The URL can be used to link to this page

10/18/2010 - Packet .z. Completeness Review rIGAIZD for Boards, Commissions and Committee Records CITY OF TIGARD Planning Commission Name of Board, Commission or Committee io --tg - 0 / o. Date of Meeting I have verified these documents are a complete copy of the official record. Doreen Laughlin Print Name Signature. 8-17-11 Date City of Tigard m .7 E d Planning Commission Agenda TIGARD MEETING DATE: October 18, 2010; 7:00 p.m. MEETING LOCATION: City of Tigard—Town Hall 13125 SW Hall Blvd.,Tigard, OR 97223 1. CALL TO ORDER 7:00 p.m. 2. ROLL CALL 7:00 p.m. 3. COMMUNICATIONS—7:02 p.m. 4. CONSIDER MINUTES 7:04 p.m. 5. PUBLIC HEARING— CONTINUED FROM 8/16/10 —7:05 p.m. COMPREHENSIVE PLAN AMENDMENT (CPA) 2009-00004/SENSITIVE LANDS REVIEW (SLR) 2009-00004/SENSITIVE LANDS REVIEW(SLR) 2009-00005/ADJUSTMENT (VAR) 2010-00002-WALL STREET EXTENSION (FIELDS) REQUEST: The applicant is requesting amendments to the Comprehensive Plan to remove Goal 5 protection from Tigard Significant Wetlands and the riparian corridor surrounding Fanno Creek in order to extend Wall Street across City of Tigard property and Fanno Creek to his property. Sensitive Lands Review is required for proposed work within the 100-year floodplain and wetlands. The applicant is requesting an adjustment to the street improvement standards in order to construct a narrower street section than required by code. Tree removal permits to remove trees within the sensitive lands were submitted under a separate application. LOCATION: Washington County Tax Assessor's Map 2S102DA,Tax Lot 690. Washington County Tax Assessor's Map 2S102DD,Tax Lot 100. 13560 SW Hall Blvd.,Washington County Tax Assessor's Map 2S102DD,Tax Lot 200. 6. OTHER BUSINESS — 9:00 p.m. 7. ADJOURNMENT— 9:10 p.m. PLANNING COMMISSION AGENDA— OCTOBER 18, 2010 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 1 of1 1s .,' City of Tigard MEMORANDUM TIGARD TO: Tigard Planning Commission FROM: Cheryl Caines,Associate Planner RE: Fields Wall Street Extension DATE: October 8, 2010 INTRODUCTION A significant amount of evidence and information was submitted at and following the August 16, 2010 public hearing on the proposed Wall Street extension. Staff has prepared an addendum to the original Staff Report that addresses issues raised since the issuance of that report. Not all applicable criteria are re-addressed, only those needing additional findings or clarification. The findings within the original staff report are not being replaced, and Staff is still recommending that the Planning Commission recommend denial of all four applications associated with the proposal. 10-8-10 PLANNING COMMISSION PACKET This packet contains the Addendum to the Staff Report and an article from the Oregonian submitted to the file by Commissioner Muldoon before the September 24th submittal deadline. There are no attachments to the addendum since it only refers to items already submitted into the record. All of these items have been forwarded to the Commissioners on compact discs. ORGANIZATION OF THE STAFF REPORT ADDENDUM Section III of the addendum outlines the report layout and other key information to be noted (pages 2 & 3). This section also provides a brief history of what happened during the public hearing, lists the submittal deadlines for information following the hearing, and a summarizes what was submitted to the record on each of those deadlines (pages 3-5). Sections IV and V outline legal and code related issues that were raised throughout this process (pages 5 & 6). The legal issues relate to agreements between the City and the applicant regarding purchase of the library property,previous land use decisions, and the 2002 Transportation System Plan. There is an explanation of how these legal issues should be considered in the Planning Commission's recommendation. Please also note that a new"pivot road"plan was submitted by the applicant during the new evidence phase. Staff views this as part of the alternative analysis only and not an approvable plan due to its impact on the library access. An explanation is found on page 6 of the report. A staff analysis of the code related items follows in section VI (pages 7-18). Page 1 APPLICATIONS The application consists of four concurrent land use requests as follows: 1. A Comprehensive Plan amendment to remove Goal 5 protection from Fanno Creek's significant wetlands; 2. Sensitive lands review to do work in the Fanno Creek Wetland to construct the proposed Wall Street extension, 3. Sensitive lands review to do work in the Fanno Creek flood plain to construct the proposed Wall Street extension, and 4. An adjustment to the Tigard Development Code (TDC) street improvement standards to construct Wall Street to a narrower section than allowed by the TDC. CONCLUSION: After considering the applicant's responses and new information submitted to the record, Staff has found that the applicable criteria have not been satisfied;including those related to work within the floodplain, removal of the Goal 5 protection for and work within the Tigard significant wetlands, adjustment to street standards,related Comprehensive Plan goals, Statewide Planning Goals, and Metro standards. Page 2 Agenda Item: Hearing Date: October 18,2010 Time: 7:00 PM ipii ADDENDUM TO THE STAFF REPORT TO THE PLANNING COMMISSION FOR THE CITY OF TIGARD 5 OREGON 120 DAYS = NA SECTION I. APPLICATION SUMMARY FILE NAME: FIELDS WALL STREET EXTENSION FILE NOS.: Comprehensive Plan Amendment(CPA) CPA2009-00004 Sensitive Lands Review (SLR) SLR2009-00004 Sensitive Lands Review LR ) SLR2009-00005 Adjustment(VAR) VAR2010-00002 PROPOSAL: The applicant is requesting concurrent recommendations of approval by the Tigard Planning Commission of four separate actions: 1) an amendment to the Comprehensive Plan to remove Goal 5 protection from Tigard Significant Wetlands and the riparian corridor surrounding Fanno Creek in order to extend Wall Street across City of Tigard property and Fanno Creek to his property, 2) two Sensitive Lands Review permits for proposed work within the 100-year floodplain and wetlands, and 3)an adjustment to the street improvement standards in order to construct a narrower street section than required by code. Tree removal permits to remove trees within the sensitive lands were submitted under a separate application (TRE2010-00002). APPLICANT: Fred Fields APPLICANT'S Group Mackenzie 1149 SW Davenport Avenue REP.: Attn: Rhys Konrad Portland, OR 97201 P.O.Box 4310 Portland, OR 97293 APPLICANT'S Miller Nash L.L.P. PROPERTY Same as applicant. REP.: Phil Grillo OWNER 1: 3400 U.S. Bancorp Tower 111 SW Fifth Ave. Portland, OR 97204 PROPERTY *City of Tigard PROPETY Aslak Eikram OWNER 2: 13125 SW Hall Blvd. OWNER 3: by John O. Hayhurst Tigard, OR 97223 7805 SW Edgewater East *Owner has not signed application Wilsonville, OR 97070 LOCATION: No address,Washington County Tax Assessor's Map 2S102DA,Tax Lot 690. No address, Washington County Tax Assessor's Map 2S102DD,Tax Lot 100. 13560 SW Hall Blvd., Washington County Tax Assessor's Map 2S102DD, Tax Lot 200. No address,Washington County Tax Assessor's Map 2S10100,Tax Lot 1200. STAFF REPORT ADDENDUM TO TILE PLANNING COMMISSION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/FIELDS WALL STREET COMPREHENSIVE PLAN AMENDMENT PAGE 1 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE LANDS REVIEW ZONE: R-12: Medium-Density Residential District. The R-12 zoning district is designed to accommodate a full range of housing types at a minimum lot size of 3,050 square feet. A wide range of civic and institutional uses are also permitted conditionally. R-25: Medium High-Density Residential District. The R-25 zoning district is designed to accommodate existing housing of all types and new attached single-family and multi-family housing units at a minimum lot size of 1,480 square feet. A limited amount of neighborhood commercial uses is permitted outright and a wide range of civic and institutional uses are permitted conditionally. COMP PLAN: Medium Density Residential and Medium High Density Residential. APPLICABLE REVIEW CRITERIA: Community Development Code Chapters: 18.370-Variances and Adjustments, 18.380-Zoning Map and Text Amendments, 18.390-Decision- Making Procedures, 18.510-Residential Zoning Districts, 18.745-Landscaping and Screening, 18.775-Sensitive Lands Review, 18.790-Tree Removal, 18.810- Streets and Utility Improvement Standards; Tigard Comprehensive Plan Goals: 1-Citizen Involvement, 2-Land Use Planning, 5-Natural Resources and Historic Areas, 6-Environmental Quality, 7-Hazards, 8-Parks, Trails and Open Space, 11-Public Facilities, & 12-Transportation; Tigard Municipal Code Chapter 9 - Parks, Metro Functional Plan Titles 3 (Water Quality and Flood Management) & 13 (Nature in Neighborhoods), and Statewide Planning Goals 1-Citizen Involvement, 2-Land Use Planning, 5-Natural Resources, Scenic and Historic Areas and Open Spaces, 6-Air, Water and Land Resources Quality, 7-Areas Subject to Natural Hazards, 11-Public Facilities and Services,and 12-Transportation. SECTION II. STAFF RECOMMENDATION Staff recommends that the Planning Commission recommend DENIAL of the proposed Comprehensive Plan Amendment, Sensitive Lands Review,and Adjustment to the City Council. SECTION III. BACKGROUND INFORMATION Purpose The purpose of this addendum is to address issues raised by the applicant and members of the public at the August 16, 2010 public hearing and submittals to the record following that same hearing. Layout The layout of this addendum strives to follow that of the original Staff Report (August 9, 2010) and includes the following information: • A history following the original Staff Report has been included as part of the background information. This history includes topics of discussion at the August 16th hearing and an outline of the deadlines for submittals to the record. • A description of the materials submitted to the record for each of the deadlines. • An outline of issues addressed within this addendum. The issues are broken down into two categories: legal issues and code related issues. The code issues are either "new" (raised by submittals following the August 16th public hearing) or "previously addressed" (those concerns already addressed in the original Staff Report and at the August 1611 public hearing). STAFF REPORT ADDENDUM TO THE PLANNING COMMISSION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/FIELDS WALL STREET COMPREHENSIVE PLAN AMENDMENT PAGE 2 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE LANDS REVIEW • Staffs analysis of the materials and information submitted since the issuance of the original Staff Report. • Sun-inlay/Conclusion. Other information to note: • Staff refers to numbered items within this addendum. These correspond to the numbering system used within the City's electronic version of the record and the CDs distributed to Planning Commissioners throughout this process. • The findings within this addendum are in addition to those in the original Staff Report and are not a replacement for the original findings. • Not every review criterion is re-addressed within this addendum. Additional findings were added to address new information submitted to the record and some of the applicant's 96 responses to the original Staff Report findings. • The staff analysis section includes the relevant code criteria, Staffs original findings, the applicant's response, and additional findings for each criterion being re-addressed. For ease of reading, the applicant's response is in italics and additional staff findings are highlighted. • The applicant states that certain criteria can be met as conditioned through an approval. Because Staff is recommending denial of this proposal, conditions of approval are not addressed for items such as construction details, Public Works Director approval for tree removal/planting on City property,revised Clean Water Services letter, etc.). History (following original Staff Report) Public Hearing: A public hearing was held on August 16, 2010 with the Tigard Planning Commission to review the proposal and make recommendation to the Tigard City Council on the current Wall Street application. The staff report was presented by Staff and the applicant also gave a presentation on the application. Public testimony was taken,including written testimony. There was one proponent and nine opponents who testified. The Planning Commission asked many questions of the applicant and staff following the presentations and applicant rebuttal. The discussions and questions revolved around the following issues: • Railroad Crossing — the proposed plan is designed for an at-grade crossing and not an elevated RR crossing. • Environmental, Social, Economic, Energy Analysis (ESEE) —what are the long term impacts? It is an insufficient analysis. Goal 5 is important to people. • Milton Court as alternative—applicant states that analysis of an alternative is not required due to the alternatives analysis completes as part of Phase I, but Commissioner Verinilyea said it would be helpful as part of the package. • Endangered Species Act — are there endangered or threatened species on-site and would an Environmental Impact Statement(EIS) be required? • Changes since Phase I—there have been many changes since the assessments were done for Phase I, including the zoning. These changes do not seem to be addressed. • It was strongly suggested that the applicant give alternatives to this alignment and access to the property, put in information or consider withdrawing the application and take an alternative approach. Are there other options than those pointed out by staff? Please get a copy of the draft TSP (TSP 2035) to meet the current desires of the community because the TSP has changed in relation to the extension of Wall Street. The applicant replied that a proposal must be based on some set of static information (take a snapshot somewhere in time). Mr. Grillo stated that numbers on the longer bridge span could be provided. • A poll was taken of the Commissioners about what they'd like to see addressed by the applicant: ➢ Application to reflect the changed circumstances rather than rehashing the submittal • components for phase 1 which is considerably dated ➢ Talk to the railroad ➢ Consider the changes in zoning ➢ Flexibility—supply alternatives and options ➢ Examine Milton Court more carefully ➢ Report on possible adverse impacts to natural resources ➢ Address the issues raised within the Staff Report. STAFF REPORT ADDENDUM TO THE PLANNING COMMISSION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/FIELDS WALL STREET COMPREHENSIVE PLAN AMENDMENT PAGE 3 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE LANDS REVIEW Y Seismic requirements for the bridge Respond to places within the staff report that they say insufficient information—provide the information or why that's not necessary The public hearing was not closed and the following schedule was agreed upon by all parties: ® Sept. 10th—Deadline for any new evidence submitted by any party. i Sept. 17th—An opportunity for any parties to submit rebuttal evidence to that which was just submitted. Not new evidence, but rebuttal evidence. i Sept. 24th—Any party may submit rebuttal arguments to the rebuttal evidence that was submitted the week prior. ® Oct. 8th— The staff report will be issued. It is hoped the staff report will not contain any new evidence and will only contain analysis and recommendations. If it contains new evidence, any party has the right to potentially rebut that.At this point,the City Attorney interjected"For the record,any arrangement we make, that scenario is going to play out." • Oct. 18th—The Planning Commission will convene for the continued public hearing and there will be no new evidence or argument and the Planning Commission will deliberate and be able to ask questions of staff and the applicant. Items Submitted to the Record: August 16, 2010 At the August 16, 2010 public hearing the applicant submitted several items for the Planning Commission's review. These included a memo from Group McKenzie addressing all 96 findings from the original Staff Report, a submittal which shows cuts on City property to balance proposed fill for the bridge construction, a letter responding to Oregon Department of Fish and Wildlife comments, and a letter to the City regarding legal issues. Electronic copies (compact disc) of all items submitted at the public hearing along with the draft meeting minutes were sent to the Planning Commission August 24,2010. September 10, 2010 Staff, the applicant, and members of the public all submitted information and new evidence into the record for the September 10th deadline. Electronic copies of this information were sent to the Planning Commissioners on September 13, 2010. Staffs submittal included chapters 2 and 8 from the Tigard 2002 Transportation System Plan (TSP), arsenic contamination information for the Tigard library site, a 1993 Director's Interpretation summary regarding fill within residential floodplain,and a zoning map and plans for the Fanno Creek Trail pedestrian bridge installed on City property north of the library. The applicant submitted a Milton Court alternative analysis, a new plan showing a Pivot Road option for Wall Street including proposed cuts on the applicant's property), evidence to support that an Environmental Impact Study (EIS) is not necessary for this project and a memo from the applicant's engineer regarding bridge seismic issues. Over 60 comments were received from members of the ublic. Some had testified at the August 16, 2010 public hearing. The letters and e-mails touched on a wide range of topics. Many, but not all, of the letters had reoccurring themes that included: not removing the Goal 5 protection for the wetlands, disturbance to wildlife and their habitat/destruction of restored wetlands, increased traffic and trail safety, requested the property be purchased and preserved, loss of green space and quality of life,loss in property values, flooding issues,new housing is not needed,lack of public notice,and construction of a"bridge to nowhere". September 17,2010 Staff submitted a signed copy of the 1993 Director's Interpretation regarding fill within residential floodplain and a map showing the 1996 flood inundation for the Milton Court area. Five public comment letters were received. The writers addressed the applicant's new Pivot Road lan saying it is a significant change and noted fallacies in the applicant's analysis of Milton Court as an inferior alternative access to Wall Street. In addition, several commented on the City's previous agreements with the applicant,Mr. Fields, by stating that no special favors are owed to the applicant and that the City also has an obligation to its citizens to act in a reasonable manner and not contrary to the public interest. STAFF REPORT ADDENDUM TO TILE PLANNING COMMISSION OCTOBER 18,2010 PUBLIC 1-TEARING CPA2009-00004/FIELDS WALL STREET COMPREIIENSIVE PLAN AMENDMENT PAGE 4 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE LANDS REVIEW Electronic copies of these submittals were forwarded to the Planning Commission along with correspondence from the file (two letters). The first letter is addressed to the City from Dennis Griffin, Ph.D., at the Oregon Parks and Recreation Department stating that a cultural resource survey must be conducted on-site prior to proposed and future development due to archaeological sites being reported within adjacent lands. The second letter is addressed to the applicant's representative, Phil Grillo, from the City outlining the City's concerns about the new Pivot Road plan submitted on September 10,2010. September 24, 2010 The only item submitted to the record was a news article from The Oregonian, "Landowner, Tigard at Odds Over Wetland." This article was submitted to the record by Commissioner Muldoon. A copy of this article has been forwarded as part of this Planning Commission packet. SECTION IV. LEGAL ISSUES At the hearing and in written submittals,the applicant made direct references to the following items. 1) The Purchase and Sale Agreement ("PSA") entered into between the City and the applicant in 2001; 2) The City approval of Phase I of the construction of Wall Street; 3) The inclusion of a connection from Hall Boulevard to Hunziker Street in the City Transportation System Plan ("TSP"); and 4) The City approval of the Fanno Creek Trail foot bridge (SLR2009-00002). The applicant has indicated that particular weight be given to each of these items in the determination of this application, and at the very least implied that as a result of the City's prior actions as related to the above items, the Planning Commission may in some way be obliged to decide various issues in favor of the applicant. Accordingly, staff has consulted with the City Attorney with regards to the nature of any precedential or other consideration that the Planning Commission must give these items. The response of the City attorney is summarized below. • The PSA does not obligate or allow the Planning Commission to base its recommendation on anything other than an unbiased determination of whether the proposed development is consistent with all applicable comprehensive plan and Tigard Community Development Code (TDC) criteria. • The City's TSP includes local street connectivity between Hall Blvd. and Hunziker St. as well as between Milton Ct. and Hall Blvd. (TSP Figure 8-12). Such inclusion does not affect the criteria applicable to the current request to amend the City's Goal 5 analysis. The applicant must comply with TDC 18.775.130 in its entirety. • The City's approval of the construction of a portion of Wall Street to access the library property does not establish that the applicant is entitled develop the Wall Street extension in the currently proposed alignment. • The City's approval of the Fanno Creek Trail foot bridge does not establish, as the applicant contends, that the development proposed within the floodplain constitutes public support facilities. SECTION V. CODE RELATED ISSUES From the hearing and subsequent submittals, a few new issues arose and new information was submitted by the applicant to address issues raised within the original staff report. This section will outline and address some of the issues not directly related to code requirements, policies,goals and standards. An analysis of the new information based on approval criteria will follow under Section VI of this report. STAFF REPORT ADDENDUM TO PLANNING COMMISSION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/FIELDS WALL STREI3T COMPREHENSIVE PLAN AMENDMENT PAGE 5 OF 20 SLR2009-00004&SLR2009-00005 SINSI"I11V LANDS REVIEW New Issues: Many of the new issues were raised by members of the public. These include questions on whether adequate notification was provided by the City and social impacts of removing the Goal 5 protection from the on-site resources. The introduction of a new plan (pivot road) was seen as an issue by Staff and the public, who noted inadequate opportunity for public review/comment. Staff's Response to the Pivot Road Alternative On September 10, 2010, the applicant submitted a plan showing a revised alignment and design for the Wall Street extension. As noted in a letter (#40) to Phil Grillo from Ron Bunch, Community Development Director, Mr. Bunch has "significant concerns about the implications that the pivot road is an option for either the Planning Commission or City Council" to consider and that "if this is the case, then it likely constitutes a significant change" to the application. The letter was written as an opportunity for the applicant to withdraw the new materials, The applicant has requested a pre-application conference with Staff regarding the pivot road proposal following a conversation about this plan with Mr. Bunch on September 15, 2010; however, the applicant has not withdrawn the plan or indicated how they wish it to be considered within the existing application. Staff will continue to process the current application and consider the pivot road plan as new evidence related to the alternatives analysis. City Council will be the review body to make the determination on the "significant change"issue as outlined in TDC 18.390.080.D.4. Previously Raised Issues: The following issues were raised within the original Staff Report. Staff has completed analysis of the additional/new information submitted regarding these issues. Variances and Adjustments • The applicant did not provide facts about what adverse impacts to the natural resources would be avoided by a narrower bridge deck. Sensitive Lands Wetlands • An Economic, Social, Environmental, Energy Analysis (ESEE) is required to show that the Goal 5 protection should be removed from the Tigard Significant wetland to construct the extension of Wall Street. The applicant's analysis fails to show that the positive economic impact outweighs the adverse impacts to the resource. • Alternatives to the 320-foot bridge span that may avoid or have less impact upon natural