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Planning Commission Packet - 09/13/1983 POOR QUALITY RECORD PLEASE NOTE: The original paper record has been archived and put on microfilm. The following document is a copy of the microfilm record converted back to digital. If you have questions please contact City of Tigard Records Department. T I G A R D P L A N N I N G C O M M I S S I O N REGULAR MEETING • September 13, 1983 1. Acting President Edin called the meeting to order at 7:40 P.M. , The meeting was held at Fowler Junior High School - in the Lecture Room, 10865 S.W. Walnut, Tigard, Or. 2. ROLL CALL: PRESENT: Acting P--asident Edin, Commissioners Owens, Butler, Vanderwood, Leverett and Fyre. ABSENT: President Tepedino; Commissioners Christen and Moen. STAFF: Director of Planning and Development William A. Monahan; Associate Planner Elizabeth Newton and Assistant Planner Hamid Pishvaie; Secretary Diane M. Jelderks 3. Minutes from August 30, 1983, were considered. Commissioner Owens moved and Commission Fyre seconded to approve the minutes as submitted. 4. PLANNING COMMISSION COMMUNICATION o Chief Adams appeared before the Commission as invited. He discussed crime prevention through environmental design and asked for an opportunity to apear before the Commission to give a formal presentation. Staff will schedule. 5. PUBLIC HEARINGS 5.1 COMPREHENSIVE PLAN AMENDMENT CPA 12-83 ZONE CHANGE ZC 9-83 PCM Associates/Portland Chain NPO # 2 A. remand from the City Council to the Planning Commission for a Comprehensive Plan Change from Light Industrial to General Commercial and a Zone Change from M-4 to C-3. Located: 9770 SW Scholls Ferry Rd. (Wash. Co. Tax Map 1S1 27DD lot 1200) o Associate Planner Newton explained how the application was remanded back to the Planning Commission. She also made staff's recommendation for denial. o NPO - CCI COMMENTS - No one appeared to speak. o APPLICANT'S PRESENTATION - Terry Hauck, Attorney, 1200 Standard Plaza, representing the applicant, read a letter from Bruce Clark, a member of NPO # 2, supporting the application. Mike McKenna, 400 SW 6th, Portland, showed a video tape of the surrounding area and the site. The tape is to be reproduced and submitted to the city staff for the public record. Richard Wright, Toys "R" Us, Kent, Washington, read a letter into the record from Michael Miller, Toys "R" Us, Inc. , Rochelle Park, New Jersey, supporting the application. He concluded that a business is aided or hampered by his neighbor and they needed the adjoining property to be zoned commercial. Robert Figone, Levitz, Santa Clara, California, explained how the site would be used as a retail showroom with no warehousing. He submitted a copy of Levitz's annual report, before and after pictures of a remodeled Levitz store, photos of the site and area, and a drawing of the proposed building. Guy Barber, General Manager, Levitz, Milwaukie, Oregon, stated that he had been looking for a southwest site for the last five years. This is a excellent location for their needs. Mr. Hauck reviewed the staff report noting that the history did not include adotption of the Comprehensive Plan which changed the site from Commerical to Industrial. He read a letter into the record from John B. Nordholt III, General Manager for Portland Chain, supporting the rezoning. He reviewed the amount of vacant industrial land within the city. He reviewed staff's findings, taking exception and pointing out inconsistancies which he did not feel were supported by evidence. He explained how the site met the criteria for commercial retail use. PUBLIC TESTIMONY o John Skourtes, 17010 SW Weir Road, Beaverton, opposed the changed. He felt this would be breaking the block. If they changed one site they should change the whole area. He stressed that the Planning commission is considering a zone change, not the advantages of Levitz over another use. CROSS EXAMINATION AND REBUTTAL o Mr. Hauck stated they were here to correct a injustice caused by the rezoning done during the Comprhensive Plan process. o Commissioner Owens asked staff to clarify why staff was requesting denial when the application appeared to meet the criteria for commercial retail. Also, Portland Chain was not an appropriate use for a Industrial Park zone. Associate Planner Newton explained how staff made their decision based on land use not on client use. Lengthy discussion followed. PUBLIC HEARING CLOSED o Commissioner Butler did not support. o Commissioner Leverett favored the application as being the highest and best use for the land. PLANNING COMMISSION MINUTES September 13, 1983 Page 2 o Commissioner Fyre felt it was unfortunate that Toy "R" Us was allowed at this location as it is ideal for Light Industrial/Industrial Park use. o Acting President Edin had mixed emotions, he felt areas should be protected from encroachment. There was a mistake made in zoning Toys "R" Us and he supported staff's recommendation. However he did not see any problem with zoning the property commercial. o Commissioner Owens was concerned that once they started changing designations to commercial this would cause other property owners in the area to request changes to commercial. She felt this was a difficult application to decide. o Commissioner Vanderwood moved, and Commissioner Butler seconded to move for denial of the applicant's request for a Comprehensive Plan Amendment from Light Industrial to General Commercal and for denial of the Zone Change from M-4 to C-3. Motion carried by majority vote of Commissioner present, Commissioner Edin and Leverett voting no. RECESS: 9:10 P.M. RECONVENE: 9:25 P.M. 5.2 COMPREHENSIVE PLAN AMENDMENT CPA 13-83 Carl Johnson NPO # 4 A request to amend policy 11.4.2, 11.4.2 a and b regarding the NPO # 4 area in the Findings, Policies and Implementation Strategies document. . o Associate Planner Newton requested the Planning Commission review the information submitted and make a recommendation to City Council on the interpreation of the policy. o APPLICANT'S PRESENTATION - Mr. Johnson, 6155 SW Bonita, Lake Grove, explained how they were requesting that language be changed to enable development to occur west of 72nd Ave. . o NPO COMMENTS - Gordon Martin, NPO # 4 member, stated that the NPO was in unanimous agreement with Mr. Johnson. PUBLIC TESTIMONY o Jim Miller 12918 SW 63rd Place supported Mr. Johnson's request. CROSS EXAMINATION AND REBUTTAL o Discussion followed regarding the LIDs in the Tigard Triangle and the intent of the City Council's policy language. PLANNING COMMISSION MINUTES September 13, 1983 Page 3 PLANNING COMMISSION DISCUSSION AND ACTION Commissioners Butler and Vanderwood, both stated they had attended the City Council public hearings and did not support the change. Commissioner Fyre supported the NPO's recommendation. o Commissioner Owens did not feel there was enough information to make a decision, espcially since the NPO felt one way and the City Council another. o Acting President Edin was sensitve to NPO # 4 concerns, however, there is merit to the City Council decision and he supported the existing language. o Commissioner Butler moved and Commisioner Vanderwood seconded to keep policy 11.4 as stated in the Findings, Policies and Implementation Strategies document. Motion carried by majority vote of the Commissioners present, Commissioner Fyre voting no. 5.3 SUBDIVISION - PLANNED DEVELOPMENT S 8-83 Century 21 Homes NPO # 3 This item has been withdrawn and will be reheard on October 4, 1983. 5.4 ANNEXATION - ZONE CHANGE ZC 12-83 S.W. 78th and Pfaffle. A request by residents of SW 78th Avenue to consider a petition for annexation to the City of Tigard. Also, to assign a low density residential Comprehensive Plan designation and a R-7 zoning designation. Location: (Wash. Co. TAx Map 1S1 36CA tax lots 400, 500, 600, 700, 800, 900, 1000, 1100, 1200, 1300, 1400, 2000, 2001, 2002, 2003, 2006, 2007, 2008, 2009, 4800, 4900, 5000, 5100, 5201, 5300 and 5500). o Assistant Planner Pishvaie made staff's recommendation for approval. o NPO AND CCI COMMENTS - No one appeared to speak. o APPLICANT'S PRESENTATION - Steve Mosbacher, 11115 SW 78th, respresenting area requesting annexation stated they were unhappy with the Metzger Plan. They had problems with the condition of their street and it being opened to through traffic. They hoped to be annexed to the City of Tigard and that the City would help them maintain their residential character. PUBLIC TESTIMONY o Shirley Rowe, 10307 SW 90th, Chairperson for the Metzger CPO, stated the plan recommended there be no piecemeal annexation done. They did not support the application unless the whole Metzger CPO area would be annexed. PLANNING COMMISSION MINUTES September 13, 1983 Page 4 • o Mary Bartlett, 11045 SW 78th, stated they not only had a traffic problem but also wanted police protection. There is also a drainage problem which they felt the City would be able to help them correct. CROSS EXAMATION AND REBUTTAL o Commissioner Owens questioned if any other people were interested in annexing to Tigard and why was staff recommending a piecemeal annexation. o Director of Planning and Development Monahan explained that the Urban Planning Area Agreement does not allow the City to initiate piece meal annexations. However, if property owners initated the petition then the city could accept. No one else in the area was interested in annexing. COMMISSION DISCUSSION AND ACTION o Commissioner Butler was concerned about the substandard streets and if the policy was being followed as stated in the Policies document regarding nonremonstrance agreements against the formation of LIDs. o Lengthy discussion followed regarding the condition of the streets and who was responsible for bringing them up to standard. Consensus of the Commission was that they supported the zone change annexation with the signing of nonremonstrance agreements. o Commissioner Butler moved and Commissioner Fyre seconded to forward a recommendation of approval to the City Council for the proposed annexation, and for approval of the Zone Change to R-7 (single family residential) become effective upon Council approval of the annexation with the condition that policy 10.1.1 b, c and d for LIDs be required for annexation. Motion carried unanimously by Commissioners present. 5.5 COMPREHENSIVE PLAN AMENDMENT CPA 14-83 LCDC Goal # 5 A request by the City of Tigard to update the Comprehensive Plan to comply with LCDC Statewide Planning Goal # 5 considering an analysis of Economic, Social Environmental and Energy (EESE) factors. o Associate Planner Newton reviewed the document requesting the Planning Commission make a recommendation to City Council. PUBLIC TESTIMONY - No one appeared to speak CROSS EXAMINATION AND REBUTTAL o Commissioner Edin questioned if an operating Tree Farm would be able to cut trees. Associate Planner Newton explained there was a Tree Cutting Ordinance which exempts individuals who belong to a certain Tree Farming Organization. • PLANNING COMMISSION MINUTES September 13, 1983 Page 5 o Mrs. Rowe, Metzger CPO Chairperson, questioned why all the Greenway area were not colored in on the Map. Staff explained that this map only showed items covered under the Goal # 5. o Commission Owens requested that the first paragraph on page fourteen be clarified. o Commissioner Leverett moved and Commissioner Vanderwood seconded to forward Comprehensive Plan Amendment CPA 14-83 to City Council with a recommendation for approval. Motion carried unanimously by Commissioners present. 