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Resolution No. 98-24 CITY OF TIGARD,OREGON RESOLUTION NO. 98- & • A RESOLUTION BY THE CITY COUNCIL ADOPTING THE PLANNING COMMISSION FINDINGS AND ADDITIONAL FINDINGS (EXHIBIT A) CONCERNING AN APPEAL BY RAZ TRANSPORTATION OF A PREVIOUSLY ISSUED DIRECTOR'S INTERPRETATION RELATED TO THE STATUS OF A NON-CONFORMING COMMERCIAL USE. WHEREAS, on April 7, 1997 Raz Transportation requested a Director's Interpretation concerning the non-conforming commercial use status of the property at 11655 SW Pacific Highway; WHEREAS, on April 28, 1997 the Director did find, based on the historic use outline provided by Raz Transportation, that continued use of the site complied with the non-conforming use provisions of the Development Code(EXHIBIT B); WHEREAS, on November 20, 1997 a neighboring property owner submitted a new Director's Interpretation application requesting a re-interpretation to further address historic use of the northerly portion of the property at 11665 SW Pacific Highway. This request included a series of historic aerial photos of the subject site(EXHIBIT C); WHEREAS, on December 8, 1997 the Director found that the neighboring property owner did not have the authority to file a Director's Interpretation application for the subject property but the Director did • initiate a modification/revocation process. At that time, the Director did allow the property owner time to respond to the new evidence(EXHIBIT D); WHEREAS, on February 23, 1998 the Planning Commission did conduct a Public Hearing and took extensive public testimony concerning the historic use of the northern portion of the subject property and did modify the previously issued Director's Interpretation to require that the northerly 200 feet of the subject property be restored to its previous unused state; and WHEREAS, on April 28, 1998 and May 12, 1998 the City Council did conduct a Public Hearing concerning an appeal filed by the property owner of the Planning Commission's decision to modify the previously issued Director's Interpretation(EXHIBIT E). NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that: SECTION 1: The City of Tigard, Oregon hereby determines that the Planning Commission's modification to -the previously issued Director's Interpretation complies with the applicable approval standards of the Development Code. The City Council therefore denies the appeal filed by the property owner, subject to the findings made by the Planning Commission and additional findings made by the neighboring property owner as provided in"EXHIBIT A." • RESOLUTION NO. 98- Page 1 EXHIBIT Page-� o' a� Page, PASSED: This day of 1998. Mayor 01of Tigard ATTEST: CQH�11-�Olk City Recorder-City of Tigard iAcitywide\resVaziint2.doc RESOLUTION NO. 98-- Page 2 EXH%Pages Raw EXHIBIT A `CITY OF�T16ARD 'OREGON - • .S' + - _w _ :'.1. -�_�-_moi. �.. •�f.�%. .. I ':..••.. ... .. P[ANNINGUMMISSION .CITY OFTIGARD 5� b"WEN-110sj;. - A FINAL ORDER INCORPORATING THE FACTS,FUMINGS AND CONCLUSIONS MODIFYING A PREVIOUS DIRECTOR'S INTERPRETATION BEIMMG THE MEW OF A NON-CONFORMING USE THE CITY OF TIGARD PLANNING COMMISSION HAS REVIEWED THE APPLICANT'S PLANS, NARRATIVE. MATERIALS, COMMENTS OF REVIEWING AGENCIES,THE PLANNING DIVISION'S STAFF REPORT AND RECOMMENDATIONS FOR THE APPLICATION DESCRIBED IN FURTHER DETAIL BELOW. THE COMMISSION HELD A PUBLIC HEARING TO RECEIVE TESTIMONY ON THIS APPLICATION ON FEBRUARY 23, 1998. THIS DECISION HAS BEEN BASED ON THE FACTS, FINDINGS AND CONCLUSIONS CONTAINED WITHIN THIS FINAL ORDER. SECTION I. APPLICATION SUMMARY FILE NAME: RAZ TRANSPORTATION DIRECTOR'S INTERPRETATION APPEAL PROPOSAL: The Director requested that the Planning Commission consider revoldng or modifying a previous Director's Interpretation concerning the non-conforming use status of the property at 11655 SW Pacific Highway. APPLICANT: City of Tigard OWNER: Walter Aman Jim Hendryx AKA Business Services Community Development Director PO Box 19089 13125 SW Hall Boulevard Portland, OR 97280 Tigard, OR 97223 SPLIT ZONING ' DESIGNATIONS: The property has a split zoning. Approximately half of the southern portion of the site is zoned General Commercial (C-G). The General Commercial Zoning District permits the provision of a range of commercial goods and services. The northern half (approximately 400 feet) is designated Medium Density Residential (R-12). The Medium Density Residential (R-12) Zoning District permits the provision of detached single family residential development and low-to-medium rise, multiple-family residential development. LOCATION: 11655 SW Pacific Highway, WCTM 1 S136CA, Tax Lot 01600. APPLICABLE . REVIEW CRITERIA: Community Development Code Chapters 18.12, 18.-32,18.54 and 18.132. NOTICE OF FINAL ORDER NO.98-01 PCEXHIBIT RAZ TRANSPORTATION DIRECTOR'S INTERPRETATION APPEAL PAGE t OF. Page -5 Page- SECTION II. DECISION The Planning Commission, hereby, modifies the previous Director's Interpretation and finds that the northerly 200 feet of the residentially zoned portion of the property has not been continuously used for commercial purposes. For this reason, the Planning Commission orders that the northerly 200 feet of the property shall be restored to its previous undeveloped state and not be used for commercial purposes. SECTION III. BACKGROUND INFORMATION Property-History- On ropertyHistory:On April 12, 1997, Raz Transportation made application for a Directors Interpretation concerning the previous use of the 5.81 acre property at 11655 SW Pacific Highway. On April 28, 1997, a Director's Interpretation was issued finding that the use of the property by Raz Transportation was consistent with non-conforming use provisions. The interpretation was requested because the property has split zoning. The southerly portion of the property is zoned General Commercial (C-G). The northerly portion of the • property is zoned Medium Density Residential (R-12). The Director's Interpretation relied upon an outline of use that was provided by Raz Transportation concerning the historic use of the property since 1944. When neighboring property owners learned of the issuance of the Director's Interpretation, they moved to appeal the decision with the Land Use Board of Appeals. The Director requested that the appeal be continued and a time extension be granted to allow the City to further review the use issue. On November 20, 1997, neighboring property owners submitted a complete application, including aerial photographs and requested a Director's Interpretation concerning the historic use of the property. On December 8, 1997, the Director found that because the applicant was not the property owner and did not have the property owners permission, that the Directors Interpretation could not be initiated by neighboring property owners. Instead, a modification or revocation of the existing Directors Interpretation would be initiated by the Director, as allowed under Section 18.32 of the Community Development Code, if appropriate. The Director provided the property owner with an opportunity to respond to the evidence submitted by the neighboring property owners. On December 15, 1997, the property owner submitted evidence in support of the previous Director's Interpretation. This evidence primarily relied on affidavit statements concerning the past use of the entire property. NOTICE OF FINAL ORDER NO.9"1 PC PAGE 2 OF EXH I B IT RAZ TRANSPORTATION DIRECTOR'S INTERPRETATION APPEAL Page --& of ZZ 35Pages _Vicinity Information: The site is a flag lot with access frontage on SW Pacific Highway. The property is adjoined by multiple-family residential development to the west and to the north. Undeveloped areas and an existing detached single-family residence exist to the east. To the south, the site is adjoined by a bank that has frontage on SW Pacific Highway. Site Information and Proposal Description: On February 23, 1998 the Planning Commission conducted a Public Hearing to consider modifying or revoking the previous Director's Interpretation. At this hearing the Planning Commission found that the historic aerial photos are the most persuasive evidence available that the northern portion of the site has not been used