resources were explored showing that there may be alternatives to the proposed location and bridge design. Floodplain • Land form alterations (any man-made change to improved or unimproved real estate) are only allowed within 100-year floodplain in areas designated as commercial and industrial on the Comprehensive Plan land use map, except that alterations or development associated with community recreation uses, utilities, or public support facilities are allowed. The proposal is not associated with any of these three uses. • The Tigard Community DeveloPment Code (TDC) requires no increase in the water surface elevation of the 100-year floodplain due to land form alteration or development. Compliance with this standard has not been demonstrated by the applicant. Street and Utility Improvements • A temporary turnaround has not been-proposed but is necessary to meet city standards. • It is unknown if the design of the bridge could accommodate utilities that will be above the floodplain or resistant to flood damage. Statewide Planning Goals • The applicable goals related to environmental quality, hazards, parks, recreation, trails and open space, and public facilities and services are not satisfied as noted in the original Staff Report. The applicant has not met the burden of proof for many of the development and municipal code standards that implement these goals. STAFF REPORT ADDENDUM TO THE PLANNING COMMISSION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/FIELDS WALL STREET COMPREHENSIVE PLAN AMENDMENT PAGE 6 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE LANDS REVIEW SECTION III. STAFF ANALYSIS Variances and Adjustments (18.370) Adjustments for street improvement requirements (Chapter 18.810). By means of a Type II procedure, as governed by Section 18.390.040, the Director shall approve, approve with conditions, or deny a request for an adjustment to the street improvement requirements, based on findings that the following criterion is satisfied: Strict application of the standards will result in an unacceptably adverse impact on existing development, on the proposed development, or on natural features such as wetlands, bodies of water, significant habitat areas, steep slopes or existing mature trees. In approving an adjustment to the standards, the Director shall determine that the potential adverse impacts exceed the public benefits of strict application of the standards. FINDINGS: The applicant has requested an adjustment to the street improvement requirements to construct a narrower street section by eliminating the planter strips on the bridge portion of Wall Street. The applicant must show how the wider street results in unacceptable adverse impacts on existing or proposed development or natural features and how these impacts exceed the public benefit of strict application of the standards. The following reasons are listed by the applicant for the requested adjustment: strict application would result in additional wetland and vegetated corridor impacts, inconsistency with the proposed location of Wall Street that has been reviewed within the submitted material and inconsistency with a previously approved (Joint Fill) permit. In addition, the applicant states that the adjustment does not impact the public benefit as the proposed street extension will still provide vehicular, pedestrian and bicycle access. The Joint Fill permit referenced by the applicant is now expired and is no longer valid. The applicant has provided inadequate facts for Staff to evaluate this request. No evidence is proposed to support the applicant's assertion that unacceptably adverse impacts on the natural areas will result from a wider bridge deck. Nor has the applicant explained the nature and character of any such impacts and how the impacts are unacceptable. Applicant's Re.ponse: Stall's statement summarizes information related to the requested adjustment of the bridge section of Wall Street. The applicant's response to this criterion can be found on pages 3840 in our October 3, 2009, materials. To further demonstrate compliance with this criterion additional information is provided. The location of this extension has already been decided upon in two ways;the first is with the adoption of the TSP, and the second is through the alternatives analysis approved with Phase I. Further;five different bridge lengths have also been considered and the proposed 320-foot length identified as the preferred alternative.As listed on page 9 of Exhibit K on the October 3, 2009, submittal, the bridge section associated with the preferred alternative is reduced and eliminates the planter strip. The reduction of the bridge width to remove the planter strip eliminates unacceptable adverse impacts to wetlands,floodplain, significant habitat areas, and mature trees. On page 10 of 32 of the Phase I decision (Exhibit G), Tigard found that "In addition to selecting the most feasible and least impacting road alignment, impacts are fiddlier reduced by removing much of the planter strip along the south side of the road to maintain as great a distance as possible from the resource."Our request in Phase II is similar,provides a public benefit in the same way it did in Phase I, by eliminating the planter strip fivm the bridge section to maintain the greatest distance possible_from the resource. This criterion is met. ADDITIONAL FINDINGS: As noted in the original Staff Report, the applicant has not provided information explaining the impacts of a wider bridge deck on the natural areas and how these impacts are unacceptable. The criteria to justify an adjustment to the street improvement standards have not been met. Decision Making Procedures (18.390) D. Notice of hearing. 1. Required hearings. Two hearings, one before the Commission and one before the Council, are required for all Type IV actions, except annexations where only a hearing by the City Council is required. 2. Notification requirements. Notice of the public hearings for the request shall be given by the STAFF REPORT ADDENDUM TO THE PLANNING COMMISSION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/FIEIDS WALL STREET COMPREHENSIVE PLAN AMENDMENT PAGE 7 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE LANDS REVIEW Director in the following manner: a. At least 10 days prior to the scheduled hearing date, notice shall be sent to: (1) The applicant; (2) Any affected governmental agency; (3) Any City-recognized neighborhood group whose boundaries include the site; and (4) Any person who requests notice in writing and pays a fee established by Council resolution. b. At least 10 business days prior to the scheduled public hearing date, notice shall be given in a newspaper of general circulation in the City. c. The Director shall: (1) For each mailing of notice, cause an affidavit of mailing to be filed and made a part of the record as provided by Subsection D.2.a; and (2) For each published notice, cause an affidavit of publication to be filed and made part of the record as provided by Subsection D.2.b. 3. Content of notice. The notice given to persons entitled to mailed or published notice pursuant to this section shall include the following information: a. The number and title of the file containing the application and the address and telephone number of the Director's office where additional information can be obtained; b. A description of the location of the proposal reasonably calculated to give notice as to the location of the affected geographic area; c. A description of the substance of the proposal in sufficient detail for people to determine that a change is contemplated and the place where all relevant materials and information may be obtained or reviewed; d. The time(s), place(s), and date(s) of the public hearing(s); a statement that public oral or written testimony is invited; and a statement that the hearing will be held under this title and rules of procedure adopted by the Council and available at City Hall or the rules of procedure set forth in Section 18.390.060.E; e. Each mailed notice required by this section of the ordinance shall contain the following statement: "Notice to mortgagee, lienholder,vendor, or seller: The Tigard Development Code requires that if you receive this notice it shall be promptly forwarded to the purchaser." 4. Failure to receive notice. The failure of any person to receive notice as required under Subsections B and C of this section shall not invalidate the action, providing: a. Personal notice is deemed given where the notice is deposited with the United States Postal Service; b. Published notice is deemed given on the date it is published. Removal of Goal 5 protection from significant wetlands is a quasi-judicial Comprehensive Plan Review under a Type IV procedure. Two public hearings are held (one before the Planning Commission and the second before the City Council) at which an opportunity for public input is provided. The City has mailed notice of the Planning Commission hearing to pro?erty owners within 500 feet and persons who have requested to be on. A request for comments was mailed to affected agencies, including Department of Land Conservation and Development. The City published notice of the Planning Commission hearing in the Tigard-Tualatin Times Quly 29, 2010). After the final Planning Commission public hearing, additional notice will be published prior to the City Council hearing. Although not required by code, a notice of the Planning Commission hearing was posted on the library site (at the end of Wall Street) one week prior to the hearing on August 9, 2010. The notification requirements have been met. Sensitive Lands Review (18.775) 18.775.040 General Provisions for Floodplain Areas Water Supply Systems: All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of floodwater into the system. FINDINGS: The applicant states that the roadway extension does not include water supply systems. One way to supply water to the site for future development is on the bridge. It is unknown if the current bridge design will accommodate a future water supply system, or if the system can be designed to minimize or eliminate infiltration of floodwater if below the flood elevation level. STAFF REPORT ADDENDUM TO THE PLANNING COMMISSION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/1IELDS WALL STREET COMPREHENSIVE PLAN. IENDMENT PAGE 8 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE LANDS REVIEW Applicants Response. This criterion does not apply at this time, because no water supply systems are proposed. Future development will address the extension of utilities. It should be noted, however, that Sheet R2.3 shows the potential location of a waterline. As it relates to utilities for future development, these would be proposed to be affixed to side or bottom of the bridge structure in design, or dependent on the selection of bridge type and with concurrence of the City,penetrate the structure itself. In all these cases, the utility would be at an elevation above the base flood elevation over the length of the bridge. Outside of the structure, the pipes would be buried per typical construction, and at a typical bury depth of 3 feet,pipes may only be at or below the base flood elevation and within the floodplain limits for approximately 150 feet beyond the east end of the bridge. As determined by design,piping could be anchored to prevent di.iplacement. Typical means would consist of concrete collars or metal anchors fixed more deeply into the soil. This criterion can therefore be met in the future, when anticipated utilities are added to the bridge. These drawings show that it is leasible to meet this criterion. ADDITIONAL FINDINGS: A provision for extending water service across with the bridge needs to be incorporated into the project design for the structure. The applicant states that the criterion does not apply. However,it does in that it must be incorporated into the design to ensure that the line is placed properly and is protected from flood damage. The location and method of integration needs to be more fully developed. This standard is not met. 18.775.070 Sensitive Lands Permits Within the 100-year floodplain. The Hearings Officer shall approve, approve with conditions or deny an application request within the 100-year floodplain based upon findings that all of the following criteria have been satisfied: Land form alterations shall preserve or enhance the floodplain storage function and maintenance of the zero-foot rise floodway shall not result in any encroachments, including fill, new construction, substantial improvements and other development unless certified by a registered professional engineer that the encroachment will not result in any increase in flood levels during the base flood discharge; FINDINGS: The applicant states that OBEC Consulting Engineers/West Consultants were retained by the City previously to analyze hydraulic impacts of bridge alternatives (applicant's Exhibit K). This analysis was done as part of a 2002 City -proposal to cross Fanno Creek. The applicant states that the analysis concludes that a 320-foot bricge will sban the floodway and would meet City/FEMA requirements related to no rise with a balance of eartawork volumes. Because this report did not directly address the requirements of 18.775.070, a memorandum was prepared by Matt Butts, a P.E. with Group MacKenzie. Mr. Butts speaks to the City's zero-foot rise requirement by stating that the net fill due to Phase 2 is approximately 1,069 CY, and that there are excavation areas within the project vicinity to satisfy the needed cut volumes to preserve floodplain storage. These areas of storage are not shown, and the applicant has not provided the necessary information to reach positive findings on zero-rise. This criterion is not satisfied. Applicants Response: This criterion is addressed on pages 19-20 of the submittal dated October 3, 2009. We also offer the following clarification. First, the areas where flood storage can be added to mitigate for impacts related to the proposed construction are detailed in our October 3, 2009, submittal. After extensive discussions with staff, staff asked us to remove any proposed mitigation areas outside the applicant's easement. We did so on June 6, 2010. Staff now contends that we do not meet this criterion due to revisions to our application that they requested. We are therefore resubmitting this information again, in order to demonstrate compliance with this criterion. If the City refuses to cooperate and will not allow mitigation to occur on their site, it is feasible for such mitigation to occur on Fred Fields'adjacent property. ADDITIONAL FINDINGS: The applicant has not shown a zero-rise. Although FEMA allows a 1-foot rise in the floodway, the City requirement of zero-rise is stricter than what FEMA allows. Until the applicant demonstrates zero-rise in the floodway, this standard remains unmet. As for the proposed cuts on City property, many are located within areas of arsenic contamination. This can be seen by comparing Figure 2 of the 2009 Revised Focused Feasibility Study (#34c— Staff Submittal) with the applicant's floodplain impacts plan R2.6 (#23 —Applicant's Feb 2010 submittal, exhibit L). The City is currently working with a consultant, GeoEngineers, to obtain a No Further Action (NFA) determination from Oregon Department of Environmental Quality (DEQ) by preparing a Comprehensive Management STAFF REPORT ADDENDUM TO THE PLANNING COMMP SION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/FIELDS WALL STREET COMPREHENSIVE PLAN AMENDMENT PAGE 9 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE LANDS REVIEW Plan. This plan is not yet finalized, but is expected to show capping and no further disturbance of contaminated areas. The applicant's proposed cuts would be contrary to that plan. Any disturbance of soils in this area would require approval from DEQ. The applicant has not addressed this issue at this time. Furthermore, the proposed excavation of the area north of the library (North Field) is also unacceptable due to its location immediately adjacent to the library building. As noted by Gus Duenas, Development Engineer, within a September 2010 memo (#34c — Staff Submittal), this location is not appropriate. The excavation area will fill with water during a major flood and likely pond during wet weather. This regular saturation of the ground near the foundation of the library may create stability issues for the building and require continual maintenance. Land form alterations or developments within the 100-year floodplain shall be allowed only in areas designated as commercial or industrial on the comprehensive plan land use map, except that alterations or developments associated with community recreation uses, utilities, or public support facilities as defined in Chapter 18.120 of the Community Development Code shall be allowed in areas designated residential subject to applicable zoning standards; FINDINGS: The sites involved are zoned R-12 (Medium Density Residential) and R-25 (Medium High Density Residential. Proposed affected areas within the floodplain are zoned R-12, which is a residential zone. According to this standard, land form alterations or developments within the 100-year floodplain are allowed only in commercial and industrial zones. The only exception is for community recreation, utilities, or public support facilities. The applicant argues that the proposed fill and pilings for the road are public support facilities. Standard 18.775.070.B.2 says that a definition of public support facilities can be found in TDC Chapter 18.120- Definitions, but one is not provided. The applicant points to how the term is used in standard 18.775.020.E.1.a (administrative sensitive lands review), which reads: "...the City Engineer shall review the installation of public support facilities such as underground utilities and construction of roadway improvements including sidewalks, curbs, streetlights, and driveway aprons by means of a Type I procedure..." The applicant states that inclusion of the phrase "construction of roadway improvements" strongly indicates that roadways are allowed in residential floodplains and that support structures for bridges are public support facilities. This interpretation would allow the proposed extension of Wall Street since the roadway is above the floodplain elevation and supported by pilings, structural fill, and wingwall/retaining walls. The applicant then points to the term public facilities as used in the purpose statement of Chapter 18.810 of the Street and Utility Improvements chapter of the TDC. This statement reads "to provide construction standards for the implementation of public and private facilities and utilities such as streets, sewers, and drainage". The applicant states that streets are public facilities; therefore the support structures for Wall Street are public support facilities. The applicant argues the definition of support as something physical,while Staff argues the term is used to show an ancillary role, which is better supported in the context of the code. Staff points to the fact that the items listed in 18.775.020.E.1 only include facilities found along streets, all of w h.ich play a supportive role in the street and transportation system. The City of Aurora, Oregon uses the term "public support facilities" within its Land Development Code (Title 16) and defines the term as "services which are necessary to support uses allowed outright in the underlying zone and involves only minor structures such as power lines and poles, phone booths, fire hydrants, as well as bus stops, benches and mailboxes which are necessary to support principal development". Again the examples used are all things found along a street. In response to Staff's prior completeness review request of the applicant to show how the term "public support facilities" has been previously interpreted, the applicant points to a land use approval to construct a portion of the Fanno Creek Trail within the floodplain (SLR2009-00002). This decision permitted the installation of a sidewalk, elevated boardwalk, and bridge across Fanno Creek, within the 100-year floodplain. Most of the work occurred on property that was zoned (I-L—Light Industrial), but a portion of the bridge is located within land (library property) zoned R-12 (Medium Density Residential). The applicant draws parallels between the pedestrian bridge and the proposed Wall Street vehicular bridge, which is 180 meters downstream from the pedestrian bridge. STAFF REPORT ADDENDUM TO THE PLANNING COMMISSION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/FIELDS WALL SIREET COMPREIIENSIVE PLAN AMENDMENT PAGE 10 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE LANDS REVIEW In a letter dated December 1, 2009 from the applicant's attorney, Phil Grillo,it is stated that both the staff report and the Hearing's Officer's findings for the trail application treat pathways as roads. Staff contends Mr. Grillo's use of terms like roadway, streets, trails, and pathways were taken out of context. These terms were used by Staff to show no land use review is typically required for these facilities unless within sensitive lands in response to testimony about a change of use requirement or to show that the proposed improvements were not commercial, industrial, or non-residential structures that require lowest floor flood-proofing. In SLR2009-00002, the Hearing's Officer concluded that the surface of the boardwalk met the requirements of 18.775.070.B.5 that pedestrian/bicycle pathways be above the elevation of an average annual flood. When addressing the standard regarding fill within residential floodplain, Staff found that the proposed improvements were allowed because the sidewalk is a public support facility and the trail is a community recreation facility. The sidewalk (public support facility) is located on land zoned Light Industrial. As noted above only a small portion of the bridge (community recreation) is located within residential floodplain. The applicant is trying to compare a 62-foot long, 8-foot wide pathway bridge that involved approximately 4 cubic yards of fill with the extension of a collector street bridge (320 feet) that involves approximately 2,010 cubic yards of fill. While bicycle/pedestrian pathways have some transportation attributes, they are also community recreation. The applicant has not proven the term public support facilities applies to the proposed fill and pilings required for the extension of Wall Street. Applicant's Response: Staffs position is that the proposed pilings and Jill needed to support the proposed bridge do not constitute alterations or development associated with 'public support facilities," as that term is used in TDC Section 18.775.070(B)(2). We disagree, and have explained why the pilings and fill are needed to support the bridge to quay as "public support facilities" under this section of the code. Our detailed analysis on this issue is ound at pages 20-23 of our anuary 15, 2010, materials, at Exhibit U, and in Mr: Grillo's letter of August 16, 2010. Staff argues that the term 'public support facilities" only applies to such things as power poles,phone booths,fire hydrants, bus stops, benches, and mailboxes. This interpretation is not supported by any text or context within the City's code. As a practical matter, staffs interpretation makes little sense. Most of the structures staff says would qualify as "public support facilities"would need to be anchored in the floodplain by some sort of pilings, excavation, or fill. These items cannot simply be placed in the floodplain—they require fill, excavation, and/or pilings of some sort,just as was the case with the Fanno Creek Trail Bridge case, cited in our materials. It is irrelevant that the pilings and fill for that bridge required less fill of different types of footings than will be required for our bridge. What is relevant is that pilings and fill(i.e., alterations and development) associated with a bride that will allow a planned transportation facility to be constructed above the floodplain, constitute public support facilities for purposes of the code. In other words, when dealing with planned transportation facilities in floodplains, the hearings officer in the Fanno Creek Bridge case made a clear distinction between the need to locate the surface of a planned transportation facility above the floodplain elevation, and the competing need for public support facilities to extend below the floodplain elevation in their ancillary role of keeping the street itself above the floodplain elevation. As the hearings officer correctly concluded in the Fanno Creek Bridge case, unless the provisions of TDC 18.775.070 are interpreted in this way, it would be "impossible" to construct planned transportation facilities through the floodplain, except in relatively narrow floodplain areas. For the above reasons, and the reasons detailed elsewhere in our materials, this criterion is met. ADDITIONAL FINDINGS: The applicant argues