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City Council Packet - 10/24/1995 f vrv::t.„.:.v:....:... 'yi ~,$,y "1,4t';','G'.'t+ii<'?7v,`v}`: ifihCR:;S} fhi}:. },:T: v.}}:. :i::Y:l::~~: a 3 •g .is:?~:•:v.?c?~,~,,~!~;i/<:,•:.x; r:Y}:^:^srr.Y_:.;i.~K.,~„~k.',i>'" ITS' OF TIGAR® t ~ t?'~:.~v :,yam„t7'Siv ~l}l"`Mf: ~~wt: t•~'` ffa+h ~'•`'{:fiuL:iYt 4LritY:viY.~ }v. "M"OR gY,~ ~a}:tiv,q~t ~•n,/,:.: y;::r~,~t>,`t~ Y:4.::::':` `vk£ ~"'j 4faY,4,(tt)1'::/4:aYa'.~{`.; S}~:tiY f~:/•%Y:. `f '•~`lIy ~Nn'ru: n~i}: y}tK:•$i:S~f,.•r::l.: 'f y ~.a 1 a ~I.FFic:afrT.{ti. ~ ra irtcL:£~ra'.~: ~Y ~ . Y : ~~y s$ 1.pj~!, ?yam f}Y^::a:p:a:t:•. ' +f rIFM:N:Y~ 2•VR•EVi.S:i~:tYif'+O:Y'r,} '`~rµ''r`G•3uar,. :...•<;Yf'FYI',~ht~:!'.~,''.$fzrF,%?;.:~,~,~Ci;;ka'G,}`"••.~r,:Y'r,`::" 4::~a',f':,':Y.;`:#S".? . $,n~x'•e~r°~Y4. '~a.~~.,sf•`'^"fi :.n; fix."::~d~?~ ~:'f„~f{jY:t o`.r;;. r::...:: ~'..zi~r<tsf.~~'`Y: "'.°~':."•'au'{ ~~::°,:>,~••'}'.~i:f;;i%.#".•}~~.''`oR:;'S,v~:L:~i'fi4r ~+A:,`•. 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. At~ film 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 agenda items can be heard in order after 7:30 p.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 • Qualified 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, x309 (voice) or 684-2772 (TDD - Telecommunications Devices for the Deaf). SEE ATTACHED AGENDA r TIGARD CITY COUNCIL MEETING OCTOBER 24,199S - 6:30 PM AGE DA 6,:30 p.m. ® STUDY 14EETMG > Executive Session: The Tigard City Council may go into Executive Session under the provisions of ORS 192.660 (1) (d), (e), e[ (h) to discuss labor vela bons, real propervy transactions, current and pending litigation issues. > Agenda Review 7:30 p.m. 1. BUSINESS MEETING 1.1 Call to Order - City Council 8T Local Contract Review Board 1.2 Roll Call 1.3 Pledge of Allegd ance 1.4 Council Communications/Liaison Reports 1.5 Call to Council and Staff for Non-Agenda Items 7:35 p.m. 2. VISITOWS AGENDA (Two Minutes or Less, Please) 7:45 p.m. 3. CONSEN'T' AGENDA: these items are considered to be routine and may be enacted in one motion without separate discussion. Anyone may request that an item be removed by motion for discussion and separate action. Consent Agenda - Items Removed for Separate Discussion: Any Itengs requested to be removed from the CAmsent Agenda for separate discussion will be considered Immediately after the Council has voted on those items which do not need discussion. Motion to: 3.1 Approve City Council Minutes: September 19 and 26, 1995 3.2 Receive and File: Notification that City of Tigard was Awarded the Distinguished Budget Presentation Award for the Current Fiscal Year 3.3 Local Contract Review Board: Approve Purchase of Thermolay Hot Asphalt Patch Truck from Sahlberg Equipment, Inc. 7:50 p.m. 4. CONSIDERATION OF PROHIBITMG PARKING ON SW 70TH AVENUE BETWEEN BEVELANID STREET AND FRANKLIN STREET a. Staff Report: City Engineer b. Council Consideration: Ordinance No. 9S- _MW COUNCIi. AGENDA - OCTOBER 24, 1995 - PAGE 2 mod e:oo p.m. 5. CONSIDERATION OF FINAL ORDER (QUASI-JUDICIAL) - SA'L'E DEVELOPMENT REVIEW (SDR) 91-0005/VARIANCE (VAR) 91-0010 DOLAN/MENDEZ (Set over from the October 10, 1995 Council Meeting) ► To Consider the U.S. Supreme Court remand of conditions related to the dedication of property for f1®odplAn management and a bikepath relating to the determination of the rough proportional: or b::rse : e e:::e::t~.. s Oc4Fl®i~l: 12520 SW Main Street (WCTM 2S 1 2AC, tax lot 700). APPLICABLE REVIEW CRI'T'ERIA: 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. 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. a, Staff Report b. Council Consideration: Resolution No. 95-- 8:45 p.m. 6. PUBLIC HEARING (QUASI ]UDICIAL) - ZONE CHANGE ANNEXATION (ZC.A) 95-0004/SNOOK ► A request to annex one parcel of 0.53 acres into the city and to change the zoning from Washington County R-5 to City of Tigard R-4.5. Location: The southwest corner of S.W. Gaarde Street and S.W. 114th Avenue. Applicable review criteria: The relevant review criteria in this case are Comprehensive Plan policies 2.11, citizen involvement; 10.1.1, service delivery capacity; 10.1.2, boundary criteria; and 10.1.3, zoning designation. Community Development Code Chapters 18.136, annexation requirements, and 18.138, land classification of annexed territory. ZONE: Presently Washington County R-5. Times are estimates only. 8:45 pm a. Open Public Hearing b. Declarations or Challenges Do any members of Council wish to report any ex parte contact or information gained outside the hearing, including any site visits? Have all members fanniliarized themselves with the application? Are there any challenges fc+om the audience pertaining to the Council's jurisdiction to hear this matter or is there a challenge on the participations of acv member of the Council? C. Staff Report: Community Development Department 8:50 pm d. Public Testimony COUNCIL AGENDA - OCTOBER 24, 1995 - PAGE 3 L" For all those wishing to testify, please be aware that failure to raise an issue accompanied by statements or evidence suffdent to afford the Council and parties an op 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 taward the criteria that staff will describe or other criteria In the plan or land use regulation which you Applicant Proponents Opponents Rebuttal 9:00 pm e. Staff Recommendation f. Council Questions g. Close Public Hearing 9:10 pm h. Council Consideration: Resolution No. 95-- Ordinance No. 95- 4:15 P.M. 7. PUBLIC HEARING (LEGISLATIVE) - PARKS SYSTEMS DEVELOPMENT CHARGES (SDC's) AND METHODOLOGY FOR CALCULATION OF THE SDCs. ► To consider changes to the City's Park Systems Development Charges (SDC's) and to the methodology pertaining to the calculation of these SDCs. Both public oral and written testimony is invited. A copy of the full 40-page SDC study is available upon request. Aft (Times are estimates only.) 9:15 pm a. Open Public Hearing b. Declarations or Challenges 9:20 pm c. Staff Report: Community Development Staff 7.1 Systems Development Charge Amending Ordinance to incorporate state legislative and replace the street SDC chapter of the Tigard Municipal Code. 7.2 Amendment to Parr System Classifications and Acreage Standards for Consistency with those Used in the [park System Development Charge Study 7.3 Amend Park System Development Charge Methodology and Fee Structure d. Public 'testimony (Proponent3 and Opponents: please limit testimony to fire minutes per person.) 9:35 pm ® Proponents ® Opponents 9:50 pin e. Council Questions f. Close Public Hearing g. Staff Recommendation COUNCIL AGENDA - OCTOBER 24, 1995 - PAGE 4 10:00 pm h. Council Consideration: Item 7.1 - Ordinance 95-- Item 7.2 - Ordinance 95-_ Item 7.3 - Resolution 95-%- 10:05 P.M. S. MANGLE DESIGN GUIDELINE STUDY ► Discussion and update of design guideline for the Triangie. a. Staff Report: Community Development Department b. Council Consideration: Direct staff to pursue the design guideline study through the work program outlined in material presented to the Council in the Staff Report. 10:35 p.m. 9. PRESENTATION FROM 'flat MET OFFICIALS - BUS SERVICE TO THE TIGARD AREA 10:45 p.m. 10. NON-AGENDA Will 10:50 P.M. 11. EXECUTIVE SESSION: The Tigard City Council will go into Executive Session under the provisions of ORS 192.660 (1) (d), (e), at (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 mast not disclose any information discussed during this session. 11:00 P.M. 12. AD]OURMEW f Arecorder\ca\cca 1024.95) COUNCIL AGENDA - OCTOBER 24, 1995 - PACE 5 Council Agenda Item y TIGARD CITY COUNCIL MEETING MINUTES - OCTOBER 24, 1995 Meeting was called to order at 6:36 p.m. by Mayor Nicoll. 1. ROLL CALL Council Present: Mayor Jim Nicoll; Councilors Bob Rohlf and Ken Scheckla. Staff Present: Bill Monahan, City Administrator; Tim Ramis, Legal Counsel; G. Frank Hammond, Legal Counsel; Ray Valone, Associate Planner; Catherine Wheatley, City Recorder; Lt. Bob Wheeler (present during business meeting for review of Non- Agenda item reference police car purchase request); and Randy Wooley, City Engineer. STUDY SESSION IBM% mom ® Executive Session: The Tigard City Council went into Executive Session at 6:36 p.m. under the provisions of ORS 192.660 (1) (d), (e), 8E (h) to discuss labor relations, real property transactions, current and pending litigation issues. Executive Session adjourned at 7:15 p.m. ® Agenda Review: City Administrator Monahan advised staff would be requesting Council review of an Non-Agenda Item for the purchase of six police patrol vehicles. State bids must be received by November 5, 1995, to receive a $400 per unit discount. By placing the order by November 5, the City will save $2,400. BUSINESS MEETING 1. CALL FOR NON-AGENDA ITEMS: ® City Administrator noted Council would consider the purchase of new police vehicles. This item was placed for consideration after the Consent Agenda. 2. VISITOWS AGENDA: No visitors were present. 3. CONSENT AGENDA: Staff responded to questions from Councilor Rohlf with regard to Consent Agenda Item No. 3.3. Two bids were submitted. Pacific Utility Equipment Company's bid was rejected because it did not meet specifications. MOM Motion by Councilor Scheckla, seconded by Councilor Rohif to approve the Consent Agenda as follows: 3.1 Approve City Council Minutes: September 19, and 26, 1995 3.2 Receive and File: Notification that City of Tigard was Awarded the Distinguished Budget Presentation Award for the Current Fiscal Year 3.3 Local Contract Review Board: Approve Purchase of Thermolay Hot Asphalt Patch Truck from Sahlberg Equipment, Inc. The motion was approved by a unanimous vote of Council present. (Mayor Nicoll and Councilors Rohif and Scheckla voted "yes.") NON-AGENDA ITEM: > Purchase of Six Police Patrol Vehicles Lt. Bob Wheeler, Police Department, was present and reviewed the staff report on file with the Council packet material. Brief discussion followed. Motion by Councilor Rohlf, seconded by Councilor Scheckla, to approve the staff recommendation for the purchase of six 1996 Ford Crown Victoria police patrol vehicles from Skyline Sales, Inc., on State Bid #5412. The motion was approved by a unanimous vote of Council present. (Mayor Nicoll and Councilors Rohlf and Scheckla voted "yes.") 4. CONSIDERATION OF PROHIBITING PARKING ON SW 70TH AVENUE BETWEEN BEVELAND STREET AND FRANKLIN STREET a. City Engineer Wooley reviewed the staff report on file with the Council packet material. b. Motion by Councilor Rohlf, seconded by Councilor Scheckla, to approve Ordinance No. 95-23. ORDINANCE NO. 95-23 - AN ORDINANCE AMENDING T.M.C. 10.28.130 BY ADDING PORTIONS OF S.W. 70TH AVENUE WHERE PARKING IS PROHIBITED. The motion was approved by a unanimous vote of Council present. (Mayor Nicoll and Councilors Rohif and Scheckla voted "yes.") CITY COUNCIL. MEETING MINUTES - OCTOBER 24,199S - PAGE 2 5. CONSIDERATION OF, FINAL ORDER (QUASI-JUDICIAL) - SITE DEVELOPMENT REVIEW (SDR) 91-0005/VARIANCE (VAR) 91-0010 DOLAN/MENDEZ ► 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 Sdri riain Sireet (w Il'" i' 2S 1 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. 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. a. Legal Counsel Ramis reported that the City Council voted [on 8/29/95] to tentatively support the staff recommendation and directed staff to come back with findings to support that recommendation. Mr. Ramis advised that Ccuncil, after reviewing the proposed findings may deliberate to approve the findings or direct staff to make any necessary changes. b. Council Comment: > Councilor Rohlf advised findings appear to reflect the Council decision made when last considered; however, he said he would like a statement added to reflect that Council supports having this store in the downtown the store is an enhancement to the downtown area. > Councilor Scheckla said he did not like the way the final order document was prepared and advised he did not believe he would be supporting the recommendation. > Mayor Nicoll agreed with Councilor Rohifs comment to add a statement of support for this store in the downtown. In addition, Mayor Nicoli requested that wording be added to the findings to reflect that the easement area can count toward the percentage of landscaped area required whether or not the easement area is landscaped. Additional property would then be available for building area. CITY COUNCIL M EETITIG 1bIliNUTES - OCTOBER 24, 1995 - PAGE 3 C. Consideration of Findings Set Over After brief discussion, nnajority consensus of Council was to delay taking a vote on the final decision until November 14, 1995, for full Council review and also so Staff could revise the findings with the two additions noted by Councilor Rohlf and Mayor Nicoll. 6. PUBLIC HEARING (QUASI-JUDICIAL) - ZONE CHANGE ANNEXATION (ZCA) 95-0004/SNOOK t. A request to annex one parcel of 0.53 acres into the city and to change the zoning from Washington County R-5 to City of Tigard, R-4.5. Location: The southwest corner of S.W. Gaarde Street and S.W. 1 14th Avenue. Applicable review criteria: The relevant review criteria in this case are Comprehensive Plan policies 2.1 1, citizen involvement; 10.1.1, service delivery capacity; 10.1.2, boundary criteria; and 10.1.3 zoning designation. Community Development Code Chapters 18.136, annexation requirements; and 18.138, land classification of annexed territory. ZONE: Presently Washington County R-5. a. Public hearing was opened. b. Declarations or Challenges Mayor Nicoll read the following statement: Do any members of Council wish to report any ex parte contact or information gained outside the hearing, including any site visits? (None were reported.) Have all members familiarized themselves with the application? (All members indicated they were familiar 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? (There were no challenges.) C. Staff Report Associate Planner Valone summarized the staff report on file with the Council packet material. CITY COUNCIL MEETING MINUTES - OCTOBER 24, 1995 - PAGE 4 d. Public 'Testimony: > Applicant - Rick Snook, 11430 S.W. Gaarde Street, Tigard, Oregon, testifled as owner of the property. He advised he wanted to annex to the City so he could obtain sewer service. e. Staff Recommendation: Associate Planner Valone recommended Council adopt the proposed resolution and ordinance to forward the annexation request to the Boundary Commission and to assign a zone designation to the property In conformance with the City Comprehensive Plan. f. Council Comment: In response to a question from Councilor Rohif, staff advised that an analysis of annexation procedures will be presented to Council in the upcoming months, Including a recommendation on annexation of properties within island areas. Surrounding property owners were contacted for interest in annexation to the City when an earlier annexation request had been processed. These property owners had no Interest in annexing. g. Public hearing was closed. h. Council consideration: RESOLUTION 1`!0.95-54-A RESOLUTION INITIATING ANNEXATION TO THE CITY OF TIGARD OF THE TERRITORY AS DESCRIBED IN EXHIBIT A AND ILLUSTRATED IN EXHIBIT B (ZCA 95-0004) Motion by Councilor Scheckla, seconded by Councilor Rohif, to adopt Resolution No. 95-54. The motion was approved by a unanimous vote of Council present. (Mayor Nicoll and Councilors Rohif and Scheckla voted "yes.") ORDINANCENO.95-24-AN ORDINANCE ADOPTING FINDINGSAND CONCLUSIONS TO APPROVE A ZONE CHANGE AND DECLARING AN EFFECTIVE DATE (ZCA 95-0004). Motion by Councilor Scheckla, seconded by Councilor Rohlf, to adopt Ordinance No. 95-24. The motion was approved by a unanimous vote of Council present. (Mayor Nicoll and Councilors Rohif and Scheckla voted "yes.") CITY COUNCIL MEETING MINUTES - OCTOBER 24, 1995 - PAGE 5 7. PUBLIC HEARING (LEGISLATIVE) - PARKS SYSTEMS DEVELOPMENT CHARGES (SDC's) AND METHODOLOGY FOR CALCULATION OF THE cnr,,, To consider changes to the City's Park Systems Development Charges (SDC's) and to the methodology pertaining to the calculation of these SDC's. > Council com--nsaus t- uls heading 'November set 14, I YY5, in order to have the hearing when the full Council was present. 8. TRIANGLE DESIGN GUIDELINE STUDY Community Development Director Hendryx and Associate Planner Valone reviewed the staff report and accompanying memorandum on file with the Council packet material. Councilor Rohlf asked if the process could be sped up. Community Development Director Hendryx responded that the Triangle is a high priority for the_Department; staff will expedite as much as possible. Discussion followed on the areas where work is needed in the Triangle, including the following: mom > Concern for people in the area who are being held up with plans for the use of their property; need to share information with these people. > ODOT, DLCD, and DEQ impacts to transportation planning and implementation in the Triangle. > Tri-Met has plans for expansion of service along Highway 217. > Metro 2040 shows the Triangle Area as an employment center. > Acknowledgement that this is a high priority; no objections to workplan were noted. 9. PRESENTATION OF TRI-MET OFFICIALS - BUS SERVICE TO TIGARD AREA Phil Sellinger of Tri-Met distributed information (summary on file with the Council packet material) and summarized the following: > Tri-Met Service Proposal for the Highway 217 Corridor. > Proposed Service Highlights Mr. Sellinger advised that Tri Met representatives have formed a task force and have met with several community groups including Tigard's Citizen Involvement Teams and Chamber of Commerce. CITY COUNCIL MEETING MINUTES - OCTOBER 24, 1995 - PAGE 6 10. NON-AGENDA ITEMS - (Considered after Item No 3., Consent Agenda - see above). IL . EXECUl 11 V E SESSION - Canceled 12. ADJOURNMENT: 10:10 p.m. 00__U~- tue (0 Attest: Catherine Wheatley, City Recorder Ma r City of Tigard Date: )a/ Iq 05- f:\recorder\ccm\ccm 1024.95 MUM Auk CITY COUNCIL MEETING MINUTES - OCTOBER 24, 1995 - WAGE 7 R E C E I vQPMMUN1TY NEWSPAPERS, INC. Legal h P.O. BOX 370 PHONE (503) 684-0360 Notice TT 8 3 3 6 2 5 199F BEAVERTON. OREGON 97075 t:ITY OF TIGARD Legal Notice Advertising s ior: r-a tcoi *City of Tigard • ❑ Tearsheet Notice 13125 SW Hall Blvd. • Tigard, Oregon 97223-8199 ® ❑ Duplicate Aff idavi ""j ~ ,c~-or xv: i r r-es 4'r-f. c;nr ; -e i tr, YL'd r • Accounts Payable-Terry ® oil; .yi •-r_;, - ~ . ri~~. eAFFIDAVIT OF PUBLICATION 'Vic STATE OF OREGON, ) COUNTY OF WASHINGTON, )ss. A I, JLdith Koehler being first duly sworn, depose and say that I am the Advertising Director, or his principal clerk, of the Ti gar;i-Thal ati n Times a newspaper of general circulation as defined in ORS 193.010 and 193.020; published at Tigard in the aforesaid county and state; that the City C'ounr i 1 Rtisi nPRg Meeti nq a printed copy of which is hereto annexed, was published in the entire issue of said newspaper for (INF. successive and consecutive in the following issues: October 19,1995 1 Subscribed and sworn to ore me this 19th day of October, OFFICIAL SEAL ; ROBIN A. BURGESS 1 ' GLt NOTARY PUBLIC - OREGON Nota ublic for Oregon COMMISSION NO. 024552 1 kly Commission Expires: MY COMMISSION EXPIRES MAY 16. 1997 ApFin®VIT _ The following`meeting highlights are published for your information. Full agendas may, be obtained.from the City Recorder; 13125 S.W. Hall Boulevard, Tigard, Oregon 97223,' or by calling 639-4171. CITY COUNCIL BUSINESS MEETING October 24, 1945 TIGARD CITY HALL - TOWN HALL 13125 S.W. HALL BOULEVARD, TIGARD, OREGON Study Meeting (Red Rock Creek Conference Room) (6:30 P.M.) • Executive Session: The.Tigard City CounciLmay go into Execu- tive Session under the provisions of ORS 192.660 (1) (d), (e), & (h) to discuss labor relations; real property transactions, current and pending litigation issues. • Agenda Review Business Meeting (Town Hall) (7:30 P.M.) s Consider nal.order - Dolan/Mendez - (Set over from the Oc- tober 10, 1995 Meeting) 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 determina- tion of the rough proportionality of those requirements. Location: 12520 S.W. Main Street(WCTM 2S1, 2AC, Tax Lot 700). • Notice of Public Hearing - Changes to systems Development,, Charges - The City of Tigard will conduct a public hearing to consider changes to the city's park system development charges (SDCs) and'to the ;methodology pertaining to the cal- culation of these SDCs. Both public oral and written tes- timony is invited. Please call Duane Roberts at 639-4171 if :you-have any:question or would like additional details about the SDC study or the fee adoption process. A copy of the 11613 40-page SDC study is available upon request. • Triangle Design Guideline Study - Update Report/Discussion • Presentation from Tri-Met Officials about service to Tigard area. o Public Hearing Annexation of Snook Property (ZCA 95-0004) A request to annex 0.53 acres into the city and to change zoning from Washington County R-5 to City of Tigard 4.5. Location: The southwist corner of S.W. Gaarde Street and S.W. 114th Avenue. . Local Contract Review Board Meeting, TT8336 - Publish October 19, 1995. COMMUNITY NEWSPAPERS, INC. Legal P.O. BOX 370 PHONE (503) 684-0360 Notice TT 8 3 2 2 BEAVERTON, OREGON 97075 Legal Notice Advertising °City of Tigard • ❑ Tearsheet Notice 11fNS JX 13125 SW Hall Blvd. I ' ° Tigard , Oregon 97223-8199 ° 13 Duplicate Affidavi l .62h I.62h srit no G.t no 8 cpwY ' sus nsiL66? s1d:,,igna mnu msrii gni~t ®Accounts Payable-Terry ° I aavsrl Alq nm noilh jn i.) .tmM q 1 ..~U2 Oi 4911 n•Ih%i 0t 9A :iSnj;Tl9$ Ili' L' AFFIDAVIT OF PUBLICATION STATE OF OREGON, ) fi 10 Ir. COUNTY OF WASHINGTON, )ss' 0) 111 Judith Koehler 1 7r~ti~~d. 'h; MIMI! being first duly sworn, depose and say that I am the Advertising N Director, or his principal clerk, of the m; gard-m"'.1 a i n 2imes a newspaper of general circulation as defined in ORS 193.010' and 193.020; published at Tigard in the aforesaid county and state, that the Zone Change 95-6004/Snook 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: October 12,1995 Subscribed and sworn to ore me this 12th day of October 5 OFFICIAL SEAL yy ROBIN A. BURGESS 1 NOTARY PUBLIC - OREGON Not ublic for Oregon } COMMISSION NO. 024552 L MY COMMISSION EXPIRF6 MAY16,1997 My Commission Expires: AFFIDAVIT Noll= MINE I 'mac followutx wfi21 toe considered by the Tigard City Counefl on 1q.1QW, 2&M. at'~ 30 P.M., at the Tigtuu Civic Cei►te S.W. Ilail Boulevard, Tiga il,'Oregon 97223. Both public oral dnd written, testimony is invited. The public: hearing on this matter will be condvit'test in accordance with the rules of Chapter 18.32 of Wa Ti&d Municipal Code and any rules and procedures of the City C,'ouncll:.Fkl u-e. tv raise an. I issue in person or by letter at some point prior to the close of.the'heariKC~ I one the request or failure to provide statements or evidence suffAdtent to a &4 the decisionmaker an opportunity to respond to the issue priar_tolhe-,' close of, the hearing on the request; precludes an appeal to the Lind W6, Board'of Appeals based on that issue. Further information is available at-. City Hall and may be obtained'from' the Community Development Direc for ar.(it;Recorcier at the wine 9bc;aiion; or by calling (503) 634-4171. { PUBLIC'iNCS ~C]EIANCi+E ANNEXATIQR7'(l~_A19S-OOa41SIVQ~)K_ . s A request to annex ane parcel'of OS3 acres into the:city and.to thangge'the 2.0 9'from Washington County R-5 to,Cit~ ,of,Tigard R-4.5. LOCA- TIt3Id ;T'he'sonRhwest:coxner of S:W: Gaairde'Street and ~.W. 114th Avenue:'.APP~sICABLE REY?EW CRITERIAi The relevant review ciitena in this case are Comprehensive Flan'policies 2.fl 1, citiaeri involV. cnenE; lU 1 l; service.i elive:y eapacity; I~.1.2, boundary;criteria ; sod 10.1:3; zoning designation:. Community Development Code Chapters' ` 18.136, annexation req>:i.^ements;`and 13,138, land classification of an ed territory. ZONE Presently S'Vashingtoq. County;R-5. nex . . { i 1: iii!: f: .i•:;; T ~ ; t ! t rX 1 i,i 1 ! t3. I~ i+ ? i t fitil ~a'i itjii?}i!+ f " tli!!? U ! • t".!!a i ti!! 1 li!alt,fit{+' ; si i~ t!I" 4W, 6Ni_ i l 7 .i;! it;.~ tit ;:t;??:t.f;'"r'+ i iii: i'r4:. Gu•;1,li!Ih tl . ~ { ' 1 Q.. ~ yi!i i t)?I: I?jl tl i {itf ?tyi .i?I' {i~i f ' • °ldi: ?'i i"? 1. ~!i' y{ lii~ ~ VJ. 5 ~ i~i?! ?rl ! ? + 'ft! 4 i,:, ,t a. till if it ! `tii• . , d,•+::. i'..,t : 1 ' 'i'Fi!at? liyp fiS I'''+3i ~'iE'?3,r,. •...4 ~•y,, ? (((V~; . ,,ii, +;.1~1' ~ ti•f i 1 ~ i:,.l '='4 , ; i l~fi • ? +!t :11li. 4 iii! i ,,lili+ 4,i1 i~! I I ilit r? i . ! t ! yi !I? 1 i-I 1' ~ iilF• , w !I ! 4 ! iI i ? ? 't i,l~ ? pf? U. Q MR W M90i'NtcM[ R rL4 ~ W J,_._ "'a aCD.Tl?frb3lDil ~J{.WV~i'{ ~lM 1~5. Y;i Y 1 CITY OF TIGARD, OREGON A MAVIT OF POSTING In the Matter of the Proposed STATE OF OREGON ) County of Washington ) ss. City of Tigard ) I, begin first duly sworn, on oath, depose an say: That I posted in the following publicand conspicuous places, a copy of Ordinance Number (s) which were adopted at the Council Meeting dated CDR' . Qq qqs copy(s) of said ordinance(s) being hereto attached and by refere ce made a part hereof, on the _ 14 day of Awl% 1. Tigard City Ball, 13125 SW Hall Blvd., Tigard, Oregon 2. Tigard Library, 13125 SW Mall Blvd., Tigard, Oregon 3. Tigard Water Department, 8777 SW Burnham, Tigard, Oregon Subscribed and sworn to before n, ;e this day of , 19 °15 OFFICIAL SEAL. Notary Pu c for Oregon M JO ANN HAYES NOTARY PUBLIC-OREGON COMMISSION NO. 042148 My Commission Expires' 1r`na9r 5 I % . T~ MY COMMISSION EXPIRES MAY 05. 1999 gft is\admV6affpost.doc CITY OF TIGARD, OREGON ORDINANCE NO. 95- 0~3 AN ORDINANCE AMENDING T.M.C. 10.28.130 BY ADDING PORTIONS OF S.W. 70TH AVENUE WHERE PARKING IS PROHIBITED. WHEREAS, TMC 10.28.130 prohibits parking at any time on portions of WIN= certain public streets in Tigard; and, WHEREAS, interim street improvements have been constructed on SW 70th Avenue between Beveland and Franklin Streets to provide fire access to the adjoining apartment buildings; and, WHEREAS, in order to provide the needed clear access for fire vehicles, it is necessary to prohibit parking on the street. THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: TMC 10.28.130, designating the portions of public streets where parking is prohibited at all times, is hereby amended by adding the following: 11(88) On SW 70th Avenue between Beveland Street and Franklin Street." SECTION 2: This ordinance shall be effective 30 days after its passage by the Council, signature by the Mayor, and posting by the City Recorder. PASSED: By a.4 I4Yen.0 vote of all Council members present after being read by number and title only, this e441- day of 1995. Catherine Wheatley, Ci Recorder APPROVED: By Tigard City Council thi day c QIiL. , 1995. J icoli, yor Approved as to form: City Attor ey • ~0~3/ % y5 Date ra/70-ord L ORDINANCE No. 95-,Q3 Page 1 CITY OF TIGARD, OREGON ORDINANCE NO. 95-c-?'/ AN ORDINANCE ADOPTING FINDINGS AND CONCLUSIONS TO APPROVE A ZONE CHANGE AND DECLARING AN EFFECTIVE DATE (ZCA 95-0004). , WHEREAS, the Tigard City Councll ,"eld a public hearing on October 24, 1995, to consider a zoning designation for one parcel of land located at the southwest corner of SW Gaarde Street SW 114th Avenue; and WHEREAS, on October 24, 1995, the Tigard City Council approved a resolution forwarding the proposed annexation to the Portland Metropolitan Area Local Government Boundary Commission; and WHEREAS, the zoning district designation recommended by the planning staff as set forth in the attached staff report and in Section 1 below is that which most closely approximates the Washington County land use designation while implementing the city's existing Comprehensive Plan designation of Low Density Residential. THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: Upon annexation, the affected property shall be designated as follows: Tax Map, Lot Number Current Zoning New Zonin_r 2S1 10AB, lot 4000 Wash. Co. R-5 Tigard R-4.5 SECTION 2: This ordinance shall be effective 30 days after its passage by the Council, signature by the Mayor, and Iposting by the City Recorder. PASSED: By t.,na4yyY1:n3 2 vote of all Council members resent after being read by number and title only, this -g:9-q±-Lk- day of GY.~ 199 Catherine Wheatley, City kecorder APPROVED: By Tigard City Council is day (~C LA 1995. s Ni li, Mayor Approved as t form: Clety Attorney Date ORDINANCE No. 95- of Page 1 7AGENDA M NO. 2 VISITOR'S AGENDA DATE: Cktober 2~4e 1995 minutes or less, please) the ap9~ropriate sheet for listed agenda items. The Council wishes to hear from you es not on the agenda, but asps that you first try to resolve your concerns through contact the City Administrator prior to the start of the meeting. Thank you. - STAFF NAME, ADDRESS at PHONE TOPIC CONTACTED I 7:M0g[n%J0%%1SMM.Sht ♦ e Depending on the number of person wishing to testify, the Chair of the Council may limit the amount of aft. Rme each person has to speak. We ask you to limit your oral comments to 3 - 5 minutes. The Chair may ~rrther limit time if necessary. Written comments are always appreciated by the Council to supplement oral testimony. AGENDA FI'M M. 6 DATE: October 24, 1995 PUBLIC HEARING (QUASI-AMICIAL) - ZONE CHANGE ANNEXATION (ZCA) 95-0M/SNOOK s A request to annex one parcel of 0.53 acres into the city and to change the zoning from Washington County R-5 to City of Tigard R-4.5. Location: The southwest corner of S.W. Gaarde Street and S.W. 114th Avenue. Applicable review criteria: The relevant review criteria in this case are Comprehensive Plan policies 2.11, citizen involvement; 10.1.1, service delivery capacity; 10.1.2, boundary criteria; and 10.1.3, zoning designation. Community Development Code Chapters 18.136, annexation requirements; and 18.138, land classification of annexed territory. ZONE: Presently Washington County R-5. PLEASE SIGN IN TO TESTIFY ON THE ATTACHED SHEETS AGE]MA n NO. 6_ PRASE PRY1oTi' Proponent - (Speaking In Favor) Opponent - (Speaking Against) o. --Name, Address any on. o. ame, Address an one 14 Name, Address an one No. Name, Address and one No. ame, Address an one No. None, s en one o. ame, Address an one No. s an one No. Name, Address and Phone No. Name, Address an Phone No. Name, Address an one No. ame, dress an one No. ame. Address an one o. ame, Tess an one No. Name, Address an one No. Name, Address an one No. Name, Ad ress an one No. Name, Address and Phone No. 1 Depending on the number of person wishing to testify, the Chair of the Council may limit the amount of me each person has to speak. We ask you to limit your oral comments to 3 - 5 minutes. The Chair may q1urther limit time if necessary. Written comments are always appreciated by the Council to supplement oral testimony. AG10iD.A. F1!EMN®, . '7 DATE: October 24, 1995 PUBLIC HEARING (LEGISLATIVE) - PARKS SYSTEMS DEVELOPMENT CHARGES (SDC's) AND METHODOLOGY FOR CALCULATION OI, THE SDCs. To consider changes to the City's Park Systems Development Charges (SDC's) and to the methodology pertaining to the calculation of these SDCs. Both public oral and written testimony is invited. A copy of the full 40-page SDC study is available upon request. PLEASE SIGN IN TO TESTITY ON THE ATTACHED SHEETS AGEIDA;,U NO. 7. PLEASE PltilmT'I' Proponent - (Speaking In Favor) Opponent - (Speaking Against) Name, Address an one No. Name, Address an one No. ame, Address an one No. Narne, Address and none No. ame, ress an one No. ame, Address an one No. -Wa-me, Address and Phone No. Name, Address and Phone No. Name, M dress an one o. Name, M dress an Phone No. Name, Address an one No. Name, Address an one No. Name, Address an lone No. Name, Address an one No. ame, Address an one No. Name, Address an one No. Name, Address an one No. Name, Ad dress an Phone No. Agenda Item No. _.3, Meeting of 19601~~ GOVERNMENT FINANCE OFFICERS ASSOCIATION 180 North Michigan Avenue, Suite 800, Chicago, Illinois 60601 312/977-9700 • Fax: 312/977-4806 September 22, 1995 Mr. Wayne Lowry Finance Director City of Tigard 13125 SW Hall Blvd. Tigard, Oregon 97223 Dear Mr. Lowry: A panel of independent reviewers has completed its examination of your budget document. We are pleased to inform you that the panel has voted to award your budget document the Distinguished Budget Presentation Award for the current fiscal year. This award is the Aft highest form of recognition in governmental budgeting. Its attainment represents a significant achievement by your organization. The Distinguished Budget Presentation Award is valid for one year. To continue your participation in the program, it will be necessary for you to submit your next annual budget document to GFOA within 90 days of the budget's final adoption. Enclosed is an application form to facilitate a timely submission. This form should be submitted with four copies of your budget, accompanied by the appropriate fee. Each program participant is provided with confidential comments and suggestions for possible improvements in its budgetary techniques. Your comments are enclosed. We urge you to carefully consider the suggestions offered by our reviewers as you prepare your next budget. Your award plaque will be mailed separately and should arrive in six weeks.' A camera-ready reproduction of the award will be forwarded to you for inclusion in your next budget. If you do reproduce the camera-ready in your next budget, it should be accompanied by a statement indicating continued compliance with program criteria. The following standardized text should be used: 0 WASHINGTON OFFICE 1750 K Street, N.W., Suite 650, Washington, DC 20006 202/429-2750 • Fax: 202/429-2755 Page 2 The Government Finance Officers Association of the United States and Canada (GFOA) presented a Distinguished Budget Presentation Award to the City of Tigard, Oregon for its annual budget for the fiscal year beginning July 1, 1995. In order to receive this award, a governmental unit must publish a budget document that meets program criteria as a policy document, as an operations guide, as a financial plan and as a communications device. The award is valid for a period of one year only. We believe our current budget continues to conform to program requirements, and we are submitting it to GFOA to determine its eligibility for another award. In approximately four weeks, GFOA will mail a congratulatory letter to your designated executive official, accompanied by a press release. The Government Finance Officers Association encourages you to make arrangements for a formal presentation of the award. If you would like the award presented by a member of your state or provincial finance officers association, we can provide the name of a contact person for that group. We appreciate your participation in this program and we sincerely hope that your example will encourage others in their efforts to achieve and maintain excellence in governmental budgeting. If we can be of further assistance, please contact the Technical Services Center. Sincerely, Stephen J. Gauthier, Director Technical Services Center of Enclosure MEN The Government Finance Officers Association of the United States and Canada presents this CERTIFICATE OF RECOGNITION FOR BUDGET PREPARATION to: Mr. Wayne Lowry Finance Director City of Tigard, Oregon The Certificate of Recognition for Budget Preparation is presented by the Government Finance Officers Association to. those individuals who have been instrumental in their government unit achieving a Distinguishcd Budget Presentation Award. The Distinguished Budget Presenuation Award, which is the highest award in governmental budgeting, is presented to those government units whose budgets are judged to adhere to program standards. Executive Director 6" Date September 22, 1995 Aft I=M GOVERNMENT FINANCE OFFICERS ASSOCIATION 180 North Michigan Avenue, Suite 800, Chicago, Illinois 60601 312/977-9700 • Fax: 312/977-4806 October 19, 1995 O C T 2 3 1995 The Honorable Jim Nicoli Mayor City of Tigard 13125 SW Hall Blvd. Tigard, Oregon 97223 Dear Mayor Nicoli: I am pleased to notify you that the City of Tigard has received the Distinguished Budget Presentation Award from the Government Finance Officers Association (GFOA). This award is the highest form of recognition in governmental budgeting and represents a significant achievement by your organization. Your Government's plaque will be shipped under separate cover to Mr. Wayne Lowry, who originally submitted the budget for consideration. We hope you will arrange for a formal public presentation of the award, and that appropriate publicity will be given to this notable achievement. A press release is enclosed for your use. We appreciate your participation in GFOA's budget awards program. Through your example, we hope that other governments will be encouraged to achieve excellence in budgeting. Sincerely, Jeffrey L. Esser Executive Director JLE/af Enclosure WASHINGTON OFFICE 1750 K Street, N.W., Suite 650, Washington, OC 20006 202/429-2750 • Fax: 202/429-2755 so= GOVERNMENT FINANCE OFFICERS ASSOCIATION 180 North Michigan Avenue. Suite 800, Chicago, Illinois 60601 312/977-9700 • Fax: 312/977-4806 October 19, 1995 PRESS RELEASE For Further Information Contact RELEASE IMMEDIATELY Stephen J. Gauthier (312) 977-9700 CHICAGO--The Government Finance Officers Association of the United States and Canada (GFOA) is pleased to announce that the City of Tigard, Oregon has received GFOA's Distinguished Budget Presentation Award for its budget. The award represents a significant achievement by the jurisdiction. It reflects the commitment of the governing body and staff to meeting the highest principles of governmental budgeting. In order to receive the budget award, the jurisdiction had to satisfy nationally recognized guidelines for effective budget presentation. These guidelines are designed to assess how well a government's budget serves as: ® a policy document o a financial plan ® an operations guide 6 a communications device Budget documents must be rated "proficient" in all four categories to receive the award. Since the inception of GFOA's Distinguished Budget Presentation Awards Program in 1984, approximately 650 jurisdictions have received the Award. Award recipients have pioneered efforts to improve the quality of budgeting and provide an excellent example for other governments throughout North America. The Government Finance Officers Association is a nonprofit professional association serving 12,650government finance professionals throughout North America. GFOA's Distinguished Budget Presentation Awards Program is the only national awards ,program in governmental budgeting. WASHINGTON OFFICE 1750 K Street, N.W., Suite 61,i0, Washington, OC 20006 202/429-2750 • Fax: 202/429-2755 AGENDA ITEM! 0 For Agenda of October 24. 1995 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Purchase of Hot Asphalt Patch Tmyk PREPARED BY: John Roy DEPT HEAD OK CITY ADMI14 OK ISSUE BEFORE THE COUNCIL The issue before the Council is approval of the purchase of a new Thermolay Hot Asphalt Patch Truck. STAFF RECOMMENDATION Approval of purchase of a new Thermolay Model UD-425-120 as bid by Sahlberg Equipment, Inc., for the purchase price of $84,099. INFORMATION SUMMARY Two bids were submitted as follows: AMk Sahlberg Equipment, Inc., for $92,599 less trade in of $8,500 for a total cost of $84,099. • Pacific Utility Equipment Company for $86,135 with no trade in allowed. Pacific Utility Equipment Companys bid is rejected for not meeting specifications. Their offer is for a used demonstration model. If purchase is not awarded at this time, patching of City streets will not commence in the Spring as planned, since there is a six month lead time for delivery. OTHER ALTERNATIVES CONSIDERED • Approval of purchase as id. • Request additional bids. • Continue to use existing, inefficient City equipment that requires longer heating time and additional manpower. • Give further direction to Staff. FISCAL NOTES 4fhe purchase price of.$84,099 is within the budgeted dollar amount of $88,000 rom the Street Division line item 10-2130-706.000. ' 1 12131111111111 yo- II N /F THERMOmLAY y~1''~ i ®yp+~'~4 MODEL # V ® TRUCKS AND . :P ti• r ~ rr i -FY~~ - ~;y.7+Nh~ t S~~n~yc-n:• - 7'~'i~.•~ 'TE'A ~~~~~+a*%'..-•=:.~-t~~,~+' - .4 y,Y: C p„-"~~c'i-F~ ;_•c;i 3'~--~,--2:.i-~-c~,..~-y.,^gs~S, ~ --c r ^r"4 ^'zv f" ~ r.-'' J - -r•-r' L ~-..:-:n[ t"`~~"~ -r t r1;r7..:'..}c.•bS.i,~•~?~'4-: r /-s _ . _ THE lA'7fr~4:2 `C.t:~l-illt:ua•w-......v~.NY•.'.,.\Y.li:t.:..~i;S`ufttr. i:.~.4R `~'"•U:Kryp s(•. ~}tt'r:.3`G!i'~0Af8:n6..6 •sRtt i'~SR+7 ~'S9b COMPLETE "ot As alt Mix and Sanding mach-ine • ~1' vard capacity • 120 gallon tack od '.an- Northwest 0 • Eiectnc soenoid hydraulic operated • 18 gallon diese tank Manufacturing and • 12 :o!: pdu-less ignition • Hydraulic onerC.:ea s' r5- e c: • 350000 B U Vapor propane doors Distribution, Inc. ;)I.,rner _yStenj • Hydraulic lilt for ✓bra: _ • 9 KIM electr;c heater for n,ghtl;me • Wacker VPA. 1350W c.•~'•r.?~:c;::r '.-3.... heat • Stanley 72- hydraulic r reake- i SPECIFICATIONS ••:'_5ERGEUuir%IENTINC. 13691 NE WHITAKER PORTLAND, OR 97230 HOPPER CAPACITY: 4 1/4 cubic yards minimum. (503) 255-7767 1-800-825-07 BODY DIMENSIONS: 108" long x 78" wide x 43" high maximum. INSULATION: 2" high temperature industrial grade. ASPHALT TACK OIL CAPACITY. 120 gallons. DIESEL FUEL CAPACITY. l 8 gallon. PROPANE CAPACITY: 34 gallon horizontal tank with gauge & valve. HIM HYDRAULIC CAPACITY. 30 gallon with strainer, filter, sight gauge, thermometer. WASTE OIL TANK CAPACITY. 10 gallon built into right fender with drain & insulated cover. DISPENSING SYSTEM: 6" screw conveyor auger with hard surface flights on 2" sch 80 pipe. AUGER MOTOR: 2 speed automatic shift 7800 in.lb.& 120 RPM to 3700 in. lb. & 240 RPM. ANTI-BRIDGE BAR SYSTEM: 7800 in.lb. hydraulic motor with 14 spikes on a 2" sch 80 pipe. ASPHALT TACK OIL TANK: Built into the main body and insulated with 1" insulation. ASPHALT TACK OIL PUMP: 1 1/2" gear type with external by-pass to tank. ASPHALT TACK OIL TANK HEAT: Regulated radiant heat transfer oil from the main body. ASPHALT TACK OIL WAND: 5' long 3/8" pipe with deadman valve and atomize nozzle. ASPHALT TACK OIL HOSE: 20' of 1 /2' steel braid hose on an intemally mounted reel. HYDRAULIC CONTROL VALVE: 7 bank hermetically sealed electric solenoid remoted to the rear. HYDRAULIC TOOL HOSE: 25' of 3/4" & 1/2" steel braid hose on an internal mounted reel. DIESEL HOSE: 15' of 1/4" steel braid hose on an internal mounted hose reel with deadman valve. HEATING SYSTEM: 130 gallons of heat transfer oil heated by propane burner and electric heater. PROPANE BURNER: 3 50,000 BTU vapor burner ignited by a 12 volt pilotless ignition system. ELECTRIC HEATER: 9 KW 240 volt electric heater. TEMPERATURE CONTROL: One digital thermostat with 0-999 readout and actual temperature. RADIANT OIL TEMPERATURE: One digital rear mounted thermometer 0-999 readout. ASPHALT TACK OIL TEMPERATURE: One digital rear mounted thermometer 0-999 readout. HAND PROPANE TORCH: 250,000 BTU vapor hand torch with valve and 15' of 1/4" hose. HYDRAULIC LIFT FOR PLATE/ROLLER: 24" stroke with automatic return and positive lock. HYDRAULIC BREAKER: Stanley 72# breaker with 5" spade and 6" square tamper. HYDRAULIC STEEL INSULATED DOORS: Bi-fold type with two 2" interior cylinders. DIRECTIONAL ARROW BOARD W/STROBE: 20 lights with 36" stroke front mounted. SPOILS BINS: 36" wide 2 cu. yd. capacity with gravity dump doors. SANDING ATTACHMENT: In-cab electric remote with infinite control for spinner & auger. SAFETY CIRCUIT: Stops burner when diesel or tack oil pump is operating. HYDRAULIC PUMP: Gear type open center LIVE type with overspeed on MD 3060P. P.T.O.: Chelsea hot-shift 110% with direct mount hydraulic pump. ENGINE: Diesel 210 turbo Cummins. TRANSMISSION: Allison MD 3060 six speed with VIM and overspeed. WHEEL BASE: 186" wheel base with 120" cab to axle and 50' turning radius curb to curb. FRONT AXLE: 10,000# with 10,000# suspension and automatic slack adjusters. REAR AXLE: 21,000# with 21,000# suspension. CAB: 94 cu. ft. capacity with full instruments, air conditioning, AM-FM radio, tinted windows. FUEL CAPACITY. Dual 45 gallon tanks with steps. VISIBILITY: 4008 sq. in. of tinted window area and 13' visibility line of sight-to-ground. MIRRORS: Stainless west coast type with electric passengers remote. WHEELS & TIRES: 10:00 x 22.5 steel disc 10 hole. SEATING: Dual air ride suspension seats drivers and passengers with arm rests. I SAFETY EQUIPMENT: Dual air horns, 2 cab mounted amber strobe lights, 4 way flashers. Y OF TIGARD Budget Unit: Maintenance Services 95/96 Budget Preparation Form Account No.: 10-2130-706.000 . Detailed Description 1995/96 1995/96 1995/96 1995/96 Requested Proposed Approved Adopted Asphalt Patch Truck (replacement) $88,000 This is a specialized piece of equipment that is used to heat, transport, and place hot asphalt for the purpose of repairing deteriorated streets. Hansen Street Software upgrade. $11,450 SEE DEPARTMENTAL JUSTIFICATION $99,450 o This equipment will reduce the patch crew by one person. o This equipment is self contained thus reducing vehicles needed for the patching operation from two to one. o This equipment has an auxiliary heater which reduces the amount of material waste. Q e existing patch truck is a 1984 model that has been in service for over ten years. This aging truck has Irawbacks while a new truck offers significant benefits. The existing truck has only an electric heater to warm the asphalt box. This old heater requires 6-8 hours to reach temperature. Additionally, since there is no auxiliary heater as there is on newer models it is difficult to maintain . working temperature throughout the day. The new truck has a more efficient electric heater that can bring the box to temperature in about half the time the existing truck. This truck also is equipped with a propane heater that can be used at the job site to maintain the asphalt at optimum working temperature which results in consistent patches with less waste. The existing truck needs to have its bed raised in order to remove the asphalt material. Because the bed angle must be constantly monitored or changed, one person must remain in the truck during the patching operation. The requested new truck has an auger to lift the material from the box and therefore the doesn't need person in the truck during the patching operation. The result is that presently a 4 person crew is needed for a patching operation; with a new truck a comparable crew would be 3 persons. oil In addition to the patch truck, a patch operation presently requires an additional truck to transport the compactor and hand tools to the job site. The new truck has storage for all tools and equipment needed for the patching operation so there would be no need for an additional truck for equipment transport. We presently patch potholes and pavement cuts that have been made by the Utility Division once each week in good weather. We have recently discovered that with some precaution the patching operation can be accomplished even during wet weather. We are improving our patching program with the intention of patching o days each week. This is partly contingent upon reducing the crew size by one employee. In addition, if 19fred and 74th Streets are paved, the Streets crew should save approximately 160 person hours in grading and gravel maintenance that can used in the patching program. AGENDA I'T'EM # For Agenda of October 24, 1995 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Parking restrictions on SW 70th Avenue. PREPARED BY: R. Wooley DEPT HEAD OK ®/1 CITY ADMIN OK ISSUE BEFORE THE COUNCIL Parking restrictions on SW 70th Avenue. STAFF RECOMMENDATION Approval of the attached ordinance prohibiting parking on SW 70th Avenue between Beveland Street and Franklin Street. INFORMATION SUMMARY As a condition of development for the Hampton Park Apartments, interim improvements were constructed in the right of way of SW 70th Street between Beveland Street and the unimproved right of way of Franklin Street. The nterim improvements were intended to provide a fire access to the partments. At this time, the improved street serves only as an emergency access and does not provide driveway access to any developed property. In order for the fire access to function as intended, it is necessary to prohibit parking on the street until additional improvements are completed. The attached ordinance will provide authority for the posting of "no parking" signs. OTHER ALTERNATIVES CONSIDERED FISCAL NOTES The cost of signing the "no parking" zone will be approximately $300 from the street maintenance fund. w/70-sum AGENDA ITEM # S For Agenda 'of lo A-4 1 Q5 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Consideration of Final Order - Site Development Review - (SDR) 91-0005/Variance VAR 91-0010 - Dolan/Mendez PREPARED BY: DEPT HEAD OK CITY AD MIEN OX ISSUE BEFORE THE COUNCIL Consideration of the Final Order subsequent to the City Council's motion on August 29, 1995, to approve the application with conditions. STAFF RECOMMENDATION Approve the attached resolution. - INFORMATION SUMMARY The attached findings were prepared by Legal Counsel for City Council's consideration. ----------------------OTHER ALTERNATIVES CONSIDERED 1. Amend the findings. 