6. OTHER BUSINESS o Commissioner Fyre stated he would be out of town until October 17, 1983 and would not be able to attend the next Planning Commission meeting. 7. Meeting Adjourned 10:45 P.M. Diane M. Jelder i Secretary ATTEST: .16g) Phil Edin, Acting President PLANNING COMMISSION MINUTES September 13, 1983 Page 6. II PLANNING COMMISSION DATE , ( .3 ROLL CALL C(/'"'� Frank Tepedino /1)Chris Vanderwood• John Butler ... Don Moen �;r Bonnie Owens Mark Christen /14) Phil Edin ,‘...)k..00r\f‘Vd‘C\ Deane Leverett ' Milt Fyne , i3, 63 T I G A R D P L A N N I N G C O M M I S S I O N NOTICE: ALL PERSONS DESIRING TO SPEAK ON ANY ITEM MUST SIGN THEIR NAME and note their address on this sheet. (Please Print your name) ITEM/DESCRIPTION: / / e,ri ci F s ( )r r■ L,,A o r - i -,0. w_ PROPONENT (For) OPPONENT (against) Name, Address and Affiliation Name, Address and Affiliation e i ® a �'a (.D (CO c-t 04-e l , i "4)a/ ) O to• el .4 rd t. VA-I I WA. /w, _egati,...._,E...?.. „___I zaLlyms,„Ltalef , ice. le" / 000.4 OP •- ,L ^ . IL 44 L r q- /3 -0.5 TIGARD" PLANNING COMMISSION SIGN UP SEIEET NOTICE : ALL PERSONS DESIRING TO SPEAK ON ANY ITEM MUST SIGN THEIR NAME and note their address on this sheet. (Please Print your name) ITEM ESCRIPTION: J, data_ Jo a CP' 3- PROPONENT (For) OPPONENT (against) Name, Address and Affiliati• Name, Address and Affiliation (� . �, ,�: y -1 t� 40 2 oil NOTICE: ALL PERSONS DESIRING TO SPEAK ON ANY ITEM MUST SIGN THEIR NAME and note their address on this sheet. (Please Print your name) ITEM DESCRIPTION: `f A I .._ .�.. 3 PO 5-;Nu DtJ Sjo -•.„ ct r\Fo 1)FW r: PROPONENT (For) OPPONENT (against) Name, Address and Affiliation Name, Address and Affiliation / 3rd Tj1 T I G A R D P L A N N I N G C O M M I S S I O N. OMMIIIMMMIEW NOTICE: ALL PERSONS DESIRING TO SPEAK ON ANY ITEM MUST SIGN THEIR NAME and note their address on this sheet. (Please Print your name) , ITEM/bESCRIPTION: �. iair r.'i. E �Uh N o�,e Z ? la- U n n Aril vVA — PROPONENT (For) OPPONENT (against) Name, Address and Affiliation Name, Address and Affiliation 37 •0P T I G A R D P L A N N I N G C O M M I S S I O N NOTICE: ALL PERSONS DESIRING TO SPEAK ON ANY ITEM MUST SIGN THEIR NAME and note their address on this sheet. (Please Print your name) ITEM/DESCRIPTION: 3-.5- CPA - ' t;,°g 3 4/ C. 42k-- 6 E PROPONENT (For) OPPONENT (against) Name, Address and Affiliation Name, Address and Affiliation • r STAFF REPORT AGENDA ITEM 5.1 TIGARD PLANNING COMMISSION SEPTEMBER 13, 1983 °- 7:30 P.M. FOWLER JUNIOR HIGH SCHOOL - LECTURE ROOM 10865 SW Walnut - Tigard, Or. A. FINDING OF FACT. 1. General Information CASE: COMPREHENSIVE PLAN AMENDMENT CPA 12-83 NPO # 2 ZONE CHANGE ZC 9-83 REQUEST: The applicant is requesting a Comprehensive Plan Amendment from light industrial to general commercial, and zone change from M-4 to C-3. RECOMMENDATION: Based on staff's analysis of applicable planning policies and existing land uses, staff recommends that the Planning Commission recommend to the City Council denial of the proposed Comprehensive Plan Amendment and deny the Zone Change from light industrial (M-4) to general commercial (C-3). APPLICANT: PCM Associate OWNER: Same (Mike McKenna) P.O. Box 4162 Portland, Or. 97208 LOCATION: 9770 SW Scholls Ferry Road (Wash. Co. Tax Map 1S1 27 DD lot 1200) LOT AREA: 3.71 Acres PRESENT COMPREHENSIVE PLAN DESIGNATION: Light Industrial PRESENT ZONING DESIGNATION:" M-4 NPO COMMENT: NPO # 2 is inactive at this time. PUBLIC NOTICES MAILED: Ten notices were mailed. No written comments had been received at the writing of this report. 2. Background On August 5, 1980, the Planning Commission approved a Zone Change from Comprehensive Plan Designation industrial "M-4" to general commercial "C-3". On March 5, 1981, the Portland Metropolitan Area Local Government Boundary Commission annexed this property into the City. On April 24, 1981, the Tigard Planning Department approved a Minor Land Partition request by the applicant to partition an 8.29 acre parcel into two lots 3.71 acres and 4.58 acres each (MLP 3-83) On May 11, 1981, by ordinance 81-21, the City Council ratified the above named annexation. On July 13, 1981, by ordinance 81-58, the City Council approved the applicant's request for a Zone Change from light industrial "M-4" to general commercial "C-3". On August 2, 1983, the Planning Commission denied the applicant's request for a CPA From Light Industrial to General Commercial and a Zone Change from M-4 to C-3. On August 15, 1983, the City Council decided to remand CPA 1.2-83 and ZC 9-83 to the Planning Commission for additional public testimony. 3. Vicinity Information The surrounding land uses are as follows: The property to the west is developed as Koll Business Center. Highway 217 is to the east. S.W. Cascade Avenue, SW Scholls Ferry Road and Tigard Times' building are to the north, and Toys "R" Us is located south of the subject site. 4. Site Information There is an existing building on this site which houses Portland Chain Manufacturing. B. APPLICABLE PLANNING POLICIES 1. Comprehensive Plan Policies 2.1.1 THE CITY SHALL MAINTAIN AN ONGOING CITIZEN INVOLVEMENT PROGRAM AND SHALL ASSURE THAT CITIZENS WILL BE PROVIDED AN OPPORTUNITY TO BE INVOLVED IN ALL PHASES OF THE PLANNING PROCESS. All owners of record within 250 feet were notified by mail of this application. A notice was published in the Tigard Times on July 21, 1983. 2.1.3 THE CITY SHALL ENSURE THAT INFORMATION ON LAND USE PLANNING ISSUES IS AVAILABLE IN AN UNDERSTANDABLE FORM FOR ALL INTERESTED CITIZENS. All interested parties are given a minimum of ten days to comment on all land use applications and are encouraged to do so. Staff is available to answer any questions on applications or the application process. STAFF REPORT CPA 12-83 & ZC 9-83 Page 2 12.4.1 THE CITY SHALL REQUIRE THAT: b. SITES FOR LIGHT INDUSTRIAL DEVELOPMENT SHALL BE: (1) BUFFERED FROM RESIDENTIAL AREAS TO ASSURE THAT PRIVACY AND THE RESIDENTIAL CHARACTER OF THE AREA ARE PRESERVED. (2) LOCATED ON AN ARTERIAL OR COLLECTOR STREET AND THAT • INDUSTRIAL TRAFFIC SHALL NOT BE CHANNELED THROUGH RESIDENTIAL AREAS. c. THE SITE SHALL BE OF A SIZE AND SHAPE WHICH WILL PROVIDE FOR THE SHORT AND LONG RANGE NEEDS OF THE USE. f. ALL OTHER APPLICABLE PLAN POLICIES CAN BE MET. All applicable plan policies, locational criteria and Tigard Municipal Code provisions have been considered in review of this application. The locational criteria to be considered in determining a change to General Commercial are as follows: General Commercial (1) Spacing and location (a) The commercial area is not surrounded by residential districts on more than two sides. (2) Access (a) The proposed area or expansion of an existing area shall not create traffic congestion or a traffic safety problem. Such a determination shall be based on the street capacity existing and projected traffic volumes, the speed limit, number of turning movements and the traffic generating characteristic of the various types of uses. (b) The site shall have direct access from a major collector or arterial street. (c) Public transportation shall be available to the site or general area. (3) Site Characteristics (a) The site shall be of a size which can accommodate present and projected uses. (b) The site shall have high visibility. STAFF REPORT CPA 12-83 & ZC 9-83 Page 3 J (4) Impact Assessment (a) The scale of the project shall be compatible with the surrounding uses. (b) The site configuration and characteristics shall be such that the privacy of adjacent non-commercial uses can be maintained. (c) It shall be possible to incorporate the unique site features into the site design and development plan. (d) The associated lights, noise and activities shall not interfere with adjoining non-residential uses. The property is currently being used by the Portland Chain Manufacturing which complies with applicable planning policies and locational criteria. The proposed commercial/retail use is not compatible with surrounding non-industrial uses (except Toys "R" Us which is located to the south and in retrospect it seems inappropriate), which include Tigard Times to the north and Koll Business Center to the west, both of which are defined as office and business activities and are permitted in an industrial park zone, whereas the commercial/retail use is not allowed. Further, the applicant's argument on the ground that there is a need for additional commercial/retail space in that are due to its vicinity to the Washington Square Shopping Center is not valid, since, Highway 217 separates and divides these two areas and there is no direct access from the shopping center to the site except a visual one. Also, the applicant's own traffic impact analysis shows that the numbers of total daily trips would increase from 94 to 186 trips which puts additional burden on SW Cascade Blvd. , a substandard major collector. 2. TIGARD MUNICIPAL CODE Comprehensive Plan Amendment - All of the requirements of the Tigard Municipal Code have been considered in review of this application. C. CONCLUSIONS The proposed Comprehensive Plan Amendment does not meet applicable planning policies. D. RECOMMENDATION Staff recommends denial of the request for a Comprehensive Plan Amendment to general commercial, based on the following: 1. Intent of the Industrial land use designation is to protect existing and potential lands suitable for industrial development from encroachment by non-industrial or incompatible uses. STAFF REPORT CPA 12-83 & ZC 9-83 Page 4 2. There is ample supply of land suitable and zoned for commercial/retail use along Pacific Highway (99W), which may prove to be more desirable for the proposed use. RECOMMENDED MOTION Should the Planning Commission agree with staff's recommendation, the following motion may be made: "Move for recommendation to City Council of denial of the applicant's request for a Comprehensive Plan Amendment from Light Industrial to General Commercial and for denial of the Zone Change from M-4 to C-3. NOTE: Should the Planning Commission not adopt staff's recommendation, findings will have to be adopted with the motion. PREPARED BY: APPROVED BY: 9 P3 S. Hamid Pishvae William A. Monahan Assistant Planner Director of Planning and Development STAFF REPORT CPA 12-83 & ZC 9-83 Page 5 5.1 SITE DESIGN REVIEW SDR 26-79 - Summerfield Shopping Center NPO # 6 A request by Realty Financial Services Co. for a modification to an approved planned development for the Summerfield Shopping Center. Located: Corner of Durham and 99W (Wash. Co. Tax Map 2S1 1OD lot 1902, 1906 and part of 1910). o Associate Planner Newton made staff's recommendation for approval as requested by applicant. She also stated she had attended NPO # 6's meeting where they had reviewed this application and the NPO supported the applicant's request. o APPLICANT'S PRSENTATION - Rick Lewis, Realty Financial Services Co. showed pictures of the Summerfield Shopping Center and ask the Planning Commission to approve their request. PUBLIC TESTIMONY o J B Bishop, 10505 SW Barber Blvd. S-300 supported the applicant's request citing it was a good location for general commercial use and the PD was an undue burdon. CROSS EXAMINATION AND REBUTTAL o Commissioner Moen questioned why the restriction had been placed on the project in the first place. President Tepedino recolleted that it had to do with the traffic and serving the needs of Summerfield. COMMISSION DISCUSS AND ACTION o Commissioner Edin moved and Commissioner Moen seconded to approve removal of the PD from SDR 26-79 based on staff's findings and recommendations. Motion carried unanimously by Commissioner present. alegs 5.2 COMPREHENSIVE PLAN AMENDMENT CPA 12-83 and ZONE CHANGE ZC 9-83 PCM Associates/Portland Chain NPO # 2 A request for a Comprehensive Plan Change from Industrial to General from Industrial-Light to C-3. Located: Commercial and a Zone Change g Commer e g 1S1 2 DD lot 1200). co. Tax Map 7 1 Ferry Rd. (Wash. o 9770 SW Scholls y P o Associate Planner Newton made staff's recommendation for denial to protect the industrial designation of the Comprehensive Plan. o NPO COMMENTS - No one appeared to speak. o APPLICANT'S PRESENTATION - Mr. Michael McKinnon, 400 SW 6th Ave. , explained the difference between PCM Associates and Portland Chain. He reviewed the history of the site and the zone changes which occurred. He said he was never notified of the North Tigard Businessman Association meeting, which discussed how the property would be designated. He stated that the whole surrounding area PLANNING COMMISSION MINUTES August 2, 1983 Page 2 a should be considered when evaluating the proposed request. This is a prime site for a retail outlet and would provide jobs as well as increase the value of the land. He felt Portland Chain was not compatible with surrounding land uses. o Lans Stout, Planner for MacKenzie/Saito Engineering addressed the following four points: 1. Portland Chain as a heavy industrial use is not compatible with surrounding uses. 2. The area has changed since Washington County orginially zoned the property. It has become a hub area which would make it a suitable site for Levitz. 