that the pilings and fill (alterations and development) are public support facilities. However, the code states that alterations or development associated with community support facilities, utilities, and ublic sup-Dort facilities shall be allowed in areas designated residential. In this proposal, the pilings and fill are the aerations and development. If the pilings and fill are associated with a public support facility, then they are allowed. The pilings and fill are associated with the construction of a bridge for the extension of a road, which are not public support facilities. As noted in staffs previous findings, public support facilities are items found along a road such as sidewalks, curbs, streetlights, and driveway aprons. In addition the applicant states that the Hearing's Officer in the Fanno Creek Bridge case made findings related to public support facilities. As previously noted by staff, the Hearing's Officer concluded that the surface of the boardwalk met the standards of I8.775.070.B.5 that requires pedestrian/bicycle pathways be STAFF REPORT ADDENDUM TO THE PLANNING COMMISSION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/FIF_LDS WALL STREET COMPREHENSIVE PLAN AMENDMENT PAGE 11 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE LANDS REVIEW above the elevation of an average annual flood and not the supporting structure or fill. Also in the Fanno Creek Bridge case, the majority of the work took place on industrial zoned land, in which this code prevision does not apply. A small portion of fill and pilings were constructed on residential land to construct a bridge for a trail, which is community recreation. These alterations are allowed in residential flood areas. The applicant's proposal with or without the proposed cuts on City property still require development and land form alterations within flood areas in a residential zone anc are not associated with community recreation, utilities, or public support facilities;therefore the proposal does not meet this criterion. Where a land form alteration or development is permitted to occur within the floodplain it will not result in any increase in the water surface elevation of the 100-year flood; FINDINGS: The applicant's hydraulic analysis prepared by WEST Consultants, Inc. (applicant's Exhibit K) shows an increase in the water surface elevation of the 100-year flood. These increases are shaded in Table 1 — Results for the Base Flood Event (see footnote #2). This footnote reads that "the shaded area above corresponds to where the 100-year water surface elevations would be increased as a result of the proposed bridge plan." In this case, the elevation for the proposed 320-foot span would increase the elevation between 0.1 and 0.4 feet. This standard is not met. Applicants Response: This criterion has been met with the response provided on pages 20-21 of the October 9, 2009, submittal.Additional information has been provided for clarification on the OBEC analysis provided with Phase I(Exhibit K). As part of the March 2005 Alternative Analysis prepared by the City, Phase 1 was adopted and Plan 3 (a 320 foot long bridge) was proposed as the alignment and bridge length for the Phase 2 extension. The June 11, 2003 attachment "Hydraulic Analysis of Various Bridge Plans" by WEST Consultants concluded the 320 foot long span could be urtilitied without a floodplain elevation rise on Fanno Creek upstream of the Hall Boulevard crossing. It did note this bridge impact would create a floodplain elevation rise local to the bridge of 0.1 to 0.4 feet, but this would not impact the Library improvement or other, existing improvements in the area. Given this data, we calculated the net fill volumes to be placed in the floodplain and established a plan (attached) to excavate a similar amount within the area identified to contain the rise in floodplain elevation. This work tracks the recommendation of the NEST Consultants report bag e 7, note 10), which called for offsetting the increase in water surface elevation "by excavating high ground". This data reflects the ability to construct the proposed bridge without a rise in the flood elevation. ADDITIONAL FINDINGS: As noted in previous findings, the hydraulic analysis provided by the applicant (#15 - Exhibit K — applicant's original submittal) shows the 320-foot long bridge will raise the 100-year flood between 0.1 and 0.4 feet. The standard requires no increase in the water surface elevation. In addition, the resubmitted documents show cuts within the floodplain to comply with the zero-rise requirement that are immediately adjacent to the library building. This is not an appropriate location for an excavation area that would fill with water during a major flood. This standard is not met. Within wetlands: The Director shall approve, approve with conditions or deny an application request for a sensitive lands permit within wetlands based upon findings that all of the following criteria have been satisfied: The extent and nature of the proposed land form alteration or development will not create site disturbances to an extent greater than the minimum required for the use; FINDINGS: The applicant states the Alternatives Analysis demonstrates that the proposed impacts are the minimum practicable for the project and that no other alternatives exist. There are other alternatives, including a longer bridge that spans the entire floodway and avoids the wetland. Another alternative is to gain access across Metro property to the south from Milton Court. These alternatives were not discussed in the Alternatives Analysis (Exhibit K), only within the applicant's narrative. The amount of disturbance to the wetlands for each alternative was not provided. A longer bridge would not impact the wetland and there are no mapped Tigard significant wetlands on the Metro site. The applicant has not shown how the proposed land form alteration will create the minimum disturbance to the wetland for the use. STAFF REPORT ADDENDUM TO THE PLANNING COMMISSION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/FIELDS WALL STREET COMPREHENSIVE PLAN AMENDMENTT PAGE 12 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE LANDS REVIEW Applicant's Response: This criterion is addressed on page 23 of the submittal dated October 3, 2009. The "alternatives"issue is addressed in the August 16, 2010, letter from attorney Phil Grillo ADDITIONAL FINDINGS: The a?plicant's representative, Phil Grillo, notes in his August 16th letter addressing legal issues (#28) that an a_ternative analysis is not required. However an analysis of the Milton Court alternative access was provided per the Planning Commissioner's request and a plan showing an alternative Wall Street extension design (pivot road) was submitted on September 10, 2010 (#35 a, b, &c). As noted within the original Staff Report, there are no mapped significant wetlands that would be affected by a Milton Court extension and the alternative plan may also create less impact on the Tigard significant wetlands found on the Wall Street site. This information shows there may be alternatives to enable the applicant to access the site without impacting or having less impact upon Tigard significant wetlands. This standard is not satisfied. Milton Court Alternative: On Se?tember 10, 2010 the applicant submitted documents to address the Planning Commission's request to exp_ain their argument that Milton Court is not a reasonable alternative to the Wall Street access (#35 a & b). The letter to Commissioners from the applicant's representative, Phil Grillo, outlined several issues such as Milton Court does not abut the site, Milton Court floods, extension would impact significant natural resources, operational and safety problems on Bonita, violates city street standards, does not support the city's environmental justice policies, and exacerbation of existing street connectivity problems. Staff acknowledges that both the Wall Street and Milton Court alternatives for access to the applicant's property present issues; however clarification is necessary for some of the applicant's analysis. • Milton Court does not abut the site; however, neither does Wall Street or Hall Boulevard. The applicant has a 60-foot wide access easement across City property, but has not met the approval criteria to extend Wall Street to the applicant's property. • A portion of Milton Court is mapped within a 100-year floodplain. However, the applicant did not provide information to show that the street would be affected by floods. Information from the City's Geographic Information System, Tigard Maps, was entered into the record showing the 1996 flood inundation in relation to Milton Court (#38). The '96 flood was not a 100-year event, but was a record peak flow. The map provided shows that Milton Court was not affected. • There would be some impact to natural resources, but the proposed access by extending Wall Street also impacts natural resources. It is unknown if access from Milton Court would impact a significant wetland like the Wall Street alignment considering its distance from any mapped wetland. In addition, both street extensions would impact significant habitat area, although the Milton Court area has some lower value habitat area than the Wall Street extension location. • Milton Court is a collector street that would provide access from the site to a public street, Bonita Road. The applicant's traffic engineer outlines issues with the connection, including a failing intersection. Nevertheless the analysis is unclear as to whether or not the intersection is already failing. The applicant's engineer also only explores one means of mitigation (a signal at Milton Court) and no other options. Connectivity is not increased by either Wall Street or Milton Court because there is still the issue of crossing the railroad to provide connectivity to the east. Neither the Milton Court nor Wall Street extension meets City standards for cul-de-sacs length. • The applicant refers to environmental justice policies based on Figure 4-2 (Environmental Justice Populations) within the draft 2035 TSP. This document,which has not yet been approved by City Council, does not outline the City's environmental justice policies. Figure 4-2 identifies areas with Block Groups for significant non-English speaking, senior, and low-income populations. The development site is located within a large area with non-English speaking populations. This area also includes Milton Court. This information was considered in the evaluation of potential transportation projects and is not City policy regarding specific populations or development applications. STAFF REPORT ADDENDUM TO TI IE PLANNING COMMISSION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/FIEI DS WALL STREET COMPREIIENSIVE PLAN AMENDMTNT PAGE 13 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE_.LANDS REVIEW In order to address the requirements of Statewide Planning Goal 5 (Natural Resources) and the safe harbor provisions of the Goal 5 administrative rule (OAR 660-023-0030) pertaining to riparian corridors, a standard setback distance or vegetated corridor area, measured horizontally from and parallel to the top of the bank, is established for the Tualatin River, Fanno Creek, Ball Creek, and the South Fork of Ash Creek. 3. The minimum width for "marginal or degraded condition" vegetated corridors along the Tualatin River, Fanno Creek, Ball Creek, and the South Fork of Ash Creek is 50% of the standard width, unless wider in accordance with CWS "Design and Construction Standards", or modified in accordance with Section 15.775.130. FINDINGS: As noted above, the vegetated corridor is in marginal or degraded condition. The applicant states that the required 50-foot vegetated corridor has been shown on the plans in accordance with CWS standards utilizing a professional survey and wetland delineation. However, the applicant does not address if any reductions are proposed or by how much the width is reduced. Applicants Response: This criterion is addressed on page 29 of the October 3, 2009, submittal. Per TDC 18.775.090(8)2 the standard width for vegetated corridors along Fanno Creek is 50 feet, unless wider in accordance with CIS "Design and Construction Standards."The site's vegetated corridors are marginal or degraded and are therefore 50%of the standard width(25 feet)per this criterion. However, CIFS vegetated corridors are 50 feet.No reductions are purposed,and the full 50 foot width(as required by CIFS)is proposed to be enhanced in accordance with the Service Provider Letter(ExhibitP). This criterion is therefore met. ADDITIONAL FINDINGS: The applicant has indicated that no reductions are proposed to the 50-foot CWS vegetated corridor requirement. This criterion is satisfied. ESEE Analysis (Environmental, Social, Economic and Energy) Any owner of property affected by the Goal 5 safeharbor (1) protection of significant wetlands and/or (2) vegetated areas established for the Tualatin River, Fanno Creek, Ball Creek, and the South Fork of Ash Creek may apply for a quasi-judicial comprehensive plan amendment under Type IV procedure. This amendment must be based on a specific development proposal. The effect of the amendment would be to remove Goal 5 protection from the property, but not to remove the requirements related to the CWS Stormwater Connection Permit, which must be addressed separately through an Alternatives Analysis, as described in Section 3.02.5 of the CWS "Design and Construction Standards." The applicant shall demonstrate that such an amendment is justified by preparing an Environmental, Social, Economic and Energy (ESEE) consequences analysis in accordance with OAR 660-23-040 or demonstrate that the sensitive area site no longer meets applicable significance thresholds defined by the Goal 5 administrative rule, relative to other comparable resources within the Tigard Planning Area. 1. The analysis shall consider the ESEE consequences of allowing the proposed conflicting use, considering both the impacts on the specific resource site and the comparison with other comparable sites within the Tigard Planning Area; FINDINGS: The applicant has outlined positive and negative consequences for allowing and prohibiting the conflicting use, but did not discuss the impacts of limiting the use on the resource site. Also,the analysis does not look at comparable sites within the Tigard Planning Area. Applicant's Response: This criterion is met, as addressed on page 31 and Exhibit R of the October 3, 2009,submittal. This criterion does not require the analysts of a "Limit"conclusion in the applicant's ESEE analysis:A Limit conclusion has already been analyzed within the Phase I decision, which contemplated the full alignment of Wall Street. This is consistent with the analysis in Exhibit K, which demonstrates the proposed alignment has the least amount of environmental impacts. This analysis was the factual bests for approving the alignment and design of the project at the time Phase I was approved by the City. Because a limit decision has already been made for the entire project, which determined the alignment of the proposed extension of Wall Street, the ESEE analysis for Phase II then becomes a determination between Allow and Prohibit.Furthermore, as this is a public street identified on the TSP,this extension is unique to this specific location within the City of Tigard. There are no other locations within the City where Wall Street can be extended as planned. Therefore,them are no comparable sites for analysis. STAFF REPORT ADDENDUM TO THE PLANNING COMMISSION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/FIELDS WALL STREET COMPREHENSIVE PLAN AMENDMENT PAGE 14 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE LANDS REVIEW ADDITIONAL FINDINGS: The applicant states that a "lunit" analysis of the proposal was not necessary since a limit conclusion has already been analyzed within the Phase I decision, which contemplated the full alignment of Wall Street and the analysis in Exhibit K (applicant's materials). There have been alternatives, put forward by the applicant and staff, that indicate less environmental impact may be possible while still permitting access to the applicant's property. 2. The ESEE analysis must demonstrate to the satisfaction of the Tigard City Council that the adverse economic consequences of not allowing the conflicting use are sufficient to justify the loss, or partial loss, of the resource; FINDINGS: The applicant concludes that allowance of the impact would result in relatively minor impacts to the resource, while permitting the development of the applicant's property. According to the applicant, prohibiting the impact limits the opportunities for vegetative corridor enhancement provided by the applicant and avoids legal questions related to takings by not permitting access to the site. In addition, the applicant notes that completion of the street extension will help accomplish the eventual connection of Hall Boulevard with Hunziker Street (shown in the TSP). However, the proposal to complete this portion of the Wall Street extension is purely speculative as to the development of the applicant's property. While physical access to the site increases the likelihood of the site to be developed, it does not guarantee it. Because Wall Street is a public street, once constructed, the community then takes on the cost to maintain, repair, and alter the facility, including any necessary environmental permitting costs. Vegetative corridor enhancement can occur with or without development and is not reliant upon this proposal to occur. Connection of Hall to Hunziker is currently shown on the TSP, but at this time there is no approved at-grade crossing of the railroad. Previous applications for a crossing were not approved. The applicant points out the mitigation for the temporary construction impacts, but does not discuss the long term impacts of constructing a road through the resource. The ap-Dlicant's wetland scientist, Shawn Eisner, states that the resource will still have the connection for wildlife to pass under the bridge, but what effects will the introduction of cars, people, pollutants, including garbage, have upon an area that is inaccessible to these things now? A comment letter from Elizabeth Ruther with Oregon Department of Fish and Wildlife (Attachment 4) also underscores the inadequacy of the applicant's ESEE in relation to on-going,permanent effects on species and habitat. Applicant's Response: This criterion is met, as addressed on page 31 of the October 3, 2009, submittal and Exhibit R. The ESEE conclusion of Allow weighs the consequences of the economic, soda' environmental, and energy for the proposed extension of Wall Street with the conflict of the partial loss of 0.19 acres of wetland.As mentioned above,the proposed Phase II extension is no*rent than what was contemplated when the entire project was considered and Phase I was approved. This criterion is met through the ESEE analysis submitted for Phase 11,along with the ESEE submitted with Phase I. The proposed alignment of the bridge and additional section of Wall Street will cross an area that is currently undeveloped,but those areas are not curntly inaccessible. Existing access to these areas by pedestrian traffic has resulted in the presence of garbage, both in the immediate vicinity of the east end of the bridge, as well as adjoining areas, especially in the forested areas south of the bridge.Also,given that Fanno Creek is an urban creek system it often carries with it its own source of water born debris. During high water this debris (including trash)is often rafted into the floodplain east of Fanno Creek. Of course, it is not unreasonable to assume that pedestrian trceic would increase if access was easier than it is under current conditions. However, the same can be said for increased access as a result of completion of a pedestrian trail. The Fanno Creek Greenway Trail Action Plan(fanuary 2003)shows the mimed rred alignment of the Fanno Creek Trail crossing onto lot 1200 at approximately the same location as the east end of the proposed bridge, continuing south along the west side of lot 1200.As along a pedestrian trail, signage and appropriately placed trash receptacles,and fencing where appropriate might be utilir ed to keep pedestrians out of adjoining habitats. Dirt and pollutants associated with vehicular traffic would be addressed through utilitiation of appropriate storinwater collection and treatment facilities.Noise pollution would also be a conce17i, with total volume of traffic dependent upon the ultimate end use of lot 1200, which is again beyond the scope of this assessment. However, it can be said that wildlife utiling habitats in the vicinity of the proposed bridge are accustomed to urban noise pollution. The east side of lot 1200 is bordered by four or five lanes of railroad trerf c, while west of Fanno Creek habitats are bordered by the Tigard Library,a residential development,and beyond that,Hall Boulevard. STAFF REPORT ADDENDUM TO TI-IE PLANNING COMMISSION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/FIELDS WALL STREET COMPREHENSIVE PLAN AMENDMENT PAGE 15 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE LANDS REVIEW Plans to/urtherprntect habitats in the vicinity of the bridge would include providing fencing or other deterrents to limit wildlife use of the bridge or Wall Street.Also, lighting on the bridge:mill incorporate technologies to limit light pollution into adjoining habitats at night ADDITIONAL FINDINGS: The applicant notes that the site is not currently inaccessible to people and that there is trash on the site. However, this resource is inaccessible to most people because the area is fenced off or reached by crossing private property. If a public street is built, then access is granted to the general public via the proposed bridge and sidewalks, bringing more people, cars and disturbance. In addition, the applicant has not addressed the social impacts of the proposed access by extending Wall Street. Over 60 letters regarding this proposal were received from the public following the August 16th hearing. Many of these letters spoke to the lowered quality of life due to impacts to wildlife/loss of habitat/loss of greenspace, Fanno Creek Trail safety, and increased traffic. These letters identify some of the social impacts to those who live in the area, those who visit the library, and those who use/enjoy the Fanno Creek Trail and greenspace. The applicant has not shown that the positive economic impact of allowing the bridge outweighs the adverse environmental, social, and economic impacts. 