continuously. This portion of the property has had gaps of time longer than six (6) months where the northern portion of the site was not in continuous use for commercial purposes. These photos indicate that since annexation of the property in 1987, the apparent equipment storage commercial activity on the property was 200 feet from the northern property line. This is in line with the northern side of the second most northerly apartment building on the adjoining Hawthorne Villa.Apartments site. SECTION IV. APPLICABLE REVIEW CRITERIA AND FINDINGS Raz Transportation has proposed to become the sole bus service provider from the • existing facility and intends to continue to use portions of the property that are presently zoned for residential use. The applicable regulations are set forth in Section' 18.132.040(B)(1)(a-f) of the Community Development Code. These standards have been addressed as indicated below: a. No such non-conforming use is enlarged, increased, or extended to occupy a greater area of land or space than was occupied at the effective date of adoption or amendment of this title. The proposed bus shuttle service use does not appear to increase the intensity of use on the majority of the property. However, this type of use would increase the intensity of the heavy equipment use that has taken place on the northerly 200 feet of the property in recent years. Both the scaled distance from the northerly property line, and the distance scaled from the northerly property line to the second apartment building landmark are 200 feet. The Planning Commission also received extensive testimony from neighboring property owners, property managers and residents concerning use of the northern portion of the property. The Planning Commission therefore modifies the Previous Director's Interpretation and finds that the northerly 200 feet of the residentially zoned Portion of the Property has not been continuously used for commercial purposes. For this reason the Planning Commission orders that the northerty 200_ feet of the Prooertv shall be restored to its previous undeveloped state and not be used for commercial oumoses. NOTICE OF FINAL ORDER NO.98-01 Pc EXHIBIT RAZ TRANSPORTATION DIRECTOR'S INTERPRETATION APPEAL PAGE 3 OF: Page c ?-3.5 PagE b. No such non-conforming use shall be moved in whole or in part to any • portion of the lot other than that occupied by such use at the effective date of adoption or amendment of this title. Except for the northedy.200 feet as discussed in Section 'a." above, the entire site has apparently been utilized for this purpose or other heavy equipment uses since 1944. The property was annexed to the City of Tigard in 1987 and since that time, the non-conforming uses have continued except for the northerly 200 feet of the'property. C. The non-conforming use of land is not discontinued for any reason for a period of more than six (6) months. This request for non-conforming use status does not involve the use of a non-conforming structure. - The existing structure on the General Commercial zoned portion of the property accommodates permitted office and related storage uses. The remainder of this property is undeveloped. Based on the evidence and testimony contained within the record, the Planning Commission finds that the commercial use was discontinued on the northerly 200 feet of the property for a period of over six (6) months. d. If the use is discontinued or abandoned for any reason for a period of six (6) months, any subsequent use of land shall conform to the regulations specified by this title for the zone in which such land is located. At such time as the use is discontinued, this standard will then apply. Based on the • use history that has been provided for the site, the property has apparently been in constant use by the non-conforming land uses prior to annexation of the property into the City of Tigard in 1987 except for the northerly 200 feet as previously discussed. e. For purposes of this section, a use is discontinued or abandoned upon the occurrence of the first of any of the following events: (i) on the date when the land was vacated; on the date the use ceases to be actively involved in the sale of merchandise or the provision of services; on the date of termination of any lease or contract under which the non-conforming; or (iv) on the date a request for final reading of water and power meters is made to the applicable utility districts: When any of the following events has occurred, the current non-conforming use status will no longer apply to the site and it will then be required to be developed to current City Development Cade Standards of the zoning district. The northerly 200 feet of the property may, in the future, be used only for conforming residential use upon receiving appropriate permit approvals. NOTICE OF FINAL ORDER NO.98-01 PC PAGE 4 OF: EXHIBIT RAZ TRANSPORTATION DIRECTOR'S INTERPRETATION APPEAL Page 0. 2 . 5 Page f. No additional structure, building, or sign shall be constructed on the lot in • connection with such non-conforming use of land. Through the determination of this use status, no structures are proposed to be constructed on the property. The heavy equipment uses -on the property have not been discontinued for any six (6) month period since the 1944 except for the northerly 200 feet of the property. - it is=furitier ordered that.the applicarit.aiid the a - = _ _ p rties s _� --- - = _ these proceeding dMed:of__the'entry-of this.crd ' -=?' PASSED: This 23 day of February, 1998 by the Planning Commission of the City of Tigard, County of Washington, Oregon. Si nature box below n Nick Wilson, President City of Tigard Planning Commission 0,curpinVnark_Nazfttw.doc NOTICE OF FINAL ORDER NO.98-01 PC EXHIeITc RAZ TRANSPORTATION DIRECTOR'S INTERPRETATION APPEAL PAGE 5 OF! Pa g C ZPage 1-2• SPRUCE STREET-- G — f� AREA IN QUESTION '25 12 Z d CL Ile cop AN u- 01. V. 36 I I CASE I PLANNNING COMMISSION lB MODIFICATION OF THE p(HISIT ' �� �P TRANSPORTATION DIF Page �I Q, o INTERPRETATION:-* Z_5 Page• .t__=1 -'-_..I._I_t(_L--�-J I I _ I .. j _�IlIICO ILLLI- _I.�.I_ J \�_ I»-�_..l •I��A�I MIS 111►�AYA1/�11��• �� ST m � f �-- PLANNING DIVISII tS - — — — — — — — — CTL- MCINITY MAP E ST RU TRANSPORWHON Revocation of a portion of e Olrector's Interpretation -- concerning a permitted STa - non-conforming use on a SPRUCE S . portion of a realdenUaliy zoned property T Q T O W E IN A ►� ;, o IN too ]oo goo No rao ,•.3811.4 i lomm G\��G ca).I,f Tiger) �fWO bb men YU M`MlewdbWbn�r�nA OMYr+na�1«IAe��OLIIMa 1]It!!W IId eM 11pnd,Oq N7t3 _._»__.. _..._. i -----� --..._. .. .----------. � ..�. ._... ._ __. _..... ...._..... ..... _ ...,......._.. _ .. . ..._. f7nmmuntly nnvolnpmnnl T..... rlo�/dale:Foli 9. 10 camnp�imngicdi npr MAY-01-98 16: 30 FROM:BALL JANIK LLP ID: S03 29S IeSe PAGE 2/8 BEFORE THE PLANirENIG COMMISSION OF .• THE CITY OF T IGARD RE: RAZ TRANSPORTAnON ) Case File No. 9M1 PC DIRECTOR'S INTERPRE'T'ATION: ) SUPPLEMENTAL FINDINGS PropertyUPHOLDING PLANNINGhLocated at 10626 S.W. Paficic } COKM[ISSION ACTION Walter Aman,aka Business Services, ) Owner. INTRODUCTION This matter came before the City Council on April 28, 1999 as a result of an appeal by Walter Amax, the owner and lessor of the subject property. City Council members were provided a complete record of all materials submitted to the Community;Development Director • and the Planning Commission,which had been used as the bases for their respective decisions. The City Council conducted a de novo review of this matter,receiving testimony from the Property owner's representatives,representatives of the owner of the adjacent Sleepy Hollow residential complex and residents of the Sleepy Hollow complex. All parties made extensive reference to a series of aerial photographs already in the record,as well as certain affidavits and testimony previously provided to the Platmitlg Commission. Because the appeal proceedings were conducted on a de novo basis,the City Council believes it is appropriate to adopt Supplemental Findings in support of the Council's decision:to uphold the Planning Commission's action on this matter. Accordingly,the City Council adopts the following Supplemental Findings: _ I _ 016Ss71:01 EXHIBIT Page c �Paae MAY-01-96 16 : 30 FROM:BALL JANIK LLP ID: SO3 29S 10S8 PAGE 3/8 MDINGS • 1. ' The City Council incorporates in their entirety the findings and information included in the Planning Commission's Final Order dated February 23, 1998. The Council agrees with the rationale used by the Planning Commission in reaching its decision and finds that the Planning Commission acted appropriately to limit commercial uses on the property, pursuant to the relevant city code provisions and the facts of this case. 2. In the appeal hearing,all parties directed their evidence and argument to two criteria contained in the City's non-conforming use ordinance. These are set forth in the Planning Commission's Final Order and can generally be described as follows: a. The non-conforming use,in order to be maintained, cannot be discontinued for a period of more than six months(§ 18.132.040(B)(1)(c),and b. The non-conforming use cannot be enlarged,increased or extended to spy a greater area of land or space(§ 18.132.040.