oftmbing company executive ' I Cdescribes, permit R~LHARRY BODINE: ~ Among the hurdles the city im of Me Oregonian staff posed was building a half street im' provement on ;southwest Johnsor TIGARD - irk Kran-,ie cling Street and a X25,000 sidewalk that !I _~~~restd~~en__t of otgear7an Plum - dead ends at a property line. It alsc Jng-Co;;-has watched e clan vs. required the dedication of a 10•fool ` Ug-a-Fir saga tenfold from a unique wide piece of land across the back of vantage point. the property and the installation of His company is located across improvements along Fanno Creek. Southwest Main Street from A Boy Kramien doesn't know exactly and competes directly with the Do- how much -Morlan spent to comply bike the Dolans, he has had first- w7th Tigard's development require hand a erience with figar'd s-i meets, but the costs for improve veto ment rocess. U. f1tAE-Ypfa- merits and attorne s o loo 000 o ans• he coma to d wit t e ct v s emote . ,re,_.uir_eements and the new Morlan Kr aam en believes the process Dlum n store was 'it. needs to change. Communication To ay, Kramien, a Tigard resi• with the city was ncnexiste, well dent, keeps a framed and laminated meamngla l workers were oS ric}_Va-rmit dated"handicapped by the system." 1913 nailed to his office wall. As for the Dolan case, "1 will go as ®btairing -thatperttiit was not far to scree a i ~emilecal extor. sunshine and roses, Kramien tion to require people who are tiY pa a tT'T-vvas a-ni htmare_ 4hat_ ing to make a living to dedicate went on without en or a roxr ropertti~ to mportant mater) two years, e said. that business and communities lorl'an acyutred a defunct lum• learn to compromise with each beryard when it bought the property other quickly, so that in a reason of Tlgard's 's development code, a at 1 ig Main St. Under the city ble period of time, projects can be plumbing store retail business was completed," he said. considered sufficiently different Now Kramien wonders what will from a lumberyard retail operation happen to businesses chat have fo)- that the city imposed a series of con- lowed city requirements if the Da- ditions upon Morlan to make the ' lans succeed in getting the money transition. Kramien said. from 11gard that their lawsuit seeks i4 11111:11! 1321 IN!'Mr: 1!! 1 ii lii gal r, ~ Fa RECEIVED 14 T AUG 0 2 r99; F C COMMUNITY DEVELOPMENT { (J,33) 53b-9?is' .'52"9: z35.-3©~r%3 MEMORANDUM BATE: August 1, 1995 TO: John Shonkwiler FRB : DICK WOELK PROJECT: 95662 SUBJECT: Golan Remand Hearing As you requested, I have reviewed the information submM.Sd to the City of Tigard for the July 18, 1995 hearing on the Dolan Remand Hearing and have the following comments: 1) The Memorandum submitted by Mr. Larson dated July 17, 1995 indicates that the reason that the "Paint/Hardware" store trips generation rate is justified is that several of the A-Boy stores are listed In the yellow pages in the general heading of ACE hardware stores therefore all of the stores in the A-Boy chain sell the same merchandise. While three of the A-Boy stores do actually sell those items listed by Mr. Larson, the Barbur Boulevard store is unique to the A-Boy chair; in that it is an old Pay-N-Pac store. A-Boy's purchased all of the existing merchandise and continues to supply a majority of the same inventory that the Pay-N-Pac store carried. While the other two stores Hillsboro and Vancouver Washington do fall into the category of Ace Hardware stores, they were included in the ATEP trips generation study. As 1 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 store system. Only this week did 1 become aware that they were in part hardware stores. tf these stores are analyzed by themselves as shown In Figure 1 you will notice the trips generated per 10010 sq ft of gross floor area is 25.83 trips. This ii~ still half of what the r ITE Trip Generation Manual says that Hardware stores generate. This reaffirms my original statements that while the ITE Trip Generation Manual rates are for 8 hardware/paint store, the small number of studies makes the Information less reliable and therefore actual trip generation information should be used where availiable- The ATEP study confirms that the A-Boy plumbing stores actually generate only 25.43 trips per 1000 square feet of gross floor area and that the actual trips generated by a hardware/faint store are 25.53 trips per 1000 square feet of gross floor area, not 52 trips as indicated by the ITE Trip Generation Manual. 2) The project impacts Mr. Larson addresses on page 2 off his memo ' Indicates that the two Intersections along plain Street are operating at LOS F and LOB C reapertively. While this may be We case, no actual traffic study was conducted for this land use, therefore no information Is available on Its Impact can the surrounding street system. To generally spay that sire the Intersection of Highway 99 and Main street operates at LOS F during the prn peak hour the H Boy expansion severely Imparts this intersection is not accurate since no actual study has been done. In order to aecurately assess the TIF fig, ACTUAL trap generation rates should be used to establish what i€ any Impact the expansion of this building will have on the surrounding street system. As to the Issue of who should pay the cost of development raised by the 1000 Friends of Oregon letter dated July 1E, 1995, the Dolans have never wavered from the responsibility of paying for the coat of ft their expansion. The problem has been paying the cost of their impact verses the greatly exaggerated cost established by the City of Tigard. The City of Tigard continues to assess the impact of the expansion based on unsupported and unreliable data. The ATEP trip generation study of the A-Boy chain clearly establishes the following: 1) The A-Boy Plumbing store generates 26.45 trips per 1000 gross floor area, not 52 trips per 1000 gross floor area. . 2) The A.-Boy Hardware stores generate 25.63 trips per 1000 gross floor area, not 52 trips per 1000 gross floor area. 3) The expansion of the Tigard R-Boy store will add 206 trips per day to the surrounding street system, not 404. 11 liil::! 11:11 Q ONE= a 4. t PER of: SLOG 1.q7 33.466- HII.LS~ _ 16--'°T 5192_ 66i .633u~ 8 y~aY° ~ $aY.g5 95 36 90- a5 - 1 - 364 _ `L~.2666~i't stall ernc 2.1 114 a'!-~ 24 - ~~ag.64 _ 25 ~171~+3 el Fags 1 tr MEMORANDUM CITY OF TIGARD, OREGON Y TO: File ~A FROM: Cathy Wheatley, City Recorder ~i DATE: August 4, 1995 SUBJECT: Transcription of Pul-~li.c Hearing Meetings for Dolan - June 27, 1995 and July 18, 1995 Attached are the transcripts of the above-referenced meetings of the Tigard Citv Council. The transcripts contain proofreading remarks listedr below. Original transcript language that was changed is shown as a et-ri-3~e- and changes are shown to be in bold type and underlined. June 27 Transcript: Page 5 - 2nd full paragraph from the top of page: "cost to grow" was changed to read "cost of growth," so the following sentence would read: "Cases like this are fundamentally about one issue, and that is who pays for the cast -a eie cost of growth . " July 18 Transcript : Page 3 - 2nd paragraph from the bottom of page: "these" was changed to read "their"; and "I'll" was added. These statements now appear as follows: "As you know in these their legal memorandums they make the case that no condition should be attached dealing with traffic and runoff. So I'll respond to that claim. And then second, I'll discuss some of the evidence relating to the proportionality issue which, which I think is the central issue confronting you in this case." Page 4 - 2nd paragraph from the top of page: The word "out" was added, so the following sentence would read as follows: "I'm not sure that's much different from the way we want to lay out the issue but for purposes of evaluating these, these claims, I think it's a, a reasonable standard for you to consider." 11110 11"111,110F OEM ~y r Page 4 3rd paragraph from the top of page: Parenthetical were added to the following sentence, to make it read as follows: "But they raise a nuTpber of arguments that essentially say despite this impact, they should be excused." Page 4 - Last paragraph on the page: The following statement was changed to be shown as as a quotation: "Let's make someone else pay for these impacts." Page 5 First paragraph on the page: The words "here where" were changed to read "there" so the sentence now reads as follows: "As far as the sheets of paper argument is concerned, I think you can look at this box over - ~e het e, and see what happens with a, few sheets of paper." Page 5 - Second paragraph on the page: The words "a different" were changed to read "up this" so the sentence now reads as follows: "The applicant argues they should be able to use a rfere- up this capacity." Page 6 - Top of page : The words "put the drips" were changed to read "puts the trips" so the sentence (which begins at the end of Page 5) now reads as follows: "If every project was allowed to make that argument, eventually the public or else the last developer who put the-ela4ps puts the trips on the system and broke the system, would get stuck with the cost of doing the, the improvement." Page 6: Second paragraph from the bottom of the page : t The following sentence had the word "fee" added at the end of sentence, so that it would read as follows: iBut of course in this proceeding we're not determining the, the traffic impact fee." Page 6: Second paragraph from the bottom of the page: The following sentence had the word "at" added; so that it would read as follows: Ems. _ j1Y "That's done at another time, at the building permit." fPage 7: Second full paragraph from the top of page shows changes made to the second sentence as follows: It " ."_1-' el AA a„Rpresach that he calls a "three legged stool."' Page 7 - Last full paragraph: The following sentence was changed to read as follows with the word "if" added: "And the right hand column they identified if there was not a condition imposed." Page 9 - Second paragraph from the top of page, the word "bulk" was deleted, so the sentence appears as follows: "And you can compare that to the impact on the applicant of the cost of the easement which is $1300 and you can see its not built out of proportion." Page 9: Second full paragraph: The following sentences read as just one sentence; a period placed after the word "used," so the sentences would appear as follows: "The-re are a number of methodologies that can be used. But given that the exaction is rather low in its impact, and given that there is admittedly a substantial amount of runoff, all, any methodology that you chose is going to demonstrate that there's rough proportionality." Page 9 - Last full paragraph: The last sentence was changed to read as follows with the word "any" added: "So even based upon'the applicant's data, there's not a significant... there's not any way to argue that it, that it's not proportional." Page 11 - Last full paragraph: The word "on" was added, so the following sentence would read: "You can't find on it." f:\login\cathy\doltrans.chg i ; TIGARD CITY COUNCIL TRANSCRIPT of Public Hearing Site Development Review (SDR) 91-0005/ Variance (VAR) 91-0010 Dolan/Mendez Mayor Jim Ni,coli, Councilors Wendi Conover Hawley, Paul Hunt, Bob Rohlf, and Ken Scheckla were present. Staff present included Tim Ramis, Legal Counsel; Pam Beery, City Attorney[ Jim Hendryx, Community Redevelopment Director; Bill Monahan, City Administrator; and Cathy Wheatley, City Recorder. Mayor Nicoli: Okay. Agenda Item Number. 5 is a public hearing. It's a quasi-judicial action continued from the May 23, 1995 Council Agenda. This is for a Site Development Review SDP. 91-00051 Variance 91-0010 Dolan/Mendez. This is to consider the U.S. Supreme Court remand of conditions related to the dedication of property for floodplain management and a bike path relating to the determination of the rough proportionality of those requirements. The location is 12520 SW Main Street (WCTM 2S1 2AC, Tax Lot 700). ..pplicable Review Criteria: Community Development Code Chapters 18.32, 18.66, 18.84, 18.86, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.134 and 18.164; the Parks Master Plan for Fanno Creek, and the City of Tigard Master Drainage Plan. The Zone is CBD (Central Business District). The Central Business District zone allows public administrative agencies, cultural exhibits and library services, parking facilities, public safety services, religious assemblies, and a variety of commercial and service activities, among other uses. I will now open the public hearing, and in so doing, I have another list of announcements I need to make. We want to inform both the applicant and the general public that is here this evening - the Council will not deliberate a to a decision this evening. Also, want to sav that all public input this evening is going to be transcribed and made available to the Council in about a week. So we can review all verbal testimony given to us this, this, this evening. Those wishing copies of,that may contact our City Administrator, Mr. Monahan, in about a week to get copies. As part of that request, I'm going Y to ask that everyone speak into the microphone this evening. I'll also ask that not more than one person talk at a time. And if I make funny motions PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 1 4 r to you, it's, it's to get either one person to, to stop talking while another person is talking. I hope the Council and staff and everyone in, in, in the audience to work with me so that the transcriber doesn't get, get mixed up as who said what. So I would appreciate that, help this evening. Mr. Monahan: Well then, Mr. Mayor, could. I suggest that when Cathy has to change the tape, that,we ask the speaker to stop until the tape has been changed so that we don't miss anything. Mayor Ivicoli: Very good. We will at the end of the public testimony set the next date that the Council will discuss this issue. We won't do it before we start. Declarations or challenges. Do any members of the Council wish to report any ex parte contact or information gained outside the hearing including any site visits? Have all members familiarized themselves with the application? Are there any challenges from the audience pertaining to the Council's jurisdiction to hear this matter or is there a challenge on the participation of any member of the Council? We will begin with the staff report from the Community Development Department and our City Attorney. Mr. Hendryx: Mr. Mayor, Council members, I'm Jim Hendryx, Community Development Director. What I'd like to do is show you some slides just to familiarize yourselves with the site and go over the 1991 staff report. Hit a couple of highlights there. Maybe if we could dim the lights any more? Then everybody... that's a little bit better. obviously the site, this is located on Main Street. I took these slides on Sunday and you'll notice the lack of traffic out there. It's fairly early in the morning. This is looking east on Main Street with. the site to the right. The site on the right. This is just looking down Main towards the west with the site again on the, this time on the left. This slide is taken from the west bank of the Fanno Creek and showing the site in the distance. This slide is taken from Main Street just looking directly south. The building addition would be in directly in front of where the slide is taken. This slide is of Fanno Creek. The floodplain comes to near the top of the p bank. I can't give you a precise location on the slide but nearing the top of the bank. Similar slide to an earlier one just showing the site from PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 2 i the east side of Fanno Creek. This slide was taken directly south of the site where the... There is existing bike paths and ultimately the bike path. that's going to be discussed tonight will connect to. There's intervening property between the Dolan site and this property. Or where the bike path is. Do you have any questions on those slides? I'd like to introduce into the record and if you'd like to see these I'll certw~nly move this up front. This.is a :record of or exhibits of the file of the site, including the site plan. I believe you have some reductions in your staff report and your... and all the documents that you have. And included in this is our land use plans and all the typical information that would be submitted with an application. Mayor Nicoli: Mr. Hendryx? Let me just stop for a second. Can we assign an exhibit number to that, please? i'il let our City Attorney this evening keep track of all, all the exhibits. I think we're up to what 12 or 13 in our Ms. Beery: We'll take care of it, Mr. Mayor. Mayor Nicoli: Okay. Mr. Hendryx: Mr. Mayor, just for the record, there are multiple pages here. I didn't count them or,mark them with exhibit numbers. Mayor Nicoli: What, what exhibit do we want to assign to this? How many pages... Ms. Beery: We'll start with 17. Mayor Nicoli: Okay. Exhibit number 17. How many pages, Mr. Hendryx? Mr. Hendryx: I believe there are eight. Mayor Nicoli: Okay. Eight pages. Proceed. Mr. Hendryx: I believe there are eight pages. Mayor Nicoli: Okay. Good. Mr. Hendryx: They, they kind of stuck together so I (inaudible) but I believe there are eight. Mayor Nicoli: Okay, approximately eight. PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 3 b (Inaudible) Mr. Her,dryx: Mr. Mayor, the other exhibit that I will introduce into the record is an enlargement of the site, plan with the proposed building - 17,600 square feet. The blue denotes the floodplain. The yellow denotes the bike path easement that will be discussed later on in the presentation. Mayor Nicoli: Okay. So that. will be Exhibit 18? Ms. Beery: Yes. Mayor Nicoli: okay. Mr. Hendryx: Mr. Mayor, the site is approximate... Council members, the site is approximately 1.67 acres in size and is as you, as you know by the slides, bordered on Fanno Creek. The proposed building would be a 9700 square foot building. Excuse me, the existing building is 9700 square feet and the site is partially paved. It was built, from our information, in the late 1940s. The request originated with the property owner plan to raze the existing structure currently used for A-Boy Electrical and Plumbing Supply, a general retail sales use and embark on a multiphase redevelopment of the site. As I mentioned, the proposed building would be 17,600 square feet. A single story structure located to the southwestern side of the site. And A- Boy would expand into that or relocate the new building. The parking lot contains 39 parking spaces. The applicant had requested a variance to the community development code standards require dedication of part of the area for. Excuse me, dedication of area of the subject parcel that was within the 100 year floodplain, and also dedication for a bike and pedestrian path. As well as' a condition to construct those facilities. The conditions that require the, the dedication are r found both in the Comprehensive Plan and the Development Code. The Comprehensive Plan requires or states that "where landfill or redevelop... or development is allowed within or adjacent to a 100 year floodplain, the city shall require the dedication of sufficient open land area for greenways adjoining and within the floodplain in accordance with the adopted pedestrian bike plan.!' So the development site includes land obviously within the 100 year floodplain. Staff is x recommending an easement to meet the same requirement and the Attorney will address that PUBLIC HEARING TRANSCRIPT - =E 27, 1995 - PAGE 4 n MCI I' further. The other point wh:-re-this is conditioned in the Code, in the Comprehensive Plan. It's referenced in the staff report. And it states that the floodplain areas need to be dedicated. Not only for the construction of pathways but also for the public maintenance of the storm water,drainage system. These Code sections implement the Comprehensive Plan policies which are referenced in the report which requires dedication of all undeveloped land within the 100 year floodplaiin. The plan discusses the city's objectives of, in regulating development within the, within and adjacent to the floodplain area to avoid hazards to the public and to downstream properties. obviously what... with that I'd like to turn it over to the Attorney, Tim Ramis. Mr. Ramis: Thank you, Jim. Mr. Mayor, members of the Council. Cases like this are fundamentally about one issue, and that is who pays for the ee-s-t-b~r-ew cost of . growth. Elected officials in cases involving conditions have the responsibility to make a determination about whether the impacts from new roads will be paid for by the property owner and developer or whether they will be paid for by the s taxpayers. And how to apportion those costs. As you know, and as you've all struggled with, whether it's an expansion of existing business, creation of a new business, creation of new housing, there are always impacts on our city's infrastructure. Additional traffic means additional road crews are necessary. Additional runoff means we have to take care of the drainage system. Additional sewage generated means, means we have to take care of those kinds of problems. So these cases involving conditioning exactions always involve a judgment about the fair apportionment of those costs. The staff has to do three things this evening. one is to talk about the background of this case and what the Supreme Court said in its ruling. Second, to describe how the evidence in the case so far, relates to the Supreme Court's standard, and third, to provide some comments on the letters you received today from Mr. Smith. First, in terms of the background of the case. In order to get a development approval in the City of Tigard, our Code requires an applicant to submit information on the extent of the traffic impact and c the extent of the runoff impact. In this particular case, the applicant did not do that. So in order to PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 5 I sta... in order to substitute for that lack of information, the City went ahead and granted an approval but conditioned the project and addressed the traffic impact with the condition saying you need to dedicate land,for a pedestrian bike path in order to mitigate traffic impacts. And in order to deal with your runoff,impact, you need to dedicate land for, in the floodplain for runoff. The Supreme Court took this case up, and indicated that it did not have a rule, an existing rule, to apply to this kind of situation. So they developed a rule, and sent the case back to the City with instructions to apply its new legal standard to the question of, of the dedication. So that, fundamentally, is the task before you. In a nutshell, the rule requires that before a local government can impose such a condition, the local government bears the burden of proof to demonstrate that there's proportionFli_ty. That is, that there's proportionality between the impact of the condition on the property owner or developer in relationship to the impact on the public of the cost to fix the harms that are caused to the public infrastructure by the proposed project. That is the, the fundamental task. To address that issue, you have before you appraisals and engineers reports. And fundamentally what they do is reduce this question to one of cost. The appraisals value the land that's being asked to be burdened by an easement, and that quantification of the cost gives you a comparison. What. you compare it to is the cost to the public, if the public had to handle all the transportation impacts of the development and all of the drainage and runoff impacts of the development itself. So that's why you see in the record all of the engineering reports and appraisal reports. They're there to provide you with the raw data so that you can make the comparison. Now it's likely in cases like this that you will hear a substantial amount of debate. We have made the City's analysis and have this available. We have not yet heard from the other side about what theirs will be but we've assumed that it will be debat-d and take some time to sort out the facts. I will say that you can expect to hear today about methodology. We're after all going to hear from experts on various items potentially and so it's legitimate to hear debate about methodology. Keep these things in mind. PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 6 m A M 0:1115 2:401 1,11 MR; 1! 1 ly Number one, where methodology is disputed, you are the ultimate judge of what methodology is the correct one. Your choice will be deferred to by reviewing bodies if it is founded on the facts in the case. So that's a judgement that, that Council will need to make. Second, contrary to the letter you received, earlier, you are not bound to any particular methodology by either the Washington County Code or the City Drainage Plan. They do not imposed upon you any specific required methodologies. You may chose parts of those methodologies, you may chose analogies to them, you may employ a different methodology. That choice is up to you and you're not bound by those documents to choose any particular approach. And finally, remember that the, the rule that's applied here is one of rough proportionality. it does not require mathematical exactitude. Rather it requires a judgment as to whether or not the burdens placed upon a property owner are out of proportion to the -impacts they caused on the public's infrastructure. A final point, as you review this exhibit indicating the easement, you will see that there is some adjustments on the original decision made by the City earlier. Specifically the... Indicated in yellow on tnis exhibit is a bike/ pedestrian easement. It's been reduced in size in those locations where it would encroach upon the proposed building, being proposed by this application. The reason is this.. As, as originally approved, the conditions said that the applicant had to identify on the east side of the building where the USA easement was. They had not done that at the time of the application. They have since indicated they have located that easement and because of its location, they would be squeezed between the easement for the bike and pedestrian path and the USA easement and not be able to place their, their full desired building within that area. Staff has therefore decided to reduce in certain areas the size of the required pedestrian bike path easement in order to accommodate the building that's been proposed. And that's why those changes occurred. Now at this time let's review the Supreme Court's decision. And, Dick, if you would turn down the lights for us, please. Now against the background we've heard, I'd like to review the decision because PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 7 HIM 22 Emma IN I KIWI= it does provide the fundamental framework for your decision. You are after all here in response to a remand from the Court. Now the Court identified Man: Excuse me, I think the, the (inaudible) there are blocking the view of some of the people, the screen. Mr. Ramis: Let me move these exhibits. That might help. The first thing that the court did was to confirm two basic powers of local government in a land use context. The first is the ability of a local government to deny an application. If an application does not address all the criteria, does not handle all the impacts to public infrastructure, the application can be denied. Second, it affirmed the ability of local government to impose conditions. You are permitted to condition a project in order to satisfy the criteria for approval. If you do undertake to impose conditions however, the court said that the local government bears the burden of proving that the condition is a valid one. This is a switch from the process that we're used to. We're used to a situation where the applicant always bears the burden. If we decide to satisfy a particular criteria by using a condition that involves the dedication or exaction of some kind for land, that we bear the burden of proof. If you decide to go ahead and impose a conditinn, then there are two fundamental requirements. Fi_jt is... Mayor Nicoli: Excuse me. Sorry. Go ahead. Mr. Ramis: Okay. Two requirements imposed by the Court on conditions from our case and an earlier case. The first is that the condition must demonstrate an essential nexus. That's sort of a legalistic way of saying that something that's rather straight forward which is whatever the condition is that you choose, it must address and solve a real problem created by the project. In other words, the impacts of the project have to match up with the condition that you've chosen. An example would be if there were a food processing plant that would create a large sewage impact and therefore'it would be legitimate or would be an essential nexus if you were to condition such a project to make contributions to expanding the sewer system. On the other hand, there would not be an essential nexus if someone came in with a proposal for an inground swimming pool, and the local government used that as an occasion to exact a view easement because of course PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 8 ligis the pool and the ground wouldn't interfere with, with the vier:. Sc that's essentially the essential nexus teat. The second requirement is rough proportionality which. I discussed between the impact of the project and the extent of the condition. Arid here, if you " have a small apartment project for example. There would not be proportionality, rough proportionality, if you were to require a small project like that to rebuild a large section of freeway. On the other hand, if the evidence was that it would generate quite a number of, of trips on local streets, it would be legitimate to proportionately condition the project on making some improvements to those local streets. Exact calculation is not required but rough proportionality is. Now to turn to the facts of this case. First of all, proportionality is the only open issue left in the case. The Court and the applicant agreed. The applicant had oral argument before the Supreme Court and the Supreme Court in its decision said that the City could legally deny this application. Second, the Court found that the conditions that we're talking about. The condition on the floodplain and the path meet the essential nexus test and, in that respect, the Court was quite clear in its opinion, in saying that unlike an earlier case in California, where they overturned the decision. In this case the City had proven essential nexus. And if you'll excuse me for reading, I want to take a minute to read to you a portion of the Court's decision. It was contrasting Tigard's actions with, with the, the actions of the California Coastal Commission which it said were extortion and, and essentially gimmick. In contrast it said this about Tigard. F "No such gimmicks are associated with the permit conditions imposed by the City in this case. Undoubtedly the prevention of flooding along Fanno Creek and the reduction in traffic congestion in the Central Business District qualify as the type of legitimate public purposes we have upheld. It seems equally obvious that a nexus exists between preventing flooding along Fanno Creek and limiting development within the creek's one hundred year floodplain. The petitioner proposes to double the size of a retail store, to pave their now gravel parking lot, thereby expanding the impervious surface on the property and increasing the amount of storm water running off into Fanno Creek. The same may be said for the City's attempt to reduce traffic PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 9 I o_ n congestion by providing for alternative means of transportation. In theory the pedestrian bicycle pathway provides a useful alternative means of transportation, for workers and shoppers. Pedestrians and bicyclists occupying dedicated spaces for walking or bicycling remove potential vehicles from streets, resulting in an overall improvement in total transportation system flow." So the question of, of essential nexus is not one that you have to worry about in this case. The problem that the Council has to focus on is in deciding rough proportionality. And, in doing that, the task is to compare the cost of the project impact to the value of the easement. And that's essentially why I was explaining that you have a great deal of data so far in your record on that. If the value of the land that is being exacted exceeds the cost to the public of curing the impacts from the project, then one could not say that it was a proportional relationship. On the other hand, if the costs to the property owner were far less than the impacts to the public of curing the problems caused by the project, then you could say that it was a proportional relationship. So let's turn to the facts of this case based upon the evidence you have in the record at this point. First we'll look at drainage and then turn to the , traffic analysis. Our engineer has indicated is that the project proposed will have at least a 301 increase in runoff. This is a conservative estimate and you have additional parking spaces are both provided. If areas that are outside the immediate vicinity of the proposed building are paved, then the runoff could actually triple. And the graph, the bar chart at the right, illustrates this for you. The red indicates the current level, blue would indicate the impact from additional development on the site and the gray bar would show the impact if there is pavement over the whole site. Then we had an appraiser take a look at the value of the easement that's being dedicated, being asked to be exacted for runoff purposes. And on the right side of this slide you can see that the dedication, easement value, is $1300. For comparison the engineers also calculated what would it cost the public to cure the runoff problem on this site by constructing facilities to do.that. One type of structure would retain all of the, the water until it percolated out. And it's called a retention PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 10 If structure and the cost, to either the applicant or the public, would be $6800. The detention alternative which is described would cost $8500 to the applicant if they did it. But if the problem were left to the public would cost the public $8500 to cure. So you can. see in comparing these figures that there's not a lack of proportionality here. The gray would indicate the impact to the applicant of the dedication in dollar terms. Blue would indicate the cost to the public of retention and red would indicate the cost to the public of the detention facility. I think the, the chart, I think, illustrates very well the relationship. You ` can see from these comparisons that it's not out of proportion to the impact of the project to ask for an easement of roughly $1300 in value. If we look at the cost of solving the problem in the creek, which is what's proposed, that is creating more capacity in the creek, it sorts out this way. The applicant, by making contribution of an easement worth about $1300, would be paying 34. of the cost. The public, the taxpayers of the City would implement that drainage plan and pay at about 66% of the cost of solving the problem. That's the cost of going in and actually doing excavation and creating more capacity in the stream channel. So, in terms of overall fairness and proportionality, that chart, I think, illustrates the situation very well. Now if we could turn to traffic issues. The analysis was done this way. Our traffic engineer has determined that the project would generate 404 new trips on the road per day. Once you know that figure, you can determine, based upon the capital improvements plans that are out there, what the cost is for each trip. That is, how much additional burden on our public infrastructure is.created by ' r each trip. Once you have that number, you can calculate the total dollar impact on the City system, if the taxpayers were left with the problem themselves of handling the traffic impacts. That number is $33,000 dollars and, and a little change. That particular figure credits the applicant with paying the tip. That is, the County charges a fee for transportation infrastructure. We've taken into account the fact that they will pay that and reduce the unmit, the unmitigated impact. So after paying the fee to the County, there still is left over $33,000 of impact that needs to be dealt with. PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 11 Now we can compare that to the appraised value of the pathway that's being asked to meet conditions to be granted to~the City. And that value is $4100. Compared to the unmitigated impact of $33,000, you can see that it's not, the property owner is not being asked to contribute a disproportionate share to salve any of the problems. The white chart indicates the, the relationship. If we look at the total problem and where the dollars would come from to, to fix the impact on public infrastructure, that's the streets for this project, the picture looks this way. 3211 of the cost of dealing with the impact would come from payment of the tip fee by the applicant. 92.