3. In particular, ESEE analysis must demonstrate why the use cannot be located on buildable land, consistent with the provisions of this chapter, and that there are no other sites within the Tigard Planning area that can meet the specific needs of the proposed use; FINDINGS: The applicant outlines how there are no alternative access options to serve the site. The proposed extension is aligned with the access easement granted from the City to the applicant. This alignment minimizes impacts to wetlands and the 100-year floodplain. In addition, the applicant states that all other alternative access options have been exhausted. The applicant then concludes that there are no other sites in Tigard that can meet the specific needs of the proposed use. Yet the applicant does not discuss the option to provide a longer bridge span that will avoid the impact to the wetland and still provide access to the site for development. There is buildable land on which to construct the road and meet the need for access to the site. Applicant's Response: This criterion is met, as provided on page 31 and Exhibit R of the October 3, 2009, submittal. As detailed in Mr. Grillo's letter of August 16, 2010, there are no other sites that can meet the specijic needs of the proposed use, because the Wall Street extension cannot be built elsewhere. ADDITIONAL FINDINGS: The applicant's ESEE (Exhibit R) indicates the intent of extending Wall Street is to gain access to Mr. Fields property and the conflicting use is impacts necessary to provide access to the applicant's property. As previously discussed, there are other options on buildable land to gain access to the applicant's property (longer bridge, possible alternative alignment, Milton Court); therefore this criterion is not satisfied. Minimum Rights-of-Way and Street Widths: Section 18.810.030E and Figure 18.810.1 require a S- lane arterial to have right-of-way varying from 100 feet to 104 feet, a 3-lane collector to have right- of-way varying from 70 to 74 feet, and a local street to have a 54-foot right-of-way. Other improvements required include sidewalks, bike lanes if designated as bike routes, underground utilities, street lighting, storm drainage,planter strips and street trees. FINDINGS: Wall Street is a collector street as designated in the TSP and requires 72 feet of right-of- way. A significant portion of the street is on the Tigard Library property, on which the applicant has a 60- foot access easement. This easement is of inadequate width to accommodate the improvements (street, sidewalk, planter strips,utilities, etc.) required for a collector street. Additional requirements for the street include sidewalks, bike lanes, storm drainage, street lights, planters, and street trees. The applicant has proposed a 72-foot right of way with sidewalks, bike lanes, street lighting, storm drainage, planter strips, and street trees. The one exception is the bridge portion of the street. The applicant has requested an adjustment to permit construction of a narrower bridge section (50 feet vs. 72 feet without the planter strips and street trees. The criteria for the adjustment have not been met, which is discussed in more detail under the Variances and Adjustments section of this report. Because the application does not meet the criteria for an adjustment, then the required improvements are STAFF REPORT ADDENDUM TO THE PLANNING COMMISSION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/FIELDS WALL STREET COMPREHENSIVE PLAN AMENDMENT PAGE 16 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE LANDS REVIEW not proposed. In addition, the necessary right-of-way has not been dedicated; therefore, the applicant's proposal does not satisfy these standards. Applicant's Response: This criterion is met, as discussed on page 39 and the preliminary plans (Exhibit L) submitted October 3, 2009. Additional jaustcation further supporting the proposed adjustment to the street width standards has been included with the response to item#2 above. Ste indicates that because the applicant only has a 60 foot easement, that it cannot meet the 72 foot right-of-way requirement. We disagree for several reasons.First, the City already owns the underlying land,and is therefore already in control of all o f the land within the future right-of-way. Nothing more needs to be provided to the City in order for it to control the needed area for the 72 foot right-of-way. Second, the specif c location of the street was reviewed and approved as part of the Phase I alignment decision. This street location is shown on the City's TSP and is shown on the Fanno Creek Master Plan. No other uses are planned in this location. Third,pursuant to the Purchase and Sale Agreement, the City has a duty to cooperate with regard to this roadway extension. That duty includes cooperating with regard to compliance with its own right-of-way requirements. This criterion will therefore be met, because the City already owns the needed right-of-way and has a duty to cooperate to provide it, in conjunction with this long-anticipated roadway extension. ADDITION AL FINDINGS: The applicant is correct that the City owns most of the property on which the Wall Street extension is proposed;however the place for public streets is within public right-of-way. Currently there is only a 60-foot access easement for the benefit of the applicant,Mr. Fields. Adequate ROW must be dedicated to construct the proposed street extension. Future Street Plan and Extension of Streets: Section 18.810.030.F states that a future street plan shall be filed which shows the pattern of existing and proposed future streets from the boundaries of the proposed land division. This section also states that where it is necessary to give access or permit a satisfactory future division of adjoining land, streets shall be extended to the boundary lines of the tract to be developed and a barricade shall be constructed at the end of the street. These street stubs to adjoining properties are not considered to be cul-de-sacs since they are intended to continue as through streets at such time as the adjoining property is developed. A barricade shall be constructed at the end of the street by the property owners which shall not be removed until authorized by the City Engineer, the cost of which shall be included in the street construction cost. Temporary hammerhead turnouts or temporary cul-de-sac bulbs shall be constructed for stub streets in excess of 150 feet in length. FINDINGS: A future street plan is only required in conjunction with a subdivision or partition application; therefore a plan is not required with this submittal. Extension of Wall Street is proposed across City property to the applicant's property in anticipation of future development. A temporary hammerhead or cul-de-sac must be constructed as the terminus for the extended Wall Street. In addition signs must be posted west of the bridge to indicate a dead-end street, and a tem?orary easement shall be delineated and dedicated to the City to accommodate the temporary turnaround until such time as Wall Street is extended or the property is developed with interior roadways to provide that turnaround capability. The applicant has not proposed any such turnaround; therefore this standard is not met. Applicant's Response: This criterion is addressed on page 43 of the October 3,2009, submittal. In discussions with City stain 2009 prior to the original submittal, they indicated deference to T/FRD in terms of fire truck turnaround. Group Mackeniie eta spoke preliminarily with Jim Everitt of TVFRD and,pending a review of the plans and no requirement for a site development permit with the construciton of the bridge,he indicated a turnaround may not be needed as no structures or improvements would be present at the end of the roadway. With the current TVF'RD review and comment, and City adoption of a condition for same,a turnaround can be accommodated outside the floodplain and wetland areas, beyond the proposed end limits at approximate Station 20+50. If not, appropriate signage can be added prior to the last side access to note the dead end condition. STAFF REPORT ADDENDUM TO THE PLANNING COMMISSION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/FIELDS WALL STREET"COMPREHENSIVE PLAN AMENDMENT PAGE 17 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE LANDS REVIEW ADDITIONAL FINDINGS: A temporary turnaround area needs to be provided at the proposed terminus of Wall Street. Either a hammerhead or cul-de-sac design would be appropriate. A turnaround has not been proposed by the applicant; therefore this standard is not met. Statewide Planning Goal 5 —Open Spaces, Scenic and Historic Areas, and Natural Resources This goal outlines the protection of natural resources and conservation of scenic, historic and open spaces. FINDINGS: This site includes both open space and natural resources. The regulations outlined in the Sensitive Lands chapter (18.775) of the TDC protect these areas, along with the goals and policies found in Goal 5 of the City's Comprehensive Plan. As discussed previously in this report, the applicant does not comply with the implementing codes or City goals. The applicant has not met the burden of proof to remove the protection from the Tigard Significant wetland. Insufficient information was provided for alternatives such as a longer bridge span or access from Milton Court to determine if the proposed 320- foot bridge has the least impact on natural resources. Long term affects of the bridge were also not discussed in relation to habitat and wildlife species found in the area. Applicant's Response: There is substantial evidence in the record demonstrating that Goal 5 has been met. The City's plan and land use regulations already campy with Goal 5. With regard to the proposed alignment, and its ellect on the small(0.19-acre)wetland that the applicant seeks to remove fivm Goals protections, City Council has already determined that: "The application presents si icient evidence justieing the requested comprehensive plan amendment and reconfiguration of the natural resource. The alternatives analysis identifies nine feasible road alignment options and a final proposed alignment recommended by project biologists to both minimitie impacts and allow for mitigation opportunities." (See City Council Decision, Phase I Wall Street Extension, May 9, 2006, at 14.) In addition, as the City pointed out with regard to Phase I,which also involved the removal of a small wetland area(0.11 acres)from the City's Goal 5 inventory, the City has already mitigated for the loss of both the 0.11- and 0.19-acre wetlands, so the City's Goal 5 wetland inventoiy is actually enhanced through these mitigation efforts.At the very least,there is no net loss of Goals resources. Goals is therefore met. ADDITIONAL FINDINGS: The approval of Goal 5 protection removal for Phase I and mitigation of the proposed impact to the .19 acre disturbance does not have bearing on whether or not Goal 5 protection should be removed for the wetland areas affected by this proposal. As noted in the original Staff Report, the applicant does not comply with the City code requirements and policies that implement Statewide Planning Goal 5;therefore Goal 5 is not met. Statewide Planning Goal 8—Recreation This goal ensures the recreational needs of the citizens of the state and visitors are satisfied and,outlines how to provide for the siting of necessary recreational facilities including destination resorts where appropriate. FINDINGS: As noted by the applicant, this goals main focus is large-scale resort opportunities, which is not applicable to this application. However, this proposal does impact a large tract of Tigard open space that is part of Fanno Creek Park and currently is relatively undisturbed. As noted under the review of Tigard Comprehensive Plan Goal 8.1, the applicant does not provide information on how the long term impacts proposed will be mitigated within this open space and natural area. Applicants Response: Goal 8 it met because the Wall Street Extension is shown on the City's Fanno Creek Park Master Plan.It is also shown on the City's TSP and the alignment was approved as part of the Phase I decision. Goal 8 is therefore met because this street extension has long been anticipated in the City's land use regulations. STAFF REPORT ADDENDUM TO THE PLANNING COMMISSION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/FIELDS WALL STREET COMPREHENSIVE PLAN AMENDMENT PAGE 18 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE LANDS REVIEW ADDITIONAL FINDINGS: The Fanno Creek Park Master Plan is not a regulating document. In addition, Wall Street is not shown on the Master Plan (#34d, page 19). The proposed location of Wall Street was included as part of the Existing and Natural Conditions (#34d, page 3). There is no discussion of the location of Wall Street within the Fanno Creek Park Master Plan Summary. As pointed out by members of the public, this proposal will have direct impacts on the Fanno Creek Trail and surrounding open space,which the applicant has not addressed. Goal 8 is not met. SECTION IV. STAFF CONCLUSION CONCLUSION: As previously noted, the applicant is requesting a Comprehensive Plan Review (CPA) to remove the Goal 5 protection from a Tigard Significant Wetland in the project area, a Sensitive Lands Review (SLR) for wetlands, a Sensitive Lands Review (SLR) for the 100-year floodplain, and an Adjustment (VAR) to the street requirements in order to construct a narrower street section and eliminate the planter strip on the bridge deck. After reviewing the additional information presented at the August 16th hearing and subsequently submitted to the record, Staff continues to recommend denial of all four applications associated with this request. The applicant has failed to provide the facts and findings necessary to meet the burden of proof required for the proposal. The applicant's ESEE analysis does not show that the positive economic impacts for the proposed Wall Street extension outweigh the adverse impacts to the resource, in particular long term effects upon the natural resources, habitat, and wildlife. Many public comments were received after the hearing that raised several social impacts of the proposed street extension. These impacts were not addressed within the applicant's ESEE or rebuttal evidence. As noted by the Planning Commission much of the applicant's information related to alternatives and effects on the resources is out of date. Additional information was provided on alternatives, including an analysis of the Milton Court access and a new pivot road plan. Although there are potential traffic issues with the Milton Court alternative, both the Milton Court and pivot road plan, along with the longer bridge mentioned by staff in the original report, seem to indicate there may be other options that lessen or avoid impact on natural resources. At this time, the applicant has not submitted substantial evidence supporting its contention that the proposed 320-foot bridge is the alternative that best protects natural resources. The criteria for Sensitive Lands Review for the floodplain were not met by the new information. The zero-rise requirements within the 100-year floodplain are not met, even with the proposed cuts on City property. In addition, there are concerns about arsenic contamination and undermining of the library foundation in those proposed cut areas. Seismic information was submitted to address concerns raised during the public hearing. However information to show that wingwalls, fill, and pilings below the 100- year flood elevation are flood-proof and will be anchored to prevent movement or collapse was not provided. In addition land form alteration is not permitted in floodplain zoned residential, unless associated with public support facilities, utilities, and community recreation. The parcels involved are zoned R-12 and R-25. The applicant has asserted that the fill and pilings that will support Wall Street are public facilities, but the code does not support that claim. Finally, as noted in the original Staff Report, the applicant has not shown the nature and extent of the impacts that are to be forgone if the adjustment to the street standards is permitted. The applicant asserts a narrower section would have fewer impacts on natural resources, but does not describe the adverse impacts. Without this information, it is impossible to understand the extent of the impacts of a full bridge width and why an adjustment for a 72-foot street section and elimination of planter strips on the bridge deck should be allowed. Based on the findings within the original Staff Report and this addendum, the proposed Comprehensive Plan, Sensitive Lands Reviews, and Adjustment are inconsistent with applicable provisions of the Tigard Development Code (Chapters 18.390, 18.745, 18.775, 18.790, & 18.810), Comprehensive Plan (Goals 2- Land Use Development, 5-Natural Resources and Historic Areas, Goal 6-Environmental Quality, Goal 7- Hazards, Goal 8-Parks, Recreation, Trails, and Open Space, and 11-Public Facilities and Services), Tigard Municipal Code (Chapter 9.06-Trees on City Property), Statewide Planning Goals 2, 5, 6, and 7, and Metro Urban Growth Management Plan Title 3. STAFF REPORT ADDENDUM TO THE PLANNING COMMISSION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/FIELDS WALL STREET COMPREHENSIVE PLAN AMENDMENT PAGE 19 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE LANDS REVIEW SECTION V. STAFF RECOMMENDATION Staff recommends that the Planning Commission recommend denial of the proposed comprehensive plan amendment, sensitive lands reviews, and adjustment to City Council. � October 8, 2010 PREPARED BY: Cheryl Caines DATE Associate Planner STAFF REPORT ADDENDUM TO THE PLANNING COMMISSION OCTOBER 18,2010 PUBLIC HEARING CPA2009-00004/FIELDS WALL STREET COMPREHENSIVE PLAN AMENDMENT PAGE 20 OF 20 SLR2009-00004&SLR2009-00005 SENSITIVE LANDS REVIEW PORTLAND,OREGON 3400 U.S.Bancorp Tower SEATTLE,WASHINGTON 111 S.W.Fifth Avenue VANCOUVER,WASHINGTON Portland,Oregon 97204.3699 MILLER NASHLLP CENTRAL OREGON OFFICE 503.224.5858 ATTORNEYS AT LAW - WWW.MILLERNASH.COM FAX 503.224.0155 Phillip E.Grillo phil.grillo @millernash.com (503)205-2311 direct line RECEiVED ED OCT 1 5 2010 October 15, 2010 CITY OF TIGARD PLANNING/ENGINEERING City of Tigard Planning Commission 13125 S.W. Hall Boulevard Tigard, Oregon 97223 Subject: Applicant's Response to the Addendum to the Staff Report and to Public Testimony Received Through October 15, 2010, in the Wall Street Extension Project (CPA2009-00004, SLR2009-00004, SLR2009-00005, and VAR2o10-00002) Dear Commissioners: On September 23rd, I received an e-mail from Cheryl Caines, informing me that the Planning Commission had decided to reopen the hearing. On October 8th, I received a 20-page addendum to the staff report. In advance of the hearing on October 18th, I am providing the Planning Commission with the applicant's response to the addendum to the staff report, and to public testimony received through October 15, 2010. Because staff and the public have submitted a significant amount of new testimony since the hearing on August 16,we are providing you with a consolidated response. For the sake of organization, our responses to the public testimony are provided first, followed by our response to the addendum to the staff report. Since Mr. Frewing's arguments were the most comprehensive, we focus on his comments first. Applicant's Response to Public Comments Received Through October 15, 2010 1. Applicant's Final Rebuttal/Conditions of Approval. Mr. Frewing argues that the applicant is not entitled to final written argument in this case. We disagree. Pursuant to ORS 197.763(6)(e), "the local government shall allow the applicant at least seven days after the record is closed to all other parties to submit final written argument in support of the application." As discussed at the hearing, the applicant reserves his right under ORS 197.763(6)(e) to submit final written argument within seven days after the record is closed to all other parties. Mr. Frewing also argues PDXDOCS:1905147.1 196080-0005 ® PORTLAND,OREGON SEATTLE,WASHINGTON MILLER NASH LLP VANCOUVER,WASHINGTON CENTRAL OREGON ATTORNEYS AT LAW WWW.MILLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page 2 that these applications cannot be approved with conditions. Again, we disagree. ORS 227.175(4) expressly indicates that approval may include conditions. The record shows that the city has previously approved the Fanno Creek Trail &Bridge case (SLR2009-00002, et al.) and the Fields Comprehensive Plan and Zoning Map Amendment case (CPA 2008-00008, et al.) with conditions. Likewise, the city can approve the present case with conditions. See TDC 18.390.060(H)(4). 2. Consolidation/Order of Proceedings. Mr. Frewing argues that this consolidated application must be decided by City Council. We agree. Because this consolidated application involves a Type IV comprehensive plan amendment, the Planning Commission is required to make a recommendation on these applications to City Council. Ultimately, City Council is the local approval authority for these consolidated applications, and must adopt its decision by ordinance. See TDC 18.390.060(H) and ORS 227.186. When Council makes a decision on these consolidated applications, a decision on the comprehensive plan amendment portion of this application should be made first. See TDC 18.390.o8o(D)(2)(b)(2). 3. 120-day rule/ORS 227.178. Mr. Frewing argues that the 120-day rule in ORS 227.178 does not pertain to a comprehensive plan amendment. We agree. However, the 120-day rule and the provisions of ORS 227.178 continue to apply to the other land use permit applications submitted as part of this consolidated application. See ORS 227.178. 4. New Evidence. Mr. Frewing argues that because the applicant requested that the application be deemed complete under ORS 227.178,the applicant cannot submit any additional evidence. We disagree. ORS 227.178(2) governs when an application is deemed complete=not whether an applicant can submit additional evidence during the course of the proceedings. The applicant has the right to submit and rebut evidence during the course of the local proceedings on this matter, pursuant to ORS 227.175, ORS 197.763, and local rules adopted pursuant to those statutes, as do other parties to the proceeding. We also note that the applicant has a right under ORS 197.763(6)(e)to submit final written argument within seven days after the record is closed to all other parties. Because the record has been reopened, the applicant reserves his right for final written argument. 5. Library Decision. Mr. Frewing alleges but does offer any proof that the city made representations when the library was approved in CUP 2003-00001, that the remainder of the library site would remain in natural condition. We disagree. We reviewed the staff report and decision of the hearings officer in that case. The city did not state nor did the hearings officer determine that the remainder of the site would PDXDOCS:1905147.1 196080-0005 ® PORTLAND,OREGON SEATTLE,WASHINGTON MILLER NASH--P CENTRAL OREGON NCTON ATTORNEYS AT LAW WWW.MILLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page 3 remain in natural condition. Such a determination would have been contrary to the city's acknowledged TSP, Mr. Fields' recorded easement, and Fanno Creek Plan,which all clearly show the location of the proposed extension of Wall Street. Furthermore, the subsequent 2005 Phase 1 extension of Wall Street was approved by City Council with no mention of the alleged representation referred to by Mr. Frewing. In short, there is no requirement that the remainder of the library site would remain in natural condition. 6. Comprehensive Plan Natural Resource Policies. Mr. Frewing argues that several comprehensive plan policies relating to natural resources are not met by this application. We disagree. Comprehensive plan policies are only relevant in this case to the extent they apply to the proposed removal of Goal 5 protections to the 0.19 acres of wetlands that will be affected by the proposed Phase 2 Wall Street Extension project. Goal 2.1 (Policy 22) is satisfied because as explained in detail below, there is substantial scientific evidence in the record that on balance, the proposal will improve wetland functions and values, and will thereby protect and enhance natural resources as a result of a the project. Likewise, Goal 5.1 (Policy 13) is satisfied because linkages between wetland habitat areas will be preserved and improved as part of this project, as explained in detail below and in the applicant's materials. 7. Comprehensive Plan Housing Policies. Mr. Frewing argues that the city's comprehensive plan policies relating to housing are not met by this application. We disagree. Goal 10 (Policy 5) is satisfied because the proposed Phase 2 extension of Wall Street will provide direct access from higher-density housing (R-25)that is planned on Mr. Fields' site, to downtown,the library, city hall, and transit facilities. 8. Channel Migration. Mr. Frewing asserts that the location of the channel of Fanno Creek could migrate and that the length and height of the proposed bridge should be increased to accommodate this potential channel migration. Mr. Frewing has not submitted any evidence demonstrating that Fanno Creek channel is likely to meander. In this case there is no evidence that Fanno Creek is likely to meander out of its present channel, or that the proposed bridge would interfere with the Fanno Creek stream channel. The proposed bridge over Fanno Creek is 32o feet long, and will be located roughly six feet above the elevation of the creek. The bridge will span the creek, the floodway, and most of the floodplain. Even if Fanno Creek were to meander,there is no evidence in the record that it is likely to meander outside the floodway or the floodplain. Furthermore, there is no evidence that Fanno Creek would change course so drastically that it would undermine the proposed 320-foot bridge span or its embankments. PDXDOCS:1905147.1 196080-0005 4111 PO RTtAN D,OREGON SEATTLE,WASHINGTON VANCOUVER,WASHINGTON MILLER NASHLIP CENTRAL OREGON ATTORNEYS AT LAW WWW.MILLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page 4 As you can see from the photos submitted by Ms. Wright, the Ash Street Footbridge referred to in her materials is a comparatively short bridge that barely spans the creek itself. On the other hand,the bridge proposed in this case is 320 feet long and is elevated roughly six feet above the creek. Our proposed bridge will completely span the creek, the floodway, and most of the floodplain. In short, there is no evidence in the record that a bridge of this length, height, and design would interfere with the Fanno Creek channel. 