(B)(1)(a). The property owner has acknowledged that the area in dispute,i.e.,the northernmost 200 feet of the subject property,is included in a R-12(Medium Density Residential) designation and that Raz Transportation,the lessee,will use the R-12 zoned property for the storage,parking and movement of commercial or school-type buses. Raz Transportation actually initiated such use in May, 1997. Such actiNities are not permitted within the R-12 designation. Therefore, such use of the northernmost 200 feet is not allowed unless there has been a continuous maintenance of a non-conforming use in the 200-foot area. 3. The Council heard and read conflicting testimony concerning both of these criteria The property owner's evidence focused on affidavits from prior owners and N1r. Aman's testimony as the present property owner. Mr. Annan has owned the property since 1993. -2 - oisst;ta� EXHIBIT Page c A 35 Page MAY-01-96 16 : 30 FROM:BALL JANIK LLP ID: S03 29S 10Se PAGE 4/e Testimony in opposition to maintenance of a non-conforming use in the 200-foot area came from • representatives of two adjoining residential property owners and the residents of the Sleepy Hollow complex, whose units directly abut the subject property. Additionally,the aerial photographs show the extent of activity on the subject property over a several-year period. 4. The Council finds that the evidence submitted by the property owner was not as persuasive as the evidence submitted by those opposed to maintainin.-O,,a non-conforming use in the 200-foot area Of particular relevance to the Council was the respective testimony which focused on the period from 1991 through fall, 1997. The aerial photographs indicate that prior to Raz's use,the northernmost 200 feet showed a lack of activity and an absence of buses or similar types of vehicle or equipment. Such activity occurred elsewhere at more southerly locations on the property. The pre-May 1997 aerial photographs do not show fire tracks, vehicle surfacing or • lighting within the 200-foot area,which would be indicative of bus or heavy equipment vehicle usage. Most significantly,the eye-witness testimony from Sleepy Hollow residents,management and maintenance personnel all note a clear"before and after"pattern of use on the northernmost 200 feet. Prior to use of the site by Raz,none of the people involved with Sleepy Hollow-had seen any activity(specifically no bus activity)in the 200-foot area most adjacent to the Sleepy Hollow complex. Their recollections date back,respectively,to 1991. They each testified that this %ras the condition of the property's use,until spring, 1997. At that time Raz Transportation began to utilize the site. It increased the scope of its operations,ultimately involving a parking and movement of buses within the 200-foot area adjacent to the Sleepy Hollow complex. Raz Transportation does not dispute the scope of its operations or its intent to continue to utilize the 200-foot area. EXHIBIT Page c image MAY-01-98 16 : 31 FROM-BALL JANIK LLP ID- SO3 29S 10S8 PAGE S/8 • The testimony from the property owner's representatives and supporters was not -0 specific as to where commercial use prior activities had occurred on the site,particularly in the 200-foot area adjacent to the Sleepy Hollow property. At best, those witnesses commented that heavy equipment and buses had parked"throughout"the site,prior to Raz Transportation's Iease of the propem•. The Council finds (as the Pl=aning Commission did) that this testimony is inconclusive about the nature and extent of activities within the northernmost 200 feet of the site. At the City Council hearing,testimony from those associated with Sleepy Hollow, based upon their eye-witness recollections,was not refuted. As a result,the Council finds that while bus and heavy vehicldequipment activity o==Cd on the property,it did not occur in any material respect or in any Idnd of concerted,continuous basis within the northernmost 200 feet of property. The Council further finds that prior to Raz Transportation's use of the property,no • effort had been made to accommodate bus operations within the northernmost 200 feel This further substantiates the lack of usage of this area for the type of operations proposed .by Raz There is no clear or convincing evidence that the Director or the Planning Commission erred in det=n ning that there have been discontinuances of commercial use of the 200-foot area for periods of more than six months from the time the northern portion of the property was designated R-12. 6. The City Council also fords that to the extent that a non-conforming commercial use existed in the 200-foot area, Raz Transportations use would involve an enlargement. increase or extension of the commercial use. The property owner argues that this code section is limited to an enlargement,increase or extension of the physical or geographic arca for the non- conforming onconforming use. The City Council finds that this code provision is ambiguous and interprets it to • -4- ot6ss�t.o� EXHIBIT. L Page If- of 2 3_,TPage. MAY-01-98 16 - 32 FROM-BALL JANIK LLP ID. SO3 29S iese PAGE 6/B cover multiple aspects of intensification of use. The Council interprets the ordinance to include • the following circumstances; a The area proposed to be utilized for the non-conforming use is a greater Physical or geographic area of land or space than was occupied by anyprior commercial uses of the R-12 area. Specifically,Raz Transportation wishes to use a larger area than had been used under any of the prior bus or heavy vehicle/equipment operations. Raz has demonstrated its intent to utilize the 200-foot area and has confirmed this intent to the council_ b. Because of Raz Transportation's scope of activity,the 200-foot area has been utilized by Raz's operations,making specific physical impacts to an enlarged and increased area on the property Prior users' activities did not materially involve the 200-foot area or affect it • C. The code provision is not solely confined to an intensification of use through involvement of additional land. It also relates to the intensification of the physical aspects of the proposed use,including such mattes as noise,odors,visual impact and hours of Operation. Mr. Aman acknowledged to both the City Council and the Planning Commission that Raz Transportation's operations are more intense than prior operations on the property. Testimony from those affiliated with Sleepy Hollow confirmed this fact The evidence is clear that anon-conforming use will be enlarged and increased by Raz Transportation's operations, including the off-site impacts of those operations. The City Council interprets this ordinance criterion to include various types of intensification of use. This is a reasonable interpretation of the ordinance in that a non-conforming use is,by its very nature,out of compliance with applicable planning and zoning designations. If neighboring properties must accommodate a • non-conforming use,the accommodation should be at the least intrusive level and not beyond owgrn.ot EXHIBIT Page 01 Paw aa�♦ —va '.,:iV •o �G tFV1'I DMLL JM(v 1l1 LLe 1u: 5103 295 105!3 PAGE 7/6 prior use