2. Deny the application. FISCAL NOTES n/a l 180 11 R, 311 ill 11 HIM r . v; 1 11 amir- UUUNNLLL K M J t HL 5U6-24o-21944 UCx 24.y5 15 50 NO .012 P.U1 O'DONNEL L. RAIIS CREW C®RRI & EACHRACH ATI0RNl3Y9 AT LAW Im pi.VY. sic" Simi Fmasd, 0199704 =PIIAN& (39) 2n44= FATS: (!Q3) 245-Z P AMlMV Top j=e r'AC6 E 333 OSMS =Z&WM m Roam TWO OOMMUN1CMTION MAY CONSIST OF ATTORNEY PRMLtOED AND CONFIDENT}AI. INFORMATION INTENDED ONLY FM. TN! USE OF THE INDNIDUAL ON LVMY NAMED BELOW. IF THE READER OF INS MESSAGE 12 NOT THS INTENDED 1109011004T. ORTHM LYPL*YIM OR AO" P18PON9I91,E TO DELNER n' TO THE WMNOSO ASCII i1W, YOU Alm HEREBY NOTIFIGO TWAT ANY DISS1a A ATION, DISTAILMON OR COPYWO W THIS COMMUNICATION 18 STRICTLY FRAHIW O. IF YOU HAVS RICBNiED THIS COMMUNICATION IN ERROR. PLE"11 IMMEDIATELY NOM US 3YTnVHON6 ARID RRYURNI THE COMNAL MI989AM TO US AT THE ABOVE ADDREAO VIA THE U.O. POSTAL aC VICl. TWWK YOU. I Is III 111 11, DATE: October 24, 1995 C JBNT NO.: 90036-06 TO: 71g®rd City Council _ FAX 694-7297 Phone P 639-4171 FROM: 0. Frank Hammond, Esq. FAX 0 (SM) 243.2944 DESCRIPTION OF DOCUMSNT TRANSMrMD: 10124/95 Memorandum from City Attorney's Office re Executive SummM of Findings. COMNIENTS: 7 PAGE(S) TO FOLLOW, EXCLUDING COVER SHEEN'. IF YOU DO NOT RECBIVB ALL OF THE PAGES, PLEASE CALL THE UNDERSIGNED AT (503) 222-4402 IMMEDIATELY. THANK YOU. SIGNED: Kathryn Wilson AN OIUOI14AL IS TOEING MAILED: No AN ORIGINAL 13 AVAILABLE UPON REQUEST: Yea UuUNNtLL RHMiS ET HL 5U3-245-2944 Oct 14.95 15 31 No.U12 P.U2 MEMORANDUM To: 1 agard City Council livm: City Attorney's OfRcs Subjectt Executive Summary ofFutdings Date: October 24, 1995 INTRODUCTION This Memorandum am=arizes the Findings sat out in Exhibit A to City Council of the City of TigW PInal Order In (SDR) 91-005/(VAR) 91-0010 (the "Findings`). If adopted, the Plndings will support an order imposing a condition of approval similar to that which the Supreme Court of the United States (the "Court") considered in Dolan v, City of 77gmf They are in accord with Councll's earlier decision to re-adapt such a condition and its Instruction that staff prepare findings In support of that decision. The Findings reflect the procedural posture in which this case came before Council. In 8n earlier decision, Council had imposed a condition of approval that required Applicant to make floodplain and bikepath dedications ("Original Condition One"). Applicant appealed that decision through the Court. During that appeal, Applicant challenged Original Condition One only on the ground that it allogesdly resulted in a taking of her property without just compensation, violating the Constitution of the United States (the "Constitution'). The Court held that while Tigard had established the "asoential nexus" required is an earlier case, Nollan v CO tfo nla Coastal Commission, it had not adequately addressed a new test, created in Dolan, called the "rough proportionality" test. Because ofthe Courft decision, this case came back before Council on the narrow question whether Tigard could satisfy the rough proportionality Last. In response to the remand, Staff proposed a modified version of Original Condition One that clarified some ambiguities ("R;tmand Condition One"). Remand Condition One continues to call for pedestriasnlbicyclo pathway and floodplain eatzmenta, However, it snakes clear that the city is not asking for fee title and that the floodplain easement will not allow recreational use of the floodplain, It also responds to some concerns ofApplicant raised In the remand hearings by expressly allowing her to fence the property. Applicant attacked Staffs proposal, but she did not limit her arguments to the narrow Issue on which the Court remanded the case. Instead, she raised many issues under local land use regulations, statutes and other provisions of the Constitution. Although the Findings addrtas those issues. they focus first on the questdons the Court found important. ODONNELL RAMIS ET AL 503-243-2944 Oct 24.95 15:31 Na.012 P.03 Tigard City Council Page 2 ' October 24, 1995 ANALYSIS Tigard Sal led the Aequirements bl ch the Court ,Imposed In Do w% the Court adopted a two-part analysis for evaluating exactions. To justify an exaction, a local government must flrat show that the exaction will to some extent advance a legitimate rate interest affected by the proposed development. For example, if a development cuts ofd' a public vlow, the Court said that the government could require a viewing spot in- mitigation of that impact. The Findings refer to this part of the analysis as the "nexus test." If a local government satisfies the nexus test it must then show that the exaction holds the requisite degree of relationship to the Impact ofthe development. Ths Court held that this relationship need not be specific, but need only edilbit a rough proportionality in nature and extent to the impacts of the project. The Findings mom refer to this portion of the analysis as the "rough proportionality test." As detailed in the Findings, Tigard showed that Remand Condition One satisfied the n=s we, In Dolan, the Court held that Original Condition One met the requirements of this test. Because Remand Condition One is in all relevant respects identical to that condition, the Court's holding continued to apply. On remand old decided issues may not be reopened; thereefore, the Findings provide that Tigard satisfied the nexus test. Recognizing that LUBA or the courts might disagree with this conclusion, Tigard presented evidence that Remand Condition One would eati* the nexus test if that issue was betbre Council. That. evidence showed that Applicant's project would have flood, drainage and traffic impacts which the easements called for in Remand Condition One would mitigate. Therefore, the Findings hold that Tigard satisfied the nexus test. Having addressed the nexus test, the Findings next apply the rough proportionality test. They begin by stating what that test requires. In Dolan. the Court began its review on this issue by considering two extremes. One extreme teet would find virtually any relationship to be sufficient. At tho other extreme, some states have required that exactions be specifically and uniquely attributable to the Impacts of a development. However, the Court rejected both extremes. Instead, it required the local government to show only a rough proportionality between the exaction and the project's impacts. Although the Court emphasized that mathematical certainty is not required, the local government must show that the exaction is related in nature and extent to the Impacts of the development. As detailed in the Findings, Tigard satisfied the moderate test adopted by the Court. Aft Concerning the floodplain easement, Applicant admitted that her project would add stormwater runoff to the creek. Through a variety of methods Tigard showed that the impact of that runoff would be at least equal to, if not greater than, the value of the floodplain easement. Tigard ORM tJOUNNLLL KHMIS ET aL 505-243-2944 Oct 24.95 15:32 No.012 P.04 Tiger City Council Page 3 October 24, 1995 also showed that the etsement would mitigate the impacts. Thus, the city showed this neoeaa&ry relationship between drainage impacts and the floodplain exaction. Smillidy. Tigard showed that the pathway easement met the Court's mWerste test. Although she challenged Tigard's iindlail that her project would ,generate more than 400 now trips per day, Applicant's oven expet admitted that the project would create more than 200 such trips. Moreover, based on the teg itnony of Applicant'` expert, Council could find that her development would result in more than $17,000 of additional, unmitipted traffic coats.' Considering that the path easement would be %wth only $4,500, the concluaion that Tigard had established proportionality betwean the easement and the impacts Is not remarkable. Tigarrd's evidence also showed that the pathway would mitigate for the now trips that Applicant's store admittedly will generate. David Larson, an expert traffic engineer, used an objective statistical study to show that this path segment was esuratial and that It would reduce tripe by nine percent. Thus, Tigard presented evidence more specific thgm that required by the Court, which more than showed the required dogma of rough proportionality. Applicant 's Other Argulnentss Were Not B ore Council or Were Not Well Taken. Applicant made many other arguments opposing Remand Condition One, However, as summarized in Table 1, most of thou arguments were not subject to Council's review in thia narrow remand proceeding. . . . ~ :.»K,, K.... ~ ,r. , w:..+c,'~`i..~...vw"•""~~~,.: a'G`~i.KC~wrr~wiayr w.,.w~"'.'A~*+"9'eY~.S~~y.,,.~i•.•'Seww»w"'"~'w .3"`»re.w' »'~+{c+awrr+ yy~ii~y~Y.4 w~i~WVIv.KM '~Kn.,NMNM,yKr~iKyyiy,~M.,M^M"p~ ..wn, rw^0~+. iMvr,ww.fMnMM.MIWM'4~M:MYVwIp.YMMVMyN~1wM1MVMrtK STATUS OF "OTHER" ARGUMENTS ON REMAND is=$ Properly Before Council? Rationale Whether Tigavd's land use No. Applicant had ample opponwitiea regulations allowed Tigard to in the earlier proeaading to raiw any impose a audition requiring the argument she would hours Liked dedication of floodplain and pathway concerning Tigard's authority to eaaetraant~ impose a condition like Ranand Condition One warder its I" use reg'.lationa 5hu ahm not to make atgr such asg=mmts. but fac !md only an her claims under the Takingr Claa>sc. AMA i Furthermore, Mr. Largon's testimony showed that the impacts of the development would actually be over 530,000. U1) "L t i HL ~U,-~a~-1y 4 4 Uc t 1~1 95 1 :56 CVO . U 11 P . US Tiprd City Council Page 4 October 24, 1995 . - M--m- STATUS OF "OTHER" ARGUMENTS ON REMAND 1=0 Properly Bid Council? R IJawle Whether Tigard°a decision to impose No, Applicant had ample opportunities the aacaetion based an ft trip In udicr proceedings to challonge generating characteristics of a the characterization of her hardwarrelpoint store violated the davelepment ere a hardwarofpaint wriF. state. She ohm net to rain sash cbslleagas and thercibm was ptooludad ftm doing so on remand, Whether 11gardIx interpretation of No. Tigard made substantially the ea= its land use raguladons violated state interpratatnons of its land tmc . J law. regulations in tits ®arlter proceedings to impose Original Condition One. Applicant should have made her arguments about coda Interpretation than. ASS& Whether Tigard's decision violated No. Applicant's arguments under the the Uqual Protection Clsua@ of the Equal Pr®to-otfon Clause and Article Fvideenth Amendment to the L 120 in this remand proceeding Constitution of the United States and were entirely b" on local land um Article 1, 120 of the Constitution of dociaiam made bsfaro or while her the State of Oregon, application was pending. Furtha wre, she actually contended in the earlier proacedings that 011ginal Condition One was unitir bwause'Tigard treated upland land owners difrorently than Applicant, CR 00736 ("The fact that the city approves many applicatimu that have similar effects and don stet zequire property dedication was of no commn to the Oregon ocurt.'~ No review body accepted that mg msn4 and it is rsaw hided trail not available to Applicant on remand. uuuNNLLL KHM16 t L 00-246-1944 pct 24~~5 15 33 Na,012 P.Ob Tigard City Council Page 5 October 24, 1995 .yrxM nYM STATUS OF "OTHER" ARGUMENTS ON REMAND Issue Propsrly Before Council? ~Iart1®sa~le Wl eam these remaad proosedings YO. T =haic,* Applloeat's arptent violated the Duo Prows Clause of under the Due pr= u Claus was tha ftni earth dmmufmcnt to the bdxo Council, but oaly because ft Cowtuden of the unitod states wade dw facts is her Yaweuit againd WhM Applieaat inimdurad the fact tla®oiq► part dthe rs red. of a pending lawsuit agaisat to city and bar lawyer aot VWY mUcited a mWement dimussion with Council durWg the remand bearingg. Although Council is not required to address; issues not properly before it, the Findings address Applicant's other issues in case a review body disagrees with the City's understanding of the rules governing reconsideration of old issues on remand. A detailed statement of the findings on the other Issues is beyond the scope of this Memorandum; however, the Findings address the merits of each other argument According to the following outline: 1. A condition requiting dedication of easements for flood control and alleviation of traffic impacts is appropriate under Tigard's Land use regulations A. Tigarrd's land'use regulations required Council to impose Remand Condition One or to deny the application B. Applicant's arguments under Tigard'ts land use regulations were not well-founded I. Applicant received adequate notice of Tigard's interpretation of certain land use regulations 2. Council found that approval would allow Applicant to site any general retail use on the Property 3. Comprehensive Plan Policy 7.1.2(b)(1) and related land use regulations supported Imposition of Remand Condition One Ilk uUUNNtLL KHM J E HL ~,Uo-24r1y44 Uc t 24.95 15:54 NU. U 12 P . U7 Tigard City Council AMR, Page b October 24, 1995 a. Tigard had authority under its lm,d ui@ roguistiona to impose iiw~-:«nd Coft"an Or:* b. Comprehensive Plan Policy 7.1.2 did not limit the scope ofposa le uses which Council could consider when :5ahioning conditions of approval a. Comprehensivs Plan Policy 7.1.2 and related regulations did not limit the evidence which Council could consider in AmIctueing Remand Condition One d. Remand Condition One did not violate the CDC by calling for placement of the pathway outside of the floodplain e. Role of the Parks Plan f. Remand Condition One is conaistent with Comprehensive Plan Policy 5.1.3 g. Remand Condition One door not violate Implementation Strategies 2 and 5 11. Remand Condition One and Council's rationale for that condition do not violate the V/W M. Remand Condition One and Coundl'a rationale for that condition do not violate state land use statutes Irv. Remand Condition One and Council's rational for that condition do nat offend Article I, Section 20 of the Constitution of the State of Oregon or the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States A. Applicant did not show thAt Remand Condition One violated Article L Section 20 B. • Applicant did not show that Remand Condition One violated the equal Protection Clause N. The procedure used in adopting Remand Condition One did not offend the Due Process Clausa of the Fourteenth Amendment to the Constitution of the United States RW- UUUf4Nr-LL KHM I J al ML UJ-i14J--"7uu UL t . 95 15 J~ NO . U 1-' 1' . Ub Tigard City Council Page 7 October 24, 1995 C®NCI4L3~ION Tha Fuxfinga concentrate first on showing that Tigard satisfied the testa the Court appUad or created In Dolan v City of ? rd,, Because evidence in the record showed that the olty did satisfy those tests,, the Findings corotude that It should snposo Remand Condition One. Most of Applicant's othsr mwgumob wr.-a not at issue in the narrow remand proceedings. Nevertheless, the city showed that they were without merit. ~ort~a.~t~atzarost~.tvra Ash CITY OF TIGARD, OREGON RESOLUTION NO. 95- A RESOLUTION UPON CITY COUNCIL REVIEW 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 - SITE DEVELOPMENT REVIEW (SDR) 91-0005/VP.RIPNCE (VAR) 91-0010 DOLAN/MENDEZ WHEREAS, the Tigard City Council held a public hearing on the U.S. Supreme Court Remand of Conditions, and WHEREAS, the Council reviewed the evidence related to the application and remand in a public hearing setting on June 27, 1995, July 18, 1995, and August 29, 1995. NOW, THEREFORE, BE IT RESOLVED by the-Tigard City Council that: Section 1. The findings and conditions of approval are specified as set forth in Exhibit A attached hereto. Section 2. The Council orders that the City Recorder send a copy of this final order to the applicant as a notice of final decision in this matter. OEM PASSED: This day of 1995. Mayor - City of Tigard ATTEST: City Recorder - City of Tigard £:\1ogin\cathy\do1an.roa Joan RESOLUTION NO. 95- EXHIBIT A TO CITY COUNCIL OF THE CITY OF TIGARD FINAL ORDER. IN (5DR) 91-005/(VAR) 91-0010 TABLE OF CONTENTS Y. GENERAL MATTERS 1 A. Overview & Approach to Findings 1 B. Evidence Admitted Into the Record 4 C. Adoption of Staff Reports 4 II. BACKGROUND ......................................................5 A. Basic Facts 5 - - B. Procedural Posture 5 III. ANALYSIS ..........................................................5 A. Introduction ..............................................8 B. Remand Condition One Passes the Nexus Test 9 1. The Supreme Court Found in Dolan II That Tigard Had Satisfied the Nexus Test Council Did Not Need to Revisit That Issue 9 a. The Court Upheld Tigard's Decision Concerning Original Condition One Under the Nexus Test 9 b. Because of the Court's Holding, Council Could Find That Remand Condition One Satisfied the Nexus Test Without Reapplying That Test 11 2. Although Unnecessary to Its Decision, Council Found that Tigard Had Satisfied the Nexus Test 12 a. Tigard Could Have Denied the Permit Without Effecting an Unconstitutional Taking ..........................13 (1) Denial of the Permit Would Have Served Legitimate State Interests 13 (2) Denial of the Application Would Not Have Deprived the Property of Economically Viable Uses 14 (3) Applicant, Through Her Attorney, Admitted That Tigard Could Deny the Application 14 b. Remand Condition One Advances the Same Legitimate State Interests Affected by Applicant's Project 15 (1) The Nexus Test Required That Tigard Show a Relationship Between the Impact of Applicant's Development and a Solution Mitigating That Impact 15 (2) A Nexus Existed Between Remand Condition One and the Drainage and Traffic Impacts of Applicant's Project 17 lop, (3) Remand Condition One is Not a Gimmick or Ruse 17 MUMIT A TO FINAL ORDER Page - ii mum &IM (4) Tigard Justified the Limited Public Floodplain Access in Remand Condition One 18 (5) The Bicycle/Pedestrian Way is Meant to Reduce Auto Traffic, Not Just Provide Recreational Opportunities 21 C. Remand Condition One Satisfies the New Rough Proportionality Test from Dolan II 24 1. Requirements of the Rough Proportionality Test 24 2. The Required Flood Plain Easement Satisfies the Rough Proportionality Test 31 a. Tigard, Through an Individualized Evaluation, Showed That Applicant's Project Would Have Significant Impacts . 31 b. Tigard Established a Reasonable Agh Correspondence Between the Impacts of the Development and the Purposes It Offered in Support of Remand Condition One ............................38 (1) Tigard Fixed the Deficiency the Court Identified 38 (2) Tigard Showed a Reasonable Correspondence Between the Impacts of Applicant's Development and the Requirement of a Limited Public Easement for Enhancement and Maintenance of the Floodplain and Creek Channel ..............39 qw. EXHIBIT A TO FINAL ORDER Page - iii (3) Remand Condition One Does Not Call on Applicant to Provide "Excess Capacity" 41 C. Tigard Showed that the Floodplain Easement Called for in Remand Condition One Wou'.d or Would Be Likely to Nfitigate for the impacts of Applicant's Development 46 d. Tigard Showed That the Floodplain Easement in Remand Condition One Was Roughly Proportional in Extent to the Impacts of Applicant's Development 47 3. The Required Bike/Pedestrian Path Easement Satisfies the Rough Proportionality Test 48 a. Tigard, Through an Individualized Evaluation, Showed That Applicant's Project Would Have Significant Impacts . 48 b. Tigard Established a Reasonable AM& Correspondence Between the Impacts of the Development and the Purposes It Offered in Support of Remand Condition One ............................55 C. Tigard Showed That the Bicycle/Pedestrian Pathway Easement Called for in Remand Condition One Would or Would Be Likely to Mitigate for the Impacts of Applicant's Dcvelopm.ent 57 d. Tigard Showed That the Bicycle/Pedestrian Pathway Easement in Remand Condition One Was Roughly Proportional in Extent to the Impacts of Applicant's Development ................................61 D. Most of Applicant's Other Arguments in Opposition to Remand Condition One Were Not Properly Before Council In This Remand Proceeding ..............................................64 EXHIBIT A TO FINAL ORDER Page - iv E. A Condition Requiring Dedication of Easements for Flood Control and Alleviation of Traffic Impacts is Appropriate Under Tigard's Land Use Regulations......... ...................................67 1. Tigard's Land Use Regulations Required Council to Impose Remand Condition One or to Deny the Application ..................................67 2. Applicant's Arguments Under Tigard's Land Use Regulations Were Not Well-Founded 69 a. Applicant Received Adequate Notice of Tigard's Interpretation of Certain Land Use Regulations 70 b. Council Found That Approval Would Allow Applicant to Site Any General Retail Use on the Property 70 C. Comprehensive Plan Policy 7.1.2(b)(1) and Related Land Use Regulations Supported Imposition of Remand Condition One 73 (1) Tigard Had Authority Under Its Land Use Regulations to Impose Remand Condition One .................73 (2) Comprehensive Plan Policy 7.1.2 Did Not Limit the Scope of Possible Uses Which Council Could Consider When Fashioning Conditions of Approval 74 EXHIBIT A TO FINAL ORDER Page - v (3) Comprehensive Plan Policy 7.1.2 and Related Regulations Did Not Limit the Evidence Which Council Could Consider in Structuring Remand Condition One 77 (4) Remand Condition One Did Not Violate the CDC By Calling for Placement of the Pathway Outside of the Floodplain 77 (5) Role of the Parks Plan 79 (6) Remand Condition One Is Consistent With Comprehensive Plan Policy 8.1.3 ................79 (7) Remand Condition One Does Not Violate Implementation Strategies 2 and 5 80 F. Remand Condition One and Council's Rationale for That Condition Do Not Violate the WTIF 80 pea= G. Remand Condition One and the Council's Rational for That Condition QMR-M Do Not Violate State Land Use Statutes 81 H. Remand Condition One and the Council's Rational for That Condition Do Not Offend Article I, Section 20 of the Constitution of the State of Oregon or the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States 85 1. Applicant Did Not Show That Remand Condition One Violated Article I, Section 20 86 2.. Applicant Did Not Show That Remand Condition One Violated the Equal Protection Clause 87 EXHIBIT A TO FINAL ORDER Page - vi I. The Procedure Used in Adopting Remand Condition Orw Did Not Offend the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States 92 IV. CONCLUSION ......................................................93 APPENDIX ONE - EVIDENCE IN RECORD A APPENDIX TWO: EQUAL PROTECTION ANALYSIS OF CASES CITED BY APPLICANT a EXHIBIT A TO FINAL ORDER Page - vii EXHIBIT A TO CITY COUNCIL OF THE CITY OF TIGARD FINAL ORDER IN (SDR) 91-005/(VAR) 1-0010 L GENERAL MATTERS A. OVERVIEW & APPROACH TO FINDINGS This Exhibit A sets out the findings supporting the Final Order in (SDR) 91-005/(VAR) 91- 0010 (the "Final Order"), which the City of Tigard ("Tigard") issued through its City Council ("Council') in response to the decision of the United States Supreme Court in Dolan v. City of Tigard, _U.S. , 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994). Because of the long history of this case and the nature of the proceedings on remand, these findings begin with a review of the events leading to the Final Order as they influenced the approach Council took to making its decision. On September 17, 1991, Council approved the application of Florence and John Dolan' for site development review of a substantial expansion of retail uses on their property in downtown Tigard (the "September `91 Approval"). CR 01018.2 Council imposed several conditions of approval, including one requiring Applicant to dedicate property in and near a floodplain to allow drainage improvements and construction of a bicycle/pedestrian way ("Original Condition One") 3 Applicant appealed either Original Condition One or its similar 1989 predecessor in two LUBA appeals and one appeal to the courts, culminating with a decision from the United States Supreme Court. See Dolan v. City of Tigard, 114 S. Ct. 2309. In her appeals, Applicant challenged 1 Mr. Dolan died while he and Mrs. Dolan were appealing aspects of the City's conditional approval. This Exhibit A will refer only to Mrs. Dolan, designating her as "Applicant." 2 In this Exhibit A, references to the record generated in the remand proceedings are prefixed with the code "CR" followed by the page number in the current record at which the supporting materials can be found 3 Original Condition One provided as follows: The applicant shall dedicate to the City as Greenway all portions of the site that fall within the existing 100-year floodplain [of Fanno Creek] (i.e., all portions of the property below elevation 150.0) and all property 15 feet above (to the east of) the 150.0 foot floodplain boundary. The building shall be designed so as not to intrude into the greenway area. CR 01043-44. Original Condition One solely because through that condition, Tigard had allegedly taken her property without paying just compensation, in violation of the Takings Clause in the Fifth Amendment to the Constitution of the United States' and Article 1, Section 18 of the Constitution of the State of Oregon.' See Dolan v. City of ?Ygard, 20 Or. LUBA 411 (1991) [hereinafter rirPrl as Dolan 1]; Dolan v. City of Tigard, 22 Or. LUBA 617 (1992). Although LUBA and the Oregon courts rejected Applicant's challenge, the United States Supreme Court applied its rough proportionality test, newly minted in the Court's Dolan opinion, to hold that Tigard had not justified Original Condition One adequately. The Court found that although the September `91 Approval satisfied the essential nexus requirement of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), see Dolan, 114 S. Ct. at 2318-18, Tigard had not made a sufficient, "individualized determination that [Original Condition One was] related both in nature and extent to the impact of the proposed development." Id. at 2319-20. The Court remanded the case for further proceedings, allowing Tigard to make the required findings. Id. at 2322. On June 27, 1995, July 18, 1995, and August 29, 1995, Council conducted hearings to comply with the Court's decision (the "Remand Hearings'). Applicant then made arguments under the Court's new test; but she also made arguments not raised in her appeals, challenging Tigard's authority to impose exactions like those in Original Condition One. Those arguments were based on statutes, Washington County's Traffic Impact Fee (the "WT1F"), Tigard's Comprehensive Plan 4 The Takings Clause in the Fifth Amendment to the Constitution of the United States provides: "[Mor shall private property be taken for public use, without just compensation." It applies to the actions of state and local governments by virtue of the Fourteenth Amendment to the Constitution of the United States. See Dolan v. City of Tigard, _ U. S. 114 S. Ct. 2309, 2316, 129 L. Ed. 2d 304 (1994), citing Chicago, B. & Q.R. Co. v. Chicago, 166 U. S. 226, 239 (1897); Dept. of Transportation v. Hewett Professional Group, 321 Or 118, 131 n.7, _ P.2d (1995); Dodd v. Hood River County, 317 Or. 172, 181 n. 11; 855 P.2d 608 (1993) (dictum). 5 Article I, Section 18 of the Constitution of the State of Oregon provides: Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered; provided, that the use of all roads, ways and waterways necessary to promote the transportation of the raw products of mine or farm or forest or water for beneficial use or drainage is necessary to the development and welfare of the state and is MM, declared a public use. MMMIT A TO FINAL ORDER Page - 2 (the "Comprehensive Plan"), Tigard's Community Development Code ("CDC"), Article 1, Section 20 of the Constitution of the State of Oregon and the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the Constitution of the United States. In making its decision, Council found that it should first consider procedural and substantive aspects of the Court's new test. Applying that test to the specific facts here, Council concluded that exactions like those imposed in Original Condition One would not result in an unconstitutional taking. Council also addressed Applicant's other arguments. Most of those arguments were not before Council in this narrow remand proceeding, however; Council nevertheless considered the substantive merits of each argument, finding none to be valid. After undertaking its analysis and for the reasons detailed below, Council decided to impose a condition of approval similar to Original Condition One. The condition replacing Original Condition One provides as follows: The applicant shall dedicate by easement to the City all portions of the site that fall within the existing 100-year floodplain of Fanno Creek (i.e., all portions of the property below elevation 150.0) (the "Drainage Area") and all property 15 feet above (to the east of) the 150.0 foot floodplain boundary (the "Bike/Pedestrian Path Area") (the Drainage Area and the Bike/Pedestrian Path Area shall be collectively referred to as the "Easement Area"). The easement required by this Condition shall allow the City to undertake only the following uses in the Easement Area: A. The easement will allow the City access to the Drainage Area only for the purpose of conducting or constructing flood and drainage controls, repairs and improvements for the purposes of reducing or preventing flooding and erosion and for improving drainage within the City. The easement will not allow the general public to access the Drainage Area. B. The easement will allow the City access to the Bike/Pedestrian Path Area for the purpose of constructing and maintaining a bicycle and pedestrian path and to use as necessary for activities allowed in the EXHIBIT A TO FINAL ORDER Page - 3 . Drainage Area. The easement will allow the general public access to the Bike/Pedestrian Area only for the purpose of walking and using unmotorized forms of transportation such as bicycles. The building shall be designed so as not to intrude into the Easement Area. Applicant may build a fence to exclude the general public from the Drainage Area and from access to the rear of the proposed building. (Hereinafter referred to as "Remand Condition One.") B. E+ vIDENc,E AADmrrrED Duo THE REcoRD In this remand proceeding, Council held two hearings at which it received written and oral evidence. Council also held a third hearing to allow representatives of Applicant and Tigard's staff ("Staff') to answer questions. In addition, Council accepted evidence and testimony during the periods between hearings, and it left the record open 29 days after the July 18, 1995, hearing for submission of evidence and arguments. Appendix One to these Findings lists evidence received and admitted by Council during these remand proceedings. Council also admitted into evidence and AOL actually had before it the complete record of Tigard's earlier consideration of the applications of May 1989 and March 1991, the record of proceedings in the two LUBA cases, and the record of proceedings throughout Applicant's appeal to the courts. It was Council's intent to admit into evidence all materials and testimony that were actually before it for consideration in this matter. C. ADOPTION OF STAFF REPORTs Staff submitted reports dated June 20, 1995, July 11, 1995, August 2, 1995, and August 16, 1995, to Council for its consideration. Council adopted those reports as findings supporting its decision, incorporating them into this Exhibit A by this reference, excepting any portion of such a report which contradicted or was inconsistent with the findings set out herein. ENMIT A TO FINAL ORDER Page - 4 H. BACKGROUND A. BASIC FACTS Applicant and her son own 1.67 acres of property (the "Property") fronting on Main Street in downtown Tigard. See CR 003 11 (ownership); CR 01022 (size); Dolan v. City of Tigard, 22 Or. LUBA at 618 (relationship to downtown). Fanno Creek runs along the southwest property line, and the Property is improved with a 9,700 square foot building and a partially paved parking lot. CR 01022. A -Boy Supply Co., Inc. ("A-Boy"), "an Oregon corporation doing business as a plumbing, electrical and related building retail supply business" is leasing the building on the Property as a store. CR 00311. A -Boy operates several such stores in the Portland Metropolitan Area. See CR 00757, et seq. (advertisements for several A -Boy stores). Tigard's zoning maps designate the Property CBD, Central Business District, subject to the Action Area Overlay, AA, Zone. CBD zoning allows for many rand uses. Examples include retail sales, civic uses, meeting halls, offices, restaurants, motels and high density residential developments (40 units per acre). CDC § 18.66.030. The Action Area Overlay Zoning District, CDC Chapter 18.86, applies in areas of intensive land uses. CDC § 18.86.010. Its requirements ensure that projected public facility needs, pursuant to CDC Chapter 18.64, are addressed during redevelopment. CDC § 18.86.040.A. B. PROCEDURAL POSTURE On May 5, 1989, Applicant and her late husband filed an application for site development review. In paragraph 2 of the application, they described their project as being for "replacement of existing sales facility with a larger building." Dolan I, Record at 250. Applicant and her husband signed the application and were the sole applicants. A-Boy was not a party. Id at 251. Construction of the new 17,600 square foot building was only part of Applicant's plans for the Property. She expected to completely pave the gravel portion of her parking lot, tear down the 9,600 square foot existing building, and to develop later a "Phase II" retail building on the site. The Application did not, however, include a request that Tigard approve the Phase II building. E) KIMIT A TO FINAL ORDER Page - 5 Aft Section 18.120.020 of the CDC required Applicant to file the Application for the first phase of her development. That section requires "site development review-" when a person plans to undertake a "major modification" of an "existing development." Applicant has always agreed that her proposed redevelopment of the improvements on the Property was a "major modification" sufficient to trigger site development review. Tigard's Planning Commission ("Commission") issued a decision approving the Application. That approval was subject to 15 conditions. Among those conditions was the precursor to Original Condition One. As drafted by Commission, that condition required Applicant to dedicate the flood plain and an area for the bicycle/pedestrian way, but it also included a requirement that Applicant build the bicycle/pedestrian way and provide a survey of the flood plain. Applicant appealed Commission's decision to Council, assigning error to, among other things, the dedication and construction requirements. Council approved the Application subject to 15 conditions, adopting most of Commission's requirements. With regard to the precursor of Original Condition One, however, Council removed the requirements that Applicant build the bicycle/pedestrian way and provide a survey. Council also allowed Applicant to count the area of the flood plain and bicycle/pedestrian way towards the CDC's requirement that fifteen percent of the site be landscaped.' Applicant, who had objected to the precursor of Original Condition One solely on the ground that it was a taking in violation of the federal and state prohibitions on takings without just compensation, appealed Council's decision to LUBA. In that appeal, Applicant challenged Original Condition One, and she based that challenge solely on her allegation that the condition effected an unconstitutional taking. See Dolan I, 20 Or LUBA 411. LUBA, however, found that Applicant's taldngs claim was not ripe because she had not applied for a variance that would allow her to avoid the requirements in Original Condition One. Id. at 425-26. s In the September `91 Decision, Council also allowed Applicant to count the areas covered by the floodplain and pathway dedications towards the landscaping requirement. CR 01035. EMMIT A TO FINAL ORDER Page - 6 Auk Rather than appeal LUBA's decision in Dolan I, Applicant filed a new application seeking a variance to avoid the requirements of Original Condition One as imposed in Council's earlier decision. In that application, Applicant described the purpose of the project as follows: "[t]he construction of a 17,600 square foot building having a general retail sales facility." CR 00754. Applicant and her husband signed the application and were the sole applicants. A -Boy was not a party. Id The application set out the following justification for the variance: The variance requested by the applicant should be allowed as the conditions and dedications required by the City of Tigard violate the applicant's rights under the Oregon and United States Constitutions. Specifically, the City's demand for dedication constitute [sic: constitutes] an unlawful taking and violation of the Oregon Constitution, Article 1 [sic: I], Section 18 and the Fifth Amendment to the United States Constitution. The proposed variance will not materially be detrimental to the purposes of the title nor conflict with the policy of the comprehensive plan as no park exists at this time nor does the City have sufficient funding in which to create a park that the bicycle/pedestrian path is theoretically going to be used to access. There are special circumstances that exist which are peculiar to the lot in that the building which the applicant proposes to construct cannot be erected without invading the City's proposed bicycle/pedestrian path if the land is dedicated. This hardship is not self-imposed but rather imposed by the City's dedication and the variance requested is the minimum variance which would alleviate the hardship to the applicant. Brief for Responded, United States Supreme Court No. 93-518, Appendix E at E-4, quoting "Statement of Justification for Variance." In its September `91 Approval, Council rejected Applicant's request for a variance. The September `91 Approval therefore reimposed Original Condition One. CR. 01043-44. EXHIBIT A TO FIlVAL ORDER ' Page - 7 Applicant appealed the September `91 approval to LUBA, and, after LUBA upheld Council's decision, to the Oregon appellate courts and, ultimately, to the United States Supreme Court. Dolan v City of Tigard, 22 Or. LUBA 617, aff'd, 113 Or. App. 162, 832 P.2d 853 (1992), aff'd, 317 Or. 110, 954 P.2d 437 (1993), rev'd & remanded, _U.S. 114 S. Ct. 2309, order on remand, 319 Or. 567, 877 P.2d 1201 (1994) (per curiam) [hereinafter cited as Dolan R]. The findings in this Exhibit A respond to the new constitutional test the United States Supreme Court promulgated in Dolan 11, as provided for in that Court's remand decision. Dolan 11, 114 S. Ct. at 2322. III. ANALYSIS A. INTRODUCTION In these proceedings, Council was presented with a narrow remand issue based on a test applied for the first time by the United States Supreme Court in Dolan 11. There, the Court found that while Original Condition One had the requisite nexus with Tigard's legitimate interests in preventing flooding, securing adequate storm water drainage, and reducing traffic congestion, as required by Nollan, Tigard had not shown a rough proportionality between the condition and the impacts of .Applicant's development. Because the Court remanded the case solely on that issue, giving Tigard an opportunity to make findings in compliance with the new test, Council found that the only issue properly before it was whether Tigard could satisfy the rough proportionality test. Applicant nevertheless argued on remand that several other issues were before Council. She claimed that Council had to decide whether Tigard had proven a nexus between the state interests proffered in support of Remand Condition One, the impacts of her development, and the required easement dedication. Applicant also advanced several arguments based on provisions of law other than the federal Takings Clause. Because Applicant advanced several alternative theories in opposition to Remand Condition One, Council considered the merits of her theories. Council nevertheless continued to believe that only the narrow issue remanded by the Supreme Court was before it. In making these findings, Council first analyzed whether it had to reapply the nexus test and, assuming that the test had to be reapplied, whether Tigard continued to satisfy that test. Council then considered the issue remanded from the Supreme Court, and finally decided the availability and merits of Applicant's other EXHIBIT A TO FINAL ORDER Page - 8 arguments. After making this analysis, Council concluded that it should impose Remand Condition One. B. REMAND C®NDITION ONE PASSES THE NEXUS TEST 1. The Supreme Court Found in Dolan II That Tigard Had Satisfied the Nexus Test Council Did Not Need to Revisit That Issue Original Condition One and Remand Condition One call for similar exactions, except that Remand Condition One clarifies that Tigard is not requiring Applicant to make the floodplain area available for recreational purposes and that Tigard does not intend to acquire fee title.' Because the conditions are so alike, the Supreme Court's decision that Original Condition One satisfied the nexus test equally applies to Remand Condition One. Indeed, the Court's holding on that point was not legally subject to reconsideration here. a. The Court Upheld Tigard's Decision Cnpcernipg Original Condition One Under the Nexus Test InNollan v California Coastal Commission, 483 U. S. 825 (1987), source of the nexus test, the plaintiffs owned a small beach-front house situated between the beach and a coastal road. They decided to expand the size of the house greatly, which they could not do without a permit from the Commission. When the Commission granted the permit, it required as a condition of approval that the plaintiffs give it an easement allowing the public lateral access on the adjoining beach, which the plaintiffs' owned. In support of the condition, the Commission argued that the larger house would block views of the beach from the coastal road. The Commission said that giving the public lateral access along the beach would mitigate for the loss of the view. In rejecting the Commission's justification, the Court created the nexus test, which Applicant said Council must reapply here. The Court found that requiring an easement without compensation or other justification would have been an unconstitutional taking. Id at 841-42. To avoid such a 7 Remand Condition One also provides that Applicant-can fence the floodplain area to prevent the public from accessing that area. Such a provision was not included in Original Condition One. Council felt it appropriate to insert such a provision because of Applicant's concerns about security expressed during the remand hearings. EXHIBIT A TO FINAL ORDER Page - 9 result, the Court required the Commission to show that the condition had a nexus to legitimate state interests affected by the larger house. Id at 837. If, for example, the Commission had required the plaintiffs to dedicate part of thew property as a view point from the road to the beach, the condition would have passed the Court's scrutiny. Id at 836. The Court found, however, that the requirement of an easement allowing people to walk along the beach had no relationship to protecting the view UGM the road. BeCaUse the exact_nn did not advance the state interest offered asjustification, the Court held that the Takings Clause forbade the Commission from imposing the condition. Id. at 837. In Dolan II, the Court found that Original Condition One passed the nexus test. Tigard argued that the city's legitimate interests in preventing flooding and reducing traffic congestion justified the condition. The Court agreed, finding that Original Condition One was quite different from the condition invalidated in Nollan. [In Nollan,] [w]e agreed that the Coastal Commission's concern with protecting visual access to the ocean constituted a legitimate public interest.... We resolved, however, that the Coastal Commission's regulatory authority was set completely adrift from its constitutional moorings when it claimed that a nexus existed between visual access to the ocean and a permit condition requiring lateral public access along the Nollan's beachfront lot.... The absence of a nexus left the Coastal Commission in the position of simply trying to obtain an easement through gimmickry No such gimmicks are associated with the permit conditions imposed by the city in this case. Dolan II, 114 S. Ct. At 2317 (emphasis added). According to the Court in Dolan II, the interests Tigard advanced in support of Original Condition One did have a sufficient nexus to the impacts of Applicant's project. It seems obvious that a nexus exists between preventing flooding along Fanno Creek and limiting development within the creek's 100-year floodplain. Petitioner proposes to double the size of her retail store and to pave her now-gravel parking lot, EXHIBIT A TO FINAL ORDER Page - 10 , - - thereby expanding the impervious surface on the property and increasing the amount of stormwater run-off into Fanno Creek. The same may be said for the city's attempt to reduce traffic congestion by providing for alternative means of transportation. In theory, a pedestrian/bicycle pathway provides a useful alternative means of transportation for workers and shoppers . Id at 2318 (emphasis added). After deciding that Original Condition One passed the nexus test, the Court in Dolan II reached the issue it had left open in Nolhvi. That issue concerned the required degree of relationship between the condition, the interests justifying the condition, and the impacts of the development. The Court held that Tigard was required to show rough proportionality between the condition and the impacts of the development. Because it found that Tigard had not made such a showing, the Court remanded the case to allow the city to make findings satisfying the new test. Hence, the only issue before Council was whether Tigard satisfied the new rough proportionality test in these remand proceedings. b. Because of the Court's Bolding. Council Could Find That Remand Condition One Satisfied the Nesus Test Without Reapplying That Test On remand, "parties may not raise old, resolved issues again." Beck v. Tillamook, 313 Or. 148, 153, 831 P.2d 678 (1992). Old issues include those which the local government and appellate bodies have actually resolved and those which "could have been, but were not, raised in the first appeal." Louisiana Pacific a Umatilla County, 28 Or. LUBA 1086, 1090 (1994). Here, Applicant argued throughout the appeal of Original Condition One that the floodplain and pathway dedications did not meet the nexus test. In that argument, she raised all of the challenges she has raised on remand, including contentions that the dedication did not have a nexus with the drainage impacts of her project and that the pathway was only for recreation. Every EXHIBIT A TO FINAL ORDER Page - 11 appellate body to consider her argument, including the Supreme Court of the United States, found Admk that it was mistaken. Each body held that Tigard had satisfied the nexus'test. Applicant claimed to Council that the Court's decision on the nexus test was not binding because Remand Condition One differed in some respects from Original Condition One. However, as pertains to the nexus test, Council found that no significant differences existed. Indeed, the only change of any account in that regard was that Remand Condition One clarified that the floodplain dedication was not meant to further recreation. Because the issues concerning the nexus test were resolved in the previous appeal, they were not before Council on remand. 