9. Change in Policy. Mr. Frewing suggests that it is "possible that the City of Tigard policy has changed since the earlier time, given the new Comprehensive Plan, the new zoning classification (residential) of the Fields property and continued erosion along this stretch of Fanno Creek." Because of these changes, he argues that reference to the alternatives considered in the Phase 1 approval should be disregarded. We disagree. The changes referred to by Mr. Frewing do not change the fact that nine alternative roadway locations and four alternative bridge designs were considered by the city for the Wall Street Extension, and that those alternatives and the analysis of those alternatives are part of the record in this case. Despite the changes referred to by Mr. Frewing, there is no evidence in the record that any of the nine alternative roadway locations are any more viable now than they were then. No one has asserted that any of the other nine alternative roadway locations are more viable now than they were then. Similarly, despite the changes referred to by Mr. Frewing, there is no evidence in the record that any of the four alternative bridge designs are any more viable now than they were before. In short, none of the changes referred to in Mr. Frewing's statement invalidate the alternatives analysis conducted in 2005. If anything, the changes referred to by Mr. Frewing reinforce the city's 2005 decision that the proposed location of the Wall Street Extension is still the most viable location today. Furthermore,these changes reinforce the city's 2005 decision that a 320-foot-long bridge is the most viable bridge length, and that a longer bridge remains cost-prohibitive today. 10. TSP. Mr. Frewing argues that the application is not consistent with the 2002 TSP. We disagree. As shown in our application, and as indicated at the hearing, Figures 8-3, 8-11, and 8-19 in the city's 2002 TSP all show the proposed Wall Street Extension in this general alignment. (See applicant's Exhibit K.) Four years later, in 2006, the city approved and constructed the Phase 1 extension of Wall Street within the general alignment shown in the city's TSP. (See CPA 2004-00001.) Also in 2006, the city provided Mr. Fields with an easement to allow a further extension of Wall Street to his adjacent property. (See applicant's Exhibit F.) This planned roadway extension in PDXDOCS:1905147.1 196080-0005 ® PORTLAND,OREGON SEATTLE,WASHINGTON VANCOUVER,WASHINGTON MILLER NASH--P CENTRAL OREGON ATTORNEYS AT LAW WWW.MLLLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page 5 this location is referred to in the city's Phase 1 permit applications as the "Phase 2" Extension of Wall Street. (See applicant's Exhibit H.) The specific location and design of the proposed "Phase 2" extension was anticipated in the 2005 permit applications submitted by the city for both phases of the Wall Street Extension project. Those improvements were determined by City Council to be consistent with the city's TSP. As stated in the city's 2005 permit applications, the proposed"Phase 2" improvements were described as follows: "A 320 foot bridge over Fanno Creek will span both the creek and its floodway. Bridge details are shown on Sheets 7&8. At the bridge crossing, the paved width will be reduced to 36 feet (two 12ft travel lanes and two 6ft. bike lanes)with curbs, sidewalks and handrails for a total right-of-way-width of 5o feet. The bridge will be constructed in four 8o foot sections using precast prestressed concrete slabs supported by three rows of eight 16-inch diameter steel pipe piles at the junction of each of the sections. The piles will be located outside the stream channel and delineated wetland areas. Since the bridge approach will be constructed on top of up to 8 feet of fill,the elevation of the bridge deck will be located approximately 8 feet above the ground level adjacent to the top of bank of Fanno Creek. Wildlife movement will be possible underneath the bridge deck along Fanno Creek." This is the same plan that is before the city for approval today. For these reasons, and for the other reasons discussed in the applicant's materials, the proposed Phase 2 extension of Wall Street is consistent with the city's TSP. 11. FEMA/Portland Audubon Settlement. Mr. Frewing asserts that the FEMA/Audubon settlement (the "Settlement") puts the city at risk if any landform changes occur in the floodplain. We disagree. The city was not a party to this lawsuit and is not liable as a result of the Settlement. The Settlement involves an agreement by FEMA to initiate formal consultation with USF&W when certain revisions to the floodplain occur in the future. In the meantime, under the terms of the agreement, FEMA will process Conditional Letters of Map Change ("CLOMC") to ensure that alterations do not cause a net loss of habitat function and value. Nothing in this agreement states the city will be at risk for any landform changes to the floodplain. In this case, there is no evidence in the record that a CLOMC would be required,because the applicant's proposal will not have any net effect on the floodplain, due to compliance with the zero rise regulations. Even if a CLOMC was required by PDXDOCS:1905147.1 196080-0005 ® PORTLAND,OREGON SEATTLE,WASHINGTON VANCOUVER,WASHINGTON MILLER NASHLLP CENTRAL OREGON • ATTORNEYS AT LAW W W W.MI LLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page 6 FEMA, there is substantial evidence in the record that this project will not cause a net loss of habitat functions or values, for the reasons described below and in detail in our application. Finally, the Settlement between FEMA and the Portland Audubon Society is not a relevant criteria in this land use case, and cannot be used by the city as a basis for denying our land use applications. For all of these reasons, the FEMA/Portland Audubon Settlement is not relevant to this land use request. 12. ESEE. Mr. Frewing asserts that the applicant's ESEE was done based upon the assumption that Mr. Fields' property is zoned for industrial rather than residential use and that it must be deleted and replaced with an ESEE relating to residential use of the site. We disagree. While Mr. Frewing is correct that the original ESEE done in 2009 considered the then-current industrial zoning of the property,the original ESEE analysis anticipated the rezoning and specifically stated that "regardless of the zoning designation for this property, the proposed bridge access is necessary and the conclusions of this analysis are essentially similar." (See applicant's Exhibit R.) Moreover, after the property was rezoned from industrial to residential use, a revised ESEE analysis was provided to the city as part of our January 15, 2010, submittal. (See applicant's Exhibit R.) This updated ESEE analysis expressly considered the ESEE effects of the project based upon the newly-adopted residential zoning for the site. For example, the updated ESEE concludes that: "If allowed, development of the facility would have two very clear benefits. First, it would help accomplish the eventual connection of Hall Blvd. and Hunziker Road, via Wall Street, which is called for in the City's Transportation System Plan. It would also allow development of the Fields site, providing temporary construction jobs and housing density goals to be achieved . . . [01n-balance . . . the "allow" alternative should be adopted because it will result in significantly more potential economic and social benefits, while potential environmental and energy consequences would be minimal." The updated and original ESEE analysis both came to the same conclusion, namely that the "allow" alternative should be adopted. The earlier ESEE analysis was based on the then-current industrial zoning of the property, but anticipated that it would be rezoned to residential use. The updated analysis is based on the current residential zoning. Taken together, both the original and updated ESEE expressly state that regardless of how the property is zoned, the proposed bridge is necessary and the ESEE conclusions would be similar. The updated ESEE analysis submitted on January 15, 2010, confirms our earlier ESEE analysis, and expressly considered the PDXDOCS:1905147.1 196080-0005 ® PORTLAND,OREGON SEATTLE,WASHINGTON MILLER NASH- VANCOUVER,WASHINGTON CENTRAL OREGON ATTORNEYS AT LAW WWW.MILLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page 7 impacts of the newly-enacted residential zoning for the property. For these reasons, Mr. Frewing's assertions are incorrect. • Other testimony and comments received at the hearing and during the time the record was left open question whether the applicant's wildlife assessment should be broader or more detailed. As the hearings officer noted in the Fanno Creek Trail and Bridge case,the city has no authority to impose such a requirement because the code does not establish any minimum standards for the conduct of a wildlife assessment. The ESEE analysis that the applicant is required to perform in this case is a creature of state law, specifically Statewide Goal 5 and its administrative rules. These criteria do not require the applicant to analyze individual species. Rather, OAR 660-23-040 expressly provides that "[t]he ESEE analysis need not be lengthy or complex . . . " In this case, the applicant used a set of qualified consultants to conduct the ESEE, namely John van Staven and Shawn Eisner with Pacific Habitat Services, and Tom Wright,AICP with Group Mackenzie. The applicant's consultants followed the process described in the rule and reached a conclusion supported by substantial evidence in the record. No party has specifically challenged the adequacy of the applicant's ESEE analysis with regard to the relevant approval criteria. For these reasons, and the reasons set out below, the ESEE performed by the applicant's consultant meets the relevant approval criteria and constitutes substantial evidence in the record. 13. Public Support Facilities. Mr. Frewing asserts that the term "public support facilities" does not include transportation facilities, bridges, or supporting facilities like footings or pilings. We disagree. We begin by noting that Mr. Frewing's assertion ignores the hearings officer's decision in the Fanno Creek Trail and Bridge case. (See applicant's Exhibit U). In that case, Mr. Frewing made the same arguments he is making now with regard to the provisions of TDC 18.775.070. In the Fanno Creek Trail and Bridge case, he argued that a bridge and its support facilities cannot be built in the floodplain if the site is zoned for residential use. Mr. Frewing's argument was rejected by both the city staff and by the hearings officer. In the city's staff report in the Fanno Creek Bridge case, staff noted that "Most of the work is proposed within the 100-year floodplain and floodway." (Staff report at 2 of 15.) Grading is shown in the floodplain on the maps attached to the staff report. Even though most of the work proposed in that case would occur within the floodplain, staff clearly stated that: "Land form alterations within the 100-year floodplain are permitted within the commercial and industrial zones. Community Recreation and Public Support Facilities are permitted within residential zones as an exception. The trail and sidewalk therefore, are permitted within the R-12 zoning. This PDXDOCS:1905147.1 196080-0005 ® PORTLAND,OREGON SEATTLE,WASHINGTON MILLER NASH- VANCOUVER,WASHINGTON CENTRAL OREGON ATTORNEYS AT LAW WWW.MILLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page 8 standard is met." (Staff report at 6 of 15.) The staff report definitively states that "The proposed improvement on this site (sidewalk widening and signal installation) is classified as a Public Support Facility." (Staff report at 11 of 15.) In the hearings officer's detailed opinion, he agreed with staffs conclusion and elaborated on the issue in response to opposing testimony provided at the hearing. The hearings officer's findings are particularly noteworthy and highly relevant to our case because they explain the city's interpretation of the sensitive lands provisions in TDC 18.775.070 as they relate to planned transportation facilities located in the floodplain. In that case, the hearings officer carefully explained how the provisions in the sensitive lands section of the code work together with the city's TSP to allow planned transportation facilities to be constructed through the floodplain, even on residentially zoned lands. With regard to planned transportation facilities located in the floodplain, the hearings officer found as follows: "i. The opponents interpretation that the elevation standard of TDC 18.775.o7o.B(5) applies to the entire boardwalk structure, would likely preclude all pathways that cross any portion of the floodplain below the average annual flood elevation. With the exception of relatively narrow floodplain areas, it would be impossible to extend a bridge or boardwalk over such areas without using support that extend below the elevation of the average annual flood. However the City's adopted transportation plan clearly shows pathways crossing floodplain areas." (See hearings officer decision at 20, attached.) (Emphasis added.) "ii. The appellants argue that, because this criterion is included in the sensitive lands section of the Code, it must be intended to protect sensitive lands by prohibiting structures that could catch debris or increase flood levels. However,this standard is not necessary to achieve those purposes. A surface pathway below the elevation of the average annual flood would have no effect on flood levels or debris flows. These problems only arise with elevated pathways located on fill or a boardwalk, bridge or other structure. Compliance with the "no-rise" standard of TDC 18.775.070.B(1) is sufficient to ensure that any structure supporting a pathway will not impact flood heights." (See hearings officer decision at 20.) "d. Therefore the hearings officer finds that the elevation requirement of TDC 18.775.070 B(5) only applies to the surface of the boardwalk,where the "pathway" is located. As discussed above, the PDXDOCS:1905147.1 196080-0005 ® PORTLAND,OREGON SEATTLE,WASHINGTON MILLER NASH LLP VANCOUVER,WASHINGTON CENTRAL OREGON ATTORNEYS AT LAW W W W.M ILLER NASH.COM City of Tigard Planning Commission October 15, 2010 Page 9 surface of the boardwalk can be located above the average annual flood. Therefore the applicant can comply with TDC 18.775.o7o.B(5)." (See hearings officer decision at 21.) In other words, when dealing with planned transportation facilities in floodplains, the hearings officer made a clear distinction between the need to locate the surface of planned public transportation facilities above the floodplain elevation and the competing need for public support facilities to extend below the floodplain elevation to support these transportation facilities. As he correctly concluded, unless the provisions of TDC 18.775.070 are interpreted in this way, it would be "impossible"to construct planned transportation facilities through the floodplain, except in relatively narrow floodplain areas. 14. Miscellaneous Issues. a. Minimum Disturbance to the Wetland Required for the Proposed Use. Mr. Frewing argues that the residential zoning of Mr. Fields' adjacent property must be considered when determining whether the sensitive land criteria pertaining to wetlands are met for the proposed Phase 2 extension of Wall Street. We disagree. In this case, the proposed use is a public street, not a residential development. Even if the proposed use in this case was residential development, the minimum disturbance to the wetland required for a proposed bridge that would provide access to Mr. Fields' residential property would be the same as it would be if the Fields site was still zoned for industrial use, because the same bridge would be built. • b. Impact Statement. Mr. Frewing also argues that the applicant did not provide an impact study required by TDC 18.390.050(B)(2)(e). We disagree. The October 3, 2009, application contains an impact study on page 36. c. Alternative Access from the Northwest. Mr. Frewing suggests that alternative access might be available from property located northwest of the TTSD bus facility property. We disagree. The property located north of the TTSD bus facility property does not abut Mr. Fields' property. It therefore does not provide access to this property. As Mr. Frewing notes, TTSD has decided not to move its bus facility, so access through the TTSD bus facility is not feasible. Even if the property identified by Mr. Frewing could be used for access,there are significant wetlands, floodplain, and other constraints on the intervening property that would significantly impact natural resources in that area. There is no viable street access to Mr. Fields' property from the property identified by Mr. Frewing. PDXD005:1905147.1 196080-0005 410 PORTLAND,OREGON SEATTLE,WASHINGTON MILLER NASH IL' VANCOUVER,WASHINGTON CENTRAL OREGON ATTORNEYS AT LAW WWW.MILLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page 10 15. Traffic Control. Mr. Frewing argues that the applicant has not addressed the potential need for traffic control at the west end of the proposed bridge. At the time development is proposed for property that would access the proposed Phase 2 extension of Wall Street, a traffic study will be required and the need for any traffic control at the west end of the bridge will be determined, consistent with the relevant approval criteria. 16. Public Benefit. Mr. Frewing asserts that because wetland permits must be obtained from DSL and the Corps, that the city must determine whether there is a public benefit to the proposed extension of Wall Street. We disagree. The fact that wetland permits are required does not mean that the city is required to make an overall determination concerning public benefit. Public benefit is not relevant approval criteria in this case. Nonetheless, we understand that the Planning Commission wants to know what the public benefits are of this project. The public benefits of this project are numerous and significant. For example: a. The Proposed Project Improves Wetland Functions in the Fanno Creek Floodplain. This planned street extension will span Fanno Creek and its floodplain, and in doing so, will impact a very small area of the wetland totaling 0.19 acres. Even so, there is substantial evidence in the record that wetland functions will actually be improved by the proposed project. In this case, public testimony has focused on the negative environmental impacts that could result from the project. This testimony ignores substantial evidence in the record that examines the cumulative effects of the project—both positive and negative—on wetland habitat functions in the floodplain, as a result of this project. Specifically, there is evidence in the record from two independent environmental consulting firms hired by the city, who have determined there will be a net gain in wetland habitat functions as a result of the project and its proposed mitigation. What that means is that a public facilities project done right,like this one, can have significant environmental benefits. In 2005, the city employed SWCA Environmental Consultants to perform a detailed scientific evaluation of the existing functional attributes of the wetlands and surrounding project area, using a scientifically-based Hydrogeomorphic (HGM) assessment process, specifically adapted to the Willamette Valley ecoregion. (See applicant's Exhibit H.) This evaluation examined thirteen critical habitat functions, including: water storage and delay, sediment stabilization and phosphorous retention, nitrogen removal, thermoregulation, primary production, resident fish habitat support, anadromous fish habitat support, invertebrate habitat support, amphibian and turtle PDXDOCS:1905147.1 196080-0005 PORTLAND,OREGON SEATTLE,WASHINGTON MILLER NASHL" VANCOUVER,WASHINGTON CENTRAL OREGON ATTORNEYS AT LAW WWW.MILLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page rr habit support,breeding waterbird support, wintering and migratory waterbird support, songbird habitat support, and support of characteristic vegetation. SWCA(the city's own consultant at the time) objectively scored these functions prior to the project,based on their expertise, research, and field observations. They then scored the same functions assuming that the proposed mitigation was installed and reasonably maintained, to determine what the net gain or loss in habitat would be,based on each of the thirteen functions measured, and from an overall standpoint. As the results shown in applicant's Exhibit H indicate, there will be a substantial net gain in overall wetland functions as a result of the mitigation proposed as part of the project. These increases occur with regard to vegetation diversity and structure, water storage and delay, nitrogen removal anadromous fish habitat, amphibian and turtle habitat, and wintering and migratory waterbird habitat. In 2007, when the city renewed its wetland permits, it also updated its analysis with regard to the effect of its compensatory wetland mitigation plan associated with the Wall Street Extension. This time it hired a different consultant, ZION Natural Resources Consulting. Zion's detailed scientific analysis is included in applicant's Exhibit N. They concluded that with the proposed revisions to the on-site mitigation, "functional attributes will improve." In particular they noted that the updated design "incorporates the reduction of water velocities, provides refuge for young fish during high flow times, will likely increase the presence of invertebrates, and prevents fish entrapment as the hydrology recedes from the site." They also noted that "the area in which these improvements or gains will occur as a result of the mitigation effort will be in water storage and delay, nitrogen removal, thermoregulation, anadromous fish habitat support, invertebrate habitat support, amphibian and turtle habitat, wintering and migratory waterbird support and songbird habitat support." Zion concluded that: "This revised CWM design illustrates that an area will be excavated to provide a very dependable water source for seasonal inundation and the establishment of high native species diversity. There is expected to be no loss of functions through the impact of the wetlands once compensated through the implementation of this mitigation plan." (Emphasis added.) In short, two independent scientific studies, one in 2005, and another in 2007,both commissioned by the City of Tigard, indicate that no loss of habitat functions will occur as a result of the proposed Wall Street Extension project. In fact,both studies concluded that "functional attributes will improve" as a result of the proposed project. If this does not constitute substantial evidence in the record, it is difficult to understand what would. PDXDOCS:1905147.1 196080-0005 ® PORTLAND,OREGON SEATTLE,WASHINGTON MILLER NASH«P VANCOUVER,WASHINGTON CENTRAL OREGON ATTORNEYS AT LAW WWW.MILLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page 12 b. The Proposed Project Protects the City's Ability to Connect Hall Boulevard to Hunziker Street. We realize that the railroad has denied an at-grade crossing of the railroad tracks and as a result, it is not likely that Wall Street will be extended to connect Hall Boulevard with Hunziker in the immediate future. We also understand the challenges that an above-grade or below-grade crossing might present. Nonetheless,the factors that led to the railroad's decision not to allow an at-grade crossing may change in the future. For example, use of this area for rail car storage may change and the need for a public crossing may begin to outweigh other factors. Given the growth and changes that occurred in the city over the last 25 years, such change could certainly occur during the planning period. The city's updated TSP has a planning period of 25 years. Factors that led the railroad to deny an at-grade crossing today, can and likely will change during this 25-year planning period. It is important for the city to consider the long-term need to preserve the opportunity for this connection. Approving the Phase 2 improvements to Wall Street protects the city's ability to connect Hall Boulevard to Hunziker in the future. c. The Proposed Project Protects the City's Ability to Connect Hall Boulevard to Milton Court. Even if Hall Boulevard cannot be connected to Hunziker because the railroad will not allow an at-grade crossing,the city has a continuing interest in connecting Hall Boulevard with Milton Court, via the proposed Wall Street extension. This connectivity goal is shown in the city's TSP and provides important benefits to the city, regardless of whether Wall Street is ultimately able to be extended over the railroad tracks to Hunziker. For example, this street connection would provide an important connectivity opportunity between the library, City Hall, and other civic uses, and in doing so would improve pedestrian, bicycle, and automobile circulation. Moreover, it would provide access to Mr. Fields' property and would generally increase connectivity in the area. d. The Proposed Project Promotes the Development of Workforce Housing Near Downtown. When Mr. Fields' property was rezoned by City Council last year, City Council made it clear in its findings that the city needs workforce housing in this location and that development of this site is likely to result in workforce housing that is conveniently located near downtown. Specifically, City Council determined that: "The evidence