characteristics. The Council interprets the ordinance criterion to include consideration of enlarged or increased off-site impacts from non-conforming uses. To do otherwise would allow ou-mer to convert a limited non-conforming use into a new,more intrusive non-conforming, use by simply confining it to the.same land area 7. The property owner has suggested to the Council that mitigation of the noise impacts from Raz Transportation's operations could occur. The property owner argued that this would allow use of all but 100 feet of the subject property and would mitigate the off-site impacts identified by Sleepy Hollow residents. While the City Council believes mitigation is warranted,the suggestion made by Mr.Aman of a large berm creating a 100-foot setback area, was limited to addressing noise issues. It did not constitute a comprehensive form of impact mitigation. Furthermore,no evidence was submitted that indicated that mitigation of the off-site impacts would actually occur with the berm. Meeting the City's nuisance decibel standard is not • necessarily appropriate miti ti mitigation to surrounding residents. Other impacts which must be considered include odors/fumes from buses, lighting,visual impacts(especially from second- floor vantage points) and hours of operation. Mr.Arran's suggestion did not constitute a complete mitigation plan,even if a mitigation plan could be used to justify maintenance of a non- conforming use. However, given the present City Code provisions,his suggested mitigation cannot convert an inappropriate,non-conforming use in the 200-foot area into a valid use. CONiCLUSION ' Based upon the foregoing Supplemental Findings of Fact and the Planning Commission's Final Order, the City Council concludes that the nature and scope of activities proposed by the property owner and its lessee,Raz Transportation Company,will constitute an improper non- conforming use within the northernmost 200 feet of the R-12 area of the subject property. There -6- OMM01 EXHIBIT Page it o Paw AY-01-98 16: 33 FROM-BALL JANIK LLP IDIS®3 29S 10Se PAGE 8/8 has not been an adequate demonstration that a lawful non-conforming use has continuously existed within the northernmost 200 feet of the subject property. Additionally, it is acknowledged that Raz Transportation's use will be more intense than prior uses on the property and will more seriously affect the 200-foot area and neighboring properties. Accordingly, the Cite Council concurs with the Planning Commission's decision that the owner and its lessee may maintain a non-conforming use within the R-12 arta on the property but that such non- conforming use cannot occur within the northernmost 200 feet of the R-12.area of the property. • -7- oWVI.ot EXHIBIT Page I Of Pages EXHIBIT B ^Rnl 23. 1 S97 enr/ S. Raz. ?resident CITE( OF T1GARD Paz Transportation Company _6660 S'1+/ 3ertha 3culevard OREGON P-Marc. 'CR 972►3 'e: Cire ors Interpretation of Ncn-Confcmirg Use Status Cear ..41r. Raz; --is !e;;er is in resccnse to your request for a Gire=es Interpretation cf th use status st the praPem/ located at Harz SW Pacific Ergnw3y in the City of gard. Th hag been requested because the site presently has a sc!'rt zoning designation. P s .-atf cif •t-e -southern .;ctdca_of the PPro dmately one- �_ ;rccer;/ •s z_ned General Ccmmercal (C-G) in ccth ....r a^ersive P!an and Zoning desigraticrs. 116-e: ncrhern Ccrncreh.ersive Plan designation of Me�.:ium Cersicj Residential 6-112 of the Property has a and an R_;2 residential Zonis deli ( dwe�ng units per aGe) szuttle serlice Providers and forgcanstn�tcri r,esentu the proFerrj is being used for bus �:cn =ntraCor uses. Oreai rarsceraticn Inas proposed to Ce'_rme the sc!e bus ser�ica provider from the exis•' r/ and intends to c:.ntinue to use ur resicential use. Upon revie•N of the historic use cvern'ew of the Property that and apressite j nspec for �:i the r..ir.est property improvements. the ro property and a site insFeGion arc residential cordons of !P p ccsed non rfcrrning uses of the commercial I .. to „rccery are :n �c-;c,i.r.,� „� �e non-: .. e rc•'n•'nu•'11ry %eve!ccr:nent Ccde. onic •, irg provisicrs c; 11� :,:ese ;:r,:vis:cr, 1 s ars set forth in Secdcn Czde. cif the Community Ceve!ccr.,e::; i;to s;andarts have teen addresse: as :rc:cated below: ` a. No such non-conforming use is enlarged, increased, or extended to _cccuD a ` Greater area of land or space Ghan was cccc:pied at the of;ecs�e ' y or amendment of this title. i ne Yrcccse- --us ;;,ur,;2 ;2r,ice use dcese.ot accearptioo ' i ::G:ase the intensity of the ::eavy e^uierr:e:nt ,/re uses that have taken piace cn the j ,:rcce^/ since 4.944. 1 No Such. on•on;zing use small ;;e r^cved in whole cr in par; ;o any per-uon o; ' e Ict Other than that occupied by sup:: amendment of use at .he effective date of adootion or i this title. Tse entire site -'•.as accarendy teen udlized for tt:is purpose or :r :.titer `e'av/ equipment uses since ,Sat i-e rrccer/ •Nas arrexed ;c the Cit•! in SE 7 and sine what time, the ncn-c;,r„c,;,;ir.7 ,uses .nave ccndnued. • :he non-confori:•tin9 use of land is not discontinued for an reason .:acre than'S Y son for a period of months. ►nis ncn-c_nfc „ ir.S ;;o• s request ••;cn-ccricr„'tin 'u est Ices Pct involve ;he use of a ' g s;•-uaure. i ne existing sz,;�;fe on the General Commercial rzre l =cr.:cn of the prope y ac;of-:;ncdates per„„ired ccice and related storage uses. 7.-:; EXHIBIT remainder of tahis proper./ is undeveloped. Page M_( _,f�,tPage d. If the use is discontinued or abandoned for any reason for a period of six months, • any subsequent use of land shall conform to the regulations specified by this title for the zone in which such land is located. At such time as the use is discontinued. Gtiis standard will then apply. lased on 1 e use histcr h e . h p / �� at has been provided for Atte site, the property as ae arently been in ccrstant use by the non-conforming land uses Prior to annexation of the property to the City of rgard in 1987. e. For Purposes of this section, a use is discontinued or abandoned u on the occurrence of the first of any of the following events: p (i) on the date when the land was vacated; (�l) on the date the use ceases to be actNely involved in the sale of merchandise or the provision of serrice (iii) on the date of termination of any lease or contract under which the non- conforming; or (iv) on the da2e a request for final reading of water and power meters is made to the applicable utility districts. `f4hen any of the foUcwing events has cr,.,xm-4. the c=ent ncn-conforrning use status will no longer apply to the site and it wiR ten be (Development Code Standards of the=ning - to be developed to csrrent City f. Vo additional structure, building, or sign shall be constructed on the to t in • connection with such non-conforming use of land, ►nrcugh the determination of is use s'•atus, no structurei are proposed to tie constructed on the propefry. The heavy equipment uses an the property have not been disco ued for any six (6)zeriod since 1944. mcnih :mss provider in Section 18.32310(;,) of the C=x..urir/ Ceve!ecment Coce, yeu may accea( L`tis Cession �Kithin ten (10) days from the date of issuance of the decisjcn, Pease fee! free to rntaG me :;,;;c.--;-.irg thisirfc�;::accn :r�;,cu 'ave any other;ues%icrs. Si,Ic,--.:e Y .:aures N.P. Hendryx Ceve!ccment 'Directs �:'�.:rs�nranc^�azl.Ccc C: qtr. /art Luckeq 11-2-97 Carrespcnderce e S(DR X0017 lard Use*:--:ie 0 EXHIBIT Page A& os =age Z of 2 2 3 Pages '.TRANS;Oq 710tj COMPANY 3Farr.: 3Cvp Ij6•�Q r '3CCi:00. 70/ 4 , 1.997 "=t -�J11•'o•979r Xav concern: %�} - ansovr:a_:on Comoany :r' l � . : gits e_a`_ _, Qn5• to nst- ' on -Sa C: --on 97 05� �•uct_ , : _� y 223 . Ia 1.944 , , t =e•. ::e3•/` L'--= �. a� .3c.=-=.� t P; O�Q: : ra-- ! -:.::st:sc`_ __ es and shod on bus_ae;s. a.? Const:•uc;,:cn later o - ata_ joi.-ted v fie= comcanies to cor.z: to crc,,_de neav const_ - (:a=tic:zlar 1 Y road and dam bui:di.,Ig) . One of ! 'mac-_on e �'� T='scking, canti:tued t _ L:�ose comcanies, a �o oce-ata t_om =he..e.. over to �ocv_o Sus C^mcary =:: that s:�_ U,-,-; 1 it was c ou c =o--s:_ or. ac ' _ a ._ and ..a.t .:us se:-1:ce. •.•tea.. a (; . zu_,, and ?ac..