3. The site meets locational criteria for a Commercial designation. 4. Levits would be compatible with surrounding land uses. o Dave Larson, Traffic Engineer, MacKenzie/Saito Engineering had done a traffic survey and found the traffic created by Levitz would be equivalent to that created by Portland Chain. Also the majority of the traffic would enter from Scholls Ferry Road. o John Skourtes, member of the North Tigard Businessmens Association did not support the Comprehensive Plan Amendment. He stated that Mr. Mckenna had been notified of the North Tigard Businessmens Association meeting to discuss the Comprehensive Plan designations. for Cascade Blvd. Industrial area. Also there are numerious commercial sites available which would be suitable for Levitz needs. CROSS EXAMINATION AND REBUTTAL o Mr. McKenna responded that he had never received a letter from the North Tigard Businessmens Association. o Commission Moen questioned if they had acted on both pieces of property during the Comprehensive Plan process; Staff responded they had only acted on the "Toy R Us" site. o Terry Hauck, Standard Plaza, (222-9981), applicant's legal counsel, stated the original Comprehensive Plan Amendment included the total site. Discussion followed. RECESSED 8:40 P.M. (To give staff opportunity to obtain files from City Hall. ) RECONVENED 9:06 P.M. o Commissioner Moen stated the issue is what is the best use of the property now. He felt this would be a good site because it was close to Hwy. 217 interchange. It has good access and controlled intersection. The site has access to an arterial and public transportation, high visability and is compatable with surrounding uses. He stated that whole area is going through a evolution and Levitz would be an appropriate use. PLANNING COMMISSION MINUTES August 2, 1983 Page 3 missioners Edin and Vanderwood had mixed feelings. o Commissioner Butler supported staff recommendation. Especially since all the industrial designation had been lost in the Tigard Triangle and the Central Business District. Also Cascade Blvd was not development to city standards. o President Tepedino was not pursuaded that changing to a commercial designation would be highest and best use. o Commissioner Moen did not feel Portland Chain was an appropriate use for long term, nor was it appropriate to have Toys R Us isolated. Lenghty discussion followed. o Commissioner Moen moved and President Tepedino seconded for approval of CPA. 12-83 and ZC 9-83 based on reason as previously stated. Motion failed four to one, Commission Moen voting yes. o Commissioner Butler moved and Commissioner Vanderwood seconded for denial of CPA 12-83 and ZC 9-83 based on staff's findings and recommendations. Motion carried by unanimous vote of Commissioners present, Commissioner Moen voting no. 6. OTHER BUSINESS o Staff stated because of the Labor Day holiday the September meeting would be scheduled for September 13, 1983. 7. MEETING ADJOURNED 9:30 P.M. Diane M. Jelderks, Secretary ATTEST: Francis J. Tepedino, President PLANNING COMMISSION MINUTES AUGUST 2, 1983 - Page 4 t; lj1)yrShtIe COMPnrdr OF OREGON The sketch below is mode so!e! for the Y purpose of os ,sting in locating sold premises and the Compony es...urner, ro A'ety for variations-,.if ony, in dimensions ancf tocotion oscertoined by octuol survey, D �.....:. :1`. - .y:4�. . .n,SEE MAP'.iy..'..rw1.4^�+•'i.,,.M'!!GSCtQ- ~ ~/ • IS 1 .270 rr !•'•sole' - . 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I \ ° .! , J /r - lxi {J.tao,. i ;GCa31: �j \ Ondins.sPbo,r. N.I.C.- • ,, \e ,i t.•r,- ',, .44,•_, •,-k--,--,. l-Mlal�� .ink r°-- _. 1' - \-., •'\. , 10:.,%..-....:,..,..,•!:,-' a • �, is+l / • OG%r s• t e d tl� t'1 \� \ .\-1-...:,:i. � ,` t�•.*' '+� G t1L®C'Y �ti$��li sty\ ALL°•I\ ,„ rs 1� st ��� ,y rh f ,t�• • ' '� 1' +a �,��'! ��;d. f r Jib. cliiiejttY.fi�,s 1 j ST33.. --.. \! '�f.1s-tia,. r ,▪ �\f`,� rf 4pf.Z T+ i- 2t a,;�_� • - •• (1�1) 1 krt (I) / ! • ...ri --1 .-d �.';'i v.'4'r `k,ter - ■ '' A.G. 1 ^b�` Public Kos•1 F': Y:.r�. f• 1 •i / 6,1 (,, ( \ •� Q gi Pub/ic •�� \ \ Z 1 11�� \ / _�• • Sewer N.(. -_--.--.-.;.-1.1x--•-- . ... -.,-,,,, ... \ •-- 1 \ -,%-k,• \ ‘ ••-...--•-r- - -_ .. _., - ■- . \ . % - ''.---- •- \\ - , / ' 1 ! l July 18, 1983 ;' PORTLAND CHAIN MANUFACTURING Outline of Additional Information to be Submitted to the City of Tigard I. Introduction and History of Land Use Actions On Site YI. Description of xisting and Proposed Uses III. Changes in the Character of the area IV. Relationship to Tigard Comprehensive Plan V. Traffic Impact Analysis • Portland Chain Manufacturing I. INTRODUCTION AND HISTORY OF LAND USE • The following brief narrative will update and expand upon a document entitled "Comprehensive Plan and Zone Change Request" , prepared by R.J. Frank & Associates in 1980. The previous document shows consistency of the proposed plan/change with "Fasano" requirements and LCDC Goals, and was accepted by the City Council in this light. A "Market Analysis", also included in the 1980 document is still valid in its assumptions and findings. In order to expedite the current plan/ zone change process, an application was submitted to the City of July 15, 1983, with the understanding that this additional information would be submitted as soon as possible. The land and buildings known as Portland Chain were acquired by PCM Associates, an Oregon general part- nership, in 1979. The prop,_ ty is now in the City of Tigard and may be described as being on the corner of Scholls Ferry Road and Cascade Boulevard; the actual address is 9770 Scholls Ferry Road, Tigard, Oregon. PCM Associates has a long term lease with Portland Chain & Manufacturing for 3.71 acres of land and the 40, 000 square foot building which runs until December 31 1989, however, the Lessor has the right to cancel the lease on or after December 31, 1985, provided Lessor gives two years' prior written notice. On August\, 1980, the Tigard Planning Commission PP a approved plan change on the site from "Industrial P g Park" to "General Commercial" . The site was sub- sequently annexed to the City (March 1981) , and the zoning was changed from County industrial to City "C-3" in April 1981. specifically for a single large user. These actions were a prerequisite for PCM Associates to further its long term land use objectives for the site, notably conversion of the facility to a more compatible retail activity. This intent was identified during the City proceedings (see staff report reference to "furniture store") . Upon com- pletion of the annexation/zoning process, negotia- tions were culminated with Toys 'R Us and an agreement reached. An agreement with Levitz Furniture was completed in the Spring of 1983. • Unfortunately, the legislative plan/zoning adoption completed in 1983 reverted the site to industrial and negated the previous quasi-judicial actions. The necessity for Levitz to maintain the commercial designation precipitates the plan/zone change request t Portland Chain Manufacturing accompanying this narrative. II. DESCRIPTION OF EXISTING AND PROPOSED USES. The existing Portland Chain Manufacturing facility would generally be categorized as heavy industrial. The primary product is heavy chain for the lumber industry, produced with a variety of fabrication equipment including welders, presses, grinders, forges and miscellaneous drilling and shaping tools. The workforce totals 7 in office/ administration and 34 in production. The opera- tion requires about 6 truck trips per day for delivery of goods and removal of products. The current I-L zoning on the site would allow a 1 variety of light industrial activities, but pro- bably would preclude the existing Portland Chain Manufacturing business due to the potential for off-site impacts of noise, odor, etc. The proposed C-G designation would allow a relatively wide range of commercial activities. However, the expressed intent of this proposed change is to facilitate conversion of the site.to a Levitz Furniture showroom.;.,_ It is expected that this, will involve a general upgrading of the site in terms of landscaping and overall appearance. It is projected that there will be approximately 20-25 employees on-site, and approximately 77 customers per week-day will be 'accomodated. See additional information following. III. CHANGES IN THE CHARACTER OF THE AREA The area served by Cascade Avenue, and the immediate surroundings, have changed significantly in recent years. The original industrial zoning, which was resurrected in the adoption of the new plan and zoning, reflected an expectation that the area would develop with predominantly light industrial businesses. However, as an accompanying land use map demonstrates, this has not occured. The land uses in the area include: NAME CHARACTER Koll Business Park Office/Business Times Publications Office Toys "R Us Retail Doxol Retail/Wholesale Substation Power Rents Retail/Wholesale Portland Chain Manufacturing NAME CHARACTER • Marx Office/ Office/Light Industrial Industrial Building Siemens/Allis Office/Light Industrial As Cascade continues toward Greenburg Road there is also a mixture of warehouse/industrial (Mayflower) and retail business (Tire Systems, gas stations) . Although the I-L zoning allows most of these activities, it does not reflect the impact of Koll, Toys 'R Us, and the Times Building on the PCM site. These non-industrial businesses, plus the major barrier formed by Scholls Ferry Road, surround the PCM site and make it a non-compatible industrial island, to the detriment of the other land uses. IV. RELATIONSHIP TO TIGARD COMPREHENSIVE PLAN • There are many issues addressed by the Tigard Comprehensive Plan which are not impacted by the current or proposed plan/zone designation, including citizen involvement, public services, and economic development. All of •these general areas of concern are met by procedural or technical aspects of the plan and its implementation. The issue to be addressed in this .proposal is whether the site, and the existing and proposed uses, are more