indicates that there is an inadequate amount of developable, appropriately designated land for a substantial,well-planned, medium-density housing site in close proximity to downtown and industrial uses, that can significantly contribute to the synergy of this unique area. The testimony shows that the development on the site that • PDXDOCS:1905147.1 196080-0005 1l1 PORTLAND,OREGON SEATTLE,WASHINGTON MILLER NASH--P CENTRAL REGONNCTON ATTORNEYS AT LAW WWW.MILLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page 13 would likely result from the proposed R-25 zoning would be medium- density workforce housing. The evidence shows that such housing would likely be able to meet minimum density requirements for the R-25 zone, while still protecting Fanno Creek, the wetlands, the wetland buffer, and most of the forested area on the site by clustering development in the upland areas away from most of the trees. The evidence further shows that the style of housing that would result would likely be single-family attached units of two to three stories on individual lots, which would be compatible with the surrounding single-family residential neighborhood. This type of development would also support the City's Downtown Plan and be supportive of the nearby open space and trail networks by contributing to and extending public infrastructure into the site, including the public pathway and open space system along Fanno Creek." e. The Proposed Project Promotes a Land Use and Transportation System that Reduces Dependence on the Automobile and Increases Opportunities for Walking, Biking, and Transit. When City Council issued its decision concerning the rezoning of Mr. Fields' property, it also determined that the rezoning would promote a land use and transportation pattern that would reduce dependence on the automobile and increase opportunities for walking, biking, and transit. City Council made the following specific finding in that regard: "Redesignation of this particular site to R-25 helps promote a land use pattern that reduces dependency on the automobile, is compatible with existing neighborhoods, and increases opportunities for walking, biking, and transit. As the evidence indicates, there are currently more jobs in Tigard than people in the workforce living within the City. The comprehensive plan recognizes the need to create workforce housing opportunities close to downtown, close to jobs, and close to transit and trail systems. As explained elsewhere in these findings, and as explained extensively by the applicant in its materials, this property's proximity to transit, trails,jobs, the downtown, and nearby civic and open space uses creates an important opportunity to reduce dependency on the automobile in a way that is compatible with existing neighborhoods surrounding the site, and in doing so, creates opportunities for walking,biking, and increasing public transit use." f. The Proposed Project Helps the City Achieve its Workforce Housing,Transportation, and Economic Development Goals. The city is required by Goal 10.1 in its Comprehensive Plan to provide opportunities for a variety of housing PDXDOCS:1905147.1 196080-0005 ® PORTLAND,OREGON SEATTLE,WASHINGTON MILLER NASHLLP VANCOUVER,WASHINGTON CENTRAL OREGON ATTORNEYS AT LAW WWW.MILLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page 14 types to meet the diverse housing needs of current and future city residents. Pursuant to the implementation measures under that goal, workforce housing is one of the types of housing that the city must provide. According to the city's buildable lands map, this site is the largest buildable R-25 site in the city. As mentioned above, City Council has found that this is an important workforce housing site. As mentioned previously,the city also has an obligation to implement projects on its adopted TSP, such as the Wall Street extension. The need for the Phase 2 Wall Street extension does not depend on its ability to cross the railroad tracks. The Phase 2 extension is also needed to provide connectivity to Milton Court and to provide access to the Fields property. Finally, from an economic development standpoint, Oregon's current unemployment rate is approximately 10.6%. The proposed public street extension will create needed construction jobs while the project is being built. This public street extension project will in turn allow more jobs and more tax revenue to be generated for the city, once needed housing is built on this site. Workforce housing on this site will in turn satisfy other important goals and policies, as discussed in detail in City Council's decision to rezone the Fields property from industrial to residential use. It should also be noted that Mr. Fields' 25-acre residentially zoned property is the largest buildable residential site in the city, and is the largest R-25 site closest to downtown. This is an extremely important workforce housing site. Appropriate access must be provided to this needed housing site. 17. Other Comments by Mr. Frewing. a. Wildlife Habitat Study. Mr. Frewing asserts that the wildlife habitat study associated with our wetland impact analysis is incomplete. For the reasons discussed above and elsewhere in the record,we respectfully disagree. b. Oxbow. With regard to the "oxbow" in Fanno Creek north of the eastern bridge abutment, the direction of flow of the creek will not threaten the abutment,because during a flood event, if the creek were to jump the channel at the oxbow mentioned by Mr. Frewing, it would likely do so north of the bridge before reaching the eastern abutment, thereby following the contours and rejoining the main channel. Furthermore, the eastern abutment is heavily reinforced with a wingwall, which would protect the bridge during a flood event. c. Wildlife Movement. With regard to wildlife movement, there is ample height under most of this 32o-foot-long bridge for wildlife to easily pass under it. There is approximately five to six feet of clearance under most of the bridge, for a distance of 32o feet. This is a significantly wide and tall wildlife corridor. There is no PDXDOCS:1905147.1 196080-0005 4ID PORTLAND,OREGON SEATTLE,WASHINGTON MILLER NASH- VANCOUVER,WASHINGTON CENTRAL OREGON ATTORNEYS AT LAW WWW.MILLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page 15 evidence in the record indicating that this bridge design would present any significant deterrent to wildlife movement. 18. Comments from the Portland Audubon Society. The Portland Audubon Society's (PAS) letter asserts that the applicant's proposed comprehensive plan amendment will somehow jeopardize the city's compliance with Goal 5 or the region's functional plan. We disagree. The city's comprehensive plan and zoning code are currently acknowledged and are in compliance with all of the Statewide Planning Goals and the Metro Functional Plan. TDC 18.775.130 provides a mechanism for any property owner affected by Goal 5 safe harbor protections of significant wetlands,to apply for and obtain a quasi judicial comprehensive plan amendment under a Type IV procedure without violating Goal 5 or the functional plan. 19. Comments from Krisstina Wright. Ms. Wright's comments raise several issues. First, she asserts that a winter steelhead was sighted in Fanno Creek at the Ash Street Footbridge on April 21, 2005. However, the photos and other materials submitted do not prove that the fish in the picture is a winter steelhead. No independent confirmation by USFWS was provided. Nonetheless, even if winter steelhead are currently present in this reach of Fanno Creek, that fact would not change the applicable criteria or outcome of this case. For the reasons contained in the September 7 letter from Ms. Huynh, and the September 9 letter from Mr. Eisner that we submitted earlier, the presence of a winter steelhead in this creek would not require the preparation of an EIS, as asserted by Ms. Wright at the hearing. Second, with regard to the effects of a bridge placed over Fanno Creek, none of the bridges described in Ms. Wright's material are similar to the bridge proposed. The bridges shown in Ms. Wright's photos barely span the Fanno Creek channel. Our bridge has a span of 320 feet and completely spans the creek,the floodway, and most of the floodplain. Testimony in the record by two independent firms hired by the city demonstrate that there will be positive cumulative effects on wetland habitat and functions, as a result of this project. Third, with regard to earthquakes, the applicant will meet all applicable seismic requirements, as indicated in Group Mackenzies' memo dated September 1, 2010. PDXDOCS:1905147.1 196080-0005 411) PORTLAND,OREGON SEATTLE,WASHINGTON MILLER NASHLLP VANCOUVER,WASHINGTON CENTRAL OREGON ATTORNEYS AT LAW WWW.MILLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page 16 Applicant's Response to the October 8 Addendum to the Staff Report 1. Pivot-Road Alternative. The applicant submitted a "pivot-road" alternative as a good-faith response to the Planning Commission's request to see other alternatives. From our standpoint, the pivot road option further minimizes impacts to natural resources by avoiding any impacts to the wetland area. The trade-off is that the curve in the road, which is needed to avoid wetland impacts, would require the city to cooperate, because it will necessitate slight changes to the library parking lot and approach area. The applicant has submitted a separate application to the city for this pivot road option. That application will be decided by the city's land use hearings officer. If the hearings officer denies the pivot road option, it isn't viable. Even if the hearings officer approves the pivot road alternative, this option will not be viable unless the city agrees to cooperate with regard to the changes needed in the library parking lot area. We hope this option proves to be viable, but its viability ultimately depends upon the city's cooperation. 2. Adjustment to Remove Planter Strip Width From Bridge. The applicant requested removal of planter strips on the 32o-foot bridge to minimize the environmental impacts of the proposal. Staff opines that the applicant has not demonstrated how a wider bridge would have unacceptable environmental impacts and that therefore the planter strips should be included in the bridge design. The applicant notes that the city approved its own request to remove planter strips in its Phase 1 Wall Street decision based on the same reasoning. (See Wall Street Decision, page 10 of 33.) Five-foot planter strips on both sides of the road would add 10 feet in width to the 320-foot bridge, for an additional disturbance area of approximately 3,200 square feet. A narrower bridge would create less thermal mass (heat) and would thereby reduce potential thermoregulation effects from the bridge. A narrower bridge also casts a smaller shadow and require less maintenance, further lessening environmental impacts. Because TDC 18.370 allows an adjustment where strict application of the street improvement standards would result in adverse impacts to natural features, and because TDC 18.775.o70.E.3 requires that site disturbances be minimized in this application, the adjustment criteria in TDC 18.730 are therefore met. 3. 18.775.040(H) - General Provisions for Floodplain Areas — Water Supply Systems. Staff notes that "a provision for extending water services across with the bridge needs to be incorporated into the project design for the structure." We agree. The applicant will incorporate provisions for water services across the bridge during final design. The proposed bridge can accommodate all needed utilities, and approval should be conditioned accordingly. PDXDOCS:1905147.1 196080-0005 ® PORTLAND,OREGON SEATTLE,WASHINGTON MILLER NASHLLP CENTRAL R,OREGON CENTRAL OREGON ATTORNEYS AT LAW WWW.MILLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page 17 4. 18.775.o7o(B)(1) – No Increase in Flood Levels During Base Flood Discharge. The applicant's original submittal on October 3, 2009 demonstrated balanced cut and fill to meet this zero-rise criterion. At staffs request, the applicant removed the cut areas shown on the submittal documents. Staff subsequently stated that because the cut areas were not shown,this criterion was not met. The applicant then re-submitted the documents showing where the balanced cut could take place on city property to ensure that there is no increase in the base flood level as a result of this application. Staff then objected to the location of re-submitted balanced cut areas on city property, based on concerns about arsenic contamination and proximity to the library building. On September 10, 2010, the applicant submitted plans showing where the balanced cut can take place on the applicant's property as shown on Sheet R2.6o. These cut locations are on the applicant's property and equal the volume of fill contemplated in this application. These cuts ensure that there will be no increase in flood levels during base flood discharge, pursuant to 18.775.o7o(B)(1). Because the applicant is proposing to balance all proposed fill with an equivalent cut in the floodplain, there will be no increase in flood levels during a base flood and this criterion is met. Staff also raises concerns about arsenic contamination on the library site. The applicant notes that no city approval criterion require arsenic contamination issues to be addressed during the local land use review process. Arsenic contamination is a regulatory issue under the jurisdiction of DEQ and EPA, not the city. The city was aware of this arsenic contamination during the Phase 1 Wall Street Extension,the Tigard Library case, and the Woodruff Bridge case—all involving the same city property. Arsenic contamination issues were not raised during the land use review process, because those issues were not relevant to the land use criteria in those cases. Similarly, the arsenic issue is not relevant here. As noted above, DEQ and EPA have exclusive jurisdiction with regard to these contamination issues. Those agencies will require compliance as part of their review,just as they did for the city's projects. 5. i8.775.070(B)(2) – Development Associated with Public Support Facilities in Residential Zones. Staff maintains that the fill and pilings that support the proposed bridge are not "development associated with public support facilities" and therefore are not allowed in the floodplain under TMC 18.775.o7o.B.2. The applicant has demonstrated that fill and pilings associated with a bridge are "development associated with public support facilities" as analyzed in our January 15, 2010 submittal at Exhibit U, in the Miller Nash letter of August 16, 201o, and in the applicant's response to the staff report, dated August 16, 2010. PDXDOCS:1905147.1 196080-0005 ® PORTLAND,OREGON SEATTLE,WASHINGTON MILLER NASHLLP CCEENTRAL NTRAL R,WASHINGTON OREGON ATTORNEYS AT LAW WWW.MILLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page 18 As staff acknowledges, the pilings and fill associated with the Woodruff Bridge case are located on the residentially zoned land in the floodplain. These pilings and fill for the city's bridge were determined to be "development associated with a public support facility." So, too, are the pilings and fill associated with this public bridge. It would be both unlawful and unfair for the city to interpret this provision one way for its own public bridge and another way for the public bridge we are proposing. In addition, under staffs proposed new definition of"development associated with public support facilities", sidewalks, curbs, and streetlights supported by the fill and pilings would be "development associated with public support facilities" and could therefore be located in the floodplain itself, but fill and pilings that would elevate these facilities above the floodplain are not. Such an interpretation simply makes no sense, and is certainly not supported by the text and context of the regulation. As in the Woodruff Bridge case, the fill and pilings associated with this public bridge, is development associated with public support facilities. Furthermore, in this case, staffs interpretation would require a bridge that spans the entire Fanno Creek floodplain—a span of approximately 50o feet. This would produce both an absurd and economically unfeasible result. The proposed Fanno Creek crossing location was chosen by the city in 2005, because the floodplain is relatively narrow at this point—about 500 feet. The city's alternatives analysis concluded that bridges longer than the 32o-foot proposal (comprised of four 8o-foot spans) would be cost prohibitive. To put this in perspective, a 500-foot span bridge would be longer than any other bridge span on the Willamette River in Portland, except the Fremont Bridge, which has a clear span of 1,255 feet. 6. 18.775.070(E)(3) —Wetlands —The Proposed Development Shall Not Create Site Disturbances to an Extent Greater Than the Minimum Required for the Use. Staff argues that site disturbances could be minimized by accessing the site from Milton Court or by building a longer bridge. As documented in our August 16, 2010, letter there are twelve reasons why a Milton Court route is not a feasible alternative for primary access to this site, including significant environmental and safety concerns. We argue that Milton Court could be used as an emergency access and as a pedestrian/bike route,but only if property owners and related regulatory agencies cooperate. More sensitive lands would be impacted and more trees would need to be removed if Milton Court was used as a primary street access. Staff acknowledges that a significant portion of Milton Court is within the 100-year floodplain, but opines that it may not have been inundated during the 1996 flood. We note that from a regulatory standpoint, this is a distinction without a difference. Having Milton Court as the primary access to this site would create an unsafe condition for those living on the PDXDOCS:1905147.1 196080-0005 ® PORTLAND,OREGON SEATTLE,WASHINGTON MILLER NASH�-P CENTRAL R, G NNGTON CENTRAL OREGON ATTORNEYS AT LAW WWW.MILLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page 19 property. That is why the applicant proposes a bridge extending Wall Street above the floodplain to safely serve the site. Furthermore,the applicant's traffic engineer has provided substantial evidence that the Bonita Road-Milton Court intersection could not safely handle traffic from development on the applicant's property and that it would not be feasible to cure these problems with a traffic light at this intersection. • 7. 18.775.13o(A)(1) — ESEE Analysis Shall Consider the ESEE Consequences of Allowing the Proposed Conflicting Use. Staff repeats its argument that a Milton Court route or longer bridge may be able to provide access to the site and concludes that the ESEE is therefore incomplete. As the applicant explained above and in prior submittals, neither Milton Court nor a longer bridge are feasible alternatives to the proposed bridge. As the applicant discussed in Exhibit R of the October 3, 2009 submittal and in our August 16, 2010 response to the staff report, this criterion and ESEE law in general does not require the alternatives analysis that staff has requested, and that the applicant has nonetheless provided. This criterion is therefore met. 8. 18.775.13o(A)(2) — Demonstration Through ESEE That Adverse Economic Consequences Are Sufficient to Justify the Partial Loss of the Resource. As discussed on page 31 of the October 3, 2009, submittal at Exhibit R and in the applicant's August 16, 2010 response to the staff report, the submitted ESEE performs the required statutory analysis and concludes that "Allow" is the proper decision after analyzing the economic, social, environmental, and energy consequences of the proposal. The partial loss of.19 acres of wetlands and creation of a greater amount of wetland as mitigation for this loss, is justified in light of the substantial economic harm that would result from not allowing access to one of the largest sections of land in Tigard's buildable land inventory, particularly in light of the substantial environmental mitigation, plantings, and improvements associated with this project. In Exhibits H and N of the applicant's October 3, 2009 submittal, the applicant's environmental consultant submitted substantial evidence that the environmental impacts of this project are a net positive when the mitigation, restoration, and planting associated with the project are considered. There is no net loss in wetland because of this project and. In contrast, the economic consequences of denying access to one of Tigard's largest areas of buildable land would be substantial, for both the applicant and for Tigard. In rezoning this property to residential, Tigard recognized that this is one of Tigard's best locations for workforce housing close to its downtown. Without access, there can be no workforce housing on this site. Tigard will PDXDOCS:1905147.1 196080-0005 4-10 PORTLAND,OREGON SEATTLE,WASHINGTON MILLER NASH LIP VANCOUVER,WASHINGTON CENTRAL OREGON ATTORNEYS AT LAW W W W.MI LLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page 20 lose substantial tax revenue if this site cannot be developed with residential uses, and the applicant will be unjustly harmed. This criterion is therefore met. 9. 18.775.13o(A)(3) — Demonstration Through the ESEE Why the Use Cannot Be Located on Buildable Land and That No Other Sites Can Meet the Specific Needs. Staff repeats its argument that a Milton Court route or longer bridge may be able to provide access to the site and concludes that the ESEE is therefore incomplete. As discussed above and in the applicant's prior submittals, neither Milton Court nor a longer bridge are viable alternatives to the proposed Wall Street extension. This criterion is therefore met. 10. 18.810.030(E) — 72-Foot Right-of-Way Required. Staff argues that the applicant's 6o-foot-wide easement is insufficient to approve the application because a 72-foot-wide right-of-way is required to extend Wall Street, which is shown as a collector street on Tigard's TSP. As the applicant documented on page 39 of its October 3, 2009, submittal and on page 9 of the applicant's August 16, 2010 response to the staff report, this criterion is met because the city already owns all of the land needed for construction of this public street extension. There is nothing further needed in terms of public land ownership in order to build this street. Any needed right-of-way on Mr. Fields' property will be dedicated as required. This criterion is therefore met. 11. 18.810.o3o(A)(2) — Provisions for a Turnaround or Hammerhead. Staff argues that a turnaround or hammerhead must be provided on the east side of the proposed bridge. The applicant will provide such a turnaround on the east side of the proposed bridge as required by the city. This criterion can therefore be met with a condition of approval. 12. Statewide Planning Goal S — Open Spaces, Scenic and Historic Areas, and Natural Resources. Staff argues that Goal 5 is not met because the application does not comply with city code requirements and policies that implement Goal 5. As is discussed above and in prior submittals, the applicant complies with all city codes and policies, including those that implement Goal 5. This criterion is therefore met. 13. Statewide Planning Goal 8 — Recreation. Staff argues that Goal 8 is not met because the application will impact the Fanno Creek trail and surrounding open spaces. As discussed in the applicant's August 16, 2010 response to the staff report, the Wall Street extension has been anticipated in the city's land use regulations for a long time. This general alignment is shown on the city's TSP, and is depicted as an existing condition in the city's Fanno Creek Park Master Plan document and was discussed in PDXDOCS:1 905147.1 196080-0005 ® PORTLAND,OREGON SEATTLE,WASHINGTON MILLER NASH- VANCOUVER,WASHINC70N CENTRAL OREGON ATTORNEYS AT LAW WWW.MILLERNASH.COM City of Tigard Planning Commission October 15, 2010 Page 21 detail as part of the Phase 1 analysis for the Wall Street extension where an overall alignment was selected. All of these decisions were made in compliance with Goal 8. This proposal enhances recreational opportunities by allowing pedestrians and bicyclists access to the other side of Fanno Creek, where they are currently unable to walk or bike. This extension will therefore lead to additional access to trails and greenspaces on the other side of Fanno Creek that are currently unconnected to the trail and park system. The proposed design accommodates the existing trail system, and further refinements to better manage this intersection can and will be accomplished during final design. This criterion is therefore met. For all of the above reasons, the proposed application should be approved. Respectfully submitted, 4sh Phillip . Grillo cc: Mr. Fred Fields Ms. Cheryl Caines Mr. Rhys Konrad PDXDOCS:1905147.1 196080-0005 PLEASE SIGN IN HERE , o Tigard Planning Commission TIGARD Agenda Item # 5 Page J_ of c Date of Hearing I 0 Case Number(s) c ∎2- O�--cc 4AL442a°l -by 4SLR .