= = �": :cra ., ..d caa_ mar bus a__ - o?: ?AZ .:is date. Z�Z T= as :r ,rovid g bus ser✓ *� mas;c-_ac cn -,Will anc�� Ttae sale ice __om t..at s:te. Sincere'! -f CC&-mAN• =�s .dent EXHIBIT Rohl. Pae 2- of Iowar-�, Z Pages PAGE TWO -THE FOLLOWING IS: C::R0N0L001CAL t)E:a r OF : ;.�C .0 CO`/ER LE i t �TO FRrkNMES OF E.�C:-? OF i.-:E OCC" OF OF Tr.IS PROPEZ: 0VrR TrE ?AST 50 PLUS YcARS. FOR111 LPERIOD OF TiN►fE - .17,-Ly 194;i::RC.TL 1995• ~= �?L CONS" C, C01►t?A4\4Y, A�,G�.IOR RO.A.D ANID DAM COvST�UCTION C0MPANY. Tr%Ff BL:-ILT A?ORTION OF Tri I-5 COR.RILOR, 1O.?Iv DAY DA.vt, ?YD T1 Mc-S l-R-C DA.:vL ST AGED �s�(D ROAD cQUiP: +?A T c-ZS LOCATION. Tr-:-IS WAS T'r� c: 1. .L OFFICc, S'c.RVICy AND R=,. AIR CE`+ L_. FOR ALL OF TFMM OPSMATIONS DLRZfG T:,ZS - F oRA. 0(.7R' 2'4*G =.iS Zti2,T';-:B-'! 'NaE A DAX7OF OV=A 140 PC-CB OR ROr� =QL'IP1►[�+i THAT WAS STAGED, D[SPATCHED, ScRVICr,RE?.AlR.=D. O RT O S RM AT THIS LOCAT iON. MOST OF i:TS EQLT r.,lvt T WAS C4 T: '!-= D L-.7.2 4'G i rtWI�+TcR 1►(GI+i 5. • :v'.- ; --_IS r 1 IT I i�C 1S OR'LICA - r- _ —L=— C W f :. C 3(.:i.:, .: �,v AS UL E.RST0O D .S ZO D FOR��(:�:...�.I. (:SE. 7r-IS DOES SOUNL D LCC-IC-r . OR r` cAC?L?—!, OR 7- ::=- OPER.?.:O\i OF a CLIT'f, WOULD 0FNC7. 3ErV :rt0LM, i- lr.AT TD.C. P'O R T'---.E0 n F TT�►tE - 1950 TTRL' ?R S e.r L: ::: : .==,'[EN CONS-LRL'C i:OIC COMP Ati�, *: i T'S ?EOPL E s V7 ?Q0?E?7!,:tiD WOR:tED ON S4OF SAS ("" P ROI cC:S Wi:: L v-I.:.. T• -Y'--11 50 S T1 CED. DES?AT CH-:D. SESVICED. R ?;r D, OR STORED 7-:-M-3, .??fit i OL T'r:?S ?20P=Zi C. DL-R-l G 'rr 1 tE r Y ' RE ' A OF EC:S OF =S T'� FRA��L. i... NE. r � ? i rt I�0 ?T &=QG i?'•(EVi, WORKING FROM 1 HA LOCA*70r. F OR T-r.E PERIOD OF TTtitE - 1970 TrIRL, i9A4: �tELL OWTRUCKINL -G CON. I?AN,Y VI71:i 1`( :_o—C—M0NI r 70 ?I.C.S OF cQ(..I?�•(EVi. AV-E-R.kCED. RLN-t A LOC. :. .=Nt�3 LONG _ L L :. �=:CH l CO�[?.'Ny 7 T;.IS LOC. .TION. 7H:- ! OPE? A - - H. S _- •- DtS2-.TC :A Gi�iG A.Rc.= ScRVTCE �W R .?.;IR Com+i.R. .RO:�( i=.S T:iIS uiAS A VERY BUSY �,.R` OLR.NG T :IS T:.\►t=.. EXHIBIT Page 22- c 23Page PAGE T.,-Rz--E. • FOR THE PERIOD OF TIME - FE3. 19%9 TrIRU NTA- .��oLL.0 2 SI T R- N SPORT 1 T:ON -`�1� T0t1R.��G COtijp., v, , ALSO OCCL7?fED T:�S F ACILIiY DURZ;G ;-:z A30V-- . SERVICED. �TIME- THEY OPERATED, STAGE) ICED. RE?AIRED, �N17 DISPATC:-?-ED OVER 125 S;.�CES/B1;Sc5. T:_,OUGi-:Tr15 '=C:Lfi f, D(. N. i • =0 . .. r.., Vt 11�IE F O R T KE PERI O D OF IMAE - AUG. 19r-THR U DEC. 1996: vORT"v'_3-1 T0(,RS.. 3US. 1-D Si.-_- , t.50 OC CUR NG _ CL-?IrJ i SES FACIL i!�! cZ:. t - A.3OVE TL1yC. T':,ay OP_.. . i ,ST AGM, SERVICED, ^'�--D. ..ivD DIS?ATC: OVM 100 BUS/STAGE U-NIT3,T rIROUG- T. F--%.CMrTy. DURNG FOR TSE PERIOD OF TTtitE - t99= T'-^.�L (fir'. i99b: A S?NOF= OF V0R'T;. 1. ,wSIiZON TO . AC.. 1C s� lOUT� ' v r. L -�.S TOLT.';G 3L;S S'cRVzC=. OVA to :CQ _ . ,.0 3I:S S Tr.G7S W ?= 1i c��v-TC�. • =HIS ?ORT 1ON • OF T-:. -$L Oc .:: ?gOPERT f. `/ER.{CE vL BER OF 3 U S a z -"N'SZRVICE DC;tR _ ..R. 125 TO 150 1 G : - w OVER. � . FORT:� r30V::w '�S :'• r. S OCOMBL�vcJCO -�+L=S, 1rOCiC'r: 1_R: - T R-NSrl-lON ?=Z r.�JD. EOR THE PERIOD OF 7"D E - MARCH !994 T'-iR U P RESEN'i: RYSON GLTNTi'= AyD CONS-RUC':ON CJ_s S?ni 0- CONS 1-RU 11O?v CO. THEY HAII-B 01%4-E I=- ,-m--- C 0 N S 1RUC 11OIr ' i 0 R.K 'ACES OF 7-0LZ�` _ FOR T;qE PERIOD OF TT1►fE . F73. 1994;-TpRrSEr'T: =.Z TR,1vS?ORT ATIO�+ CO. -.S .r ?- 4�: . S ?0Coclk` D(. : G :r::S ?=?.:OD OF i�ti�. T n— - - EST �O CO?��i.Z:0 C A Q.QY ON 7z-:E S"tiCE. TY?E OF 3L:S SERVICE.T,-*, =5 3c=�+ OPE ?QOP� - RAT:i1G ON Tl.-:is R: f FO R iz ?. c.=Bi Y:-QRS. i=. ✓N0 W WZS i: i 0 )IO141-E i::E.: Gam+:R.AL. OFcLC.=.S TO i.-=1S :CC-i:ON. . =: ' 7- j."4-'G * �C` CGNCRE%_ 3C. LD(�+G IWI L COt4� = _ - r. - '-_.=5 � CO:ti(3i�i.=t :iOry OF=iC =�J :OP _-�S �; c--L= i!. �S IT ._ i::E 2;-,.ST. SIN C:. 19�:;. i��'f ESTT%I�,T= i='.T !:.E SA,�t_. N V1►I13ER OF BUSES WILL 3E USED. .-%S H . TEAT BE LNG APPIQOXIL► S BEEN N ?AST. t i r�.Y 1� t;�7TS. T=BSc IS ARE OF= OF T-.--EXHIBIT Page -23 of 2 3 5 Pages EXHIBIT C • f yV FCST ,HcCOZY February 11, 1998 Hand-Delivered ,(r. iVfark Roberts City of Tigard Community Development Department 13125 S.W. Hall Blvd. Tigard, OR 97223 Re: Planning Commission Hearing as to Non-Conforming Uses at 11655 S-W.Pacific Highway,Tigard,OR Dear L1r. Roberts: In response to your request,we are enclosing fifteea(IS)sets of five(S)historic aerial photographs of the above-referenced site for your submission to the Tigard Planning Commission With your Staff Report. We expect this quantity will be sufficient to allow each Commissioner to have a set, one for the official record and several additional sets. You suggested we only needed to submit photos subsequent to 1987- about the time when the subject property was annexed into the City of Tigard's zoning scheme. We previously submitted photos to your office and RAZ Transportation that were taken in 1980, 1984, 1990. 1992 and two(2) from 1996. We omitted the 1980 photo and the oblique-angled 1996 photo that Showed only a portion of the subject property,but thought that some earlier history was educational so we kept the 1984 photo in the set. We also thought we should have a phcto taken as close as possible to when the property was annexed.The studio had an overhead photo from 1986 available. Accordingly,the sets which are enclosed each contain the photographs taken in 1984, 1936. 1990, 1992 and 1996. If anything else is needed from us, please let us know. We will attend and participate in the hearing on February 23, 1998. Sincerely, 66 Gregory H. Ba:6 Vice President& General Counsel enclosures • cc w/o encls: Jordan D. Schnitzer, Pres.. SF Property Investments. LLC Harold.J Schnitzer, PFes., Harsch Hugh D.Clark,VP, Harsch Larry G. Scruggs, PhD..CMP,VP, RAZ Transportation EXHIBIT James N.P. Hendryx,Tigard Community Development Director Pae C Jack L. Orchard, Jr., Ball Janik 2 Page 0 Northern Light Studio, Inc. 2407 SE Tenth Ave. Portland, OR 97214 (503) 236-2139 February 117 t 998 To Whom it ylay Concern: 14 Kimberly A. Solonka. declare as follows: 1. I am the office manager and custodian of the files for'Northern Light Studio, Inc. I have personally m dewed the business records of Northern Light Studio and thus have Personal knowledge of the matters stated in tiffs declaration and could and would testify competently thereto if called upon to do so. • '-• The aerial photographs listed below and attached are true and correct Photographic enlargements from the file negatives identified by the same numbers and maintained in the normal course of business Northern Light Studio, by gh Inc. According to all file records these photographs were taken on the specified date and were promptly and acC=tely recorded into our files and on the face of the negative as having been photographed on that specified date. 3. I also certify that the reproductions attached hereto have been prepared under my super vision from the original negative retained in our files. These negatives have neier been out of the possession ofvorthern Light Studio, Inc. or its predecessor Deano Photographics, Inc. and neither the negatives or the mlar2ements has been retouched or altered in any way. ' �. The aforementioned photograph is identified and dated as follows: PHOTO T: P092. 3-13CE P090 8-14CE P086 3-11 E P094 8-12E 96045-6CEA / I , A Sign ed�iL �►.�.��y..�_t��L C'�iLdC� Date - / 1 ' ei 1 Kimberly A. 90lonka EXHIBIT Page -M�W- 2 3 5 PageE EXHIBIT D h10S1(0WrM & THOMAS A*r—,0MEYS AT LAW !I 1 $:;I.