consistent with locational criteria for commercial or industrial activities. Therefore, the criteria for each will be addressed in detail. Section 12.2 (2) provides criteria for "linear" (general) commercial areas: "Linear Commercial areas are intended to provide for major retail goods and services. The uses classified as linear commercial may involve drive-in services, large space users, a combination of retail service, wholesale and repair services or provide services to the traveling public. The uses range from auto- mobile repair and services, supply and equip- ment stores, vehicle sales, drive-in restaurants to laundry establishments. It is intended that these uses be adjacent to an arterial or major collector street." Portland Chain Manufacturing Comment: The character of the Cascade Blvd. area, as described above, clearly is consistent with this definition. Although there may be an exception (such as Siemens-Allis) , there are fewer "non- conforming" uses in this view then by applying the industrial definition to the area (see below) . "A. Scale (1) Trade Area. Varies. (2) Site Size. Depends on development. (3) Gross Leasable Area. Varies. B. Locational Criteria (1) Spacing and Location (a) The commercial area is not surrounded by residential districts on more than two sides." Comment: See above. " (a) The proposed area of an existing area shall not create traffic congestion or a traffic problem. Such a determination shall be based on the street capacity existing and projected traffic volumes, the speed limit, number of turning movements and the traffic generating characteristics of the various types of uses." Comment: See following section. " (b) The site shall have direct access from a major collector or arterial street. (c) Public transportation shall be available to the site or general area." Comment: Both criteria are met by Scholls Ferry Road • access. " (3) Site Characteristics (a) The site shall be of a size which can accomodate present and projected uses. (b) The site shall have high visibility. " Portland Chain Manufacturing " (4) Impact Assessment ' (a) The scale of the project shall be ,;4r compatible with the surrounding uses: , ` (b) The site configuration and characteris- tics shall be such that the privacy of adjacent non-commercial uses can be maintained. (c) It shall be possible to incorporate the unique site features into the site design and development plan. (.d) The associated lights,• noise and activities shall not interfere with adjoining non-residential uses." Comment: The scale of the planned use of the site, ' us o sistent with the existing building's capa- bilities, and the existing. Toys 'R Us and Times Publications activities. There are no non-commercial businesses abutting the site which would be adversely affected, and there are no unique, site features. The iI conversion of the site to commercial use will lessen the impact of lights and noise. i Section 12.4 provides criteria for industrial uses: "1. Heavy Industrial Lands which are areas intended to provide for manufacturing, processing and assembling activities. Uses within this classification are characterized by large buildings and large storage areas and as having associated external effects such as smoke, noise, odor, or visual pollution." Comment:. The Portland Chain Manufacturing business appears to fit this category, as it involves the fabrication of heavy chain from dimensional steel with heavy equipment and tools. The 40,000 + square foot building is supported by a substantial outside area, and there are notable effects of noise and odor on adjacent properties. "2. Light Industrial Lands are areas intended , to provide ,for manufacturing, processing, . assembling and related office activities. Uses within this classification are of a size and scale which makes them generally compatible with other non-industrial uses 1 Portland Chain Manufacturing and which have no off-site effects." Comment: Although some of the activities in the Cascade Blvd. area are consistent with this defini- tion, Portland Chain Manufacturing is not. "12.4.1 The City Shall Require That: a. Site for heavy industrial develop- ment shall be: (1) Separated by topography established buffers, trans- portation or other non-residen- tial land uses from residen- tially developed areas. (2) Located in xeas having rail service, arterial or major collector access. b. Sites for light industrial develop- ment shall be: • (1) Buffered from residential areas to assure that privacy and the residential character of the area are preserved. (2) Located on an arterial or collector street and that industrial traffic shall not be channeled through residen- tial areas. c. The site shall be of a size which will provide for the short and long range needs of the use. d. The land intended for development shall have an average site topo- graphy of less than 6% grade, or that it can be demonstrated that through Engineering techniques all 4 g 4 limitations to development and the provision of services can be mitigated. e. It be demonstrated that associated lights, noise an other external effects will not interfere with the activities and uses on surrounding Portland Chain Manufacturing properties. f. All other applicable plan policies can be met. " Comment: ' The site characteristics are generally cons stent with these criteria. However, the use characteristics of Portland Chain do include o?-site impacts of noise and odor. This review of the Tigard Comprehensive Plan, and specifically the use characteristic sections and locational criteria, leads to the following con- clusions: 1. The larger Cascade Blvd. area could be designated "Linear Commercial" , rather than "Light Industrial", with no increase in non-conforming uses. 2. The PCM site meets the general locational criteria for Linear Commercial and Industrial. 3. Commercial use of the site would be more . compatible with adjacent uses, and therefore more consistent with specific locational and performance criteria than the existing heavy industrial use. 4. If PCM vacates the building, it is conceivable that a compatible light industrial use might occupy the site. However, given the character of the adjacent uses, it is clear that the range of commercial uses (and specifically the intended occupant) present a more compatible land use pattern. V. TRAFFIC IMPACT ANALYSIS The following discussion will compare the existing land use condition (P.C.M. ) with the proposed Levitz Furniture facility which would be allowed under the C-G zone. This analysis will offer a realistic evaluation of before/after conditions; although it is understood that the I-L and C-G zones could potentially allow a wider range of activities, the committment made by Levitz gives credibility to the likelihood of their occupancy of the site. . 4 EXISTING CONDITIONS (P.C.M.) 41 employees. . .82 vehicle trips/day, 6 trucks (pick up products) . . .12 vehicle trips/day (8-10 trucks per month to deliver raw materials not included) total trips per day: 94. Characteristics: Aside from the pickup%delivery trips, these 94 are all peak hour, at the morning and evening rush periods (it is currently a one- shift operation) . Nearly all of the PCM employees live in the Beaverton/Hillsboro area, so access is concentrated on the Scholls Ferry Road intersection. PROJECTED CONDITIONS (LEVITZ) Hours of operation: Monday through Friday 10:00 a.m. to 9:00 p.m. , Saturday 10:00 a.m. to 6:00 p.m. , Sunday 12:00 p.m. to 6:00 p.m. Employees: Monday through Friday, 7 sales plus 8 office personnel. Saturday and Sunday, 14 sales personnel. Customers: One customer/hour/salesperson x 7 = 7 customers/hour (weekdays) . One customer/hour/salesperson x 14 = 14 customers/ hour (weekend) . Seven customers/hour x 11 hours (weekday) = 77 customers/day. 14 Customers/hour x 8 hours (weekend) = 112 customers/ day. Trip Generation: Employees. . .15 x 2 trips = 30 trips/day. Customers. . .77 x 2 trips = 154 trips/day. Delivery Truck. . .1 x 2 trips = 2 trips/day. TOTAL: 186 trips/day. Characteristics: The peak hour traffic by Levitz will be limited to employees, since the highest customer volumes are during normally non-working hours. Truck traffic will be limited to about one Levitz delivery truck per day to exchange showroom merchandise (there will be no warehouse on this site) . The weekend • volumes are inconsequential since they do not coincide with any other peaks. 1 DISCUSSION Most traffic for PCM and Levitz depends upon the Cascade/Scholls Ferry Road intersection. This is signalized with left turn movements off Scholls Ferry. If the volumes for Levitz are not signifi- cantly higher than PCM's, no adverse impact on this ,intersection would be expected. Levitz will utilize this facility for showroom only, with no warehouse and no deliveries originating from the site. Therefore, the main traffic volumes will be customers, which will peak at off rush hour times. Weekend volumes are relatively high, but again will utilize the facility at off-peak hours. The total Levitz daily traffic is about twice that generated by PCM. However, employee trips are less than half of PCM's and they do not occur at normal rush hours. Since the peak hour loading is the main concern, it is concluded that traffic condition • with Levitz will be improved compared to those with PCM. • illrf ..A r:.5., i 0`.:h5 t r ,14 :fiYA .l - i � } .. :.,;.,, ,,.:.,.• t •.,1 a y 1•,fSf ,S ggt 4. t f Icy ` I J 4 , A i - F' '.rat h J 1•ar< r 4 1 �k .1 y 4, , . - ij:00,xa .I - �1 '�i r• MFv'i+ fi j Fu's' r-�..(q^ f a a r ' E Ip ;� _ - e , 1�.ca - 1 d rfi tl r 4 f 1 t �j Yyt$,a� �1 hrt f J.7-.'',, v ,4 Iky`�� � .zzr� t1,{y f (3 111'tq,T .i € r .r a4 . trS`. 9Cr ,, FG9# a \ aaf f ru xk""">��,t y 1 CC Y P�A%'rry a tl Jk .. f ``.0 ' llt .{ . 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'r. �a � �, 6 pv tt}�4w urd/s �af # yfTr: r x s v t. �, 1y r. t �7 Y F S� 5 4I+d a 44 ate , x v 4,r,,w ) 1 }f y ,yti"k F, ,...3.--)......,, .� d� Iw ..,,,t.•' ,g4,• .>:"' _ 491,tf r3 1 y mss,x s .A ran V''tt ' ! ,'r r c i �?e,,, .j .s`'E,A ,t r!,4�`h v `rt 1.5* !`3t' C yS { ,' 1 Y r b '"YI d t n �3%,g 1 Ufa 7�.x�x �'Y.r 1 N a 4. ,7;* 1 gif r~ q "7 c+ M J $"�(IW�{ �.<�Fk �}' �/hk Sr��- � �G �`!° t■11 ' .ri'r )a 5,C .: 4!4,F•M:'� x > 1 G 3 i 1 ,I'A j,, Aa� rr e• Y , d 4a ifA.+tl fl�2�f �1 nt� 't a i,1 9 . 1 T it'�'xf;4;}�{. 4 tt<< . _ , r ?` 3 P ?1∎ fl i+> t d x '� x'e�+A b �. xr r 1 > r 4 _ >}r gyd1f�u yr ° Q tty'it7 f F r: �`� .,3',�3fr �-,k $ti a'�}tr } r•� f 1x. spa n � 4 �1� t��'�'g`�¢��t� � �°� � �yt �a �('y ,•-.i . .ra - w t tt. 4 0; i � k .1. SP`iaAZ; 2.�i '�■?Jr - ,�. Q41.65■ l.<it it. E 1}rA < f t4 1 c aPi t•14 r� ..0.*. 1 a f 1.• �`� .t } ,Y : +t Yt u r %$ [ . - '4 '" 5 �� fY�{ L�,yj t� 1� � 'I k' � f r lydq' . 1: 1 2 �4 3 2 t'a4aP tt , s 6�w ,4 i: f C L ,. v'3 4 f v� f # ,9 ra l.A t ; i �tir :•� - '< � ; 7A4.; a . J r'k, .. l� , ,, , .,. . . ,.. .-,,,.....,,..,,,,...h.10:1A,P,:v:k...‘s,,,,...).,..ok..,),,,,,: ,,. ,i,„4�,� V il.l a .. f j,f, F m 4< A�,•:„.„•,:.,1.,••,,,,.. 