- , 7 \ic> °2o\ coon "L— Case Name L-) call 6k rep_ o til , Cc-` t(G.S) Location L66.Co Tqc s j•k_ck. 2-S102.SOO ' C L b ZS \0 Z ii:SUrTck4C Lt- 2Za If you would like to speak on this item, please CLEARLY PRINT your name, address, and zip code below: Proponent (FOR the proposal): Opponent (AGAINST the proposal): Name: Name:jpottiQ prel N Address: Address: 71 S b'W V-1-91"-) r / City, State, Zip: City, State, Zip: US-1 Name: Name: M+ate)e'- S Address: Address:lMt() Stio fr1vlDCxee{-1jp City, State, Zip: City, State, Zipr�itgy (r q �a Name: Name: y- 2 4rr��.tr� Address: Address: a c ' 1 5C(YN o City, State, Zip: City, State, Zip:�i� `'�� Name: Name: '&S I Address: Address: ? 5 50 1\t-44% p L City, State, Zip: City, State, Zip: Name: Name: C „ e p /} Address: Address: /6,„2,s--0 0-4-1411-14-64 City, State, Zip: City, State, Zip:,_1 0 dL/ ?L `c PLEASE SIGN IN HERE Tigard Planning Commission TIGARD Agenda Item # Page 2_ of 5- Date of Hearing (O Case Number(s) CPF\ 2 °1--003)4( L22C.Xn-CY3OCA rSL 2.0C --Oa X4 vN 2010-- 00 -2-- Case Name LO,A 1C c '+ L>cV(Z<N ■ oti C.F e c& ) Location _ - p er., --- • i• cx • 2 S\S- ' " l00 Z 5102 O p) rC r If you would like to speak on this item, please CLEARLY PRINT your name, address, and zip code below: Proponent (FOR the proposal): Opponent ' "GAINST the proposal): Name: Name: (� �- Address: Address: ` City, State, Zip: City, State, 1P,. Name: Name: , .e.4 , Address: Address: \oc t\)vt) Li .- k! City, State, Zip: City, State, Zip: pmt ( 72.51 Name: Name: r- V• Address: Address:7 53 _ l do y' City, State, Zip: City, State, Zip: . QirAi 0 9 7 2,24..71/0 Name: Name: ; iudet4 Address: Address: 7 Cd (16 City, State, Zip: City, State, Zip 0 0/1(7)715._ Name: Name: Address: Address: City, State, Zip: City, State, Zip: PLEASE SIGN IN HERE m :y Tigard Planning Commission TIGARD Agenda Item # Page 1 of Date of Hearing 10 -1 g Case Number(s) i PA2_07c\ -DOCN /SLR?ccP\ ,c 14-[SLR-24)01 -e Coca_;I A Case Name Lo o11 �e - (��rf� eEA.S.) Location WA CZa SP.'SCR S Kfx DI 2 S 102 0 Cj Ma-o+ (oD "- If you would like to speak on this item, please CLEARLY PRINT your name, address, and zip code below: Proponent (FOR the proposal): Opponent (AGAINST the proposal): Name: �. Name:'(Y-pb,54., Address: Address: 11.3 '4 4L1 ' ck =" ,,j„ City, State, Zip: City,State, :. �Q ' 1� Y Name: Name: F o ER/Piet En_ Address: Address: e2 y� w, FANNO a"ex tyre_ City, State, Zip: City, State, Zip: 11 G 'Q r Oa- 4 7? Name: Name: ,r Address: Address: City, State, Zip: City, St.te, , ip: Name: Name: . ,tPpt eA A a.4 fo/4,07t— Address: Address: (3 ire s r0 f f City, State, Zip: City, State, Zip: � ,) 9 7 lZ s Name: Name: C7 A,I e , 7I S Address: Address: VI -4l S- Su/ ' -r"A v / City, State, Zip: City, State, Zip: 7"r Oa_ G' Z Z 3 PLEASE SIGN IN HERE U Tigard Planning Commission TIGARD Agenda Item # S Page ` of 3 Date of Hearing 10-t - tO Case Number(s) C FNnzr--\` +I c0 0n 41)004 IS Liz z _00005/ Case Name 1.0,6 \ S'ccer L :4-erkS Dj- C .,,eLks Location wNe.. � 53 c J c 5 102 DOTA7\4-coi- (0'0 2 S 0-z_®.Q c7-f\`6., ( 0- 2-°° If you would like to speak on this item, please CLEARLY PRINT your name, address, and zip code below: Proponent (FOR the proposal): Opponent (AGAINST the proposal): Name: Name: .1L L 1 013 r'; OJT Address: Address: 6,801 5v,) c Y - v&A/ e 4A-ST P.11••-• City, State, Zip: City, State, Zip: iv i L,,,, 0, e 1 Z Z r Name: Name: % v_i/ .- Address: Address: tQ� -.....•--- City, State, Zip: City 0�,- _ - j ,441 Name: Name: fir Address: Address: N70 / g , i :. /�1/7 City, State, Zip: City, State, Zip: toCci loci okiii rl ;41 ' Name: Name: ' -it'C N ,,,, 0,,_ 6,_'Q ‘' -•Address: Address: ' g ,• ► , fi '2' "Oie City, State, Zip: City, State, Zip: ‘ ` 0-re1 0 r Name: Name: pts.vvoLiAnickjm/15L/ Address: Address: 1(2...s (Q 0 J w --4.4et ti ,1,1-- ' ti Ci ty, State, Zip: Ci ty, State, Zip: ` PLEASE SIGN IN HERE Tigard Planning Commission TIGARD Agenda Item # S- Page 5 of S- Date of Hearing 1.0— 0 Case Number(s) C PA X00"\-0M0q!S--R "\ -0000 / Lz..^2.0EC) _OoU / �ASR 2O\O -. 0000 2_ Case Name LodA R-ete lS-) Location � ,� 'P,,�© �X \S ; 5 Ra p 5 1 o 00 7 Lb 1_ ) 2S \O2 If you would like to speak on this item, please CLEARLY PRINT your name, address, and zip code below: Proponent (FOR the proposal): Opponent (AGAINST the proposal): Name: Name: poLuk, Address: Address: 1 203 5' r.) 4-g ti yv\L art City, State, Zip: City, State, Zip: 77464.41) 0 q ?2,4q Name: Name: G�'� : J Address: Address: City, State, Zip: City, State, Zip: Name: Name: /0 g G 7`Gh ipt e k A S Address: Address: /6Lo f ./- nVIc �4 w f' 3rd City, State, Zip: City, State, Zip: o At A-0 of- Name: Name: &3 {—ry y P Address: Address: }3 $j G 61A) v\v\O C}r- 1 v' City, State, Zip: City, State, Zip:l lq s Name: Name: cn , rv_1 Address: Address: 3q3/4 6 W h O , bir,*k City, State, Zip: City, State, Zip: --- ;y t r cti z. 3 CITY OF TIGARD PLANNING COMMISSION Meeting Minutes October 18, 2010 CALL TO ORDER President Walsh called the meeting to order at 7:03pm. The meeting was held in the Tigard Civic Center,Town Hall, at 13125 SW Hall Blvd. ROLL CALL Present: Commissioner Anderson; Commissioner Doherty; Commissioner Muldoon; Commissioner Ryan; Commissioner Schmidt; Commissioner Shavey (Alt); Vice President Vermilyea; and President Walsh. Absent: Commissioner Hasman Staff Present: Ron Bunch, Community Development Director; Cheryl Gaines, Associate Planner; Gus Duenas, Development Engineer; John Floyd, Associate Planner Doreen Laughlin, Sr. Administrative Specialist; and Also present, on behalf of the City, Damien Hall, City Attorney. COMMUNICATIONS - None. CONSIDER MEETING MINUTES September 20th Meeting Minutes: President Walsh asked if there were any additions, deletions, or corrections to the September 20th minutes; there being none, Walsh declared the minutes approved as submitted. PUBLIC HEARING OPENED PROCESS - President Walsh advised the audience that this hearing was not about the "trees issue" but that John Floyd, associate planner, was here to speak to them personally if anyone cared to talk to him about it. (None stepped forward). I:\LRPLN\Ptanning Commission\2010 PC Packets\10.18-f 0-PH-Fields Wall Street K,tension Continued\tpc minutes 10.18.10.doc Page 1 of 12 COMPREHENSIVE PLAN AMENDMENT (CPA) 2009-00004/SENSITIVE LANDS REVIEW (SLR) 2009-00004/SENSITIVE LANDS REVIEW (SLR) 2009- 00005/ADJUSTMENT; (VAR) 2010-00002-WALL STREET EXTENSION (FIELDS) REQUEST: The applicant is requesting amendments to the Comprehensive Plan to remove Goal 5 protection from Tigard Significant Wetlands and the riparian corridor surrounding Fanno Creek in order to extend Wall Street across City of Tigard property and Fanno Creek to his property. Sensitive Lands Review is required for proposed work within the 100-year floodplain and wetlands. The applicant is requesting an adjustment to the street improvement standards in order to construct a narrower street section than required by code. Tree removal permits to remove trees within the sensitive lands were submitted under a separate application. President Walsh read the required statements and procedural items from the quasi-judicial hearing guide. There were no challenges of the commissioners for bias or conflict of interest. Exparte contacts: None. Site visitations: Commissioner Muldoon/President Walsh. No challenges of the jurisdiction of the commission. No conflicts of interest. STAFF REPORT At this point, Associate Planner, Cheryl Gaines, gave the addendum to the staff report on behalf of the City. [The staff report is available to the public one week in advance of the meeting]. After considering the applicant's responses and new information submitted to the record, Staff has found that the applicable criteria have not been satisfied; including those related to work within the floodplain, removal of the Goal 5 protection for, and work within, the Tigard significant wetlands, adjustment to street standards, related Comprehensive Plan goals, Statewide Planning Goals, and Metro standards. STAFF RECOMMENDATION "Staff recommends the Planning Commission recommend denial of the proposed comprehensive plan amendment, sensitive lands reviews, and adjustment to City Council." QUESTIONS OF STAFF The first staff report noted the applicant had a 60 foot wide easement for the extension of the street granted by City, but that the City street standards required a 72 ft Right-of-Way [ROW] - and at that time stated that the applicant had not secured a 72 foot ROW. I didn't see any mention of that in the amended staff report. Was there anything new on that issue? No. There was no new evidence to show that criterion had been met. There were no further questions of staff. I:\LSLPLN\Planning Commission\2010 PC Packets\10-18-10-PH-Fields Wall Street Hxlension Continued\tpc minutes lD-18-10.doc Page 2 of 12 APPLICANT'S PRESENTATION Phil Grillo, attorney for the applicant, introduced himself as such and said, in deference to the possibility of a potentially late night, he would keep his presentation relatively brief. He noted that since the last hearing, they'd submitted a couple of documents. One, the September 10th material that was provided as a rebuttal to the issue about Milton Court and also showing the "pivot road option", as it's come to be referred. They'd submitted a couple of other documents, as well, in response to some of the questions the Planning Commission raised. They also submitted an applicant's rebuttal on October 15th which responded to the new testimony that came in during the time period when the hearing was left open. Grillo spoke to three main issues: 1. Public Support Facilities; 2. Environmental Impacts; and 3. Alternatives 1. Public Support Facilities: The real question here is — "Are the proposed pilings and fill that would be associated with this project allowed in residentially zoned land and in the floodplain as,what are called "land form alterations and development associated with public support facilities?"That's the term in the code. Apart from all the legal analysis that we've provided to you, as a practical matter, we think staff's interpretation makes it impossible to build roads in residentially zoned land in the floodplains unless all of those land form alterations, and all that development, are kept out of the floodplain—which means not just the creek, not just the floodway, but the entire floodplain would have to be spanned by a bridge— not possible. We don't believe that's what's in the code. More importantly, it's not what's on the ground in Tigard today. There are many streets that go through the floodplain in residentially zoned land today. There are very short bridges; lots of fill in the floodplain; lots of pilings; and lots of land form alterations. Some examples: Titan Street where it crosses Fanno Creek near Foster Middle School— at that point the floodplain is about 1000 ft wide. There's a very narrow bridge and a lot of fill in the floodplain on either side of that bridge. Our bridge is 320' long; it spans the entire creek, and almost the entire floodplain. That's a good design. It's a lot better than what you have on Titan. Look at Tigard Street where it crosses Fanno Creek just north of Fowler Middle School, same thing. Look at 121st Avenue where it crosses Fanno Creek between Katherine Street and (inaudible) Court. Here the floodplain is about 500'wide— about as wide as it is where we're talking about crossing Fanno Creek. There the bridge is tiny. It's a cement set of culverts. Fanno Creek backs up up-stream from that. On either side of that is a lot of fill that essentially lifts the street out of floodplain. That's how it works in Tigard right now. The interpretation that staff is urging you to adopt is not going to be workable for the City of Tigard. It's not what's on the ground now, it's not what the rule is today, it's not what the rule should be. That's not going to work. Otherwise it's like the Fremont Bridge — that's just not going to happen. 1:\L1tPLN\PlanningCommission\20101'C Packets\10.18-IO-I'll-fields Wall Street Extension Continued\tpc minutes 10-I8-10.doc Page 3 of 12 • 2. Environmental Impacts —ESEE [Economic, Social, Environmental, & Energy] analysis have to do with impacts to wetland functions and values. It's the wetland issues that are what cause us to have to get the Comprehensive Plan Amendment and the Zoning Code Amendment. In this case, there's obviously a ton of testimony focusing in on what the public perceives to be as potential negative impacts to the wetlands. The Planning Commission needs to focus on the net effect of the project on wetland functions and values. There are positives and negatives associated with this project. What does the evidence tell you about that? There are two very helpful say that there are positive improvements to wetlands functions and values as a result of this project. The evidence shows it. That's uncontroverted evidence in the record. done by the City's own wetlands consultant. Two years later, when that permit was being renewed, a different wetland consultant did an analysis and came to the same conclusion. This is un-rebutted information in the record. 3. Alternatives —The Planning Commission asked us to look at other alternatives. There were comments about a pivot road option. At the time I didn't think there was much of a pivot road option. We went back and, as we put heads together, there is potential to miss the wetlands themselves by putting an S curve in the street— that would require Minor Modifications to the parking lot area and access to the library. We thought that kind of pivot road option made sense so we proposed it. We are not changing our application —it's been submitted as another application. We're hoping it has some legs. Even if it does, the City will have to cooperate or it isn't really a viable option. So right now the pivot road is not a viable option because the City has not indicated that they would approve it. If the City Hearings Officer were to approve it and if the City were to cooperate with it, we would take that option because it makes sense. It's economically viable. It avoids the wetlands, and that's a good thing. That's the kind of option we were talking about when we were here before; it's basically the same alignment— just a slight tweak to the design and location. But right now it's just not viable. The other option that I think staff wants to talk about is this 500 foot free span bridge over the creek. There is no such bridge over Fanno Creek wetlands in Tigard. It's not economically viable. Even the pivot road option bridge is in the neighborhood of$3 mil. A free span bridge over 500 feet long is many multiples of that. A 500 ft restraining bridge is simply not a viable option. Another option - the Milton Ct option. We tried to take a serious look at Milton Ct but, for a number of reasons, it's not a viable option. Coming in on Wall St and using Milton Court as an emergency access or bike/ped— that's doable. But primary access is not feasible. We went into great detail in that in the material we provided. QUESTIONS OF ATTORNEY GRILLO 1:\LRPLN\Planning Commission\2010 PC Packets\10-18-1D-PH-Fields Wall Street lixtension Continued\tpc minutes 10-18-10.doc Page 4 of 12 Regarding the letter from ODF&W (Oregon Department of Fish and Wildlife) there was a concern about the impacts on threatened and endangered species. That letter discusses the existence of some endangered and threatened species. Can you summarize what the applicant's position on A. Whether you believe that is the case? B. What mitigation measures would be undertaken? Most cities &counties in Oregon, including Tigard, do not have approval criteria that speak to the protection of endangered species. That issue is not relevant. At the end of the day,goals and policies need to be balanced. I don't believe we're impacting those resources in the way that I think the testimony was alluding to. ODFW specifically said there was evidence of threatened and endangered species. My understanding is that statement has not been rebutted. What I'm hearing you say is whether that is true or not, that is not a consideration under our evaluation of whether to lift the Goal 5 overlay on this piece of property. Is that a fair statement of your position? Yes, butI would add that the statement you're referring to is by the state Dept of Fish and Wildlife which is not the regulating agency for those fish. It's a federal endangered species and we don't have a letter like that from the federal regulating agency. We don't because the federal regulating ageny understands that is not an approval criterion of local land use proceedings. Follow up question regarding Milton Court: You indicated there were a number of reasons direct access is not feasible or viable. Can you summarize why that is not a reasonable or viable option in terms of access? 1. Milton Court— the applicant does not have access to Milton Ct. It does not abut the site. 2. Milton Court is in the floodplain and portions of it in the floodway. Milton Court itself is located in an industrially zoned land. It makes very little sense to try to access a residential development on a street that's built in a floodplain regardless of whether it's built in the floodplain or residential (inaudible) zoned land. We believe in a flood event, that street can flood. We don't believe that's a good place for street access. 3. Extending Milton Court also has significant impacts on natural resources. Many trees and other things that are on the City's significant land analysis that goes through that area. 4. Milton Court violates City street standards in terms of(inaudible) connectivity— other aspects like that which is also the 5th issue. 5. Connectivity issue—your Comprehensive Plan and Transportation System Plan that was still in effect for this case show the need for connectivity between Wall Street and Hunziker. Simply coming through and going down Milton Court doesn't solve that connectivity problem. There are also connections that need to be made in there. Emergency access connection down to Milton Court or some sort of secondary access— that would help— but that's not going to solve the connectivity problem that exists there now. That issue to me is a bit of a red herring. We're not talking about a connection between Hall via Wall Street to Hunziker. We're talking about extending Wall Street to a dead-end on this parcel—not connecting it all the way to Hunziker. I think that's an apples to oranges kind of an argument. With all due respect, I disagree.All we can do is build the portion of the street that we either have an access right to or that's on ourpropery and to make it possible to extend that street further, which we have based upon the design that we've provided It's the same thing that happened when Phase I of Wall Street was I:\LRPLN\Planning Commission\2010 PC Packets\10-18-10-PI-I-Piclds Wall Street Extension Continued\tpc minutes 10-18-10.doc Page 5 of 12 built. The City said this is fulfilling the City's TSIP, it provides local access and it provides the opportunity for connectiviy. Are you aware the continuation of Wall Street beyond the applicant's property is no longer being discussed - because of the railroad not being willing to put an at-grade crossing? That's been'stricken from the revised proposed updated Transportation System Plan. With all due respect,you cannot take that into consideration in this case. This is a quasi-judicial land use proceeding and you are required to use the rules that are in place at the time the application was submitted. Those aren't the rules that need to be applied in this case. There are many reasons why that shouldn't be done. The decision has not been made yet. One more point regarding the Milton Court issue. We provided a traffic analysis— one of the things it showed is the intersection of Milton Court and Bonita is failing. And it's not viable to fix that with signal because there are already signals that are vey close to that area and you will not be able to get another signal in that area. Ironically, ifyou don't maintain the opportuniy for a connection between Hall and Huniker via Wall Street,you're going to put additional pressure on Bonita and the numbers will be even worse. You'll have even less of an opportunity y to fix it with a signal. So you're compounding the problem by trying to load all this traffic onto Milton Ct. It's not appropriate to do that. Why not abate this process and pursue the avenue of the pivot road and see what the hearings officer says. What is the downside to abating this process to allow that process to go forward and potentially merging the two on a going forward basis? We've given consideration to that— the pivot road makes sense but like any other option, there are downsides -mainly whether the City will choose to cooperate. If the City is not amiable to the change to the library parking lot... we've had disaissions and they've not been productive. We've submitted an application and want to see what feedback we get. I wish it were ea y but we've been in the process for a long time and my client's not getting any younger. The ESEE was a little light on the positive impacts of this development. Explain why the staff thought that was lacking and tell me your vision for that area. The Fields property is the largest piece of developable residentially toned property in the ciy's inventory. It's also, by far, the largest R-25 parcel in the City that is developable. It's also the closest R-25 property to the downtown that would have much greater access to downtown if theplanned extension on Wall Street were to occur. Those are huge economic and social impacts that far outweigh the notion of the environmental impacts that would happen on this project. There is a net gain in environmental impacts in this project. That combined with those important economic and social impacts, to me,far outweighs the situation we're talking about in impacting.19 acres of wetland. If we use the pivot road— it impacts no wetlands at all. We've explained more than that in our materials but I think if I had to cystallke one thing— that would be it. With regards to the floodplain—how many acres are truly developable? I-Iow many acres of Mr. Field's proper y are truly developable? Yes. First of all the entire site is zoned R-25. Most of the site is buildable. I can't tellyou exactly how many acres but by far a large portion of it. Cluster development on portions of the site is easier to develop. It's good building practice. Will Fields sell it or build on it? My client's position is what we're trying to do is extend the street so the property can be sold and built on by someone who will build it. My client is not a developer. That's not unusual. Most folks who own property are not in the development business. I:\LRPLN\Planning Commission\2010 PC Packets\10-18-10-P1-I-Fields Wall Sucet F tension Continued\tpc minutes 10.18-10.doc Page 6 of 12 Could somebody buy the land and then ask that the land be rezoned back into industrial? I can't give a 100%guarantee but I can tellyou there is overwhelming evidence in the record in the Ciy's one change position that proves that site is not suitable for industrial development and it hasn't been suitable for industrial development for many years. It's not a viable option which is why I believe the y Council did not follow the Planning Commission's recommendation— but went the other direction. There's such strong evidence that I don't see that as being in the foreseeable future. There's no economic reason to do that. It's a great site for workforce housing. My hang-up on this issue... there's no concept plan;we don't have any idea of the numbers of condo's, apartments,whether there will be condo's or apartments... just the answer to that question right there has a significant impact on what the economic impact would be— whether you're talking about transient renters versus homeowner condominiums —we don't know the numbers. We have no hard data. No numbers with which to evaluate the social and economic positives that you're talking about. I'm struggling because I'm being asked to make a decision that depends upon an assumption based on a hypothetical— and I'm having a hard time with that. We're confronted with approving a bridge. I need data, not opinion or conclusions based upon a general sense that there will, ultimately, be residential development there. We respectfully disagree. The City has an obligation to look at this land for what it's planned and zoned for. The Comprehensive Plan designates the entire site for residential use. Your buildable lands inventory shows that. There's no other conclusion possible based on the evidence. Ifyou want us to come back with some sort of site plan— that's fine -but it won't change the facts of the case. It can be developed to `x" density under the zoning code. It is zoned what it is. Are you ready to address the concern about talking to the Railroad? So far as