=LL'MMA SL•I7 I= PowrLQD.oU=,97201 Christopher P. Thomas rasa Oq=7-1116 ?A7CCM=_30U Steven A. Moskowitz December 15, 1997 lames N.P. Headryx Community Development Direr= Cky of Tigard 13 L25 SW Hall Blvd. Tigard, OR 97223 Re: 11655 SW Pacific Ea0viay Der.' Nix. Hendryz: This =Proved is m response to your request for additional information are a number of a� �Q° App 28, 1997, for the ��g � non- above-refereuc ed fidaviu and a 1 g�T Property. Attached -""'Porting the City's prior decision. The main b asportation, which provide evidence Byn o7�aes the prior decision and r to�f this Misd� identities how the ammhed Y Inttvvducdon, I do wart continue the y Greg Baum in his two legs. can be further clarified. prociure in the hopes that that issue Procedure It remains unclear to me the spec iic Code provision under which occurng, Pnriousl this o designation for a py it� a•neighbor could not apply for anon-:orpifo is a,.c.orry ;.o mak: an a :d not In rh' 1 ;ou stated that: the Director hold z public hearing application; the Dirx,oc has the auchorito have the P tins the g to revoke prior a ry tanning Commission municipal court; and the pP�; the Director can cite violations of the Code into Director Pings has a duie: It tmPretations of the Code. Each of these applicant z ridence that may nt or respondent,may issue in diffm tit burdens of proof, different types of y be r,,.led uron, and ave:tues of appeal. It would be ,pod wiuc:•n of these applies in this instance. o to carry 1dy understanding of a Direc-tor's rote.-pretation is that it is not an regards a P�cular Property, although it obviously may have si01c�ble decision .EXHIBIT 1 °"'tie'' chooses to develop or use the pro scant impar; on how a proper Page of Percy. An inteiretation must be issued and may t_2.15 James N.P. Hendryx, 11655 SW Pacific Highway December 15, 1997 Page 2 appealed in 0 � specific*provisions within Chapter 18.32. Under utc:or may schedule a hearing on revocation of an underlying Chapter 18.24, the be canducted by the Panna ymg approval, which hearing would of a land g CatnaustiAn. Finally, there may be a provision for recansideration use approval; however, I have not found in the Code the exact basis or procedures for this. It scans that the current process is not in the nature of as eaforcetnent action revocation of an a or possible approval since, as stated below, the owner has bei using the property as approved by the City in its April 28, 1997 decsion. Consequently, I assume that this process invP�emmral Direcxes in=pretatioa which is not directly enforceable but which have n tie m some subsequau = Simon 18.32.310. Pig which �Y Pmt to decidoniia � of this ktres provides you e =supportive of the City's oag The City's Derision The City issuri its Apn7 28, 1997 Proposal to continae to use d�II°II(Decision) nn response to Raz Transportation's canclusiot was � Raz s portions of the property that were m� tb� �e �y's This union conclusion proposed use was cansisteat with the historical use of the was based in part on the funding that the attire site had been ProP�Y• ocher heavypmeat uses sinc- 1944 . Of caurse what is relevant in this utilized for bus or Property had been used since 1987 when it was matter is how the annexed to the C'ity.--ps the evidence attached iO this I==establishes, the eruire property as of the dace of annexation and since has been used to store, stag=, move,�and repair lar;e vehicles such as buses and hen Investme-zt has not provided substantial evidence to contradir. this. � �mDment. 'Harsca Evidence by Haisch Investment Tae clidmce submitted by F_arsch Investment with its November 20, 1997 letter consists Of Lhe :ollowing: 1- Aerial photograph dated 04/26/80. 2. Aerial photograph dated 07/01/84. • 3. Aerial photograph dated 07/15/90. 4. Aerial photograph dated 06/20/92. EXHIBIT Pae 21- o 7 tri' Pane • James N.P. Hendryz, 11655 SW Pacific Highway December 15, 1997 Page 3 5• Acrial photograph dated 03/28/96. 6. AMW photograph dated 07!22/96. 7• Affidavit of Amber Hubbard. As noted above, the amential dare is 1987, the year when the Mperty was Cithe � in a non-,,,fanning ase a a, is how ezed to the am 1egulaci teak effete. Thos, photographs of tfre arae being tted as of CL e. item numb= 1 and 2) are not re!==t to dig tion-�anP��y frOm 1980 and 1984 °meg use as of 1987. Several of the photographs Provide no level of nature and eztcit of detail from which one can qty oaturing on the Property. 'Mose are item numbers 4 throne the any case, the attached affidavits provide substantial evid� in support of the , 'h 6• In D qty,.s Decision. N Taus, the only re!==photograph is item However, the Pe;uasivea� of this ohfie:3, which was Mk= on July IS, 1990. has be= in=duced to establish g=-k is imdcmined by sever factors. No evidea� that the photograph =-reseals the on the property on a daily basis. In Mv= and Ment of activity 1z'�estme.1 fact, in the oaly sworn testimony Presented by '�h c, tris. Hubbard admits that sze facZe:i arfidavits that the holo � not at the Pma'ty in 1990. Additionally, the _ of acdviey on the ro P �h dces apt in fact represent tre nature and czteat P 'y during 1990 or any ottu~ elevant period: �rrliayir Of 4 mher v Yhhard 1►fs. Lubbard'; testimony is Leat she neve: saw Ve:dcles on the arm 'nearest HoLow ?�-rf line.' This testimony is substantial! t the Sle=y y retuned by the attached of idavits. Evidence by A-KA Properties and Raz Transportadon • As Presented in the original proposal from Raz Tr,--nsoormtion the be= c anenuaiiy used by a variety of nan�on i subject property has repair of various heavy vehicles. acZvi tzar Ames for the stagin;, storage, and including that portion now zoned R-12, e way Ww Md shell length of the per }, Apartments: all thy tO the fe.Zc.. abutting the Sleepy kollo, EXHIBIT Pae C 7 65 D-anc • James N.P. Hendryz, 11655 SW Pacific Highway December 15, 1997 Page 4 Mr. Kessler was Sec. tart-Treasurer of the Apollo Bus/'r Company during the period 19;9 to 1993. Dunn that and Touring 11655 S.W. Pacfic & wa g Pc-'iod' Apollo leased the Property at was a 24-hour gh Y, where it staged, repaired and maintained its fleet of vehicles. This . _Pa day, seven days per wtxlc operation. In addition to Apollo, bit. Kesslert'le 5Z eztcu of the companies used the property for thea heavy vehicles. This activity used cam Ies~ Of Property, �u&g all the way to the fence abutting the adjoining apar==E p Y, Kessler rebuts the infezraca drawn by Hirsch from the only relevant PhOOogtapft C=m nmaber 3). He Wsafies that the p ph does not reprt"seat the true natcre of acfiviti,es on the from the ProPMY, sin=toadng buses and=wcdon was g==Uy gone Prop�y wing the daytime. A L�5- dnyir AT T Onni. M _ Mr. Norris is President of Lomax During the plod of October 1993 throw h . 1997 omar Enterprises stored its.equipmeat and vehicles at the subject property. h stares that larve munb= of commcmal velitc.es way to the Line bordering S P� throughout the property, including all the g leepy Hollow. Lgx biz Kessler, Mr. Norris testifies that Lomar's equipment would have the property in the morning and generally rettaa late in the eveaiag. - A Tidayit of Dale :fir. Blair was present az the property as an employer of Rayson Construction during the PQOd Oc"robrr 1993 through mid-1997. He testifies that the commercial tenants of the property used the Mire est of the propaly for their velic;c, inc uding the Northernmost portion near the fe;t� nett to SIe_—.y HOE[ow. Like bit. Kessler and Mr. Norris, W. Blair testifies that these comme=al vehicles came and went during all hours of the day and that vehicles would ;eze-aily be away from the Property during the day when good weather prevailed, such as during the canditions shown in photograph item number 3. •• _avir ) nnald W Nall Mr- Hall was the prior ow=of the property, 5rom 1943 until its sale to AKA proveres in 1993. Mr. HaII testifies that the erre subject ProPar1 was continuously occupied and un' Med by trsc!ang, cansav,ction and tour bus co ooe. mPanies during that Period. He finther states that these 'reigns oc.