- of the problem would be dealt with by the contribution of the easement by the applicant. And 59m of the problem is still left, be left to be dealt with by the taxpayer. Now, Jim, if you could get the lights again. Mayor Nicoli: Mr. Ramis? Mr. Ramis: Yes? Mayor Nicoli: The slides that you just presented. I need to get an exhibit number for those. Also I need to ask is there any way of copying those onto a sheet of paper and Mr. Ramis: We do have hard copies of those which we will... Mayor Nicoli: Okay. Very good. Mr. Ramis: make part of the record. Mayor Nicoli: Okay. And what's, what's the exhibit number? 19? Ms. Beery: Those will be number 28 actually because they're being presented in, in an order that's been preestablished. Mayor Nicoli: Very good. Mr. Ramis: Now in, in closing the staff report, I, I'm going to give you some final comments that I hope that will be of some assistance to you in reaching your decision. First issue, one of the issues at least that you will face is this. The claim being made that pedestrians who would be... That, that is the customers of this particular store would not use a pedestrian easement. Does that matter? We think there are reasons to believe that that's not correct PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 12 01 !111:1 1111110 1 B111 '111II: i but would it matter in the analysis if the facts were that no customers of the store would use the easement. The answer is no, it doesn't matter. For this reason. And a support point of that would be the earlier language that I read to you. The path, is designed to mitigate the traffic impact. in other words, people coming to the store come in their_ cars. They create additional trips. To the extent that a path reduces use of the streets, gets people out of their cars generally and. onto the path, it creates more capacity in the street:. And therefore it mitigates the impact on, on the new traffic trips generated by the development: So the question is whether or not the path mitigates traffic impact, not whe, how many people actually use it to access a particular type of store. Second, regarding drainage. There is a I ve seen in the letter that was submitted today that the analysis is flawed because no credit has been given for the water quality charge that's paid to the Unified Sewerage Agency. The, the problem with that argument is that USA's charge is for water quality. And the issues here we're talking about are water quantity. That is, capacity in the drainage system, not water quality measures. So that, that charge is -really irrelative to this analysis. We have an expert witness from MacKenzie Seito here tonight who did the analysis that's, that's in the record. You may have questions for him. We'd be happy to take those questions now. It may possibly make more sense to put those questions to Mr. Larson after you've had the opportunity to hear various arguments from the other side. Now at the end of the proceedings tonight, you've indicated that you won't be reaching a decision. You may want to continue the process depending upon what we hear tonight,because of course staff has not yet had the opportunity to see or hear any information from the applicant on these issues, and the staff may wish to have the opportunity to respond to them. Finally, let me close by asking that the record, that you include in the record some additional exhibits which are contained in the box next to Dick over here. On top of that package is a listing of those exhibits. They're numbered and the City Attorney has them. They relate predominantly to the past history o this case, transcripts and records PUBLIC HEARING =ANSCRIPT - JUNE 27, 1995 - PAGE 13 3 of prior proceedings. That will close my presentation. Pis. Beery: Mr. Mayor. Mr. Mayor, sitting here I've numbered those exhibits 19.through 33. Mayor Nicoli: Very good.- Mr. Ram.is: Thank you very much. Mayor Nicoli: Is that the end of the staff report? Okay. Very good. For all those wishing to testify, please be aware that failure to raise an issue with sufficient specificity to afford the Council and parties an opportunity to respond to the issue will preclude an appeal to the Land Use Board of Appeals on this issue. Testimony and evidence must be directed toward the criteria that staff will describe or other criteria in the plan or land use regulation which you believe apply to this decision. Okay, at this time, we will hear from the applicant. Let me point out just for people speaking to us. if, if you move away from the microphone, we have a portable microphone that we'd like you to take with you so it picks up on the recording system. And if there's any questions, just stop and one of our staff members will show you how to operate that. Mr. Shonkwiler: I'm sorry, Mr. Mayor. This is basically traffic study background material. Mayor Nicoli: These are duplicates, John? Mr. Shonkwiler: No, they're all, they're all... volumes of the study. Mayor Nicoli: Okay. Mr. Shonkwiler: And (inaudible)..... Mayor Nicoli: Why don't we take a minute? Let's take a... Ms. Beery: I'm hoping he has a list. Mayor Nicoli: about a five minute recess. Ms. Beery: John, do you have a list of what these are? Mayor Nicoli: We'll allow our City Attorney to PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 14 RAN Mr. Shonkwiler: This is all part of the traffic study. So it's Mayor Nicoli: process all these documents.... Mr. Shonkwiler: Exhibit... Mayor Nicoli: So we'll recess Mr. Shonkwiler: F, I believe.... Mayor Nicoli: for about 10 minutes. Mari: One copy total to give Mr. Shonkwiler: That's Exhibit F. All this is separate exhibits... The Council recessed. The Council reconvened. Mayor Nicoli: start. We're going to do one very quick thing. We received some information from the applicant's legal counsel that was just delivered to the Council prior to the meeting. And I'm going to ask our legal counsel to assign exhibits to those and Kris, put them into the record. The... Ms. Beery: Excuse me, Mr. Mayor, this is a letter dated June 27, 1995 from David D. Smith, Attorney at law, directed to the Mayor and City Council, will be Exhibit Number 35. Mayor Nicoli: Is that? Okay, those are both letters? Ms. Beery: There's an additional-memorandum from Ty Wyman of the City Attorney's office regarding our revision to the staff report which could be a separate item. r Mayor Nicoli: Okay. Ms. Beery: And we can give that Exhibit 37. Mayor Nicoli: Okay. Very good. Okay. Go ahead, Mr. Shonkwiler. Mr. Shonkwiler: Okay. My name is John Shonkwiler, and my address is 15425 SW 72nd here in Tigard, 97223. I'm here on behalf of the Dolans which you might have guessed. And, with me tonight is Dave Woelk of ATEP, the PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 15 ~a. s- 'WOM NEW ox i r traffic report that we are submitting in the record. Which, just to,clarify, that's Exhibit 34. I assume that is now in the record, and also my memorandum. And attached. to the exhibits which would be in the record is Item 35. Now before I leap into an analysis of the conditions that the City's talking about imposing here, I think it would be helpful if we did a little talking about the fundamentals of what hopefully can be accomplished here. And that's partly about the seeking of a solution. And, as we all know, we've been involved here in a legal dispute for over four years. Most of the faces that are involved are not the same faces, including mine. The question is, is-... After all this length of time, have we progressed to a point where we can actually find a solution? And I believe that the choices that are before the City allow that to be accomplished. I think the first thing to look at is this. How can the City lower the harm to the Dolans that's, that's occurred here. And at the same token, maybe accomplish some of the things that the City had in mind when it imposed these conditions to begin with. one of the critical functions and as we had discussions outside of this hearing, not long time ago. As I pointed out one of the critical aspects of what I view the damage to the Dolans was the placement of the building and the interference with the and the which is... ?'ve lost track of whatever exhibit that is... the big tall one... Mr. Hendryx: Would you like it to back up? Mr. Shonkwiler: Yes, would you please? That is the large map. Ms. Beery: Exhibit 18. r Mr. Shonkwiler: It's Exhibit 18. I think that, in all candor, this is a very good direction for the City in attempting to alleviate the, the adverse effect that all this process has had on the Dolans for their business.' Undeniably, taking away a portion of their building is taking away a portion of their income. And it has always been felt by myself that it is so easy to move the pathway and why it required to move, you know, the building was always hard for me to grasp: So I applaud you for taking this approach. If it ultimately ends up as one your conditions of approval, I think we're taking a good step here. It PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 16 WHIIIII Jill IN !i 9 iffi.; 0:01 1 is in conjunction with the other aspects. The, the potential of dedication to the public there as an easement or outright "floodplain" or greenway. To me that's a separate issue, and it is secondary to the building. So I want you to bear that in mind. I think the next aspect that we address here is, the key one that's remained, is the transportation aspect. I realize that when the lawyers get involved in the case we all play the game of what are the elements and how to pick apart the elements. The memorandums that you have received undoubtedly from the City Attorney do that. Try to make a case and, and avoid the Supreme Court decision. Whether, whether in my view it's paper mar_he or its substance is a debatable item. The memorandum I have given you is, is my lawyer's approach for picking apart the City's case. Now all that aside, that is why I'm talking about in this preamble section, lawyers deal within a solution here. And, and it's a solution in my mind away from the lawyers. So first part is the building. It looks like you've, you've made the move to do that. If we can deal with the transportation issue, I think we've made the next step. And possibly the, the next critical step on, that remains. And when I say transportation, what it is it boils down to this. You'll, we have a transportation engineer here. ).ie will show, and I think in our memorandum we point out that basically the City's transportation analysis is on a manual category that doesn't include the type of store that the Dolans have. And, that category that was chosen for coming up with the traffic impacts was one that was clearly identified in the manual as a,only based on four cases or analysis. Involved stores that are larger in size and, and paint stores and, there's a hardware store which generally incur more traffic than the type of store that the Dolans have. The F document also says that, to use caution in those figures. The reason why I'm going into that is because our traffic study is an actual onsite analysis. You have a rather unique situation here in that the Dolans not only have this store. That they have other stores exactly or near exactly the same size that they want to expand to. So we have a hardcore example system of what actually is going to occur at the path at.this store. our traffic analysis comes out not in 404 trips per week but 206 trips per week. That is a major difference. And I believe PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 17 1310011111 .a t~ that we're not talking about a battle of, of experts here because I think that the premise for your expert, unfortunetly, isn't based on a sound basis. So that's n--t hei i e-a-b1 e in my view. 1 I don't want to get into a debate at this stage on that. I want it pointed out that that's an important factor to the Dolans. I think it's the remaining important- factor in the land use sector here. And if that, if, if the City accepts the high transportation study and in essence the resulting tip fee, works out to about $8000 dollars. $8034 dollars, I think it :is. I think we've made the steps to resolve this thing. If, if the City accepts those kind of modifications. Now with that in mind, I'd like to go on to'dealing with the subject. I was going to go into great detail about the Supreme Court decision. I, in, in second thought, I, I think it's unnecessary. I think we've all probably either read it or you've seen something that's a synopsis of it.. You're about ready to fall over dead. The only thing T_ would say is it requires an individualized determination. it requires a datafication for your data, both in nature and extent of the use made by the Dolans. That's the way it is cut. We, we did it all with 50 interpretations from the lawyers but I feel very comfortable about our position is that you cannot use.just generalities and draw from those generalities to meet the, to meet the requirements out of the Supreme Court decision. So let's, let's look at the bike path. I'll try to sieve through this because I, I, I will say it this way. The details are laid out in, in my memorandum. I'm hoping that what we can really do is reach a solution here. So I'd rather not belabor to death all of our details but I think it's helpful to summarize some of, some of the ones so that you can understand where I view the problems lying. On the pathway, the City assumes a 90% reduction in vehicular traffic by the pathway. The problem with that is.... We're not talking about generalities of your study. We're talking about does the Fanno Creek pathway...? Is that the only one that you're talking about imposing on the project?, Does it fit within a category that could reasonably collect 90% o-f your traffic allocation? In other words, traffic that would have been by vehicle but now will go by pathway. It's a critical question and the trouble you have - I can tell you right on the face of this PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 18 . i INIVIIIN - is your Comprehensive Plan category defines the Fan.n.q Creek pathway as "primarily used for recreational trips." You, you are now faced with an assumption problem that your, your reports don't cover. And what's, what's the problem with'that? I'll, I'll explain it to you :n this sense. It is a single orientation trip that's involved here. When you make a trip for recreation, you're not substituting from a vehicle. You go to make that recreation trip and you come back from that recreation trip. You're not saving a vehicle trip to the store because one was never involved.. So it's completely unrealistic from a fundamental evaluation point of view to say that 90% is going to be allocated to Far_no Creek, and you're got to meet their findings since you have the burden of, of entry claiming to show it is. So the Fanno Creek pathway also has a physical problem, as I pointed out. Your own Figure Six of the Tigard area pedestrian plan shows Fanr_o Creek: as a limited access category right along the creek and the floodplain, and it really does not provide hardly any connections to surrounding areas that might become sources for vehicular traffic being substituted. In fact, your own plan, in the pathway plan, defines the major generators that feed your pathway system in the City. And when you look at that major generator map, you'll see that there are absolutely none along the Fanno Creek pathway " system. It stands isolated in the floodplain and really doesn't connect up to much that realistically could give that kind of 90% allocation. Also the City's report fails to assess the allocation of the pedestrian bike path traffic that would be assignable to Main Street, right in front of the property. And that also, according to your plan, is part of the overall bike path system. Our traffic study identifies that there is approximately but not more than S% of the pedestrian bike activity that uses Main Street. So therefore, it shouldn't, by that line of analysis, the pathway could never be more than four. In essence your cost calculations are in fact over half off throughout the entire analysis. All of these items have to be addressed to adequately address, I think, the constitutional nexus concept here. The other is the theory that, that portrays a 9% assessment citywide. We don't have to show, the City doesn't have to show relationships specifically to the Dolans' actual usage of the property. PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 19 a Obviously the lawyers take a different point of view about this. We take the opposite side. I do not believe the Supreme Court ruled that way. I think the cases that they cite, they talk about a nature and extent analysis of the buildings used. I think you're going to have a hard time squaring that with the fact that the City, back in 1991, identified that the Dolans' use of their property involved bulk sales. Az_d you. took the step of reducing the size of the parking to recognize that. You fly in the face of the idea that you're.goirg to jump across and substitute all this bicycle path activity relating to that. When it is specific site code to give a product. That's the whole idea of the bulk sales. And it's much larger in quantity, inconsistent with the bike path and, and pedestrian activity in a general aspect. I am actually more concerned from, from the authority of direction... is the application of your code section 18.120.180(a)(8). That is what provides the authority to the City for imposing a bike path on the property. It is also what was challenged by the Dolans from - as the phrase goes - the get go. It was, it has always been held and never_ backed off by the Dolar_s. The first part of that Code provision says that the City can dedicate... or it can require ownership by the City of floodplains for a greenway, both inside of the floodplain and outside of the floodplain. Then when it goes to talk about where you can have the bike path dedicated, it says, and I quote from the ordinance submitted - "This area shall include portions at a suitable elevation for the construction of a pedestrian bicycle pathway within the floodplain." I, I have to emphasize that again, and repeat that "within the floodplain." In accordance with the adopted pedestrian bicycle plan. And I went all the way through virtually every word of the adopted pedestrian bicycle plan and, believe me, there is s. nothing in there that would contravene this B language. In essence you're requiring the bike path to be outside the floodplain. Clearly all the documents show that the bike path is above the 150 foot point zero line. It violates the statute, it violates the code provisions. The question is can you modify that now. Can you reinterpret that now? And my legal position is you cannot. It's clear enough on this case but I also think that you'd be violating ORS 227.178(3) as to PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 20 121 111 Fill a ~ R what was in effect at the time in 1991. Now the traffic analysis, as we've tal}ced about before, we feel that it was in error on your traffic analyst., They show 404 trips, we shod 205. Mr. Woelk will come up and, and discuss that. if you have any questions of Dick, please feel free to raise those. Going on, the City cost analysis we feel the idea of originally showing that the pathway would cut through portions of the building. We have raised that there would be seven damages relating to that that do not fit into the City's analysis. Now with your modification, basically we'd say the seven damages are not relevant. They don't apply because you're not actually taking those portions of the building anymore. Again, like I said, that ideal is a very meager step in, ina good direction. Now the last one is the - and I will phrase it this way - the illegality of the City's attempt to impose alleged traffic impact costs in excess of the tip fees. And what this essentially means is... You're taking a brand new approach and from my study of ° the City records, this is the very first time. In other words, you are making a site specific unique to the Dolans analysis that the City will impose a fee or can, can go into the assessments above the tips fees. That is the tip fees represent 32% of the total Washington County public improvement program for transportation. That leaves 68% that isn't covered by tip fees that would be allocated to the City. And, and now for the first time the City's saying we're going to jump into that 63% to justify taking something more from the Dolans. I have a serious problem with that, that 1 think are fundamental areas that have to be addressed. One is that Washington County's public improvement program was very broadbased. And the County took the point of view, from a legislative point of view. They were willing to go in and assess tip fees at a lower end to property owners because these were the types of projects that fit clearly within the realm of the individual property owners deriving a benefit. Also on this sheet were a very broad area of public improvements. That the County admitted in the document that they were going to have to go to the public for a vote on some of those. And you are attempting to'dive in and say, hey we're going to assess that to the Dolans. That flies directly in the face - in the analysis - that drives directly PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 21 t ` in the face of what the Supreme Court was talking about. You cannot take what would be a area wide public benefit and put that burden on an individual. That's not the way that's supposed to work. In fact that's what makeo it unconstitutional. So I think there's a fundamental background issue here that you're using as an assumption that presents a problem for you. Secondly is the City does not have any ordinance or any Comprehensive Plan provision that identifies that you can do this and how you can do this. You fly in the face of clear and objective standard requirement as well as the adoption requirement under ORS Chapter 227 and 197. Now, we come down to the last part of this, is I obtained from the City all of, or almost all of your 1991 decisions for site development review in commercial. industrial areas in the City. And also included is Exhibit I in my package of, of, of Exhibit 35 in the record. I won't go into detail because they're laid out'in there and there's comments in it. But what the summary of it is, is amazingly so the City has not imposed at any time an analysis above this tip fee assessment for any of those approvals that you made in the City during that time. So in other words, you have singled out the Dolans. Also, what is startling about these, all of those have relatively the same traffic kind of impacts. Some of them had almost identical expansions of 8000 square feet for instance. And still you required was a sidewalk from the building to the street frontage and a sidewalk along the frontage. No assessment offsite. No assessment for a, a pedestrian pathway system. And ironically, and I have to point this one out, because it did amaze me. You have one up on 72nd Avenue, that you approved that was for a, approximately 120,000 square foot warehouse building. Again, no, no jumping into the 68% analysis.at all. And on storm drainage -I, I found this rather startling - you determined that the existing storm drain in 72nd Avenue was of sufficient capacity to handle all the stream drainage running off of this impervious surface of the 120,000 square foot warehouse building and said that was okay. Even though that storm drain goes right near Fanno Creek. That's where it dumps out into. Feeds back into this whole same system which is creating a problem. So we have a direct, a direct conflict in obviously application here. PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 22 lit; Now going on to storm drainage. The staff's open premises is that the parks plan doesn't apply. Now why is that? The basic reason for that is that you wanted to limit... First you wanted to riot take full ownership of the floodplain. You were going to lower that to merely an easement. And then you said that you wanted to put a restriction on the easement that the public couldn't enter. If the park, and park plans of course requires public access to the floodplain, and so you had here a conflict. I think you have a fundamental.. problem hire and you need to What you have in the record doesn't suffice. One instance is that the 1991 order that you already ' issued for the Dolan case, you determined that the parks plan did apply. And you did not appeal that. You did not seek to change that. I think you do have a waiver problem. Also the Comprehensive Plan provisions, and I've identified those in my memorandum, I won't go into those in massive detail. But they are there. I feel that those plan provisions clearly, clearly identify that, that the floodplain is for recreational purposes and specifically uses that language and identifies that ped recreation is for parks and it identifies ultimately the park plan and specifically Fanno Creek Park Plan. So, again, I think there's a problem there. Now dealing with the floodplain (inaudible) again, the City, I feel, has failed to establish why - and, and this is really fundamental. And, and, and I don't mean to degrade the charts and all the electronic media that you've seen and presentation by the City Attorney. But there's a preliminary question that was never even answered. And this preliminary question is what the United Supreme Court and Justice Rendquist was telling you. You have to say why you need to own this. Can you accomplish your public purpose without ownership? You have nothing in the record explaining that. And worse, you have no evidence in the record for the necessity of ownership. And to give you an example, your own ordinance states, part of the Comprehensive Plan states "The City of Tigard currently has ordinances, policies, standards within the Tigard Community Development Plan which provides adequate controls for the floodplain areas." I, I have a hard time understanding how you're going to then jump into public ownership when you already state clearly that you don't need public ownership to I accomplish all of the public interests. Now contrary to what Tim was saying. He says the first PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 23 test of the Nolan, it's not Dolan, the Nolan case doesn't apply here because it's given you have the public interest satisfied. Your alternate... The circumstances of the first Dolan. You altered it by this proposed change. Believe me, it resurrects the first test as well. And I don't think you need it. I think in essence that pretty well covers the, the highlights of what I wanted to raise from the memorandum. But I'd like to go the traffic study by having Dick Woelk come up and make his-presentation, and then when he's completed... Mayor Nicoli: Mr. Shonkwiler? Mr. Shonkwiler: ...when he's concluded, I'd like to come back and make a summary on how I... This could be resolved and hopefully that'll conclude this. Is there any questions from my initial...? Coun. Scheckla: I have one question. On that warehouse on 72nd Avenue, on 120,000 square feet. What year was that granted, do you know? Mr. Shonkwiler: 199... it was approved,in 1991. It was just about around the same time the Dolan approval was. CiDun. Scheckla: Are you saying there were no obligations as part of that for... Mr. Shonkwiler: That's correct. Coun. Scheckla: drainage and that? Mr. Shonkwiler: That's correct. You'll find the item Exhibit I, yes, Exhibit I... Coun. Scheckla: Okay. Mr. Shonkwiler: in that package. Coun. Scheckla: 1991? PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 24 1:11'' 'I 1, PAIN ilips MEN& iii Mr. Shonkwiler: Yes. It was also lZ or 13 other ones that were very similar but what I found the most startling about the 72rid one is the storm drainage question. They're dumping innumerable more times storm drainage into Eanno Creek than we ever dream of and yet that's stated right there. Coun. Scheckla: what, what happened during this- In 1991, what, what month? Mr. Shonkwiler: Well, I probably could find it for you. If you'll bear with me here, I'm sorry. Coun. Scheckla: Well, I, I can look at leisure if we have it here, look at that. Mr. Shonkwiler: Is this the one.? This is it. It is SDR 91-0007. And was not the Dolan 0005? So it was two immediately after the Down decision. It was the second decision after- the Dolan decision. Mayor Nicoli: Mr. Shonkwiler, let me ask you one question. We're going to make a request of all the people that are providing information to us on that on the City's side to come back to our next meeting. I'd like to ask you... Can we ask and request the same of you? That any information from anyone this evening from the applicant's side, can we get them back in two weeks or whenever we hold our next meeting to ask questions of those individuals? Mr. Shonkwiler: I believe so. Mayor Nicoli: Okay. Mr. Shonkwiler: The, the only hesitancy I have is, as, as you know we're, we're in the land use aspect. We may have some conflicts (inaudible) so if we can work that out, I think we can solve the problem. Mayor Nicoli: Okay. Very good. Okay. Thank you. Mr. Woelk: Mr. Mayor and Council, my name is Dick Woelk. W.-O- E-L-K. I'm a principal with Associated Transportation Engineering and Planning, 4040 Douglas Way, Lake Oswego. My purpose here is PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 25 1 gas WEN M M basically to talk about traffic. I'm a registered professional traffic engineer in the State of Oregon. I've been doing private consulting work since 1978. I've been in the industry since 1970. So I've been around for some time. The purpose of my being here are twofold. First is to talk about trip generation. Number one, and number two is to talk about the staff's application of that trap generation. ti Basically the Institute of Traffic Engineers produces a very large volume of data called the Trip Generation Manual. And most recent edition is the fifth edition in 1991. That book weighs about six and a half pounds and encompasses hundreds and 4 hundreds of land use designations. Those land use designations range from single family residential all the way up to shopping centers and fast food restaurant. And included in that Trip Generation Manual is a, is a category called hardware paint store. And the description of the hardware paint store is very bland. They say that it's a free standing building. And that's about all. The problem with the ITE Trip Generation Manual category 816 or hardware paint store, is that it's based upon three studies done sometime between 1960 and 1970. There's no correlation between the ITE Trip Generation Manual section 816 hardware paint store and A-Boy Plumbing. I was commissioned by Mr. Dolan to prepare a statistical analysis comparaitable, comparable to what ITE produces for A-Boy Plumbing stores. I'd like to read one quote from the ITE Trip Generation Manual, p. I-2, that's talking about the use of this manual. And it says "Variations in trip generation characteristics for a land use exist." Meaning the different land uses have different trip generation rates. "Users of this report should also exercise extreme caution when utilizing statistics that are developed from a small number of studies or when the data points are widely scattered on.the chart." And basically what, what that means, is the more studies you have, not being a mathematician or a statiscian. What that generally means is the more studies you have the more statistically accurate your data becomes. If you base your determination on one or two studies, that statistical correlation doesn't exist. Basically what we did in... I hired a professional traffic counting firm to do this. I did not do it PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 26 X 1,1:11 111111% Fil: MWA s1o myself, thank goodness. We provide or Mr. Dolan provided us a list of all of their stores. We picked four stores at random. The four stores encompassed in the Portland metropolitan area were Hillsboro which had a store footage of 15,000 square feet Beaverton which was 9,200 square feet; Vancouver, WA, which was by far the largest s tore of 20,000 square and the Tigard store on Main Street at 9,700. Basically what we did waa we positioned one person, on a rotating basis, in or on the site at each one of those stores for seven days, Sunday through Sunday, Sunday through Saturday,. during normal working hours. That's approximately 11 hours a day, and those people recorded what time a person entered the parking lot or entered the store, what means of transportation they uried, and approximate time they left. If they could correlate between the type of car or whether they walked or, or rode a bicycle. All of that data was summarized and put into those four large volumes, and each one of those volumes is the complete study for each store. And it gives you a listing, actual data listings, of how many cars came in at a specific time of the day, the duration of that stay and the total number during the week broken down by vehicles - basically cars and trucks - pedestrians and bicyclists, and bus usage. One of the interesting things that we found is that there were no bus riders going into the plumbing store. If I could use the overhead projector... Mayor Nicoli: Mr. Woelk, when you move to the projector, take the microphone. I believe... Mr. Woelk: This one? Mayor Nicoli: Is that the one they need? Okay, yeah. Just take it with you. Your cord's tangled but you (inaudible). You can move further away. Mr. Woelk: Well, I think this will be sufficient. Now you have to break the microphone. Basically what this shows is a well, this is... Mr. Monahan: The trick is to pull that top part. Mr. Woelk: This one? Mr. Monahan: No. Mr. Woelk: This one. Ah, okay. This is the actual trip generation sheet for a hardware paint store that PUBLIC HEARING TRANSCRIPT - JUD7E 27, 1995 - PAGE 27 t came directly out of the ITE Trip Generation. Manual. And there's several items here that we need to talk about. First of all is what is called the average rate. And that is the average rate, meaning the number of trips per thousand feet of gross floor Grea. Meaning that if you have 1000 gross feet of fldor area in your store, you cauld expect it to generate 51.29 trips per day. One, one of the statistical analysis that we did is not only did we do weekday. Because Tvie had all 'of the data we did all of the gam... the whole gambit of trip generation rates. We did weekday P.M peak hour of the adjacent street traffic, PM peak hour of adjacent street traffic, AM on the generator - meaning the peak hours of the store, not associated with the roadway, the AM peak hour of the AM, and PM peak hour of the store, plus we did Saturday and Sunday. So we did the exact statistical analysis that ITE requires if I am going to submit this category to ITE for publication in the ITE Trip Generation Manual. Which is what we will. intend to do. So in the future we can get a plumbing store category listed in ITE Trip Generation Manual. The second item that I want to talk about is the results of that study in comparison to the ITE Trip Generation Manual. Mayor Nicoli: Should we get these exhibits? Mr. Woelk: If you'll notice in the ITE Trip Generation Manual on the hardware store, the R square down here at the bottom? That's a level of correspondence, meaning how good is your data. And if you notice they, they, they don't have one. Because it's listed in, in three Number of studies is only three. We have statistical data based on 20 studies. 20 individual stores. That's four stores, seven days a week. So you notice the statistical correlation down at the bottom is .99. So that means that the statistical correlation is very good because we have a lot of data to work with. Basically what this shows is a direct correlation between the size of the store and the number of trips that it generates. 26.44 trips per thousand square feet of gross floor area. That's virtually half of what the hardware paint store says. And that is what your staff used. I have no problem that. Your staff again... Tim, your City Attorney, mentioned in his preamble that you were going to hear a lot about methodology. The methodology that PUBLIC HEARING TRANSCRIPT - JUNE 27, 3.995 - PAGE 28 your traffic engineer used would be the same methodology that I would use in an evaluation such, as this. Everything that Mr. Larson has done is .within the realm of what we do every day in our protession. It's accepted practice. Trip generation studies are very expensive and time consuming. So there's not a whole lot of time to go out for a study that, for example, this one. If I were doing the same job Mr. Larson was doing, I would take the nearest applicable trip generation rate and use it. Even though there was no direct correlation between a hardware store and a plumbing store. The other_ issue that we want to talk about is what happens when you compare what staff did and what we have done.. Table 1 is a depiction of what And all of these are in the submittal that I provided tonight. So these are just excerpts from that. If. you notice these are the, all of the trip generation rates that we evaluated and summarized out of the data that we obtained. 