2. Although Unnecessary to Its Decision, Council Found that Tigard Had Satisfied the Nexus Test Although Council found that the Supreme Court's decision prevented reconsideration of the nexus test, Applicant asserted that minor differences between Remand Condition One and Original Condition One made this decision subject to that test. Accordingly, Council found that it should reapply the nexus test on the chance that LUBA or the courts would agree with Applicant. As detailed above, the nexus test, if applicable to this decision, required Tigard to show that Remand Condition One advanced the same legitimate state interests affected by Applicant's development. With regard to traffic, for example, Tigard was required to show that the easement dedication for the bicyclelpedestrian way had a nexus with. mitigating the increases in traffic that the larger store would cause. Besides establishing a nexus between the interests impacted by the development and the state interests supporting the condition, some dictum in Nollan and Dolan II implied--but did not hold-- that Tigard was required to show that the supporting interests would have justified denial of the Application. If such a rule did apply, Tigard was required to show that denial of the permit would advance legitimate state interests and would not deprive the property of all economically viable uses. See Agins v City of Tiburon, 447 U.S. 255, 260 (1980) (stating test for finding regulatory takings).' s In Section III.E.1, infra, this Exhibit A sets out Council's grounds for finding that Tigard's local land use regulations would have allowed it to deny the Application. AML EXHIBIT A TO FINAL ORDER Page - 12 Council did not decide whether such a showing was mandatory, however, because it found that Tigard had satisfied even the strictest version of the nexus test. Council therefore applied the nexus test with the assumption that Tigard was required to show that it could deny the Application without effecting an unconstitutional taking. In applying the nexus test, Council was not concerned 'With the proportionality of the relationship between the easement dedications and the impacts from the development. Council's reasoning on that issue--the rough proportionality test--is set out bellow. Here, Council addressed only whether the typ a of relationship the Court required in Nollan was present. a. 1192rd Could Have Denied the Permit Without Effecting an Unconstitutional Taking (1) Denial of the Permit Would Have Served Legitimate State ]Interests The Court has "not elaborated on the standards for determining what constitutes a `legitimate state interest,'" but it has made clear "that a broad ranbe of governmental purposes and regulations" satisfy the test. Nollan v. California Coastal Commission, 483 U.S. at 834-35; see, e.g., Agins, 447 U.S. 260 (scenic zoning); Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) (landmark preservation); Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (residential zoning). In Dolan H the Court held that Tigard's interest in managing the floodplain and drainage system and in mitigating traffic congestion were legitimate state interests. Dolan II, 114 S. Ct. at 2317-18. Tigard proffered those same interests in support of Remand Condition One, and they would have supported denial of the Application. Applicant, through her representatives, freely admitted that her project would have drainage and traffic impacts. As detailed in Section III.C, infra, those impacts would be significant. Had Council denied the permit, the impacts of the project on Tigard's drainage and street systems would never occur. Therefore, denial of the Application would have advanced Tigard's legitimate state interests in preventing flooding, managing drainage, and mitigating traffic impacts. EM911BIT A TO FDTAL ORDER Page - 13 (2) Denial of the Application Would Not Have Deprived the Property of Economically Viable Uses If Council had denied the Application, its decision would not have deprived the Property of economically viable uses. Evidence in the record showed that Applicant is currently leasing a store on the property to A -Boy. CR 01421. This use or a similar use would have remained if Council had denied the Application. Therefore, denial of the Application would not have deprived the property of economically viable uses. As the Court held in Dolan II, "There can be no argument that the permit conditions would deprive [Applicant] `economically beneficial us[e]' of her property as she currently operates a retail store on the lot. [Applicant) assuredly is able to derive some economic use from her property." Dolan II, 114 S. Ct. at 2316 n.6 (emphasis added). (3) Applicant, Through Her Attorney, Admitted That Tigard Could Deny the Application In summary, Council could have denied the Application to advance the legitimate state interests of flood and drainage control and traffic mitigation. Indeed, Applicant's attorney, Mr. Smith, admitted that Tigard had the authority to deny the Application in the following colloquy during oral argument before the Supreme Court of the United States: QUESTION Mr. Smith, are you going to comment on the question whether the city would have been within its rights to deny the building permit entirely? MR. SMITH Yes, Your Honor. And we would agree that the City would have been within its authority to decry the permit outright. However, that that of course might raise a different takings question that's outside the realm of dedications and municipal exactions, and not only that, that no, Your Honor, we are not. QUESTION: We we take the case on the assumption that the City could have denied it? EXHIBIT A TO FINAL ORDER, ' Page - 14 Aft MR. SMITH: Yes, Your Honor, that is correct. CR 00823 (emphasis added). b. Remand -Condition One Advances the Same Legitimate State Interests Affected by Applicant's Project (1) The Nexus Test Required That Tigard Show a Relationship Between the Impact of Applicant's Development and a Solution Mitigating That Impact Council found, as did the Court in Dolan 11, that the existence of an impact on legitimate interests plus a regulatory solution directed toward mitigating the impact were sufficient to satisfy the nexus test. See Dolan 11, 114 S. Ct. at 2318. Council was concerned, however, that this holding y not be misinterpreted. The distinction which the Court has drawn between the nexus test and the new Yes Would denial Yes Yes Yes Would the development serve that Interest Wald the condition condition roughly Impact a IegtHmete stile end not deny the ov„cr of serve some purpose as lathe athe on In roure 8 Interest? an econcmlcellY viable that Impeded bYthe Wart? use? (Perhaps not dovelopment? ropuired.) No No No No The condition is permissible The condition Is Impermissible Figure 1 NollanlDolarn Decision Process E3GMIT A TO FINAL ORDER Page - 15 rough proportionality test is somewhat artificial. The nexus test requires a showing that the proposed condition will address a development's impacts on legitimate state interests, but it does not require a finding that the proposed condition is proportional to those impacts. Instead, it leaves that requirement up to the next step in the analysis, the rough proportionality test, which this Exhibit A applies below. Thus the nexus test concerns itself with an either/or proposition. A condition survives scrutiny under the nexus test so long as it advances a legitimate state interest which the development impacts to any degree. It is the rough proportionality test of Dolan 11 which examines whether a condition passing the nexus test is sufficiently tailored to survive scrutiny under the federal Takings Clause. The resulting decision process is set out in Figure 1 and is the process Council used here. A comparison of the Nollan decision with the decision in Dolan 11 confirmed the accuracy of Council's holding. In Nollan, the Court did not reach any issue concerning the required degree of relationship between the impact of the development and the nature and extent of a condition purporting to mitigate that impact. The Nollan Court held that no such inquiry was necessary because in that case the facts showed that there was no nexus between the development's impacts and the challenged condition. Nollan, 483 U. S. at 838-39. In Dolan 11, by way of comparison, the Court found that Original Condition One satisfied the nexus test applied in Nollan because it was reasonable to believe that the condition would mitigate for the project's impacts on the floodplain and Tigard's traffic system. Dolanll, 114 S. Ct. at 2318. After making that finding, however, the Court in Dolcnt 11 found that Tigard had not satisfied the rough proportionality test, showing that the Court believed the two tests to be analytically distinct. See Dolan 11, 114 S. Ct. at 2318 The second part of our analysis requires us to determine whether the degree of exactions demanded by the city's permit conditions bear the required relationship to the projected impacts of petitioner's proposed development.") (emphasis added).' 9 In Dolan 11, the Court explained its reasoning process as follows: In evaluating petitioner's claim, we must first determine whether the `essential nexus' exists between the `legitimate state interest' and the permit condition exacted by the city.... If we find that a nexus exists, we must then decide the required degree of connection between the exactions and the projected impact of the proposed development. We were not required to reach this question in Nollan, because we concluded that the connection did not meet even the loosest standard... Here, however, we must decide this question. Dolan 11, 114 S. Ct. at 2316. Ask EXHIBIT A TO FINAL ORDER Page - 16 (2) A Nexus ]Existed Between Remand Condition One and the Drainage and Traffic Impacts of Applicant's Project Applicant admitted that her project would increase the amount of storm water running into Fanno Creek and the number of automobile trips that would be on the city's streets. See, e.g., CR 00104 ("The issue is not whether the Dolans are generating stormwater from their site, they are."); CR 00146 ("The expansion of the Tigard A-Boy store will add 206 trips per day to the surrounding street system."). Evidence in the record showed that Remand Condition One would mitigate for these increases, thereby advancing Tigard's legitimate interests, which also would have supported denial of the Application, in managing flooding and drainage and mitigating traffic impacts." Therefore, the condition satisfied the nexus test by advancing the same legitimate state interests that Applicant's project impacted and which would have supported denial of the Application. (3) Remand Condition One is Not a Gimmick or Rase Applicant made several arguments that Tigard had not shown a sufficient nexus to pass the test. She began those arguments by claiming that Remand Condition One was "trickery" or a "ruse" to justify acquisition of the floodplain for recreational purposes. According to Applicant, the bicycle/pedestrian way will draw the general public to her property and will induce those people to go into the floodplain in violation of the easements called for in Remand Condition One. Council found that Applicant's accusation that Remand Condition One was a trick or ruse was not well taken. The Supreme Court of the United States rejected a similar accusation in Dolan 11, finding that Tigard's decision to impose Original Condition One involved "[n]o such gimmicks." Dolan 11, 114 S. Ct. At 2317 (emphasis added). Further, Council reviewed several slides, which showed the steepness of Fanno Creek's banks on the Property. CR 01553. They showed that the creek's banks are very steep, which will deter persons who use the path from going into the floodplain. Moreover, Remand Condition One would not eliminate the ability of Applicant to exclude the general public from the floodplain area. Under Remand Condition One, Applicant would remain entitled to all of the remedies, such as an action for trespass, that she currently had to exclude others io Council's detailed analysis the evidence showing that Remand Condition One would mitigate for the impacts of Applicant's project appears infra at 46, 58. This Exhibit A incorporates that analysis in support of Council's finding that Remand Condition One satisfied the nexus test by this reference. EXHIBIT A TO FINAL ORDER Page - 17 , from the floodplain. The condition also provides that Applicant can fence off the floodplain so that the public is not lured into a belief that they can freely access the area. (4) Tigard Justified the Limited Public Floodplain Access in Remand Condition One Applicant also argued that Remand Condition One failed the nexus test because, according to her, Tigard had failed to justify ownership by the public of an easement allowing limited access to the floodplain. According to Applicant's lawyer, Tigard could just as well rely on private landowners to maintain the floodplain in a piecemeal fashion. Evidence in the record refuted her lawyer's assertions, however. Mr. McGuire, an expert drainage engineer (CR 00080, testified that public ownership of an easement in the floodplain was essential. Mr. McGuire noted that Tigard's Master Drainage Plan, part of the Comprehensive Plan, provides that "`Natural drainageways require regular maintenance to be efficient hydraulic conduits for flood flows. Required maintenance items include debris removal, mulching, seeding, erosion control, vegetation clearing and sediment clearing."' CR 00778. To undertake the required maintenance, Mr. McGuire testified, a public easement is essential: 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 ENIIBTT A TO FINAL ORDER Page - 18 1111111111111 1 11 11! 01 1 1 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 Fanno Creek drainage. Uncoordinated maintenance by individual owners would not be effective. CR 00778 (emphasis added). Tigard's justification for acquiring a public easement to maintain the floodplain should not have come as any surprise to Applicant. The National Floodplain Managers Association submitted a brief on precisely this point to the United States Supreme Court as a friend of the Court. That brief was placed in the record of the remand proceedings. -In its brief, the Association explained precisely the rationale advanced by Mr. McGuire. According to the Floodplain Managers Association, the most efficient flood management system requires that channels remain unblocked and be capable of receiving the full water flowing into a portion of a channel from upstream. The alternative would be large flows feeding water into more constricted areas so that the system could actually increase flood problems. Flood management systems can only work if the flow discharge and conveyance systems on each property are intelligently integrated. Not only is comprehensive flood management more efficient, it is also more accurate and more fair. A comprehensive analysis permits a greater dedication of technical resources and allows a cumulative analysis of how potential development can impact overall flooding levels. A comprehensive plan reduces the likelihood that individual decisions will be capricious and impose burdens unfairly. CR 01300-01 (emphasis added). Notwithstanding the strong evidence supporting public ownership, Applicant's lawyer claimed that the Comprehensive Plan said that Tigard had adequate regulations to administer the floodplain without acquiring floodplain easements. However, the lawyer seriously misunderstood the Comprehensive Plan. FAIT A TO FINAL ORDER Page - 19 Section 3.2 of the Comprehensive plan sets out some of Tigard's approaches to floodplain management." Part ofthat section, which Applicant's lawyer used to make his argument, states that "[t]he City of Tigard currently has ordinances, policies and standards within the Tigard Community Development Code which provide adequate controls for development within floodplain areas." In taking this section out of context, Applicant's lawyer claimed that it showed that public access to the floodplain was unnecessary. However, in context that is not'what the section says. The regulations which led Tigard to find that its floodplain controls were adequate anticipate, among other things, that Tigard will require dedication of easements, such as that imposed here, to allow Tigard access to the floodplain. For example, Policy 3.2.4 provides that "[t]he City shall require the dedication of all undeveloped land within the 100-year floodplain...." Although because of Dolan 11, -Tigard cannot apply Policy 3.2.4 without first conducting a nexus/rough proportionality review, the policy shows that Tigard evaluated the adequacy of its floodplain regulations based on an understanding that they included dedications of floodplain easements. Thus, the language on which Applicant's attorney relied does not show that Tigard found its regulations to be adequate without the need for public ownership. Another portion of the Comprehensive Plan supports this conclusion. The Comprehensive Plan at Volume I, page 193, provides that Tigard should implement the recommendations of the Master Drainage Plan. The Master Drainage Plan calls for the dedication of floodplain easements to prevent floodplain development and to allow maintenance of the floodplain and creek channel. Master Drainage Plan at 9-1. The CDC carries out these provisions by requiring dedication of easements where necessary to address drainage problems in accord with the Master Drainage Plan. See CDC §18.164.100; see also CDC §18.120.180.A.8 C' Where landfill and/or development is ' allowed within and adjacent to the 100-year floodplain, the City shall require dedication of sufficient open land area."); CDC 18.120.18.A..15 ("All drainage plans shallbe designed in accordance with the criteria in the adopted 1981 master drainage plan [sic]."). Applicant also argued that no essential nexus existed with the floodplain easement because, she asserted through her lawyer, Tigard has no policy calling for maintenance of the floodplain and creek channel. That assertion is untrue. The Master Drainage Plan, which is part of the Comprehensive Plan, calls for major channel improvements near Applicant's property and for ii Chapter 7 the Comprehensive Plan also sets out floodplain policies. Agh EXHIBIT A TO FINAL ORDER Page - 20 maintenance of the floodplain and creek channel. See, e.g., Master Drainage Plan at 7-11, 7-2-74. Furthermore, the Master Drainage Plan recognized that improvements would occur over many years because of funding and other limitations. See, e.g., Master Drainage Plan at 9-1 ("Only the full implementation of the recommended plan will provide relief from the 100-year flood throughout the Tigard area. Fiscal and political constraints, however, will dictate the need for phasing the various strategies."). Tigard has undertaken improvements and maintenance required in the Master Drainage Plan. For example, as Applicant's lawyer testified, Tigard replaced the Main Street Bridge, one of the improvements called for in the Master Drainage Plan. See, e.g., CR 00104 (noting replacement of the Main Street bridge). Evidence in the record also showed that Tigard has exercised its maintenance responsibilities under the Master Drainage Plan. CR 00095. Finally, Applicant's claim that Tigard has the right under general municipal law to go on property during emergencies to clear the creek channel misses the point. The Master Drainage Plan calls for improvements and maintenance to prevent emergencies. (5) The Bicycle/Pedestrian Way is ]Meant to Reduce Auto Traffic, Not Just Provide Recreational Opportunities Applicant argued that the bicycle/pedestrian way could not satisfy the nexus test because Tigard's planning documents said that its purpose was recreational. She reasoned that the trips which her project will generate will be for shopping and commercial purposes. Therefore, according to Applicant, a nexus did not exist between her impact--more shopping and commercial trips--and the bicycle/pedestrian way. Applicant's argument was not well taken, however, because Tigard's planning documents and expert testimony showed that the bicycle/pedestrian way was intended to and will serve shopping and commercial trips, mitigating the traffic impacts of the project. To make her argument, Applicant introduced selective quotations from Tigard's planning documents to give the mis-impression that the city intended that the bicycle/pedestrian way serve only recreational trips. However, when Council put all of the relevant provisions together, it found that Tigard intended the bicycle/pedestriari ay to serve a wide variety of trips, including these for shopping and commercial purposes. Tigard's Park and Pathway Plans showed the multiple purposes that the bicycle/pedestrian way would serve. Applicant, for example, criticized the bicyclelpedestrian way because it would run EXbIIBIT A TO FINAL ORDER ' Page - 21 into Fanno Creek Park, claiming that connection proved the pathway to be solely for recreational purposes. The Park Plan directly refuted this inference. Instead, it established that the park was meant to act as a hub," drawing people to use the path for both recreational and commercial purposes. Besides helping to meet the recreational needs of the community, and preserving important natural areas, the implementation of the [Park and Pathway] Master Plans will work to support commercial and residential development in the City. The development of Fanno Park will directly complement anticipated improvements to the City Center. The outdoor recreational opportunities offered in the park will attract area residents to the Main Street area and increase their exposure to this commercial center. Further, the park improvements will provide an attractive setting for the commercial area, making it a more pleasant experience for shoppers and the commercial clients. CR 01522. Fanno Park, to which the pathway runs, "is designed to be intensively used and programmed for a variety of recreational, civic, and commercial functions.... This site is seen as an important part of developing the Main Street and City Center area into an important focus for the citizens of Tigard and surrounding areas." Id. Similarly, the Pathway Plan included among its criteria 12 Tigard made its intent that the park act as a hub for alternative mode trips clear in the Park Plan, as follows: Access to the site [Fanno Creek Park] can be made at various points throughout the park. The principle locations are found at the end of Ash Street, at Hall Boulevard, from the Civic Center and Senior Center, and from the residential areas south of the park. Pathways and bridges through the developed area of the park provide safe and convenient access between the Senior Center, the Civic Center, residents from the Chelsea subdivision, and other visitors to the park. As more pathways and bridges are completed, neighborhood residents and park visitors will have better access to the park and the downtown commercial area. As the.greenway pedestrian/bicycle pathways are completed, Fanno Creek Park will serge as an important connection and provide access to the downtown area for residents both north and south along Fanno Creek. CR 01395. This part of the Park Plan responds to Applicant's claim that the path avoids major development area. From its review of the maps in the record Council found that this path does use the park as a hub, connecting it to outlaying areas and to the downtown. By running through the park, the path will provide an attractive route to the downtown not provided by other bicyclelpedestrian links. The path thus does not limit access "like a freeway," as Applicant's lawyer mistakenly claimed. Afill EXMIT A TO FINAL ORDER Page - 22 SWO in establishing paths that they would serve major shopping areas, CR 01406, and, contrary to Applicant's assertions, included downtown Tigard, which this path will serve, as a major generator of such trips. CR 01407. Expert testimony also established that the bicycle/pedestrian way would reduce trips. Although analyzed in more detail below, Mr. Larson, an expert traffic engineer, testified that Tigard's pathway system would result in a nine percent reduction in automobile trips. CR 00781. He also testified that the segment oftlie pathway running through the Property was essential to obtaining that reduction: In order to achieve the, the, pedestrian environment factor 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 85% of all trips 15% of all trips to be accomplished by pedestrian or bike travel. 7-18-95 Tr. at 16.. Council's review of Oversized Exhibits 69, 70, 71, and 79 confirmed this conclusion. Those exhibits mapped out all of the pathways intended under the Bicycle Pathway Plan. The maps showed that Tigard is developing an interconnected system and that this pathway is an integral part of the system to provide access to downtown from outlying areas. Based on this evidence and the statements in the Master Pathway Plan and the Parks Plan, Council found that a nexus did exist between the traffic impacts of Applicant's project and the bicycle/pedestrian way called for in Remand Condition One. Before closing its consideration of the nexus test, Council addressed one additional argument of Applicant having to do with the bicycle/pedestrian way. She argued that the pathway had to be for recreation because it would be located along the floodplain and not next to a city street. Her inference that the location of the pathway implies that it would be solely for recreation was mistaken. A bicycle/pedestrian way located away from auto traffic would provide a greater margin of safety than would an on-street path. "The interaction between pedestrians and vehicles places pedestrians EXHIBIT A TO FINAL ORDER Page - 23 at a distinct disadvantage. One obvious result is the annual pedestrian accident toll of more than one- quarter of a million casualties including 10,000 deaths." CR 01326. "In the absence of separated pedestrian aad automobile facilities, pedestrian casualties rise [I]n the absence of sidewalks and pathways, the risk of pedestrian accidents increases by 72 percent." CR 01339; see also CR 01328 ("The pedestrian function extends to bicycling pathways as well. Bicycle riding in many American towns and cities, like walking, is neither enjoyable nor safe because of the dominance of the automobile."). The Master Pathway and Parks Plans recognized these dangers and called for off- street facilities. CR 01406,01395. Moreover, witnesses testified that walking and bicycle riding in Tigard was dangerous and that they would be more likely to walk or use their bikes for shopping and other commercial purposes if the path called for in Remand Condition One was built. CR 00468, 00467, 00465. For these reasons, "[t]he idea that separate facilities are needed to accommodate vehicles and walking is several thousand years old." CR 01328. Tigard did establish the required nexus. C. REMAND COmmoN ONE SATisF s THE NEw ROUGH PROPORTIONALITY TEST FROM DOLANII 1. Requirements of the Dough Proportionality Test In Dolan Il, the Court required the city to show that the condition also passed the new rough proportionality test. Before reviewing evidence on that issue, Council decided what that test required of Tigard. In Dolan 11, the Court granted review "to resolve a question left open by [its] decision in Nollan of what is the required degree of connection between the exactions imposed by the city and the projected impacts of the proposed development." Dolan II, 114 S. Ct. at 2312. The Court found this question to be germane because, unlike the Commission in llrollan, Tigard had satisfied the nexus test. Id at 2316. "Since state courts ha[d] been dealing with this question a good deal longer than" the Court, it "turned to representative decisions made by them for guidance" in formulating its test. Id at 2318. From its review of state cases, the Court gleaned three different approaches. First, it identified a group of cases "where very generalized statements as to the necessary connection EXHIBIT A TO FINAL ORDER Page - 24 . WJ between the required dedication and the proposed development seem[ed] to suffice." Id. The Court found this standard to be "too lax to adequately protect [Applicant's] right to just compensation if her property [was] taken for a public purpose." Id. The Court next considered a group of cases where state courts had "require[d] a very exacting correspondence, described as the `specifi[c] and uniquely attributable test."' Id, quoting Pioneer Trust & Savings Bank v. Mount Prospect, 22 M. 2d 375, 176 N.E.2d 799, 802 (1961). "Under this standard, if the local government cannot demonstrate that its exaction is directly proportional to the specifically created need, the exaction becomes "a veiled exercise of the power of eminent domain and a confiscation of private property behind the defense of police power regulations." Dolan II, 114 S. Ct. at 2318, quoting Pioneer Trust & Savings Bank, 176 N.E.2d at 802. But the Court held that the specific and uniquely attributable test did not apply, stating bluntly that it did "not think the Federal Constitution requires such exacting scrutiny given the nature of the interests involved." Dolan II, 114 S. Ct. at 2318-19. After rejecting the lenient test of some states and the exacting test of others, the Court found a third category of cases where the state courts had taken a middle course, applying a "reasonable relationship test." Id at 2319. The Court quoted with approval the following description of that test: "The distinction, therefore, which must be made between an appropriate exercise of the police power and an improper exercise of eminent domain is whether the requirement has some reasonable relationship or nexus to the use to which the property is being made or is merely being used as an excuse for taking the property simply because at that particular moment the landowner is asking the city for some license or permit." Id quoting Simpson v North Platte, 206 Neb. 240, 292 N.W.2d 297, 301 (1980) (emphasis added). Although the Court referred to the reasonable relationship test with approval, it did "not adopt it as such." Dolan II, 114 S. Ct. at 2319. It did not do so "partly because the term `reasonable ENHIBI T A TO FINAL ORDER Page - 25 relationship' seems confusingly similar to the term `rational basis' which describes the minimal level of scrutiny under the equal protection clause of the Fourteenth Amendment." Id (emphasis added). The Court did not describe its other reasons for not adopting the reasonable relationship test, but its use of the word "partly" in describing its justification for not to adopting that test implies that such reasons did exist. Considering the Court's favorable attitude towards the reasonable relationship test, Council believed it most logical to think that the test the Court ultimately chose was a new form of that test refined to address federal concerns. Thus, instead of adopting the reasonable relationship test per se, the Court minted a new formulation to be applied after a local government had shown the nexus required by Nollan: We think a term such as "rough proportionality" best encapsulates what we hold to be the requirement of the Fifth Amendment. No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development. Id. (emphasis added). The Court offered no list of factors that must be proven to satisfy the test. Nor did it set out black letter rules governing the required degree of relationship, merely saying that the test required only rough proportionality and not a precise mathematical calculation. The Court's factual analysis, however, went a way towards filling in these blanks. Original Condition One required Applicant to dedicate an easement to the floodplain, which might have allowed public access for recreation. Nevertheless, the Court found that the floodplain dedication satisfied the nexus requirement. Dolan II, 114 S. Ct. at 2318. However, in applying the rough proportionality test, the Court decided that the findings supporting the floodplain dedication did "not show the required reasonable relationship." Id at 2321 (emphasis added). The Court reasoned that although Tigard had shown adequate grounds to forbid development of the floodplain, it had not justified public ownership. The Court was concerned that Original Condition One allowed the public access to the floodplain for recreation because Tigard had not shown that Applicant's project would affect that interest. Id at 2320-21. EY.IMIT A TO FINAL ORDER Page - 26 At first blush, the Court's ruling appears to be only an application of the nexus test. At least Justice Souter thought so. Dolan II, 114 S. Ct. at 2330 (Souter, J., dissenting). But the Court emphasized that it was creating a two-step process and that the floodplain dedication had satisfied the first step. Dolan II, 114 S. Ct. at 2318. Council therefore realized that it must find and adopt the explanation of the rough proportionality test fully honoring the approach required by the Court. To that end, Council first observed that to pass the nexus test Tigard needed only to satisfy an either/or proposition. Either Remand Condition One advanced a legitimate state interest to some extent or it did not do so. Because Council found that Remand Condition One did advance such an interest, it, like the Court with regard to Original Condition One, found that Remand Condition One passed the nexus test. See, supra at 9. However, unlike the nexus test, Council found that the rough proportionality test required proof that Remand Condition One reasonably related to impacts from Applicant's project as a function of their nature and extent. See Dolan II, 114 S. Ct. at 2321 (finding that Tigard had failed to "show the required reasonable relationship between the floodplain easement and the petitioner's proposed new building.") (emphasis added). The Court's application of the test of Dolan II exemplified how it governs evaluation of an exaction as a function of its nature and extent, clarifying that the analysis is not limited to an either/or proposition. Instead, the holding in Dolan II shows that a condition's purpose must roughly correspond to the interests impacted by the development. Thus, the Court found that although Original Condition One satisfied the nexus test by advancing the legitimate state interest of flood and drainage management, the city had not shown that its purposes for acquiring a public greenway roughly corresponded to the drainage impacts of the project. Accordingly, the Court held that the condition had passed the nexus test but that the city's findings were insufficient to show rough proportionality. The Court's analysis of Tigard's justification of the bicycle/pedestrian pathway was also illuminating. There, the Court found that Applicant's project would seriously effect Tigard's street system. Dolan II, 114 S. Ct. at 2321. The Court also found that pedestrian and bicycle ways often help reduce traffic congestion. Id at 2318. Nevertheless, the Court held that Tigard had not "met its burden of demonstrating that the additional number of vehicle and bicycle trips generated by [Applicant's] development reasonably relate to the city's requirement for a dedication of the pedestrian bicycle pathway easement." Id at 2321 (emphasis added). The reasons the Court gave for this conclusion illustrate another facet of the rough proportionality test. Affll~ EXHIBIT A TO FINAL ORDER Page - 27 In its findings, Tigard had justified the pathway easement by saying that the path "could offset some of the traffic demand and lessen the increase in traffic congestion." Id at 2321-22 (emphasis added). The Court held that the city's use of the word "could" was too equivocal, adopting the suggestion in the dissenting opinion of Oregon Justice Peterson that Tigard be required to show that the path "`would"' or "`would be likely to... offset traffic demand. Id at 2322, quoting Dolan II, 317 Or. at 127 (Peterson J., dissenting). In imposing this requirement, though, the Court emphasized that " (nlo precise mathematical calculation is required." Dolan II, 114 S. Ct. at 2322 (emphasis added). Under the rough proportionality test, "the city must make some effort to quantify its findings in support of the dedication for the pedestrian/bicycle pathway beyond the conclusory statement that it could offset some of the traffic demand generated." Id (emphasis added). Eased on its review of the steps taken by the Court, Council found that the new test placed the following obligations on the city: ► Tigard was required to make an individualized evaluation of the impacts from Applicant's development. ► Tigard was required to establish a reasonable correspondence between the impacts of the development and the purposes offered in support of the easement dedications. ► Tigard was required to make some showing that the proposed easement dedications would or would be likely to mitigate for the impacts offered in justification for the condition. And, ► Tigard was required to show that the extent of the exaction was roughly proportional to the expected impacts of the project. EXHIBIT A TO FINAL ORDER' Page - 28 Ir c%,:!F :wring these requirements, ILLUSTRATION OF ROUGH PROPORTIONALITY Amok Council found that the Court Legend expressly rejected any demand for Range of Roughly Proportional Exactions specific or exact proportionality Exaction clearly Less Than Impacts between, the exactions and the project's impacts. Indeed, the 5 Court's approval of the reasonable o relationship test, which it found to be a middle ground between exacting and permissive scrutiny,„ showed that it intended to allow for a range of possible outcomes that a city could adopt in any given case. 1 Nature8 Extent W. Impacts Figure 2 illustrates this concept as a discrete band of outcomes Figure 2: Graph illustrating rough proportionality concept allowable under the Court's decision. Aft. Council found confirmation of its interpretation in the Court's explanation of the competing interests which must be weighed in deciding exaction cases. In Dolan II, the Court began by noting that cases such as the present raise two competing constitutional principles. On one hand, the Court found it obvious that if Tigard had simply demanded the easements from Applicant, the Takings Clause would have required the city to pay her just compensation. Dolan II, 114 S. Ct. at 2316. On the other hand, the Court has historically granted local governments broad discretion in zoning cases. Id. Here, the Court held that the quasi-judicial nature of the decision and the fact that Tigard was proposing to acquire an interest in the Property, tipped the balance against giving the city's decision the full deference usually accorded by courts to local zoning legislation. Id Indeed, it was for this reason that the Court imposed the burden on Tigard to show that the exactions passed the rough proportionality test. Id at 2320 n.8. Although the Court selected a rule granting less deference than usual to Tigard's decision, it still recognized a zone of discretion based on the authority of local governments to regulate land use, illustrated in Figure 2 by the gray-shaded band, in which the city, riot the courts, would be charged EXHIBIT A TO FINAL ORDER Page - 29 with deciding whether particular exactions were justified. This is what led the Court to describe its choice of tests as a requirement of only "rough proportionality," id. at 2319, and to reject the specifically and uniquely attributable test, saying, "[w]e do not think the Federal Constitution requires such exacting scrutiny, given the nature of the interests involved" Id. at 2318-19 (emphasis added)." Council was not sure whether Applicant disagreed with this understanding of the governing legal rule.24 Applicant appeared at some points to be arguing for a standard similar to the specific and uniquely attributable test. She claimed, for example, that the dedication must relate "directly" to the impacts and that "[t]he [city's] analysis must show how it relates to the size, scale, and effect of the Dolan property and its uses." Although these statements are not necessarily inconsistent with Council's understanding of Dolan II, to the extent Applicant meant to suggest that a very exacting test should apply here, she was mistaken. The Court expressly rejected such an approach. As with most abstract legal tests, the rough proportionality test draws real meaning from its application to specific facts. Therefore, rather than further debate Applicant's legal arguments in the abstract, Council chose to address them in its analysis of the evidence. Thus, after gaining an understanding of the Court's new test, Council moved on to decide whether Remand Condition One fell into the permissible range of exactions, considering the circumstances presented here. 13 A zone of discretion is also appropriate because "there never has been (and probably never will be) an ultimate criterion by which to distinguish clearly between regulation and taking, the tests (in corollary fashion) are lacking in standards that are precise, easy to apply, and productive of uniform results." J.C. Vance, Exaction of Right of Way by Exercise of Police Power, in R.D. Netherton, Ed., 2 SELECTED STUDIES IN HIGHWAY LAw 936-N227, at 936-N227 (1988). 