�urred in ' y throughout the entire 5- acre `rcrthez:i ProOerrY, including the most Portion borde-ing the Sleepy hollow Apartments. EXHIBIT—L Page 3 c es Pce:nN.P. xezdryz, 11655 SW Pacific Highway be; 15, 1997 Page 5 Page I.GLt= of T n= i1►ir. Sc;ugh is Y= Pre:id -Ck)emtions for Raz Transporatim Mr. Scru Qs' le summarizes steps Raz has taltrn to addresscams of neighbors about the impar. of his Am y's ooeatioru, During the Past four months, Raz has held ft= neighborhood taee:in . to . C=C=:S, Raz has: dwOntimed the use of busts away from the North end of the lot; turned off lights backup ��' �� diesel ?'Zr- for the ' at the Noah end and arranged with m=nation of shrouds on those lights; repositioned Propane buses so that fumes are "0' dire~-.ed into acghborn' yam• and rgod&Med buses to eliminate vIlratio�I impa= on 6ag homes. Raz has also 11=ussed with nrsgl�the dation of Ltada+capiag to be'.te: st~= the Pedmetum.. of the property. Summary Zee City pay issued its original Decision, ne property has been cmidn all used u Zg the relevant non-conforming use period for the y 'c:ez. T'ais acdvirf has ocruoied the full a tt of of g e comme:e l -nc: abuttingPrpl y� inei�g all the way to the SleePy Eoltow. Raz Transportation has bem responsioly addressing neighbors' ate"= aboat light; noise, odor and vibration. Upon the = firmarjon of the City's Dersioa, Raz wa mntuuie those disassrions and Proceed with plans for Iandsc =g and bete:==:ang. On behalf of boat AKA Properdes and Raz T.,asaormdon, I rmVectfullY . r=!!Irm the City's.der cion to grant non-conforming fix =13, for the use of� �you Proposed by Raz T � ransporation. Thank you very much for your axt=tion to this matte+. V..y tiny yours,/1 tven A. Mos' wim Walt Aman, A:<A P-,==ties Lar,Y Sc'-U:V. Raz.Transportation "%-t'•ry Raz, Raz Transportation Paul Usher, City Attorney _ EXHIBIT Page 3-6-- c l AFFIDAVIT 4 State of Oregon County of-Multnomah j S'• AFFIDAVIT OF TUL,ES KESSLER E I I. Jules Kesler-' being am duly sworn, dqose and say: I I was Secrmary Treasure:of Apollo BmIrransPOrtaiion and Tom*ComPmy (Apollo)3 the period 1979 to 1993. In that marl I Was fully aware of all of dw company's ope_ *Ons. Apollo operated atransoo rmdm service that provided charter bus =-&-- and a touring 10 service, I I During the period of apProx�=M!Y rattuy 1979 Madl March 1993, Apollo leased the f PrOP=-,y locard at 11653 S. V. Pacac Mghway, During time X0110 used d= ; I: repair, and ffmh"in its flet of vehicles. Vehicles ==red and and were mainraind at that l i PrOPer rf 24 hours per day, 7 days per we:k ISI Prior to Apollo's operations, the pmp=y was also usedi ducmg this time by Elan Coaszzuc^.:on 16 Comm ay and Mellow Trucking Cly to �= their vehicles and scar: 17 Parts and to rerair, Vic. I personally obser-ie;.+ on a regular basis the folio _ wiag 1x'ng located on the prope-y, all;: 13 ; the way to the fent; theadjoining * luznba, track bodies. boars abnttmg l �went camplez: , taobuc r 19 homes. soar_ parts. and Embed truck. I :0 During the ope:arion of ADallo, `orJhw=Tours also use- the propery, with tl.+e `• ; of Some ground that would not supgor,the weight of the equipment when the ground was we,, .or the -Y-4 purposes of Staving vehicles, res . . .aumg chem. conve:.ag gym. and storing related carp 23 ' t?uIpmeIIt. '-' � I have viewd , . � the aerial photograph of the property on the back of wtuch is the date July 15. '-= 1550. I note that there were at the time itaS =wmk ;era, es at the site and none on that � - vehic: ;orwon ., . • _5 o 2 Dov= '- AFFIDAVrT OF 1UTLES ' L- � xosxowrz st rxorus t l I S.W.cawmaa,suite 1030 r Pafft L OR 9:.OI c5m=7.IIIt EXHIBIT Page 11 of i • I where grass is present. This representation does t ao in any way conflict with the use described above. '- Due to the nature of the business of wrutnic �n .ion, trucQ • ' ' and charter bus service, the .flees of j vehic:es were t ;enemy engaged during the day. Although the larger portion of the property was 41 either graded or otherwise removed of ve;:Mdon, the vehicles regularly used most of the grassy area!for r' ' and turning around. f 61 i DATED this� day of Dec..-tber, 1997 7 � i 9 State of Oregon ) Kessler I0 i County of MUlmomah) ) ss. II l= ' on this 1� i _. day of December, 1997, before me personally appeared Jules Kessler, knows . 1 to tae to be the person named in. and whose name is subscribed on the foregoing� � tng Affidavit and 14 i acknowledged that he executed the same as his free act � dcd• 15 ' 16 ; No Public for Oregon My Commission Expires: 17 ! I3 waN � :e� 19 ' oc AN s,.aoo, oF •_ `. `r e•:.�_ 20 yCT-AaY;4ZGCW �!-op I =6 ; I _7 Page- 2 - AFFIDAVIT OF TULES KESSI.ER I xosxowrrz s Tsoasas -)s itt S.W.ems• EXHIBIT tea,oe 97 (_�C3YL'7•i 116 page - n.2M- of Of AFFIDAVIT I, Lonnie Norris, do hereby assert the following facts based on my personal experience and knowledge and in my capacity as President of Lamar Enterprises. From the period of October, 1993 through March, 1997, Lamar Enterprises was a tenant at 1 1655 SW Pacific Highway. During that time, all Lamar Enterprises equipment and vehicles were stored at that address. In addition, I observed large numbers of other commercial vehicles, trucks, busses and various trailers and construction equipment as well as motor homes and passenger cars parked throughout the property. At no time was their any rhyme nor reason to the parking or driving arrangements, and vehicles were regularly parked in all areas of the property including the extreme Northern portion bordering Sleepy Hollow. In the course of business activities, Lamar employees and equipment would be started and leave the Pacific Highway property at all hours of the early morning. The vehicles and equipment would typically be gone all day during good weather conditions and frequently return very laze in the'evening. 1 observed these same levels of activity as concerned other vehicles and equipment on the . property. At no time during the period of Lamar's tenancy on the property was there any time period during which such activity was not apparent on the property. - . �/ — c Lonnie Norris Date State of Oregon, County of r. On this _ day of .I1 `, j 9 9 '7 before me,Jan Blair, a Notary Public, personally appeared Lonnie Norris, personally known to me to be the person whose name is subscribed to this Affidavit, and acknowledged that he voluntarily executed same. " My commission expires Jan Blair, Notary Public OFFICIAL SEAL J"Vr U 3"R NOTAAY PVBUC OREGON _ COMMISSION No.300= VY COMMISSION EXPIRES APR 13.Mal EXHI131— Page 44L 0 AFFIDAVI i Statement of 0ale Glair. 1. '.o a Glair, was present October at 11655 S*W Pacific High"an a daily basis from Rayson Cober of 1993 through mid-1997 as an employe-_ of and sub-contractor to nstruction. My observations of the business and vehicle activities present on the property are as follows: Numerous vehicles were Parked indiscriminately throughout the S acre property. on businesses. mail he Tenants of the property included tour Sus =meanies, numerous construction "cracor5, distribwuses and every a church! to addition. numerous.individuals rented parking space for motarhomes, boats. trailers and passenger cars at various times. Contractors also used the property to store all kinds of equipmem trailers. merchandise and salvage. vo specific parking or traffic pattern was enforced or observed on the prop". Tenanct were free to park throughout the prop Perry. Portion near the fence next to the Sleepy Hollow, mndudlru�the Northernmost weren o Obvious roadways. ��s.There were no property. tenants drHeyr� or parking Places in the Northern half of the cbser to the build ust parked wherever there was space. In general. the areas part of the were the preferred Parking areas • the vorchernmest veh es and roe" had the most variation in the number and arrangement of equipment. The number of vehicles present on the • daY and week to wetk du �OP�/'gid significantly from day to e to the transientnature of the tenants and the business acivities they pursued.Also, the number of vehicles Present on the site varied greatly From day to day as contra=rs :rad trucks and equipment an job sites whenever weather permitted-seriously reducing the number of out vehicles present during the day in good weather-and busses came and went on a consrant basis.While there was no reason to ke:P any kind of punt of the rrumcer of vehicies parked or taming and going. they were numerous - at least everal dozen. Cznc:actors and tour bus operators do not:bserm normal business hours. Throughout :he three plus years.vehicle acb.*at the Property took plats during all hours of the night and eariy morning. Susses returning as tate as 2:o0 Or ?:00 ASN and contractors Pulling out for jobs as early as 4'00 AIN Pretty much consisted of a round the ciccik level of ac:wiry U Ltie site. 7 nese conditions. whiievarying with time:f year and day existed pretty rnuc:r the same over the r.hretanC a half y' °f the t I wa e Present at Paaric Highway. years that was re . 01: .ale 31air Z—yl� date Subscribed to and executed before me on this• /C :e Multnomah County, Oregon. -ay°r . 