the Railroad is concerned, we made some calls to get more information—in the foreseeable future we're unlikely to see an at- grade crossing because of the four tracks that have been added and WIS. What's important here, is the need to protect the opportunity to use that access in the future. The fact that the railroad is saying no right now, as you know in government, and as anyone in business knows— "no"means `not right now"— no doesn't mean "no forever". Ifyou don't take advantage of the opportune y that's being presented here, to extend this bridge— and I'm talking about a bridge done environmentally right—you're going to lose the opportunity to eventually make that connection if and when things change. I can't say with any specificity that things are going to change but I can tellyou that there are a lot of other cities in the region that have had to deal with light rail and other kinds of issues that have tried to not foreclose those opportunities and I'm concerned that by simply saying "no"— which is what I think some of the public sentiment here is—is that you are going to foreclose that opportunity. There were no further questions. TESTIMONY IN FAVOR OF THE APPLICATION —None. TESTIMONY IN OPPOSITION OF THE APPLICATION I:\LRPLN\Planning Commission\2010 PC Packets\10-18-10-PH-Fields Wall Street Extension Continued\tpc minutes 10-t8-10.doc Page 7 of 12 John Frewing, 7110 SW Lola Lane, Tigard 97223 — had previously submitted testimony— said in addition to that, he's concerned about connectivity in the wildlife area. Cutting it in half is not good. He's also concerned about the availability of access from the Hall/Burnham intersection. He believes the school district could get its parking if a roadway were constructed from the Hall/Burnham intersection along the railroad to Field's property. Finally, the bridge should be long enough to consider the possibility of change in the channel of the stream. President Walsh questioned Mr. Frewing: "Mr. Fields owns the property— how do you suggest he get access?" The Hall/Burnham intersection -where there's already a stop light. Nicole Davis, 13810 SW Fanno Cr Dr #1, Tigard 97223 Her concerns are that this land was owned by her grandfather. He didn't try to develop the land. Davis believes this person is not a member of the community. His arguments are for his own benefit without concern for community, environment, or respect for the intelligence of the people he's speaking to. She believes this is a bad plan and should not move forward. Sharon Ryman, 8325 SW Fanno Creek Drive Tigard 97223 Finds it overwhelming that someone would want to destroy this area. Her concern is for the wildlife. She's against it 110%. She would be all for someone buying the property and would be willing to even "chip in a few bucks." Sue Beilke, 11755 SW 114th Pl, Tigard— submitted comments in August— and wants to add a few things. She submitted another letter. Exhibit A. Carol Carpenter, 16250 SW Copper Creek Drive, Tigard 97224 is concerned about the open spaces and future generations. Kendra Smith, 10565 NW Skyline Blvd., Portland, 97231 She believes there's a long history of working on creek. The creek can't take more crossings. Connectivity is too important. Eric Lindstrom, 6801 SW Canyon Crest Drive, Portland, OR 97225, entered a letter for the record (Exhibit B) He's opposed because of impact on wildlife. Paul Timmermans, 16205 SW 108th #318 Tigard 97224 is a bicyclist—concerned about wildlife, clean air, is interested in sensible community. BJ Tyree 13816 SW Fanno Creek Drive, Tigard 97223, says the wildlife is flourishing. She's concerned about them. Monica Smiley, 12360 SW Main St.,Tigard—there on behalf of Tualatin Riverkeepers (address is Riverkeepers —not hers.) She said the Riverkeepers oppose the bridge and would like to keep Goal 5 protection on the wetland. L•\LRPLN\Planning Commission\2010 PC Packets\10-18-10-P11-Fields Wall Street Extension Continued\tpc minutes 10-18-IO.doc Page 8 of 12 Jeff Obermeier 8240 SW Fanno Creek Drive,Tigard Pointed out that the Wall Street connection was taken out of the TSP. He is opposed to the bridge. Said children who play outdoors would be affected. Stephen Wolcott - 13885 SW 104th Ave, Tigard 97223 Cutting across a pristine area makes no sense to him. He's against it. Paul Whitney, 12035 SW Bull Mountain Rd., Tigard 97224 Entered read part of and entered written testimony into the record (Exhibit C) Julie Larkin 13834 SW Fanno Cr Dr. #6, Tigard 97223 is against it— says the area is "magical". A rarity-- once gone it's gone. She doesn't want that to change. Pam Seeler 13694 SW Hall Blvd, Tigard 97223 said if she was to purchase a property that was to be built in Mr. Field's property— she would not buy it because of the railroad switching station. She can't imagine who would want to. It would be a "bridge to nowhere." She's sorry for Mr. Fields —would like to see his property developed but she simply doesn't see the feasibility or the "likeability" of it. Scott Lundberg— 13682 SW Hall Blvd. #2 Tigard 97223 His condo overlooks the area. He is concerned about wildlife, the kids, the elderly. Says they enjoy the wildlife and greenspace. Says he bought his condo because he saw the signs that said "protected" area. 10 MINUTE BREAK REBUTTAL Phillip Grillo pointed out that, in terms of perspective, most of this case involves the ESEE analysis having to do with potential impact to .19 acres of fill in wetlands. He said everyone wants to be the "last one in" to be near wetlands and environmentally sensitive areas - and then the feeling is that no more streets should go through those areas — no more impact. That, of course, is not realistic and not what the rules require. Regarding the Hall/Burnham connection— that is not a feasible option. That land does not abut Mr. Field's site. Most of the concerns from tonight (for instance channel migration) were addressed in detail in their October 15th memorandum. He said there was lots of testimony that the City should just simply buy Mr. Field's property. This land use process should not be used as a mechanism to force Mr. Fields to sell his property to the City. We've proposed a bridge that has been done right. A 320 foot long bridge is by far longer than any other bridge you're going to see in the City of Tigard. A 500 plus foot long bridge is not feasible. QUESTIONS OF GRILLO 1:\LRP1.N\Planning Commission\2010 PC Packets\10-18-10-1'i I-Fields Wall Street Extension Continued\tpc minutes 10-18-10-doe Page 9 of 12 Why do you believe the school would not be interested in selling the property? The School District is not interested in doing that. The site Mr. Frewing referred to that's for sale is not adjacent to the property. It's not viable. CLOSED PUBLIC HEARING AT 9:13 DELIBERATIONS Commissioner Doherty is not convinced that a state-wide goal (Goal 5) should be lifted. President Walsh said criteria— sensitive lands, Goal 5, the issue of a few complications of developing in a 100 year floodplain,wetland issues, public support facilities, bridge supports, zero increase water level, street utility improvements issues, the issue of gaining a proper width ROW— those technical questions before even getting into the goals and policies issues of natural resources, Goal 5 — quite a few of the criteria have not been met. He believes they're lacking overwhelming evidence to find for the application based upon many of these. He sees a couple- particularly Goal 5 and ESEE as lacking. Commissioner Muldoon was concerned about timing. He doesn't think this is the best configuration possible. He believes there's time for a more optimal solution. Vice President Vermilyea: The criteria upon what we have to make our decision are relatively narrow. We've heard a lot of emotional testimony and I do not want to discount that but I also want everybody here to understand that we are not making decisions that place a value judgment on whether there should, or should not, be development on this piece of property. The owner is entitled to develop his property within the confines of the law. Whatever decision we make here tonight has to be respectful of that fact. That said, I do not believe the applicant has met their burden. Many reasons: • The data shows, for example, that there will be a .4 foot rise in the water level in the floodplain. I didn't see any evidence to rebut that. I think Mr. Grillo did an admirable job in trying to convince us that in the aggregate that .4 foot rise would not make that much difference but this is a pretty specific objective criterion and in the absence of being able to prove by a preponderance of the evidence that there will be no net rise in the 100-year flood level— on that criterion alone, I think you could deny this application. • Not persuaded by the applicants definition of public support facility. It's unfortunate that our code does not have a definition. I've read the code— and similar language from other codes and am persuaded staff's interpretation of that term is the correct one. • It was in the applicant's purview to have sought an exemption from this requirement at the time of the zone change; alternatively, the applicant requested the zone change with full knowledge of this issue and didn't address it at that time. 1:\I.RP1.N\Nanning Commission\2010 1'C Packets\10-18-10-P1-I-Ficlds Wall Street Extension Continued\tpc minutes 10-18-1O.doc Page 10 of 12 • Believes there's evidence of endangered and threatened wildlife — he understands the applicant's position that that's not part of the process here but it does go to the ESEE analysis with respect to the social aspects of this and the value to the community. • No assessment of tax revenue offsets, payroll benefits, the number of people who will be employed in the community with which to offset those numbers. When I look at the ESEE analysis the first question I have is "What do the numbers show?" To me there's a lack of detailed information with respect to the hard dollars in terms of what it's going to cost the city for this facility? For what the potential benefits are for a development that is not yet defined. I think the ESEE analysis fails on that basis. • The only positive social impact perhaps is the fact that the residential development will be within closer proximity to the downtown area— and I think that's a valid point. I don't think it outweighs the other testimony regarding the social impact. His hope would be that this application would be abated — a pivot road option be explored further, other options be explored further and hopefully find some congruency between the potential development of the property and an access path that doesn't have as much impact as this one does. He believes Mr. Fields has the right to develop the property and that there is a path to development to this property. Having said that, Vermilyea doesn't believe this is the right access and doesn't believe that the burden has been met to make a recommendation to Council to approve these four applications — so he will be voting no. President Walsh believes there should be a way to develop this land; however, the burden hasn't been met. The question is out there and needs to be probed. Commissioner Anderson: "We usually have a plan—this is open ended. We build this bridge and then a... cul-de-sac? This is not the right plan. MOTION The following motion was made by Commissioner Vermilyea, seconded by Commissioner Doherty: "Based on the written submissions by the applicant, by the City, and by the public - based on the evidence presented at the hearing on August 16, as well as evidence presented here this evening, both written and oral, I move that we deny application CPA2009-00004/ SLR2009-00004/SLR2009-00005/VAR2010-00002 specifically based on not only what I mentioned earlier but also based on the findings and conclusions in the staff report." [At this point the City Attorney advised them to change the motion to "recommend to the City Council that they deny] Vermilyea added "and recommend to the City Council that it deny for the reasons just stated." The motion CARRIED on a recorded vote, the Commission voted as follows: 1:\LRPLN\Planning Commission\2010 7'C Packets\10.18-10-PH-Fields Wall Street Extension Continued\tpc minutes 10-18-10.doc Page 11 of 12 AYES: Commissioner Anderson, Commissioner Doherty, Commissioner Muldoon, Commissioner Ryan, Commissioner Schmidt, Commissioner Vermilyea, and President Walsh (7) NAYS: None (0) ABSTAINERS: None (0) ABSENT: Commissioner Hasman (1) President Walsh checked with the City Attorney and staff and said this will go before Council on December 14th. OTHER BUSINESS — It was decided that at least one representative from the Planning Commission should attend the December 1411' City Council meeting and comment on the record. President Walsh will try to attend and possibly Commissioner Doherty. ADJOURNMENT President Walsh adjourned the meeting at 9:37 pm. Doreen Laughlin, Planning o ssion Secretary ApAil 1140),,g oppri/ ._.-- ATTEST: rXnt David Walsh 'rr- I:\LRPLN\Planing Commission\2010 PC Packets\1048-t0-PH-Fields Wall Strect Mauston Continued\tpc minutes 10-18-10.doc Page 12 of 12 EXHIBIT A October 18,2010 President Walsh and Planning Commission City of Tigard 13125 SW Hall Blvd, Tigard, Oregon, 97223 RE: Supplemental Testimony on the Fields Wall Street Extension; (Comprehensive Plan Amendment(CPA)2009-00004; Sensitive Lands Review(SLR) 2009-00004; Sensitive Lands Review(SLR)2009-00005; and Adjustment(VAR)2010- 00002) Dear Planning Commission President and Members, I have submitted comments on two previous occasions for this project proposal (August 16, and September 10,2010). Despite the new material submitted by the applicant, as a citizen of Tigard, an advocate for strong fish and wildlife habitat protection and a board member of several local conservation groups,I still strongly oppose this project. It very obviously does not meet a number of Tigard Development Code requirements as I have stated in previous comments, as well as not meeting Tigard's Comprehensive Plan, The applicant has also failed to meet requirements under State law, including obtaining fill/removal permits. The project would do great harm to Significant Habitats in and along Fanno Creek and numerous wildlife species, and in no way would it benefit the public. I therefore recommend that the Planning Commission DENY this application based on substantial information in the proposal that shows that this proposal does NOT meet Tigard's Development Code requirements. Sincerely, Sue Beilke Board member,Fans of Fanno Creek EXHIBIT B MEMORANDUM To: Tigard Planning Commission From: Eric L. Lindstrom,EdD Re: Meeting Agenda#5—Wall Street Extension(Fields) Greetings and thank you for this opportunity to stand up for Fanno Creek. My name is Eric Lindstrom and I reside at 6801 SW Canyon Crest Drive, Portland,Oregon, 97225.Tonight I wish to comment in support of both Fanno Creek's Goal Five protections and the City of Tigard's Staff Report*. I'd like to point out that what happens to fanno Creek, both the good and the bad, doesn't stay in Fanno Creek.That's why this issue's impact on Goal Five is of such significance. The section targeted for bridge construction lies in the heart of one of the most critical areas in the entire 32 square mile Fanno Creek watershed. The floodplain involved holds some of the oldest and deepest deposits of silts found in the watershed. Some are even known to contain arsenic.That a bridge erected across the gap at Wall Street will result in significant disturbance and re-transport of these poisoned silts is a given. The quality of its outflow and its location along the Tualatin River make Fanno Creek's impact on downstream water resources highly significant at the state level, so much so that it is one of the most highly regulated streams in the state. Goal Five protections covering the creek's most sensitive lands are a key aspect of that regulation. In the case at hand tonight the applicant has presented an ESEE analysis that purports to show why the positive benefits accrued from extending Wall Street across Fanno Creek outweigh the negative consequences of such a structure. The City's staff has rightly rejected this portion of the application with arguments that are sound and supportable.The applicant's ESEE is not only grounded in almost pure speculation it is also lacking in analytical rigor. Apples are not compared to apples and as a result the probable economic,social and environmental consequences of the project are not fairly portrayed. Even without consideration of the full force of the other arguments against this proposal,the lack of analytical rigor and any semblance of objectivity in this document should be enough on Its own to justify rejection of the application. Thank you. A few examples—illustrative, not definitive: Under the Economic heading one of the negative consequences linked to approval of the application is "Moderately increased municipal service cost."Given the well known fact that bridge maintenance is MEMORANDUM one of the highest ticket items in a transportation budget this statement lacks any semblance of credibility. Under the heading of positive economic consequences related to allowing the construction of the bridge,the applicant has apparently included reference to employment and revenue stemming not just from the building of the bridge but also from the future development of the property itself(should there ever be any).That being the case the applicant should also have addressed the decidedly negative economic,environmental and social impacts that would certainly accrue from execution of the plan, including the dramatic increase in the amount of stormwater runoff entering this portion of the creek, and the prospect of even more serious flooding in an area already plagued by floods. The analysis should note that in addition to the bridge's other negative economic impacts,disturbing this portion of the creek will result in an economic loss for those rate and taxpayers who for more than forty years have steadily invested millions in the recovery and restoration of Fanno Creek's wetlands. This should be compared in the analysis to the fact that no similar capital investment has been made in the subject property in roughly that same period of time. Throughout the analysis the issue of safety to life and property is never addressed in any context in spite of the fact that the project involves significant alteration of traffic patterns and stream behaviors.This omission is both revealing and troubling. E.L. October 18, 2010 Tigard Planning Commission Testimony Paul Whitney 12035 SW Bull Mountain Road Tigard, Oregon 97224 I have been doing environmental impact work for government and industry for over 30 years. I realize the importance of addressing the criteria in the Staff Report. Instead of picking one or two criteria, I have decided to address a topic that over arches the criteria: The Factual Basis, a LCDC Goal 2 requirement, of the applicant's application materials. The City Staff Report sets the stage. 1. The Staff Report is excellent. Cheryl Caines should be congratulated. First I'd like to comment on the Factual Basis issue addressed in the Staff Report. a. The Staff Report presents the City Attorney's opinion that information presented by the applicant should be unbiased. My second letter regarding the Wall Street Extension(September 17, 2010 prior to the Staff Report being issued) commented on the lack of objectivity in the applicant's information. Since that time I reviewed the applicants ESEE Report and was further impressed by the one-sided perspective offered. Examples are: i. Opinions are offered but not one citation is offered to support the opinions. ii. Levels of impact are described in vague or inaccurate terms without quantitative or empirical support. For example: 1. The ESEE analysis states that "the proposed action would moderately increase the municipal service cost. "How many dollars comprise moderate—one thousand dollars or millions? The public and decision makers need to know. 2. The ESEE analysis states that "the proposed action would compromise habitat functionality."This statement is not substantiated and is inaccurate. The proposed action will result in habitat loss and all the functions that go with the loss. iii. The applicant suggests that since other roads have crossed Fanno Creek, the impact of one more crossing would be minimal. This statement is problematic because: 1. there is no documentation that previous crossings have resulted in no impact 2. there are many citations in the peered reviewed literature (enter Impacts of Roads on Wildlife into GOOGLE for over 10 million results documenting the negative impact of roads on wildlife) and at the AASHTO Center for Environmental Excellence website and their Construction and Maintenance Manual Chapter 3 (http://environment.transportation.org/environmental_issue s/construct maint_prac/compendium/manual/3) that overwhelming document the negative impact of roads on wildlife. One particularly relevant statement from the AASHTO web site: "One of the most successful and cost- effective means of providing for wildlife movement down riparian corridors is to extend the bridge. " The proposed bridge (with supports in the floodplain and in the hyporheic flow under the creek) is clearly too short—it should be extended across the floodplain. It should also be much wider to accommodate safe bicycle lanes and pedestrian walkways. 3. if one followed the logic that one more crossing would be minimal, the reach between Hall Street and Bonita Road could be crossed many more times with minimal impact until the creek is totally underground. Looking at proposals in a cumulative way leads me to another example. 2. Second, I'd like to address Cumulative Impact. a. Definition: Cumulative Impact is defined by the Council on Environmental Quality Regulations for implementing NEPA Section 1508.7 "Cumulative impact" is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency(Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. b. Oregon version: Oregon land use planning goals do not explicitly mention cumulative impact but Goal 2 clearly asks that impacts on adjacent uses and impacts at future intervals be addressed. c. East Bull Mountain: One might ask why cumulative impacts are a good thing to address in Tigard land use processes. A great example of a reason why is discussed in an Oregonian article on May 11 2008 —Bull Mountain A Planning Fiasco Fulfilled. The article comments on parcels in the County coming into Tigard. While each incoming parcel met County and Tigard land use laws as individual segments, there was no assessment of cumulative impacts. As a result East Bull Mountain has very few parks and natural areas. In short, wise land use planning should address cumulative impacts d. Wall Street Extension ESEE analysis: I read the ESEE analysis fully expecting that cumulative impacts would not be addressed but I was wrong. As an example, the ESEE analysis addresses the future and adjacent lands. "Long-term impacts to the stream and adjacent habitat area could very well have positive impacts." i. The ESEE analysis gives no citation to support this claim and is contrary to 11,600,000 results on Google that document negative impacts ii. AASHTO Manual Chapter 3 states: "Wildlife issues are on the rise for state DOTs. Wildlife related concerns include habitat fragmentation and connectivity for wildlife, loss of habitat, increasing number of threatened and endangered species and secondary and cumulative impacts. " iii. So its zero citations for positive impacts versus millions of citations for negative impacts. Zero citations is hardly a factual basis for the ESEE analysis. 3. In summary, Oregon Land Use Law requires that ESEE analyses have a factual basis and the Staff Report states the need for unbiased information. In the limited time allowed I have provided documentation of a few of the statements in the ESEE analysis that are biased. If asked, I could provide many more examples. From: Doreen Laughlin To: Anderson,Tom; David Walsh; Doherty, Maraaret; Don Schmidt; Hasman,Stuart;Jeremy Vermilvea ; Karen Ryan (kr(Thandersonkrygier.com); Matthew Muldoon-Wk address(Matt.Muldoon(alstate.or.us); Muldoon, Matthew; Richard Shavey Lr.shavey(acomcast.net) Cc: Cheryl Caines; Susan Hartnett; Gary Pagenstecher; Darren Wyss Subject: Applicant"s Reply to Addendum to Staff Report Date: Monday,October 18,2010 11:15:00 AM Attachments: Rolling calendar 10-18-10.xls Applicants reply to Addendum to Staff Report.pdf Good morning Commissioners, Please find the applicant's reply to the addendum to the Staff Report. I've also included a newly revised calendar. Please note that the second meeting in December reflects a change of dates. After the preferences and availability came in regarding switching days, the 2nd meeting will take place on December 13th. Thanks, •=a;l i2 Senior)'dminictrative Specialist Long Wange Planning 503-718-2714 City of 7garel doreen @tigard-or.gov