14 Applicant. has not consistently advocated a single 'approach to the takings question. Her lawyers have, however, made statements that imply she agrees with the formulation of the test set out here. In her Supreme Court Brief, for example, her counsel said the following, which appears to be in accord with Council's understanding of the rough proportionality test: If the city had, by a study, determined how much storm water entered Fanno Creek, and specifically how much more runoff would be caused by the Dolans' new store, it might have been able to constitutionally justify the dedication for the storm drain and greenway.... If it had, by a study, determined the number of additional pedestrians, bicyclists, and automobiles the new store would generate, and how those numbers compared to the existing traffic loads on city streets, sidewalks, and bike paths, it might have been able to justify the pedestrian and bike path dedication. CR 00734. EXHIBIT A TO FINAL ORDER Page - 30 2. The Required Flood Plain Easement Satisfies the Rough Proportionality Test a. Tigard 'T'hrough an Individualized Evaluation, Showed That Applicant's Project Mould Have Significant Impacts Applicant proposed to almost double the size of her store and to pave a now gravel parking lot. She thus planned to increase substantially the amount of impervious surface on the Property. "It is axiomatic that increasing the amount of impervious surface will increase the quantity and rate of storm-water flow from [Applicant's] property." Dolan H, 114 S Ct at 2320. Indeed, Mr. McGuire, an expert drainage engineer, CR 00085, calculated that the project would increase the runoff from the site during a 25-year storm event from 1.32 cubic feet per second ("cfs") to 1.91 cfs, an increase of 0.59 cfs. CR 00847. Applicant's own engineer, Mr. Harris, testified that the runoff from the project would be even higher, anticipating an increase of 0.91 cfs. CR 01531. Council therefore found that the project would increase runoff to Fanno Creek from the Property. Tigard used several methods to estimate the significance of the increase in runoff, including a method recommended by Applicant's attorney. In his testimony to Council on June 27, 1995, Mr. Ask Smith, one of the lawyers for Applicant," argued that Council was legally required to use the methodology in the city's Master Drainage Plan to calculate impacts from the development. Mr. Smith not only argued that the city must use the Drainage Plan, but in the following testimony he also recommended it to Council as the best way to find the impact of increased runoff from the site: Similarly let me 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 RAM is Ivlr Smith was also lead counsel for Applicant before the Supreme Court of the United States in Dolan 11. Ask EXHMIT A TO FINAL ORDER Page - 31 to the Supreme Court [of the United States] in oral argument as, as being a model of how one could calculate impacts on storm water runoff. 6-27-95 Tr. at 27 (emphasis added). In response to Mr. Smith's recommendation, Mr. McGuire undertook the calculation called for in the Master Drainage Plan. Using the increase in runoff calculated by Applicant's drainage engineer, Mr. Harris, Mr. McGuire found that "[i]f the Dolan site were to contribute toward the Fanno Creek improvements based on the impact of their proposed additional impervious area, the cost would be approximately $1,603." CR 00779. Because Mr. McGuire's calculation was based on the testimony of Mr. Smith and Mr. Harris, witnesses for Applicant, Council found it to be highly credible and concluded that the project would result in impacts on Tigard's drainage system of at least16 $1,603. Council did not rely solely on calculations under the Master Drainage Plan in its effort to fix the likely drainage impacts of Applicant's development. It also considered two alternative approaches. In one such approach, Mr. McGuire calculated the impact of increased runoff from the Property using a methodology originally developed to support system development charges of the Unified Sewerage Agency ("USA") for storm water drainage. See USA MO 93-33 and exhibits, at CR 00626. Council reviewed the USA ordinance establishing the charges and the underlying methodology developed by Brown & Caldwell, a firm with expert experience in this field. CR 00680. System development charges such as those imposed by USA must be based on actual impacts and be proportional with such impacts, see ORS 223.297, et seq. and, as indicated in the following quotation from the Brown & Caldwell study, the USA ordinance was established based on a fair allocation of costs: 16 Council i.-sferred that as representatives of Applicant, Mr. Smith and Mr. Harris would take a conservative approach to estimating impacts. Therefore, it concluded that their approach represented a conservative estimate of the probable impacts from the development. E)UMIT A TO FINAL ORDER Page - 32 WOMEN= The purpose of the analysis was to determine a typical range of costs for storm water facilities. These facilities are designed to reduce peak flood discharge increases associated with urban development. The intent of this study was to develop cost estimates which could be used in establishing a system development charge. CR 00682. Therefore, Council found the Brown & Caldwell study and the USA charges to be highly credible hidicators of costs associated with increased runoff. The USA system development charge is $280 per equivalent service unit ("ESU"). CR 00654.17 Of that amount, $180 is allocable to water quality impacts and $100 is allocable to water quantity impacts. CR 00654. Using the Brown & Caldwell Report, Mr. McGuire found that the total quantity impact for storm water was $563 per ESU for the 25 year storm and $1033 per ESU for the 100 year storm. CR Range of Impacts 00097. Mr. McGuire further testified that Drainage Plan & USA Methodologies it was appropriate to subtract the $100 system development charge from these 5000 total impacts to determine the otherwise 4000 unmitigated impact of new development 10 3000 0 2000 on Tigard's drainage system. Icy 9000 Therefore, because Mr. McGuire 0 determined that Applicant's project would Drainage Plan USA (25 Yr.) USA (100 Yr.) cause runoff equal to 4.36 ESU, he Method testified that it would have unmitigated impacts impacts of $2019 for the 25 year storm and $4,068 for the 100 year storm. CR Figure 3: Extent of Likely Impacts 00097-98. Besides estimating the impacts of Applicant's project under the Master Drainage Plan and the USA ordinance, Staff presented evidence of the costs which would be associated with mitigating for 17 Under the USA resolution and order, a single ESU is equal to the amount of surface water runoff that would be generated by a single family residence. CR 00633. EXHIBIT A TO FINAL ORDER Page - 33 the increased runoff. Mr. McGuire testified that three options existed for mitigating for the increase in storm water without acquiring the easement called for in Remand Condition One. They were retention, detention, and in-stream detention. Mr. McGuire estimated the cost for each solution, respectively, to be $6,800, $8,500 and $2,500. CR 00848. Council found that the alternative methodologies substantiated Mr. McGuire's testimony under the Master Drainage Plan. They showed that the $1,600 prediction derived from that plan was probably conservative, and that the project would generate at least that much of an impact, if not significantly more. Applicant objected to Tigard's use of methodologies other than that called for in the Master Drainage Plan to estimate the impacts of her development. She argued, for example, that Tigard's land use regulations required the city to use the Master Drainage Plan. Council, however, did not interpret its regulations to place such a requirement on Tigard. The methodology in the Master Drainage Plan, which is part of Tigard's Comprehensive Plan, was set out as a recommendation. Master Drainage Plan at 8-10. Nothing in the Master Drainage Plan or other portions of the land use regulations created a binding rule requiring use of the Master Drainage Plan as the sole means of estimating drainage impacts from development. Furthermore, Tigard did determine the impacts from Applicant's project using the methodology in the Master Drainage Plan. That methodology showed that the project would cause an impact of at least $1,600 on the drainage system. Council relied on the other methodologies proposed by staff to verify the accuracy of that number. Applicant also argued that Council was bound to use only the methodology in the Master Drainage Plan because it had applied that plan in Dolan If. Her argument is irrelevant because Council did use the Master Drainage Plan. Furthermore, although issues decided or which could have been decided in Dolan II were not before Council, Council properly considered evidence and arguments concerning new issues arising from the Court's remand decision. In Dolan II, the Court placed a new responsibility on Tigard to quantify its findings; therefore, Council could consider new evidence and argument addressed to that instruction. The USA regulations, Brown & Caldwell Study, and Mr. McGuire's testimony a1 concerned new issues raised in the Court's opinion. Council, therefore, properly considered that evidence. E)aIIBIT A TO FINAL ORDER Page - 34 Applicant relied on testimony from Mr. Harris to claim that the predicted increase in storm' water runoff would be insignificant. Although Mr. Harris found that the project would increase runoff from the site, he argued that the increase of flow in the creek would amount only to the thickness of five sheets of paper. CR 01532. Mr. McGuire responded to this argument by showing that even such an increase, if not mitigated, would be significant because of the cumulative effect of the runoff. If Tigard did not require developments to mitigate for even small increases in stream flow, according to Mr. McGuire, eventually the cumulative impact of the developments would break the drainage system. To demonstrate his point, Mr. McGuire used the Master Drainage Plan to formulate how much runoff development has or will add to the system. He estimated that, without mitigation, all of the development would lead to an increase in the stream equal to 11,908 sheets of paper, a stack four feet high. CR 00778. "Clearly, 11,908 sheets of paper is significant and is the result of considering only residential development in Tigard. Adding commercial and industrial sites, with their higher impervious areas, plus basin area outside of Tigard, would further increase impacts." Id In response to Mr. McGuire's testimony concerning cumulative impacts, Mr. Shonkwiler, one of Applicant's attorneys, argued that some of Tigard is outside the Fanno Creek basin. He then concluded that Mr. McGuire's analysis was in error. He also made the point that the areas of Tigard outside the Fanno Creek basin include some of the more undeveloped areas, and, thus, represent areas of higher expected growth and, he asserted, runoff. Council rejected Mr. Shonkwiler's criticism for several reasons. Not least among those reasons was Council's realization that Mr. Shonkwiler had missed the point. Mr. `McGuire's testimony established that all increases in runoff have a cumulative effect if not mitigated. Even if his estimate of an increase in the stream level of four feet was inaccurate, Mr. McGuire's testimony established that all increases in runoff have a significant impact on the system. This, in turn, showed that all such increases result in a cost to the City by using up capacity. Based on the testimony of Mr. McGuire and others, Council found that here that cost was at least $1,600. Council found, moreover, that Mr. McGuire's analysis was conservative. If he had included all land in the Fanno Creek basin, the result would have been even more dramatic. Mr. Shonkwiler overlooked that while some of Tigard is outside the Fanno Creek basin, parts of Beaverton, Portland, EXHIBIT A TO FINAL ORDER Page - 35 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. See Comprehensive Plan at I-192 ("The major drainage problem in Tigard 1s the storm water runoff throughout the area. This problem results from the increase in impervious land surfaces that can alter the quantity and quality of runoff from the land."); Comprehensive Plan at II-13 ("In addition, there is the issue of the cumulative effect of development upstream of Tigard. Flood levels in Tigard will be substantially determined by the controls exercised over development outside the plan area, as well as inside Tigard's Planning Area."); see also CR 01530 (testimony of Harris) (Fanno Creek "is the major drainage way for the City of Tigard; in fact, the extent ofthe City approximates the watershed ofFanno Creek"); CR 015530 (testimony of Harris) ("At the Main Street bridge, Fanno Creek drains a watershed of 25.1 square miles, equivalent to 16,064 acres."). Considering these factors, Mr. McGuire's was a conservative analysis that accurately described the cumulative effects of runoff in the drainage basin. A full accounting of the entire drainage basin 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 criticized Mr. McGuire by claiming that there had been no rise in the floodplain since the Master Drainage Plan was adopted, as Mr. McGuire's calculations would have predicted. Council found no evidence in the record to support that position. Figure 5.2 of the Master Drainage Plan showed the 100-year flood profile as it existed when the report was written and the future 100-year flood profile. As expected, the future profile was higher than the existing, indicating a rise in flood elevation resulting from development and increased flow rates. The Master Drainage Plan thus recognized the impact of development on existing flood plains. Future urbanization within the Fanno Creek basin will significantly increase flooding problems. The Master Drainage Plan considered a 20-year planning period that ends in the year 2000. Development in the Fanno Creek basin has occurred at least to the level anticipated by the Plan. Also we are now nearing the year 2000. To state, as did Mr. Shonkwiler, that there has been no rise in the floodplain elevation ignores the Master Drainage Plan, basic hydrology and hydraulics, as well as common sense. EXHIBIT A TO FINAL ORDER Page - 36 Aft, Mr. Shonkwiler also criticized Mr. McGuire's analysis because it did not distinguish between residential and commercial development. He asserted that "commercial and industrial properties are approximately three times higher in storm water runoff than residential." again, this statement did not support Applicant. She proposed to develop her site as a commercial property, and it would generate runoff accordingly. The impact of development of this site would thus be "approximately three times higher" than a similar residential development. Based on the foregoing analysis, Council found that Applicant's project would generate additional runoff that would, by any reasonable measure, have a significant impact of at least $1,600 on Tigard's drainage system. Applicant's attorney tried to avoid this conclusion by arguing that Tigard's calculation of the impacts was not sufficiently specific to satisfy the rough proportionality test. Unsatisfied with the city's analysis ofthe drainage impacts, Mr. Shonkwiler claimed that Tigard had failed to prove rough proportionality. The nut of his argument appeared to be the following paragraph: The issue is not whether the Dolans are generating storm water from their site, they are. The City has made no attempt to calculate or proportionately assign storm water costs to properties both up and down stream. The issue is whether the cost assessed by the City is proportionate with the overall cost for storm water management. Here, it is not and the Dolans are being required to pay or contribute more than their fair share. Although it was not entirely clear what approach Mr. Shonkwiler would have found acceptable, his contention did merit a response. In contending that Council had to assign proportionate values to each property up and down Fanno Creek, Mr. Shonkwiler was saying that the Council must for each property make an exact analysis of impacts and proportionality. However, that was not the test selected by the United States Supreme Court. The Court held that the City had to show only rough proportionality between the impact of the project and the exaction. EYMBIT A TO FINAL ORDER Page - 37 Mr. Shonkwiler tacitly acknowledged this point by saying that "[t]he issue is whether the cost assessed by the city is proportionate with the overall cost for storm water management." (Emphasis added.) However, Council found that Tigard had shovai through several methodologies the proportionate impact of the development on the total system: • In response to Mr. Smith's argument that the City was required to use the Drainage Plan methodology and that that methodology would satisfy the rough proportionality requirement, the City showed that the impact of the project would be at least $1,603.18 • Tigard showed that by using USA's drainage system development charge methodology the impact would be calculated at $4,068 (for the 100 year flood). • The value of the exaction is far less than the public would pay to provide onsite detention or retention, or in-stream detention. Through all of these methods one result stood clear: the probable impacts of the development were equal to at least $1,600. b. ~gar•d EgAWished a Reasonable Correspondence Between the IMpacts of the Development and the Purposes It Offered in Support of R Amand Condition One (1) Tigard Fixed the Deficiency the Court Identified In its Dolan H decision, the Court found that Tigard had not shown a reasonable relationship between the drainage impacts of Applicant's project and its requirement that she dedicate the is Applicant's reaction to the city's calculations under the Master Drainage Plan showed a lack of sincerity in her repeated claims of willingness to bear the cost of development. At the first hearing, Mr. Smith, one of Applicant's attorneys, commended the plan as the correct approach to calculating impacts. Indeed, he said that the City was required to use that method. However, once Applicant discovered that the method did not give rise to a favorable result, Applicant's attorneys abandoned the plan and began criticizing Tigard on other grounds. EXHIBIT A TO FINAL ORDER Page - 38 floodplain area to the public. What seemed to especially bother the Court was its perception that Original Condition One would allow the public to use fne floodplain for recreational purposes. Because Tigard had not shown that the project would impact its legitimate interest in providing recreational opportunities, the Court held that the city had not established the requisite relationship between impacts and purposes. Dolan H, 114 S. Ct. at 2320-21. Responding to the Court's decision, Remand Condition One expressly provides that Tigard is acquiring the floodplain easement only to further its legitimate interests in managing flood and drainage problems. Remand Condition One expressly disavows any intent that the floodplain be used for recreational purposes. Furthermore, the condition allows Applicant to fence off the floodplain to make clear to the general public that it is not open for their use. Thus, Council found that Tigard had corrected the problem the Court perceived in Original Condition One and, therefore, satisfied this element of the rough proportionality test. (2) Tigard Showed a Reasonable Correspondence Between the Impacts of Applicant's Development and the Requirement of a Limited Public Easement for Enhancement and Maintenance of the Fooodplain and Creek Channel Notwithstanding Tigard's correction of the problem identified by the Court, Applicant's attorneys continued to argue that it had not shown a sufficient correspondence between the purpose of the easement and the need for an easement allowing Tigard's agents access to the floodplain. Council found, however, that Tigard had justified the easement. Mr. McGuire, an expert drainage engineer (CR 00085), testified that public ownership of an easement in the floodplain was essential. Mr. McGuire noted that Tigard's Master Drainage Plan, part of the Comprehensive Plan, provides that "`Natural drainageways require regular maintenance to be efficient hydraulic conduits for flood flows. Required maintenance items include debris removal, mulching, seeding, erosion control, vegetation clearing and sediment clearing."' CR 00778. To undertake the required maintenance, Mr. McGuire testified, a public easement is essential. EXHIBIT A TO FINAL, ORDER Page - 39 Efficient and cost-effective maintenance of drainageways requires that the City have the physical and legal ability to access the drainageway. High labor 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 eccess for maintenance. Maintenance of public sewers is a traditional agency function. Pra;riding 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 Fanno Creek drainage. Uncoordinated maintenance by individual owners would not be effective. Aft CR 00778 (emphasis added). Tigard's justification for acquiring a public easement to maintain the floodplain was also confirmed by the National Floodplain Managers Association. In its brief to the Court, the Association explained that, the most efficient flood management system requires that channels remain unblocked and be capable of receiving the full water flowing into a portion of a channel from upstream. The alternative would be large flows feeding water into more constricted areas so that the system could actually increase flood problems. Flood management systems can only work if the flow discharge and conveyance systems on each property are intelligently integrated. E)URBIT A TO FINAL ORDER Page - 40 Not only is comprehensive flood management more efficient, it is also more accurate and more fair. A comprehensive analysis permits a greater dedication of technical resources and allows a cumulative analysis of how potential development can impact overall flooding levels. A comprehensive plan reduces the likelihood that individual decisions will be capricious and impose burdens unfairly. CR 01300-01 (emphasis added). (3) Remand Condition One Does Not Call on Applicant to Provide "Exces"s Capacity" Applicant argued to Council that Remand Condition One was improper because it would require her to provide more capacity than necessary to handle the increase in runoff from her site. For example, her lawyer said the following in one of his submissions to Council: The projected nprovements in the CH2M Hill plan adopted by the City and partially implemented to date, ultimately result in greater capacity of the floodwater flows through the Fanno Creek basin. This, in 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 storm water generation allocated for a shared basis in this excess capacity. Council found Applicant's argument to be meaningless and factually incorrect. The argument is meaningless for the following reasons, supplied to Council by the National Floodplain Manager's Association, which it adopted as findings: [Applicant] seems to suggest that there must be a quantitative equality between the amount of runoff water generated by a development and the amount of water that would be controlled by the channel improvement. But that is a physically meaningless comparison. AOL EXHIBIT A TO FINAL ORDER Page - 41 The purpose of a channel improvement is not to store water but to convey it rapidly downstream and out of the problem area. It will convey floodwaters from a wide variety of sources, and the amount of conveyance will therefore be far greater than the amount of runoff from any one site. But that does not represent a huge contribution by each individual channel area improved because the utility of a channel improvement at any one point depends on the utility of the adjacent channel. There is little value, and generally a problem, in conveying water more rapidly through one portion of a stream if the downstream portion lacks the same conveyance capacity because that would simply mean more flooding at the point of bottleneck. Any one channel area only makes a small but necessary contribution to the utility of the channel as a whole. There is no obvious way to compare the improved utility of any portion of a channel with the amount of increased runoff from one particular site. CR 01299 (emphasis added). This reasoning was consistent with the opinion of Mr. Berry, the city's utility engineer, who testified as follows: "I do not agree with the applicant's characterization of this effect [building out the improvements called for in the Master Drainage Plan] as `creating surplus capacity.' The intent of Comprehensive Plan Policies 7.1.2(a) and 7.2. l(c) is to provide a complete drainage system by requiring each applicant to provide a portion of the system with adequate capacity to convey the upstream flood waters." CR 00056; see also Master Drainage Plan at 9-1 ("Only the full implementation of the recommended plan will provide relief from the 100-year flood throughout the Tigard area."). The Lplood Plain Managers Association and Mr. Berry.are experts in the field. Council found them to be much more qualified than Applicant's lawyer to opine on this issue. Therefore, Council found that the drainage improvements called for in the Master Drainage Plan did not cause Applicant to make a disproportionate contribution to Tigard's drainage system. Council also found Applicant's argument concerning excess capacity to have no basis in fact. Her lawyer, Mr. Shonkwiler, claimed that improvements less than all of those called for in the Drainage Plan had resulted in adequate capacity by partially achieving the goals of the Master Drainage Plan. He then asserted that the impact of Applicant's development would be so slight as to not justify any additional improvements. Council found him to be mistaken. Ask E)IIBTT A TO FINAL ORDER Page - 42 Mr. Shonkwiler reasoned that the improvements have been sufficient to provide a capacity sufficient to maintain the floodplain at 150 feet of elevation at Applicant's site. This argument was based on the assumption that 150 feet of elevation was an acceptable level of service for the drainage system. That assumption, however, was badly misplaced. The Master Drainage Plan identified flood problems under the conditions existing at the time of the study. Indeed, Applicant's own drainage expert, Mr. Harris testified that "Master Drainage Plan, part 6.2.1 deals with extensive improvements proposed for the channel close to the Main Street Bridge. These improvements were proposed in July 1981, almost seven years before the Dolan site improvement plan was prepared, demonstrating that the problems of flooding on Fanno Creek are quite independent of any activities proposed by Mr. Dolan." CR 01532. When Tigard adopted the Master Drainage Plan the creek's floodplain was at 150 feet. In essence, the plan identified a deficiency in the existing drainage system. It proposed. steps to correct that deficiency and steps to prevent new development from negating the City's efforts to reach a better standard of service. This observation means that the improvements which have occurred to date have not created "excess capacity." Instead, they have been directed toward curing existing problems, providing an increased margin of safety and to mitigating the effects of new development. Council thus found that Applicant must be required to mitigate for the additional drainage impact her project will have on the system. Cf. CR 00155 (Amicus Brief of Flood Plain Managers Association) ("All of those who support risky behavior, either directly or indirectly, must share in floodplain management and in the costs of reducing that risk. The federal government can lead by example, but state and local governments must manage their own floodplains. Individual citizens must adjust their actions to the risk they face and bear a greater share of the economic costs."). In a twist on her excess capacity argument, Applicant contended that Tigard's recent replacement of the Main Street Bridge provided so much additional capacity in the creek channel that she should not have to mitigate for her own impacts. Again, Council found Applicant's argument to be meaningless and factually incorrect. Straying far outside his field of expertise, Applicant's lawyer argued, without, so far as Council could tell, any expert assistance, that construction ofthe badge solved any drainage problem her project might create. Mr. Berry, an expert engineer, responded to Mr. Shonkwiler by explaining that the Master Drainage Plan could not be used to estimate the effect of any given improvement. EXMIT A TO FINAL ORDER Page - 43 Instead, its predictions were reliable only if all of its recommended improvements were completed. CR 00055, 00056, 00057, 00464; see also Master Drainage Plan at 9-1 ("Only the full implementation of the recommended plan will provide relief from the 100-year flood throughout the Tigard area."). Furthermore, Mr. Berry testified that merely changing the bridge structure, without making channel improvements on the Property would not mitigate for additional runoff. CR 00055, 00056, 00057, 00464. Although Mr. Shonkwiler claimed that the cure of a drainage problem was. the sum of its parts, that claim only illustrated his ignorance of hydraulics. As Mr. Berry explained, the creek functions much like a coronary artery. The goal is to have water run swiftly throughout its entire reach. Fixing a blockage at the Main Street bridge, without making the major channel ';improvements called for on the Property would only shift the flood back upstream.. CR 00055. Mr. Berry established that many of the channel improvements were not done along with the bridge. According to Mr. Berry, moreover, the bridge was not the primary cause of flooding. Instead, channel constrictioris--some of which must have been due to the fill placed on the Dolan property19 were the primary culprits. As explained by Mr. Berry, these channel restrictions are the reason why simply replacing the bridge did not cure flooding problems in the city. Furthermore, as Mr. Berry testified, to achieve a reduction in the floodplain both structural--e.g., channel improvements--and nonstructural improvements--e.g., regular and coordinated maintenance--are essential. Mr. Shonkwiler claimed that because most of the storm water runoff in Fanno Creek is upstream of the Main Street bridge, replacement of that bridge is alone enough to create adequate capacity for the Dolan project were completed. As Mr. Berry testified, the report cannot be used to extrapolate other results. The Master Drainage Plan does not say that replacing the bridge would alone solve the City's flooding problems. The Plan does not say that making only a few of the other suggested improvements would solve the problem. Instead, the Plan predicted a 1.5 foot reduction in the floodplain if all of the improvements were completed. Its reasoning cannot be extrapolated to some other, partial solution. r9 See CR 00093 (report of Hams-McMonagle Associates, Inc. concluding that previous owner of the Property put fill in the floodplain). E) HMIT A TO FINAL ORDER Page - 44 N Applicant, through Mr. Shonkwiler, also argued that the city had erred in not considering water quality facilities in computing the runoff effects of her development. However, Council found that Tigard had taken the correct approach. In opposition to the testimony of Applicant's lawyer, the Council received expert testimony as to the effectiveness of water quality facilities from Mr Berry, a qualified professional engineer. Mr. Berry found that water quality facilities do not provide any retention benefit in a 25 year or larger storm because they are not designed to operate in those circumstan ces. CR 00058, 00464. Furthermore, Mr. Berry testified that CH2M Hill did consider such facilities when it prepared the Master Drainage Plan, but did not find them to provide any benefits relating to severe flooding. CR 00058. Although Mr. Shonkwiler criticized Mr. Berry's testimony, Mr. Shonkwiler was not an expert in the field and he presented no evidence to support his layman's arguments. For example, Mr. Shonkwiler claimed that upstream water quality facilities had resulted in a 10 percent reduction in runoff. However, Council could not identify any evidence supporting that claim, and Mr. Berry's August 1 memorandum noted that the Master Drainage Plan did not indicate any such mitigation in runoff attributable to such facilities. Assuming for the sake of argument that Mr. Shonkwiler was correct that upstream water quality facilities offer some small benefit in detaining storm runoff, the argument was still not helpful to Applicant. The same development that is required to provide water quality facilities can also be expected to add impervious areas, decreasing the time required for runoff to concentrate. Furthermore, storm sewers may be built both on site and off site, that will further speed discharge of runoff to Fanno Creek. Even if the water quality facilities provide some detention value, the reduced time of concentration on site and through the developed conveyance system will deliver water to 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. Water quality facilities, even if they work to retain some storm water, also do not eliminate the cost imposed on the city by Applicant's development. Council found the following testimony of EXHIBIT A TO FINAL ORDER Page - 45 Mr. McGuire to be persuasive on this point and adopted it as findings in support of Remand .dlhk Condition One: If it is assumed that all new development located upstream from the Dolan site were to detain runoff to existing levels, then it could be concluded that the peak flow rates would not increase at the Dolan site. Runoff from the Dolan site (not detained) could be added to Fanno Creek and the resulting downstream peaks not increased to those predicted by the Drainage Master Plan. While the downstream peak flows would be less in this scenario, the Dolan site would still produce an increase in peak flows and impact to flood levels. The cost to mitigate the impacts would be less with the upstream detention; however, the assessment area paying for mitigations [sic] would be smaller (if upstream sites were to provide detention, they should not be assessed for impacts caused by downstream sites). In this case, impacts to the Dolan site would be similar to those occurring without the assumption of upstream detention. CR 00780. Based on the preceding evidence and analysis, Council found that Tigard had shown a reasonable correspondence between the interests it advanced h-1 support of Remand Condition One and the probable impacts of Applicant's development. C. li and Showed that the Flo in Easement Called for in $pmand Condition One Would or Would Se I ikely to itiga~ for the Impacts of Applicant's Development Council found that Tigard showed that Remand Condition One would facilitate mitigation for the significant impacts that the development would cause. The Master Drainage Plan found that making major channel improvements at the Property would, when combined with other system improvements, help mitigate for increased runoff. Furthermore, Applicant did not argue that dedication of the floodplain area would not help mitigate for drainage problems. Instead, she agreed that the projects in the plan would create additional capacity, but argued that the plan would result EXHIBIT A TO FINAL ORDER Page - 46 in excess capacity. Although her argument about excess capacity was not correct, she apparently agreed that the channel improvements called for in the plan would or likely would result in improved drainage. d. Tigard Showed That the Floe plain Easement in Remand Condition One Was RQuably Proportional in Extent to the Impacts of Applicant's Development As explained above, Council found that Applicant's project would impose costs on Tigard of at least $1,600. It found those impacts to be proportional in extent to the value of the easement called for in Remand Condition One. Council received conflicting testimony concerning the value of the floodplain easement. Staff presented an appraisal done by Palmer, Groth & Pietka, Inc., a firm of professional appraisers, which concluded that the floodplain easement likely had no value, or at most was worth $1,300. CR 00912. Applicant, however, submitted an affidavit from her son claiming that the floodplain and bicycle easements together had a value of $84,000. Council was required to choose between these two evaluations before it could decide whether the value of the easement was proportional to the probable impacts of the project. Council found that it should adopt the $1,300 value provided by the independent appraisal firm. That appraisal was conducted according to professional standards and according to standard procedures. The appraisers, for example, based their valuation on comparable properties, which were shown in the record. Applicant's son, on the other hand, did not detail his qualifications to appraise the property as opposed to making an educated guess about its value and he did not provide comparable values. Furthermore, when he made his guess, Applicant's son was involved in a law suit with the city for inverse condemnation. For purposes of that suit, it was in his personal interest to maximize the value of the floodplain property. Accordingly, he was undoubtedly biased toward overestimating the value of the floodplain property, in which he has an ownership interest. This observation was borne out by the great disparity between his valuation and that of the independent appraisers. Put simply, Council found Applicant's son to be without credibility in this regard, while it found he valuation of the appraisers to have been conducted in an objective, independent manner. EDIT A TO FINAL ORDER Page - 47 Because the floodplain easement had Proportionality a value of only $1,300, Easement Value vs. Impact while Applicant's project would have drainage s~,soo impacts of at least $1,600, Council found Remand Condition One to be proportional to the exaction. Figure 4 visually illustrates this conclusion. Impact of Development Value of Easement Figure 4: Visual Illustration of Proportionality 3. Tke Required Bike/Pedestrian Path Easement Satisfies the Rough Proportionality Test Ask a. Tigard Through an Individualized Evaluation, Showed That Applicant's Project Would Have Significant Impacts Applicant acknowledged that her project would increase the number of car trips on the city's street system. CR 00146 ("The expansion of the Tigard A -Boy store will add 206 trips per day to the surrounding street system."). Applicant disagreed only about the number of new trips, arguing that Staff's projection was an overstatement. Council thus had to choose between conflicting evidence, but began its analysis with a recognition that the project would have a significant traffic impact whichever evidence it accepted. Council began by noting that in the September `91 Approval it found that, for purposes of estimating the WTIF, the project would generate an additional 419.29 trips per day. CR 01026. Because the V F did not contain a trip generation number for general retail, the use for which Applicant applied, Council had relied on the traffic generating characteristics of hardware and paint stores. CR 01026. EXHIBIT A TO FINAL ORDER Page - 48 Council included this trip generation figure and reasoning in the September `91 Approval. Applicant did not appeal Council's finding. Moreover, the Supreme Court of the United States relied on the finding to conclude that traffic impacts from the development were likely. Dolan II, 114 S. Ct. at 2321 n.9. Because Applicant could have presented evidence of actual trip generation at the earlier hearing and did not do so, and because she did not appeal Council's finding, the issue of trip generation from the project was decided in the earlier proceedings. Council's finding that the project would generate an additional 419.29 trips is an old, decided issue and was not subject to further review. See, supra, at 11. Notwithstanding this finding, Council felt it should make new findings on evidence concerning trip counts in case LUBA or the courts held that evidence to have been properly before it on remand. Hence, the following discussion of trip generation assumes for the sake of argument only that the question of trip counts was actually before Council for decision. In approaching this issue, Council found that the project would generate at least as many trips as Applicant said it would. Applicant submitted evidence from Mr. Woelk, a traffic engineer, which purported to state the number of trips a plumbing and electrical store could be expected to generate. Mr. Woelk concluded from his study that the new building proposed for the Property, if it was occupied by anA Boy store, would generate an additional 206 automobile trips per day. CR 00146. Therefore, Council found that approval of the application would result in an increase of at least 206 trips per day on the city's street system. Council next considered evidence showing that the actual trip generation from the project was likely to be much higher than Mr. Woelk predicted. Tigard retained David Larson, an expert traffic engineer, CR 00085, to determine the likely impacts of Applicant's project. Mr. Larson found that the proposed development was properly characterized as a Hardware/Paint Store for purposes of predicting trip generation. Based on that conclusion, Mr. Larson used the ITEMam4al, a respected industry source, to predict that Applicant's project would result in an additional 404.17 trips per day. CR 00931. " Mr. Woelk admitted that Mr. Larson's projection was in accord with accepted engineering practices and was the method he would normally select to make predictions regarding trip generation. 6-27-95 Tr. at 22 C The methodology that 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 EXHIBIT A TO FINAL ORDER Page - 49 realm of practice."); id. at 24 ("The City's methodology is consistent with what is done in the traffic Jft~ engineering field."). 1V_,r. Woelk; however, disagreed with Mr. Larson's prediction here. He argued that the ITEManual used only four studies in projecting trips that a hardware/paint store was likely io generate. 6-27-95 Tr. at 24. He said that under those circumstances, and pursuant to the WTIF, Council should rely on the predictions in his study, which were generated from a sample of A-Boy stores. See, e.g., 6-27-95 Tr. at 20. Council found for several reasons that it should reject Mr. Woelk's argument and rely on the trip generation figure provided by Mr. Larson. Applicant applied for site development review approval for general retail uses. Although Applicant said that A -Boy would occupy the larger store, A-Boy was not a party to this application. A -Boy was merely the current lessee of the existing store. Furthermore, as landlords Applicant and her son could rent the new store to another tenant. Mr. Woelk's study is only valid, if at all, as to A Boy stores. Although Mr. Woelk claimed that his study showed trips expected from a plumbing and electrical store, he obtained his data only from A-Boy stores. Therefore, Council believed it more correct to say that Mr. Woelk's study is relevant only to estimating trip generation from A -Boy stores. Plumbing and electrical stores operated by other companies conceivably could generate more or less trips than a typical A -Boy. Mr. Larson testified that given the range of uses available to Applicant upon receiving approval of a general retail use, Council should consider the trip generation rates of a variety of possible uses in predicting the impacts of the projects. CR 00083.20 Figure 5 sets mom i ITE ALLOWED USES DAILY TRIP RATE/3000 SF 816 Hardware and Paint 51.29 A -Boy (ATEP) 26.45 814 Specialty Retail 40.67 912 Walk-in Bank 140.61 Figure 5: Potential uses 20 Mr. Larson testified on this point as follows: EXHIBIT A TO FINAL ORDER Page - 50 out some of those uses and their relative trip generating characteristics. Mr. Larson concluded, and Council accepted his opinion, that given the range of possible uses for the development and the limitations in Mr. WoeWs study," Council should expect the development to generate 404 additional trips. Council also found the designation "Hardware/Paint Store" appropriate, even for an A-Boy store. Evidence in the record showed that other A -Boy stores sold hardware and held themselves out to the public as hardware/paint stores. See CR 00048, 00049. Applicant submitted much evidence saying that A -Boy needed to expand the Tigard store to meet competition, presumably by expanding its product line. E.g. CR 00128. Although her son testified that the Tigard A.7Boy would not sell hardware and paint, Council did not find hh-n to be credible. His testimony was self-serving and appeared to ba contradicted by pleadings filed in the Circuit Court action he and Applicant have brought against the city. Id Furthermore, his testimony was not credible because other stores in the A-Boy chain, which Applicant apparently represented to Mr. Woelk to be only plumbing and electrical stores, actually sell hardware and paint. CR 00781; CR 00773; CR 00771; CR 00757; see also, e.g., CR 00765 (advertisement for A-Boy beginning with banner caption "LARGE PAINT DEPARTMENT").' Council can only assume that the Tigard A -Boy store will eventually follow The Dolan traffic study for an A-Boy plumbing supply store addresses only one of the uses applied for and approved. The correct way to assess impacts to the transportation system for the property under this zone is to examine the uses that can be made without further hearings. Our testimony of July 18, 1995, with an accompanying table of range of possible uses, clearly demonstrates that the outright permitted use of this property and resulting impacts are significantly higher than the A-Boy proposal. This is the correct methodology, because it does not ignore the impacts that can occur under the permitted uses as the ATEP report does. CR 00083. . 