1997 in i7 Jan 31air. votary Pu6iic tsMCLAL SEAL EXHIBIT Mfr commission ecires �S o/ a"eT sr 'L"p Page �1 R NCTAAY PUSUC CAEGCM AFFIDAVIT I, Oonald W. Hall, do hereby attest to the following facts-based on my personal knowledge. 1 ) I am the owner of the property 1 1655 SW Pacific Highway, and have been since 1943. The property was sold to Walter S. and Walter L . Aman in October of 1993. 2) The entire subject property has been continuously occupied and utilized by trucking, construction and tour bus companies since 1943. 3) In the normal operations of these tenants and users of the property, heavy equipment, trucks and busses have parked indiscriminately throughout the entire 5= acre property including the Northern most portion. 4) Operations including motor vehicle entrance and exit have occurred around the dock, seven days a week, in the normal course of events. S) There has never been, to my knowledge, any period of continuous time exceeding a few weeks during which the property was not occupied in this manner from 1943 to the present 6) The number of vehicles and pieces of equipment utilizing the property has varied from a few dozen to 100+ at various times over the fifty plus years. • U"onald W. Hall Dat Le State of Oregon, County of)7. 1J- On this _1/ day of , 19 '77 before me,Jan Blair, a Notary Public, personally appeared Donald W. Hall, personally known to me to be the Person whose name is subscribed to this Affidavit, and acknowledged that he voluntarily executed same. r �Blair, ,My commission expires��'Jan Notary Public os�+w�sus . �sr r sure MMAM N SON NQ 300223 • My COIW4MON EX PMU APR 13.2001 EXHIBI Pa o 15 Pag es UW A=�AMUEA, am TRANSPORTA710tt COMPANY 116W SW PAC FIC hWy, aOATUNO. CR 9TZ�.d6?g (SCJ)68,&J= f"ej 8.1-zu2•Z:YLr? (=)968-==•FAX December 111997 �,�� Steven-A. _Moskowitz, Attorney at Law Nloskowitz and T'nomas 111 SW Coh=bia, Suite 1080 Pordaad, OR 97201 Dire=ors Interpretation of No&Coaioriaiag Use for Raz Transportation Dear Steve: ror the past 4 months Raz Transportation has been wo caused by our use of the �3 with as neighbors to property at 11655 SW Pack H Tne fo110 feu the s,-=s we have taken to daze: ' a summary of • 1• Neighborhood meetings and indm ual complaim We have held 3 neighborhood meetings to�issues and concerns cqwessed h„our : born. T'nose complaints have falba into 4 general areas noise, fighting, odors, and hadavrm-ar.� each of which will be discussedbe�w. During the neighborhood meetings we and open dialogue which resulted is both sides developing an understanding of the aids of the other. Represeatamros tom the C'try of Tigard attended the last 2 33 and discussed the Options available to the neighbors. Both sides agreed not to hold another me--,g until the issue of not-conforming use has been resolved. Each individual complaint bas had an imtr=mIe rxonse since September. In most cases :.`:e iMornration wag given to allhltereved mole throagh Amber FIubbard, the rrna.Qe- of the Sleepy Hollow Apartments. - - No ise. Noise caused by backup ms alarand idling has leen the major concern of our aeighbors. In the past 4 months we have discontinued use of backup ajar= in the lot - =cept for the 6 schoo i buses which by law 11-ave to have a backup aIartn at all times. We • have reor;anized parking in the lot to piac_ the diesel buses 5rthe:away a-om L�e Vocth end of the lot. We have also met with our saes and drivers and trained diem in the re-d :or reducing noise in the lot. I have not received a complaint about noise in more than a month. EXHIBITA NP-SM � Page � of Steven A. Moskowitz • Directors Interpretation of Nonconforming Use for Raz Transportation 12-12-97. page 2 of 2 �. Lighting. Our neighbors were concerned about the brigbmess ofthe lights ai the North end of the :"mrd and one light in the middle whichwzs',istlie to he North end. We have turned off the lights at the North=d and:edire=ted the one light from the North end. We are also wo so thaz the bulb cannot be sem North end so that there will be no spu'!over t= the mea When th the lights r the tastalled these well be no ' When the shrouds are fight spillover into the Sleepy Hollow We well not turn the fights back on until the lights are f14 shrouded. 4• Odors. We bad several mstaa= where buses were parked too close to the North fence and the =hartst fttm,es blew into the a,cghbors 7ads We'nave repositioned the buses so that the PrOPam buss are about 140-158' from the back fe=and are the closest to our ae-3hbom Zee diesei buss are hrtb=away. These stqps should mitigate the co=== about odors 5. V ibrarions. We have bad several complaints about buss puicmg too c.ose to the apartments and viorations from the engine causing vibrations is the apu=g= We have repositioned the buses so that no bus is closer tbaa 100-150'to the aaaztateznt and have had no c omplah= about viorations siace October. We also discussed with our neighbors the possiouay of iastalImg a b== trees and shrubbery around the perimeter of the lot to nye the vistW izacac:of the lot, the equ# ent, fight& noise. and odors. However, we all amid at the!ase rhood meeting not to -,.again or Pursue this option ftuthr, caul the non-conforming �ise derision has been completed. Since ely, Raz T,-w=. ortation Lary G. Sc�rugas, Ph.D., C1AP Vice President• Ope.-anoms • EXHIBIT Page 0 EXHIBIT E • MOSKOWITZ & THOMAS RECEIVED ATTORNEYS AT LAW MAR 16 1-998 111 S.W.COLUMBIA SUITE I(M - PORTLAND.OREGON m201 CJ';a.AUfl1TY 0EVELCP!ILIT TELEPHONE I=227-1116 Christopher P. Thomas FAXI50307-3015 Steven A. Moskowitz March 12, 1998 City of Tigard Community Development 13125 SW Hall Boulevard Tigard, Oregon 97223 Re: Notice of Appeal Final Order No. 98-01 PC To the City of Tigard: In accordance with City Code Section 18.32.290 (B), Walter Aman, AKA Business Services, files this notice of appeal and provides the following information required by Section 18.32.340: 1• The decision to be appealed is Final Order No. 98-01 PC. 2. Walter Aman, AKA Business Services, appeared both orally and in writing before the Planning Commission at its February 23, 1998, meeting . a. As owner of the subject property, fir. Aman was entitled as of right to notice and hearing prior to the decision to be reviewed. b. Additionally, as owner of the subject property, ivlr. Arran's interests have been adversely affected as a result of the Planning Commission's decision to restrict current use on a portion of the property. • Grounds for the appeal are: a. The Planning Commission's decision was not based on substantial evidence in the record. b. The Planning Commission had no jurisdiction over the matter. EXHIBIT I Page e 7 '1^ D-%nnr • City of Tigard, Appeal of Final Order No. 98-01 PC March 12. 1998 Page c. The Planning Commission erred in its application of City Code Section 18.132.040 B. d. The burden of proof was erroneously placed on the property owner to show that there had been a continuing non-conforming use on the site. 4. The date of the filing of the final decision is unknown. However, the Notice of Final Order states that the decision shall be final on March 16, 1998 unless an appeal is filed. o Mr. Aman seeks to introduce additional evidence specifically addressing the designation of 200 feet as the appropriate terminus for the operation of commercial activity on the property. This is based on the unusual name of the proceeding before the Planning Commissioa. Although Mr. Aman is the property owner, he was not the applicant below. The Planning Director was. Consequently, Mr. Aman did not know until 5 working days before the hearing the exact nature of the requested action the Director would be making to the Planning Commission. This did not provide Mr. Aman adequate time to assemble the necessary evidence to establish that. if commercial activity was going to be precluded from a portion of the property, 200 feet from the property line was not an appropriate or reasonable designation. • EnclosedIease find ind a check in the amount of 51,745.00 as the appeal fee. Thank you very much for your attention to this matter. Very truly yours. Stevr. Lowitz cc Walt Aman Larry Scruggs, Raz Transportation i EXHIBI Page r) 'I<Dane