1 , o r ` , ::tt`° 1.,' a' ,,;.t,".1"' " , y J+ r. Ny &a r q -1 ji INDEPENDENT ACCOUNTANTS Laventhol & I- orwath, Philadelphia, PA ,z REGISTRAR& TRANSFER AGENT Manufacturers hanover Trust Co., New York, NY ANNUAL MEETING' The Annual Meeting of Stockholders of Levitz Furniture Corporation will be held at 11:00 a.m., ` May 26, 1982, at the Miami Marriott Hotel, 1201 N. W. LeJeune Rd., Miami, FL 33126 STOCK INFORMATION Levitz Furniture Corporation Common Stock is listed on the New York and Pacific Stock Ex- 4 changes. Its ticker symbol is LEV. The range of high and low sales prices for the Common Stock as reported in the New York Stock Exchange Composite Index and the amount of cash dividends declared per share for each quarterly period in the last two fiscal years end- ed January 31, 1982 and 1981 are as follows: Quarter Ended: High Low Dividends April 30, 1981 35-1/2 23-3/8 $ .25 July 31, 1981 36-3/8 30-1/8 .25 October a 1 1981 40-7/8 30 .25 January31, 1982 41-1/2 32-1/4 .25 , Quarter Ended: High Low Dividends April 30, 1980 27-7/8 18 $ .25 July 31, 1980 27-3/4 20-3/4 .25 October 31, 1980 29-3/8 25-1/4 .25 January 31, 1981 27-1/8 21 .25 As of January 31, 1982 there were 6,161 record holders of Company Common Stock. 10-IC REPORT A copy of the Levitz Furniture Corporation 10-K Annual Report filed with the Securities and t Exchange Commission for 1982 is available at no charge to shareholders. To obtain a copy write to: Patrick J. Nolan, Sr. Vice. President and Treasurer Levitz Furniture Corporation 1317 N. W.167th Street Miami, Florida 33169 NATIONAL HEADQUARTERS National Headquarters: 1317 N. W. 167th Street, Miami, Florida 33169 l 111111.11111111110111111111111111.111 .1.1111111.11111111.117 1 II FINANCIAL HIGHLIGHTS NET SALES (in millions) 100 200 300 400 500 600 $428.3 1978 * dt. , � !lut "fga a:M P? ? ,t v N f � � �� �" n s � 498.2 1979 w 546.6 1980 500.8 1981 • 488.5 1982 EARNINGS PER SHARE 1.00 2.00 3.00 4.00 5.00 6.00 $ 2.81 1978 rii 4% ;t .khir alitY 'liWiaia `.` ' a', 3.34 (1) 1979 • •,.a. .,C s :;4.83 (1) 1980 3.16 (1), (2) 1981 f 198 1 2•10 (1) 1982 BOOK VALUE PER SHARE 5 10 15 20 25 30 35 $ 21.75 1978 i t.M. t:a tg ' i:'A t � ,�'.'%fi atit2tfg c ..tg � � `� 24.45 (1) 1979 ` . 28.32 (1) 1980 30.48 (1). (2) 1981 .'h 31.42 (1) 1982 (1) Reflects change in accounting for vacation pay in compliance with FAS No. 43. (2) Reflects change in method of determining costs of inventories from the FIFO method to the LIFO method. 2 MESSAGE TO SHAREHOLDERS Dear Shareholders: spite of this cost, our analysis indicates that it is in our best interests not to enter the con- As the highlights in the preceding page indicate, sumer credit business ourselves. Levitz reported a 33.5% decrease in earnings in its 1982 fiscal year. However, the Company per- Levitz is in a strong financial condition. Long- formed well when measured against results term debt is only$22.2 million and is at very reported by other retailers of large ticket mer- favorable rates. This leaves ample room to chandise and an economy severely weakened by finance future growth with debt if rates are ad- unprecedented mortgage rates, a post-war low in vantageous.There are other measures which housing starts and sales of existing homes and point to Levitz's financial strength: dividends are a low level of consumer confidence. paid at an annual rate of $1 per share and are well covered; long-term obligations as a percent Indeed, Levitz was well prepared for the reces- of shareholders' equity are lower than any time sion and was able to minimize the economy's in the past 7 years and book value per share is impact upon earnings by following a business $31.42, the highest in the company's history. plan that emphasizes cost reduction programs and contingency budgets to counteract the The recession, really a deeper dip than ex- effects of a business downturn. perienced approximately 18 months ago, is hurt- As important as reducing expenses this fiscal ing many retailers. However, unlike other re- period, Levitz concentrated on maintaining gross tailers that are retrenching, or, in some cases, margins which amounted to 44.9% -- a very going out of business, Levitz continues to be satisfactory level when compared to 44.1% strong and is moving to exploit the difficult reported last year. Notably, we actually in- market conditions to build market share. In this creased margins to 45.3% in the second half of recession, Levitz has been attempting to acquire fiscal period. This improvement rovement in attractive properties and leases from troubled the gross margins rg period. p retailers. One of our newest Levitz stores is an gross margins reflects management's ability to upgrade Levitz's merchandise mix and maximize example — a lease acquisition from a regional the return on its inventory. retailer located in Anaheim, California and our 17th store in the California market. Also during Net Interest Expense remained at 2.3% of sales 1981, we opened stores in Modesto, California and was actually $24,000 lower than the prior and Fort Meyers, Florida. At the end of the fiscal year. However, most of the interest expense year Levitz had 4,264,000 square feet of selling reflected on the Statement of Income is the space. In the 1983 fiscal period, we plan to con- result of capitalized leases which are at low tinue to increase our selling space. fixed rates of interest. The high current rates of interest, however, did have a significant impact A key to our success and a fundamental mar- on the earnings of Levitz. Discounts paid on the keting objective, especially in a recession, is not sale of consumer credit receivables to an in- to discount merchandise broadly in an effort to dependent finance company are related to cur- stimulate sales. Rather, we strongly believe in rent interest rates and amounted to $8,499,481; maintaining gross margins through changing the $1,739,000 higher than last year and $4,437,000 mix of merchandise we offer.This approach, im- higher than two years ago.This expense has portant to keeping Levitz financially healthy and more than doubled in two years despite lower to maintaining earnings in an economic slow- sales levels! We expect this expense to be lower down, also gives the Company an opportunity to in fiscal 1983 as interest rates come down. In maximize earnings in a good retail environment. ° sa 3 Y:��i.....,,.u�.,.:.+uw a'.,...,x.,i�aw..,t..aY.ai..•..:�.....,:.a .w.,,G_.__._...•�,., .....:a. ?e,.uw_i.:.o.,,L.v.,....Y,w� ......:. ..i. __.......a ..�.,z,..w»,.,..x_.,.�:,... .... .�._L..... ...._. .u.J As important as expanding market share and and prompt payment. This enables them to maintaining margins, we also seek to enhance minimize waste and keep production levels the Company's operating leverage, that is, to stable. This degree of consistency and level of convert more sales dollar into earnings. We try cooperation are mutually beneficial. to achieve a higher return on sales through bet Increasing operating leverage also involves ex - more a rapid tighter inventory. controls,e hhave n panding in markets where Levitz already holds mare rapid movement of inventory.We have in an advertising position. We want to maximize place the controls and systems to enhance our outlay of advertising dollars --the promo- operating leverage. By emphasizing such produc- our of umbrella --advertising in our dollars.--the promo- tivity in the 100%factors omm as a sales force which works on advertising business is running at 15% to 20% 100% commission and a greater utilization of per year.This includes print and electronic the real estate we own, we can improve our bat media. By further penetrating markets where we torn line profits. already are highly visible, we hope to get more Lease agreements relating to individual proper- mileage out of our advertising budget. Our objec- ties in Levitz's chain of warehouse showrooms tive in fiscal 1983 is to keep advertising costs at also contribute to earnings leverage. For exam- present levels. pie, the average rent per foot of Levitz ware- t seen the bat- house showroom space is about $1.76 — a very We believe that we have just abou attractive rate when one considers today's high torn of the cycle in our industry. The future in cost of prime retail space. When possible, Levitz furniture retailing will be rewarding for well will buy out lease agreements to take advantage capitalized companies like Levitz that can in- of attractive purchase options. crease market share by appealing to consumers' preference for immediate delivery of purchased Another asset we possess is the amount of furniture, not to mention low price, broad selec- unused excess space available in existing tion, quality merchandise, service and value. warehouses. Currently, Levitz warehouses That competitive demand is a tall order for operate in the range of 50-60% of capacity. We lesser-capitalized retailers and the so-called plan to seek new ways to utilize the excess "mom and pop" stores. Accordingly, we foresee space.This may involve various approaches in- a tremendous consolidation of the furniture cluding conversion of excess warehouse space retailing industry similar to that experienced in to selling space, and in some instances, sub- other highly competitive and highly fragmented leasing to other businesses that we feel may industries. We expect industry consolidation will draw additional customer traffic to our ware- lead to greater market share for Levitz, as other house showrooms.We have recently negotiated retailers find it increasingly difficult to build in- transactions which will convert a total of 65,000 ventories, finance growth or simply stay in square feet of warehouse space in two of our business. buildings to selling space and the sublease of the new space to a major catalog showroom operator and a sporting goods retailer. - y//IOP, The rate of inflation in the furniture industry to- Robert M. Elliott day is approximately 6%. We try to minimize the President and Chief inflation factor by working closely with major Executive Officer suppliers to hold down price increases. Con- versely, our suppliers can count on firm orders March 31, 1982 aC"F t �rda a _ fltAb 1. r k a c4 a DEMOGRAPHIC TRENDS OF THE 80'S Last year's annual report detailed how dividuals will retire. As individuals retire, and why Levitz is positioned in the major they usually move, thereby creating another regional markets it serves. This year, we demand for furniture and one we expect to would like to review the demographic grow substantially. Adding to this demand character of the country and how it favors is the retiree's sale of his home, often a our market position. Indeed, we believe it residence that has become too large or too offers Levitz substantial opportunities for costly to maintain. This usually provides long-term growth. the funding for a new and smaller home In the 1980's, the American economy will and furnishings. We expect that the 65 and be financed by the 30 to 45 year old age over age group will be an increasingly group — the baby boom generation — a prime market for Levitz. Demand for fur- niture and related merchandise should receive a substantial boost as the 75 'on o of generation row million members g 9 .. r _ I older and increase this age group by some IG �� kt;. � ;^� 40%. Also, more than 40 million individuals r' will reach age 30 in the 1980's — an age associated with home buying and child 4. • rearing. An estimated 4 million people a •c, year will enter the market for housing berg Not fig tween now and 1995. Marriage, child rear- — ittOk' �� ing, and home buying are generally accom- panied by purchases of furniture. These • �y -----... "=- - m � ^ consumers will be entering their prime fir, income-producing years and will need -' ;a household products while they are raising children. The sheer size of these population segments and their ability and desire to upgrade their households represent an im- • '11P' Oltiior- 4 portant market and a growth opportunity for "°4� z Levit ., `t ,�Y1" °. As significant, the domestic population is aging rapidly. Indeed, the 65 and over age group is now this country's second fastest growing population segment and, through the 1980's, a record number of in- . • 4i, % %•b-1.