21 In addition to the other flaws in his study, Mr. Woelk apparently misunderstood the test applicable here. He "agreedo there are many multitudes of uses that could be done in a general retail area. But we're talking about a specific use." 7-18-95 Tr. at 24. However, Council's task was not to evaluate a single use. Instead, it had to predict the likely impacts of the project based on all of the uses open to Applicant. 22 Council found much of Mr. Woelk's testimony that Council should consider A-Boy to be only a plumbing and electrical business to be questionable because he did not seem to know the product line sold in such stores. On June 26, 1995, for example, he testified that it was his opinion that the ITE classification "hardwarelpaint store" did "not represent the A-Boy Plumbing Stores since A-Boy plumbing stores [sic] do not sell paint nor what could be considered as 'Hardware."' CR 01360. However, later he had to admit that several A-Boy stores did sell such items, saying, "[a]s I testified in my original presentation on June 27, 1995,1 randomly picked four of the A-Boy Stores to survey. At that EXHIBIT A TO FINAL ORDER Page - 51 MINIMUM! suit, especially considering that A -Boy considers its Barbur Boulevard store, which sells a wide range of home improvement items, to be its "flagship" store. CR 00773. In addition, evidence in the record showed that Applicant had sought the flexibility inherent in. approval of a general retail use.. In paragraph 2, Proposal Summary, of the application, the following was typed in as a summary of the project: "The construction of a 17,600 square foot building having a general retail sales facility." John and Florence Dolan signed the application, not A:-Boy, a separate legal entity. Before their signatures, the following appeared: THE APPLIC ANT(S) SHALL CERTIFY THAT: C. All of the above statements [including the project description set out above] and the statements in the plot plan, attachments, and exhibits transmitted herewith, are true; and the applicants so acknowledge that any permit issued, based on this application, may be revoked if it is found that any such mom statements are false. The applicant has read the entire contents of the application, including the policies and criteria, and understands the requirements for approving or denying the application. CR 00754. Thus, if anything was inaccurate about the request, Applicant and her husband were on notice to correct the project description. However, they represented to the city that it was accurate and true. The objective evidence from the time when the application was made shows that Applicant intended to receive a broad approval that could support many different retail uses. time I did not know that these stores were also part of the ACE Hardware system. Only this week did I become aware that. they were in part hardware stores." CR 00145. Because the nature of the stores was so basic to Mr. Woclk's testimony, his lack of care in that regard discredited much of the rest of his testimony by implying that his other conclusions were reached with a similar lack of care. AMk EXHIBIT A TO FINAL ORDER Page - 52 Mr. Shonkwiler argued that Council should not consider a range of uses because the city NEW would have an opportunity to impose new conditions if A-Boy did not or ceased to occupy the building. Council did not accept this claim because the CDC would not require a review of conditions under those circumstances. See, infra, at 75. Mr. Shonkwiler invited Council to condition approval on a requirement that the building be used only by A -Boy and only for the sale of plumbing and electrical supplies. Council found his suggestions to be unworkable. Almost constant inspection would be required to know whether the A -Boy was selling something other than plumbing and electrical supplies. Tigard lacks the resources to undertake such an aggressive enforcement responsibility. Furthermore, enforcement of the condition would be rife with disputes. The distinction between electrical and plumbing supplies and those carried by a hardware store is far from clear. For example, screws can be both "hardware" and electrical or plumbing components. See, e.g., CR 00756 ("In a visit to the [Tigard A -Boy] store on Monday, June 26, 1995, I observed items for sale at the store which ranged in size from assorted nuts, bolts and screws, light bulbs, faucet handles, phone jacks, tubes of bath caulk and light switches to larger items such as toilets, sinks and bathtubs. Additionally, I observed a person purchase a role of duct tape."). In addition, A -Boy, a legal entity apart from Applicant will be running the store. A Boy has stated that it plans to expand the line of goods sold in the store to "meet competition" (CR 00128), and it identified the Barbur Boulevard store as its flagship (CR 00773). Therefore, it likely would try to expand the types of goods it .vac selling in the store, and the _ inspection condition would' require Added Trips continual monitoring of an entity that Range of Predicted Trip increases was not a party to this application. Council, therefore, declined Mr. 500 Shonkwiler's invitation. 400- 300 Whatever the result of ,200-- Applicant's proposal, be it 404 trips, a 100 206 trips, or something in between, 0 Tigard established that the Minimum Expected Likely Increase development would have a significant ® increase in Auto Trips impact. Although Council found the Figure 6: Range of Traffic Impacts d5lb EXHIBIT A TO FINAL ORDER . Page - 53 NEW 404 trips to be more credible, that finding was not essential to its decision. Any number in the range between 206 and 404 was sufficient to satisfy the first requirement of the rough proportionality test. Both Staff and Applicant submitted evidence and made arguments over how to quantify the cost of additional trips from the development, but Council did not believe it essential to quantify the cost of the additional trips. Because Dolan II required proof only of the impacts from the development, which the Court said did not need to be mathematically certain, Council's finding that the development would cause at least 206 additional trips, with the probability that it would cause 404, was sufficient to satisfy the test. Council concluded that it should nevertheless. make findings going beyond the strict requirements of Dolan II to ensure that in imposing Remand Condition One, Tigard had fully honored the decision of the United States Supreme Court. Mr. Larson provided Council with a report setting out a methodology for deciding the cost of the additional trips based on his review of the infrastructure costs used to set the WTIF. Council found based on its review of the WTIF and Mr. Larson's testimony, that Washington County had set the WTIF based on a proportional allocation of all infrastructure needed to support traffic growth in Washington County, including Tigard, through the year 2005. CR 00931 This allowed Mr. Larson to determine the total cost of building infrastructure in Tigard and Washington County as a whole. AdIN& Mr. Larson then determined that the WTIF would cover only 32 percent of Tigard's projected costs for building transportation infrastructure to accommodate growth. Id He testified that it was thus appropriate for Council to find that approval of the application would result in unmitigated impacts of $33,496.22. CR 00931-32, Applicant's attorney, Mr. Shonkwiler, argued that the approach taken by Mr. Larson was invalid. He claimed that the projects supporting development of the WTIF were somehow controversial and that it was therefore inappropriate to use them as a basis for estimating the cost of development. He further argued that the WTIF somehow forbade Council from using the facts supporting the WTIF methodology as a basis for judging the impacts of Applicant's development. Council rejected Mr. Shonkwiler's arguments for several reasons. As an initial matter, nowhere did the WTIF forbid using its supporting data as a basis for judging the costs of infrastructure. Based on its review of the WTIF methodology and Mr. Larson's testimony, Council found that the data supporting the WTI were intended to be a proportional allocation of EXHIBIT A TO FINAL ORDER Page - 54 infrastructure costs which provided the best and most fair basis on which to judge cost impacts. Ash Furthermore, Mr. Shonkwiler was not an expert on traffic impacts. He was just a lawyer. Mr. Larson, on the other hand, whose testimony Council chose to accept, was an experienced traffic engineer. Mr. Larson testified that the WTIF methodology was the best possible basis on which to base Council's cost projections. Perhaps more telling in this regard was the testimony of Mr. Woelk. Mr. Woelk, like Mr. Larson, is an experienced traffic engineer. As a representative of Applicant, Council would have expected him to criticize Mr. Larson's work wherever possible. Indeed, Council noted that Mr. Woelk did disagree with Mr. Larson on several points. Ln his testimony concerning cost projections, however, Mr. Woelk agreed with and supported Mr. Larson's selection of methodology. 6-27-95 Tr. at 22, 24; see also CR 01362 ("Tigard used the correct methodology in their analysis"). Mr. Woelk's only disagreement with Mr. Larson concerned whether the project would generate fewer trips than Mr. Larson predicted. 6-27-95 Tr. at 24. Council found that Mr. Larson used the correct methodology in predicting the cost impacts of Applicant's development. Using Mr. Larson's trip generation figures, the methodology yielded a cost impact of $33,496.22 in otherwise unmitigated costs. CR 00931-32. Although Council found Mr. Larson's trip generation figures to be more appropriate than those of Mr. Woelk, it noted that 1W. Woelk estimated that the project could be expected to have an unmitigated impact of around $17,000. 6-27-95 Tr. at 23 ("The actual, based upon the actual trip generation rates, you can see that all of that comes down to an actual unmitigated impact of $17,000."); accord CR 01361 Either way, Council found that the impact would be significant. b. Tigard Established a ISeasonable Correspondence Between the Impacts of the Development and the Purposes I Offered in Support of Remand Condition One In Dolan 11, the Court held that Tigard had not established a reasonable relationship between the need for public access to the floodplain and the drainage impacts of Applicant's proposed development. Dolan 11, 114 S. Ct. at 2321. It did not find the same deficiency as to the easement requiring the bicycle/pedestrian way. Instead, it found that the city had not shown that the pathway would or would be likely to mitigate for the traffic impacts of the expansion. The Court thus held EXHIBIT A TO FINAL ORDER Page - 55 MM=d that as to the pathway Tigard had established the reasonable correspondence required by this element of the rough proportionality test. Council therefore found that this element of the test was not an issue on remand. See, supra, at 11. Council nevertheless chose to make factual findings on the question. The Court held that the city had not justified public access to the floodplain because it had shown no justification for a public easement to the floodplain and because of a concern that the easement was intended to support wholly recreational uses. Remand Condition One corrected for those problems with regard to the floodplain, and it did not present similar concerns with regard to the pathway. Tigard's land use regulations establish several purposes for the pathway, including support of bicycling and walking for commercial and shopping purposes. See, supra at 21. Although Mr. Shonkwiler argued that the pathway was purely for recreational purposes, those arguments were reflated above. Furthermore, as detailed below, Council found that the pathway would mitigate for car trips occurring for commercial and shopping purposes. Therefore, Council found the easement to have a reasonable correspondence between the increase in traffic caused by Applicant's store and the purpose of mitigating for those trips. Applicant made one additional argument that might have been addressed to this element of the rough proportionality test. She argued that the city had not shown that the pathway would mitigate for trips that would otherwise have come by car to the A -Boy store. Council found that Tigard did not bear such a burden. In Dolan 11, the Court recognized that traffic is fungible. For example, if Applicant's project generated a trip from her store but the pathway removed a commercial trip otherwise destined for downtown, no net increase in trips would have occurred. Thus, so long as the pathway removes trips from the road system, it would create capacity for new trips generated by Applicant's project and prevent increased traffic congestion. Council held this to be a sufficient correspondence to satisfy the Court's new test. Cf. CR 01347 ("Even when an argument can be made that a particular commercial tenant has no use for bicycle traffic this relationship is reasonable since tenants come and go but commercial activity per se is dependent on all forms of traffic."). OEM EXHIBIT A TO FINAL ORDER Page - 56 C. Tigard Showed That the Bicycle/Pedestrian kath`vay Easement Called n i' P Would or Would Be Likely to Mitigate for the Inspects of Applicant's Development In Dolan 11, the Court identified only one deficiency in Tigard's findings concerning the pathway. There, Tigard had found that the pathway "could" offset some of the traffic demand created by the development. The Court held that finding to be too equivocal, adopting the suggestion of Oregon Justice Peterson that Tigard be required to show that the easement "would" or "would be likely to" mitigate for the project's traffic impacts. "No precise mathematical calculation is required," however. Dolan I1, 114 S. Ct. at 2321. Responding to the Court's instructions, Tigard arranged for Mr. Larson to evaluate the importance of this segment of pathway. Mr. Larson used a recent study, 4A The Pedestrian EnWronment, 1993 CEUTRAQ" by Parson BrinkerhoffQuade & Douglas, Inc., in cooperation with Cambridge Systematics, Inc. and Calthorpe Associates, all recognized experts in this field, which carefully analyzed the effect og among other things, pedestrian and bicycle ways on automobile trips in the Portland Metropolitan area CR 01072. As Mr. Larson explained, LUTRAQ established a set of factors which together resulted in a value referred to in LUTRAQ as the Pedestrian Environment Factor ("PEF"). CR 00932. Based on application of the LUTRAQ factors to Tigard, Mr. Larson found that the area in the vicinity of the Property currently has a PEF of 4-6. Id, LUTRAQ used sophisticated statistical analysis to show that PEF strongly correlates to trips. For example, LUTRAQ found that in areas with PEF 4-6 about 94 percent of the trips were by car. In areas with PEF 9-10, LUTRAQ found that about 86.7 percent of trips were by car. Based on its current PEF of 4-6, Mr. Larson testified that LUTRAQ would predict that only four to six percent of the trips in the vicinity of the Property currently are made by bicycle or walking. Mr. Woelk's report verified the accuracy of this prediction, and increased the credibility of the methodology, by showing that about five percent of the trips to the Tigard A-Boy occurred on foot. CR 01361. 1- r. Larson testified that by increasing the PEF in downtown Tigard, the city could expect to replace car trips with trips by bicycle or by foot. Testimony from several Tigard residents confirmed EXHIBIT A TO FINAL ORDER Page - 57 N !I %Sam the likelihood of this occurring. CR 00468; CR 00467; CR 00465. Mr. Larson said that he had undertaken a careful analysis of existing and planned bicycle and pedestrian ways in the city. He found that the city could expect to achieve a PEF of 9-10, and an additional nine percent reduction in car trips, by building the planned pathway system. CR 00932. He further testified that completion of the pathway link on the Property was "essential" to obtaining that reduction. CR 00781. Michael A. Replogle submitted evidence confirming Mr. Larson's testimony. 1W. Replogle was highly qualified to address the issue before Council, being co-director of the Transportation Project of the Environmental Defense Fund with outstanding credentials in planning and engineering. CR 01133. Mr. Replogle testified that he was familiar with Tigard and the Portland metropolitan area . He reviewed the specifics of the current case with staff from METRO, Tigard and other planners. Based on that review he testified that "the proposed dedications will certainly offset a portion of the traffic and associated air quality impacts generated by the Dolan's [new] facility." Id. Mr. Replogle continued by saying that LUTRAQ showed "that increasing pedestrian/bicycle friendliness (and the corresponding PEF) in suburban areas like Tigard can reduce Vehicle Miles of Travel by motor vehicles by as much as 10 percent. However, such an increase will not be possible without creation of significant new pedestrian/bicycle facilities, including the trail that requires dedication of a portion of Dolan's property." CR 01137. Considering this testimony, Council found that the Fanno Creek pathway would or would be likely to mitigate for the new car trips that Applicant's project will generate. Although not required to specifically quantify that reduction, Council found that the pathway would or ;would be likely to mitigate for at least nine percent of those new trips.' Not surprisingly, Applicant did not agree with Mr. Larson's conclusions. She did not, however, take issue with the basic methodology underlying LUTRAQ, perhaps because her expert, Mr. Woelk, testified that Mr. Larson had made appropriate use of the study. Instead, Applicant argued that the path was unnecessary or that the city did not consider all relevant factors in making its analysis. Council did not agree with these arguments for several reasons. " Applicant introduced the results of some informal surveys taken at the Tigard A-Boy to argue that the path would result in zero pedestrian/bicycle replacement. Council found the evidence from Mr. Larson, Mr. Replogle and the citizens who testified in person to be more persuasive that Applicant's unscientific'survey. Indeed, even b&. Woelk admitted that current pedestrian ways provide five percent of the store's business. Aft EXHIBIT A TO FINAL ORDER Page - 58 = W-Ed The city demonstrated with Mr. Larson's testimony that the path was necessary to achieve the trip reduction predicted in LUTRAQ. Mr. Larson also testified that the planned location for the path is reasonable and necessary, rebutting Mr. Dolan's claims in his affidavit.24 Finally, LUTRAQ was the only independent study presented to Council. Mr. Dolan's attempt to challenge the City's traffic analysis by alleging that the City failed to consider the effect of weather and other factors was mistaken because of the statistical method used in LUTRAQ. LUTRAQ found that PEF factors had independently significant effects on transportation mode decisions. Thus, other factors such as weather, while perhaps also relevant to such decisions, do not detract from LUTRAQ's predictions as to the results to be expected from pedestrian and bikeway improvements. LUTRAQ found that forpi vvdngpurposes local governments could expect the reductions in auto usage predicted by Mr. Larson's application ofLUTRAQ in this case. Therefore, Council rejected Applicant's arguments. Applicant also argued that currently existing paths were sufficient to serve downtown. However, she was mistaken. As 1VIr. Larson testified, the Fanno Creek path is needed to achieve an i 24 Applicant raised several arguments that alternative locations were available for the path. However, Council found that the proposed pathway route was the only suitable one for the reasons provided by Mr. Larson, as follows: It was suggested at the July 18, 1995, hearing that the pathway could be routed through the parking lot for the A-Boy facility. The following reasons make this alternative unfeasible: 1. The pathway along the creek is the more direct route to Main Street. To route through the A-Boy parking lot woi*.ld require angle points to be constructed in the pathway. 2. The parking lot pathway would be in conflict with the vehicles maneuvering in and out of parking spaces, in an area where neither vehicles, bikes, nor pedestrians would expect conflicts. 3. The pathway along the creek is a more clearly defined public space. 4. The pathway along the creek is the more attractive route, reinforcing pathway utility and LUTRAQ goals; it will attract more riders. S. The pathway along the creek is the established standard, and therefore is consistent and clearly identifiable. CR 00083. EXHIBIT A TO FINAL ORDER Page - 59 110 BREW adequate PEF. See, supra, at 58. In addition, Applicant's argument concerning the adequacy of the existing system was founded primarily on Mir. Woelk's testimony that the Burnham Street pathway was adequate to serve downtown. However, Mr. Larson explained why that path was not a replacement for the Fanno Creek Pathway: In the duly 18, 1995, hearing, Mr. Woelk indicated that the Burnham Street pathway is an acceptable alternative to completing the Fanno Creek Pathway. First, the Burnham street and Fanno pathways are both indicated on the City's Pathway plan. Second, the Burnham street pathway, as a replacement to the Fanno pathway, would result in less direct access to Main Street from areas currently connected to the Fanno pathway. Significant out-of-direction travel would result, reducing the attractiveness of pedestrian/bicycle travel and therefore diminishing pathway effectiveness. Standing alone, the Burnham Street pathway is not an adequate alternative. CR 0083 (emphasis in original). Council found Mr. Larson's testimony to be persuasive and found that the Burnham Street pathway was not an adequate substitute for the Fanno Creek pathway. Finally, 1W Woelk argued that the city has not shown what effect this development will have on intersections in Tigard. He missed the point. Mr.. Woelk had to agree that each new trip had a cumulative impact on the city's traffic system. See CR 00782 (showing that any increase in trips has a significant impact); see also 7-18-95 Tr. at 25 (testimony of Woelk: "I concur that when you incrementally add traffic, just fake you incrementally add water, the cumulative is the result. We have no, we have no problem with that."). Each individual trip thus has a cost which it imposes on that system. M. It is'dk to i,,,pose that cot. on the tri^g,.e.... nerator, whether or not it is that generator who Y breaks the system. Here, the city developed a reasonable basis for deciding the cost impact of Applicant's development. It also showed that the exaction's value is far less than that impact. MEN EXHIBIT A TO FINAL ORDER Page - 60 d. Tigard Showed That ncc Biryde/Pedestdan Pathway Easement in Remand Condition One Was lE~.otegMy ]Proportional in Extent to the Imp,Bets_ of Applicant's Development To analyze this element of the test, Council first considered evidence establishing the value of the pathway easement. After finding that property to be worth $4,500, Council then considered whether that amount was roughly proportional to the traffic impacts expected from the development." Council received conflicting testimony concerning the value of the pathway easement. Staff presented an appraisal done by Palmer, Groth & Pietka, Inc., a film of expert appraisers, which concluded that the easement was worth $4,500. CR 00776. Applicant, however, submitted an affidavit from her son claiming that the pathway and floodplain easements had a combined value of $84,000. Council was required to choose between these two evaluations before it could decide whether the value of the easement was proportional to the probable impacts of the project. Council found that it should adopt the $4,500 value provided by the independent appraisal firm. That appraisal was conducted according to professional standards in the appraisal field and according to standard procedures. In addition, the appraisers based their valuation on comparable properties, which were shown in the record. Appl:ca^''s sc.:y on the oilier ]laird, did not supply comparable values. Furthermore, when he made his guess, Applicant's son was involved in a law suit with the city for inverse condemnation. For purposes of that suit, it was in his personal interest to maximize the value of the pathway property. Accordingly, he was undoubtedly biased toward overestimating the value of the property, in which he has an ownership interest. This observation was born out by the great disparity between his valuation and that of the independent appraisers. Put simply, Council found Applicant's son to be without credibility in this regard, while it found the valuation of the appraisers to have been conducted in an objective, independent manner. 25 At the first of the Remand Hearings Staff suggested a modification to the bicycle/pedestrian way in Oversized Exhibit 18. That diagram showed a notch in the pathway to accommodate Applicant's building as originally proposed. Council chose not to take Staff's suggestion for two reasons. First, Mr. Larson testified that the notched path would create significant safety concerns. CR 00082. Second, Council adopted the interpretation of unappealed Condition Three set out in the August 16, 1995, Staff Report. CR 00016. Under that interpretation Council could not all the building to be placed in the notch. EXHIBIT A TO FINAL ORDER Page-61 r Applicant criticized the appraises! for not including severance damages, which she claimed would result because she would have to redesign her building to accommodate the proposed pathway. Council rejected her argument for several reasons. First, under Oregon law, severance damages are not available for the condemnation of bare. land. Council found that this same rule should apply when the city requires an exaction that is otherwise constitutional. Second, the appraisers found the severance claim to be without merit. They testified that a buyer of the Property would not discount the price he or she was willing to pay because of the easement. CR 00776. Finally, unrebutted evidence in the record showed that the pathway would not prevent Applicant from building a structure of the same square footage while accommodating the pathway. Oversized Exhibit 72 is a set of diagrams Staff submitted showing possible alternative designs that would accommodate the pathway but fully carry out the purposes for this application.26 Therefore, Council found based on unrefuted evidence that the easement could not and would not result in severance damages. Council also rejected a related argument made in an affidavit submitted by Mr. Dolan. There, he argued that the location of the pathway would cause security concerns by transversing the rear of the proposed building. Staff, however, submitted testimony by independent appraisers saying that the location of the path would not cause security concerns sufficient to reduce the Property's value. CR 00776. Because, unlike Mr. Dolan, the appraisers did not have an ax to grind, Council believed their testimony to be more credible and relied on it to find that the location of the pathway did not Now reduce the Property's value.27 After finding the pathway easement to be worth $4,500, Council next considered whether that amount was proportional to the traffic impacts from the development. In undertaking that analysis, Council noted that the Court did not promulgate black letter rules as to how specific a local government must be in making this analysis. However, the Court was clear that mathematical certainty was not required. 26 These exhibits also show that Applicant could have built the new building any time after the September `91 Approval. After that approval, she had the land use permit she needed to build on the building. As the exhibits show, she could have slightly modified her design to build precisely the same number of square feet of space any time after she received that approval. 27 In deference to Mr. Dolan's concerns Council modified Remand Condition One to allow Applicant to fence the easement areas off from other portions of her property. E-MMIT A TO FINAL ORDER Page - 62 MENEM Council compared the relatively small value of the easement dedication to the likely traffic impacts of the development. At the very least, the development will generate 206 additional trips per day. Council found that the cost imposed by that minimum number would be $17,000. The exaction was thus very much smaller than the project's impacts using the most conservative numbers available. Council thus found the easement to be roughly proportional to the project's impacts. This conclusion became especially obvious when Council value Comparison considered the more likely result that the Value of Easement v. Cost of Impacts development would generate an L :.4!..L44?..LSt..L.L.L444.L4t.44.4. 35000 4kk ?!ta<4~a tat44<tth!. .?.~.?.a.4.41.~.?.~..Si t.}.SSS. additional 404 trips per day, having an ~~.c4t4..~,~4E".L~. 30000 L 44ll.4.~4.... .L.SL.L.St,t,.L.4.4.44.44L.4. impact of about $33,496. Considering 25000 ~43ht4s3 y4~[.L4444M 4444. 44.44'..' Lt.S.t.4.4444t4t..4444.4. that number, an easement worth $4,500 120000 5000 appeared to be a very small burden to 10000 Asr expect Applicant to bear.28 5000 0 Dollars Larson ® woelk Q Easement )Figure 7: Value/Cost Comparison 28 Requiring AppUcant and others to bear the cost of automobile traffic generated by their developments is fair to the city's taxpayers and has strong support in basic policies. According to Dr. Nelson, an expert in planning practice and economics, automcbile-dependent property, including downtowns and commercial areas devoid of pedestrian and bicyclist facilities, enjoy considerable automobile subsidies proffered by society at-large [sic]. These subsidies are not paid by benefiting property. As such, society is entitled to have these subsidies compensated through a variety of public-serving planning decisions including dedications and improvements resulting in improved walking and bicycling activity. CR 01333. Dr. Nelson explained the consequences of not requiring developers to bear the actual costs of their developments as follows: By not having automobile users face up to these costs [generated by automobile use], the costs are borne by the public and the avoidance of such costs are internalized as benefits by private property. If these costs were accounted for, land use patterns would change to reflect the true cost of automobile use relative to alternative modes. Public agencies need to devise %vays in which to offset this EXHIBIT A TO FINAL ORDER Page - 63 After concluding that the easement satisfied the Court's requirements, Council considered one final measure, not required by the Court in Dolan H. Using the methodology developed by Mr. Larson and his predictions concerning mitigation, Council determined the value of the mitigation the pathway would or would be likely to provide. Mr. La.•son predicted and the Council found that the pathway would result in a nine percent reduction in automobile trips. Multiplying this amount by the predicted increase in trips from the development (404) and by the cost each trip would have imposed on the system, showed that the pathway would result in mitigation of $4,433.06. CR 00933. This number was proportional to the $4,500 value of the easement. Therefore, Council found the city to have met even the most demanding interpretation of the rough proportionality test. D. MOST OF APPLICANT'S OTHER ARGUMENTS IN OPPOSITION TO REMAND CONDITION ONE WERE NOT PROPERLY BEFORE COUNCIL IN THIS REMAND PROCEEDING When considering an application on remand, Council must determine the scope of issues which are subject to review. That discretion, however, is not without limits. Old issues or issues that could have been raised in earlier proceedings are not subject to reconsideration in a proceeding after remand. See, supra, at 11. This case had gone through four levels of appellate review before coming AgAL back to Council on remand. Hence, the questions before Council here were narrow. They were limited to the question whether Remand Condition One satisfied the rough proportionality test and any issues which were created by the Supreme Court's decision that could not have been raised in the earlier proceedings. inefficient outcome. A logical method is to exact the provision of pedestrian and bicycle access ways from new development. Such an exaction would have at least three important positive outcomes. First, congestion, pollution, and other adverse effects of automobile-dependency are reduced. Second, private development is made somewhat more responsible for otherwise contributing to the adverse effects of automobile-dependency. Third, by improving access to property, property value improves. In this latter regard, commercial and residential property would likely see the largest gains in value attributable to the provision of pedestrian and bicycle ways, although all property value is likely to gain in some respect. CR 01344. EXLIIBIT A TO FINAL ORDER Page - 64 Applicant made many arguments other than those concerning the Court's rough proportionality test. Most of those arguments, as shown in Table 1 were not subject to reconsideration in these remand proceedings. TABLE ONE STATUS OF "OTHER" ARGUMENTS ON REMAND Issue Properly Before Council? Rationale Whether Tigard's land use No. Applicant had ample opportunities regulations allowed Tigard to in the earlier proceeding to raise any impose a condition requiring the argument she would have liked dedication of floodplain and pathway concerning Tigard's authority to easements impose a condition like Remand Condition One under its land use regulations. She chose not to make any such arguments, but focused only on her claims under the Takings Clause. Whether Tigard's decision to impose No. Applicant had ample opportunities the exaction based on the trip in earlier proceedings to challenge generating characteristics of a the characterization of her hardware/paint store violated the development as a hardware/paint WTIF store. She chose not to raise such challenges and therefore was precluded from doing so on remand. Whether Tigard's interpretation of No. Tigard made substantially the same its land use regulations violated state interpretations of its land use law. regulations in the earlier proceedings to impose Original Condition One. Applicant should have made her arguments about code interpretation then. EXE MIT A TO FINAL ORDER Page - 65 TABLE ONE STATUS OF "OTHER" ARGUMENTS ON REMAND Issue Properly Before Council? Rationale Whether Tigard's decision violated No. Applicant's arguments under the the Equal Protection Clause of the Equal Protection Clause and Article Fourteenth Amendment to the I, § 20 in this remand proceeding Constitution of the United States and were entirely based on local land use Article I, § 20 of the Constitution of decisions made before or while her the State of Oregon. application was pending. Furthermore, she aciaally contended in the earlier proceedings that Original Condition One was unfair because Tigard treated upland land owners differently than Applicant. CR 00736 ("The fact that the city approves many applications that have similar effects and does not require property dedications was of no concern to the Oregon court.") No review body accepted that argument, and it is now decided and not available to Applicant on remand. Whether these remand proceedings Yes. Technically Applicant's argument violated the Due Process Clause of under the Due Process Clause was the Fourteenth Amendment to the before Council, but only because she Constitution of the United States made the facts in her lawsuit against where Applicant introduced the fact the city part of the record. of a pending lawsuit against the city and her lawyer actively solicited a settlement discussion with Council during the remand hearings. Although Council was not required to address issues not properly before it, Council chose to make findings concerning those issues in case a review body disagreed with its understanding of the rules governing reconsideration of old issues on remand. However, Council's findings under the old EMMIT A TO FINAL ORDER Page - 66 issues were made for the sake of argument only. Council did not intend to waive any argument of Tigard that the issues were already decided and not subject to further decision and review. E. A CONDITION REQUIRING DEDICATION OF EASEMENTS FOR FLOOD CONTROL AND ALLEVIATION OF TRAFFIC IMPACTS IS APPROPRIA'T'E UNDER TIGARD'S LAND USE REGULATIONS 1. Tigard's Land Use Regulations Required Council I., rmpose Remand Condition One or to Deny the Application Although the Supreme Court's opinion in Dolan II required Tigard to show that a condition requiring dedication of property satisfied certain constitutional requirements, that case did not alter a the rule under the CDC that Applicant bore the burden of proving that she was entitled to approval of her application. CDC § 18.32.250.A.1. Applicant failed to show that the proposed development would, without Remand Condition One, meet the Tigard's approval criteria. Applicant tried to satisfy the approval criteria governing flood control and transportation impacts by filing a variance request. See, supra, at 7 (quoting variance request). Petitioner's one- half page statement attempting to justify a variance did not, however, contain the information required concerning storm drainage and traffic impacts, including an analysis of the impact of the development on the city's storm drainage and traffic systems. CDC 18.32.050, 18.84, 18.120.090,.100, 18.164.030 and 18.164.100. For example, CDC § 18.164.100.A provided that a permit may be issued "only where adequate provisions for storm water and floodwater runoff have been made." The cited CDC sections when read together implemented the Comprehensive Plan requirement that development address storm drainage and traffic impacts. With regard to drainage, the Comprehensive Plan provided in relevant part as follows: The City shall require as a precondition to development that: a. the site development study be submitted for development in areas subject to poor drainage, ground instability or flooding which shows that the development is safe and will not create adverse off-site impacts; EXHIBIT A TO FINAL ORDER Page - 67 b. natural drainage ways be maintained unless submitted studies show that alternative drainage solutions can solve on-site drainage problems and will ensure no adverse off-site impacts. C. the City shall require as a pre-condition to development that all drainage can be handled on-site or there is an alternative solution which will not increase the off-site impact on the drainage system. Comprehensive Plan Policy 7.2.1. The Comprehensive Plan also explained that, [p]roper administration of the floodplain areas relies heavily upon the availability of adequate information upon which to assess the environmental impacts of a project. The development, which creates the need, should be responsible for providing the city with the necessary data for making sound decisions. The burden is on the applicant to prove that a project will not adversely affect the environment or create undue future liabilities for the city. Comprehensive Plan Policy 3.2 Floodplains, Findings, p. II-14. Tigard implemented these policies through the Sensitive Lands Chapter (CDC § 18.84) and Utilities Standards Requirements for Storm Drainage (CDC § 18.164.100). Similarly, the Comprehensive Plan addressed transportation facilities by requiring that infrastructure be capable of serving the proposed development. Comp. Plan Policy 7.1.2(b)(1). This requirement implemented Statewide Planning Goal 11, "Public Facilities and Services," which mandated that urban development be supported by appropriate levels of public facilities and that cities plan for key facilities. Goal 11 defined "key facility" to include transportation. To address this requirement, the CDC required Applicant to submit a site plan detailing existing and proposed streets, ways and easements, including those on surrounding properties. CDC § 18.120.120.A.3. The exact nature of the street, sidewalk and bikeway improvements required of each development depends on the facts of the specific application. CDC § 18.164.020.B ("The City Engineer may recommend changes or supplements to the standard specifications consistent with the application of engineering principles." CDC 18.164.030, 18.164.070, 18.164.110. Tigard must MON EXHIBIT A TO FINAL ORDER Page - 68 i mom= condition developments that would "principally benefit" from bikeways identified on the adopted pedestrian/bikeway plan to include the cost of bikeway improvements. CDC § 18.164.110.B. Applicant completely failed to address these standards hi the Application. She thus failed to meet her burden of proof Applicant likewise failed to use her opportunity to prove facts justifying a variance. She did not produce evidence of the "possible negative or positive attributes of the proposal" or show that there had been changes or mistakes in the comprehensive plan or the zoning map as it related to the Application. CDC § 18.32.250.B. The submission of an incomplete application did not "negate the applicant's burden of proof." CDC § 18.32.050.G. Based on the lack of evidence concerning drainage and transportation impacts, Council could have denied the Application. CDC 18.32.250.A, E, 18.10.010, 18.16.010.B. Indeed, Applicant's attorney admitted to the Supreme Court of the United States that the city could have done so. See, supra, at 14. Instead of denying the application, however, Tigard processed it using information in the record. Based on the impacts of the proposed development, see supra at 31, 48, Remand Condition One, which requires dedication of easements for flood control, drainage management, and alleviation of traffic impacts, was necessary to address the requirements of the CDC and to allow Council to issue an approval. See CDC § 18.32.250.E. La (conditions of approval authorized where "necessary to carry out provisions of the Tigard comprehensive plan."); CDC § 18.32.250.E.2 (authorizing the City to require property dedications as conditions of approval). 