't'hose are trip generation rates per thousand square feet of floor, of gross floor area for all of those categories. When you look at what happens when you apply those to the whole range of trip generation rates for the existing store of 9700 square feet, it generates 257 trips per thou, per day. 13 during the AM peak hour, 22 during the PM peak hour, 28 during the peak hour of the generator, meaning the store in the morning, and 30 in the afternoon. Saturday and Sunday at 244, 134. Then we extrapolated that and went to the proposed store of 17,600. Did the same thing and subtracted the two and here's the difference. The difference in square footage is 7900 square feet. The actual difference between what the proposed store will generate and what the existing store generates which is what is at issue here today, is exactly 206 cars, not 404. That has a very good statistical correlation. It's based upon actual fact and the data that is there. ` The-nekt issue that we have to talk about is what happens when you take that data and apply it to the tip funds. And this Table 3 is a comparison between the staff analysis and the actual data analysis. It shows... (inaudible) so you can see it... You can see that the rate of 404 trips per day based upon $121.87. That's the total full impact. And that dollar value comes from the Washington County ordinance for traffic impact fees. The tip PUBLIC HEARING TP.ANSCRIPT - JUNE 27, 1995 - PAGE 29 NO` NIMBUS IM-1 E, 1, l k 151'1`11511 R 1111~ :111 u$ MAIM assessment of $39 as described in Mr. Larson's letter, and you subtract the $1.5,762 and you come up with the $33,493 that Mr. Ramis indicated on his techno presentation. I'm afraid I'm a traffic engineer and I don't have all the technical stuff. The actual, based upon the actual trip generation rates, you can see that all of that comes down to an actual unmitigated impact cf $17,000, not $33,000. And the tip fee is $8000 and not $15,000. That is based on actual studies. Ms. Beery: Mr. Woelk, can I interrupt you for just a moment? Mr. Mayor, just for clarification and to assist with the record, those overheads, I believe, appear in the record as part of Exhibit 34E, Mr. Woelk's report. Mayor Nicoli: Are those scattered throughout those documents or are they Mr. Woelk: No, they're all lying in my summation letter that I gave to Council tonight. Mayor Nicoli: Okay. Very good. Mr. Woelk: Okay. Then we, then we go on to what is called, what Mr. Larson calls,, the mitigated impact. Meaning based upon a study done in the Portland metropolitan area, called the LOU Track Study and I'm not going to try to give you the total name from the acronym. It's, it, it says that with the pathway the pedestrian bicycle increase will reduce traffic congestion by approximately 9%. As I stated earlier, or John, Mr. Shonkwiler., indicated earlier that one of the studies that we... One portion of the study that we did was we counted pedestrian bicyclists that, that actually go to plumbing stores. And those ranged from 0% in Vancouver to 50 in the Tigard store. And so based upon the actual data that we collected over a one week period in May, and the actual number of persons that came in and out of those stores, 5% of the total number of trips that were generated by the Tigard store were from pedestrians and bicyclists. If you'll apply that 4% to the number of trips that the expansion will have, you're talking about 8 trips per day. That's going to reduce the trips generated from that store by 8 trips a day.' From 206 to 198. It's not a significant impact.. If you equate that to dollars, those 8 trips have a value, as stated by Mr. Larson in his letter to you, of $1255. This is considerably less than the $4100 PUBLIC HEARING TRANSCRIPT - ,TUNE 27, 1995 - PAGE 30 A e gilim easement is evaluated at. In closing I have two comments. First of all in any, in any traffic analysis, the basis for that traffic analysis is trip generation. You change one item of trip generation, you change the entire analysis. Excuse me. If you change the square footage of a building, either up or down, you increase or decrease the number of trips that that building is going to generate. On p. 12 of the staff report, and I quote. It's talking about ' roadway capacity. "The City has shown that this problem will be exacerbated by this project." Where and how? There has been no analysis to substantiate that. Other than the fact that you are going The store is going to add trips to the existing street system, there's been no analysis done of its impact. Impact is usually determined based upon levels of service at an intersection or a roadway section. That is usually done with analysis during the PM peak hour which is the highest traffic peak hour of the day. No analysis has been done. During the PM peak hour based upon the trips generation study that we've conducted, this store is going to add 18 trips during the PM peak hour. And I think Mr. Larson can back, can substantiate what-I'm going to say here. Is that 18, the addition of 18 trips, 9 in and'9 out, at any intersection will not affect its level of service or its capacity. Your have to have hundreds of vehicles per hour to effect the level of service at an intersection. And so to say that the addition of these 206 trips per day and 18 trips during the PM peak hour will greatly exacerbate the congestion problem that you have on city streets, I think, is a fallacy. And lastly, back to the methodology question. The City's methodology is consistent with what is done in the traffic engineering field. The analysis of the tip fee and the application of the tip fee to assess impact is done in virtually every,city or every jurisdiction in the Portland metropolitan area. While it's based on certain different dollar _ values because of capital improvement program, the methodology is virtually the same. Where City staff erred, and it's really not an error, it's an operating procedure that needs to be looked at. Is the fact that they used the wrong base information to establish what the impact is. Plumbing stores... Comparing plumbing stores such as PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 31 =moo I A-Boy's and a hardware paint store is sort of like trying to compare the office supply store downtown with Walmart. They are two different entities, two different types of generators, two different I types of trips. And so the analysis... One of the things that again, should have been a clue to the staff is the very low... the statistical analysis was clone along with the correlation between the statistics in a hardware paint store analysis should have given, turned on a little light and said we really have to be careful in using this. We should maybe do a. trip generation study of the plumbing store. Cause they are two entirely different items. Try to answer any questions that you have. Mayor Nicoli: Not at this time, thank you. Mr. Shor_kwiler: John Shonkwiler, back on the record. I'd like to make a conclusion about this, talk about again seeking a solution. I think that we're faced today, the City can and the Dolans, with a chance to solve this problem and hopefully mitigate the cost to both sides on this in the land use aspect of this. What the kay issue was, like I started out with. I think the kev issue that started back in 1991 was that the building was being interfered with. And that cut into the livelihood of the Dolans. And by, what appears to be the City's proposal to leave the -building alone, is a major step in my mind. As you've heard the traffic study, and I realize you are going to continue this and consider all of these items and take additional input from the staff. I think when you analyze it you will come to the same conclusion that our staff, our, our traffic study is an appropriate one, and that you can rely upon that and indeed, it is what the actual traffic generation will do for the'site. That leaves us then with the second major peg here in my mind. If you accept that, then you accept that the tip fees should be lowered to $8034, approximately that. It always is hinged upon when we get our final building permit, what is keyed at that time. I, we understand that. But somewhere in that close realm. Other than that, I think I speak favorably on behalf of the Dolans to say we could then live with the floodplain issue in this. I know that we have set forth a great deal of information regarding why the fundamentals of the analysis is in error and, and, and we can bypass that if we reach a solution that's FA PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 32 i almost, hopefully, of common ground here. With that I would say, I, I hope that you would accept these changes that we're proposing along with what you've already designated here for the building. And with that I think maybe we can start to draw a conclusion to this problem that exists between the City and the Volans. Is there any questions further of me? Coen. Scheckla: On the traffic survey. Was that done in May? The one at Beaverton, Vancouver, Tigard - all at the same time. Five days. Mr. Shonkwiler: That's correct. Coun. Scheckla: I mean seven days. Mr. Shonkwiler: That's right. On the record, that's correct. Mayor Nicoli: Mr. Sheckla, I'm sure, will have questions. I know I do but I want to wait until I hear all the testimony. And then I'll probably have both you and Mr. Ramis up for questions. Mr. Shonkwiler: Thank you. Mayor Nicoli: Okay. At this time, we're going to give an opportunity for proponents to testify. I have on my list one name. John Mr. Shonkwiler: Pardon me. If I may, just as a point of order. We "~tl had other people that were in Mayor Nicoli: Right. Mr. Shonkwiler: on our side. Are you Mayor Nicoli: Yeah. Mr. Shonkwiler: in order? Is that Mayor Nicoli: Well, no. I have on my list to hear from the proponents first and then the opponents. Ms. Beery: (inaudible) They're just not going to... PUBLIC HEARING TRANSCRIPT - JUNE 27, 3-995 - PAGE 33 e _ A ,I Elm Mayor Nicoli: Oh. Excuse me. Mr. Shonkwiler, was it your understanding that the other people that signed up were the applicants that wanted to speak now versus under the opponent? Mr. Shonkwiler: Yes, that was the original thought there. Y. Mayor Nicoli: Oh, okay. Mr. Shonkwiler: But we can take them in, in the ether order. That's fine with us. Whichever you want to do it. Mayor Nicoli.: Okay. I don't really care which... It really doesn't matter. If, if you'd like to go ahead now, :fine. I think I only have one speaker as a proponent and then there's all the opponents. man?: Yeah, I'll wrap it up. Why don't you guys Mayor Nicoli: Okay. Mr. Smith. Go ahead. Mr. Smith: For the record, my name is David Smith. I'm of the attorneys for the applicant, the Dolans. And, and as the City Attorney is well aware, I'm the attorney that represented the Dolans before the Supreme Court. I have already provided written materials,to you. Mr. Ramis has addressed those written materials very briefly in his remarks to you and I will comment even more briefly on his comments in the progress of my remarks. I would like to speak about the issue of methodology and tie my comments into both my written materials and into what Mr. Ramis said. Mr. Ramis is correct when he advised you that your interpretations of the Tigard City Code and the Tigard Comprehensive Plan are yours to make and those interpretations will not be disturbed. You are.the final arbiters of what any ambiguities in your own Code and plan mean unless those interpretations are, and to use the words of the courts, clearly wrong. Which is almost never. You're entitled to great deference in making those interpretations. I should qualify what Mr. Ramis told you. When it comes time to interpret the Washington County Code, you're entitled to no deference whatsoever. And that is because the Washington County Code was adopted by the Washington County Commissioners and th.e, the courts have held that it is the governing PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 34 i I ME body that's responsible for the adoption of legislative matters that is the ultimate arbiter of what those legislative enactments mean. So, as you know, in my written materials, I have, I have raised an issue with regard to transportation that says that the Washington County Code not only allows you to use the excellent data that's been provided by the applicant and his traffic engineer here this evening but in fact you are required to do so by the language of the Washington County Code. That's the same Code I might add, that your traffic engineer and your staff has chosen to rely on for its traffic impact fee analysis, I think as a bare minimum that it is incumbent upon the City, if it chooses not to follow the Washington County Code, to make a finding that explains why it does not feel it is bound by the Washington Code and explain that with its reasons. There is controlling case law that says that, that says its incumbent upon you to respond to such objections when they are raised. Similarly let me turn 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 for storm drainage improvements should be calculated. And at some point in time, the City spent what, what appeared to be a substantial sum of money to hire CH2M Hill to do an excellent master drainage plan. One that I commended with, with favor to the Supreme Court in oral argument as, as being a model of how one could calculate impacts on storm water runoff. What I read in the staff report it appears that the staff had chosen to ignore the master drainage plan's methodology completely. I don't know because I didn't do the calculations and of course I'm not a hydrologic engineer of what might happen if they did follow the methodology and what it might do to their calculations with regard to rough proportionality. But I know that provision is in the Comprehensive Plan. I note that the staff incorporates parts of the master drainage plan in its analysis but then proceeds to ignore the methodology that is included therein. And once again I would think it would be incumbent upon you, if you chose not to rely on that methodology, to explain in your findings why it is that that particular portion of your Comprehensive Plan is not relevant and why it does not,establish a controlling methodology to be employed by the staff. PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 35 I think I will, I will close my comments there. That, that Mr. R.amis, in his remarks to you, prefaced them by saying the question is who pays for growth. I noted on that, that excellent audiovisual presentation that he made that the value of the easements aggregate total is $5400. In fact, having ; employed the same engineer that the, the City has on occasion, and being aware of the costs associated with such elaborate analysis, I, I think I should pose the question of wouldn't it have been a lot cheaper to just condemn the property and pay $5400 and walk away from the whole project. That, that in the end, you are going to end up paying for growth just by paying for the analytical work that you have required to be done. I would add one point of clarification too. If I'm not mistaken, that Washington County Traffic impact fee comes right back into the City's pockets. As I read the Washington County traffic impact fee ordinance, if you adopt an ordinance implementing it, you get all the money. I have one other comment, with the regard to the fee in lieu of water quality. I think, not withstanding what Mr. Ramis says, that when you do your storm drainage work, that the staff needs to look at that because right in the preamble of the fee in lieu of water quality is'a statement that says "we could require onsite wired retention but we chose not too." This is in your 1991 findings in the, in the order that was adopted by the City. Well it's, it's obvious that there must be some crossover between what the costs are that would be associated with onsite water detention as one of the alternatives laid out by staff to mitigate storm water runoff, and a similar detention facility that's designed to insure water quality. If that's the case, then what's going on down there in the storm drain, if we pay the fee and let the water go in instead. I don't know what the USA is doing with it. I don't know what the formula for calculating it is. It's not in the record. It's not in the City's findings back in 1991. I was never able to tell the Supreme Court where it came from, where it was going or how big it was while it was on its way. But I think it's something that needs to be addressed here because if you're concluding that there are certain costs'that are generated by storm water runoff for this site, then it is obvious that the fee in lieu of water quality has got some involvement with those costs, and some sort of analysis needs to be made to take that fee into consideration. I don't know what PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 36 the answer is. And perhaps staff can tell you and me at the same time. With that I think I will conclude my remarks, unless that, that you or the members of the Council have any comments. I would remind you that when you make your decision, that it is essential that the decision be based on substantial evidence. Which I would commend to you the work that's been done by the Dolans' traffic engineer. And it was properly construed to be applicable law. And one element of the applicable law, and I'm not shy about telling you what the Supreme Court said because I thought the Supreme Court said what I asked them to say. And I quoted in m y written materials in p. 2, the quote from p. 2321 of the Supreme Court's opinion. And it says specifically "that the City has the burden of demonstrating that the additional number of vehicle and bicycle trips generated by the petitioner's proposed development reasonably relate to the City's -requirement for a pedestrian bicycle pathway." That sounds to me like bike riders from the store. That's the only way I can read it. I think it's pretty plain language. I think Chief Justice Rendquist meant what he said and I think that's part of the applicable law. And so I think in any sort of traffic analysis that's done, that analysis has got to take into account bicyclists coming to the store. And as far as know, in all the work that's been done, there ain't none. Mayor Nicoli: Are there any questions of Mr. Smith? Mr. Smith, I do have some questions. Mr. Smith: Yes, sir. Mayor Nicoli: You pointed out that we're not allowed to interpret ordinances adopted by Washington County. Mr. Smith: If, if I could respond to that. You certainly are allowed to interpret ordinances adopted by Washington County. It's just that Mr. Ramis told you that you would be accorded great deference in making those interpretations, and that's not true. You didn't write the Washington County Ordinance. You didn't adopt it. You're entitled to no deference in your interpretations of it, and if the case should go to the Land Use Board of Appeals, LUBA will feel perfectly free to substitute its judgment for yours on what the Washington County Code means. PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 37 Ron- RM-M - Mayor Nicoli: Okay. In the ease where the City also adopts the ordinance, does that make a difference in your understanding of how LUBA would look at our interpretation? Mr. Smith: It certainly could. And I have not read the City's ordinance, and if you have exactly the same language therein, you would pose an interesting question and one whi... where lawyers would probably take great delight. Mayor. Nicoli: Okay. Okay. Another question. Mr. Shonkwiler: Can, can I make a response to that as well? John Shonkwiler, back on the record. The problem is, is you adopted assumptions of the Washington County plan, and all of those assumptions still revert back to the adoption by Washington County. Mayor Nicoli: Excuse me, excuse me, John. Let's Mr. Shonkwiler: Where you made assumptions based upon the Washington County planning, you won't get any deference to that. I can tell you that right now. Mayor Nicoli: Okay. Okay. My, my next question has to do with the, the traffic generation that is called out in the tip ordinance that'you're referring to, that is... I believe most of those rates came from the same document that your traffic engineer used to generate his traffic counts. And if the... Let's assume for a second that we can't interpret those numbers, that is the 54 I believe roughly is what our traffic engineer used to calculate the 600 and whatever vehicles per hour, 400 vehicles per hour. You're stating that you feel an error was made that should be 27, but you're saying we don't have the ability to interpret that ordinance. So we can't take into account that, that we have that ability now to adjust, not only their tip fee, but also the amount of cars being generated on that site. I mean, if that's the argument I believe you are trying to put forth to us. And it's kind of a reverse of what Mr. Shonkwiler gave us. He wants us to believe it's in half. You're telling us now that no, we can't rely on that because we didn't write the ordinance. There... It's a County ordinance. 'Therefore we're stuck to the higher value. Mr. Smith: Let me... That's really a two part question and I'll address the two parts. The one is - let me be PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 38 perfectly clear. You can interpret anything you want to. That, the only question is what is the standard for review of your interpretation. And all. I'm advising you is that when you interpret the language of the Washington County ordinance, that your interpretation is no different from mine, and LUBA may very well agree with us, but on the other hand they may not. And they have the, the prerogative to make their interpretation. So it's... We're just not as, as harbored and as insulated in making interpretations when we're interpreting somebody else's legislative enactment. The second point I would make is that, that even though your interpretations are en, are entitled to no deference, you have an obligation to interpret the, the legislative enactments of higher levels of government in the process of making your land use decisions. Just like you have to make, interpret LCDC rules, and just like you have to interpret state statutes. 'And, there's nothing unusual about that. So, so you have a duty to apply the Washington County ordinance and to apply it properly. And my argument to you is the staff's report does not properly apply the Washington County Code. Quite simply, and this is the same thing that our traffic engineer told you. They identified the use as a general retail sales use. Your Director of Community Development, in his testimony to you here tonight identified this use as a general retail sales use. But if you look at those ITE trip bases tables that are give the staff the materials that accompanied the staff report, you will notice that the staff did not analyze the A-Boy store on the basis of a general retail sales use. They they analyzed it on the basis of a hardware and plumbing store. They picked the wrong entry. They admit it's a general retail sales use and, if you look in the table, it says that there, the trip generation basis is not available for a general retail sales use. If that's the case, what the Washington County Code tells the Director to do and Director includes Mr. Hendryx is to offer to the applicant, at his own expense, to do a site specific study. And that's what we have done and what I commend to you is that to properly construe the Washington County Code, you should rely on that and find that it is substantial. Mayor Nicoli: Very good. Thank you. okay. . PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 39 i Mr. Smith: I'm sorry if I confused you. Flayor Nicoli: Okay. Dorothy Cortfield, Cofield. Ms. Cofield: I'm Dorothy Cofield. I'm here as a legal ;inaudible) for Oregonians in Action. My address is 8255 SW Hunziker. Oregonians in Action Legal Center was the attorneys for the Dolans up to the U'.S. Supreme Court. Tim Ramis started his presentation. saying that this case was about who pays. This ease is not about who pays. If it were just about who pays, I think the Dolans would have paid $4000 for the bike path and $1300 for the drainage four or five years ago. This case is about fairness and fairly apportioning who pays. The Dolans held to this test, going all the way up to the U.S. Supreme Court to get this test. And I know that they are sitting here tonight wondering why they did that when they're watching this test be mangled in statistics and graphs and studies, and, and legal interpretations fighting back and forth. And I already see a great big LUBA case fighting about all these interpretations we've been talking about. And so what I think the City Council needs to do tonight is look at what the essence of what the U.S. Supreme Court was saying in its opinion. And it was saying that the impacts of development and the mitigation has to be directly proportionate. And when Tim Ramis says that it doesn't have to be a mathematical precision, he's correct. But the underlying numbers are wrong. If there are never going to be 404 cars that go to the A-Boy plumbing store, then your, your equation is never going to be right. And that's what we're saying. I think that our traffic engineer and our studies have shown that. We have a study that supports 200 or so cars a day. The burden is on the City to show what the impact will be and how the mitigation will met and if it is proportionate. And you heard in the beginning Tim Ramis telling you that initially back in 1991, the applicant never supplied a traffic impact study. After the U.S. Supreme Court decision came out, they said the burden is on the City. The city had a year to come up with the traffic impact study that was individualized determination of what the expansion of the A-Boy plumbing store would generate. They never did that. They relied on the same old 1991 figure. And I don't think that is fairness to this land owner. PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 40 I come back to our initial question of why we're here today. And it would be very easy for the Dolans right now to look at the city staff report now in 1995 and say, well, they made some concessions. They've moved the bike path. We can put our building in as we originally planned back in 1991. They're changing the fee dedication to an easement. You know, maybe we should go with that. The, the land isn't worth that much. $4000 for the -easement, $1500 for the drainage. But they're not willing to do that and they're not willing to do that because there are many people in the audience today that unfortunetly don't have the means that maybe the Dolans have to hire traffic engineer and teams of attorneys to fight this kind of fight. And. if they give up now, the next land owner might not be able to sit here and make sure that their land use decision is fair. So in conclusion, I would like to urge you to look very carefully at the evidence and to look at it in a common sense approach. Not with all this, this legalese and all these studies and graphs and look at what's really fair. What's this store going to generate and how should it be fairly mitigated? Prid therefore we urge you to not affirm the staff report. As Mr. Shonkwiler said, we, we see, that so far the City has made some concessions that are good concessions, and I urge you to go one step farther. Make the tip the appropriate amount, move the bike path so that the store can be built as originally planned, and then we'll work on the rest of the legal matters as they come up. Thank you. And if you have any questions, I'll be glad to answer them. Mayor Nicoli: Okay, thank you. Mr. Shonkwiler, is there anyone else that's from the applicant that would like to speak? Mr. Shonkwiler: No, that concludes our presentation. Mayor Nicoli: Okay. Very good. Okay. We will then move to the proponents. And on my list I have John. John, help with your last name. Mr. LeCavalier: LeCavalier. Mayor Nicoli: LeCavalier. Okay. Mr. LeCavalier: I I give my name as John LeCavalier. I'm :speaking PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 41 tonight as president of Fans of Fanno Creek, a non profit - we're all volunteer, 200 or so members strong. We're a group dedicated to the preservation and protection of the Fanno Creek watershed. I, 1 want to say first, I work a lot with high school biology students and, and science students. And you're not aware of the kind of presentations that are going on at the high school level. They're right with this one and this one or right with that one. So there's nothing really high tech about this that we aren't seeing coming up from the youngest kids now (inaudible) So I just thought a little education might be helpful here. We all are getting pushed a step up. So. So, anyway. I had no prepared comments tonight as I just found out on my voice mail this morning that this was happening. And I appreciated that I was able to be here. So I have some sort of haphazard responses here and I hope you can follow them. First, I can't speak for the Fan board to support the staff recommends, as we just, I just got it today. But I will do that and forward a letter to you all with that. My sense is that the Board probably would support that. I think Mr. Ramis, at least for me, articulated the issues and how the City has responded to the Court remand. I think the rough proportionality has been met. And I want to remind you that we didn't even talk about the non monetary kinds of values that are more difficult to deal with here. We've got the traffic and the storm water runoff, floodplains, healthy watersheds. Remember all of the aesthetic values, the habitat values, the biodiversity values. Some of those comments that seem to now becoming somewhat cliche but I hope not. I hope instead that they become somewhat, so much a part of how we talk about these issues now that they reflect for us a new way of thinking, a better way of thinking. And one of the big concerns that I have sitting here right now is that we saw a snapshot of the last four years and of this year or last year when these studies were done. I'd like to think we can learn from our mistakes, from our omissions and that we can move forward and think about the future, not base decisions now just on the data in front of us in the past. Greenspaces proposals in Measure 26-26, as you know, passed with. tremendous support. That will provide funds to continue to build trails and pathways such as this to provide people opportunities that they currently don't have. I would agree now that this bike path is isolated. PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 42 i It's not going to be and that's going to happen real fast. And as that network of trails and pathways develops we're going to see I think, much more ridership and, and pedestrian traffic on those paths. And we'll use those. We are getting smarter, we know the automobile is not going to take us into the future here full speed. We understand that mass transit is important. I was amazed there were no bus ridership visits to any of the A-Boy stores. I found that pretty interesting. I would guess that's going to change too. So I just hope you think a little bit about the future and the ways in which our transportation direction is going to change. I came all prepared to deal with the floodpla.in issue. So I dug out my Dolan file which Fan, as I think as you know, has been active with this for a number of years here as well. And Fan, I think, was really not in existence at the time. It had just started at the time at which this case first appeared. And had this come up now, and Fan's been in a position that we are currently in, and that is a position where I think we have a pretty good track record with dealing developers in trying to identify the key issues to protect the watershed, and then work around those. My sense is that we'd be fighting a much more tough battle for them to even allow non onsite detention. The fact that you guys are working in the creek anyway. Probably wouldn't. happen... wouldn't happen now. We work a lot with we work a lot with developers and with these kinds of projects. Most of the time you can't touch the right perian area. There's a 25 to 150 buffer zone required. And, and this is insite work. There's nothing onsite, at least as I understand it. I'm confused about that. Or might be confused about that. That's one fo the questions I wrote to myself. This is all in the creek. Now the work that we do and the work that jurisdictions are currently doing in the creek are to mitigate for overall water shed issues. That looking into replant that. Let's take a look at and we're, and Fan is currently involved in a number of those. Let's, let's deal with the kinds of things that you're talking about doing with Dolans for a non property specific act. That is, that is we're looking to improve the overall watershed. I think you've covered a great deal. I don't think... I think a lot has been given to these guys PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 43 ; =111111 111 a I Is to do their work. And I appreciate what they want and what, what, what their_ conceins are. I've heard them and they've heard mine. I would just remind you that it seems about equal to me, and I think the details can be worked out. I do share that concern about the data overwhelming the sort of overall issues here, and from a different point of view. That we have to remember there's a watershed here. And what happens here affects downstream. And what's happening upstream affects this site as well. Did moving the bike path.. I don't know. Can I, can I ask a question here? Did movine-3, the bike path move it into the floodplain or is it still outside the f loodplain? That is did allowing for the Mr. Hendrvx: The answer is it did not move any further to the - west. Mr. LeCavalier: So the building encroached upon the pathway? Okay. So you could ride along, you'll see the side... just be riding into the side of the building. Okay. I have a note here. As we learn more, we ask better questions. We learn from mistakes, omissions. This should not preclude future protection and enhancement. Two wrongs do not make a right. So let's move forward with that. I have a handout for you. Lest we... lest I assume that the floodplain issue is resolved. As you probably aware with the 1993 floods-in the midwest that all kinds of work has been done to reassess the ways in which we deal with floodplain issues. And I'm just gonna... I'll give you here an abstract from "Sharing the Challenge: Floodplain Management into the 21st Century." The report is generated through the Floodplain Management Review Committee. And that was chaired by Brigadier General Gerald Galloway of the Army Corps of Engineers. Some very interesting things to say about, not just national policy but local policy as well. I'm going to read just a little bit-from the comprehensive report. Ms. Beery: This will be Exhibit 39, Mr. Mayor. Mayor Nicoli: Okay. Thank you. Mr. LeCavalier: And I'm reading from the bottom of the first column, final paragraph. "Over the last 30 years the nation PUBLIC HEARING TRANSCRIPT- JUNE 27, 1995 - PAGE 44 1:§11 J 1! has learned that a technical floodplain management can reduce vulnerability to damages and create a balance among natural and human uses of floodplains and their related watersheds to meet both social and environmental goals. The nation, however, has not taken full advantage of this knowledge. The United States simply has lacked the focus and the intent to engage itself seriously in floodplain management. The 1993 flood has managed to focus attention on the floodplain and has provided the incentive for action. The Interagency Floodplain Management Review Committee proposes a better way to manage the floodplains. It begins by establishing that all levels of government, all businesses and all citizens have a stake in properly managing the floodplain. All of those who support risky behavior, either directly or indirectly, must share in floodplain management and in the costs of reducing that risk." And I'll leave the rest to you. I think that there's directly on the work that you have in front of,you here. And again has a long history and I won't take any more of your time. Again, a, a written support, I trust, will follow from the Fans organization forward directly so you have that on file. Thank you. Mayor Nicoli: Are there any questions? Coun. Scheckla: I, I have one., You said when the bike path was put in that there'd be more people using it, on the bike path. How do you define how many people will be going into the Dolans by using that bike path? How, s how can you designate that? You say there'll be more people on there. How can A Boy generate more people using that bike path if they're using it for recreation. How can you say they're going to all go into Dolans or what proportion that will? Mr. LeCavalier: Well, currently, given that it is somewhat isolated and it is a little more difficult.... It's tough to ride a bike around here. Lots of cars. Given the fact that the bike paths will eventually be more connected and more accessible, which I think was a point given before that they are not. Given that, in my... my personal expectation would be that more people would find it... easier more fun You know, maybe, a little bit more appropriate way to do your shopping. 