$ pit, ;...?'4....• .., , , , , ,...,, ....g :.- . 4,-, . . " • ,: I., ' Iii. ,,...,-... 1 1 Nitg.,,,' ' ' ' '' ''i'1.'ft . ...,, ,ni• '... - : - ; -:,',-,L-,1,••,. .-,L., • rt":-''4S- •.4 eili f. , . ., , , . :, i 4fri • N • • • ,, ') ••, • . , •.• . . 4 'I I, 4-,VA41.,.?- _ , . ,•'t,.1. , ,INT. , , , ,., ,'..''' Wit4,, , ,'4'i,,... ' ,ii. _, ,„..„-,•••• •••••...„..... .,••,.z , ,.„......" , MI 4..-,,,--,- i'''''., ',. ,,'''',. Uri, • '' 1,.;7-':.,.0-'''' •-•‘'.416 44, ; 'Ai. -7,7-.7: . 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I "061014,,,,,, a wf , - ¶ important market for Levitz as more in- posable income which most certainly will be dividuals retire and move to smaller homes, targeted for consumables including home condominiums or group settings which pro- furnishings, furniture and related items. vide greater services and an enhanced The increasing number of households is social environment' another factor which will affect furniture The emergence of two income families sales. According to "American Demo- also favors our business. In the 1980's, graphics" magazine, for every person added women will comprise an even larger seg- to the population since 1970, a household ment of the workforce. By 1990, it is — that is "an occupied housing" unit — estimated that 50% of the labor force will was added as well. In the 1980's this trend be female — a sharp contrast to the 33% should continue. There will be more single female employment figure of 1970. More households, more households formed by two income families mean greater dis- unrelated and unmarried individuals, more �'� r'• r�+� 11( A: , 1 �, .:� >.. t f1, J- ' t a do .au'ty t rti �p.. 'c i 1 vi4, Ikl'' ', " flhs'Y d- s /e ..i-- "`'r f+y. 1176 �4? � 4. ,,,�.y' r ,,,..�3 4w�h'h � � `ti.r � ,t Q'T'R",g, �'• \�A�3�a'6� , �z H��� $- ' m , `' (4::,. '( rb kid s Aiilw Cr d j ,,.7 '11 '311& , :°€i✓14„sr Y35<Y4447B E '. r3- 4! _ A ! as I .t•'�'v .. r�ss Ar4`. t ' • iiiigl e x a . q .a 5 t m' - 'e ` ae' 51 f.::'17-1,.1::: *-17 .11 i.4 I'll”— ' ra' i, 44`' t ? -on•e'sa 'WV',y 1 t k fl fa` 1$., fir„:„„1, ,r k { fa ,,, rdt di? k w,, ,. , , M �rz; ' ¢', ,1,---- ,10'Ta ,13' ,40.1, t 3 ,P,,' 'C �f. .n r new households formed by retired persons, furniture buyers have the prerogative to buy and communal households. The rapid different furniture styles or alter existing growth in households, a function of new designs to appeal to regional preferences. because Levitz is a nationwide chain lifestyles, also is a function of the size of And,supported consistently by high visibility the American family which is shrinking print and electronic advertising, the because of a number of factors including, customer knows that Levitz is a furniture simply, the economics of raising children, in addition to a higher divorce rate and "supermarket" that offers a broad selection more single households. Alternative life- of merchandise and also value, service and styles and an economy which enables in- immediate gratification through instant dividuals to live alone if they choose, will delivery of purchased merchandise. contribute to increasing household forma- tions and, in turn, an increasing demand for furniture. Population migration is another factor which affects Levitz's future. Levitz has opened new stores to capitalize on furni ture demand in emerging population cent- � ters. Levitz has anticipated population shifts in this country, and is a competitive factor in major regional markets, including population centers in the northeast, t ` southwest, west coast and the Pacific ( northwest. Levitz serves these markets through furniture warehouse showrooms �1 . from 64 000 square feet to F size f , si ranging in 7 9 9 250,000 square feet. " r ° Because of its broad range of product ,; 'g, �,r! Levitz can offer its A1 `°; and market positioning, �,�� �.�1r�� customers a selection of furniture that can appeal to their successive furniture buying ,; stages represented by their lifestyles in- eluding: apartment, starter home, perma nent home, vacation home, and retirement wr ,� k� home. 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L i Y#1 ` , 511 .''}'. y „:.-5',,,'- r.5➢ •'SR. +Y•.. i 111 f "`.�.- 1V1. s.�""�� q..'....,,,,ti i o i :iii,• �. 4J \C t 8i !q` r 1 .. �kt�f4"`t'},v J'\��� 1 F i 1 xyc • We believe that the 1980's offer tremen- power to reach $1.2 trillion or about one- dous opportunities for growth for Levitz, half of 1980's Gross National Product Clearly, we see the population base work- Greater discretionary income, a maturing ing to our advantage. Levitz is certain to population and more households place the benefit from the demographic changes at individual residence in as prime position to work in our society. The baby boom genera- tion benefit from consumer spending. In con alone, whose members are among the tract tou other furniture retailers, Levitz is in largest purchasers of furniture, represents a unique position to capitalize on the total purchasing power on the order of demographic trends that will affect con approximately $420 billion. By 1990, re Sumer spending fcr home furnishings. searchers forecast this group's purchasing '' d �,, �' 1 r C y� � s K 4••••t s { r„4,0.- "v. tari p�'f } 7'3.. s mot` . ...,.4 u` r -; f1,33',,3:',,,,.1. ,y p'Rr d R ,� °' ' I � ” ( _ ti x1' t f p 2'�'ara�`�r t (( { „ S} H�_� (4 f r .i. # f tip e=., , .,4, t i .c ...1 Il E rr F, 5 t e -� 1'�k'Ysri <. ( a �� f r �" V�' ,,�� 1 Vie'r !•, fit ''1. • . „,,' ,lib(I,-7,,''' i',, ' 11\4' I. ' '' '- -, '—.7k,,,l,S 2tr ` c` 1w a-,. �q?''' Y A. ���"" fy't�`z�Y.ry �� 1 I 5 � y ! i 1�1 k i t4�t�,;F ■ �i 11-.7U7:. fi�2'� �'� �x'�,x�° t f j� ttl�k�,�'F:'.ii ,\:.-...-. - . ti <t 1, f'. d l�� f.f F i,,\ , i. ..;-„,,,- i' J -1.. > 4 r^,}•" '' f ��� r �, ,E,>�,.,..• �?',` ��1 1. f'�. i'k-�----'-'---� - .`�-^-.y�I�f, `t ��''�,f �'r-;1 ii it 41 ) ( �b ,.x„ -f J... a -n` 4}r ate"i lyx Y!. `�,S 'w;tT } �°N'ry#r• ,<',1,-;„,,,....., x, un.+`d.+'^'"' r IS ?r �y f n~ p' �j�'�' 1 3 t',:.!..'71'..":1;',17,-- I f'. n• '' n'4 1� „" _ 4 �i >'. ,' v; t1 !s dr' j 'i` f Nr .. a'` !F 1 r' y:..1-f. = t-L--"'"---44''4' t 4 t <'Z CI Is ' + t ' �.^'I7 ,.. t m _ y„ti�cy-, . ,a '�lM f" yl fsf ,�. ➢ f ..•v.+ 1e 1r, .q L .�-,-��CrO'"m�t �, �,�, ,4.^ 'M 4 'tYC.,!.111::` ➢y,,1 ,w� S ,•h 'Y _- -ta' �✓...A�' STiJ #ti gif r � ; h` !WJWr • o.ti f'�,'`,'1,!,`t ' 12 Levitz Furniture Corporation and Subsidiaries MANAGEMENT'S DISCUSSION 8 YEAR SUMMARY OF OPERATIONS AND ANALYSIS OF FINANCIAL CONDITION AND (in thousands, except per share data) RESULTS OF OPERATIONS 1982 1981 1980 Results of Operations Net sales $ 488,544 $ 500,752 $ 546,580 Gross profit 219,578 220,701 240,814 Sales for the year ended January 31, 1982 Gross profit percentage 44.95% 44.07% 44.06% decreased by 2.4% from the preceding year Income(loss) before income taxes $ 15,300 $ 24,601 $ 38,505 and 10.6% from fiscal 1980 sales. The Net Income(loss) 8,873 13,458 20,527 decline in sales in fiscal years 1982 and Earnings(loss) per share $ 2.10 $ 3.16 $ 4.83 1981 reflects the general decrease in economic activity particularly in durable Return on ending shareholders'equity 6.82% 10.37% 17.03°r° goods, housing starts and housing resales. Working capital $ 55,864 $ 62,641 $ 60,912 The fiscal 1981 sales decrease also reflects Leased property under capital leases 86,447 89,912 94.156 the credit restrictions imposed by the Capital lease obligations 107,647 109,896 112,626 Federal Reserve Board in March, 1980. Debt other than capital leases 35,789 24,710 23,045 There were 76 branches in operation at Shareholders' equity 130,608 129,767 120,547 January 31, 1982 and 74 branches in opera- Average common shares outstanding 4,221,967 4,257,341 4,248,280 tion at January 31, 1981 and January 31, Total assets $ 315,870 $ 319,296 313,581 1980. During fiscal 1982, the Company Cash dividends per share $ 1.00 $ 1.00 $ .90 opened three new branches and closed one existing branch. Gross profit on a comparable FIFO basis increased to 45.7% (LIFO 44.9%) in fiscal During fiscal 1982 the Company continued 1982 from 44.9% (LIFO 44.1%) for fiscal to take action to reduce expenses where year 1981 and 44.1% in fiscal 1980. The possible because of the decline in sales. In Company changed to the LIFO method of general, on a comparable store basis, most accounting for the fiscal year ended expenses were approximately the"same for January 31, 1981. The increase in gross pro- fiscal 1982 as in fiscal 1981 except for fit margins reflects management's efforts advertising and the amount paid for dis- to pass through to the consumer the in counting credit paper sold to the finance creased cost of doing business caused by company which purchases the bulk of the inflation, high interest rates, and the lower Company's credit obligations. The increase level of sales. in advertising was primarily due to in- creased media costs and management's ef- forts to increase sales through additional 13 1980. The higher percentage of expenses related to net sales is due primarily to the fixed nature of certain expenses such as rent, real estate taxes, etc., and a decrease 1979 1978 1977 1976 1975 in sales. $ 498,194 $ 428,251 $ 372,667 $ 326,260 $ 355,320 218,793 184,280 154,507 131,573 $ 144,548 Net interest expense for fiscal 1982 was 43.92% 43.03% 41.46% 40.33% 40.68% $11,422,000, approximately the same as for $ 31,515 $ 22,159 $ 9,784 ($ 3,198) $ 4,492 the preceding year when net interest ex- 14,168 11,936 5,214 (1,430) 2,521 pense was $11,446,000. Both years reflect a $ 3.34 $ 2.81 $ 1.23 ($ .34) $ .60 decrease from fiscal 1980 when net interest expense was $13,483,000. The Company 13.66% 12.94% 6.42% (1.88%) 3.26% has been able to maintain its inventory $ 56,529 $ 51,562 $ 50,223 $ 50,732 $ 45,401 levels in line with its sales volume, reduc- 97,256 104,047 98,394 105,818 104,455 ing the need for borrowing during the 113,730 117,524 110,836 116,338 112,500 period of high interest rates. 