2. Applicant's Arguments Under Tigard's Land Use Regulations Were Not Well-Founded Applicant, through her attorneys, made a series of arguments under Tigard's land use regulations. She claimed that those regulations did not allow Council to impose Remand Condition One. Although, as set out supra at 65, Applicant had lost the opportunity to raise such arguments, Council nevertheless considered them. After analyzing Applicant's arguments, Staffs response, and the relevant regulations, Council found none of Applicant's arguments to have merit. Council reached this finding based on the reasoning set out below. EXHIBIT A TO FINAL ORDER Page - 69 a. Applicant Received adequate Notice of Tigard's Interpretation of Certain Land Tee Regulations Applicant claimed that Tigard had not provided her with adequate notice of several interpretations Staff proposed for various local land use regulations. However, Council found her argument not to be well taken because she had adequate notice of those interpretations and a sufficient opportunity to respond. Staff did not propose and Council did not adopt any unreasonable interpretations of Tigard's land use regulations. Linder Oregon law, Council had primary responsibility for making interpretations of the city's land use regulations which applied to the Application. So long as those provisions could reasonably be identified as applicable, parties were expected to discern their potential significance. Moreover, this process, in which Staff published its report a full week before the initial hearing and Council allowed one continuance and an opportunity for the submission of additional evidence and argument after the close of oral testimony provided ample opportunity for Applicant to contest any of the interpretations proposed by Staff and adopted by Council. b. Council Found That Approval Would Allow Apoli ant to Sitge Any General Retail Me on the Pro my Applicant's lawyer argued that Council would violate the city's land use regulations if it applied traffic counts for a "general retail use" in evaluating the likely impacts of the project. He claimed that Council should find that any approval would be limited to the A -Boy and that A-Boy's use would be limited to selling "bulky merchandise." He further claimed that Applicant sought approval for a "general retail facility" only because that designation was required by Staff at the pre- application conference. Council did not accept this argument, but held that under the local land use regulations Council was required to consider all possible uses for the site allowed under the Application. Although Applicant's lawyer suggested that Staff had somehow required Applicant to request approval for a general retail sales facility when all she wanted was a plumbing store, evidence in the record showed otherwise. A-Boy is the company that would use the new store for selling plumbing EXHMIT A TO FINAL ORDER Page - 70 and electrical supplies. It is a legal entity distinct from Applicant, yet was not a party, to the Application. Instead, it was at the time of these proceedings a tenant of Applicant. Accordingly, an approval would not limit the tenant to an A -Boy. Indeed, under the Constitution of the United States and the Constitution of Oregon, Tigard could not condition Applicant to rent solely to A-Boy because such a condition would impair the obligation of contract existing between herself and A-Boy under the lease. U.S. CONST. ART. I, § 10 ("No state shall... pass any law impairing the obligation of contracts... ORE. CONST. ART. I, § 21 ("No ...law impairing the obligation of contracts shall ever be passed Other evidence in the record showed that Applicant had sought the flexibility inherent in approval. of a general retail use. In paragraph 2, Proposal Summary, of the Application, the following is typed in as a summary of the project: "The construction ofa 17,600 square foot building having a general retail sales facility." John and Florence Dolan signed the application, not A -Boy, a separate legal entity. Before their signatures, the following appeared: THE APPLICANT(S) SHALL CERTIFY THAT: C. All of the above statements [including the project description set out above] and the statements in the plot plan, attachments, and exhibits transmitted herewith, are true; and the applicants so acknowledge that any permit issued, based on this application, may be revoked if it is found that any such statements are false. The applicant has read the entire contents of the application, including the policies and criteria, and understands the requirements for approving or denying the application. CR 00754. Thus, if anything was inaccurate about the request, Applicant and her husband were on notice to correct the project description. However, they represented to the city that it was accurate and true. The objective evidence from the time when the application was made shows that Applicant intended to receive a broad approval that could support many different retail uses. EXHIBIT A TO FINAL ORDER Page - 71 Assuming that Applicant did intend to limit herself to a plumbing and electrical store, however, Council still could not agree with her argument. In the Original Decision, Council found CDC Chapter 18.66, CBD: Central Business District, to be an approval standard. Applicant did not appeal that interpretation. That chapter required Applicant to prove that the use proposed in the Application was permitted in the zone. To allow such proof, Applicant was not free to design a description of her proposed use not specified as allowed in the CDC. Instead, the CDC required Applicant to state which of the permitted uses listed in the CDC she proposed for the Property. Here, the Application selected such a listing. It said that Applicant planned to tear down the existing 9,700 square foot building and to replace it with a "17,600 square foot building having a general retail sales facility." The requirement of CDC Chapter 18.66 led to the following finding, which 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. Applicant thus bound herself to conduct only general retail sales in the building, but not to operate only a plumbing and electrical store. Applicant's claim that somehow Staff persuaded her to apply for more than she wanted was factually incorrect for another reason. The Application explained that the project would allow "replacement of [the] existing sales facility with a larger facility." Indeed, the record showed that Applicant had sought the flexibility inherent in approval of a general retail use. See, supra, at 71. The objective evidence for the time when the application was made shows that Applicant intended to receive a broad approval that could support many different retail uses " 29 Applicant criticized Council's consideration of all uses allowed under general retail sales by arguing that it would result in speculative planning for only worst case situations. Council disagreed with that critique for two reasons. First as explained supra at 63, Tigard satisfied the rough proportionality test even when using Mr. Woelk's calculations, which were specific to A-Boy. Second, Council's determination that it should consider a range of uses was limited only to those which could be classified as being "general retail." EXHIBIT A TO MNAL ORDER Page - 72 MEN Applicant also tried to claim that the Original Decision, by granting a parking variance based Aft on a "bulky merchandise" exception, limited use of the site to the A-Boy operation. Council found no merit in that argument. Council allowed the parking variance as an accommodation to Applicant, but it did not limit her use to bulky merchandise. Instead, Council found that A-Boy would most likely be a tenant of the new building, at least at first. During that period, Council found that it could allow Applicant to build three fewer parking spaces than the CDC otherwise would have required. However, Council also found that it would have opportunities to require additional parking on the site when Applicant built the Phase II building. That parking, Council believed, would provide sufficient assurance that adequate parking existed on the site, whatever use ultimately came to occupy the building. Because Council saw an opportunity to require additional parking in the long-run and because it did not limit the uses to which Applicant could put the new building, its grant of a parking variance was irrelevant to the question whether the CDC required Council to limit its impacts evaluation solely to those likely from an A-Boy store. C. Comprehensive Plan Policy 7.1.2(b)(1) and Related Land Use Regulations Supported Imposition of Remand Condition One As set out in Section III.E.1, supra, Council found that Remand Condition One was necessary partly because under Comprehensive Plan Policy 7.1.2(b)(1) and related regulations, Tigard cannot grant approval in site development review unless it finds affected transportation facilities to be capable of serving the proposed development. Applicant raised three challenges under this policy and related regulations which Council addressed in the following findings. (1) Tigard Had Authority Under Its Land Use Regulations to Impose Remand Condition One Applicant argued that Tigard did not have authority to impose Remand Condition One However, as Applicant's attorney told the Supreme Court of the United States, Tigard did have authority to deny the Application. Plan Policy 7.1.2(b)(1), which required provision of adequate transportation facilities, was one source of Tigard's authority to refuse approval. Because Tigard had authority to deny the Application pursuant to the Comprehensive Plan, it also had authority to condition its approval. CDC §18.32.250.E.1.a., authorized Council to condition approval of the Application because such a condition was "necessary to [c]arry out provisions of the Tigard EXHIBIT A TO FINAL ORDER Page - 73 comprehensive plan." Furthermore, CDC §18.32.250.E.2 allowed Council to require Applicant to dedicate an easement. See also CDC § 18.164.020.B (exact character of the street, sidewalk and bikeway improvements required of each development depends on the facts of the specific application). (2) Comprehensive Plan Policy 7.1.2 Did Not Limit the Scope of Possible Uses Which Council Could Consider When Fashioning Conditions of Approval F,.pplicant argued that under Comprehensive Plan Policy 7.1.2, Council could impose only conditions based on the public facility impacts of the precise use proposed by Applicant. Applicant thus suggested that the city should micro-manage the phasing of developments. As Council understood the argument, it would, for example, require a new site development review when a candy store moved and was replaced by a book store. Or, Council supposed, Applicant's reasoning would require a new review even where a book store specializing in history was replaced with a store selling murder mysteries. Surely, thought Council, this approach was too intrusive and unworkable to be required by the Comprehensive Plan and CDC. Council's review of the relevant land use regulations confirmed this reaction. Council rejected Applicant's crimped and unworkable approach for two reasons. First, Tigard's land use regulations did not require the city to play big brother over the affairs of property owners, searching out all deviations in use or tenancy. Instead, they provided for review of developments in phases only where applications propose a formal phasing plan calling for such a review. Implementing Strategy 4 of Policy 7.1.2 addressed the provision of public facilities to phased development as follows: "(b) [the CDC] shall allow for the phasing of services if a development proposal indicates such phasing." (Emphasis added.)30 From this provision it was apparent that Tigard's land use regulations allow approvals for developments based on phasing of public facilities only where the application sets out a formal phasing plan. Furthermore, Council found that the CDC does not envision such a phasing plan to be based on the ebb and flow of new 30 Council noted that this principle was applicable here. Applicant plans to develop a second phase on the Property, which will include another retail store. However, in this review Council did not consider the impacts of that second proposed store. EMMIT A TO FINAL ORDER Page - 74 uses but on the development of new improvements on property to which the plan attaches. Council found this to be a sensible approach, because .a phasing plan would allow the city to conduct enforcement activities according to a rational plan and with the consent of property owners. As explained later in Strategy 4, The intent of these policies is to develop a mechanism for orderly and logical 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.) Council found that Strategy 4 explained the intent underlying the Comprehensive Plan concerning the timing of public facilities. Council held that it established that the Comprehensive Plan did not require Council to require only those public facilities which address only immediate needs generated by precise uses, but required Council to consider public facil:t ty needs in light of the entire range of fixture uses which an approval would allow. Council also rejected Applicant's suggestion that the city micro-manage uses because it was unworkable. Council found that Tigard had no way of learning of changes in use so that it could enforce Applicant's suggested approach. Applicant argued through her attorney, Mr. Shonkwiler, that because any change in use of the building would require a new site development review process, Council would have an opportunity to impose new conditions if A-Boy did not use the new store. He thus concluded that Council should have considered only the traffic impacts of an A -Boy store in evaluating traffic impact. Council, however, found Mr. Shonkwilec's inter-.: etation of the CDC to be incorrect. CDC § 18.120.020 provides in relevant part that "[s]ite development review shall be applicable to all new developments and major modification of existing developments, as provided in Section § 18.120.070 (Emphasis added.) Before considering the elements in CDC § 18.120.070 that distinguish a major from a minor modification, the City must select an interpretation EXH03IT A TO FINAL ORDER Page - 75 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 f-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 w•ll trigger design review. Council found three "somethings" to be 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, provided the basis for choosing between these alternatives. CDC, § 18.120.010 emphasizes that the purpose of site development review is to serve the public interest in the proper placement and orientation of buildings and other structures. It focuses on the importance of good site planning and the preservation of environmental amenities. This focus shows that site development review is triggered only when an applicant proposes to place a new structure on a site or to change the footprint of an existing structure. It is not triggered by a mere change in outright allowed use, by remodeling the interior of a building, or by cosmetic changes to the exterior of a building, none of which implicate the purposes of site development review. Because a simple change in use will not trigger site development review, Tigard's only meaningful opportunity to evaluate the impacts of development is during site development review triggered by a modification to improvements or when a party proposes a conditional use. Council thus concluded that it must, therefore, consider all potential uses of Applicant's project to properly gauge the Application's likely impacts on the city's infrastructure. Alk EXHIBIT A TO FINAL ORDER Page- 76 III; gle (3) Comprehensive Plan Policy 7.1.2 and Related Regulations Did Not Limit the Evidence Which Council Could Consider in Structuring Remand Condition One Applicant's attorney claimed that Plan Policy 7.1.2 or other portions of Tigard's land use regulations required Council to use traffic counts specific to A -Boy stores because of requirements established in the WTIF. However, nothing in Policy 7.1.2 or any other part of Tigard's land use regulations limited the evidence which Council could consider in that regard. The only limit on the evidence Council could consider was the general requirement that the evidence be relevant and reliable. Council found the WTIF to be an assessment imposed under county ordinance, being completely separate from the City's Comprehensive Plan and Community Development Code. Therefore, nothing in Tigard's Plan or the CDC refers to the WTIF, much less makes it the exclusive method of traffic impact analysis in the city. In fact, the WTIF is imposed by the County (Washington County Code (WCC) § 3.17.040(A)), in an amount set by the county (WCC § 3.17.050), through a process entirely separate and apart from this Site Development Review, and which may be appealed only to the county. CR 00102. Ask Furthermore, nothing in the WTIF or in Tigard's land use regulations limits Council's authority to impose exactions to address transportation facility impacts. To the contrary, the WTIF recognized that it was merely "one component of a multifaceted program." Washington County Ordinance 379, Section 2. As City Attorney Tim Ramis testified, Tigard replaced its own systems development charge for roads with an exaction approach to mitigating impacts at the request of the development industry. 7-18-95 Tr., at 5. (4) Remand Condition One Did Not Violate the CDC By Calling for Placement of the Pathway Outside of the Floodplain Applicant argued that Remand Condition One violated CDC § 18.120.180.A.8 by requiring the pathway to be located outside of the floodplain. That section provided as follows: EXMIT A TO FINAL ORDER Page - 77 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. Applicant argued that this section required the pathway to be located within the floodplain, to the exclusion of any other location. Council found Section 18.120.020 to be ambiguous. It allowed dedication requirements which included land within and adjacent to the floodplain, including . property at a "suitable elevation for construction of the pathway within the floodplain Compounding this ambiguity was the section's requirement that the dedications be in accord with the adopted pathway plan, which shows the pathway on the Property to be outside the floodplain. Thus, the section does not adequately explain what is required when, as here, there is no elevation within the floodplain which is suitable for construction due to steep slopes of a pathway segment called for in the Pathway Plan. CR 01553 (slides showing steep slopes)." Considering flus ambiguity, Council found that it should interpret the section as requiring the pathway to be placed immediately adjacent to the floodplain. Council found this interpretation to be supported in that the section designates as "greenway" all dedications which consist of land either within or adjoining the floodplain, thus including both the floodplain and pathway dedications. Further, Council found its interpretation to be consistent with the Pathway Plan, a part of the Comprehensive Plan, which called for the Fanno Creek pathway to be adjacent to the floodplain. Indeed, this section nowhere mandates placement of the path in the floodplain. It only says that the city should require a land dedication when possible that includes space in the floodplain for 31 Council found that the bicycle/pedestrian way could not be located in the floodplain because, besides existing steep banks, the channel improvements called for in the Master Drainage Plan called for relocation and Stabilization of the bank. CR 01025. "The Engineering Division has stated that the proposed structure should be at least 10 feet away from the relocated outer bank in order to accommodate an eight foot wide pathway and the planned reconstruction of the storm drainage channel along the floodplain." CR 01043 (from the September `91 Decision). 10 EXHIBIT A TO FINAL ORDER Page - 78 i the path. Further, it does not set the locatioli of the path. It relies on the pathway plan to do that. Thus, Applicant's argument that Remand Condition One would violate this section is simply wrong. (5) Role of the Parks Plan Applicmit asserted that Comprehensive Plan Policies 3.5.3, 3.5.4, 3.6.2, 3.2.4 and Implementing Strategy 4 required Council to apply the City's Parks Plan to require Applicant to allow public access to the floodplain for recreational purposes. Applicant then claimed that because the city could not constitutionally impose such a requirement, it could not impose any easement condition on Applicant. Council, however, did not believe itself to be in such a Catch-22. The Court did not hold that the Parks Plan was per se unconstitutional. Instead, it held that before Tigard could implement that plan the Constitution required that it make certain findings. Under the Supremacy Clause, 12 Tigard's local land use regulations must be interpreted consistently with supervening federal law. Therefore, Council interpreted the Parks Plan's dedication provisions to be subject to findings as required in Dolan If. Because Council had never intended that the floodplain easement would serve as a park, it decided as a matter of policy that it did not need to secure a recreational easement to the floodplain to carry out the intent of the Parks Plan. Accordingly, in deference to federal law, it did not attempt to justify a recreational easement under Dolan H. (6) Remand Condition One Is Consistent With Comprehensive Plan Policy 8.1.3 Applicant argued that Remand Condition One would result in an exaction in excess of allowed WTIF fees, thus illegally modifying "Plan Policies 8.1, 8.1.3 and Implementation Strategies 2 and 5.s33 Council rejected this argument because it was not sufficiently developed to allow a response. 32 The Supremacy Clause of Article VI of the Constitution of the United States provides as follows: This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. 33 In fact, there is no Plan Policy 8.1. ANk EXHIBIT A TO FINAL ORDER Page - 79, Policy 8.1.3 set forth various preconditions to development for the provision. of transportation facilities. Applicant did not specify which provision of this policy was "reinterpreted" by Staff or Council. Council noted that no portion of this policy, or any other provision of the Comprehensive Plan, limited the city's ability to seek offset of development impacts in excess of the WTIF. Indeed the Comprehensive Plan did not incorporate or even refer to the WTIF, so the criteria requiring Applicant and the city to mitigate transportation impacts existed apart from any consideration of the WTIF. (7) Remand Condition One Does Not Violate Implementation Strategies 2 and 5 Implementation Strategy 2 of the Comprehensive Plan required the city to develop and implement a capital improvements plan containing certain listed elements. Applicant argued that Council would violate this strategy if it imposed Remand Condition One. However, her argument lacked merit because it was not sufficiently specific to allow a response. Applicant did not explain how Remand Condition One would violate this strategy. Neither Council nor Staff had cited it as an approval criterion, and neither believed it was relevant here. Implementation Strategy 5 required land developers to dedicate necessary rights-of-way and construct necessary street improvements when such improvements did not already exist. While Applicant's attorney did not explain why he cited to this strategy in submissions to Council, he evidently felt that Strategy 5 set an exclusive form of exaction for offsetting transportation impacts. Council rejected this narrow view, finding the implementing strategy to be only part of the Comprehensive Plan's overall effort to ensure the adequacy of public facilities. F. REMAND CONDITION ONE AND COUNCIL'S RATIONALE FOR THAT CONDITION Do NOT VIOLATE THE WTIF Applicant argued that by imposing Remand Condition One, Council would be violating the WT. F by classifying the proposed larger building as a Hardware/Paint store for purposes of the ITE trip generation study, rather than allowing Applicant to elect to make the determination bass-ed on actual trap generation, numbers. Her argument is completely meritless because Council did not apply the WTIF in this proceeding, having only estimated the WTIF fee in the `91 EX MIT A TO FINAL ORDER Page - 80 Decision. CR 01026. Applicant will have the opportunity to propose actual trip counts later, when she applies for building permits. CR 00934. Council did not apply the W I . Rather, Council relied on the facts which the County used in establishing the WTIF as substantial evidence of the cost associated with the traffic the proposed development will generate. It was reasonable for the Council to rely on the trip generation figures set in the WTIF. See, supra, at 54. G. REMAND COmmoN ONE AND THE COUNcmis RATIONAL FOR THAT CONDITION Do NOT VIOLATE STATE LAND USE STATUTES Applicant's attorney argued at various points in the remand process that the City was violating statutory rules regarding what standards and criteria apply to this application. ► "[T]he City's required placement of the pathway outside the floodplain is an attempt to impose land use restrictions that were not adopted at the time of the application acceptance. This is in violation of ORS 227.178(3) and the requirements for clear and objective standards under ORS Chapters 227 and 197." Shonkwiler, June 27, 1995 memorandum, at 5. ► "The City has attempted to impose an assessment for traffic impacts in excess of its legislatively adopted WTIF fee (Traffic Impact Fee) requirements.... [T]he City has no comprehensive plan nor code provision specifically authorizing the imposition of this excess assessment upon property owners. Imposition of land use requirements that are not in conformance with clear and objective standards and have not been adopted prior to the City's acceptance of the application is in violation of the provisions of ORS Chapter 197 and ORS 227.178." Shonkwiler, June 27, 1995 memorandum, at 6-7. ► "[T]he comprehensive plan requires implementation of the City's Parks Plan. The City's proposed easement restriction for the floodplain to preclude the public is in violation of these City mandatory provisions. The City cannot change these provisions without seeking a comprehensive plan and zoning ordinance text EXHIBIT A TO FINAL ORDER Page - 81 r NOR amendment reviewable during a separate public hearing and by LCDC. This did not occur before the 1991 application was accepted. The City's legal choices now include imposing the requirements or finding them invalid pursuant to the U.S. Supreme Court decision. ORS 227.178." Shonkwiler, June 27, 1995 memorandum, at 8. ► "The City's standards for approval of all other applications in 1991 did not require imposition of these dedications. Thus, the City is precluded from asserting .an unwritten special standard just for floodplain abutting properties. ORS 227.178(3)." Shonkwiler, August 16, 1995 memorandum, at 3. ► "[T]he approval standards the City was using in 1991 establishes that the City calculated WTT fees during the approval hearings and included them in the approval order. . . . ORS 227.178(3) requires their application during this remand." Shonkwiler, August 16, 1995 memorandum, at 8. ► "The City staff has asserted a new policy not found in the Code or comprehensive plan. Particularly, it was a policy that was not in place in 1991 when the application was approved. Therefore, ORS 227.178 precludes its application in this proceeding. The proposed new policy would require each development to plan for and participate in providing public facilities to serve the entire range of uses allowed by the applicable zone.... [T]he City has adopted no regulations setting clear and objective standards for the imposition of these new requirements. This conflicts with both ORS Chapters 227 and 197." Shonkwiler, August 16, 1995 memorandum, at 9-10. These arguments are based on two statutory requirements. ORS 227.178(3) requires that: If the application was complete when first submitted or the applicant submits the requested additional information within 180 days of the date the application was first submitted and the city has a comprehensive plan and land use regulations acknowledged under ORS 197.251, approval or denial of the application shall be based upon the standards and criteria that were applicable at the time the application was first submitted. EMIT A TO FINAL ORDER Page - 82 The application became complete in 1991. Moreover, the city's comprehensive plan and land use regulations were acknowledged then. Therefore, the statute requires that the city's approval or denial of the application be based on the standards and criteria applicable when Applicant submitted the application. Applicant's arguments, without specific citation to authority, regarding a statutory requirement of clear and objective standards are a bit confusing, as no statute requires that the city's applicable land use regulations be "clear and objective," per se. It is most likely that Applicant intended to argue here that the city was failing to stick to the requirements of ORS 227.173 (1), which requires that: Approval or denial of a discretionary permit application shall be based on standards and criteria, which shall be set forth in the development ordinance and . which shall relate approval or denial of a discretionary permit application to the development ordinance and to the comprehensive plan for the area in which the development would occur and to the development ordinance and comprehensive plan for the city as a whole. Ash InBCTPartnership v. City of Portland, 130 Or. App. 271, 881 P.2d 176 (1994), the court clarified that standards and criteria applicable to a land use a^plication need not detail how they might apply in any circumstance. That is left for the interpretive function of local decision makers. Id, at 276. " [I]f an ordinance contains provisions that can reasonably be interpreted and explained as embodying the standards and criteria applicable to the particular decision, it is specific enough to satisfy ORS 227.173." Id Applicant's first and third arguments pertain to Council's interpretations of code and plan provisions. Specifically, Applicant is arguing that in interpreting the referenced provisions--CDC 18.120.180.A.8 and 18.86.040.A Lb. and the Parks Plan--the City is imposing regulations that were not in effect at the time the application was completed. Applicant misapprehends the interpretive function of local governments. Interpretation of an ordinance provision does not constitute adoption of a "new" standard or criterion for purposes of ORS 227.178(3). EXHIBIT A TO FINAL ORDER Page - 83 The interpretive authority of a local government is triggered whenever a local ordinance provision "is capable of more than one tenable interpretation." Weeks v. City of Tillamook, 117 Or. App. 449, 454, 844 P.2d 914 (1992). Moreover, this interpretive function is riot discretionary, but is a responsibility of local governing bodies. Id Applicant can point to no case that holds that in carrying out this function, local governments are adopting new standards for purposes of OR.S 227.178(3). Applicant's second argument pertains to Council's authority to impose Remand Condition One. Specifically, Applicant claims that no standard existed on the date of submission of the application which would authorize imposition of an assessment besides the WTIF, and that, pursuant to the same statutory provisions just discussed, the City has no standard upon which to base such an assessment. As discussed supra at 80, the dedication requirements of Condition One do not impose an assessment beyond the WTIF. The County imposes the WTIF, in an amount set by the County. Contrary to Applicant's contention, the 1991 order specifically states that Council is not imposing the WTIF as part of this approval. Instead, CDC § 18.32.250.E authorizes Remand Condition One, which was adopted and applicable as of the date of submission of this application and, therefore, is not a new standard. Applicant's fourth argument is that the fact that other application approvals have not included the same sort of dedication condition shows that Council is applying an "unwritten standard" to this application. Again, the standard under which Council has imposed Remand Condition One, CDC § 18.32.250.E, is not new for purposes of this statute. Applicant's fifth argument is similar to the second. She claims that calculation of the expected WTIF assessment in the September `91 Approval required application of the WTIF during this remand process. Again, Applicant misreads the decision. Council did not impose the WTIF then because the WTIF was not a criterion applicable under the plan or code. Indeed, the WTIF ordinance itself states that the tax is not due until "the issuance of a building permit by the city." WCC § 3.17.060.A. Applicant's sixth argument is that the City is here applying a new standard that "would require each development to plan for and participate in providing public facilities to serve the entire range of uses allowed by the applicable zone." Under Plan Policy 7.1.2 each applicant provide EXHIBIT A TO FINAL ORDER Page - 84 1 .1 pig transportation infrastructure capable of serving the proposed development. As discussed supra at 70, Council found that this application sought approval of "general retail use" of the property, and was approved as such. Council further found that Plan Policy 7.1.2 did not limit the scope of potential uses of the Property which Council could consider when fashioning an appropriate condition of this development's approval, and therefore requires each applicant to provide transportation facilities based on this range. Because, Applicant did not dispute that Plan Policy 7.1.2 was applicable to the application when submitted, the policy referred to in the above quotation is not a new standard for purposes of the statute. H. REMAND CONDITION ONE AND THE COUNCIL'S RATIONAL FOR THAT CONDITION DO NOT OFFEND ARTICLE Y, SECTION 20 OF THE CONSTITUTION OF THE STATE OF OREGON OR THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH ArdENDMENT TO THE CONSTITUTION OF TEE UNITED STATES Applicant argued that Tigard had singled her out for disparate treatment from other property owners,' attacking Remand Condition One under Article I, Section 20, the Privileges and Immunities Clause of the Constitution of Oregon," and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United S: "es.36 Although Applicant did not distinguish between her federal and state equal protection theories, different legal tests apply under the different constitutional provisions. Article I, Section 20 bars the state from conferring a privilege or an immunity on one class of persons while excluding other classes or individuals based on immutable characteristics, such as race, for invidious reasons, or through arbitrary rules. The Equal Protection 34 Although she claimed that this argument also supported her claim that Remand Condition One was a taking, Council did not agree. The tests of Arollan and Dolan II were the sole legal grounds for her taking claim. Because Tigard satisfied the requirements of those tests, Remand Condition One did not violate the Takings Clause. However, if Applicant's arguments concerning alleged discrimination do provide an independent basis for a claim under the Takings Clause, Council intended that the findings in this section also be considered findings in response to that claim. 35 Article I, § 20 of the Oregon Constitution provides as follows: "No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." 36 The Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States provides as follows: "No State shall deny to any person within its jurisdiction the equal protection of the laws." EXHIBIT A TO FINAL ORDER Page - 85 Clause, in contrast, forbids the state from discriminating against a particular class unless, in the case Adak of economic regulations, the state has a rational basis for drawing such a distinction.37 'r 1. Applicant Did Not.Show That Remand Condition One Violated Article I, Section 20 The law under Article I, Section 20 is currently uncertain, see Ag West Supply v Hall, 126 Or. App. 475, 478, 869 P.2d 383 (1994); however, the courts have made a sufficient number of decisions under the section to derive an outline of the approach to such a case. To prove that Remand Condition One violated Article I, Section 20, Applicant was required to show that it denied her of a "constitutionally recognized privilege or immunity." D. Schuman, The Right to "Equal Privileges and Immunities". A State's Version of "Equal Protection, " 13 VT. L. REv. 221, 244 (1988). Assuming she made such a showing, Article I, Section 20 established three categories of classification, each creating a separate requirement. Those categories are cases in which the challenger is in a "true class," cases in which the challenger is in a "pseudo-class," and cases where the challenger is not a member of a class, but is considered to be an "individual." Id Applicant did not identify the constitutionally recognized privilege or immunity of which Remand Condition One allegedly deprived her. Thus, she did not articulate her argument sufficiently to allow a specific response, and she did not meet her burden to identify and prove that Remand Condition One deprived her of such a privilege or immunity. Therefore, Council found that her argument under Article I, Section 20 had failed.38 Assuming, however, that Applicant did have some basis for claiming that Remand Condition One deprived her of some constitutionally recognized privilege or immunity, Applicant did not explain the basis for her allegations. She did not, for example, say whether she was proceeding as part of a true class, a pseudo class, or as an individual. Thus, her argument was not sufficiently developed to allow a specific response, and she failed to meet her burden of proof. 37 Under the Equal Protection Clause, where, as here, a person challenges regulations not drawing distinctions based on a suspect category--e.g., race, or, to a lesser degree, sex--that person bears the burden to prove that the government had no rational basis for the distinctions. 38 In addition, as detailed below, the city has not discriminated between upland and riparian owners in any meaningful way. See, infra, at 90. EXEMIT A TO FINAL ORDER Pagg - 86 Although Applicant's claim udder Article I, Section 20 failed because of a lack of proof, Council considered, for the sake of argument, how such a claim might be structured. The first step in structuring such a claim would be to decide Applicant's status. "[A] `true class' is one that is created not by the law itself; but is based on antecedent personal or social characteristics or societal status." Ag West Supply, 126 Or. App. at 480. Race, sex, and nationality are examples of true classes. D. Schuman, supra, 13 VT. L. REV. at 232. Here, Applicant did not claim that Remand Condition One was based on any such factors. Therefore, Applicant was not a member of a true class. Applicant argued that the city through its decision created two classes of persons. One class owning property next to the creek and the other, favored class being those who owned upland property. Thus, the classification system she attacked was created by the city's land use regulations and its land use decisions. Furthermore, she was free to bring herself within the "favored class" by purchasing upland property. Thus, she claimed to be a member of a pseudo-class. See Hale v. Port of Portland 308 Or. 508, 515-16, 783 P.2d 506 (1989). However, such a class is entitled to no protection under Article I, Section 20, see id at 516, or is entitled to protection only from Aftgovernment decisions which lack a rational basis, see Ag West Supply, 126 Or. App. at 480 & n.3. Either she had no claim under Article I, Section 20 or that claim failed because, as shown below, Remand Condition One has a rational basis. See, infra, at 89. Applicant also appeared to believe that she was denied a privilege or immunity as an individual which Tigard grants to other citizens. Under those circumstances, Applicant was required to show that Tigard applied the law in an arbitrary or haphazard manner. D. Schuman, supra, 13 VT. L. REV. at 245. As shown below, however, Tigard did not apply its land use laws in such a manner, but imposed similar conditions in similar cases. See, infra, at 89. Therefore, her claim under Article I, Section 20 failed. 2. Applicant Did Not Show That Remand Condition One Violated the Equal Protection Clause The Supreme Court of the United States has established three levels of review to be applied when a regulation is challenged under the Equal Protection Clause, referred to as "strict scrutiny," FX MIT A TO MTAL ORDER Page - 87 "intermediate review," and "rational basis," respectively. Strict scrutiny applies where the state 'discriminates against a class based on race, religion, legitimacy or, possibly, some other immutable characteristic ("suspect classifications"). The Court applies intermediate review when a law draws distinctions similar to those triggering strict scrutiny, such as sex ("intermediate classifications"). Finally, the rational basis test applies to classifications not based on suspect or intermediate classifications. That final set of classifications includes any created by Remand Condition One, because Applicant has not shown--and cannot show-that the city is requiring Remand Condition One based on a classification such as race or sex. Under the Equal Protection Clause, Council could find Remand Condition One to be valid if the city "could rationally have decided' the measure adopted might achieve a legitimate objective. Minnesota v. Clover Leaf Creamery, 449 U.S. 456, 466 (1981) (emphasis in original); see also Medford Assembly of God v City of Medford, 72 Or. App. 333, 339, 695 P.2d 1379 (1984) ("selective enforcement of an ordinance violates equal protection `only if there is no rational basis to justify the selective enforcement"') (quoting City of Eugene v. Crooks, 55 Or. App. 351, 354, 637 P.2d 1350 (1981), rev. denied 292 Or. 772 (1982)); Wagner v Marion County, 15 Or. LUBA 260, 272 (1985) ("[U]nequal application of the law is not by itself a constitutional violation. The complaining party must establish intentional or purposeful discrimination, i.e., that the has been singled out based on an unjustifiable standard such as race, religion, or other arbitrary classification. Unless such suspect classes are involved, the equal protection clause is violated only if there is no rational basis to justify the selective application of the ordinance."). Applicant apparently believed that Remand Condition One offended this standard for two reasons. First, she claimed that upland owners were not required to make similar dedications for flood and drainage control. Second, she claimed that other Tigard developers had not been required to make similar dedications for transportation infrastructure. However, her claims were without any foundation. In an attempt to establish her equal protection claims, Applicant submitted several cases decided by the city around the time of the September `91 Approval. She argued that the city had imposed different drainage and traffic dedications in those cases, proving, she claimed, that the city had improperly discriminated against her. Council had to admit to some confusion about this argument and to what Applicant expected from the city. In making her takings argument, Applicant emphasized that the Takings Clause EMMIT A TO FINAL ORDER Page - 88 required Council to make an individualized determination whether the impacts of her project justified the exactions called for in Remand Condition One. Not surprisingly, such an approach leads to somewhat different conditions in different cases. However, in making her equal protection argument, Applicant criticized the city for allowing such differences to exist. Applying her wooden equal protection approach-requiring all cases to be treated identically--would lead to the absurd result that any decision satisfying the Takings Clause would be a violation of the Equal Protection Clause and vice versa. Council did not believe the law to require such a result. Instead, Council found that differences arising because of factual distinctions between cases were rationally based because such results were necessary to meet the requirements of the Takings Clause, a legitimate government objective. Therefore, the premise underlying Applicant's equal protection 'argument failed and along with it, her entire argument. Although Applicant's equal protection claims were wholly invalid because of her faulty premise, Council nevertheless reviewed the specific cases she introduced in support of her claim. Each of those cases involved an upland property owner, and in each the city did impose conditions differing in specifics from Remand Condition One. However, those differences were not sufficient to establish a claim. Interestingly, Applicant omitted from her submission the case decided by the city most closely resembling the present. SDR 89-21, George Morland Plumbing, involved site development review for a plumbing business also bordering Fanno Creek. The city required dedication of the floodplain and a bike path area, it required the developer to build the path, and it also required a half-street improvement, which included storm drainage improvements. CR 00746. Thus, based on almost identical facts, Tigard imposed exactions very similar to those in Remand Condition One. If anything, they were more extensive. To escape the fact that Tigard ha.