4 Coun. Scheckla: Well, I, I feel more people will be using bike PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 45 III@ ERIC s 1glismi; 11 5101 paths. I agree with you there. But how do you deal with how many more people would be going into A-Boy? How... maybe not one of them would be. They may be going to other places and not... Mr. LeCavalier: Well, I would, I would . I would see an implied correlation, there. As there is more access for bicycles, there will be more opportunities to actually, instead of just recreationally bike, bike for that purpose to purchase food, clothing, plumbing- parts. Coun. Scheckla: Thank you. Mayor Nicoli: John, I have a question. You know the extent of Fanno Creek where it starts and, and where it ends and I'm going to ask you just a few questions. How many jurisdictions does that creek flow through that have direct control over that creek? From where it starts to where it ends. Mr. LeCavalier: Unified Sewage Agency, City of Portland, City of Beaverton, City of Tigard, Multnomah County, Washington County, Tualatin Hills Parks & Recreation District. That do it? I think that was six, seven? Mayor Nicoli: Seven, yeah. Mr. LeCavalier: And the USA question. Yeah, it would be-good to have the USA folks talk a little about the water quality quantity. I chose not to deal with that one. Mayor Nicoli: The Is it the intent of some or all of these organizations to develop a bike path or a pedestrian' path around the full extent of that creek from start to finish? Mr. LeCavalier: I don't think it would the intent of the terms of the jurisdictional goals directly. I think it would be safe to say that all jurisdiction's would be happy to see that occurring in jurisdictions. And the Metro government level probably has the most direct charge for looking at those long range and larger scale kinds of transportation issues. Mayor Nicoli: How many of the, let's say the cities that you PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 46 mentioned, have in the Comprehensive Flan or actively underway development of pathways along Fanno Creek? In either long range planning or short range planning? Mr. LeCavalier: I don't know for certain. I know the City of Portland and they're actively development, developing now the greenspaces, monies that are available. A full direct connection from the Greenway Park that currently exists in the City of Tigard all the way into town. All the way into downtown. So that's, I know that's being developed and is moving forward. That includes some Multnomah County sites, I '.know. I can't, I can't respond to the others, I'm not sure. Mayor Nicoli: Okay. Very good. Okay. Coun. Scheckla: One, one, one more question. Where Fanno Creek rolling into and emptying into the Tualatin River. In the future, do you anticipate a bike path going from there all the way along there or Mr. LeCavalier: T think so. I, I know the City of Durham is currently developing that parcel in there and I was It's been a year nor or so but I walked that site with those officials and they talked about a bike path that begins some connection. to, even the property just downstream from that. Coun. Scheckla: The reason I asked isn't there a log rollin marsh in high water come in there during the winter time. And wouldn't that be completely flooded over in that area? Mr. LeCavalier: Sure, there are some Yeah, there's all kinds of areas along the right perian zone that will be flooded. Coun. Scheckla: Oh. You put a bike path in. You don't want it to be flooded over, do you? Mr. LeCavalier: Well, there's kind of two questions there. The first implies that there is not, there are not areas in which you could stay out of the floodplain or out of what we might call the more calmly flooded areas PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 47 atom BMW of the creek in order to build a path. Given that you couldn't do that, the next question would be somewhat of the same question that's basically Volans, would putting in some kind of structure, this type of bike p,-.th within the floodplain cause problems for that floodplain? And would it have adverse affects on the water quality quantity of the creek? I don't know the answer to that. In some cases yes, in some cases, no. But the current bike path that's in Greenway Park is flooded over here, this year especially. There was a foot and a half of water over the entire bike path pedestrian walkway through Greenway from Scholls... that whole area about the middle between Scholls and, and Hall Boulevard. So, yeah, it sometimes gets flooded. Whether or not that would be something we want to do or not is another question. Mayor Nicoli: I'm going to ask, I guess, for your opinion. Bo you feel that bike paths are primarily there ji.ast for residential use and they don't belong in a retail area? Or even an industrial area? Because I know that Fanno Creek flows along both industrial property, commercial property as well as residential property. And do you feel that maybe the bike path should not be in commercial industrial areas? That it doesn't benefit those areas? Mr. LeCavalier: Bo you mean that, should the bike path run through the parking lots of commercial Mayor Nicoli: Yeah. Parking lot, landscaping whatever, you know. But, but are they appropriate... in other zones... Cause right now I, I believe - I don't know this to be a fact - but... A lot of our bike paths... We have several along Fanno Creek and those are located just in residential areas. And what I'm asking is, is there any reason that you feel that maybe a bike path of that nature doesn't belong in a commercial or industrial area? Mr. Cavalier: No. What we lack currently, and, and you probably should get a hold of the bike folks... the, the coalitions out there who are... who would just be going nuts, as you say, that they want, and I would personally want full bike access to nearly all places that I want to go. I ride a., bike a lot. I'm 43 years old. I have a son who just graduated from high school. You know, it's not just for a bunch of kids hanging out and cruising on their bikes. Bikes are an appropriate way to get around. I still go to the store on my bike a lot but not as.often as I PUBLIC HEARING TRANSCRIPT - =M 27, 1995 - PAGE 48 should. Okay, because I go up to Raleigh Hills and I go over there and it's, it's tough riding. The more access we have the better.. I think those :should be complete. 'T'here sh... That's my opinion. I think there should be complete access. Mayor-Nicoli: Okay. Mr.. Cavalier: And safety issues. Perhaps we need to talk further, I guess, about some of the issues. Mayor Nicoli: Okay. Any other questions? Thank you. Mr. Cavalier: Yeah, thank you for your time and for all the people's time, I know. That it's been a long one. Mayor Nicoli: Is there anyone else in the audience that did not have a chance to sign. up as a proponent and would like to address the Council? Okay. t=Ie'll move to the opponent. And first on my list is J.M. is it, is it Kurr? Mr. Kerr: Kair. Mayor Nicoli: Kair. Okay. Please step forward. Mr. Kerr: First I want to say that I agree with Dorothy. The question here is more of a question of fairness. But even beyond that it's, it's a question of morality. I have extremely deep feelings about land ownership. If you can see the medal that I'm wearing on my chest here. That's a Presidential Citation that was given to the men of the First Marine Division by President Roosevelt. You turn it over. On the backside of it, it says, "Freedom from fear." And I have construed that to also include freedom to own property, freedom from oppression. And the idea that anybody should have to give up private property without compensation., as described in our fifth amendment, is totally against my grain. That's not what I fought for over there. I don't have much more to say except that to remind each and everyone of you that... When you took your oath of office, you held up your hand and swore to uphold the Constitution of the United States. Am I right? A little while ago you The Pledge of Allegiance to our flag there. Freedom for all. And in your consideration of this question, I would hope that you would keep those two things in the back of your mind. Thank you. Mayor Nicoli: Mr. Kerr, could you spell your last name? PUBLIC HEARING TRANSCRIPT'- JUNE 27, 1995 - PAGE 49 t Mar. Kerr: Mayor Nicoli: Okav. Arid could you give us your street address? For the record. Mr. Kerr: 392.7 S. Fairway. It's on the record. Mayor Nicoli: Yes, okay. And in West Linn, Oregon. Mr. Kerr : Right.. Mayor Nicola..: Okay. Thank you. John, is it Hilley? Mr. Hilley: Yes. I think that I second what he said and everything that I wanted to say has been said, so I won't again take the time. Mayor Nicoli: Okay. Thank you, Mr. Hilley. Jack Polans. Mr. Polans: (Inaudible) turn this around. Mayor Nicoli: You want to record what you say, Jack? Mr. Polans: That (inaudible). Mayor Nicoli: Jack; is that a two minute tape? Mr. Polans: (Inaudible) Mayor Nicoli and Council members, my name's Jack Polans. And I live at 68000 SW Queen Victoria Place, City of King City. And I'd like the Mayor, Council members and people in the audience to know where I'm coming from. I've been a writer, some 4 years in the State of Oregon, mainly in the regional layer that's here that's under the operation of Metro, and the City of King City is where I reside. The City of Durham and the Tigard Water District Unincorporated as well as Tigard, we all have an intergovernmental water agreement, and what concerns the City of Tigard concerns us as well. ` I often wonder what this will eventually cost the City of Tigard. By the time it is completed. I would like to put forth an example in the... Tim Ramis, who was the City Attorney, near as I remember referred to a number of things and I don't want to go through everything. But there is for example, there was a claim that the Dolan people, that if they put in for the variance of the water coming down? And here again the City of Tigard made an error also with the Supreme Court. Told them that the rough proportional has to be considered by the City. That's an error and it did cost, cost the PUBLIC HEARING TRANSCRIPT - JUNE 27, 1.995 -.PAGE 50 I:! 1 1141: 14 .s Dolan people a considerable sum of money. What I wish to talk about with the Council members, a.ll the Council members need to know. I'm referring to the Supreme Court of the United State.. And this is June the 24th, 1994. And it refers to Chief ~TUSt4ce Rendquist delivering the opinion of the Court. "Petitioner challenges the decision of the Oregon Supreme Court which held the City of Tigard could condition the approval of a building permit and the dedication.of a portion of a property for flood control and traffic improvements." And then it calls 317 ORE 110 854B. Second, 437 1993. And says it granted the sanatorium to resolve the question left open by our decision in Nolan vexsus California Coastal Commission of what is the required degree of connection between the exactions imposed by the City and the projected impacts of the proposed development. So what I've done, since I'm not an attorney but a lay person. And l do not actually know what rough proportional means, although it seems everybody else in this room seems to know what it's about. And so I had to look it up. And it says "exaction" is a noun. It's a "tax, demand, the act of demanding withaauthority and compelling to pay or yield, a leveling or drawing by or a driving to comply as, the exaction of tribute or of obedience." We then have also what is called the "degree." It's a noun. Number 2: "a set or single moment, excuse me. A set or single movement, upward or downward, toward an end. Any of the successive steps or stages in a process or series." An& then we come into "connection" which is a noun. Number three: "A reaction," Under small letter b: "The logical linking together of words or ideas." Under small letter c: "The relation of a word, sentence, etcetera and so forth, to the surrounding text as it affects and influence the meaning context. An excessive demand. Extortion. Number three: "That which is exacted. An (inaudible) fee, a tax or any, or etcetera, etcetera so forth and so on." It appears from what this says. Now I'm not an attorney and I don't know what the law would interpret this in, but this is the English language. And I understand the English language and the grammar. And where it referred to what.is the required degree of connection between the exaction imposed by the City and the projected impacts of the proposed development appears to me to be a tax. PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 51 i And this is where I would like to ask these Council members here. Is that a true or can some.... or can an attorney tell me where the difference lies? Mayor Nicolj.: Jack, I don't think the Council's going to respond to any questions this evening. If you'd like to make a, a point, fine, but I don't think we're going to answer any questions. Mr. Polans: That's all. I have to say at this time. Mayor Nicoli: Okay. Thank you, Jack. Richard Mr. Breakiron: Breakiron. Mayor Nicoli: Breakiron, okay. Just as it's spelled. Mr. Breakiron: For the record, my name is Richard Breakiron. _I'm with J C Reeves Corporation. It's a development corporation. I've been with them for avear now. I'm new to'Oregon. Lived. in Oregon for a year. Address is 4850 SW Scholls Ferry Road, Portland, Oregon. I guess I'm about the second or third person that's not been a lawyer, not been an engineer here. And I guess really the crux of what I'm here for. Even though I lead a development organization now, I spent 16 years in the military before d retired and moved from Germany over to here. It amazes me that everybody's talking about what the problem is. The problem is that somebody wanted to build an expanded store four years ago, and four years later they've still haven't been able to it. That amazes me today. That amazes me. It's about ownership, about control, about fairness. It's. about people's property, about their livelihood. And it's really about the fact that to do anything, to take care of yourself now, to have a business, to make a business, you need engineers. You need lawyers. And even then you're not guaranteed anything. I think every City Council that I've gone to and talked to are made up of real people. The ones that I look at tonight, yourselves. You're real people. If this was your property, you would be incensed that it had to come to this. I've been there. (inaudible) I know there's a great deal of effort that's, that's protecting public good. Words that I, that I heard from the proponent. You know, another layperson said you cut them a great deal. And that's... quote. I don't think government is in the business of cutting deals with people. When PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 52 b you talk about fairness. Here are people that put in an application and asked to expand their building. Axed. yet if you look at two applications after them; a 120,000 square"foot building was allowed without objection. To hiave issues. The inconsistencies that every time I go to any of these meetings and any of the ordinances and all the jurisdictions that cover so many things. Your ordinances - the bike path has be in the fl.oodplain. I think, I think that's what somebody told me tonight. I think that's what I heard. Yet the environmentalist group will come up and say don't affect the floodplain. I also sit there and. go, wait a minute. If you put the bike path in there to begin with, you put more impervious surface on the ground. Cause I guess what, that floodplain is going to be impacted by an eight foot asphalt bike path. The project that I'm working on required, back in 1991, to have paths put into it. Into an open space so that the people in the residential neighborhood could get into it and have access to the forest area that was being left as greenspace. Now we get objected to now because wait a minute. We want to keep the forest for the animals. We don't want the paths there anymore. I mean this is what you constantly hear. And when you hear things about methodology, it, it's like methodology is critical. Whatever rules you set in to effect and what ever standards you feel there should be, understandable by lay people. They should be able to figure it out. They shouldn't need lawyers. They shouldn't need engineers. They should be able to figure it out on their own. To be able to put something in that makes sense. And not come before Council or come before a Planning Commission, and all of a sudden say well we're not so sure that that methodology that you used was quite right. Yeah, it's in our ordinances. Yeah, our staff recommended it to you but we're going to change the rules on you. Fairness. Four years and they haven't been able to expand their building. In the old days, bike paths and sidewalks got designed and they were Mayor Nicoli: Excuse me, just for a second. Okay, go ahead. Mr. Breakiron: In the old days, bike paths and sidewalks got designed by where people walked and where they rode. What made sense by common sense traffic. By where 'pedestrians wanted to go„ An interesting question is, if there was not a creek here, would you all PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 53 4 NOUN want a bike path there? Would this issue be at all. associated? I don't. think the bike path is associated with the business or with A-Boy. I don't see people going in their and taking their tubs out" on their 10 speed on their back and beating it home. It just doesn't irtake sense. That's the type of store visits. The bike.path that is being talked about that the City would like to have in its master plan for the parks, for recreation to bring people to the creek. And you can talk about the benefits or costs of all that all you want but that's the real connection. It doesn't have to do with A-Boy or with business and with shopping. They make up that. And I'm not saying that you all did because four years ago you all were probably outsiders totally uninterested in this issue perhaps. I guess every time I speak too, I get emotional. on these issues. Because I just... There's a common sense that in today's world there seems to be missing. And this is another clear case of it. And I think there are a lot of people That have spoken to you tonight that have spoken much, much more eloquently than I have. That are just basically trying to say. Is this what it's always going to come down to? You know, are the Dolans trying to take advantage of the City of Tigard or were they just trying to provide a service by making their store a little bit better? And help out the business community, help out people with some jobs and provide a service that people want. And yet somehow they get portrayed as some people just trying to take advantage of the system. And I guess I feel very strongly that there are at least, in my opinion, happy that there are people who can afford to make a stand, and make a decision and fight for a certain amount of fairness. It just is amazing to me that, that it often is that costly. And luckily, and I guess this the ones that you always.hear about. But luckily there are probably a lot of ones that go very smoothly. These are more comments... just probably food for thought. They aren't facts, they aren't figures, they're just... I sit back in amazement and try and figure it,out. So that's all I have. . Mayor Nicoli: Thank you. Are there any questions? Thank you, Richard. Is there anyone in the audience that did not have an opportunity to sign up as an opponent Aft that would like to address the Council? okay. With PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE,54 P~ t !ONE= that in mind, we will take a ten minute recess and come back and decide on a course of action for our next meeting. The Council recessed for a ten minute break. The Council reconvened. Mayor Nicoli: Let me propose a plan of action to the Council members. T_ have a list of things that I would like brought back to the next hearing date. That I'd like addressed by our staff and the applicant to prepare for. And so what I'm proposing is that we take an opportunity and individually to let them know of anything that we would like brought back, clarified issues, whatever, for our, our, our next meeting. My understanding is that we will leave the record open so they can submit new information to us, data, if they wish, and then close the hearing after we receive. Is, is that an appropriate course of action? Coun. Hawley: I certainly have a lot of questions in terms of the data and Mayor Nicoli: Okay. Coun. Hawley: Data permutations. I don't know Ms. Beerv: I couldn't hear very well. I'm just trying to clarify. Are you proposing a continuance of the hearing? From tonight, leaving, leaving the hearing itself open as opposed to leaving the record open? Mayor Nicoli: Well, tell me the difference real quick just so... Ms. Beery: Okay. A continuance would mean that the hearing itself would still be open. You could still accept testimony next time. Continuing it to a date certain then doesn't require us to provide new notice. It would put the folks on notice here that we would be accepting new testimony. I think that if you're going to be asking questions and asking for additional information a continuance of the ` hearing and leaving it open would be the most appropriate way to handle that. Mayor Nicoli: So a continuance and leaving it open, both. Ms. Beery: Well, a continuance of the hearing implies that the rec, that the hearing itself is still open as opposed to just the record being open. PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 55 Mayor_ Nicoli: Okay. Ms. Beery: Broader, it's a.broader concept. Mayor Nicoli: Very good. I guess I'm also proposing is not to go through the rebuttal phase tonight either. That is, I'm going to ask for some more information come back So after we hear it all, we'll go through rebuttal. Ms. Beery: That, that's what I think is implicit again in continuing the hearing. That would allow those later, those steps to occur following the additional evidence. Mayor Nicoli: Very good. Okay. With that in mind, I would like to ask Mr. Shonkwiler and Mr. Ramis to come up to the microphone and as we have questions, they can either field them or turn to one of their assistants or co-counsel, whatever the case may be, for, for assistance. Would any of the other Council members like to lead off or would you like me to? Okay. I would like some additional information. I believe there's some information that may be helpful and, at this point I'm not even sure if it's relevant or not, but some things that come into my mind after hearing everything this evening. First of all, with respect to Fanno Creek, my question is what is the current capacity of that creek at flood stage? That is cubic feet per second. Two, at buildout. That is, I, I recognize that what is today isn't what it's going to be in 20, or 40 years. What is that at buildout, CFS, going to be? Mr. Shonkwiler: Mr. Mayor, I can't tell you in terms of cubic feet per second. That may be in the record now. I can tell you in terms of floodplain elevation. At this particular location currently the flood plain elevation is 150 feet. Mayor Nicoli: Right. Mr. Shonkwiler: The level projected in our drainage study at-full buildout is five feet higher than that. 2.5 to five feet higher than- that . Mayor Nicoli: Okay. Can you, can you present additional information where you're getting that from? PUBLIC HEARING TRANSCRIPT - JUNE 2 1, 1995 - PAGE 56 RE, Mr. Shonkv+i ler : Sure. Mayor Nicoli: And, give you some CFS numbers. I mean that's that, that in itself says something t-hat... We're,, we're projecting at buildout the flood stage to be five foot higher. The first five foot, most of the goods in there are maybe forfeit, cause of their story. We have a lot of floods 20 to 40 years. Arid but I'm not saying that's relevant to what we're deciding tonight. But I, I do want some more _flow data on, on. that issue. Mr. Shonkwiler: Can I make two comments? Mayor Nicoli: Yes, sir. Mr. Shonkwiler: One of them, one is to say I think we need to relate this somewhat to the ordinance which is a 25 year event. That's, that's one item. And the other is, is that my understanding of the existing base data predates the Tualatin River requirements which, I think, a, a base of it is correct, in the sense, that you're not going to build two retention ponds on a piece of property that serves the same piece of water. There is some activity that's being imposed that was never contemplated by the base data. That irrevocably affects what the total storm flow's going to be at buildout. And, and somehow that has to be factored in. Mayor Nicoli: Okay. When... either one of you or both of you will need to bring that information back. Mr. Shonkwiler raised those issues, you know. The other question, the other question I have. In looking at the photographs that were presented earlier this evening, in fact at the very beginning of the hearing. Observing the, the existing Fanno Creek at that location, that is adjacent to the Dolan site. The banks on both sides of the creek do not appear to be natural banks. And with respect to the Dolan side, I am interested in knowing if at anytime, if there are records or knowledge of when that side was filled or if it was filled and to what extent it was filled. Other question. We talked about the standard. I use the word "standard." That the City applies for enforcement of its ordinances. And what I'm interested in is the... The studies that we have heard this evening all relate to a "plumbing and PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 57 i i all logo= IMS 1 1115 MRS electrical store" and the traffic generated. It is my understanding, and again, our staff - correct me if I'm wrong - that the application listed general commercial. That the application, excuse me.. The application - I'll quote - listed "general retail sales facility." Now that's what is on the application. I'm concerned about the "standard" that we have used in this City. As to how we deal with actual use versus general retail sales. For example, if that store were in eX4stence for two years and the Dolans decided to sell the store, and another user came in, in that zone, would we change the number of parking stalls that they would be required to provide if it was still a general sales use? Or would we change certain conditions under our, under our zoning =dinance? That is, I realize that we have more regulations than I care to even think about but how do we go about enforcing those? I take a look at all of the uses on Main Street and a certain number of those change every year. Do we go in each time, and I know - I'm not really referring now to a building code enforcement issue but to a zoning issue - and make them go through an entire approval process. Or if they stay under "general retail sales", they can go ahead and change the use. And the reason I, I'm concerned about that is that there's been a lot of emph, emphasis put on an electrical plumbing outlet, and not enough emphasis put on what their application actually said they were going to do on the site. And I, I, I j,ust want to know a little bit about past practices in this City, and, and how we have enforced that. It would help better define z.r the standard that we use. I have one other question I wanted to ask of both of you, and I'm going 11I look at my notes. Why don't I allow someone else to go ahead with their questions and I'll see if I can find that. affloRks Let me, let me go ahead and make one other quick question. Mr. Shonkwiler, earlier in your testimony, you indicated that you felt there was a resolution to the, to the dilemma that we have here this evening. It wasn't clear to me what that exact resolution was. Can you paraphrase it or put it in a certain... I mean. Maybe. Because you... I already spoke for half an'hour and I'm having a hard time keeping track of everything. AIIII Mr. Shonkwile.r: PUBLIC: HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 58' a 1 I, I can paraphrase it right now. Mayor Nicoli: Okay, go ahead. Mr. Shonkwiler: I, I think that Let me do a suumary first-. I think that we had a tremendous amount of issues that arose out of the first case that fed into the City's attempt to adjust to the requirements from the Supreme Court. All of us, and that was my fear, and has been my fear all along, all of us can be so wrapped up -in all of the elements, that, that it's just a lawyers case and it doesn't ever get back to what this all was to begin with. An application for a land use. Should be practical review rather than having the lawyers pick it to death. So going back to the concept of what is attempting to be accomplished here by both sides, I think the Dolans would be willing to feel comfortable with this land use decision being, allowing the building be undisturbed as far as the location of the bike path goes. Mayor Nicoli: Okay. Mr. Shonkwiler: Number two, they would then.live with the floodplain easement request that the City's made. Even though, like I said, I had... As a lawyer I have a lot fundamental questions about it. But from a practical aspect, I think the applicant is willing to live that, if the traffic evaluation shows what the real figures are for the uses at the site and it brings the tip fee down to around $8034. The combination of three things I think is the whole heart of this matter before you. I think the rest of it pretty well stands on its own. Mayor Nicoli: Okay. Very good. Coun. Hawley: Mr. Mayor? I'm sorry but I still don't understand. Mr. Shonkwiler, does that mean that the Dolans would be willing to accept the... both dedications? As the staff has presented the conditions. Mr. Shonkwiler: Yeah. Coun. Hawley: Okay, I just wanted to clarify that because that's what the conditions currently read. Thank you. Coun. Hunt: I'm going to follow up on that. I'd like to have PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 59 x~ ~1 4 you been a little more specific in this regard. Your objection to the staff report. 0 Man: I, I`think that's right. Coun. Hunt: If you tell us exactly which, which parts do you think should be changed on it? In other words, are you willing to allow the easement for the bicycle path or not? I'd, I'd like to have you tell me exactly which parts of this report you, you want us to change. Suggest we change. Mr. Shonkwiler: Well, first off, I received - I.don't know what time it was, it was in the afternoon a, a faxed map that pretty well portrays that. I was planning on coming here tonight and saying I want that change. And, and you've done that. Okay. So that would affect the staff... The way 1 read the staff report, it has several. provisions that say we have to move the building if it encroaches upon the pathway. So you still have some - by the way, I highly express inconsistencies in the language in the staff report. If you're going to base your findings on that, you're going to have to alter that to match this map now. Coun. Hunt: Assuming the map is what you would... Mr. Shonkwiler: Yes. And, and so specifically that basically I view it, as instead of us moving the building to orient to the pathway, the pathway is forming along the backside of the building, and that's acceptable to the Dolans. All right. Then, what you have proposed for the floodplain easement was, originally you asked for ownership of it and now you have downgraded that to merely an easement. And then you've also downgraded the easement to no public access to the floodplain. And given this change, and'given the change on the traffic impact, we'd be willing to accept the, the floodplain as you, as you portrayed it. And then the, the last major item is the traffic evaluation. And if, if the City's willing to accept that traffic evaluation, which we think is fully supportable and valid at 206 cars per day, and our tip fees equated to that would be $8034. And I think, I think we're, will be acceptable for that. You won't see an appeal to LUBA from us on that basis. Coun. Hunt: Would it be the traffic impact relates to the tip fees the main thing? rE . 1 PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 60 WIR SM 1! MR 41; 5-m FA11 I y Mr. Sh.onkwiler : Yes. Coun. Hunt : _ Okay. Thant; you. Mayor Nicoli: Question, Mr. Ramis. Just to follow up on Mr.. Hunt's questions. Will you be prepared to tell us at our next meeting what the process is for adjusting the tip traffic count? That is, is that done by our staff or is it done by the county staff or could it be done by either? Mr. Ramis: I'll do that. Mr. Shonkwiler: Just so I understand the question asked. When you mean adjusting the tip fees, what are you referring to? Mayor Nicoli: Well, you indicated that the traffic count was much lower based on the actual use. My understanding of the tip ordinance, tip ordinance is, is that it's an actual use ordinance. Okay? Whereas our zoning ordinance, in general, is... And, and your application was as general retail. And the tip fee is an actual use whereas our ordinance identifies general retail, and we apply standards, a lot of standards, not on actual use but on just the general use of the business. And, so that, that was the reason. My understanding is that you would like to be charged a tip fee on your actual use, and I believe there's a mechanism for reducing tip fees. And I think, based on your traffic studies, you've proven your point, at least on the tip as far as it is a reduction. I'm just not sure whether that's done at the City level or the County level. And if it's at the County level, we can't make any assurances. I've gone through that process before, but it's been quite a while ago. Mr. Ramis: I understand you'll be asking two related questions, and trying to clarify this. One is what is the process by which we would accomplish the shift in the basis for measuring the tip fee? And the second, how do we as a City deal with the fact that we've now approved a very limited use. That is a very single purpose use and how do we deal with that in the future. Mayor Nicoli: Well, but did we? Did the City approve a single use? Their application says one thing... Mr. Ramis: We need to one, did we and then two, if we make PUBLTC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 61 d A a judgement now based upon a limited use, how do we... hoer, how does that play out in terms of our ability in the future? Coun. Hawley: That's right. ?Mr. Shonkwiler: One, one other thing I, I hope that we don't lose track of hare, is that this is a two phase process. The first building is a, a building designed for a specific use, being a plumbing store. The second building would be general retail. And, and so, in, in the process of categorizing that let's, let's not lose sight of the fact that the, the site itself would be mixed use. And so if we, we need to deal with it from a realistic standpoint. Mayor Nicoli: Okay. My, my next comments relates to the traffic studies. I'm not going to ask for any additional information to come back but I will be able at the next meeting personally to ask a lot more questions. There was some confusion in my mind with all the numbers... were being thrown out and how your consultant, Mr. Shonkwiler, arrived at the lower value. And I'm just going to wait to go through his report. Then I'll probably have questions. But I don't have really anything more additional that needs to bring forward for my own use. Is there any other items that...? Coun. Rohlf: I think we have a lot of stuff to plough through before the next time. r .Mayor Nicoli: Okay. Now it was our intent to have the testimony . typed, in, in about a week. Is there... Okay. With that in mind, I'm going to look at the applicant and the City representative and the Council. When do we want to propose our next meeting? Our, our next Council date is the 11th, on a Council meeting. Do we want more time for us to review or do you need more time to prepare your responses to us? Now I'm looking for input from everybody here so we can mutually agree. Coun. Hawley: First of all my feeling is we should have as much written testimony as possible at least a week in advance of our meeting, so that we as a Council can actually look over.it. Mayor Nicoli: Agreed. Coun. Hawley: Is there a response to the questions that we've Aft, asked this evening, responses on rebuttal PUBLIC HEARING TRFNSCRIPT - JUNE 27, 1995 - PAGE 62 IMMUNE information (inaudible). I'd like to have that as much up front as possible. Mayor Nicoli: Okay. I, I would concur with that. Coun. Hawley: (inaudible) Coun.. Hunt: I was thinking two to three weeks, July 18. Mayor Nicoli: Fine. What's our Mr. Monahan: July 18th is our work session. Mayor Nicoli: Okay. Mr. Monahan: That's an evening we're going to have the presentation on the I-5/217 options, talk about school capacity, 99W transportation. We can more a couple of those items from the 18th. 25th agenda is very light right now. So we can use the 25th or we „ could even change the 25th meeting to the Aug, to the free meeting in August, if you'd like. But I think we can fit it in on the 18th. Mayor Nicoli: Okay. I'm more comfortable with the 18th. Coun. Hawley: That give everybody enough time? Mr. Monahan: It would give two weeks to respond in writing so the Council can review the materials. Mayor Nicoli: Mr. Shonkwiler, is that, is that agreeable to you? Mr. Ramis? Mr. Shonkwiler: Yes, we'll work on the schedule that meets the Council's needs. Mayor Nicoli: Let me just ask a quick question of Council members. Are we all going to be here on the 18th? Doffs anybody know of any conflicts at this time? Coun. Hunt: July the 18th. I have a calendar... There was a good chance that I will be gone that week. Mayor Nicoli: Okay. Coun. Hawley: (inaudible) Coun. Hunt: We're, we're trying to set some reunion plans and they're'not set. Mayor Nicoli: Okay, PUBLIC HEARING TRANSCRIPT - JUNE 27, 1995 - PAGE 63 Coun. Hunt: So I'm not... I'm sorry. Holding everybody up. That's the way it is. Mayor Nicoli: Okay. Yeah, I understand. Paul, will you know in a week your plans? Coun. Hunt: I'm supposed to know sometime after the ?9th. Mayor Nicoli: Okay. Do we need to set an exact date tonight? Mr. Monahan: I don't want to readvertise. I rope (inaudible). Coun. Hunt: Go ahead and set a date and then we might have to change. I'd rather do that. Mayor Nicoli: Okay. We'll set it for the 18th then, that's agreeable to all parties? Okay? Okay. Ms. Beery: Could we have a motion, Mr. Mayor? Mayor Nicoli: Oh, okay. Coun. Hawley: Well, Mr. Mayor, I move that we continue this hearing to the date certain of July 18, 1995. Coun. Rohlf: Second. Mayor Nicoli: All those in favor? Coun. Hawley: Aye. Coun. Rohlf: Aye. Mayor Nicoli: Aye. Coun. Hunt: Aye. Coun. Scheckla: Aye. Mayor Nicoli: All those opposed? Ms. Beery: And clarification for the audience. Council meeting will begin at 7:30 that evening? Mr. Monahan: That's correct. Mayor Nicoli: Yes. 7:30. Okay. I thank you. PUBLIC HEARING TRANSCRIPT JUNE 27, 1995 - PAGE 64 qQ1 (July 18, 1995 Meeting - continued from June 27, 1995) TI'Gs:' D CITE' COUNCIL IRANSCRIPT OF THE CONTINUATION OF PUBLIC`. HEARING FROM JUNE 27, 1995 (QUASI-JUDICIAL) SITE DEVELOPMENT REVIEW (SDR) 91-0'005/ VARIANCE (VAR) 91-0010 DOLAN/MENDE7 Mayor Nicoli: Okay, Agenda Item Number Five is a continuation of a public hearing from June 27, 1995 (Quasi- judicial) Site Development Review (SDR) 91- 0005/Variance 91-0010 Dolan/Mendez. To consider the U.S. Supreme Court remand of conditions related to the dedication of property for floociplain management and a bike path relating to the determination of the rough proportionality of those requirements. LOCATION: 12520 SW Main Street. Do I ;need to -read all of this? Mr. Coleman: No, I, we read in all the approval criteria at the last 'meeting so it's already in the record. Mayor Nicoli: Okay. Very good. I'll go ahead and reopen the public hearing. And I believe we're going to start out with a staff report. Arid it's my understanding that after our staff report, then we will let Mr. Shonkwiler and his group make a presentation. And then probably opening it up for questions, and this may change as we go. I believe the our City Attorney was thinking he'd like to make some statements before we start regarding the Mr. Coleman: What I want to do is just get the record up to Cate as far as the exhibits. We left off with Number 39. You... Since that time, the Council has received what I'll call Exhibit 40 which is the Council Agenda Summary for this public hearing item as Agenda Item 5 for the, this agenda meeting, the 7/18/95 agenda. On that summary sheet there's a list of items which you received. There are seven. And we will just assign Exhibit PUBLIC HEARING TRANSCRIPT - JULY 18, 1995 - PAGE 1 Numbers 41 through 47 to those items that are listed on that Agenda Summary Sheet. The first is the transcript of the June 27 hearing. ^he second would be 42, thug's a copy of the slide presented by the City Attorney at the June 27 hearing. 