29,411 44,525 26,665 25,823 36,618 103,704 92,250 81,185 75,911 77,334 The change to LIFO accounting resulted in 4,243,118 4,240,553 4,239,441 4,238,713 4,229,363 a charge to net income of $1,920,000 or $ 301,932 $ 302,095 $ 253,189 $ 248,528 $ 255,060 $.46 per share in fiscal 1982 and $2,163,000 $ .65 $ .20 or $.50 per share in fiscal 1981. Financial Condition As a result of reduced profitability and a advertising. The increase in the amount continued program of employing capital in paid for discounting credit paper reflects new stores, cash and equivalents declined high interest rates throughout the year. The to $7,107,000 or 6.3% of total current discount charged for credit sales was assets at January 31, 1982. At January 31, $8,499,481 in fiscal 1982, $6,760,227 for 1981 cash and equivalents amounted to fiscal 1981, and $4,062,476 for fiscal 1980. $14,624,000 or 11.8% of total current assets The Company does not maintain its own including $7,844,000 temporarily invested in customer credit receivables. Treasury Bills. The comparable figure two years ago was $7,111,000 or 6.3% of total Selling, general and administrative ex- current assets. Borrowings under the penses amounted to 39.5% of net sales for Company's $38,000,000 unsecured lines of fiscal 1982,36,9%0 of net sales for fiscal credit were $7,000,000. An additional 1981, and 34,5% of net sales for fiscal $5,000,000 in bank borrowings was out- 14 standing under a separate credit facility. It is management's opinion that theCom- The borrowings were mainly required as pany can pursue a policy of opening an a substitute for accounts payable to finance average of about four stores a year without inventories. Accounts Payable were resorting to additional long-term debt. In $17,863,000 at January 31, 1982 as the present economic environment this compared to $26,350,000 a year earlier. policy would require additional short-term Average daily borrowings under bank lines financing that would be repaid as earnings of credit amounted to $3,125,000 for the improve to a normal level as the economy year ended January 31, 1982 as compared improves. Management believes that the pre- to $1,633,000 the prior year and $4,367,000 sent financial condition of the Company two years ago. would support the interest charges and repayment of at least $50 million in addi- The Company has continued to finance its tional long-term debt financing. growth primarily through internally generated funds. Although $23,243,000 was Note:The information regarding the impact of inflation spent on additions to property and equip- on financial data can be found on pages 27 and 28. ment, total long-term debt including capitalized lease obligations declined by $1,170,000 to $131,436,000 from $132,606,000 a year ago. Two years ago the comparable figure was $135,671,000. Longterm Obligations As A Percent of Cash Dividends Per Common Share Gross Profit Percentage Shareholders' Equity Fiscal Year Ended January 31 Fiscal Year Ended January 31 Fiscal Year Ended January 31 $1.00 $100 173.5% 44.1% 44.9 a P $0.90 43.9% 44.1% (LIFO) (LIFO) 150.5% 41,5/0 43A% u 145.6% 40.3% rx su1" I >i1w 126.8% li�� '�t.%i- Iv $0.65 14,0 +:. ' �'f4'1 ,` 109.5% (LIFO)98.9% (LIFO)97.2% '. ' '^s,)5 g �, r�r+ ,� _ {LIFO) (LIFO) �`I t' 4 - $0 20 `� ,, '` � t fT , zgS� ip.}y 'i +F RGfy.} 50 Y' i. Vog '7.'4'v: inert?: 1976 1977 1978 1979 1980 1981 1982 1977 1978 1979 1980 1981 1982 1976 1977 1978 1979 1980 1981 1982 Is SUPPLEMENTARY INFORMATION SELECTED QUARTERLY DATA The following is a summary of unaudited quarterly results of operations for years ended January 31, 1982 and 1981: (in thousands, except earnings per common share) Quarter ended April 30, July 31, Oct. 31, Jan. 31, 1981 1981 1981 1982 Net sales $121,984 $120,680 $120,646 $12.5,234 Gross profit 53,785 54,340 54,465 56,988 Net income 2,133 1,895 2,205 2,640 Earnings per common share $ .50 $ .45 $ .52 $ .63 Quarter ended April 30, July 31, Oct. 31, Jan. 31, 1980 1980 1980 1981 Net sales $122,293 $111,821 $126,297 $140,341 Gross profit 54,753 50,2.41 55,820 59,887 Net income 2,381 2,070 3,890 5,117 Earnings per common share $ .56 $ .49 $ .91 $ 1.20 Net Sales Per Employee Saps Per Square Foot of Selling Space Net Income As A Percent of Fiscal Year Ended January 31 f-isca Year Ended January 31 Shareholders' Equity Fiscal Year Ended January 31 $115,087 $129.86 $101,593 - $121 24 r''"'u: $119.80 17.0% $97,813 r $115.43 +.�,, $116.90 $90,994 $108.59 - $79,800 $95.62 cu s 13 7 { x' $77,483 12.9% 1d 3' $68,759 'Ir ,`& �s Y 104°° I } sr�' y!r b S �' �( (LIFO) tY# f, J 4 rf r (LIFO) 8 A a§. f�- 11.8°�°) EZIA 1976 1977 1978 1979 1980 1981 1982 1976 1977 1978 1979 1980 1981 1982 1977 1978 1979 1980 1981 1982 1976 16 Levitz Furniture Corporation and Subsidiaries CONSOLIDATED BALANCE SHEETS ASSETS January 31, 1982 1981 (Restated, Note 2) Current assets: Cash (Note 4) $ 7,107,000 $ 6,780,000 Treasury bills 7,844,000 Receivables: Notes 1,121,000 1,903,000. Trade and other 8,767,000 11,057,000 Inventories (Notes 2 and 3) 90,863,000 91,515,000 Deferred income tax charges (Note 12) 1,807,000 1,614,000 Deposits and prepaid expenses 4,001,000 3,079,000 Total current assets 113,666,000 123,792,000 Property and equipment (Notes 5 and 7): Land 7,713,000 4,427,000 Buildings and improvements 37,374,000 30,348,000 Leasehold improvements and deferred leasehold costs 29,846,000 26,723,000 Store, warehouse and transportation equipment 64,079,000 58,233,000 139,012,000 119,731,000 Less accumulated depreciation and amortization 39,358,000 33,121,000 99,654,000 86,610,000 Property under capital'leases, net of accumulated amortization of $38,159,000, 1982 and $35,541,000, 1981 86,447,000 89,912,000 186,101,000 176,522,000 Other assets: Notes receivable, net of current portion 10,688,000 11,188,000 Real estate held for investment or future expansion 2,839,000 2,687,000 Deferred income tax charges(Note 12) 2,282,000 Miscellaneous 2,576,000 2,825,000 16,103,000 18,982,000 $315,870,000 $319,296,000 See notes to consolidated financial statements. 17 LIABILITIES AND SHAREHOLDERS' EQUITY January 31, 1982' 1981 (Restated, Note 2) Current liabilities: Notes.payable (Note 4) $ :12,000;000 $ 2,000,000 Current portion of long-term debt(Note 5) 1,556,000 1,603,000 Current portion of obligations under capital leases (Note 7) 2,874,000 2,625,000 Accounts payable, trade. 17,863,000 26,350,000 Accrued expenses and other liabilities (Notes 2 and 6) 23,509;000' 24,295,000 Income taxes current liabilities 57,802,000 61,151,000 Long-term debt, net,of current portion (Note_5) 22,233,000 21,107,000 Obligations,under capital leases, net of current Portion i(Note 7) 104,773,000 107,271,000 Deferred Income taxes (Note 12) 454,000 Commitments and contingencies (Note 8) Shareholders' equity(Notes 2, 6'and 9): Common stock, $.40 par; authorized 50,000,000 shares; issued and outstanding 4,257,937 shares, 1982; 4,257,537 shares, 1981 1,703,000 1,703,000 Capital In excess of par 34,706,000 34,692,000 Retained earnings 98,037,000 93,372,000 134,446,000 129,767,000 Less common stock held in treasury (Note 10) 3,838,000 130,608,000 129,767,000 $315,870,000 $319,296,000 18 Levitz Furniture Corporation and Subsidiaries CONSOLIDATED STATEMENTS OF INCOME YEARS ENDED JANUARY 31, 1982 1981 1980 (Restated', Note 2) (Restated, Note 2) Net sales $488,544,000 $500,752,000 $546,580,000 Cost and expenses: Cost of sales(Notes 2 and 3) 268,966,000 280,051,000 305,766,000 Selling, occupancy, general and administrative expenses(Note 2) 192,856,000 184,654,000 188,826,000' interest expense, net(Note 11) 11,422,000 11,446,000 13,483,000 473,244,000 476,151,000 508,075,000 Income before income taxes 15,300,000 24,601,000 38,505,000 Income taxes(Note 12) 6,427,000 11,143,000 17,978,000 Net income $ 8,873,000 $ 13,458,000 $ 20,527,000 Earnings per common share $2.10 $3.16 $4.83 CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY Common stock Capce in ex cess Retained Treasury Stock Shares Amount of par earnings Shares Amount Balance, February 1, 1979, as previously reported 4,243,611 - $1,698,000 $34,537,000 $69,593,000 . Retroactive restatement for change in accounting for compensated absences ( 2,125,000) Balance,February 1, 1979, as restated 4,243,611 1,698,000 34,537,000 67,468,000 Stock options exercised and stock appreciation rights paid in common stock 12,776 5,000 133,000 Tax benefit related to stock option plan 2,000 Cash dividends($.90 per share)] ( 3,824,000) Net income for the year (Restated, Note 2) 20,527,000 Balance, January 31, 1980 4,256,387 1,703,000 34,672,000 84,171,000 Stock options exercised and stock appreciation rights paid in common stock 1,150 18,000 Tax benefit related to stock option plan 2,000 Cash dividends($1.00 per share) (`4,257,000) Net Income for the year (Restated, Note 2) 13,458,000 Balance,January 31, 1981 4,257,537 ` 1,703,000 34,692,000 93,372t000 Stock options exercised and stock appreciation rights paid in common stock 400 10,000 Tax benefit related to stock option plan 4,000 Cash dividends ($1.00 per share (`4,208,000) Purchase of treasury stock 100,000 $3,838,000 Net income for the year 8,873,000 Balance,January 31, 1982 4,257,937 $1,703,000 $34,706,000 $98,037,000 100,000 $3,838,000 See notes to consolidated financial statements. Levitz Furniture Corporation and Subsidiaries 19 CONSOLIDATED STATEMENTS OF,CHANGIS IN FINANCIAL POSITION, .'- YEARS ENDED JANUARY 31, 1982 1981: 1980 (Restated,'Note 2)i (Restated,!'Note,2)! Source of funds: Net Income for the year $ 8,873,000 $13;458,000 ' $20,527,000 'Items not affecting,.working,capital: Depreciation and Amortization 1.1,783,000 _ 12,193,000 10,868,000 Deferred income taxes , 2,736,000 . ( 524,000) ( 279,000) Net loss(gain)on sale of real ` estate and equipment 404,000 ( 1,642,000) 144,000 Working capital provided from operations 23,496,000 . 23,485,000 31,260,000` Proceeds from: ; Sale of°common stock 10 000 18000 138,000 Sale of real estate.and equipment 2;411,000 17,391„000. 537,000_ ” Collection of notes receivable .500;000 .: 440'000.' 213,000. Additions.to - ;" Obligations under capital leases 505,000 1,315,000• Long-term dept' 2,186,000 693,000 3,283,000 Miscellaneous,:net 184,000 10`1:000 • 29,292,000 43,027,000 36,847,000: Application"of funds: Additions to, Property and equipment, 23,808,000 21,536,000 ` 24,146,000 Notes,receivable 11,122,000 '` 371,000 tieduction'of. '� .-Long-term debt 1,060,000 1,607,000 1,377,000 , 6 , Obligations under capital leases 3,003 2 3' 00,000 , ? Q 2746 000', Dividends paid 4,208,000 4,257,000 3,824,000 Purchase of treasury stock 3,838,000 . Miscellaneous, net 152;000 102,000 _ 36,069,000' 41,297,000 32,464,000 Increase(decrease) in working,capital •(S 8,777,000) ,`$ 1,730,000 $" 4,383,000' Summary of net changes in working capital: Increase(decrease) in current assets: ` Cash $ _327,000 ($ 1,908,000) $ 1;067,000 Treasury bills (" "7,844,000) 7;844,000 Receivables- '(. 3,072,000) ( 3'19,000) - ( 324,000) 'Inventories ( 852,000) ( .3,925,000). ( '2,567,000),, Deferred income tax,charges 193,000 (• 378;000) 529,000 < Deposits and prepaid expenses 922,000 587,000 9,000 ( 10,126,000) 1,811,000 " ( 1,286,000) • Decrease(increase) in current liabilities: Notes payable ( 10;000;000) ( 2,000,000) 7,000,000 Current portion of long-term debt and obligations under capital leases ( 202,000) ( 522,000) .945 000 Accounts payable, trade and accrued . expenses and other liabilities 9,273,000 3,207,000 03,850,000) Income taxes 4,278,000 ( 766,000), ' . 1,574,000 3,349,000 ( 81,000) 5,669,000 Increase(decrease) in working capital (S 6,777,000) $ 1,730,000 $ 4;383,000 See notes to consolidated financial statements. 20 Levitz Furniture Corporation and Subsidiaries EY ,' ... _: .' t__,. E _ti ..._u,_____M x...._..Za NOTES TO CONSOLIDATED FINANCIAL STATEMENTS YEARS ENDED JANUARY 31, 1982, 1981 and 1980 1. Description of Business and Summary of Significant Accounting Policies DESCRIPTION OF BUSINESS: PREOPENING EXPENSES: The Company sells home furnishings Preopening expenses are amortized over through a national chain of retail facilities. a one year period from the opening of the related warehouse/showroom. PRINCIPLES OF CONSOLIDATION: The consolidated financial statements in- STORE CLOSING EXPENSES: elude the accounts of the Company and its At the time a decision is made to close a subsidiaries, all of which are wholly owned. store, provision is made for costs and ex- All material intercompany accounts and penses incurred and expected to be in- transactions have been eliminated. curred (net of estimated recoveries) in con- nection with the closing. INVENTORIES: Inventories are stated at the lower of INCOME TAXES: cost or market. Beginning with 1981, cost is Deferred income taxes result from timing determined using the last-in, first-out differences in the recognition of certain in- method. Prior to 1981, cost was determined come and expense items for financial state- using the first-in, first-out method. ment and income tax purposes. Deferred taxes related to an asset or liability are PROPERTY AND EQUIPMENT classified similar to the related asset or AND DEPRECIATION AND AMORTIZATION: liability. Deferred taxes unrelated to an Property and equipment purchased by asset or liability are classified according to the Company are stated at cost. Capital the expected reversal date of the timing leases are recorded at the lower of the pre- difference. sent value of the future minimum lease Disqualifying dispositions of the Corn- obligations or fair market value of the pro- pany's common stock issued under its perty. Depreciation is provided substantial- qualified stock option plan result in tax ly by the straight-line method over the benefits for the Company which are estimated useful lives of the related assets. credited to capital in excess of par. Amortization of assets recorded under capital leases is provided by the straight- INVESTMENT TAX CREDITS: line method over the minimum lease term. Investment tax credits are accounted for under the "flow-through" method when the DEFERRED LEASEHOLD COSTS: assets are placed in service. Differences between construction cost and the negotiated sales price on sale and TREASURY STOCK: leaseback transactions and construction Treasury stock is stated at cost. costs assumed by the Company on other leasing arrangements are deferred as leasehold costs and are amortized over the basic terms of the related leases. 