- treated similarly situated land owners similarly, Applicant in her later submissions claimed that Tigard created two classes of landowners: Plumbing stores next to the creek and upland developments. She alleged that Tigard discriminated between these two classes by putting more significant drainage and traffic requirements on developments next to the creek than were imposed on upstream land owners. EMMIT A TO FINAL ORDER Page - 89 J REM With regard to drainage, Applicant's claim was meritless because any distinctions drawn in Aft the cases had a rational basis. As a general matter, the city had a rational basis to treat riparian owners differently than those in the upland areas, as explained by the Floodplain Managers Association: "Developments near the floodplain have unique impacts that differentiate them from upland developments. They result in "increased exposure to flooding caused by development near the existing 100 year floodplain, which, absent structural improvements to the flood channel, would be exposed to flooding in the future." CR 01295. [Applicant's] claim that the easement dedication condition does not relate to impacts of [Applicant's] development requires that [the city] ignore the distinction between property in or adjacent to floodplains and property that itself is at no risk of flooding. The floodplain easement dedication was designed to address the increased property damage likely to result from [Applicant's] expanded development in a floodprone area. To address that problem, Tigard undertook in large part at public expense to improve the flood carrying capacity of the original 100 year channel. Although [Applicant] and other floodplain landowners were required to donate the property, the City picked up the substantial expense of the channelization work itself. CR 01298. In addition to this general justification, Council's investigation of the facts of each case submitted by Applicant showed that dedications for drainage and traffic were required. Although different in kind from those required here, the dedications were proportional in magnitude. For example, in several of the cases the city required dedication and construction of half-street improvements. Such improvements mitigate for traffic impacts and also contribute to the city's drainage system. See, infra, note 40.39 Moreover, they are much more expensive than the 39 Council found that it was not proper to impose a requirement for a half-street improvement here for the following reasons, which it first described in the September `91 Approval: A 1986 engineering study of the condition of S. W. Main Street recommends that the pavement be completely reconstructed and that the storm drainage system be replaced. It appears to be impractical to perform the proposed reconstruction of Main Street in a piecemeal fashion on a lot- by-lot basis; instead, thz reconstruction needs to occur in larger segments beginning at Fanno Creek Bridge and working uphill. Therefore, we do not propose that any reconstruction of Main Street be required as a condition of approval of this development proposal. Aft EXHIBIT A TO FINAL ORDER Page - 90 dedications called for in Remand Condition One.` Council's reasoning and justification for the conditions in each case is set out in tabular form in Appendix Two to this Exhibit A. Because Applicant was not required to make dedications and improvements more extensive those required in her example cases, no violation of equal protection occurred.. The city had a rational basis for distinguishing the exactions from those imposed here based on the facility needs and geographical location of the developments. Cf. Seto v Tri-CounlyMetropoditan Transp. Dist. of Oregon, 311 Or. CR 01024 (citing recommendations of City Engineering Division). This observation rebuts Applicant's argument that Council should not compare the half-street dedications called for in other cases and the floodplain and pathway easements called for in Remand Condition One. She claimed that the comparison would be invalid because such improvements had already been installed next to the Property. However, the record did not show that she had paid for those improvements, they were not required as part of this decision, and their cost would have been equal to or greater than the easements required of her. See, infra, note 40. Furthermore, the city decided that restoration of the improvements on Main Street should not be done by exactions. Tigard will pay for any such improvements. Thus, Council found the street and drainage improvements called for in the other cases to be similar or greater in magnitude than the exactions called for in Remand Condition One. 40 The following testimony from Mr. Berry supported this conclusion: In addition, I do not agree with the applicant's characterization of this effect as 'creating surplus capacity.' The intent of Comprehensive Plan Policies 7.1.2(a) and 7.2.1(c) is to provide a complete drainage system by requiring each applicant to provide a portion of the system with adequate capacity to convey the upstream flood waters. 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 3 ains) would cost anywhere from $10,000 to $20,000. CR 00056; see also CR 00084 ("The cost for half street improvements is approximately $150 to $200 per lineal foot of street frontage.") EXHIBIT A TO FINAL ORDER Page - 91 REM so= 456, 466-67, 814 P.2d 1060 (1991) (upholding classifications based on geographic location where they had a rational basis). Applicant's final argument concerning equal protection was an allegation that she had been discriminated against because Council approached this remand proceeding with a more thorough review than in earlier cases. She cited, for example, the use Council made of the WTIF and argued that such a use had never been made before. Council, frankly, found her argument to be incredible and almost frivolous. The United States Supreme Court had never imposed the rough proportionality requirement before it made its decision in this case. Furthermore, earlier cases decided by the Oregon courts indicated that the process Tigard used in making the September `91 Approval, which was like the process used in Applicant's example cases, did satisfy the Takings Clause. Thus, it is not surprising that Council applied a different and more involved approach to these remand proceedings `chair the city had taken in earlier cases. Council could not accept Applicant's claim that the procedure she demanded in the United States Supreme Court violated the Equal Protection Clause merely because her's was the first case to which that procedure applied. L THE PROCEDURE USED IN ADOPTING REMAND CONDITION ONE DID NOT OFFEND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNrrED STATES Applicant asserted that Council could not give Applicant a fair hearing because Applicant had sued the city in Circuit Court. However, it was Applicant who introduced facts concerning the Circuit Court case in this matter, and it was Applicant's attorney who solicited a settlement discussion with Council during the Remand Hearings. Furthermore, it was Applicant who initiated the Circuit Court case. The upshot of the bias claim would be to disqualify Council from exercising its land use authority whenever an applicant brought an action against the city. For these reasons, any claim that discussion of the lawsuit in these proceedings indicates bias is without merit. In addition, each member of Council considered whether he or she could render a fair decision in this matter in light of Applicant's law suit. Each found that he or she could and would separate the two matters when making this decision. Council thus found that these remand proceedings did not deny due process to Applicant. All EXHIBIT A TO FINAL ORDER Page - 92 REM IV. CONCLUSION Council found that Tigard had presented evidence satisfying the rough proportionality test of Dolan IT It therefore found it appropriate to impose Remand Condition One to mitigate for the flood, drainage, and traffic impacts of Applicant's project. Although most of the other arguments raised by Applicant were not before Council, Council nevertheless considered their merits. It found them to have none. Thus Council entered its Final Order imposing Remand Condition One. CAGMI)OLANTMINGSTINDMAST. WPD I E=IT A TO FINAL ORDER Page - 93 , Appendix One - Evidence in Record Item o. Descet on Page- No. 1 Council Agenda Item Summary, Agenda Item dated CR 1-5 10;10/95 2 Continuation of Public Hearing (8/29/95) Council Agenda Item Summary, Agenda Item 6 CR 6 dated 8/29/95 (Exhibit 82) ® Letter to City Council from John Shonkwiler re CR 7 Request to Strike Exhibits dated 8/26/95 (Exhibit 83)CR 7 A Letter to William Monahan from Timothy Ramis re CR 8-9 Request to Strike Exhibits dated 8/21/95 (Exhibit 84) ® Supplemental Staff Report dated 8/16/95 CR 10-19 (Exhibit 85) ® Applicant's 8/16/95 Memorandum (Exhibit 86) CR 20-39 4 Supplemental Staff Report dated 8/2/95 CR 40-lG2 w/exhibits 1-11 (Exhibit 87 ) ® Applicant's 8/2/95 Memorandum (Exhibit 88) CR 103-121 0 Affidavit of Dan Dolan received 8/2/95 (Exhibit 89) CR 122-144 ® Memorandum from Dick Woelk to John Shonkwiler CR 145-147 dated 8/1/95 (Exhibit 90) Memorandum from Cathy Wheatley to file re CR 151-150 6/27/95 and 7/18/95 Transcripts (Exhibit 91) 3 Continuation of Public Hearing (7/18/95) ® Council Agenda Item Summary, Agenda Item 5 CR 151-152 dated 7/18/95 (Exhibit 40) ® Draft transcript of 6/27/95 public hearing CR 153-201 (Exhibit 41) EXHIBIT A TO FINAL ORDER Page - A kew Eq. DgEcn-Ffion Page No. 0 Copies of slides presented by the City Attorney at CR 202-216 6/27/95 public hearing (Exhibit 42) 0 Letter to City Council from John Shonkwiler dated CR 217-237 7/9/95 w/exhibit (Exhibit 43) 0 Letter to John Shonkwiler from Richard Woelk CR 238-256 imam dated 6/27/95 w/attachments (Exhibit 44) 0 Letter to City Council from John LeCavalier, CR 257-267 President of Friends of Fanno Creek, dated 6/29/95 w/"From Rooftop to River" article and "Courts Reject Wetlands Takings" article (Exhibit 45) ® Memorandum of Dolan/A-Boy Inc. w/exhibits A-L CR 268-434 submitted 6/27/95 (Exhibit 46) 0 Memorandum from Cathy Wheatley to Bill CR 435-436 Monahan re past Council and Planning Commission meetings dated 7/10/95 (Exhibit 47) 0 Supplemental Staff Report dated 7/11/95 CR 437-454 (Exhibit 48) 0 Memorandum to City Council from Timothy Ramis CR 455-462 dated 7/13/95 (Exhibit 49) 0 Letter to City Council from Loreta Pickerell, Vice CR 463 President of STOP, dated 7/18/95 (Exhibit 50) ® Memo to Tim Ramis from Greg Berry dated CR 464 7/18/95 (Exhibit 51) ® Letter to City Council from Brian Martin dated CR 465 7/18/95 (Exhibit 52) ® Letter to City Council from Marti McCausland CR 466 dated 7/18/95 (Exhibit 53) ♦ Letter to City Council from Jeff Paine (Exhibit 54) CR 467 0 Letter to City Council from Dan Velasquez dated CR 468 7/17/95 (Exhibit 55) EXHIBIT A TO FINAL ORDER Page - B ENRON= Item o. Description a e o. ® List of exhibits submitted by Timothy Ramis for CR 469 7/18/95 continued hearing w/notes by James Coleman ® Unified Sewerage Agency Resolution and Order CR 470-625 No. 91-47 (Exhibit 56) Unified Sewerage Agency Resolution and Order CR 626-678 No. 93-33 (Exhibit 57) 4 Unified Sewerage Agency - Water Quality and CR 679-715 Detention Facilities System Development Charge \ Improvement FEI Cost Analysis dated 6/5/91 (Exhibit 5.8) ® US Supreme Court Brief for petitioner in Dolan v. CR 716-745 City of Tigard (Exhibit 59) ® Notice of decision Site Development Review, CR 746-753 SDR. 89-21, George Morland Plumbing (Exhibit 60) ® Site Development Review Application (SDR 91- CR 754-755 0005), Joseph Mendez, applicant (Exhibit 61) ® Memorandum to file from Dick Bewersdorff dated CR 756 6/26/95 (Exhibit 62) ® A-Boy Stores advertisements from the Hillsboro CR 757-769 Argus and Oregonian newspapers (Exhibit 63) ® A-Boy Stores Yellow Pages advertisement CR 770-771 (Exhibit 64) ® Memorandum from Jay Featherston to Frank CR 772-775 Hammond dated 7/5/95 (Exhibit 65) ® Memorandum from Rick Walker and David Pietka CR 776 to Pamela Beery dated 7/10/95 (Exhibit 66) List of maps retained by the City until time of oral CR 777 argument under OAR 661.-10-025(2) (Exhibits 67- 75 and 79) E3UIIBIT A TO FINAL ORDER Page - C ~tet~s No, Descrrpdion a e o Memorandum to File from Tim McGuire dated CR 778-780 7/17/95 (Exhibit 76) ® Memorandum to file from Dave Larson dated CR 781-783 7/17/95 (Exhibit 77) ® Copies of slides presented by Tim Ramis at 7/18/95 CR 784-798 hearing (slides have been retained by City until time of oral argument under. OAR 661-10-025(2)) (Exhibit 78) ® Testimony of Charles Swindells on behalf of 1000 CR 799-800 Friends of Oregon dated 7/18/95 (Exhibit 80) 4 Letter to City Council from John Shonkwiler dated CR 801-805 7/18/95 w/three color photos (Exhibit 81) 4 Public Hearing - Remand of Conditions Related to Dolan/A-Boy - SDR 91-0005/Var 91-0010 (6/27/95) Council Agenda Item Summary, Agenda Item 5, CR 806 dated 6/27/95 (Exhibit 1) ® Memorandum to City Council and City CR 807 Administrator from Pamela Beery dated 6/20/95 (Exhibit 2) ® Staff Report to City Council from Planning CR 808-820 Department dated 6/20/95 (Exhibit 3) ® Exhibit list for 6/20/95 staff report (Exhibit 4) CR 821 ® Partial transcript of US Supreme Court Case CR 822-823 (Exhibit 3, staff report) (Exhibit 5) US Supreme Court Opinion, Dolan v. City of CR 824-839 Tigard (Exhibit 4, staff report) (Exhibit 6) 0 Notice of Public Hearing for 4/25/95 remand CR 840-841 hearing (Exhibit 5, staff report) (Exhibit 7) ® Applicant's Request for Continuance dated 4/17/95 CR 842-844 and 5/10/95 (Exhibit 6 staff report) (Exhibit 8) EXHIBIT A TO FINAL ORDER . Page - D Berm o. .Description Pape- No. Amicus Brief. Association of State Floodplain CR 845-846 Managers, pages 12-13 (Exhibit 7, staff report) (Exhibit 9) ® Drainage Impact Study prepared by Tim McGuire CR 847-879 dated 6/20/95 (Exhibit 8, staff report) (Exhibit 10) Appraisal of Proposed Bike Path and Flood Control CR 880-926 Easements dated 5/3/95 (Exhibit 9, staff report) (Exhibit 11) ® "Private Provision of Public Pedestrian and Bicycle CR 927-930 Access Ways" article by Prof. Arthur Nelson, pages 11-13 (Exhibit 10, staff report) (Exhibit 12) ® Transportation Impacts Study by David Larson CR 931-933 dated 6/16/95 (Exhibit 11, staff report) (Exhibit 13) ® Washington County Traffic Impact Fee Ordinance CR 934-982 w/related schedules and reports (Exhibit 12, staff report) (Exhibit 14) ® Notice of Final Order and Resolution Adopting CR 983-1011 Final Order dated 9/17/91 (Exhibit 15) ® Memorandum to Cathy Wheatley from Ty Wyman CR 1012-1014 dated 6/27/95 w/easement map (Exhibit 16) Site Plans - 8 sheets of plans (Exhibit 17) CR 1015 Large map of site illustrating easements (Exhibit 18) CR 1016 ® List of exhibits submitted by Timothy Ramis for CR 1017 6/27/95 hearing w/notes by Pamela Beery ® Notice of Final Order and Resolution Adopting CR 1018-1046 Final Order dated 9/17/91 (Exhibit 19) ® Memorandum to Cathy Wheatley from Ty Wyman CR 1047-1049 dated 6/27/95 w/easement map (Exhibit 20) 0 Article by John Vance in Selected Studies in CR 1050-1071 Highway Law, Vol. 2 (Exhibit 21) EXHIBIT A TO FINAL ORDER Page- E Pe o. scr don Page o. ♦ LUTRAQ Study, "The Pedestrian Environm.ent," CR 1072-1125 dated 12/93 (Exhibit 22) ♦ National Flood Insurance Program Flood Insurance CR 1126-1127 Rate Map (1982) (Exhibit 23) ♦ Letter to Mayor Nicoli from Andrea Ferster, CR 1128-1162 General Counsel for the Rails to Trails conservancy, dated 6/26/95 (Exhibit 24) ♦ * LUBA Record for Dolan v. City of Tigard, LUBA CR 1163 No. 90-029 (Exhibit 25) LUBA Record for Dolan v. City of Tigard, LUBA CR 1164 No. 91-161 (Exhibit 26) ♦ Brief for respondent, Dolan v. City of Tigard, US CR 1165-1264 Supreme Court (Exhibit 27) ♦ Copies of slides presented by Tim Ramis at 6/27/95 CR 1265-1279 hearing (slides have been retained by the City until time of oral argument under OAR 661-10-025(2)) (Exhibit 28) ♦ Amicus Brief. Association of State Floodplain CR 1280-1301 Managers, Dolan v. City of Tigard, US Supreme Court (Exhibit 29) ♦ Amicus Brief: Rails to Trails Conservancy, et al, CR 1302-1320 Dolan v. City of Tigard, US Supreme Court (Exhibit 30) ♦ "Private. Provision of Public Pedestrian and Bicycle CR 1321-1353 Access Ways," article by Prof. Arthur Nelson (Exhibit 31) Tigard Comprehensive Plan w/Pedestrian/Bicycle CR 1354 Plan, Master Drainage Plan, Parks Master Plan, Parks Improvement Program, and Tigard Park Plan (Exhibit 32) ♦ Letters to John Shonkwiler from Timothy Ramis CR 1355-1357 dated 4/19/91 and 4/20/95 (Exhibit 33) EXHIBIT A'TO FINAL ORDER Page - F to o. X)escsiptson .Pale No. Four traffic studies for Beaverton, Vancouver, CR 1358-1377 Hillsboro, and Tigard A-Boy Stores w/letter to John Shonkwiler from Richard Woelk dated 6/27/95 (Exhibit 34) Memorandum of Dolan/A-Boy, Inc., CR 1378-1542 w/exhibits A-I. submitted 6/27/95 (Exhibit 35) 4 Letter to City Council from David Smith dated CR 1543-1546 6/27/95 (Exhibit 36) ® Memorandum to Cathy Wheatley from Ty Wyman CR 1547-1549 dated 6/27/95 OExhibit 37) A Memorandum to file re Dolan telephone calls CR 1550 (Exhibit 38) ® "Sharing the Challenge: Floodplain Management CR 1551-1552 Into the 21st Century," Report Abstract dated 6/94 (Exhibit 39) Slides presented by Jim Hendryx at the 6/27/95 CR 1553 hearing *These items have been retained by the City until time of oral argument under OAR 661-10-025(2). C:\GFH\DOLAN\FINDINGS\FINDMAST. W PD EXEEBIT A TO FINAL ORDER Page-G APPENDIX TWO: Ask EQUAL PROTECTIONA1lrALYSIS OF CASES CITED DI'APPLICAIVT Case Applicant's Allegation Response SDR 91-0002 "The City approved the construction of a new Although the City did not exact a pathway in commercial buildings [sic] of 8,000 sq. ft. this case, it required transportation Standard street frontage dedication was required improvements in the form of dedication of In addition, no traffic impact costs were assessed street frontage and sidewalk improvements. to SDR 91-0002 in excess of the required TIF Those requirements were not put on fees. As in the Dolan application, sidewalks are Applicant. Instead, Applicant was required required from the building to the street frontage to dedicate land for the pathway. The and along the street frontage. However, in direct Supreme Court requires that all dedications contrast with the requirements for the Dolans, this be individualized determinations. Moreover, applicant did not have to dedicate or be assessed an individualized interpretation necessarily for storm water drainage (the requirements for results from any quasi-judicial process. water quality are a different subject and ordinance There, street exactions were imposed. In the restriction). The stormwater was allowed to run Dolan case, the city imposed a pathway into an existing storm line in 72nd Ave. This exaction. Both developments were thus storm line, in turn, flows into the Fanno Creek required to mitigate for traffic impacts, but drainage system. Similarly, there is no mention of through different methods. a requirement for additional transportation costs related to an alleged 68% unreimbursed costs In SDR 91-0002 the City found that the [sic] in excess of the required TIF fee." central storm drain probably was sufficient to handle runoff from the site. The City imposed a condition requiring applicant to "demonstrate that storm drainage runoff can be discharged into existing drainageways without significantly impacting properties downstream." That is the same burden that the city placed on Applicant. Moreover, the property is not located on the creek. Therefore, it is not surprising that the City imposed a different drainage requirement on this applicant. Applicant's argument concerning imposition of a fee in excess of the WTIF fee is a red herring. Here, the City is not attempting to impose such a fee on Applicant. Instead, it is using the WTIF methodology to decide rough proportionality in accordance with the requirements created by the Supreme Court. It did not apply such a methodology in its earlier cases because the existence of rough proportionality was not an issue. EXHIBIT A TO FINAL ORDER Page - a Case Applicant's Allegation Response SDR 91-0007 "The City approved the construction of a two [sic] Applicant incorrectly asserts that no MLP 91-0004 new industrial buildings totaling 112,960 sq. ft. dedication was required in SDR 91-0007. A sidewalk was required along the street frontage. The City required a sidewalk along the street No Dedications [sic] nor any street construction frontage. No similar dedication was required costs were required of the applicant. In addition, of Applicant. Instead, they were required to no traffic impact costs were assessed to SDR 91- dedicate the pathway. 0007 in excess of the required TIF fees." Applicant's argument concerning imposition of a fee in excess of the WTIF fee is a red herring. Here, the City is not attempting to impose such a fee on Applicant. Instead, it is using the WTIF methodology to decide rough proportionality in accordance with the requirements created by the Supreme Court. It did not apply such a methodology in its earlier cases because the existence of rough proportionality was not an issue. SDR 91-0004 "The City approved the construction of a new Applicant ignores that the City did require a commercial buildings [sic] in the Central dedication of a street frontage and Business District in the Action Area overlay zone improvement. The City did not place such a (same as the Dolan property designations). requirement on Applicant. Instead, it Standard street frontage dedication and required dedication of the path. Although improvement were required In addition, no different mitigation methods were required in traffic impact costs were assessed to SDR 91- the cases, the purpose of each dedication was 0004 in excess of the required TIF fees. In deed to mitigate for traffic impacts. [sic], the actual trip generation of a same or similar use was specifically identified as Applicant's argument concerning imposition acceptable for calculating the TIF fees. There is of a fee in excess of the WTIF fee is a red no mention of a requirement for additional herring. Here, the City is not attempting to transportation costs related to an alleged 68% impose such a fee on Applicant. Instead, it is unreimbursed costs in excess of the required TIF using the WTIF methodology to decide rough fee." (Emphasis in original.) proportionality in accordance with the requirements created by the Supreme Court. It did not apply such a methodology in its earlier cases because the existence of rough proportionality was not an issue. Applicant's argument concerning use of actual trip generation is misleading in that it implies the City is applying a different standard here. Until the Remand Hearings in this matter Applicant did not argue that the City should use actual trip counts in estimating the WTIF. In the earlier decisions, the City used the ITEIVanual, a decision that was not appealed or disputed. Eh'HMIT A TO FINAL ORDER Page - b Case Applicant's A.llegadon Response SDR 91-0011 "The City approved the construction of a new Applicant ignores that the City did require commercial building. A sidewalk was required dedication of half street improvements from the street frontage to the building being including sidewalks and curbs. The City did constructed No additional transportation impact not place such a requirement on Applicant costs were assessed to the property other than the Instead, it required dedication of the path. street frontage dedication and improvements (as Although different mitigation methods were was already dedicated and improved at the required in the cases, the purpose of each Dolans' property). In addition, no traffic impact dedication was to mitigate for traffic impacts. costs were assessed to SDR 91-001 1 in excess of the required TIF fees." The City also required the applicant to demonstrate "that storm drainage and runoff can be discharged into the existing drainageways without significantly impacting properties downstream." Applicant's argument concerning imposition of a fee in excess of the WTIF fee is a red herring. Here, the City is not attempting to impose such a fee on Applicant. Instead, it is using the WTIF methodology to decide rough proportionality in accordance with the requirements created by the Supreme Court. It did not apply such a methodology in its earlier cases because the existence of rough proportionality was not an issue. SDR 91-0016 "The City approved this commercial use Applicant ignores that the City did require a (conversion from a lesser residential use) and only dedication of a street right-of-way. The City required the dedication of widening the street did not place such a requirement on frontage and bringing a sidewalk from the street Applicant. Instead, it required dedication of frontage to the building. Similarly, the City the path. Although different mitigation required the Dolans to bring the sidewalk from methods were required in the cases, the the street frontage to their proposed building (the purpose of each dedication was to mitigate widening of the frontage street had already been for traffic impacts. accomplished). However, the City also required an additional transportation impact costs [sic] in Applicant's argument concerning imposition excess of TIF fees by requiring the Dolans to of a fee in excess of the WTIF fee is a red dedicate . , pathway in the rear of the building. In herring. Here, the City is not attempting to addition, no traffic impact costs were assessed to impose such a fee on Applicant. Instead, it is SDR 91-0016 in excess of the required TIF fees." using the WTIF methodology to decide rough proportionality in accordance with the requirements created by the Supreme Court. It did not apply such a methodology in its earlier cases because the existence of rough proportionality was not an issue. }EXHIBIT A TO FINAL ORDER Page - c Case Applicant's Allegation Response SDR 91-0017 "The Tigard Pedestrian/Bicycle Pathway Plan The City required dedication of right-of-way requires a pathway along Hall Boulevard and along Hall and Burnham streets. The City Burnham Street at this location. However, the found that no justification existed to exact City does not require both a pedestrian/bicycle additional water quantity facilities because pathway and a frontage street sidewalk as was existing storm drains were adequate to required of the Dolans. In addition, no traffic handle runoff from the propeaty. The City impact costs were assessed to this development in required the dedication of right of way as excess of the required TIF fees." adequate mitigation of traffic impacts, just as in this case it required dedication of the pathway as mitigation for traffic impacts. Here, Applicant was not required to dedicate right of way. The conditions require only that they repair damaged sidewalks and curbs. SDR 91-0019 "The City approved an expansion of an existing The City did require a dedication and commercial office building that would generate construction of a sidewalk. The City delayed additional traffic. The City only required the requirement of construction of the the construction of a sidewalk along the frontage of sidewalk to allow that work to be coordinated the property for pedestrian/bicycle traffic impacts. with similar construction required of In fact, the City allowed the landowner to delay neighboring developments. The City did not constructing any portion of the sidewalk until it place such a requirement on Applicant was ready to develop the remainder of its Instead, it required dedication of the path. It property. In addition, no traffic impact costs were is worth noting that the City is not requiring assessed to SDR 91-0019 in excess of the Applicant to build the pathway. Although required TIF fees." different mitigation methods were required in the cases, the purpose of each dedication was to mitigate for traffic impacts. Applicant's argsment concerning imposition of a fee in excess of the WTIF fee is a red herring. Here, the City is not attempting to impose such a fee on Applicant. Instead, it is using the WTIF methodology to decide rough proportionality in accordance with the requirements created by the Supreme Court. It did not apply such a methodology in its earlier cases because the existence of rough proportionality was not an issue. ENMIT A TO (FINAL ORDER Page - d Case Applicant's Allegation Response SL'R 91-0020 "The City approved this expansion of a The City had good reasons for not requiring commercial building that involved an additional transportation dedications in SDR 91-0020. 67,000 square feet in building size. Additional At the time of the expmsion considered in traffic would be generated from this increased the application, the City had already size. the City noted that the applicant was a identified a need for street and transportation participant in a public facilities study for the area improvements in the area. As found in the and therefore did not require any additional decision, those improvements were needed transportation-related conditions of approval. No regardless of any increase in traffic that condition of approval was imposed to require the approval of the application would cause. applicant to participate in any public facilities, Furthermore, the City found that no including transportation facilities, that would be improvements proportional to the impacts of deemed necessary by the identified study. In the the expansion were possible. Therefore, addition, no traffic impact costs were assessed to the City found that it did not have any basis this development in excess of the required TIF justifiying the imposition of transportation exactions on the facts of the specific case. It also noted that the applicant was committed to assiting with traffic improvements in the future. Applicant's argument concerning imposition of a fee in excess of the WTIF fee is a red herring. Here, the City is not attempting to impose such a fee on Applicant. Instead, it is using the WTIF methodology to decide rough proportionality in accordance with the requirements created by the Supreme Court. It did not apply such a methodology in its earlier cases because the existence of rough proportionality was not an issue. C:\GFH\DOLAN\FINDINGS\FINDMAST. WPD All EXMIT A TO FINAL ORDER Page - e AGENDA ITEM # For Agenda of October 24, 1995 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Zone Chancre Annexation ZCA 95-0004 PREPARED BY: Ray Valone DEPT HEAD OK i CITY ADMIN OK ISSUE BEFORE THE COUNCIL Should the City Council forward to the Portland Metropolitan Area Local Government Boundary Commission a request to initiate annexation of one parcel consisting of 0.53 acres located at the southwest corner of SW Gaarde Street and SW 114th Avenue? STAFF RECOMMENDATION Adopt the attached resolution and ordinance to forward the annexation request to the Boundary Commission and to assign a zone designation to the property in conformance with the city comprehensive plan. INFORMATION SUMMARY he proposed annexation consists of territory comprised of one parcel of and, totaling 0.53 acres, which is contiguous to the City of Tigard. The applicants -request annexation in order to be eligible for sanitary sewer service and to partition their land. Because the territory is located within Tigard's active planning area and has already been assigned a comprehensive plan designation of Low Density Residential, the City Council only need assign a Tigard zone designation to the property. Attached is a resolution initiating annexation and an ordinance to change the zone designation from Washington County R-5 to Tigard R-4.5. OTHER ALTERNATIVES CONSIDERED Deny the request. FISCAL NOTES Since the territory is within Tigard's active planning area, the city is responsible for the Boundary Commission application fee of $225. Agenda Item No. ~r PARKS SYSTEM DEVELOPMENT CHARGE COMPARISON Meeting of FOR METRO AREA CITIES January 1995 Single Multi- C-t Family/unit Family/unit Other Wilsonville $ 1,965 $ 1,494 nonresidential: $51/employee West Linn 1,809 1,194 none 2,075 Active 1,370 Planning Area Tualatin 1,400 1,400 none Lake Oswego 1,164 818 none Tigard (proposed) (1,050 detached) (540) (manufactured homes: (660 attached) $740/unit in a park; $1,050/unit on a single tan lot non-residential: $49/employee) Milwaukie 950 620 manufactured homes: $600/unit in a park; $950/unit on a single Aft tax lot Sherwood 841 841 none Hillsboro 786 786 non-residential: 590 in PUD $131/parking space for commercial and industrial; $98/parking space for commercial and industrial in PUD Oregon City 750 500 none Gresham 630 630 none Forest Grove 500 500 none Tigard (existing) 500 300 manufactured homes: $250/unit in a park; $500/unit in a single tax lot Beaverton (see below) Notes: Beaverton does not impose a parks SDC. Thal city is wholly located within they boundaries of the Tualatin Hills Park and Recreation District, which is supported by an annual assessment on all (existing and new) residential development. Like Beaverton, Alk Washington County does not collect a parks SDC, becausr., it does not provide park services. Unlike Beaverton, only a relatively small portion of the unincorporated area is served by the recreation district, which is the only one of its kind in the county. H:LLOGI NIUUANEIS G C. SUR Agenda Item No. !Z Meeting of 1 1a414ss STAFF RESPONSE TO THE CHAMBER LETTER Question # 1. Recent changes in the state statutes regarding SDCs have severely limited the use of those funds, which would appear to mean that more of "Tigard's existing park SDC funds will be available for park acquisition." Is there any analysis on record that shows the present ordinance will not produce sufficient funds for the more limited purpose of acquisition? Response: The letter does not specify and staff is unaware of any new state-imposed limitations on the use of park SDC funds. The reference to "recent changes" may allude to a bill introduced in the 1995 legislative session that would have removed the authority of local jurisdictions to establish park SDCs. However, this bill did not .pass, but instead died in committee. An agenda item (number 7.1) companion to the park SDC resolution incorporates changes necessary due to the 1993 legislature. These changes are minor and do not limit the use of park SDC funds to land acquisition. With regard to the question of whether the present SDC fee structure would provide adequate funds for the "more limited purpose of acquisition", the answer would seem to be yes. Based on the cost figures presented in the study, it appears that the present SDCs would provide roughly enough funds for this purpose. Together, the proposed SDCs are somewhat more than double the existing SDCs. According Ach. to the SDC study, to maintain present service levels, approximately half the SDC revenues would be programmed for land acquisition and half for improvements. Therefore, with a modest upward revision (on the order of 5%), the existing SDCs would provide enough funds for land acquisition. This level of funding would not maintain the current level of park services, however, which is defined as including both land acquisition and development. Question #2. For years, the businesses in this community have paid artificially high garbage collection rates to subsidize the cost to residential customers. The Council is beginning to recognize and rectify that subsidy. This is no time to impose a like subsidy. Response: The study estimates that it costs $389 to provide park land acquisition and development services for each new person added to the City (which equates to $1,050 for a single family residence) and $49 for every new employee who works in the City. The proposed SDC fees reflect these estimates of relative costs. mom Question #3. The study commissioned by the city was much too limited in scope. Before any additional development charges are imposed, some analysis should be done of all sources of revenue for park acquisition,.development, maintenance and operations. Also, ' as was done for the Metro's second Greenspaces bond measure, the particular projects y the City wants to fund should be identified and publicized. Only then can a reasoned decision be made about who should pay for park acquisition. Response: Tigard's ability to acquire, develop, and renovate park and recreation facilities depends on funding that comes from a variety of sources. The most consistent source of funding for parks is the SDC. The city has imposed a park SDC since 1977. Between 1989 and 1994 it generated an average of about $200,000 per year. In 1989, Tigard voters passed a measure to establish a $1,750,000 five-year park levy. These.funds were expended on improvements to the park system and on the development of pathways. Other funding sources have been grants from the Oregon Parks and Recreation Department, the U.S. Department of the Interior, and various other state and federal agencies. The amounts have been comparatively small, ranging from $3,000 to $26,000. The most recent funding source is the Metropolitan Service District regional greenspaces bond measure, approved by regional voters in May 1995. This measure provides $758,000 in local share funds to Tigard. These funds may be spent only on natural area and related acquisitions and improvements. The amounts provided by the existing SDC are below the level of funding needed to maintain existing service levels as the city develops. During the period 1989-1994, the shortfall averaged $245,000 per year. The 1989 park levy and grant funding made up for the shortfall during this period. Based on current trends, the greenspaces funds likewise will compensate for the SDC shortfall projected for the next three years, with the qualification that the use of greenspaces dollars is restricted to natural areas. The purpose of the SDC on new development is to impose an equitable share of the cost of capital facilities upon those developments that create the need for or increase the usage of those facilities. The proposed fees reflect the full cost of providing parks to new city residents and employees at current levels of service. it is a policy decision as to whether these "maximum" or "full recovery" SDCs are equitable and also as to whether the primary purpose of other funding sources should be to help maintain the existing level of service as development occurs or to provide recreational opportunities beyond the level presently enjoyed by those living and working in the city. Lastly, maintenance and operation funds are provided by general fund revenues. Park SDCs, levy funds, grants, and Greenspace funds may not be used for this purpose. As for the identification of specific projects, in recent years several plans have been developed that define major park projects. The city annually adopts a seven-year capital improvement program, which identifies specific projects and funding sources for the current fiscal year and outlines the priorities for project funding for the next six years. The current park CIP allocates park SDC funds law OEM anticipated to be available under the existing fee schedule. The Tigard Park Plan, completed in 1987 after extensive public involvement, contains a proposed overall park system and prioritized list of improvement projects. Detailed plans with cost figures for Tigard's three community parks, Cook, Summer Creek, and Fanno Creek Parks, were prepared in 1988 through the collaborative efforts of the Park Board, city staff and interested citizens. A greenway trail alignment and cost study, scheduled for completion in early 1996, will provide technical information needed for implementation of the greenway trail plan. According to the city attorney, the park CIP meets the legal requirement for an adopted plan for capital improvements financed by SDCs. Operationally, it would be desirable to have a long term strategic plan for parks to help direct the further development of Tigard's community recreation resources. In recognition of this, the proposed SDC factors in the cost of master planning for park improvements. Question # 4. A charge of $49 per employee seems all out of proportion with how much the typical Tigard business employee will actually use a new park, especially if it is located in a developing residential area, like Bull Mountain, far removed from new business development. Is there any plan to acquire parks in commercial or industrial zones? Employee use will probably be limited to an occasional walk in the park at lunch or attendance at a company picnic, which is paid for by the business upon reservation of facilities. Response: Much of the proposed greenway system, mainly the Fanno Creek corridor portion, includes land designated as commercial or industrial. The land within the proposed boundary of Fanno Creek Park is almost entirely zoned for commercial development. A master plan for the park was prepared in 1989 by Murase and Associates. Exclusive of land acquisition and contingency costs, the plan calls for facilities and site improvements costing $872,000 as of the date of the plan. According to the plan, the development of Fanno Creek Park will provide an attractive setting for the commercial area, making a more pleasant experience for shoppers and commercial clients. Park reservation fees, ranging from $6 to $25 per hour, cover only a small portion of the capital and maintenance cost of providing group reservation areas. Question # 5. It appears the real reason to impose a park SDC on new business is that it is an available source of revenue, since other cities impose it. The Chamber believes it is unfair to impose such a development charge on new business simply because other cities do it or because it will keep the cost down for other interest groups. It may be that a thorough analysis, such as a long-term strategic plan for park development, will demonstrate that !business should provide funding for new parks.- But the existing evidence does not show how new business will have a significant impact on new parks or REM why new business should help pay for them. Response: The purpose of the proposed SDC is to recoup the cost of providing new development with park services. The SDC would be acquired from both new residential and new non-residential development. The rationale for assessing the non-residential sector is that park facilities are available to the employees of businesses located in Tigard as well as to the residents of the city. The consultant developed a method of determining the amount of park use by employees based on their available recreation time in the city. This method rests on the assumption that people have a similar propensity to recreate. Using this approach, the study calculated that 8% of overall park use is by employees and 92% by residents. STAFF RESPONSE TO THE PACTRUST LETTER. Statement:... The response our tenants gave is not at all consistent with the data from the 1994 reservation records which indicated that Tigard area businesses accounted for 28'0 of the usage of two of the Tigard, parks. We believe the reservation records provide a statistical sample which is not consistent with the true profile of park use... Parks are used most heavily by residents. Many of the employees who form the basis for an assessment, such as the per employee assessment proposed, may also be Tigard residents. This will tend to cause those employees who are also Tigard residents to be the source of a disproportionate share of the park support... The assessment of a $49 per employee charge against Tigard area businesses will have the effect of making Tigard less attractive as a business place. Response: The reservation records were not based on a statistical sample, but rather on a complete count of reservation requests. These counts were cited as an example of the use of parks by employees. They were not used as the basis for calculating fees. As described above, according to the method used in the study, Tigard's 25,000 employees account for 8% of the use of parks, with local residents accounting for 92% of park use. In determining available recreation time, the method took account of the 4,000 people who live and work in the city by allocating between time spent as a resident versus time spent as an employee. Hillsboro and Wilsonville both have expressed the view that their non-residential SDCs have not had a braking role on commercial and industrial growth within their areas. DR/sdc.res October 24, 1995 n 4 PAcTRUIST 15350 S.W. Sequoia Pkwy.. Suite 300 Agenda Rom No.~ Portland, Oregon 97224 Meeting of J DIa~ f~ Pacific Realty Associates, L. P. 503/624-6300 • Facsimile: 503/624-7755 October 17, 1995 t t}Fr Y~ rr~ c. t~ } Sc.~►~m~ ~ w•~k►, Duane Roberts <<~laol~s) Associate Planner City of Tigard 13125 S.W. Hall Blvd. Tigard, OR 97223 Dear Mr. Roberts: Re: Proposed Changes To Park System Development'Charaes We have received your notice of public hearing to consider changes to the system development charges for parks which will be held on October 24, 1995. I am submitting this formal response on behalf of Pacific Realty Associates, L.P. ("PacTrust"), and would appreciate having this response be a part of the package of materials given the councilors for this agenda item. We submitted a questionnaire to our tenants in our Tigard properties asking the following questions: 1. How many employees do you have working for your company at your Tigard location? 2. How many of the employees listed above are residents within the city limits of Tigard? 3. In the past year has your company had an event at a Tigard park? 4. How many of your employees frequent a Tigard park on a regular basis? Include number of employees and number of times per month. 