43 is the July 9, 1995 letter from John Shonkwiler with attachments. Number 44 becomes the June 27 letter from Associated Transportation Engineering and Planning to John Shonkwiler with attachments. Number Five. I'm sorry, 45. The June 29th letter from the Fans of Fanno Creek to the Mayor and Council. Number 46 is materials presented at the meeting by, at that June 27th meeting, by John Shonkwiler and it's entitled "Before the City Council of the City of Tigard." An.d there are attachments to that. Number 47 is a memorandum from Cathy Wheatley to Bill Monahan summarizing the information pertaining to past Council and Planning Commission meetings. Number 48 will be the July 11 supplemental staff report from the Planning staff to the City Council with attachments. Number 49 will be the July 13 memorandum to City Council from Tim Ramis responding to Council questions. And then Cathy Wheatley has two additional items. Number 50 will be a fax that was received from Sensible 'T'ransportation Options for People, a letter_ dated July the 18th to the Tigard City Council, one page from Loretta Picaro, Vice President. And so that's 50 and then 51 is a memorandum to Tim Ramis from Greg Barry. Subject is the Dolan property. The date is July 18. It is one page. Okay, we'll go ahead and just.... we've got four more items. And we'll give numbers to these. Number 52 will be a July 18 letter from Brian Martin to the Tigard City Council and interested parties. It's one page. Number 53 is a letter from Margie McCausland, M-C•C-A-U-S-L-A-N-D, dated 18th of July. To the Tigard City Council. That's one page. Number 54 is a one page letter from Jeff Paines to the Tigard City Council and Number 55... and that one is not dated. It's from Jeff Paines who lives in Tigard. Deals with the bike path, the bike trail dedication on A-Boy property. That's Number 54. Number 55 is from Dan Belasqued, B-E-L-A-S-Q-U-E-D. A one page letter. To whom it may concern, dated July 17. And that's everything we've received to date. Mayor Nicoli: Very good. Now, all that information has not been handed out yet, correct? CITY COUNCIL MEE'T'ING MINUTES - JULY 18,•1995 - PAGE 2 SWARM Mr. Monahan: We're going to make copies for you right now. Mayor Nicoli: Okay. Mr. Coleman: The items through Number 49 Mayor Nicoli: We have. k. Mr. Coleman: the Council received. The other items beginning 5c... Mayor Nicoli: were received this evening. Mr. Coleman: Right. Mayor Nicoli: Very good. Okay. I'll just start off with the same comments as I made last or three weeks ago. We're going to record the testimony again this evening. When the tape beeps, please stop talking until we flip the tape. Then you can go at it again. So with that, Mr. Ramis, it's all yours. Mr. Ramis: Thank you, Mr. Mayor. For your record, again. Tim Ramis, City Attorney, on behalf of the staff of the City. As you know this is the opportunity for the staff to present the response to some of the arguments made on behalf of the applicant at the last proceeding. With me tonight is Mr. Dave Larson and also Tim McGuire who are engineers with MacKenzie Engineering. I'll be giving a presentation and Mr. Larson will be as well. Mr. McGuire worked with the drainage issues and will be able to answer any questions you may have related to that work. I'd like to begin by reviewing two areas. First the legal claims presented by the applicant to the effect that they shouldn't be conditioned at all in this process. As you know in t~hese their legal memorandums they make the case that no condition should be attached dealing with traffic and runoff. So I'll respond to that claim. And then second, I'll discuss some of the evidence relating to the proportionality issue which, which I think is the central issue confronting you in this case. Mr. Larson will discuss a number of points that focus on the pedestrian issue which you heard debated in front of the Council up to now. We're not going to try this evening to respond to every single point. There's been a great deal of written presentation and material given to you. CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 3 ~Ni R gum, { It does a lot of that. I'll try to highlight some of the key issues that are being debated in this case. If you could get the lights. I think what we'll do first is review the claim that the applicant should not be conditioned in any way to deal- with runoff and with traffic impact. As you, as you know, during the course of the proceeding, we heard, we heard argument from the representative of Oregonians in Action. She essentially disputed our formulation of the issue before you and argued that the fundamental question confronting Council was fairness. That that's the issue. I'm not sure that's much different from the way we want to lay out the issue but for purposes of evaluating these, these claims, I think it's a, a reasonable standard for you to consider. So, in the, in the process of reviewing these issues, keep this issue of fairness in mind. You can see how the applicant's various claims measure up. The applicant begins their argument by admitting that there are certain impacts of the project. The first is a drainage impact. Their documentation admits .81 CFS units of impact on runoff. They then also admit to a traffic impact of over 26 trips per thousand square feet which their engineer calculates to have an economic impact of somewhere around $17,000 dollars. So these impacts are not disputed. But they raise a number of arguments that essentially say despite this impact, they should be excused. And the fundamental claim is that there are a number of legal reasons why the impact should be excused. And as I read them, they fall into three major categories. The first one being - "Let's make someone else pay for these impacts." The, there are several versions of this argument that were presented to you during the course of the hearing, but the first one came from an engineer who argued that the drainage impact was essentially no big deal, that it only represented the thickness of a few sheets of paper. Of course what was not mentioned is the thing that we all know, and that is that drainage impacts are cumulative. And if every project that comes to the City is permitted to not address drainage capacity because its impact is f only the thickness of a few sheets of paper, we eventually have a cumulative impact which will force the public to make substantial improvements. CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 4 b 111 ~ li~ !:I '1 12 111 d That is the point of our master drainage plan. Our master drainage plan proves that point in great detail. If we do not incrementally provide capacity, then the public will be left to do it later. As far as the sheets of paper argument is concerned, I think you can look at this box over he there, and see what happens with a few sheets of paper. And as the record indicates, it represents a few exhibits, a number of exhibits consisting of a. few sheets of paper and it has a cumulative impact, at least in this case, of a coup?e of feet. That same principle applies when we're talking about adding water to a drainage course. So one of the considerations I guess is whether that is a fair approach, to say Let's leave these costs to somebody else because our impact is small one incrementally. Also with respect to water, we have the argument made in the written submission to you that the City should provide the extra capacity. The City has in fact replaced a bridge. That bridge creates extra capacity. The applicant argues they should be able to use - d ffereup this capacity. The first problem of course is that the master drainage plan does not say replacing one bridge creates a significant amount of additional capacity. It says if you replace that bridge, a number of others and do charnel improvements, there's capacity. But I think that the, the key point is that even if the public chooses to spend money to provide a margin of safety, a margin of protection... The applicant himself still has every developer still. has the responsibility to deal with the capacity that they use up. To the extent that they consume capacity, there's a responsibility to replace it. And that's at the heart of the staff's recommendation. We've also heard a version of this "Let someone else do it" from my friend Mr. Woelk who rolls out the argument that says "You really shouldn't condition us because we haven't broken the system ' yet." Until we put, until somebody puts a project on the system that really drops the level of service to a low level, there shouldn't be a condition to deal with traffic. Again that argument suffers from the infirmity that it doesn't deal with cumulative impact. If every project was allowed to make that argument, eventually the public or else the last developer CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 5 F1 Milan who pu-t--the-d_11~ puts the trips on the system and broke the system, would get stuck with the cost of doing the, the improvement. Now the next broad category of argument that's raised is that the City lacks authority to protect taxpayer. That is, even though we have, according to the applicant. Even though they've admitted a level.of impact, they say - you heard the arguments that the City lacked legal authority to do anything about it. I think that these are not well. taken arguments. There are a number of problems with theca. But to give you an example, tho argument was made that there was no Code authority to condition at all. First of all, it's too late to raise that argument. That opportunity could have been raised in the numerous earli,:!r legal proceedings and was not. But more importantly it's contrary to the express language of our Code, and that language is cited in your staff report. We're satisfied there's clear legal authority of the City to impose the conditions. Another example of the lack of authority argument is the claim that you lack the ability, you lack the discretion to make choices among different methodologies. You heard the argument raised that the Council has TIF methodology an: you must follow it. Well that's true to the extent that you're establishing a TIF fee. But of course in this proceeding we're not determining the, the traffic impact fee. That's done at another time, at the building permit. Outside of the traffic impact, in the context of establishing exaction, you are not bound by the county ordinance. You are in control of choosing the methodologies that are used to evaluate proportionality. And the claim that you don't have that authority, I think is, is not well founded. A, a variation on that argument was the claim that since the county adopted the traffic impact fee. You may recall this argument - the traffic impact fee adopted by County dealing with 320 of the problem, leaving 68% of the problem to be dealt with. The argument was advanced to you by the applicant that you were pre-empted. You were precluded by the County's action from having your own process for dealing with that, remaining 68% of unaddressed impact. That is incorrect, and that ignores the history of the traffic impact fee at CITY COUNCIL MEETING MINUTE'S - JULY 1.8, 1995 - PAGE 6 gj! the city* and the county. Some of you may recall that at the time that Washington County adopted... At the time that Washington County adopted the traffic impact fee, the City already had one. And the City's plan at that time was to have the County traffic impact fee to deal with those items from the capital improvement plan that the County planned to finance, and to have a City fee to deal with more localized impacts. The development industry appeared in front of the City represented by, at that time, Charlie Hales who argued that there ought to be a three pronged approach. A--(1-n-au _ I An " proach that he calls a -three legged stool." That is that there ought to be a traffic impact-fee, County fee. There ought to be a public financing, a certain amount of money from, from taxes providing for infrastructure. And third, the City needed exactions. And he advocated not using the City's traffic impact fee, doing away with that and instead replacing it with dealing with those impacts through exactions. And that's the approach the City has used since that time. So the City has not been preempted from dealing with the unpaid for impact, the 680. It's, in fact, exercising the exaction process to deal with it. Now the next argument that you heard raised was that we're the only ones being conditioned. We're being singled out. This applicant's being singled out. And a number of cases were presented to you for review. The staff report analyzes those and I, I think that analysis :shows that in all of those cases the City in fact did impose conditions, did address the impact of drainage, and did address the impact on transportation. In each of those cases it's addressed in some detail. Now this slide... I don't intend that you have to read this in detail but what it illustrates is this. Each of the cases is listed in the left 4 hand column. In the center column there's an indication of whether or not a transportation condition was imposed to, to deal with the impact of, of, of traffic.. And the right hand column they identified if there was not a condition imposed. As you can see in each of those cases cited, there was a condition imposed dealing with transportation impacts. There's one exception. The one exception is a case where the City made a specific finding that CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 7 w~ 10!:! NEUMM off it: was not possible to proportionately impose a condition. And so the City in fact dial exactly what the Supreme Court has asked you to do. That is, make an individualized determination on the facts of an individual case and determine whether there can be a condition of proportionality. So I, I think these cases in fact illustrate that the City has been consistently applying the rule, and has applied the right rule. Now the final persuasion technique that's used in the, the written material I've seen is to sort of broadly brand the information presented to you with a pejorative name. And I think you may recall the comment that the City has created a, a , ruse and a sham to begin with. And I just wanted to illustrate for you that that argument was made not only here but at the United States Supreme Court. The Court responded to it, saying no such gimmicks are associated with this case. And the point I think is that it's quite clear that the City has the authority to impose the requirements. It has not created some kind of gimmick theory to support that. And. fundamentally then it's not whether or not we have the ability to impose the conditions. The question is what's the right condition? That's really the issue in the case. What's the proportional condition. What's the right extent of the condition to impose, given the admitted impact in this case? Now there is a.... I guess... if I could turn now to the, the question of what is a correct condition. That is what is a proportional condition. To begin with, with a discussion of drainage. You will recall that Mr. Smith in his testimony argued that we really don't have to go out and invent anything new. The City has an excellent drainage plan. His words. And he suggested that under that drainage plan we could simply use the information there and the methodology there to evaluate impact. And he suggested that we go to that analysis. And what happens when you go to that analysis is that you find in the plan that there is first of all, information on what it would cost to provide an adequate drainage system throughout Fanno Creek. And you could adjust that number based upon 1985, sorry, 1995 inflation. And what it tells you is that there's an overall cost of about $3.5 million dollars. of course once you got that, if you know the amount of the runoff: that's going to be added from development, you can do a simple calculation CITY COUNCIL 1vtFgTITIG "'f2Tl~TTLS JU.J 18 , 1995 - PAGE 8 11, IgIl! Now: MRS and find out for each unit of runoff what the cost is. Well, the total projected, increase in runoff is 1770 CFS, and the impact, if you calculate it out, is about $1907 dollars.per each additional unit of runoff. Now if you know that number and you can compute the amount of runoff from this subject property in this applicationi, you can then determine what the impact is in this application. The Dolans' expert predicts that the development will increase the runoff by .81 CFS. And if you do the mathematics you come out with an impact of $1608 dollars. And you can compare that to the impact on the applicant of the cost of the easement which is $1300 and you can see its not out of proportion. Now this is an indication., a graphic indication of the comparison. You can see the illustration of the amount of the easement on the left and the impact of the drainage plan analysis cost on the right. You can see that they're, they're not out of proportion to each other. The point of this exercise, I think, is to show that maybe there isn't just one proper methodology. There are a number of methodologies that can be used. But given that the exaction is rather low in its impact, and given that there is admittedly a substantial amount of runoff, all, any methodology that you chose is going to demonstrate that there's rough proportionality. Now if we can turn to the traffic issue. The you will recall that, that from the evidence Just kind of recap it... The impact of the exaction was in the $4000 to $4500 dollar range. And the, the consultant for the City, based upon projections in the trip manual, suggested that the cost impact to the city was about $33,000 dollars. Now ATEP disputed that and said no, we've done counts of, of specific A--Boy locations. And the impact is really about $17,000 dollars, about half of what the City predicted. Because from the staff point of view whether the number is $33,000 or $17,000 it is substantially more than the impact on the Dolans of the condition which is only in the four to five thousand dollar range. So even based upon the applicant's data, there's not a significant... there's not away to argue that it, that it's not proportional. Now the other problem with the evidence submitted by the applicant is that it addressed only one CITY COUNCIL MEETING MINUTES -,JULY lo, 1995 - PAGE 9 narrow use. In fact, the approval that was granted by the City is not for the narrow use of simply a plumbing electrical store. It is for a much broader category. The applicant applied for and received approval for the category in our Code called General Retail Sales. And that includes not just plumbing stores and not just hardware stores but also banks and other types of uses. This particular slide illustrates that the trip generation characteristics of those uses fall within a broad range. Some of them such as a bank, 140 trips per thousand square feat per day. Others like specialty retail at 40. The hardware and paint category, which our consultant, used at 51. He used that because in his opinion there was a range of uses and that was a, a fair illustration of a fair measure of the range. If you illustrate these in graph form, you can see the second one over in orange or in red there, is the ATEP analysis. On the right is what a bank would generate. And on the left is the hardware category that our consultant used. And as you can see it's not one of the least generating uses, and it's not one of the most generating uses. But it's a good indicator in the middle of the range. Now the question that was raised during some of the written submissions was this. Can we at this point amend the approval? We have an approval for a broad range of uses. Can we amend it now to just include the plumbing store as it currently exists?. And the answer to that, in our view, is no because it's too late in the process to do that, and that issue is not before you. The approval was granted for a particular category. It was not appealed. It became final. And the issue before you on remand from the Supreme Court is not what use of the land is to be permitted. The issue is a very narrow question. What evidence is there and does the evidence support the condition? That's a completely different issue. The issue of amending the, use would be one that you would address through a new application, not by trying to amend the approval at this point. Now, if we could have the, the lights. I'd like to run through for a minute a few of the other claims that relate to proportionality. Some of the ar9,1ments that you've heard and give you our approach to them. There was a claim that the calculation of learning the value of the half dedication was incorrect because the location of CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 10 I the uath was incorrect. That is the argument was made the path ought to be inside the f'!oodplain. That's the only place it could b&. Well, we disagree. The language of the plan does not restrir:t the location of the path to being only within floodolains. And I think that the slides you saw of this particular location show. you a eery steep bank, and show how impractical it would be to try to confine the path to the inside of the flood plain. Now also in connection with the location issue, there's a choice, to be made by the Council about which condition, if any, to impose relating to the path and its location and width. You had the original condition presented to you that portrayed a 15 foot path as originally imposed by the applic... by the decision. You had an alternative recommended by the staff ac the last hearing which would have reduced the width of the path in certain locations. And our recommendation is that you adopt the first option and not the second. The fundamental reason being that, even if you were to adopt the amended or the second version, or the narrower version, it would not result in a relocation of the building. Because the building's location is controlled by different conditions. a The condition before you is Condition #1, dealing with dedication. The location of the building is controlled by Condition #3, which is a setback condition. The setback condition was never appealed. Never has been. You can't find on it. r It is not before you. It is not within the proceeding here on remand, and is not an issue that the Supreme Court took up and therefore it is not an issue that was remanded back to you by the Supreme Court. And so even if you were to adopt the narrower path condition, it would not have the effect of changing the location of the building. Because the building's location would still be restricted by Condition #3. This particular proposal from the staff last time to, to narrow down the path was portrayed to you by the applicant as a City effort to reduce the damage or the harm to the Dolans. I don't believe that was a complete or correct characterization. I understood it to be an effort to accommodate a request of the applicant. And the problem that I see isthat we simply can't accommodate that request within this proceeding because of CITY COUNCIL MEETING MINUTES -'JULY 18, 1995 - PAGE 11 HIRING WAINSM Men, Condition #3 that limits the location of the building. The suggestion. that I make that you go with the first version of the condition rather than the second means that additional square footage would be exacted. And that will change the numeric analysis of the impact on the applicant from $4100, that was est~.mated by the appraiser, to $4500 dollars. That $400 dollar difference does not create a significant chancre in the analysis of the impact, given the magnitude of the cost involved. There was also a request for an adjustment to traffic impact fee. The fundamental point here is that the traffic impact fee is not a determination that's made by the City Council. Traffic impact frees are determined at building permit issuance. So you do not have before you the issue of the traffic impact fee. Now the findings in the original case address the traffic impact fee calculation but also clearly say that this is not a binding determination by the Council. So while you might want to include some discussion of the traffic impact fee in your findings, this is not the place where, where it's actually determined. You also heard an argument that the drainage plan was wrong in a couple of respects and there fore the calculations based upon it are wrong. Mr. Smith says the plan is excellent. Mr. Shonkwiler said no, it's wrong because it doesn't take into account upstream detention. I think this is a red herring. Even if upstream property owners are dealing with their problem, dealing with their capacity impact based upon providing onsite detention, it does not change the fact that each downstream developer has to also deal with their capacity. So to the extent you use up capacity in the system you need to provide capacity in the system. And the fact that others are doing it by other means upstream doesn't change that obligation or responsibility. There was also a claim that I mentioned previously that was simply wrong factually and that is that by building a new bridge, there was substantial capacity created. That's not borne out in the language of the, of the plan. And to conclude, I think it's clear you can look at these issue of proportionality through different methodologies but if you do, at least based upon the facts they have in the record at CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 12 this point, they all tend to support the staff's proposal and they tend to support the finding that there is rough proportionality in the case. My second conc'uding comment would be that I know you've been invited by the applicant to relax your standards, to compromise,. to reduce the conditions. And what was offered in exchange for that was a forbearance from suing you further. That's of course an attractive proposal. No question about it. To avoid further litigation is always attractive. The shortcoming I see though is that avoiding litigation is not a sufficient policy basis. It would be shifting costs from one applicant to another. It would be shifting costs from one applicant to the general public for taxes. The real challenge for the Council is to look at the standard that was imposed by the Supreme Court, and to look at the evidence in the record and to reach a decision about what the correct extent of the conditions should be and not horsetrading here based upon threats of litigation. Finally, I'll close by asking `.hat, again, that this box on the right which has a list of exhibits being put into the record, all of those items on the list included, including the maps in the, in the tube there. Mayor Nicoli: Any questions at this time of Mr. Ramis? Mr. Ramis: Would those be included in the record? Mr. Monahan: Mayor, do you want to accept these for the record? Mayor Nicoli: Oh, certainly. Mr. Ramis: And also, I, I didn't ask you to accept- those other items that I had read for the record but Mayor Nicoli: Certainly. We'll, we'll accept anything into the record. Coun. Scheckla: Is there a separate number for that? Mr. Coleman: There are... It is a list of 22 items. Mayor Nicoli: That's 49 through 55. Mr. Coleman: The first of the items would be number 56, and we'll just continue numerically through the 22 items that are on the list, and the title of the CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 13 lig- ~B 11, 11 1,4! its list is "Exhibits for July 18, 1995 Continued Hearing." It's a one page document with 28 typewritten entries and two handwritten entries. 21 and 22 are handwritten entries, referencing the McGuire memo and the Larson memo. Did you want me to read the rest of these or... If that's sufficient, I could identify them specifically... Mayor Nicoli: Are there copies in there for us to see names? Or... Mr. Coleman: (inaudible) Mr. Monahan: We'll provide copies for everyone. Mayor Nicoli: Okay, so copies will eventually catch up. Mr. Monahan: This is just for the record copies. Mayor Nicoli: Okay. Very good. Mr. Monahan: These are the record copies. Coun. Scheckla: Is there a separate number for this? Mayor Nicoli: We... They assign numbers to that information before we started this evening. That was the stuff he was referring to. Mr. Ramis: Mr. Mayor, I'd like Mr. Larson to h ave a chance to give some brief testimony and then we'd be happy to answer any questions. Mr. Coleman: I want to ask one question. The slides that you showed. Are they included in this? Mr_. Ramis: No but we, as we did previously will provide hard copies of those. Mr. Coleman: Okay. So would the slides then would get the I'll figure out a number for them and we'll identify them as... it would be the 23rd entry. Mayor Nicoli: Okay. Mr. Coleman: Thank you. Mayor Nicoli: These have just been put in so they're not from the prior record of events. Mr. Larson: Mr. Mayor, City Council, my name 'is Dave Larson. I'm a registered professional engineer with MacKenzie Engineering, Inc., in Portland. We just CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 14 REGIME MEMO= referred to the memoranda that were prepared by myself and also drainage memoranda prepared by Tim McGuire. Just cover the high points of that memorandum now and you'll receive a copy of that shortly. Tim spoke to the idea that... with regard to trip generation possibilities for this site, a wide range of uses are possible in the zone. Attached to my memoranda are a number of those uses that range anywhere from 30 tries per thousand square ' feet up to 738 trips per thousand square feet of building area. So you can see there's quite a range there. Our selection was for plumbing and, plumbing and hardware store. It seemed to miatch most closely the, the use proposed here. Based upon those possible uses, the City should consider the range of uses to assess the impact of the project. We're not bound simply to the plumbing use in examining those impacts. Another point to be made here is that clearly other stores in the A -Boy line offer more than just plumbing and electrical supplies. Given these factors, I believe that it's reasonable to assume that the project will generate 45 to 50 trips per thousand square feet per day. Next I'd like to just highlight the pathway issues. In Mr. Woe_lk's presentation at the last hearing, he agreed that an uncompleted pathway system such as we have here will provide a, a pedestrian environment factor of four to six which will'result in 6% of overall trip reduction. In fact, in their study they find that 5% of their customers arrive on foot or by bicycle. If I could move to the plan here, I think I can while not to, Terry? This is the City's pathway plan. You can see table Mr. Coleman: Just want to identify that. Mayor Nicoli: Oh. Excuse me, Dave. Just a sec. Mr. Coleman: Just want to identify which, which of the exhibits- that you're referring to and... Man: (inaudible) Mr. Coleman: And it's not been numbered. Mr. Ramis?: I don't believe it's been numbered, sorry. CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 15 b OEM= I i Mr. Coleman: Then we'll call that one 79. And that is why don't you just describe what it is. Mr. Larson: This is the, the City's inventory pathway plan that describes which parts of the pathway system are complete, both on street and off street pathways. And it also describes the sections that have been completed. Solid lines are the on street. Purple solid lines are the on street facilities that are available for use at this time. Purple dash are yet to be completed. The green are the off street or the, if you Will, parkway type pathways that... Again the solid lines are complete and the dash lines aren't complete. In order to achieve the, the, pedestrian environment factor of, that we presume in our., in our data, such that traffic by pedestrian and bicycles can reach a 14 to 15% of total trips, we need to complete critical elements of the 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 850 of all trips... 150 of all. trips to be accomplished by pedestrian or bike travel. One last point that was made at, at the hearing last time and, and Tim brushed on this a bit. He had... it was characterized to you that it, that it takes literally hundreds of cars to change a level of service. And in fact there aren't hundreds of cars in a peak hour period generated by this particular use. However it does... Each car that enters the system does have a measurable impact. Sometime it doesn't take a hundred, sometimes it takes 10 or 15 or 20. For instance at Pacific Highway, the p.m. peak hour at the eastern terminus of Main Street or Main Street across from Pacific highway, currently you're experiencing a level of service F. On the west terminus near, near the store, it's level of service C. To merely state that, that there is no impact at those locations because it's not changing the level of service. It is impacting in fact the volume capacity ratio which is measurable on a turf by turf basis. Those are the highlights of my memo. And I... answer any questions. Mayor Nicoli: Thank you, Dave. CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 16 AW 111510i ARM a Mr. Ramis: And that closes our presentation. We're happy to answer any questions that you have. Mayor Nicoli: I've•got several questions but I want to wait until after we hear the presentation of Mr. Shonkwiler. Mr. Ramis: Sure. Mayor Nicoli: And I don't know if other Council members want to do the same. Okay. Mr. Ramis: Thank you. Mayor Nicoli.: Okay. I believe now we're going to is there anyone else that wanted to give additional testimony as a proponent? Is that, is, is, is that how we agreed to handle it? We'll hear all the proponents and then Mr. Shonkwiler and those... Woman: (Inaudible) Mayor Nicoli: Okay. Is that is, is, is that fair, Mr. Shonkwiler? We hear all one side and then the other and then we're going to ask questions? Or would you like to give your presentation first? Mr. Shonkwiler: No, I think we can hear all of one side. Mayor Nicoli: Okay. Okay. Please step forward. Mr. Swindell: Mayor Nicoli, Members of the Council. My name is Charles Swindell. I'm the staff attorney for 1000 Friends of Oregon. And I know there have been new Council members to this body. 1000 Friends as you, some of you may know, submitted the friends of the court case on behalf of the City's decision in the, in the U.S. Supreme Court in conjunction with the (inaudible) Association and with the National Trust Trust for Historic Preservation. I was generally pleased with the The first point was with the result of the Supreme Court decision they came to agree with us by large in every respect except of course for one very important one, namely the individualized determination issue that you're grappling with in this hearing. I submitted a short, a two page written testimony for you to review. I think you'll find it CITE! COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 17 111111 J IN 111111!;!1 interesting, as I have the extent to which the, the Supreme Court decision really did talk very, very much from existing Oregon law that was in effect... governing your decision at the time and that has been well-established. I, I encourage you to go over that. I think you'll find it interesting. It's for that reason that 1000 Friends has contended that the real issue in this case is not legal but rather, as I wrote in an opinion pa.ece in the Oregonian, Dolan addresses a fundamental question of public policy. Who should bear the cost of the effects in growth and development: the developer or the public? As any of you, if you noticed the lead story in the Sunday's Oregonian, are aware of the impact of growth and essentially have to finance that growth are becoming very much the hatter of going concern to tax paying citizens, business leaders and of course to local governments as well. These are costs that arrive incrementally. They arrive with the approval of each individual application. This is something that you're seeing, not just here in Oregon, but all around the country. It was... for that reason it was no surprise to 1000 Friends last year to see certain groups are advocating that you wouldn't normally expect taking a lead role in advocating for sound land use planning. Such as the Bank of America in California joining forces with affordable housing, housing advocates and with (inaudible) advocacy groups in that state to say that the, the pattern of development that has been the hallmark of development in that state for the last five decades. That simply can't continue. It's too costly. It is too much of a burden on our community. To that extent, whether it's assessed directly to an individual project or if it's assessed generally to the public at large, ' it's ultimately borne by tax payers or by the consumer. Now some patterns are sustainable development patterns. A development pattern which includes professional and innovative transportation infrastructure is the key to controlling that expense. I'd like to return just briefly to the legal issues raised in this case. I'm very pleased that the City of Tigard or the consultants for Tigard using the land use transportation and air quality document as the way to justify its dedication in " this case. That, that document is the product of a very careful study and a very thoughtful analysis. I think it can serve a very good and CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 18 t . ti- 11 nlilwlin milll!MllIII MORE 1,1151 11 112115,11111 solid foundation for evidentiary support in this rase. I'm interested too in reading the notes from the last hearing and watching the proceadi.ng today, there's; there's a lot of technical detail. Any time you have a matter of this complex and kind of technical inquiry, there's going to be (inaudible) to an opinion. There's going to be differences of opinion about which is correct. And that's why I want to point to one very important aspect of the U.S. Supreme Court ruling in this case. In addition to a rough proportionality standard, they also have decided the qualifications for that, and they re... repeated that emphasis in their opinion and that is that a mathematical decision is not necessary. To that extent at least I was struck during the past legislative session in Salem. There's a lot of, lot of talk about what was involved and the importance of local control in, in land use planning. You're dealing with this application with a question of policy. You're not dealing with an issue of abusement of government power. And to the extent that we're talking about a matter of policy choice, and particularly who will bear the cost of development, the Supreme Court left that decision for you in, in the exercise of your local control. Also from the notes at the last meeting, I did hear, or I did pick up the tone of the arguments that were offered in opposition, namely along the line of property rights and the one with fairness. However as elected officials you have a responsibility not just to individual land owners. You also have a responsibility to the public, and _ in this case particularly the tax paying public. I thank you for the opportunity to comment. Mayor Nicoli: Thank you. Any questions? k ' [woman: (Inaudible) offer into submission? Mr. Swindell: It will be. Mr. Coleman: Number 8. And it's the 1000 Friends letter, Mr. Swindell, dated July 18. Mayor Nicoli: Okay, is there anyone else? Okay. i Mr. LeCavalier: Good evening, Mr. Mayor and Councilors. My name CITY COUNCIL MEETING MINU'T'ES - JULY 18, 1995 - PAGE 19 F is John LeCavalier. I'm the President:: of Fans of Fanno Creek, PO Box 85835 in Portland, I did testify last meeting and I don't... I signed up to make sure cause I wasn't sue,if you received. our formal documentation. if you have, and I trust you've read it with the nods. So thank you very much for that. I won't even reiterate those I think the comments have been made fairly well here tonight. Two quick points. Cumulative effects that Mr. Ramis pretty clearly articulated; I think. That is really important. The little bits do add up. And that upstream development and downstream development - all are part of the water shed and we all live in the watershed. And I also hope... sometimes I (inaudible) some of this stuff, but I do hope that there isn't too much pressure in terms of litigation issues here. But I trust that you have done the right thing. The Court had told you have the authority to do that. You have tremendous work. The staff has done tremendous work to support the remand issue. Pnd I hope you move forward and do the right thing with that. Thank you. Mayor Nicoli: Thank you, John. Is there anyone else that would like to address as a proponent? Ms. Alegeria: My name is Pam Alegeria. I'm vice president of the Willamette Pedestrian Coalition. We're an organization that seeks to promote a better pedes, pedestrian environments in the Portland metropolitan area.- I would like to advocate for the pedestrian and bicycle pathway. Talk about cumulative effects of drainage. Well there's cumulative effects... With every pathway or walkway that you put in, you're reducing traffic congestion. I also would like to think that sometimes walking, when we use the word "pathways" considered a recreational pastime rather than a transportation mode. And I think that needs to be changed in the thinking in that when you are considering the pedestrian bicycle pathway, that is is transportation infrastructure not a recreational path, and to view as such in terms of reducing traffic congestion now and in the future. And every infrastructure that you couldn't claim reduces the necessity for a short auto trip which is... which are increasingly causing your traffic problems throughout the country as well as in the t Tigard area. CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 20 MEMO` REM Mayor Nicoli: Could we... want you to spell your last name for the record, please? Msg. Alegeria: A--L-E-G-R--1-A. Mayor Nicoli: very good. Lo we have any questions? Woman: could you restate the name of your group? L Ms. Alegeria: Willamette Pedestrian Coalition. Mayor Nicol-: Thank you. Anyone else this evening that would like to speak as a proponent? Ms. Garrett: Hi, my name is Peggy Garrett. And I'm here primarily speaking as a long term resident of Tigard. I've lived in Tigard for 19 years. I'm an avid bicyclist, also pedestrian. And I'd like to make a statement. Actually Pam said the things I was going to say to, which is a plea to say that bicycles are also a method of transportation. And a viable alternative to the short use of the car. And I think that certainly has recreational. uses, the path we're talking about, but I could see for, again planning for the City of Tigard. I've lived here 19 years and seeing the traffic increases that we all see on Pacific Highway, and the need of streets in the area. And I think if bicycling was made safe we'll see a lot of people using bicycles to make short trips, especially places like small businesses - A-Boy - and post office, library, store. I'm (inaudible) Mayor Nicoli: Excuse me for just a second. We're going to Ms. Garrett: And I myself commute to work,and I think also we see other people commuting to work. Again a flexible path or a, a connected. I think we need obviously future planning. And I've certainly see an increase in bicycle use myself. If I gravel on my bicycle, I work in the community and make small trips in the city here. And I've never spoken here before but I feel really -:strongly about the issue and hope that Tigard will come, welcome c' bicycle use and make that (inaudible) a piece of the cost. Thank you. Mayor Nicoli: Thank you.. Any questions? Okay, thank you. Anyone else would like to speak as a proponent this evening? Okay. With that in mind... Mr. Coleman: Mayor, could I... CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 21 111~1111ipelfij gm ''I RON Mayor Nicoli: Oh. Mr.. Coleman: I need to ask Mr. k?amis one question. On the exhibit list that you provided. The, the two last memos, the McGuire memo and the Larson memo were not in the box, Do they have copies that they wanted to give? Mr.. Ramis : Yes. We're providing copies. Mr. Coleman:. All. right. Mayor Nicoli: Mr. Shonkwiler, would you mind if we took about, I'll say a 10 minute break. It'll probably result in a 15. I'm used to this. Mr. Shonkwiler: No, I don't. Mayor Nicoli: But give you time to, to prepare and give us a break. The meeting recessed at 8:56 p.m. The meeting reconvened at 9:17 p.m. Mr. Shonkwiler: Good evening, I'm John Shonkwiler for the record, representing the Dolans. I have a, a lette-r,to respond to Tim's comments, particularly the letter that he had submitted to you earlier in the evening. Evaluations of my prior (inaudible) So I have a response to that, and I'd like to submit that into the record. And I have copies for each of you. That can be for the record and this set... Mr. Coleman: Okay. Mr. Shonkwiler: Thanks. One, two, three, four, five, there you go. Mr. Coleman: Okay. Mr. Shonkwiler: Now rather than go into that in detail at the a moment, what I would like to do is to Mr. Coleman: Mr. Mayor, that'd be number... exhibit 81. Mayor Nicoli: Okay. Mr. Shonkwiler: I'd like to have Dick Woelk come up and discuss some of the transportation issues that were raised and then I'll come back and make some further comments at that time. Is that acceptable to you 1 CITY COUNCIL ?MEETING MINUTES - JULY 18, 1995 - PAGE 22 folks? Mayor Nicoli: Absolutely., , Mr. Woelk: Mr. Mayor and Council, my name is Dick Woelk. I'm a principal of Associated Transportation Engineering and Planning, 4040 Douglas Way, Lake Oswego, 97035. Mr. Ramis, in his presentation, said a few things that kind of were twisted around. First of all, not being an attorney and being a traffic engineer, I take . great concern at comments that say that we're already past the capacity of the road system is so small. We're not burdening the system. I believe that the hearing or remand is an issue of individual impacts. The individual impact of this store, as categorized by Mr. Ramis in the lard use application, was General Retail. It's my understanding that the City,. Coda does not have a category called "plumbing stores.," So therefore it must fall under a, a very large umbrella category of General Retail. And he brought up a whole range of uses that are allowed in that zone. But we're not talking about a range of uses. We're talking about a plumbing store. That's the only thing it is. With the expansion, that's the only think it will be is a plumbing store. And to, to take a generalization that says we're going to apply a broad brush of ranges for trip generations and apply it to a specific use is not what the ITE Trip Generation Manual's all about. The ITE Trip Generation Manual, as I read to you a, a little blurb out of it, at the hearing three weeks ago, and I'd like to review that again. It says on the ITE Trip Generation Manual, page I-2, "Variations in trip generations in trip generation characteristics for a land use do exist. Users of this report should also, should also extr... exercise extreme caution when utilizing statistics that are developed from a small number of studies or when data points are widely scattered." That means that, from a statistical standpoint, a hardware paint store trip generation rate used by the City as a comparative for a paint, or for a plumbing store, it has three studies. The trip generation study that we did for the A- Boy store is a study of 20 actual studies. So the comparative to use a small study is statistically wrong. ITE specifically says that if you do not CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 23 MIND! 'r have a comparable land use, you should do alternative trap generation studies to establish the use for that business or land use. The City's 'criteria or category of land use is it's called General Retail. And agreed, there are many multi-t-odes of uses that could be done in a general retail area. But we're talking about a specific use. Arad that specific use's impact on surrounding street system. The individual proportionality of the impact goes directly back to what we said all along. Mr. Dolan from day one has reiterated the fact that lie does not, or is ~ not trying to get out of paying his fair proportional share. And that`s the point I'm trying to make. Proportionally, the trip generation rate applied by the A-Boy stores is 26.52 trips per thousand square feet. Not 52. To apply a 52 point something trip generation rate to this expansion is not proportional to the exact impact of that expansion. So overall the problem that we're trying to point out here is that the basic findings and uses of the trip generation manual were not accurate. Therefore, his proportional impact is much less than described by staff. That's the point we're trying to make. We're not trying to get out of anything or pay for anything. We just want to pay for our proportional impact. .In my opinion, the 52.46 trips per thousand is ludicrous, when the established trip generation rate by the trip generation study that ATEP did is 27. Mr. Larson, in his testimony, indicated that we were... I think I should say Mr. Ramis indicated, that the impact fees were based... that you have no, no control over the impact fees established by Washington County. Granted you have no controls over the amount of the fee or $40 dollars per trip for a business or commercial area but you do have a control over the number of trips that will apply to the trip generation TIF fee that went to Washington County. When you say to Washington County that this business is going to generate 404 trips, they blanketly take that 404 trips and multiply it times 40. They don't do any analysis'to confirm whether or not that trip generation rate is the correct one or not. In a letter of... dated July 17th, from James Duckett, Development Services Technician, clearly indicates that you apply a trip generation land use from ITE of x number of trips per thousand square feet and then apply it to the $40 dollars CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 24 'i i per trip for, for a business and commercial. And that's what goes and is called a county wide traffic impact fee,,impact fee .worksheet. So you, city staff, say that the Dolan A-Boy store is going to generate 404 trips based on three nationwide studies. I say, based on 20 actual studies done in the Portland Metropolitan area, that they are only going to generate 26. But the impact fee is based on the 404, not the 25 per thousand. So we're talking about rough proportionality. That is not proportional. If you take a land use out of. ITE that is not comparable to its use, a plurnbincr store, is not proportional. You have to look at it from the exact business that's being used or proposed in that location. The A-soy s tore is existing. All we're doing is expanding it. So therefore the impact should be based upon a plumbing store, not a hardware paint store. Mr. Larson, in his, his presentation. I've worked with Dave for a lot of ,years. And I respect him immensely but the problem from day one with this application is that there was no traffic report conducted either by the City or by the applicant. The staff has gr_a... broad brushed the trip generation rate `co imply that there is a significant impact by this development on the surrounding street system. But there has been no actual study conducted to determine that. Mr. Larson indicated that Pacific Highway and Main Street operate at level of service F. And I concur. But what is the exact impact of the A-.Boy store on that intersection during the p.m. peak hour. Nobody's done any study to determine that. So it... so to sit and say and 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. What we have a problem with, what I have a problem with is to broad brush that impact and say your cumulative impact is much greater because you're a hardware paint store versus a plumbing store. That's the proportionality that I spoke to in the original hearing, and that's what I'm speaking to you today. Proportionality of impact is based upon actual impact, not perceived impact. Hardware paint store does not come anywhere close to the trip generation rate of an A-Boy plumbing store. So therefore the plumbing store should rule because it is a more accurate study than ITE. CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE. 25 1 51 I'M III lI I MEN= Washington County trip generation rates... or impact procedures allow you to do that. In Washington County if there is not an exact use in the ITE trip generation manual, you can produce your own trip generation rates and the County will concur. with that. If it's statistically accurate. You do the same thing. Lastly, Mr. Larson indicated that this was a critical link in the pathway to produce the 15% reduction in overall trips in the City. The question that I have if you look at the map, there is a existing bicycle path one block away. So why is this portion critical to the overall system when you have one block away a complete bicycle path already -Ln existence? Any questions? (inaudible) Coun. Scheckla: (inaudible) one block away bike path, where is it? Mr_. Larson: It's on Burnham. Just to the, I believe it's to the north of this site. It's one block away, it's already in place as shown on your map. Mayor Nicoli: Okay. Thank you. Mr. Shonkwiler: John Shonkwiler back at the microphone. Before I launch into what I really want to talk about, I'd like to touch on a few points that Tim raised that I think need immediate response so you can have these in perspective. First, Tim talked about the Dolans are asking for a free ride. That they have impacts on site and, and, and their point of view is that they shouldn't be responsible for'those impacts. That is not the position of the Dolans. It never has been the position of the Dolans. The position of the Dolans is they are willing to of course pay for the, be accountable for the actual impacts that they generate on the site. That's the whole point of this proceeding. What our challenge has been all along is that there are basic assumptions that the City has utilized in coming up with the reports that you are using to support your position. We have attacked those assumptions because we felt that those assumption were in error. By attacking those assumptions, that doesn't mean that we're saying if the Dolans have an actual impact, they shouldn't have to pay for it. We're saying that the justification,for the decision as presented so CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 26 f far are so faulty with the basic assumption that those can't be relied upon by the City. That's a far cry difference from what Tim was telling you. Now there was another issue that was raised and that was a, a document that was submitted dealing with those approvals that I had submitted to you in (inaudible) in 1991 and 1992. And I, I haven't seen his responses yet but I know where they're going because of I'm conversational what Tim was raising with vou. He's saving the City did address all of those impacts ?=or drainage and traffic. I only ask you to go look at those, because I looked at those very carefully. What he's doing is he's saying that every thing that the City did relating to sidewalks and street improvement fall under that category of traffic impact and therefore they are consistent with the Dolan decision. If you look at those decisions carefully you see that's not true. I already discussed that with you the last time I was before you. I said yes, in those decisions there was road widenings, improvements out front. There was requirements of a sidewalk out front, or a sidewalk leading from the frontage to the building. But so is teat required of the Dolans. The improvements are already in place along the road right in front of the Dolans' property. They are proposing a sidewalk up to their building. The question is not those traffic impacts. The question is what in addition is the City requiring of the Dolans that they're not requiring of everybody else? And of course that is the pathway and the greenway and those all those decisions I pointed out to you are valid. They are inconsistent with what is being proposed here for the Dolans. Now the issue of gimmick. If you will.remember carefully I did not say that storm water drainage is a gimmick, or that traffic generation is a gimmick, which is what the Supreme Court was talking about. They were saying that that public interest issue that the City was getting to look at. We're not talking about that. We're talking about gimmick or ruse here. We're talking about when the City said - oh we have the Supreme Court decision that says we went too far in the greenway, of, of taking that for public use only. And (inaudible) the question you're going to (inaudible) allowing full public access in there on the Dolans' property? CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 27 jqi~ x JR! So we're going to drop that issue of public access but nevertheless we're still going to put a pathway right next to it that gives full public access to that area in effect, and there's no mechanism that the City's proposing to }peep the public out of the greenway. You can't put a fence in the footprint. Therefore, as I said., that's a gimmick, it's a ruse, it's not for public access. It's just a manipulation that on paper appears to be satisfying what the Supreme Court was talking about. I stand by that, that still is a ruse. I, I'm sorry. Tim disagrees, but I, s'm convinced he's wrong. That is a ruse. It is a game. We are now talking about what lawyers do for., for playing the game of -semantics. Now, before I forget to (inaudible) items, I would like to point out that' =mould like to have a copy of all of the documents that were submitted today. And once I receive them... .I d,Dn't think a full blown continuance is necessary but I would like the record to be left open an additional seven days or so after that so I can respond to all of these documents. There were quite a few things that I know I have no knowledge of what was submitted. So I would ask for that. Then we come down to the missing link in Main Street which Dick Woelk has already talked about partially. I'd also point out there's another aspect that has never been addressed that I can see. But I think the Supreme Court was talking about as well. We now have the City Attorney is telling you - let's go back to 1991 in effect and play hard ball. Let's go and make the pass, control, let the building be and the whole works. And let's go ahead and fight World War III. We think after all the bombs are dropped and all the dust is settled, the attorneys are standing there and be able to tell you where you really stand. I would point out that part of that process is you've got to explain why the path has to be there. Why can't the path be on the north side of the building? Why can't the path come through the parking lot? Why is it so necessary that this building has to be interfered with? And I disagree with the condition at this stage of the petition three conclusively as we proposed it on this planning map here. And by the way I submitted into evidence that when we discussed this with the City, planners at the time we submitted that map to them as part of the idea of CITY COUNCIL MEETING MINUTES JULY 18, 1995 - PAGE 28 11,1 J 1, p1glig a, preliminary review for a building permit process. At no time did the City indicate that they were going to be a actual conflict. And I say actual conflict with any setbacks or any of that. That was never identified. Arid now what you're hearing today again is more semantics coming in to try to create support for a wea',::ened position. We're not playing a fun gauze with interpretation. Well, I'm here to talk about reality. And .I think there's a problem with that. In the past, which gets to the subject that I really want to talk about. It may be my last opportunity to talk to you about this. Another reason why I wanted to wait. I was not part of the original process, and you were not part of the original process here. When I was approached to be an attorney on this matter, the first thing I did was look at the case and figure out from the facts and background, is there a way to solve this without having World War III. Is there a way to do this without having all of the expenses arise for the City and for the applicant? And I felt that there was and I approached the City well over a half year ago to do that. I think that's significant. I contacted,the City. I called them. I set up the time to meet together. I reiterated that after we had our initial meeting that we need to - have more meetings to go forward to see if we can't find some solution to this. And basically the result of all that was we ended up making proposals to the City and, and we never got any response back from, other than - no, we're not going to accept that. We don't go any further from that. The point I'm making about this I think this is the last chance to resolve this matter- and make real headway for resolving this matter before everybody incurs the ultimate expense from World War III. And what do you get at the end of World War III? You have all the dust settles, you got a couple of attorneys standing there and they say okay, now let's look around and see who we bill for how much time this was. I'm not sure that that really does that. So I would ask you to reconsider the City Attorney's approach here. Now when I discussed this matter with the City Attorney just recently, he called me and said he wants to retract Exhibit 18. The City wants to recant that exhibit in effect and, and no longer CITY,COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 29 ENRON' ''I 5l: 1 Lim= support that position. Exhibit 18 is this large one that says the bike path would e reduced in width so that the building can remain where it is. The position rais!--d was he was afraid that that would weaken the case in circuit- court. And I thought this is really the point here that City -needs to take a look at. What really does all this mean? There's no real magic width with the proportionality, rough proportionality test. Sure lawyers can play with the details of it and we can talk about how many grains to.add to the scales but even anyone walking into a room can say I can understand proportionality, jest from a layman's point of view. And I think that really is most of the analysis that goes on in, in, in reaching a conclusion about rough proportionality. So the question here is first if the City is saying we're going to take the bike path, that tips the scale and you have to add to the other side of the scale on the City side to bring it into balance. The cost factors as they relate to public interest for the City. If the City says we're going to take more than a pathway, that tips the scale more. If the City says we're taking more than a pathway, and, as we've identified in our circuit court case, it interferes with the remaining value of the property elsewhere. Then that falls under a classic severance damaged area in combination along with those condemnations. That also is added into damage to the, to the landowner and tips the scale for them and requires even more balancing of (inaudible) costs out for the public interest to the City to bring it back to level. The point I'm raising is taking the hardball position is not making the City's case easier. It's making the City's case harder. I would also point out that the reality of what's going on here is you're going to have a bike path and pedestrian path there regardless of which position you take on how wide it is. You have to remember that. That's significant. It really therefore is not going to harm a circuit court case in reality. We're already maintaining a position of a pathway. The issue is, is the legality of the pathway going to be a legal issue in the circuit court. And to go back to what we proposed the last time we were here. If you, I guess, adopt Exhibit 18 and allow the pathway to be minimalized so it doesn't interfere with the building and you lower the TIFF fee, we told you that we're not going to appeal CITY CQUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 30 that. What do you get'by that? in, in the balance of what you're hearing from your own attorneys you have to listen to their advice, no question about it. The reason why I'm raising this, normally I wouldn't be discussing this. Just as I said, I Nee where this is all going. I see what the, impacts are going to be. I see an opportunity not to have both parties suffer e great deal of time and energy here as well expense and energy. On the other side, if it's forced on the Dolans, of course they're going to take that path. They're not going to back away from this matter. So the bottom line is what's the impacts going to be if you accept what we're proposing. Well, the first thing the (inaudible) says is you have a series of things again. First off, the issue of -rough proportionality is over. We're not challenging that before LUBA. We're not challenging that anywhere else. It's over. The, the (inaudible). The legality of the floodplain, the legality of the pathway is concluded. You also have the permanent takings issue will be over here. You're not being challenged on the legalities of those. You don't have a permanent taking. You also have any argument about a temporary taking will be made to a date certain for terminating. In other words, they're going to continue from this point forward. The risk you're facing if you take a hardball approach here is we go on appeal to the process of what's the basis that you have for rough proportionality if you do lose. The temporary taking damages continue, all that period of time. And right now you have an opportunity to shut them off if you take what I think is a reasonable approach. You also have no more separate standards issue. That's eliminated by (inaudible). You make vast inroads in reaching a solution here that I felt like I was bumping my head up against a concrete wall before. You, now that I'm talking to all of you for the first time on this, you all have a chance to solve this problem. What will be left if we end up at the circuit court? We'll be left with a monetary issue. How's that going to be handled? How's that normally handled? Well what's going to happen, as I'm sitting here, I know. Your attorney's handling that issue. He'll 'Es CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 31 I file motions because their decision is there is no such thing as temporary taking, or if there is, we're not entitled to the damages. The court will make those determinations and then we'll have another window. Because somebody's going to lose. on that issue. And whoever wins and whoever loses will then have an opportunity to get together to reach a solution for the monetary aspect. But if we have all of the issues in the hopper, this thing is never going to end until the whole thing's done. The classic World War I.II position. So the choice is yours of course. T'm not here to convince really one way or another on it. The reason why I'm saying is all this is I've been in this position in other circumstances with other cities before, and I have been glad, particularly in a few of those cases, where they were protracted litigation and, and aspects afterwards, that I dial say these things to the parties in advance so that they can make an informed decision. Once they go forward, then I, I don't have any problems fully advocating my clients' positions to them more fully. And I won't have somebody coming to me two years later, and say - well gosh, why didn't you tell us? Well, tonight is the time I told you so. Now, the final thought on that is we are at that point. I would strongly recommend, particularly if, if you leave the record open as I have requested for additional time. I strongly ask you to reconsider this. Because I do really believe you are at that point where you can solve this. And you can. I, I would think that an outside independent attorney would tell you when you total up the legal issues tonight, you could resolve probably three quarters of them. And then you would be down just to the things that are going to have to be resolved by a different (inaudible). So that's the thought I would leave you with. On.the issues that I would respond to, to Tim's comments tonight in the documents, I would rather reserve that time for the seven days when I would submit a response to those if that's acceptable to the City Council. Mayor Nicoli: Mr. Shonkwiler, I think after we've heard from any more opponents that we're going to have a discussion between the Council and you and Mr. Ramis and our legal counsel as to how we should move forward. And so, as far as making a decision .CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 32 s C EM I on the continuance, I don't think there's a problem with that, but we're going to resolve that. (inaudible) everybody will come to an agreement and move forward. Okay. Coun. Rohlf: One question. Mayor. Nicoli: Yes, sir. Coun. Rohlf: Mr. Shonkwiler, how would you intend to characterize these concessions, assuming that we decide to go with the Exhibit 16, and reduce the TIr fees? How would characterize those concessions in the subsequent court case? Mr. Shonkwiler: well, this is, this is an interesting point that Tim raised with. one on the -phone. And, and I've known Tim for manv vears. We're close friends. But I have to tell you I don't understand his position. I don't think there really is a concern there. We are not talking about agreeing one way or another to some fuzzy definition out there of what these things mean. What I am telling you tonight. I'm on the record telling you tonight. We have cause and effect. If you agree to these concessions, if you call them concessions. I honestly think this is the way this thing ought to be resolved. It's not a matter of concession. This is, this is proper fair thing to do. But that aside, these are (inaudible). You've got one, our admission here on the record that we will not appeal that. So those, those legal issues, all the ]regal issues related to rough proportionality will be over. The legality of the greenway, the legality of the pathway cannot be challenged. So that's the first effect that happens in the circuit court case. So that's cause and effect A. The next cause and effect will be that, as I identified to you, beside rough proportionality, you will. now terminate the claim for 'permanent taking. You can't have a permanent taking any more. I would be in essence amending the complaint to take the permanent taking aspects out of it. I would also be amending the complaint or it would be dropped on the severance damages issues. Those are eliminated as well. And another key factor for you is in effect is that the temporary taking issue will be resolved as of effectively this evening or whenever you make that