236 surveys were sent out to our tenants and 115 were returned. We deem this an excellent response to such a questionnaire. The following is a summation of the response: The first question response was 2,153 employees. The second question response was 192 of the 2,153 employees were residents of the city of Tigard. The third question response was that only one company used the park system during the past year. This company had one company function at a Tigard park. The fourth question response was 'that a total of 42 employees out of the A0hk 2,153 total in the survey use the Tigard parks on a regular basis and these employees use those parks less than once per month. gpig g7p Duane Roberts October 17, 1995 Page 2 The statistics set forth above indicate that only 42 of the 2,153 employees reported in the survey use the city parks and then the use is less than once per month. This is a very low usage rate and does not justify any significant charge for non-residential development. The response our tenant's gave is not at all consistent with the data from the 1994 reservation records which indicated that Tigard area businesses accounted for 289 of the usage of two of the Tigard parks. We believe that the reservation records provide a statistical sample which is not consistent with the true profile of park use. The assessment of a $49.00 per employee charge against Tigard area business will have the effect of making Tigard less attractive as a business place. If collected from the developer of the real property the Tigard businesses occupy, such charges will tend to cause an increase of rents in the Tigard market place. Parks are used most heavily by residents. Many of the employees who form the basis for an assessment such as the per employee assessment proposed may also be Tigard residents. This will tend to cause those employees who are also Tigard residents to be the source of a disproportionate share of the park support. Please accept this letter as a strong statement against a per employee system development charge for parks. You should vote for Option 2, the residential Aft SDC. We will be happy to provide copies of the actual responses to our questionnaire if you would find them helpful. Sincerely TPACI:F C REA SO TES, L.P. Richard P. Buono Vice President cc: Peter F. Bechen David W. Ramus Wiitala Management Company AGENDA ITEM # For Agenda of October 24, 1995 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Triangle Design Guideline Study PREPARED BY: Ray Valone DEPT HEAD OK !L~ CITY ADMIN OK ISSUE BEFORE THE COUNCIL Discussion and update of design guideline study for Triangle. This is not an action item. STAFF RECOMMENDATION Staff recommends that the council direct staff to pursue the design guideline study through the work program outlined in the attached memo. INFORMATION SUMMARY As part of its decision to deny Comprehensive Plan Amendment /Zone Change CPA 94-0002/ZON 94-0002 in January of this year, the council directed staff to propose design standards for the triangle. Since that time, preliminary work n this project has been completed. Staff has held a design features Workshop, reviewed the Tigard Triangle Specific Plan recommendations and analyzed the Transportation Planning Rule requirements in order to obtain information that will be useful in developing design standards. Please see the attached memo for an update of this work and recommendations on how to proceed with the project. OTHER ALTERNATIVES CONSIDERED Direct staff to cease the study. FISCAL NOTES There is no additional cost to the city, as the project is already part of the department's work schedule. MEMORA14DUM CITY OF TIGARD, OREGON TO: City Council FROM: Jim Hendryx and Ray Valone DATE: October 24, 1995 SUBJECT: DESIGN GUIDELINE CONSIDERATIONS FOR TRIANGLE As part of its decision to deny a comprehensive plan amendment and zone change for 46 acres in the triangle last January, the council directed staff to propose design standards for commercial development in the triangle. This memo updates the work staff has undertaken to date and offers recommendations for council consideration. Staff has approached the design study by reviewing the Triangle Specific Plan, holding a design features workshop and analyzing the requirements of the Transportation Planning Rule. These sources have helped to focus the study and given staff a sense of what Ash design features should be evaluated. SPECIFIC PLAN GUIDELINES The city commissioned the preparation of the Tigard Triangle Specific Area Plan in 1993. The plan was never adopted by the city. Building on previous findings and recommendations, the plan sought to guide future growth in the triangle in order to establish a mixed use, pedestrian-oriented community. It contains specific recommendations for changes in the comprehensive plan and zoning maps, detailed site and building design guidelines, and public improvements to improve the framework for future development. In January of 1995, the council denied the city-initiated proposal to enact the land use and zone changes recommended in the plan. As part of its decision, the council did direct staff to work on and propose design standards for the triangle. DESIGN FEATURES WORKSHOP On August 24, 1995, a workshop was held for triangle residents and other interested parties to help give staff guidance on what design features were appropriate for the triangle and which ones were important to them. The exercise consisted of viewing and rating a series of slides of commercial developments for several design features such as architecture, landscaping and pedestrian access. The results of the exercise were mailed to all participating 1 parties, the Planning Commission and the City Council. TRANSPORTATION PLANNING RULE (TPR) Adopted in 1991, this state administrative rule (codified as ORS 660-12-000) requires local governments, in part, to amend their land use regulations to support pedestrian, bicycle and transit in urban areas. These modifications may affect the design of commercial developments through access measures that will -require more pedestrian-oriented site designs. ANALYSIS The first step for the study was to tabulate the rating sheets filled out by workshop participants. The participants ranked the six site characteristics, in order of importance, as follows: Building Architecture, Landscaping, Parking, Setbacks, Pedestrian Access and Signage. Though particular components of each characteristic (for example, size and style of buildings, types and spacing of vegetation and size of setbacks) were not included on the rating sheets, some patterns do emerge from the site ratings. Most of the higher rated sites for Architecture included brick and high quality landscaping. Sites with more vegetative cover were ranked higher under the Landscaping category. Ratings for Parking were higher if the lots were screened and/or broken up by landscaping, and were not extensive areas of concrete. Pedestrian Access was highly ranked if there was a direct sidewalk connection to the front entrance and if the building was reasonably close to the street. The second step was comparing the workshop responses with the specific plan recommendations. Based on this comparison, there appears to be agreement on the need for more and/or better landscaping of sites; more attractive parking lots and better pedestrian access. The third step consisted of reviewing the TPR for requirements that could affect the commercial design guidelines study. Implementation of the TPR, through a transportation system plan, will require the city to adopt additional pedestrian and bicycle requirements. The plan will require pedestrian and bicycle access within and from several different uses including new retail and office; internal pedestrian circulation in new office parks and commercial developments through clustering of buildings, constructing pedestrian ways and other techniques; supporting transit through provision of bus stops, pullouts and shelters,, and the provision of preferential access to transit through building orientation and placement of the site. Our existing code requirements (18.108 and 18.108) already meet many of these requirements. CONCLUSION 2 AMUM Based on the workshop responses and plan recommendations, landscape requirements is a characteristic that the city might want to reevaluate. For example, the city's landscape requirement of a minimum of 15% could be increased. Staff could also look at establishing a code requirement concerning the quality of landscaping, e.g. modifying the size and spacing trees, types of trees to ensure desired buffering, etc. There also is support for softening the affect of large parking areas through the use of landscaping. Though there were concerns, with pedestrian access expressed by workshop participants when reviewing the commercial sites, our existing code requirements for new developments seem to address these concerns. In addition, compliance with the TPR will serve as mechanism for requiring additional pedestrian access requirements throughout the entire city. The.development of the city transportation system plan is required within one year after adoption of the regional plan. The regional plan is due for adoption during summer of 1996. RECOMMENDATION I recommend that the council direct staff to pursue the design guideline study through the following work plan. 1. Develop a set of design guideline proposals based on the Specific Plan recommendations, responses from the workshop participants and requirements of the TPR. 2. Hold a second public workshop to present design guideline proposals and obtain input. The format of the workshop would likely include sample visual representations of the current city standards and the proposed changes. 3. Present final design proposals, as modified by workshop if applicable, to the planning commission for a recommendation to council. 4. Present design proposals and recommendation from planning commission to council for adoption. 3 Ubj 2.Ci'i Ve. 5 ~v~oS TRI-1VET SERVICE PROPOSAL FOR THE HIGHWAY 217 CORRIDOR !0/a. Tri-Met seeks to responsively and creatively address the growing transportation needs in the Highway 217 Corridor with the following goals: ® Develop customized, more flexible services that get closer to destinations and past barriers that make transit services inconvenient. ® Provide more direct corridor connections with fast, easily understood service. ® Meet the needs of employers in the Highway 217 corridor, using partnerships to plan, co-promote, and help support the service program. ® Assist employers in meeting DEQ's air quality Employee Commute Options program. To that end, Tri-Met is assessing interest in a demonstration program that features new types of service, designed to more flexibly meet the needs of development along the Highway 217 corridor. PROPOSED SERVICE HIGHLIGHTS a New express bus service operating between west Beaverton and Tualatin with limited stops at major employers and employment centers. Principal stops would include the Cornell Park and Ride lot, major west Beaverton employers, the Beaverton Transit Center, Washington Square, Lincoln Center, the Tigard and Tualatin park and ride lots, and SW 72nd Avenue to central Tualatin. Service would operate from 5:30 a.m. to 9:30 a.m. and from 3:30 p.m. to 6:30 p.m., with 10-15 minute service (30 minutes during the beginning and end of the service periods). - Connections with other regional express bus services would be made at the Beaverton Transit Center and Tigard and Tualatin Park and Ride lots and with Westside MAX light rail after 1998 at the Beaverton Transit Center. a New mini-bus services would connect with the new express route and shuttle riders directly to employer sites. Proposed routes include Washington Square/Lincoln Center/Nimbus, the Kruse Way area and a "starter" portion of the Tualatin industrial community. Service would operate from 5:30 a.m. to 6:30 p.m., with 10-15 minute frequencies, serving riders in the morning, at lunch and in the evening. RP ® Selected bus stop, access and street improvements would make transit operations more ' efficient and service more convenient for bus riders. For more information, contact Phil Selinger at 239-2137 October 22, 1995 III. tj- It tiu ;I ' t ;.1' ' ' kt )1:1. 1 -1; ~...~.~'.l •.i},l~ti ,'•I i °-4,`a,i~~' ; - ~ cl a ~ i'i ; ` I'- `~1~ f r 't7 t''•~ 1 ' ~~t• i'I.t;t I _ -.y `1~_ ~ . L _ I . ~ •1 t t'L -',~.y=T 1 r_'. ' •'.•i t.y.':r.. try ~'4 p`• j ' ~ o`c At11 t j tji I; 1 i t l t rat j"A till 1~''j_. -}11 1 'o 1 1} N R 10 H\ t It ~i+w~P!►*~, \ \ ; 1.. ~f'_ . I•:r/ 1 ;11...x.'1` ..4~'$ap %t o 4-11 41 l,y f , \ y ~ .h~_., 1. , •y)•^•~ Q •~~_.~r_ 1~2~ '`i h~( { 't.,.' ^ f t : 1 ` 01 %...i.i: _'`a L~'_ ~"...~-'r1 Q~}.. ._~Y''`' , 1.., a , +4'7`' +1 + ' 1 pp Q n` j• F..1 _'_.->r•`L~~:-.l +r' t'` 4130 10, 13 0 M , t.rrlll lll\ ~1 - --x:•`i, • A $ ~ -:~~Ty~t Ttr-)~~•i-rl..~t'-~''~ 1 L....~ ,,_r\* Cl,... ~ ! ^'~-••1 ~1 - \\i - , _ 1" t ' ~ 1 s.'~ ~j 1:.,,,c '1! 1• _ ~ e4-~ "~t~.,,~ k-•~ ~ ~t~:i.__.rt+ - ` . _J- 01 2 x ....1 ~.1, . Now 1 41 • y DRAFT TUALAT 'GALLEY CORRIDOR Transportation Program Proposal Summary Part of Tri-Met's Strategic Initiative Reserve Project b~ ~u ~ 00~ CIO TRI-MET Tri-Met Revised October 6, 1995 v A. The Problem: Suburban communities are choking in traffic. Transit has not been a significant part of the solution for intrasuburban travel. Development in this corridor is very automobile oriented and not easily served with traditional transit services. Tri-Met fixed route bus service works well along built up arterial streets and to major activity centers. On Portland's east side, east-west grid oriented streets cross north- south streets at regular intervals, allowing any destination to be reached with a single transfer. Fixed route service, however, is unable to provide close access to commercial or residential development that is set back from arterials with long driveways or within an irregular pattern of narrow streets with many cul-de-sacs. Neighborhoods may object to large buses. Tight street corners may limit the ability of a full-sized bus to pass through neighborhoods. These are among the reasons Tri- Met has difficulty responding to suburban transportation needs. The unique transportation challenges of the Highway 217 corridor require resources beyond Tri- Met's current capabilities. S. The Goal: In a small way this project seeks to demonstrate to the community the promise of the Tri-Met Strategic Plan. Tri-Met will flexibly respond to changing travel markets with a package of new service and capital improvements that will make an impact by offering faster, more direct, accessible, easy to understand service. In partnership with communities and employers this project will provide the Highway 217 corridor with options that address transportation needs and problems. C. Objectives: 1. In partnership with corridor employers and neighborhoods develop transit services that respond to the unique needs of suburban transportation markets. 2. Reduce traffic congestion in the corridor and around retail and employment activity centers. 3. Promote awareness and distribute information about Tri-Met's services. 4. Provide continuity with community development plans and transportation needs, making transit service a part of the Tualatin Valley's mobility strategy. D. Partnerships: Overcoming barriers to public transit and providing attractive commute options requires unique solutions. Customizing a more flexible service to the needs of employment clusters requires public/private partnerships to: 1. Identify the specific needs of employers and neighborhoods, 2. Assure that new development and plans incorporate good pedestrian • DRAFT - Tualatin Valley Corridor Transportation Program: page 1 US AW! IN; INS i a ' i } 1 M 1' r lovers . 217 Corridor E~oyees g a ~b 54, orore'EmP database -,Met emPIOye . T Source r f connections and access to transit, 3. Underwrite new transit services that respond to unique corridor trip needs, 4. Co-promote services among employees, retail customers, and residents, 5. Assist employers in complying with air quality obligations and in supporting regional goals. These partnerships will require much time and patience from all perspectives. New thinking is required if transit is going to play a meaningful role. E. Information and Analysis: Tri-Met is pursuing sources of technical and timely information to assess the effectiveness of proposed service improvements. Emphasis has been placed on employer contacts: 1. Transportation Demand Computer Modelling: With Metro's assistance, the proposed new corridor services have been added to the off-the-shelf computerized transportation network used for regional transportation planning. Intra-suburban travel patterns can be very complex, particularly with the levels of congestion experienced on major Westside arterials. The modelling process is able to incorporate the many regional variables that determine travel patterns and modal decisions to produce "order of magnitude" travel projections. That analysis, however, needs to be complemented with some primary survey and interview information. 2. Employer and Property Management Meetings: Tri-Met will meet with a sampling of employers and property managers through business organizations (e.g. the Tigard Area Chamber of Commerce, Tualatin Industrial Council), property management companies and other contacts. These meetings will identify transportation priorities, provide preliminary direction for this project and feedback for service concepts. 3. Employer Zip Code Files: " Tri-Met will solicit from contacted employers zip codes lists of employees to assess origin/destination patterns and some measure of the potential market for proposed new transit services in the corridor. 4. Employer Survey: Tri-Met will send to each employer in the corridor with 50 or more employees a survey asking them to identify current transportation programs in place at their business, identification of transportation issues (if any), and pertinent statistics and operational information that will help Tri-Met understand the needs of their organization. Such a survey is already being conducted among Tualatin area employers to support the efforts to establish a Transportation Management Association (TMA) there. DRAFT - Tualatin Valley Corridor Transportation Program: page 3 Some of the most significant service deficiencies remaining this corridor include: 1. Washington Square is connected to other regional centers (e.g. central Beaverton, Tigard or Portland) by local bus services only. 2. There are no fast transit connections within the Highway 217 corridor that might compete with automotive travel. 3. Bus services fail to get off arterial streets, forcing long walks amidst auto traffic to ultimate destinations. 4. Bus stops may be difficult to locate, poorly lit and sheltered and may not be well-connected to other pedestrian facilities. G. Proposed New Transit Services Tri-Met's service plan must address today's built-up suburban setting. Improved mobility in suburban markets requires new concepts and partnerships with complementary resources and community/business support for offered services. If successful, Tri-Met will improve the mobility and livability of suburban communities like Tigard and, through partnerships, build a model and base of support for other suburban communities. 1. Highway 217 Corridor Express - Intrasuburban Connection: The proposed express bus service is shown on Exhibit 2. It would operate from the park and ride lot at SW Cornell Road at Sunset Highway, with limited stops past Sequent, Nike and Tektronix. Connection with other Tri- Met services would be made at the Beaverton Transit Center before express operation to the Washington Square Transit Center and Lincoln Center. Service would continue south in express mode to the Tigard park and ride lot and then south on SW 72nd, serving with limited stops the "Tigard Triangle", and the concentration of businesses on SW 72nd west of I-5. Connections would be made at the Tualatin park and ride lot before terminating at the office center at the south end of central Tualatin. Alternatively, by relying on Line 76 to make connections with Tualatin, the Highway 217 express service could tam east from SW 72nd Avenue at Bonita Road, east onto the route of the second of the three proposed jitney/mini-bus routes to the Kruse Way area. One transfer would thus be eliminated for riders to or from Kruse Way employers. Express route length reductions and the elimination of a mini-bus route could then translate into funds for more frequent express service. Free parking at most suburban work locations might minimize the attraction of park and rider lots. The need to connect with those facilities will be DRAFT - Tualatin Valley Corridor Transportation Program: page 5 Mani MONO III r. ij~ J:'•t ^ ~ it Y _ - i : • - 1. t a'\ I: "'1 s• t 1..('F~f ! _l.~ ~ `y - J. a I..ls•` io_ 76 x . it _-_i -~--•l,T `'i~~ ~i~ 7--1 I'~'[~L .a 4N I 60 ~Fj I - I. I•~t f "--J 1,?___.rl'' , L. ..i.-'~-.SS_f^~'_"_~ _ . R7~' yyy tl ~ J"~'` 1, ~•1, 1 _ 1't1'~" ►lt .1... , ~•'4°` ti ~ (Q1 DO LV t •a•. L.1'( ~j~t't' ..1(i:.., `1" 1 }-t. It (~.1~,~. -`'r`1 ' "1 r~e7 Q Q; s .t 13 i. } _ c~`5 OAS s t. { - CIO ail 411 e .i q . it ( t ! tZ Chi } K,~ {1 yl - 1.x...•.1 ~.~at?.,~~- ,,.%_l.i~ ~~•o ii.; ,_~t • i } I ' a x • o~ Z ~ .t ; r 1= •"t~-`•-' Podgy jM _ _ ~ t rAl{ >rg~ li'1..1. I IvI ill`' II♦~ t.l.; ~\30 1 I., . Of I 01 Q 131 } - - ~ ::1~~.:\ L..I ~ 1. ~ 1. ~ ..1._I. ' . a ~ i 1. i._ { I,I I~.F1.11. ' .~i', tl ' 1.wi 11 41- It , • .4... _.1 , 1 . 1. y 1 A. .~.1 -~..~-t i ki.J..._l .•••,t` •r ~•'t yc.lY:af 1 J„: ` ` Lx j 1~_ t s-'• J 11 1 4 t '-•..1._'', 1;::..... .~i'•,~ ~ fi• ,'^~J; 5`I (l.l{•fl_i`- ~ 1~t~1...I 1j~ i:•:=:~, .(j. :l,i_t„ ~t 1 ~ ~ i •..t~ l t - \ ' 1 'i(' ~ ..t.~.~/ '!1 'i, 1 11 s a , Id{ : 4'` x"'( li ~ (~.•,-4!~ 1 ` 18` . r',C. tip r..'..'• I, I , , , ...t It • : ~ . "1. - r... considered within the Roundtable groups. a. Service Hours and Schedule: Service would ran during weekday peak hours only. Morning service would start at 5:30 am and finish at 9:45 am. Afternoon service would operate from 3:30 pm to 6:45 pm.. Frequency would be half-hourly during the period "shoulders" and every quarter hour during the core peak hours. Service would complement and be backed up during off- hours by local routes 76 and 78. Standard 40' buses would operate on this new route. Increasing the service frequency to every 10 minutes would make the service more attractive by reducing waiting and transfer times. With a limited budget for these services, the frequency of service will be balanced against the desired length of the route. The proposed express service would cut travel time through the length of the corridor from between 7 minutes (pm peak) and 11 minutes (am peak) or a 14% to 22% travel time reduction. Further reductions will be sought through Transportation System Management (TSM) improvements to give transit services priority at key intersections and at freeway ramp meters. b. Corridor Connections: This proposed route connects most of the major employment centers, many of which now receive only limited bus service and generally no express service at all. It is imperative, however, that convenient connections for the complete commute trip be provided. Residential development in the corridor is dispersed. Feeder buses and park and ride lots are thus required to provide home-based connections to this new corridor express service. The Highway 217 express would intercept the Cornell Park and Ride lot to the north and the new Tigard and the Tualatin lots to the south. Feeder bus services cross the express route at numerous locations, particularly at the Beaverton Transit Center, Washington Square and the Tualatin Park and Ride lot. Other "trunk" and express bus routes are met at the Beaverton Transit Center (57/91X), Tigard Park and Ride lot (12/95X) and the Tualatin Park and Ride lot (96). It may be difficult to attract commuters within the Westside to this new service, even with its express operation and new mini-bus connections. Many trips would require two transfers and only the longest corridor trips would notice the convenience of escaping corridor traffic. The new service,, however, offers opportunities for not only Westside DRAFT - Tualatin Valley Corridor Transportation Program: page 7 residents. Trunk routes from central Portland would also connect with the new Highway 217 express. This service would become an attractive connection with Westside MAX light rail service arriving in Beaverton in 1998 and may be quick and direct enough to invite households to give up an extra car. 2. Mini-Bus Operation a. The Role for Mini-Bus Operations: One response to the limitations of fixed routes is to operate small buses on more localized routes connecting with fixed routes on arterial streets. Small buses or vans can make tight turns, will not impact lightly constructed pavement and can get closer to destinations. Mini- buses can provide more flexible service, deviating short distances from their route and picking up or dropping off anywhere along designated streets. Localized service operates at slower speeds and with less direct connections. Service productivity is reduced as operator and vehicle carry fewer riders a shorter distance. Service is more accessible, but slower and the required transfer may be viewed by riders as an inconvenience. Ada& Mini-bus service must be closely coordinated with traditional fixed route service to minimize transfer delays. In spite of potential short comings, properly integrated mini-bus operations can fill a problematic gap in the transit system. b: Maximizing Our Investment in Transit Services: One form of mini-bus operation, called the jitney, uses passenger cars, vans or minibuses driven by their owners along fixed routes, sometimes with minor route deviations. Jitneys are typically privately owned and operated often by small companies, organizations or individuals. Under the right conditions they offer fast and frequent service. Without adequate service demand to attract jitneys, localized mini-bus operations require a public or user subsidy. Tri-Met does not now have the resources to provide the level of service provided by mini- buses or jitneys. Additional funds or partnerships will be needed to operate such service. Because mini-bus services are readily customized to serve localized employers and residents, subscriptions from groups directly benefiting from the service is a logical source of support. The return on investment for subscribers would be apparent in enhanced mobility and access to Tri-Met's fixed route services. Other benefits DRAFT - Tualatin Valley Corridor Transportation Program: page 8 may take the form of tax benefits, reduced parking requirements, shared promotional efforts, free advertising, and community goodwill. c. Some Considerations for Mini-Bus or Jitney Operation: As we look to setting up mini-bus operations, some considerations might include: - The service should be safe and reliable. - Service should be frequent and with stops close to destinations. - Connections to other transit services should be easily understood and convenient. - Service should be visible: stops, vehicles and information. - Priority road treatment where possible should expedite mini-bus operations. - Local users should take ownership in the service, participating in service planning and adjustments. d. Alternative Scenarios for Mini-Bus Operation: Mini-bus operations can provide connections to fixed route services and service short trips within a locality (such as for lunch and errands). The service can be responsive localized and changing needs. Tri-Met operates services that are reliable, safe, responsive and well communicated to the public. Tri-Met drivers are trained in customer relations. Tri-Met service, however, tends to cost more than privately operated service, reflecting the level of operator training and support and standards for vehicle maintenance. The appropriate mode for mini- bus operations, therefore, must trade off Tri-Met's ability to provide support, the private sector's ability to organize and manage the operation, the cost of the operation and the degree of control and coordination with local needs and with other Tri-Met services. Some alternative scenarios include: - Tri-Met operated service with employer subscription - Employer operated service, coordinated with Tri-Met services - Employer contracted service - Open ended service (individual private operators invited to participate) - Dial-a-Ride service (service on demand) While service coordination and reliability issues are perhaps minimized with Tri-Met operated mini-bus service, Tri-Met's capacity to operate that service is fiscally limited. Tri-Met's revenue base supports traditioi~.l fixed route services. Creative solutions for locations that are particularly difficult to serve by transit require not only creative and DRAFT - Tualatin Valley Corridor Transportation Program: page 9 unique services, but creative and unique funding configurations as well. Tri-Met might start-up a service supported by employer subsidies that might transition to full employer operation once the demand for the service is established and employers are more organized in their support for the service. Employer subsidies might be channeled through a Transportation Management Association, a property management company or business association. Beneficiaries of these services, including restaurants, might also be asked to contribute. e. A Mini-Bus Operating Scenario: Tri-Met operated and employer subsidized mini-bus service might appear in a similar "splashy" logo to the Highway 217 corridor express service. Vans would be equipped with wheelchair lifts. Except at transfer points or entrances to major employers, bus stops would be replaced with signs every 200' to identify the route and riders would simply hail the bus. Riders would be dropped off along the street or at the door of their destination, depending on its off-route distance and accessibility. Coordinated connections with Highway 217 corridor express service would occur at a transit center or lighted and sheltered bus stop. The names of subscribers could be promoted at bus stop shelters, on signs or on the mini-buses. Service could be free for employees of subscribers who would have a special pass and a full fare would be charged for other riders. Service would operate from 5:30 am to 6:30 pm, accommodating both commuters and the midday lunch crowd. f. Proposed Mini-Bus Routes: Three mini-bus routes are proposed at this time and subject to revision based on further defined employer needs: Route 1: Washington Square: This loop route would be based from the Washington Square transit center, connecting Lincoln Center to the east with the Nimbus office area to the west. Nimbus service would extend from the Parkside complex north of Hall Boulevard, south on Nimbus, deviating onto SW Gemini Drive and finishing on Nimbus south of Scholls Ferry Road. Route 2: Kruse Way: Serving the Kruse Way area, mini-buses would meet the Highway 217 express at SW 72nd and Bonita Road, heading east onto Meadows Road as far as Carman Drive and north of Kruse Road to Daniel Way. Service would also cover SW Centerpointe Drive. DRAFT - Tualatin Valley Corridor Transportation Program: page 10 Route 3: Tualatin Industrial Community: The route would service a portion of the Tualatin industrial community which is more dispersed and harder to service than the other service areas. Service would start at the terminus of the Highway 217 corridor express in central Tualatin and extend west on Tualatin-Sherwood Highway, to a loop comprised of SW Teton Avenue and SW Avery Street. These routes were selected based on the concentration of employment activity and lack of existing Tri-Met services. Development along these routes may be difficult to service by fixed routes as some businesses are removed from the main road or they may include dead end streets. 3. "Place Enhancement" Focused on Highway 99 and Key Tigard Locations: Improve the convenience, integration and visibility of transit by providing connected stops/plazas with safe street crossings, shelter, lighting and customer information. Create neighborhood crossroads. Coordinate with other street and neighborhood improvement projects. Invite participation in developing bus stops and providing shelters from adjacent property owners and businesses. Acknowledge those who share in pedestrian and bus stop improvements with "good neighbor" recognition in ads, distributed information and a newsletter. 4. Transportation Systems Management (TSM): Expedite bus operation with prioritization opportunities or lane and signal changes coordinated in partnership with ODOT and local jurisdictions. These improvements might include at strategic locations: a. Highway ramp meter queue bypass lanes. b. Bus-only through lanes at key intersections. C. Signal cycle adjustments. d. Accommodation of bus stops (pullouts, extensions, pads) at intersections and business entrances. These and other strategies need to be accommodated within a modest budget and in a short period of time. Some might be coupled with other road improvement projects. H. Suburban Corridor Program Costs The suburban corridor program introduces one new express route operating in the Highway 217 corridor and up to 4 connecting mini-bus routes serving clusters of employment at Washington Square, Kruse Way and western Tua►a:in. The first year budget for this service is $1.7 million including related TSM and bus stop DRAFT - Tualatin Valley Corridor Transportation Program: page 11 improvements, painting/advertising of vehicles and bus stop shelters, a marketing program and contingency. Not included is the capital cost of express buses. 1. Express Bus Service Costs: The fully Tri-Met supported express bus service would have a first year cost of $843,348. The continuing cost of that service would be $558,348. Those estimates are based on marginal operating cost and an allowance of 15% "passenger revenue to operating cost" ratio, which is less than the 27% system average. The proposed infra-suburban service is not likely to be as productive as Tri-Met's urban service through densely developed areas. This cost estimate also includes 18 new bus shelters and a limited $225,000 allowance for Transportation System Management (TSM) improvements. 2. Mini-Bus Service Cost: Mini-bus operations would feed riders to the existing fixed route bus network and enhance utilization of this significant public investment. Benefits will be manifest in reduced road congestion and pollution, greater mobility for more people and reduced parking requirements. It is assumed that 4 local mini-bus routes would interface with the new corridor express bus service. Assuming Tri-Met vehicles and operators, peak period service would cost approximately $326,400 annually. Midday service providing "lunch hour" transport would cost another $122,400 or $448,800 total. Costs assume the purchase of 5 vans, lift equipped, at $65,000 apiece. It is assumed here that employers/subscribers would contribute 50% of the operating cost; however, the medical facilities on Marquam Hill support similar services with a 70% contribution. That level of support may be considered a precedent. 3. Employer Subscriptions: The remaining 50% of operating cost or an estimated $224,400 is assumed to come from employer subscriptions. Employers already contribute to the operation of transit services through the 0.6% 'Tri-Met payroll tax. That tax which makes up 67% (1995/96 budget) of Tri-Met's operating base is intended, however, to support traditional fixed route service. Mini-bus services with associated lower levels of productivity (fewer riders per operator) would quickly drain those resources. The cost to employers need not be significant, given the extent of congestion, frequent parking shortages and regional concerns over increasing air quality degradation. An employer of 50 persons with an average salary of $40,000/year now pays $12,000 annually in Tri-Met payroll tax. As an example, there are approximately 50 employers of 50 or more employees in DRAFT - Tualatin Valley Corrid6r Transportation Program: page 12 the Washington Square area. If all of those employers subscribed to the mini- bus operation, the cost to each employer would be approximately $1,122 per year or a 10% increase in their total Tri-Met "tax". The added contribution would be greater for a Tualatin mini-bus, however, as there would be only 22 employers with 50 or more employees to share the cost and less than full participation, in such a program would increase the subscription cost for those who did subscribe. Employers might pay into this program based on each employer's number of employees. Support could be passed through property management companies and reflected in each tenant's lease, thus equitably distributing the support according to floor area. Employees of participating employers cmight rider the mini-bus service free, while nonsubscribers could be required to pay a full fare. 4. Maximizing the Transit Investment: For this investment, employers would gain access to the full Tri-Met network to which they now make payroll tax contribution but cannot effectively use. Employers would be better able to utilize the broad labor market, including one or no-car households or those for whom disabilities prevent the use of a car. Not only would employees gain a commute option, but the employer could reduce parking requirements, better comply with DEQ's new Employee Commute Options (ECO) rule and receive advertising and public recognition for reducing congestion and improving air quality. 5. Continuing Costs: The total marginal operating cost for Tri-Met to continue this service would be approximately $833,000/year. Increasing ridership and farebox revenue could reduce those requirements. DRAFT - Tualatin Valley Corridor Transportation Program: page 13 ' Tualatin Valley Corridor Transportation Program Preliminary Estimate of Costs First Year 1. Freeway express service ' Service hours 56 hrs/day, peak hours 255 weekdays, $46/hr $ 656,880 Less farebox revenue (15%) 98,532) Equipment: 10 standard buses NA Shelters: 18 shelters $ 60,000 TSM improvements (to be determined) $ 225,000 2. Mini-bus service (assumes 4 routes) Service hours, assuming Tri-Met operation Peak hrs: 4 vans @ 8 hrs/day, 255 weekdays, $40/hr $ 326,400 Midday: 4 vans @ 3 hrs/day, 255 weekdays, $40/hr $ 122,400 Less 50% (minimum) employer support 224,400) Equipment: 5 "cutaway" vans w/ lift @ $65,000 $ 325,000 3. Painting/advertising treatments 11 buses $ 11,000 5 vans $ 2,500 25 shelters $ 5,000 bus stop signs: express and mini-bus service $ 10,000 4. Marketing and promotion Preparation of brochures $ 20,000 Direct mail to corridor households $ 50,000 Newspaper advertisement $ 20,000 Radio/cable TV advertisement production $ 20,000 Radio/cable TV spots $ 50,000 Kick-off events $ 5,000 5. Contingency (10%) $ 158,625 Total Estimated Cost - 1st Year $1,744,873 Second Year Express service hours 56 hrs/day, peak hours 255 weekdays, $46/hr $ 656,880 Less farebox revenue (15% only) 98,532) Van service hours, assuming Tri--Met operation Peak hrs: 4 vans @ 8 hrs/day, 255 weekdays, $40/hr $ 326,400 Midday: 4 vans @ 3 hrs/day, 255 weekdays, $40/hr $ 122,400 Less 50% employer support 224,400) Promotion $ 50,000 Total Estimated Cost - 2nd Year $ 832,748 DRAFT - Tualatin Valley Corridor Transportation Program: page 1 EVA" I. Importance of Marketing 1. New and updated services must be communicated to the riding public. The dissemination of information and the staging of promotional activities are focused on times of the year when service is adjusted. Tri-Met promotes its services through numerous channels: a. Mass media promotions and direct mailings (newspaper,. TV, PSAs and news releases). b. Transit Fairs at events and at employment centers. C. Through co-promotions and special incentives. d. Through information outlets. e. Through advertisements inside and outside Tri-Met vehicles. f. Through easily identifiable signs, shelters and buses. g. By inviting call-in schedule information and assistance. h. Targeted mailings to those living along new/existing transit services. Potential transit riders need route and schedule information in order to use new services. The Tualatin Valley Corridor Transportation Program will be particularly dependent on promotional activities because: a. The Highway 217 commute market is presently inadequately served by transit and these persons may not be familiar with Tri-Met services. b. The proposed services are a new concept to Tri-Met and in large measure to the public transit industry. Potential riders may require reassurance that this package of services may indeed meet their needs. C. With mostly free worksite parking and short commute distances, the intrasuburban transit market will be a "hard sell". A combination of strategies including image development, employer incentives, information dissemination, advertising in Westside markets and targeted direct mailings will be developed over the next months. Employer support in the form of newsletters, paycheck stuffers, transit pass discounts, underwriting of mini-bus operations, shared efforts to make bus stop and pedestrian access improvements is key to stretching promotional resources. Tri-Met will acknowledge that support as new services are marketed. 2. Common Image for Vehicles / Facilities: It is proposed that a theme/name and logo be developed for all elements of the proposed program. Common colors and supergraphics could be used on express and mini-buses as well as on signs and shelters so potential users could recognize complementary service features. This identity would.be designed so as not to dissociate the new service from existing service connections. The names of subscribing and supporting businesses could be incorporated into these promotional graphics, including on bus shelters and the sides of buses. , DRAFT - Tualatin Valley Corridor Transportation Program: page 15 SON.- l~-Cv~fi~l~ COUNCIL AGENDA ITEM G,ITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY AGENDA OF: October 24. 1995 DATE SUBMITTED: 10-24-95 ISSUE/AGENDA TITLE: _Purchase of PREVIOUS ACTION: _six (6) police vehicles PREPARED BY: Robert J. Wheeler DEPT HEAD OK CITY ADMIN OK REQUESTED BY: Robert J. Wheeler ISSUE BEFORE THE COUNCIL Shall the City Council approve the purchase of 6 police patrol vehicles. STAFF RECOMMENDATION Staff recommends approval of the purchase of six (6) 1996 Ford Crown Victoria police patrol vehicles from Skyline Sales Inc., on State Bid #5412 40 INFORMATION SUMMARY These vehicles were approved for purchase 'in the FY 95/96 budget. This purchase is for the Patrol Division. The Chevrolet Caprice is no longer being manufactured; therefore, we must change vehicle models we use for patrol vehicles. The Chevrolet Police Package now offered is the Lumina, a mid-sized unit, that will not hold the equipment we currently haul in the patrol units. They are also smaller in the driver area and prisoner compartment. The Lumina is also only available in V-6 3.1 Liter Engine. The Ford Crown Victoria is a full size police unit that will accommodate all of the equipment we haul and has a V-8 4.6 Liter engine. Fleet management is also recommending we purchase the Ford Crown Victoria for the following reasons: 1. The prisoner partitions will transfer from the Caprice to the Ford Crown Victoria but not into the Lumina, thus saving $350/unit. The Ford Crown Victoria has a full frame and will be more durable than Man the unibody that is found in the Lumina. Y u3. The Crown Victoria is rear wheel drive and the handling characteristics would be similar to the Caprice, unlike the front-wheel drive'Lumina. We just received the State bids last week ;,ind the orders must be placed by November 5, 1995 to receive a $400.00 per u--,it early ordering discount. The Ford Crown Victoria is the unit that we need to purchase and by placing the order by November 5th, we will be saving $2,400.00. PROPOSED ALTERNATIVES 1. Approve staff recommendation. 2. Not purchase vehicles. FISCAL NOTES The State Bid purchase price for the Ford Crown Victoria police package is quoted at $19,271. There are additional fees of $64.50 per unit($50 for 0 tate of Oregon administration fees and $14.50 for license and title). Total cost of these vehicles is $116,101. Amount included in the FY 95/96 budget is $126,534. Page 1 of 2 pages PURCHASE FORA CITY OF 11GARD 13125 SW Hall Sivd. Date: 10-24-95 Tigard. Oregon 87223 From: Lt . Rdbert Wheeler (503) 6394171 Fax (503) 635-6795 Dept Police To: _ Skyline Sales Inc. Fa N% ao on 2510 Commercial St. P.O. Box 2288 Po HL AW=ua ®1. Ca+6=4 Po a r.o a ra Salem, OR 97308 Pc HU&MER REQUIRED ON ALL PAC RAGES Ph: (503) 581-2411 Fax: (503) 371-8146 DELIVER TO: IN 13175 SW HALL BLVD ❑ 8720 SW BURNHAM STREE Ti ❑ 12800 SW ASH STREET ❑ 8777 SW BURNHAM STREET Vendor Item Dept/A=unt Unit Extended Ory No. Desaipdon No. Price price i All 6 ea.1 1996 Ford Crown Victoria I Interceptor Police Package Code P71 with 122P Package 4.6 Liter, overhead cam I SEFI V-8 - State Bid #5412 10-1120-703.000 117,489 1104,934' ea. W8161H Exterior Color (special color) 160 800 Dark Blue (W8161H) ( 1 HP Interior Portofino Blue HP wC I1 ea.1 DZ (Exterior Color.Li ht Saddle N/C I HS (Interior Saddle 1 I ~ I I I I i (6 ea. 553 Anti-Lock Braking System 596 1 3576 I 00,11"M n.','- . r 1115 ,6 23 APPROPRIATION BALANCE: $126,534 AS CF: 10-23-95 APPROVALS: AMEND FO (IF UNDER $SO) SEC, tCN MAN.araER1PRCFEaSiCNAL STAF=: Amend PO s (IF UNDER S2500) OIVISi'CN MANAGER: {+f Amount: S (IF UNDER S75C0) OEPARTMENT MANAGER:.'`'"-;,./ Approval: (I .ER $25000) CITY ADMINIS nATOR: R $25000) LCCAL CCN i RAC. REVIE'N SCARO: IMPORTANT NOTICE: PLEASE NOTE IMPORTANT ADDITIONAL TERMS AND CONDITIONS OF THIS ORDER ON THE REVERSE SIDE. ALL OF T HESE TERMS AND CONDITIONS ARE A PART OF THIS ORDER ANl7 ARE CONTRACTUALLY BINDING. ~xr~,r ffm PURCHASE FORM October 24, 1995 Page 2 of 2 Vendor Unit Extended Ouantity Item No. Description Price Price 5 each 127 Heavy Duty Rubber 27 135 Floor Mats * Except Light Saddle = standard carpeting 6 each 21A 6 way Power Seats 321 1926 6 each PLN Auxiliary Fuse Panel 37 222 5 each PLA Inoperative Lamp Circuits 12 60 * Except Light Saddle Unit 6 each FLV Map lamp 27 162 Ab,each PLP Power Door Lock & 12 60 Control Knobs *Except Light Saddle Unit 1 each PPL Power Locks on Light Saddle Unit 12 12 6 each PW4 Power Windows 12 72 6 each PR8 Bonding Straps 59 354 6 each PRS Roof Reinforcement 55 330 6 each PL1 Spot Light 290 1740 6 each PLU Warning Lights 116 696 6 each PW7 Wiring Package 55 330 1 each Shop Maintenance & Repair Manual 76 76 1 each Emissions Manual 35 35 1 each Electrical Schematic 28 28 1 each Technical SVCS Bulletin & Updates 75 75 Total $115,623 31