decision. CITY COUNCIL MEETING MINU`rES - JULY 18, 1995 - PAGE 33 JR11 11 The only caveat I have with that is that it's really, it goes-to when we get our building permit. The idea is this is how it works. Again forgetting all th:e lawyer semantics and get down to the traffic counts. If the City approves what we're talking about, we've already submitted for a building permit. The City's come back and told us they needed some additional documentation but other than that it was no inherent problem. They were still•pegging the building permit to what you folks finally decided on the meeting here as a condition of the building permit. So once you make that decision and we're not challenging that, then the building permit could be issued once we solve the additional documentation (inaudible). Detailed. e Coun. Rohlf: No (inaudible) Mr. Shonkwiler: So nothing, nothing... I mean, I mean, you know overburdensome. So in a relatively short time period the Dolans could go forward on their building. Clearly, clearly then they won't continue (inaudible) after that claim. That's, that's the temporary taking, damage (inaudible). So in answer to your question there are point... cost to effect that. would be immediately in the loss of our resolve to the, to the City and to us. And I don't know how clearly you can get to that. And what would be the damage to the City? I really don't see that you're going to face any greater damage than you would be facing.... Let's put it this way, you're going to be,.facing far greater damage if, if the hardball approach is taken and we throw everything into the hopper and challenge it that way and go for a (inaudible). Coun. Rohlf: As I understand it, this process of what conditions will be on this property has, has evolved over time as this case has gone through the years. And, so then I have to have party to the start of this you know, all of us basically on the Council are playing catch up but it's my concern is that•I still want to call it a concession. Cause this concession can be characterized as an admission that the City was wrong or does this Council feel that there was something wrong in our original position if we move in your direction? And ends up in a lawsuit for damages. And I want to know whether or not you intend to characterize what I call concessions as some kind of an admission that we're wrong. CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 34 ORR 111111 11; '11 Mr. Shonkwiler: As I've already said, if we are not appealing the rough, proportionality, then it becomes legal. The floodplain designation, and the (inaudible) greenway designation and the pathway will be real. So as I said, I I don't understand 'rim's position. I probably, I have to say this. That number one, we are dealing with a situation today where it is so easy for lawyers to say, and. I'm not just talking about Tim - any lawyers under these circumstances - you're trying to justify a City's position here. And you will, you will make interpretations here, interpretations there and you will try to try to plug every door and all this kind of thing. And in the process you end up fighting a full war. And what I'm suggesting to you is that if, if it cannot be resolved, virtually every issue between the City and the Dolans, and believe me I feel like trying to do that. I have extended every possibility of trying to get to resolving this whole thing and, and reached a dead end. That's why I think tonight gives you a chance, and if you do that, then I think we can eliminate three quarters of the real legal issues here and get down to a mechanism that can handle the remaining issue. And that remaining issue, I wouldn't think is really of that great concern to this body at this time. Because that legal issue is going to go through its normal process. And what you do tonight, I don't think is going to jeopardize that. If you're asking me to say that the pathway has no effect on my client's property, well, that. is not the truth. Of course the pathway does. If you're asking me to say that the pathway is not really part of any legal issue that's been in the case all along, that wouldn't be the truth either. Of course it has been. But when we're talking about temporary taking, we're talking about essentially what the Dolans are out of pocket injury for all of this period of time since 1993 up until when this is no longer a burden on them. So if you're talking about just a pathway part of that, part of it is a history but it doesn't have to be a part of it in the future. See, that's the point. You can take care of the issue tonight, if you wanted to. Coun. Rohlf: I guess I still feel that the answer to my question- whether if we come your way on this, this will later be characterized as (inaudible) - Gee, the City must have thought they were wrong. Something is wrong with our basic analysis up CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 35 ~ Rum front. And that's what we see as trying to be fair or reasonable gets characterized as an admission to some other actions later or, in a, in an interpretation t'reat's beyond our control. Mr. Shonkwiler: will be specific if we reach the approach and it's resolved. I will be characterizing to the court that my clients are entitled to temporary damages, temporary taking damages. That's tied to the Supreme Court saying that their rights, their constitutional rights were violated.' So in that aspect, yes, I will be saying that to the court. What I'll be saying is that the pathway being reduced in width is an indication, that my clients' constitutional rights were violated. No, I won't be using that exactly. Bum I'm certainly free to talk about anything else. Coun. Rchlf: I, just I want to make it clear that there's a stumbling block, this $2 million dollar stumbling block in terms of reaching this reasonable agreement that: that we want to talk about. I realize it's a separate case but it still sits there. This is tax doll... or taxpayer dollars we're talking aboLit. Arid as elected officials and responsible for how those dollars get spent... Mr. Shonkwiler: And I understand that, and that's why I spoke to the City very early on. Because my concern, anti, and I'll give you the example of what has occurred to today. I don't have an exact figure. At some point in. time I know I will have an exact figure in a court proceeding. Because I think this is a viable point. If you were to total the amount o expense the City's gone through to date, and how much the Dolans have gone through to date, it would be enormous. But if you just took what the City has spent on these additional reports and I'd be thinking of dropping the case and put away only what you're already spent on this case, the question arises why didn't you just buy this property way back when? It would have been cheaper. I think common sense starts to raise that issue. And my concern, yes. I represent the Dolan.s. I also operate a business, a•s you know here, here in Tigard and, and I have some sense of affiliation ..here. And I've been before you many times in the past. The point I'm raising is, is that I think there's a chance to save public monies here, and start to reach a solution. If we go the alternative route of a full out warfare on all CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 36 issues, I know it's going to cost the City more. I can, Tim will-tell you that'he thinks the City isn't in the wrong. I'm telling you I think the City is wrong. There are different opinions there. Some day that will be resolved. If it turns out that I'm right:, then if you've made the a wrong decision it's going to cost you a heck of a lot more. And then somebody out there in the public's going to say - Gee, you could haves cut this cuff really with hardly any, if none, risk to you, why didn't you do it? think that issue will come back. to haunt you. So those are the kinds of things I think you ought to think about. Coun. Rohlf: I would just like to comment that I, I appreciate your approach that you've held on the case. You have tried to be reasonable. And I guess (inaudible) the Council. I think Council's tried to, to participate in a reasonable fashion, And obviously we haven't come to any accommodations because we're all still here. But, but I'd like to realize that this Council group has tried to find some reasonable, reasonable resolution to this problem also. Mr. Shonkwiler: And I understand that. And I understand that maybe I characterized If I was dealing with a body that had one head, that one head could maybe, make a decision and, and that's part of the problem. That's why I'm saying... is, is that justification after our heads, for the City Council to say we'll throw up their hands. We've got a part of this (inaudible) capability but we're not going to do a thing because we'd rather have the hands to think for itself. I think you can do something for yourself and narrow the issues down so that this gets into the (inaudible) more reasonably (inaudible). And, and more likely. to maybe reach a final solution. It is reasonable to everyone. (inaudible) Mayor Nicoli: Excuse me. Okay. Go ahead. Mr. Shonkwiler: (inaudible) negotiations in the past. If people do not feel they have to make a decision. They're never motivated to do that. And, and that's been a problem I think here, And if you make these decisions now, then the remaining things will have to be addressed and looked at from a real balanced approach, possibly for the first time. Coun. Hunt: I'd like to make one comment and follow up on exactly what Bob was saying. And that is that if CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 37 we divorce this action and the $2 million dollar action, we could settle in a few minutes time. But we can't. And I think that anything we do tonight we have to take into consideration our (inaudible) in the long run, what effect it's- going to have on (inaudible). So I, I don't think as far as resolving the problem of, of grand (inaudible) if it wasn't for the lawsuit. That could be handled, I think but it's the implications of all of this is flooded water and the whole thing. Mr. Shonkwiler: .And, and I don't debate that there's any (inaudible) to fully consider that. My position is and, I'm on the record here, that your realistic impact on the circuit court rase is' effectively nil. Now you can have other advice that takes a different point of view. I think you have to weigh that. The other thing I would say is Certainly the issue of trust. I'm on the record here. Think how that would look for instance, if, if you did grant these concessions and for instance we appealed to, to LUBA. We in essence are reneging on what we promised. A jury's going to look at that and'go - Why should we trust these people any longer? So I think you have realistic positions set here. This is not smoke and dance. And besides that's not the way I operate anyway. Coun. Rohl-4: I'd just like to add that I do see these as two separate issues. Politically. In terms of the (inaudible) and subsequent costs. I'm just concerned that if we decide rough proportionality means a narrow pathway and a lower TIF fee that it doesn't get recharacterized as something different later. Mr. Shonkwiler: As I said, on the record, narrowing the, the width of the pathway and lowering the TIF fees are not an issue that I will raise or the Dolans will raise before the circuit court as far as this issue of temporary takings. But~we will be raring temporary takings and I will take advantage. Mayor Nicoli: Very good. Any more questions? Mr. Coleman: Mr. Mayor, could I just ask one question to ' clarify something. You've made a representation that the Dolans would not take this matter to LUBA. There have representatives... The Oregonians in Action have made a presentation and CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 38 M1 Mr. Smith made a presentation representing we're riot sure exactly who. Mr. Shonkwiler: I, I am representing all parties, and all those parties that you have mentioned are mentioned in the lawsuit and what I'm saying tonight applies to everyone. Mr. Coleman: All right. Coun. Scheck.la: My, I have a question (inaudible) Mayor Nicoli: okay. Coun. Scheckl.a: I was wondering if you were going to present or whether Mr. Smith would come back later and interrogate one after another. Mr. Shonkwiler: o. Coun. Scheckla: But I think we are all here (inaudible) wanting to reach a fair decision, wanting to work with all parties involved, yet protect the City taxpayers also. Cause if we're going to bankrupt the City we might as well (inaudible). But (inaudible) a reality. We're, I think we're all reasonable people and I wish, and I'm sure all of us wish, we never had this dropped in our laps. I know for myself I would much rather do a lot (inaudible) the type of thing where it costs a lot of money and instead it was used for more worthwhile projects than for two heavyweights contenders fighting it out at the heavyweight title fight. And then after the smoke clears out to try to find out where the fighters stand. I wish this never came in here. Mr. Shonkwiler: And I fully agree with you and I would love nothing better than to get this matter resolved so that I can go work on other things to help people. I don't want to go through protracted fights unless I absolutely have to. Mayor Nicoli: okay. Is there anyone else this evening that would like to address the City Council as an opponent? okay. With that in mind, get two things. one, some of us may have some questions now that we've heard both sides again. The second part of that is that one side or the other or both have... There's been new information submitted this evening and they need time to respond to it. So the question becomes do we leave the record open like we did and continue CITY COUNCIL MEETING MINUTES - JULY 18, 1995-- PAGE 39 11111, ME I'll, this public hearing to a date certain or do we leave the record open and accept only written testimony. And... I don't know do we want to ask our a_uestions first or determine, that issue now? Coun. Rohlf: Mr. ahonkwiler :poke for wanting just written submittals to respond. I don't know ghat our attorney wants. (inaudible) Mr. Coleman: Your Honor, can I suggest that you run through your questions first? Mayor Nicoli: Okay. Mr. Coleman: Because based on your questions, the positions of the parties as far as how they want to respond mighs: change, after they hear your questions. Mayor Nicoli: Okay. Okay. Very good. Why don't I do this for expediency? Mr. Shonkwiler and Mr. Ramis, would you please come up and That, that doesn't mean that anyone else in the audience can't step forward and answer a question, but these two seem to have most of the answers. Even though they are not totally in agreement with each other. is it...? May I start out with some of my list of questions? Okay. If we decide to change the conditions of approval, do we have to change our Comprehensive Plan? Because in effect the information that we have received in all the documentation that we've got states what our Comprehensive Plan says and it's clear that we shall ask for dedication. But yet if we were to change our recommendation or change our conditions that we have on this, we in effect would be going against what our Comprehensive Plan says. We ask for easement or even drop requiring it all, all together. So my question becomes do we have to do something else? Mr. Coleman: Yeah. Mayor Nicoli: And I'll let either of you take a shot at that. Mr. Ramis: I think in the short run the answer is no. We cannot apply any provision of our Code or Comprehensive Plan in a way that is inconsistent with the Constitution. So the constitution limits whatever provisions we have in our Comp Plan or Zoning Code. So for purposes of resolving this case and the conditions here, I don't think we + CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 40 Egg= need to a Comprehensive Plan amendment. I recommended to this jurisdiction and others to the extent we have provisions in our Code and Comprehensive Plans but in the long run, we make some amendments to those provisions so they are not in a position of being arguably unconstitutional. Mayor Nicoli: Okay. Very good. Mr. 5honkw:iler: No, I would give one other thought about this. If we were, if the City was adopting what we were ; proposing, the issue wouldn't go beyond that stage because you are imposing a pathway and you are imposing a, a greenway condition on the approval and that's not being challenged. So now let's see if it gets to a LUBA case. You don't have to worry about it. Mavor Nic:oli: Okay. I'm interested in the difference, as each of you might see it, between an easement and a dedication on the, or the, on, on, on the value of the property. I would have a little bit more information, I think, from you, Mr. Ramis. Or maybe not. I, I've got so much I can't keep it straight. I'll have to read it, go back and read it but... How would each of these different options restrict the use of the property, the value of it? Between an easement and a dedication. And, and when I ask that I guess I'm more interested in the floodplain issue. That is I assume the property line here lays approximately along the straight of Fanno Creek. An easement over that portion of the property versus dedicating that portion of the property. Is, is really there a significant difference between the two? And I'm not talking about 25 feet or 15 feet above the 150. I'm talking about the, the, stream. Is there really that much of a difference between those two conditions? Mr. Ramis: Well, I think that the primary difference is in the continuing the building of the property in order to exclude the public. In the easement as we have drafted it and proposed it, the only right of the public to go into the floodplain would be to do maintenance work. Take care of the, protecting the capacity of the drainage way. In terms of the dedication, the dedication will. require... It carries with it a broader ability of the public to occupy the space and reduce the CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 41 r ability of the'Dolans to exclude the public. In terms of the nature of them, a dedication is, in manly ways in its nature, an easement under Oregon law. Under Oregon law the right of the property owner remains the underlying ownership. So in terms of their real nature, they're not great but in terms of the way they're drafted, the . difference is the ability to exclude the public. Mr. Shonkwiler: Comments that I would have is going back to the fundamental theme (inaudible). I've given some references in the documents that I've submitted to you before talking a little bit about dedication and easement-s. What I've round looking through your ordinances is you have... I don't know if they could be characterized as conflicting terms - kind of (inaudible) r.Ar- there are ambiguous germs in your ordinances. ?different locations where you used that term "easement" or "dedication." I have to assume that ultimately a court will look at how you have been using and, in most cases, I think it would come down to the dedications are treated as fee simple rather than a dedication meaning easement as well.. It's how you use it and you've been using it and what the logical interpretations are throughout your ordinances. I think that's the way it comes out. Given that, I would agree with Tim in the sense that easements could be limited in scope whereas a, a dedication under that circumstances. A fee simple means that they acquire all of the interest in the property. So, one is not complete and the other is possibly lesser. Both of those have effects on value. Now to get back to my ruse (inaudible). The question in creating a limitation that's not really a limitation, and do the courts have the authority to look beyond the mere wording of it and the answer is of course they do have the authority to look beyond the mere wording of it. It happens all the time in comb, in combination law. I've tried cases where the state has, has brought out slope easements as a way of cutting down the costs of taking somebody's property. (inaudible) slope, having restrictions on the slope is not the only thing the court, courts have determined that the effective value that was taken was in fact as if full ownership (inaudible). So there is some risk in trying to hide too much behind labels. It still comes back to what is really happening. And so it's that aspect I think we have to bear in mind. a CITY COUNCIL MEETING MINUTES - JULY 13, 1995 - PAGE 42 Woman: (Inaudible) Mr. Ramis: Let me, just be very clear that in our view a' dedication is not a fee simple ownership. Be as clear as I can on that point. That if we made it as real here, but that is not our view. Second, our view of the easement that's been proposed is that the Dolans will retain the same ability to exclude the public before and after that easement is required. That there's no difference in terms of their ability to exclude the public. Other than maintenance people. Mayor Nicoli: Okay. Mr. Coleman:: There's just one other thing on, on the distinction between the two and that is how the public gets rid of its interest. If property is dedicated to the public, it's a statutory process that you will go through. If the transfer is in a form of an easement, there would be less formality involved in the release of that interest. So there is a distinction at the end of the use by the public of the property. A more formal process is required to get rid of the dedication. Mr. Ramis: I certainly agree with that. Mayor Nicoli: In our ordinance, and this is general now, this doesn't have to do so much with this particular problem, but In general, our, our (inaudible) our Comprehensive Plan talks about flood plains have to be dedicated to the City. I mean, it's a... it, it appears. We just make that straight out requirement. Arid what I was wondering is along Fanno Creek we have areas where the flood plain and the creek combine maybe 60, 70 feet. We have other areas !here that width is 1000 feet, 1500 feet. You all would have to be here through a winter to see how there, it floods and we could see where its wide and where its narrow. What... I guess... do why do we need to control the entire width of the flood plain? What public interest were we protecting when we made that requirement? Mr. Ramis: Two responses to that. First of all, after the Dolan &:~cision, I,.don't think the City can apply a one size fits all rule to every property. We have to do a case by case analysis. That's the fundamental rule. So, in each case we'll look at facts and make that determination. But in terms of the, my second point is in terms of the overall T~y COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE,43 CI IIIIII 1 1119 MINOR ISO NOR I= I Imams= policy behind the... puh,l is access to those areas to maintain them. The fundamental reason is that piecemeal... the information in the record here is that piecemeal maintenance of a large drainage system as a system doesn't work. And that if you're going to maintain a system you need to hove a government agency involved in order to have a coordinated plan to maintain that system. Mayor Nicoli: Okay. That's fine. 1, I will, I won't push that any rurther at this time. In the presentation that we, that we had three weeks ago this evening, it, it appeared that most of the justification we've tried to tie back to monetary terms. That is we came up with a value of the land. We tried to show one way or another how much impact additional cars would have coming and going and ~iow much additional water. But I'm, I'm questioning the necessity to always relate to monetary I guess I'm challenging that. For instance, there's a zoning ordinance now. We require setbacks around a house, around a building. We require minimum lot sizes. Well, how do we tie that to monetary terms? Are we... Do we really have to tie our requirements always to monetary terms? Or do we set standards that really aren't tied to a u:onetary situation? Mr. Ramis: I think that you're making a good point, and one that the Court has made previously. And that is there's a difference between the regulation process and the exaction process. To the extent that you're going to require dedication of land in exaction, you're required by the rules to do quantification of some kind. I guess the short hand way to do that is try to reduce things to dollars and look at in that way. And so in the context of exaction, we tend to use a monetary measure. But the Court said regulation is different than that. To the extent that you are simply regulating a plan which is what a setback is or a minimum lot size, you don't need to... an economic quantification. That's not the point. Because of this distinction between regulation and exaction. Mayor Nicoli: Or, then are both the issues we're dealing with here indicat... considered to be totally exaction issues? And not regulatory? Mr..Ramis: Yes. We're dea'_ing in the enaction context here. The remand is for us to consider the exactions that are required in Condition number one under CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 44 i the Court's new rule. Mayor Nicoli: -Okay. Drainage ways. I guess I'll first started out talking about drainage ways. Cause both, Mr. Shonkwiler and Mr. Hamis, you have relied on a older study that we have had done. I believe in 1981 was the date that it was done. And listening to your comments and reading both of your conclusions, they appear not to agree and both of you are, you both base on that document. So, so it's a mal.ter of interpretation. And I think it would be fair that if we haven't already, that we enter that document into the -record. And... Is that one of our 81 pieces o:f...? Mr. Shonkwiler: It's in the original record. Mayor Nicoli: so we can look at it ourselves and try to Okay. Mr. Shonkwiler: Yes, I commend it to you. Mayor Nicoli: Okay. Mr. Shonkwiler: (Inaudible) Mayor Nicoli: When it comes to drainage way, and I guess Fanno Creek is probably as good a drainage way as we have in this, this City. Who ultimately should be controlling that drainage way? Is it the public interest that the City, the County, the State, the Federal government, USA have control of the drainage way? Or can the property owner best take care of what needs to be done to the drainage way? We, we've got this, this creek... I, I guess... I, I tell why is the City even interested in, in, in that creek? What is it that the City wants control over? And is it is the government the best keeper of that drainage way or is the private property owner? Mr. Shonkwiler: I'd like to give an alternate solution to the _ question. First off, I think in the context of the Fanno Creek, you have to look at what portion of it is of your concern. And I think it is Main Street to Hall Street. But what was the City way back in this street proposing for that area. The City was looking at that area to be utilized for more than just drainage. It was going to be recreation, pathways, a whole bunch of stuff. Ponds and amphitheaters and the works. That area I, I would submit had a different meaning to the City then further on downstream on the other side HE= 1 ° CITY COUNCIL MEETING MINUTISS - JULY 181 1995 - PAGE 45 of Hall, Hall Street. Suddenly the City is less interested in what happens along there. They are more-willing to let the landowner take care of it themselves. It's only where and, and admittedly Fanno Creek goes beyond just a small (inaudible) stream. It sets on one end of the scale where clearly it has raised community, community wide concerns other than if it hies into a series of streams that gets to be larger problem. Fanno Creek is clearly a problem for the City and clearly needs some, some control.. I would submit, that just like exactions, I've always taken the point of view. I don't see any reason why a City cannot set out regulations as to haw private property owners cooperate dealing with floodplains, just lime they came up with most other issues in a zoning context. You have enforcement proceedings and fine proceedings. They work in almost all cases. You will have recalcitrant parties that you give you trouble down through time. That doesn't mean throw out the entire process because of one or two people causing problems. You can deal wth regulatory wise with those problems in an escalated fashion. So I do think you have a way of dealing with all of these issues. The, the ultimate crack in the wall and I have to say is when it becomes, and I'm sure Tim will jump in to say, when it comes to a City interest where a single property owner's use of his property, no matter what he does, it's still, it's not going to solve the problem or is going to still exacerbate the problem, such as the bridges were acting as an artificial ban on water coming down the stream. That's the kind of problems some take up the water solution for the City obviously. And those kinds of things are really (inaudible) just like building roads and anything else is. Mr. Ramis: Well, as I read the master drainage plan is`not for recreation projects. That is not its purpose. That's not it's objective. What it says is that drainage capacity is an important public concern. And protecting that capacity is a critical public concern and it details the kinds of things that can happen if you don't protect it. It then suggests methods of protecting that capacity and suggests that to do it you need a system wide solution. And that's the fundamental rationale that it presents for the City being directly involved in the protection and maintenance of the CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 46 r' i oil! system. It points out the problems that have been created historically by piecemeal property owner impacts on the system without regulation. Mayor Nicoli: Okay. That leads me to m}% next question. What . Go ahead. r=doman : (inaudible) Mayor Nicoli: I'm halfway through my questions. I have fourteen of them, I'm on nuuber seven, so. Woman; (inaudible) Mayor Nicoli: Okay. Do we want to... excuse me for a second, gentleman. Woman: Thank you. Mayor Nicoli: We have some other things on our agenda after the Dolan hearing. Do we want to set those over to next week and release the people that are waiting to speak to us? Or do we want to go ahead and Or I can maybe ask some of those people if they'd. like to wait? Man: (inaudible) Mayor Nicoli: Okay. I've got a solution. Why don't we stop this hearing for 20 or 30 minutes? In fact while you gentlemen go out and relax and we will consider items 6 and 7 on our agenda and then come back and we'll finish our questions. Coun. Hawley: That'd be great. I'd like that So, so did, did everyone hear what we're doing? Mayor Nicoli: We're, we're going to adjourn the public hearing for about 20 or 30 minutes Excuse me, recess the public hearing and will come back in to the public hearing so that we address Items 6 and 7 on our, our agenda. Mayor Nicoli recessed the public hearing at 10:25 p.m. Mayor Nicoli reconvened the public hearing at 11:30 p.m. Mayor Nicoli: Okay. We'll make this quick. At least I'll ask my seven questions quickly. Let's reopen the public hearing. Or reconvene the public hearing, not reopen it. I've lost some of my stuff but I still have my questions here. I'll finish my questions. CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 47 1,11,- gwqn~!11 `1111~1 1, Z 1151111 Coun. Hawley: Tried to hide them. Mayor Nicoli: There it is. Okay, Now, I believe Based on -,ither or both of your knowledge, is there legislative or case law that specifically gives control of drainage ways to government agencies? That is are there, are there state laws. I know federal laws have some control over like the quality of the Willamette. The federal government has control. But once you get up into drainage ways, such as Panno Creek, are there any State, County, City laws that dictate that they have to control or should control? Mr. Ramis: I don't know myself of any state or federal law that says: that you must control. I think it's in the nature of an option. That is, you have the authority under your land use regulatory poorer to participate in regulation of the, of the channel. I don't think there's anything that says that you absolutely must do it. Mayor Nicoli: Do we in our existing Camp Plan choose to regulate drainage ways in the City? Mr. Ramis: We do. Mayor Nicoli: All drainage ways? Or some of a, some of a particular size? Mr. Ramis: I couldn't answer that without looking further into the Code. Mayor Nicoli: Okay. Mr. Shonkwiler: Well, I agree with Tim, that its, it's, an option, it's not... There's nothing mandatory until you jump over into those regulatory areas providing fish and wildlife and so forth. Mayor Nicoli: Okay. Mr. Shonkwiler: My review of the ordinance, and again you're going to have to go back and look at it. I don't think the ordinance requires you to regulate every drainage way. I think that you have identification in your Comprehensive Plan which ones are deemed to be of public interest and, in essence, and the biggest problem, and then you're addressing those. So, you're going to have a scale. Some are the bigger problems. Some hardly have any problems. Those you don't regulate. CITY COUNCIL MEETING MINUTES JULY 18, 1995 - PAGE 48 Mayor Nicoli: Okay. Next question. If we have a creek, and, and Fanno gets as good as any creek, that let's say does not get maintained. And when we get flooding because there's no maintenance, we get a lower stream flow as far as velocity. The water's backing up whatever. We have damage that results to adjacent property. And to our in, in, infrastructure. our, our bridges. Water lines whatever. Can... if the City chooses to maintain or not maintain, can we look at those costs that we, in theory,,, are saving by choosing to maintaining versus not maintaining? Mr. Ramis: Well, I think you can consider them. I mean, the cost of maintaining a system is a part of the Mayor Nicoli: Well, then what's the, what's the cost of maintaining? The cost of the damage,, the impact. Mir. Rami.s: That is the savings? Mayor Nicoli: Right. The savings to our infrastructure and the, the savings to our private property. I mean if we, if we choose to maintain something in, in order to avert future damages. We're, we're saving the taxpayers money. In some cases directly and some case indirectly. Those cost savings, car, they be considered in our decision making process? Mr. Ramis: Well, I think that to the extent that you can quantify them. You can quantify the impact of a p articular property owner's development on it. You can take that into consideration. Mayor Nicoli: Okay. Do you know now, Tim, if we sent crews to maintain our open waterways. I know that we maintain our catch basins, our culverts down to the local ditches. But do we actively maintain creeks in this city? Mr. Ramis: I can't tell you the level of that activity but I do know, because I've asked a. similar question to staff, that we have in the past used city crews to maintain a drainage place. Mayor Nicoli: When a city chooses to maintain a drainage way, is there an obligation on the property owners to- allow access across their property to get to the drainage way? Mr. Ramis: Generally speaking, to get access we need an CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 49 easement. We need a right to get on there. We don't have just a unilateral power to occupy the land to maintain it. Mayor Nicoli: okay. Mr. Shonkwiler: I would throw my caveat in there. You do have the power for emergencies. So I„ I don't know what your maintenance actually is. I would suspect it's mostly like, for instance, if you have a lot of flood damage and debris is backing up to a bridge and you. need to go 'in and clear that out, I, I doubt if you, just have to find out.. if t1lat's an, an issue, but I doubt if you, have crews out there cleaning up the Barn Creek, for instance, all the way out on a periodic basis. I think it's.probably in emergencies that you always have the power, you know, to cross people's Mayor Nicoli: Who gives us that power? Mr. Shonkwiler: You have that... The power of the state of Oregon to, to local municipalities to take care of emergencies. Mr. Coleman: Your honor, I... The City may have the power to go in and do something but they may have to compensate for the exercise of that power. I, I, I wouldn't, I wouldn't agree with Mr. Shonkwiler without doing some research on the ability in an emergency to make an uncompensated entry on the property. Mayor Nicoli: Okay. Mr. Coleman: Okay. Mayor Nicoli: Okay. Mr. Shonkwiler: All. right. I'm, I'm raising it in the context of an emergency to avoid a nuisance. And that's been my experience with case law. And it sounds like a difference of opinion. Mr. Coleman: Well, no, no, I'm saying I'm not questioning whether we could go in and solve a problem but would we have to then compensate the owner, if requested after the fact. I, I don't know. I just don't know if there's a blanket right in some superior law. Mme. Shonkwiler: Well, that's, that's all I'm saying from my experience with alleviating a nuisance of that CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 50 - i character. Unless you cause damage. That's going to weigh (inaudible) Mayor Nicoli: My next question has to do with recreational trips. I guess, if someone was going to use the bike path to walk into downtown Tigard to go to a restaurant for, for dinner. Should we be looking at that as a recreational trap? Or a business trip? Because: the statement was made by, I think: it was, I think it was you, Mr. Shonkwiler. Yeah. That Fanno Creek pathway is primarily a recreational track. And... Or is for recreational purposes. And I, I just wondered if you feel that people that are on recreational activities would go into the downtown area. Mr. Shonkwiler: I think what you're asking me is what happens when you mix recreation with some other function. Such as going to a facility outside c: recreation. That's what you're really asking. what I was talking about previously is where someone gets on the bicycle pathway to go jogging.- and then goes back home, make it a loop and go home. Mayor Nicoli: Okay. Mr. Shonkwiler: That does not replace a single automobile trip that would have been going downtown to purchase (inaudible) or something. They don't.,, that's the context I'm talking about. Where on the other hand you have somebody enter a pathway with the intention that they are going to use the pathway to go to the restaurant, that is, then would be a legitimate pedestrian activity that potentially is replacing an automobile trip. I wouldn't disagree with that. Mayor Nicoli: Okay. Mr. Shonkwiler: To me, those are two different things. And now it makes a function. Mayor Nicoli: Okay. My next question has to do with a condition that is not up for review this evening but has an impact on the condition, or possible impact. The, the original approval allowed a reduction in parking stalls on the site. I don't know. I've seen some numbers and one of you can probably tell me what was required for parking and how many stalls were we, were allowed in, in the variance that was granted. But, and I don't know the justification or, or the thought process that was used by the Planning Commission and the staff and CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 51 Council to grant that variance. But is it really possible to say that the land that we're supposedly taking, or asking you to allow us to use for the pathway was offset by the reduction in parking, and that was the purpose for granting that other condition? Mr. Shonkwiler, Well, I can answei the question. I think, as I, as I recall, in the findings it identifies... if it's not there its elsewhere in the record because it shows up directly in the Supreme Court decision, that the reduction in parking stalls was based upon the recognition by the City that the uses of the plumbing and electrical store were bulk sales. I think that's the term that was used with a customer going to a site to, with a prior intent to buy Ithat particular product. So its not involving impulse buying type arrangement. Axid, so given that, that was the justification for the reduction in the stalls. So I, I would say that... the way record states right now there is no relation between that and the pathway. Mayor Nicol.i: Okay. Mr. Ramis? Mr. Ramis: I would only add that the findings which discuss the reduction in spaces and, going from memory, I think it was for 43 or 42 down to 39. Mr. Shonkwiler: 39. Mr. Ramis: Recognized that the use may require less spaces as bulk sales theory. The planners also recognized that might not prove out to be true. So they discussed the fact that the City might come back later in the second phase of the project and cure any underparking that has been created by putting more spaces in. The number in discussion related to the open space, or the, or the trail. Mayor Nicoli: Okay. Mr. Ramis: There was a discussion in the findings, however to the effect, that the area that was subject to the dedication for the bike path could be used as a credit against both the open space requirement on the site, that is the area that couldn't be occupied by building as well as the landscaping. So there was a trade off there. There was an effort by the City to limit the impact of the condition by allowing that land to be used for other purposes. CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 52 Mayor Nicoli: Can you be more specific? That is, the City allowed them to, to use all of the... at that time they were asking for a dedication. They were allowing them to use that as landscaping for their entire site or just this the new building? Mr. Ramis: It was minimum landscape requirement and the City indicated that it would do the landscaping in the area and allow the applicant to count that City- provided landscaping towards the applicant's landscaping plan. r Mr. Shonkwiler: Which was at 154. Mayor Nicoli : Okay. Okay. My final questi ono has to do with the question I asked last week. Pzid the way the City of Tigard traditionally enforces its zoning ordinance in the downtown area. If someone asked us to pass or gets approval to build a general retail building, and that building changes hands without any remodeling work which would trigger a building permit, do we actively go down and make that person go back through our, our land use process. And, I, I guess what I'm getting at here is what is to stop, a week after the building's done and or a year after the building's done and occupied, for another retailer to go in and sell shoes out of the business. Is it the City's policy to go back in and trigger a whole process? Mr. Ramis: The answer is no. It's not the City's practice to do that. We... the process of, of additional site review was triggered by the modification to the building. Or a change in the use that's outside the list of permitted uses in the zoning district. If you switch to a use that's a conditional use you'd have to come back to a conditional use process. But it is normally the expansion of the building that triggers it. So if you expand your line of merchandise. If you're a Hallmark card store and you decide to sell books, we don't come in demanding that you reapply and go through a new process to recondition, to impose new conditions on the business. Mayor Nicoli: Okay. Mr. Shonkwiler: Now my response to this. You have a decision that's before you now. I've cited in my materials where you could have authority under the CDC to impose conditions on the approvals. And, effectively what we're saying is if you return, if you impose a condition on this approval that the CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 53 Phase I building is for plumbing and electrical. We are in effect waiving any objection to that. And that does give you the authority to do this. of course it's your discretion. Nobody's debating that. But I, I very clearly believe that you•have this authority by your ordinance process and you can do that in this proceeding: If you choose not to, then of course that is again your discretion. Now what happens if you do do that? Well, first issue is that. I cannot really imagine that anybody's going to forget about the nolans' building (inaudible) thing coming in there (inaudible) Mayor Ni.coli: I wouldn't be so sure. Mr. Shonkwiler: Well, I don't believe it. But anyway, it would be like any condition of approval that the City makes throughout the City and how do you keep track of those and enforce those? But at that point if the condition of approval in this process being new use doesn't come in there would it automatically have to go through the process of. I think that changes. Mayor Nicoli: Right. And, and, I, I, I agree that the city has that right but I was interested in how we carry out that right and what's the standard for the City. A_nd because the answer that I got back from Mr. Ramis is what I thought the normally did. Just, you know, driving and living in the city, I don't see the City traditionally going in every time a store turns over. Mr. Shonkwiler: No, you don't see it for outright uses. Mayor Nicoli: And, and... Mr. Shonkwiler: But, for instance, I got a case that's anything like a conditional use, and suddenly they got to come back if they're changing that conditional use. And, and the city does track it. Mayor Nicoli: I would agree'technically. But I would think a lot of times that doesn't even happen. But I agree that we give ourselves the right to do it but we don't we don't carry with the force of our oridinance most of the time in that manner. And, and I think that has a bearing on our decision here. Basically once we turn you lose to build your building, that's it. We're not-going to come a round and hassle you every time as a property owner you decide to make a change, either CITY COUNICIL MEETING MINUTES - JULY 18, 1995 - PAGE 54 in the type of merchandise you sell or allowing another person to move onto the property and sell another, you know, type of, of, of merchandise. But any way. Okay. That's all my questions. For this evening. Coun. Hunt: I have one question. The when we hire an engineer or a traffic engineer or whatever, we hire them with the thought that they're going to present figures that'll show the best for us use. The applicant does and we do for ours. One of our big problems here is at arriving at what the traffic count is. And in an attempt to clear this matter, is these any reason why the City and applicant couldn't get together_ and get an impartial person if there is such? Am arbitrator or a mediator or whatever and get the to engineers together and come up with something that, that we can, resolve this? Mr. Shonkwiler: My answer to that is I'm always willing to look for a solution for any problem that'; perceived here. I don't see any problem wir_h that. You're talking about one time and all this. (Inaudible) take a look at that and see if they reach the same conclusion. And look at the City's basis for analysis and see if they reach the same conclusion. I think the problem with what you're asking for though, is, is the problem I keep butting my head against the wall here is every time we try to solve one problem independently suddenly it gets thrown in the hopper with everything else, and saying we can't handle everything else, so let's not deal with this (inaudible). But I think that whenever I run into a conflict situation like this, that, that's the first thing I think of - what's the easy solution for solving it? So if no one trusts our, our evaluation. We don't trust the City's evaluation. I don't think we'll profit if an independent party looking over the same material. Mr. Ramis: Councilor Hunt, I think that the issue is probably .less the willing traffic engineers and more a, a more fundamental issue of what is it that you measure. The applicant has a done a study of one single use that's permitted within the range of uses allowed. The City, the City's consultant has said we've given you evidence based upon the range of uses. I think that issue of whether this is a matter of measuring one use or the range of uses is really a policy judgement that has to be-made CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 55 by the Council and I'm not sure that another consultant commenting on it really would deal with that issue. That's really a tough issue for the decision maker, rather than the consultant. Mayor Nicoli: Are there any, any other questions? Coun. Scheckla: Tim, I just want to know... Atone time, you had NPOs run (inaudible). Getting off the ground with their project from way back when. We don't have that now. 5o what is the process and how much impact was put on by the NPOs when they were trying to deal with this before and prior to intervening on the processes through that time frame? Could you refresh my memory on, on some of that? Or did it have an impact at all? Mr. R.amis: It's been a while since I read through in detail the minutes of all those meetings. I don't recall testimony from the NPO. If it's there, we can go back and look and see if it's there in the record but I don't recall seeing it. Mr. Shonkwiler: I don't recall it either. Coun. Scheckla: I, I believe with the Fanno Creek Park which was being proposers on Fanno Creek and then drainage way and what not. That'they brought us some information and I don't know whether that was testimony or who dealt with that. In fact we don't have them anymore. Where did that go? I'm just raising that question. I, I, I wasn't on that board for about half of it, my previous board, and I wondered if that had any bearing on some of these, of the, these things you mentioned when the Dolans were rejected when they came up before the City at that time. Mr. Ramis: We can go back and look at. the minutes and see if there was any (inaudible) but I don't recall seeing it. Coun. Scheckla: And now we don't have it anymore and I wondered if, if there's a new ruling you're going by that _ hurts the Dolans or helps them, one way or the other. Mr. Ramis: I don't think the change from NPOs to other organizations really has an effect on-the standards. Coun. Scheckla: Because at that, that one time they were highly important. When we were in the (inaudible) of CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PACE 56 10 Kim Comprehensive Planning. And so for them is was Comprehensive Plan, drainage way, flood plain whatever? I wonder where this comes into play, if at all? Mr. Ramis: I guess, one comment on that would be that, that those organizations are entitled as the others who came here to testify. Cour. Scheckla: But right, right now when we're saying to you we don't have them anymore so how can they come (inaudible). That's what (inaudible) Mr. Ramis: 1lnyone car.' participate... Coun. Scheckla: After the fact. Mr. Ramis: The current organizations and find out about this. Those organizations can come and testify. . "Mavor Nicoli: Any other questions? Okay. Let me ask a final, a final question for this evening. What would be the preference of both you, Mr. Ramis, and you, Mr. Shonkwiler, on how you would like to see the Council proceed? You both indicated there's been a lot of new information presented this evening. You haven't... were not given some information prior to the meeting and you want time to read it and respond to it. What would be your recommendation to the Council on how we should proceed? Mr. Ramis: I'll give it a shot. I guess I would suggest that we do it in two steps. That we maybe indicate two weeks from today a deadline for submitting additional information and two weeks after that a response to each side's submissions. And followilig that, schedule a time for the Council to deliberate. Mayor Nicoli: So you're proposing... Mr. Ramis: Gives you enough time to read... Mayor Nicoli: You're, you're, you're proposing no more oral testimony? Okay. Mr. Ramis: Take it as, as written submission from here on out. Mayor Nicoli: Okay. Okay. How about you, Mr. Shonkwiler? Mr. Shonkwiler: I don't have any objections to that. CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 57 Mayor Nicoli: To that? Okay. Now I've got to ask the Council. What would you like..to do? After hearing that. Coun. Rohlf: I would still need the ability to ask some questions maybe of Counselor. Ramis and Counselor Shonkwiler, if not other witnesses. Mayor Nicoli: Well, would you want to do that then at the end of that four_ weeks 1rrhen we set it for deliberation to set aside the first 30 minutes or whatever it takes to aak questions, any final questions? Coun. Rohlf: `yeah, I think that this other new material is going to generate some questions that Mayor Nicoli: Okay. Coun. Rchlf: we need to be able to ask people before we deliberate. Mayor Nicoli: Okay. Coun. Hunt: The only problem I have in my mind, and I, I'm not sure how this ties in, is that even after their written testimony,'are we, are we going to have any more information that helps us to decide anymore on these TIF fees as an example. That's why I wishing there was some way they could arbitrate or something or other because I, I think that the two sticking problems that, that are hitting right now, even after we get the written testimony, those two problems are going to be there. And I just wondered if there was any way of getting any more information here. Mr. Coleman: Well, well you have the right to ask either of these gentlemen to bring you any information you want. And that's reasonable, I guess. But, if there's something in your mind, you would Coun. Hunt: No, there... Mr. Coleman: In order to proceed, you can ask, ask them to provide that to you. Coun. Scheckla: I, I think Paul brought up a good point because if one of them's saying 404 and the other one's saying 26 and 27, and it's possibly somewhere in between. Now we're going to have that same dilemma 30 days from now or two weeks from now or a year from now. Mayor Nicoli: Well, I, I would agree we have two varying CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 58 y IF III Ill III 11 OKI', 111' 11,1:1111 '!~111 opinions. But to me both gentlemen did those studies, rased their study on different criteria and carne up with different numbers. It's up to us to analyze the criteria that each engineer used and determine which one we feel is the most relevant here. I, Well. I'm comfortable with both of their studies. It's the, it's the criteria that they used, and, to me, this TIP issue really is not even relevant to our case. And, you know, technically... I don't have a problem acting on the TIP rhino. Not at all. But to me, it's not relevant to our land use decision. Coun. Scheckla: Well, when Dick ment:ioned.his thinking that actual TIC" (inaudible). How does this play into that then? Mayor Nicol.: Well, they have the right... The TIP ordinance is based on actual, actual use. That ordinance is based on the actual amount of cars that go on and off the property. Arid they have the right to challenge the decision of the person making the determination from our city staff. And the way they challenge is they have their own study done and, and they provide that to our staff, and, and there's a process that you go through. And to me their studies are excellent from that standpoint and they should be challenging and they should be getting the reduction. But that's separate to me... you know; I mean this TIP credit or not credit but the,, the correct TIP charge they should be charged is a whole different process and doesn't belong in this land use. Coun. ;-aunt: I guess my thinking is this. If, if there's anyway that we can get them both to use the same criteria, and I don't know that there is. Because if we, if we go against the appellant, they're probably have to be then there's a good chance they're going to appeal it. In fact to LUBA or whoever, if there's anyway we could get it resolved before we get that far. Mayor Nicoli: But I think, Paul, and this is the interesting. We could do this. We could bring up both traffic engineers and we could sit them down and we could ask one of them - Well if you were to go down and count the cars going on and off the property, would you reach the same determination as the other traffic engineer? And I would assume he would probably say yes. But then if we ask the other guy, and say,, based on general retail use, if you were to estimate would you have reached the same conclusion the other guy did? And I would CITY COUNCIL MEETING MINUTES - JULY 2.8, 1995 - PAGE 59 imagine he'd say yes. And to me, they used different criteria for coming up with their numbers. And that's great and now we get to chose which set of criteria we feel were the most appropriate. if, if they agree, that'd take all the fun out of it. Mr. Coleman: Yeah, I just want to emphasize one thing that you've said and that is that in this decision, you're not going to be making a decision on what the TIF charge is. Coun. Hawley: Thiat's right. Mr. Coleman: You don't make that decision. okay. Coun. Hawley: We don't even have to make a decision on what the traffic counts they're running on. Mr. Coleman: Right.. All you have to do is determine whether the condition is roughly proportional to the impacts. That's, that's the standard they're going to be applying. Ccun. Scheckla: Then why is so much time being devoted to this one item? Mr. Coleman: Because the applicants have... Mr. Shonkwiler has raised it, and has made it an issue. And the City has responded by saying it's not a decision they're going to be making within the context of this decision. So they've raised it, the City's responded to it. Coun. Hawley: We don't have to spend any more time on it. Mr. Coleman: Right, you don't have to spend any more time on it. Coun. Hunt: But doesn't that tie in with the proportionality? How much traffic there is? Mr. Coleman: I'll let Mr. Ramis respond to that because he's presented the argument to you. Mr. Ramis: The only aspect of the TIF that ties in, is that the fact that the TIF only accounts for 32a of the cost. That's it. That's the only relevancy. How it's calculated is not important. Mayor Nicoli: Okay. Coun. Hunt: Mr. Shonkwiler, do you agree? CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 60 r Mr. Shonkwiler: No, not entirely. The traffic generation off the site is the City's but if I can characterize it this way. I believe the City is proposing to you to take the, the•most strict interpretation possible to try to defend its overall position. So that means that they're taking the point of view that no, they're going to interpret the U.S. Supreme Court decision as saying they don't have to review what the actual traffic generation is from this use at this site. And they're going to just take a broader category. Number one, I disagree with that. Number two, the focus of discussion, at the Supreme Court proceeding,, they talked about the fact that this was a plumbing and electrical store. It was a factor in, in their, in their review of it. They fully recognized an opinion that the Phase 1 store was actually an electrical plumbing store that was being expanded. They weren't talking about it being general retail and all of that category. That wasn't the defense that the City was raising with the Supreme Court that this was general retail. That, that opens up the justification. This is new, ir_ other words. And when the City talks about waiver, I, I can raise the issue of waiver as well. The, the point here is, I think that the traffic analysis is in, is in the same category as the engineer's report on storm water drainage. They are the fundamental basis that the City is using to justify the exactions, both for a greenway and for a pathway, and it's the same justification with our reports to say that your basis is incorrect. So to me, they are related.. But the other issue that I want to point out here. And, and as much all of you are talking about which report we're going use, what basis, what's the fundamental thinking. If you were to agree with what we were proposing on how to solve this thing my concern would be that here you are wrestling with this, and if you granted the pathway being reduced and recognition that this is a plumbing electrical store. If you don't say plumbing electrical store, we're going to be all over again on the TIF fees later on and why not take care of that to assure consistency with the Council's intent on, on this approval. Now on the other hand, if you take'the hardball approach that we're not going to pay any attention to try to resolve this with ycu guys. We're just CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 61 _ A OMNI ?A9d%~s.._ PS9@Aaawm~_ 18 going to try to make the best case we can or just, and not, not solve any of the issues and just go forward and let it fight out, then yeah, of course, it doesn't matter from your point of view about dealing with the TIF issue. It's only if you're really going to try solve this thing. Mayor Nicoli: I, Well, personally, if you were to make a request in writing that the Council consider the TIF fee under the terms of the ordinance that we have that we've agreed with Washington County, I don't know why we wouldn't act on it. I mean the guidelines are there. if someone proposes an adjustment to a. TIF rate it's in the ordinance. We have to respond to it. Now I don't know, I I've been through this once but I lived 12p in Washington. County. We appealed on one. But I don't know if it goes to the Council, if it goes to a staff person for approval. Man.: Staff. Mayor Nicoli: Okay. It goes to a staff person and then does it go to the County or does it come to us, if that person doesn't approve it? Mr. Coleman: I believe if it, if a staff person doesn't - make the applicant satisfy the I think they give it to the Council. Mayor Nicoli: Okay. And then also then appeal to the County? Mr. Coleman: I don't think. The Count, the County has delegated the responsibility for interpreting the ordinance to us. Mayor Nicoli: Okay. Coun. Hunt: That's what I thought it meant. Mayor Nicoli: Because I can't because we had a similar situation in Beaverton and we ended up at the County and they granted the waiver, or the adjustment to the rate. I can't remember because that's happened three or four years ago. When we started out, and maybe it's been rewritten. But if you were to make that request it, it'll be processed for an adjustment. You know, and say, the staff doesn't act on it then it!11 end up here in front of us and then we'll, we'll act on it. And so, I mean I don't want to circumvent our _ ordinance. I mean, if it says it goes to a staff member first, I'd like you to simply make that CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 62 request and then, and then appeal it to us if-you don't like the decision. Mr. Shonkwiler: I suppose the issue in, in context of what I was talking about is if you make the determination that this is a plumbing and electrical score, then you don't have to specify.what- the TIF fees will be and of course you'll go through the building permit process to determine those. The staff will see if you have determined that, that is the condition of being a plumbing and electrical store. We will then be in a proper frame of mind with the staff to say that's the category we've got our traffic study that shows that's the proper category, and, and then the TIF fees should follow along with that by t e determination of the staff. If, can the other hand: you don't say anything, then. the issue of-what it is, is still up in the air and we'll be back to you anyway. Why not solve it now? If, if we're Mayor Nicoli: Well, I think you're, you're mixing apples and oranges here. Our TIF fee is allowed to be assessed on trips on and off the property. That's how it's assessed. And that, to me, that has no relationship to the other parts of our zoning ordinance we're trying to consider this evening or that's up for review. There's no relationship there. Our ordinance allows within our, within a particular zone, we place a lot of requirements as far as setbacks, lot size. But we don't tie our TIF ordinance into our zoning ordinance in anyway. To me it's, it's an assessment process and... Mr. Shonkwiler: I, I understand what you're talking about but this you're, you're not talking in the exaction analysis where you are doing that. You are looking at the use. You are looking at the impacts. So, sure it's modeled back in but it is. Mayor Nicoli: Okay. I just... you know, if, if, if, if our ordinance was set up to let us act on it. If we were the only group, but I think if our ordinance says that it has to go to a staff member first, it _ should flow through that process. And I think all you have to do to trigger that is just request it and then if that staff member doesn't, based on the excellent information that you've provided, you know. If he doesn't process it, then bring it to us and you know, we'll be familiar with it, I'm sure. But, you know if, if that's what you CITY COUNCIL MEETING MIAKUTES - JULY 18, 1995 - PAGE 63 pat g:I~Ilg !I'' gyggl~%~;Iml 11 r want. I don't have a problem processing it. You know, you know. And I'll see that that's facilitated. Mr. Ramis: I think one of the comments (inaudible). The issue of which report to rely on, I think, is resolved, could be resolved by taking the report least favorable to the City, ATEP's report. And including, based upon the data presented by the applicant, that that data proves rough, rough proportionality. Because the City's data aside, the data. submitted by the applicant demonstrates a certain dollar level of impact. And that dollar level of impact is greater than the amount of the impact on the applicant of the exaction. So that's one way we could deal with the issue without even involving yourself in a deba:.e over who's right. Mayor Nicoli: Let's, let's get back to process. How do we set this up? Mr. Monahan: Well, two weeks from tonight would be August 1. If that were, if we had two weeks for written submissions. And then two weeks following that would be August 15 which is a study session. Mayor Nicoli: Okay. Mr. Monahan: Or the, the best agenda date for us is August 22 which is about five weeks from tonight. Mr. Coleman: We're not looking for.... consideration by the Council at those two times. As I understood the suggestion, it was written submissions by both parties simultaneously due two weeks from today. Mayor Nicoli: Yes. Mr. Coleman: Two weeks following each party gets to respond to the, to the others. Mayor Nicoli: They have to have their responses back to us after that. Mr. Coleman: So a month from tonight all of the written back and forth is done. Mayor Nicoli: Right. Mr. Coleman: And then sometime... enough time after that for you folks to have read this stuff and considered it. It is set for an agenda item for Council CITY COUNCIL MEETING MINUTES - JULY 13, 1995 - PAGE 64 REV deliberation and decision with the parties available for questions if the Council has any. That's where I understood the suggestion to be. Mr. Monahan: Yeah. So the earliest would be August 22. That , would be five weeks. Coun. Hunt: That may be a great day because I won't be here. Mayor Nicoli: Well, Paul, when will you be :i.a town? Coun. Hunt: That's the only week that I'll be out of town. Mr. Monahan: We presently don't have a meeting scheduled for August 29th, that's an open Tuesday evening. If you'd like to schedule it. And we don't have one the following Tuesday because it's the day after Labor Day. Mayor Nicoli: Okay. Mr. Monahan: Our next regular meeting after the 22nd would be September 12th. ± Mayor Nicoli: I'd like the, I'd like the 29th and only consider this one issue. Coun. Scheckla: Why don't we drop the 22nd and move everything to the 29th? Mr. Coleman: That's, to me that's even better. Mr. Monahan: You could do that. Again we, we can't guarantee TV that night, if it's of interest to you: The 22nd we have guaranteed TV for whatever items we'd have. Coun. Scheckla: What difference does the TV make in making decisions? We don't need TV. Mr. Monahan: That's a... no... That's a decision for you to make whether or not you want the TV or not. 'I only raised it because there may be some concerns about the proceedings in public. Coun. Hunt: I would suggest that we get the TV if we can. But if we can't it, we go with the meeting anyway. Coun. Scheckla: I'll move that. If we have to worry about TV to make a valid decision, and, and be thinking about that, I... Mr. Monahan: No, I wasn't insinuating that at all. I was just CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 65 r adding that for you to factor in. Mayor Nicoli: okay. Mr. Monahan: Now do you wart to have a meeting on the 22nd too or do you want Mayor .Nicoli: No, no. The 29th. Mr. Monahan: Okay. Mayor Nicoli: Okay. So how do I word that? Coun. Rohlf: Jim, excuse me, ghat are we pushing off on to the 29th? Well, what's on the agenda... Mayor Nicoli: That's, that's the night that we would... It would be our last chance to ask questions. Coun. Rohlf: No, no, I understand that. But something's on the agenda for the 22nd. Mr. Monahan: On the... :Mayor Nicoli: No, I thought nothing was on the agenda. Coun. Rohlf: I don't want to say Mr. Monahan: Well, no, no there are no items on the 29th because there was no meeting. Coun. Rohlf: Right. Mr. Monahan: But there are, there are agenda items on the 22nd. Presently we have the phone system upgrade award bid as well as the discussion topic of reimbursement district ordinance. It's tentatively set for that night. Mayor Nicoli: But, but Paul can't be there on the 22nd. So that's why we go to the 29th. Coun. Rohlf: Right but the proposal is to take the agenda of the 22nd and move it forward... Mayor Nicoli: Oh, oh, oh,, no, no... Coun. Rohlf: to that night. That's going to be a very long night. Mayor Nicoli: No, no, no... I have the 29th as only this item, nothing else. CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 66 Coun. Hunt: To do both things? Both proposals... Mayor Nicoli: Oh, okay. Okay. Coun. Hunt: 22nd and the other (inaudible). Mayor. Nicoli: Well, we can decide later if we want to push the 22nd on to the 29th. We just have to let these gentlemen know if we want them here on the 29th. But, so that (inaudible) it looks like two week, two week, two week and gives everybody two weeks to do their thing and I think that's reasonable with vacations in the middle of .summer. Mr. Coleman: I think the one clarification would be that in the submissions that come in in the first, the first submission, the two week, the first two weeks. if you're presenting new evidence, and that's I guess up to you, but the second submission should be rebuttal only with no new evidence. Mr. Ramis: And this so that we get it clear, what would be those two week submittal deadline dates? Mr. Monahan: The... Woman: (inaudible) Mr. Coleman. The Wednesday, Wednesday, let's do that. Mayor Nicoli: August 2. Woman: (inaudible) Mr. Coleman: August. Well... two different... Mr. Monahan: Doesn't make any difference. August 1 and August 15 or August 2 and August 16. Those Tuesdays, which is what we've consistently been doing, would be August 1 and August 15. Mr. Shonkwiler: (inaudible) Mayor Nicoli: Okay, now. I, I just wonder if it wouldn't be... Mr. Shonkwiler: Can, can I ask that we do the 2nd and the 16th? Because I've got the schedule. Mavor Nicoli: Okay, that's fine. The 2nd and the 16th. Now I'm wondering if it wouldn't be wise to put what we just agreed to in writing and fax it to both of those individuals and have them respond that they understand what we've put in writing so there's no CITY COUNCIL MEETING MINUTES - JULY 18, 1995 - PAGE 67 ' misunderstanding on, on the dates and on the ground rules. If there is a misunderstanding, we will consider it at our next Council meeting. Mr. Monahan: We can do that. Mayor Nicoli: Okay. I just, I just want to be sure that everybody understands what we've agreed'to and there's no misunderstanding. Mr. Coleman: I think the key things are the time, which are clear; and that the second submission is rebuttal only and no new evidence because that is finally the way to close this back and forth. Mayor Nicoli: Right. Okay. Mr. Shonkwiler: And the other thing is I understand that you, you're closing the hearing as to everything but that and questions. Mayor Nicoli: Yes. Mr. Shonkwiler: So we're not having new parties and everything else. Mayor Nicoli: Right. Mr. Coleman; At the next time the Council considers this,-the only people who would be talked to would be people who the Councinl would be asking questions of. There's no opportunity contemplated for any one to stand and make statements or presentations. Mayor Nicoli: Right. Okay. Now are we technically continuing this to a date certain now? I mean, is, is that the... Mr. Coleman: Yes. We're continuing it to August 29th. Mayor Nicoli: Okay. So we're continuing this to August 29th. We're adjourned. Voices: (inaudible) no. Mayor Nicoli: I mean we're, we're (inaudible) with this public hearing this evening. Mr. Shonkwiler: Thank you.. - C - ITY COUNCIL MEETING MINUTES JULY 18, 1995 PACE 68 a Agenda item hip. C, Meeting ®f coq lRS- JaHN W. SIIONICWILER,P.C: Attorney at Law 13425 SW 72nd Avenue Tigard, Oregon 97223 Fax 684-8971 Phone 6..4-091'7 -.in A ott I August 26, 1995 AU G 2 099 a s Tigard City Council Tigard City Hall 13125 SW Hall Boulevard Tigard, OR 97223-8199 Re: D-Q! L Re Ma-D91 Td City Reqwtst eF. l7iba is Dear City Council Members: The City Attorney, by letter, sought to strike Exhibits A and B of the Applicant's August 16, 1995 Memorandum. as inadmissible "new evidence". This letter opposes that request to strike and demands that the exhibits remain in evidence as part of the Memorandum. Exhibit A has already been accepted into evidence by the City Council. This document was marked as Exhibit 58 and was submitted into the record by the City. The Applicant was just referring to this document already in evidence. The City cannot now assert that this evidence is only usable to support the City's position and not the Applicant's position. Exhibit B is in direct response to new testimony and an issue raised by the City in its evidence submittal for August 2, 1995. This issue had never been raised by either party before and the Applicant carries the burden of proof for its application approval. The Applicant is entitled to rebut any new evidence submitted by an opposing party. This document must be accepted into evidence or it shall violate Applicant's rights to due process under the state and federal constitutions and ORS 197.763 (6) and (4) (b). S' cerely, W. SHONKWILER, . C. John W. Shonkwiler cc: Dan Dolan