21 '"KS t Y k,�..,,.x.�x.�s.�w��(�,t..a�.._..� _.:......,�._ .....wLE T,.,...eS..�. r.,.,.w.,'r t ... ...,.x._ ,.,....E,. ._.. .,:-,.,.,._u,....,_ c.Y L,.........,.._.-...,s....._.. ..4...Y ....t...... I_wM PENSION PLAN: reflect earnings more realistically in light of Pension expense is actuarially computed current inflationary conditions by matching and is equal to normal cost plus amortize- the most recent inventory acquisition tion of the unfunded actuarial liability over costs against current sales.The effect of the 30 years. Pension plan costs are funded as change was to reduce net income for 1982 accrued. and 1981 by $1,920,000 ($.46 per common share) and $2,163,000 ($.50 per common EARNINGS PER COMMON SHARE: share), respectively. The cumulative effect Earnings per common share are based of the change cannot be determined for on the weighted average number of corn- years prior to 1981. mon shares outstanding during the year; 4,221,967 shares in 1982, 4,257,341 shares 3. Inventories: in 1981 and 4,248,280 shares in 1980. Inventories valued on the LIFO cost Outstanding stock options are excluded method were $7,925,000 and $4,099,000 less from the computation because of their im- than FIFO costs at January 31, 1982 and material effect on the per share amounts. January 31, 1981, respectively. RECLASSIFICAITON: 4. Lines of Credit and Compensating Certain amounts included in the 1981 and Balances! 1980 financial statements have been reclass- The Company has lines of credit ified to conform to the 1982 presentation. available totaling $38,000,000. At January 31, 1982, $7,000,000 of these lines were in 2. Accounting Changes! use, with interest at the prime rate. At the end of the fourth quarter of 1982, Cash compensating balances equal to the Company changed its method of ac- an additional approximately 7.5% of available credit and 0 7.5 /0 counting for vacation pay in compliance of amounts actually bor- with Statement of Financial Accounting rowed under the lines of credit are to be Standards No. 43. Financial statements for maintained under an informal compen 1981 and 1980 have been restated for the sating balance arrangement. Approximately change in accounting for vacation pay. This $2,700,000 of the cash balance at January restatement has resulted in an increase in 31, 1982 represents such compensating net income for 1981 of $276,000 ($.06 per balances, although no legal restrictions ex common share) and a decrease in net in ist on the withdrawal of the funds. come for 1980 of $47,000 ($.01 per common g, Long-tern! Debts share), respectively, and a charge to retain- ed earnings of $2,125,000 at January 31, Rate 1982 1981 Maturity 1979. The effect of this change resulted in Mortgages a decrease in net income for 1982 of (a) 8.5%- 1982- $116,000 ($.03 per common share) which 12% $22,505,000 $21,140,000 2003 was not material to the individual quarters senior notes(b) 9.75% 1,284,000 1,570,000 1987 of 1982. 23,789,000 22,710,000 In 1981, the Company changed its Less current method of determining costs of inventories portion 1,556,000 1,603,000 from the first-in, first-out (FIFO) method to $22,233,000 $21,107,000 the last-in, first-out (LIFO) method. Manage- ment believes that the LIFO method will 22 I`" 1-,, Y'ft'!€4 j47Fk ate' '?" a 1, v''A r35 gE} '.i'....7�a t .7R' m 2 ,� zs r+�-r _ 7 a� r�z , r rr* �"��'f.'." wa �.�"�h� +`'I•.:c.r�'-*�...�'��.�au:,titi„#.�4�z...,�':.a E:..u�.L..�E�ot..4ti.�_..,�4,,.w,.'tu-,,.t z.�.�.....w.u,..F z..:...:�...� a,....,y,...J..w,?.�..�,..x......_.<n.w�5�....,..�..Arc��,.,..,4 _w..,, ..�.....a.w_.a (a) Property and equipment, which cost ap- Minimum annual rental (net of minor proximately $34,000,000, is pledged as amounts of sublease income) for the five collateral. years subsequent to January 31, 1982 and in (b) The senior note agreement contains cer- the aggregate are as follows: tain restrictions on consolidated working Capital Operating capital, consolidated total liabilities, and leases leases retained earnings available for dividends. 1983 $ 12,351,000 $ 3,322,000 At January 31, 1982, retained earnings of 1984 12,593,000 3,413,000 $45,639,000 were unrestricted and avail- 1985 12,389,000 3,422,000 able for the payment of cash dividends. 1986 12,243,000 3,348,000 Annual required payments on long-term debt 1987 12,244,000 3,238,000 1988 and thereafter 207,127,000 51,234,000 are as follows: Year ending Jan.31, Total minimum lease payments $268,947,000 $67,977,000 1983 $ 1,556,000 1984 1,227,000 Amount representing 1985 1,303,000 Interest 161,300,000 1986 1,386,000 1987 1,332,000 Present value of net After 1987 16,985,000 minimum payments under capital $23,789,000 leases $107,647,000 b. Accrued Expensed and Other Total rent expense (net of sublease in- Liabilities, come of $449,000 in 1982, $280,000 in 1981, 1982 1981 and $278,000 in 1980) was $4,372,000, (Restated, Note 2) $4,961,000, and $4,945,000 for 1982, 1981, Payroll $ 7,024,000 $ 7,332,000 and 1980, respectively. Rent expense in- Payrolland sales taxes 3,716,000 3,600,000 cludes minimum rental on operating leases, Advertising 3,185,000 3,042,000 contingent rentals based on either the Con- Real estate taxes 1,014,000 1,282,000 sumer Price Index or a percentage of sales Interest 917,000 334,000 Other for both capital and operating leases and Other 7,6553,000 8,334,000 P p g $ 23,509,000 $ 24,295,000 leases with a term of less than one year. 8. Commitments and Contingencies' 7. Leasing Arrangements: At January 31,1982, the Company had The Company leases its warehouse/show- committed approximately $5,957 OOO to ac rooms generally under non-cancellable quire land and buildings for two retail leases for terms ranging from 15 to 30 years, facilities previously held under lease. Most leases contain renewal options, but do The Company is a party to various not ordinarily include options to purchase lawsuits arising in the normal course of the properties. business. In the opinion of management, The following is an analysis of leased pro- the outcome of the various actions will not perty under capital leases by major classes: materially affect the Company's financial condition. 1982 1981 Land, buildings and 9. Stock Options' Improvements $115,188,000 $114,670,000 Under the Company's nonqualified stock Furniture, fixtures and option plan, 193,309 shares of common equipment 9,418,000 10,783,000 stock are reserved for issuance to officers 124,606,000 125,453,000 and key employees. Less accumulated On May 20, 1981, all qualified options not amortization 38,159,000 35,541,000 previously exercised were cancelled. No ad- $86,447,000 $89,912,000 ditional qualified options may be granted • 23 ' lrgy 9h tnigt w .� t sus t a �� �a' t a ' '�` `" z * r, r a z,>�', rn�� s�ti� �'� F •a z�.�.�.�k n,.n.3:; '* r since the qualified stock option plan ex- The Company's nonqualified stock option pired on June 16, 1978. During 1982, plan includes a provision for stock ap- qualified options for 88,462 shares were ex- preciation rights (SARs). An employee may ercised, or converted to stock appreciation elect (subject to the approval of the Board rights, resulting in the distribution of 394 of Directors or Stock Appreciation Rights shares of common stock and the payment Committee) to surrender a currently exer- of $481,000. cisable stock option and receive in return Nonqualified options may be issued at cash or common stock in an amount equal prices to be determined by the Board of to the excess of the market price of the Directors, but at no less than 90% of the stock on the date of exercise over the op- market price of the common stock on the tion price. SARs have been granted with date of grant and are exercisable at the respect to all unexercised nonqualified rate of 25% per year(commencing one year options. after date of grant) on a cumulative basis over a ten year period from the date granted. Information with respect to nonqualified options granted is as follows: 1982 1981 1980 Shares under option at January 31: Year of grant Option prices per share 1974 $26 1,522 3,652 3,891 1975 $11-$17 13,052 15,817 17,444 1976 $15-$19 1,727 5,921 6,983 1977 $21-$24 963 2,432 2,687 1978 $26 15,801 23,807 24,832 1979 $25 2,052 4,937 6,062 1980 $23 27,309 36,421 40,945 1981 $25 16,361 19,686 1982 $33 83,895 Total 162,682 112,673 102,844 Options exercisable at January 31 20,659 16,940 12,555 Options exercised during the year 6 None None Options converted to stock appreciation rights(SARs)during the year 30,301(a) 3,684(b) 16,867(c) Option prices per share: Options exercised $ 26 Options converted to SARs $15-$26 $15-$26 $15-$26 (a) Proceeds of the SARs were distributed in the form of$367,000 cash. (b) Proceeds of the SARs were distributed In the form of$38,000 cash. (c) Proceeds of the SARs were distributed in the form of 11 shares of common stock and$140,000 cash. • • 24 ir 7 . _1?'-...F,.,<1'. ...�4.a:;.....,._��.. ,., ,..,,<.�_... �nL........e�L..,,,,. i ......TZEN,,_,,._. .f. c d;.a EM_,.0 E mg,. .. _, .... .. _... ,. ..,_. _..-1 10. Treasury Stocks 11. Capitalllaed Interests On September 22, 1981, the Company Interest expense was $13,492,000, acquired 100,000 shares of its common stock $13,044,000, and $13,657,000 for 1982, 1981, from a member of the Board of Directors and 1980, respectively. Interest of $208,000 for $38.38 per share, the market value per and $310,000 is included in buildings and share at that date. improvements at January 31, 1982 and 1981, respectively, capitalized in accordance with Statement of Financial Accounting Stan- dards No. 34, "Capitalization Of Interest Cost 12. Income Twxess 1981 1980 1982 (Restated,Note 2) (Restated,Note 2) Federal: Current $4,035,000 $10,407,000 $17,439,000 Investment and new jobs tax credits (1,768,000) ( 598,000) ( 855,000) State 417,000 1,480,000 2,202,000 Deferred 3,743,000 ( 146,000) ( 808,000) $6,427,000 $11,143,000 $17,978,000 Deferred income taxes provided relate to the following: Deferred p 9 1981 1980 1982 (Restated,Note 2) (Restated,Note 2) Excess tax over book depreciation $1,953,000 $688,000 $820,000 Compensated absences accrued under SFAS No.43 for book purposes, not deductible for tax purposes until paid ( 115,000) 265,000 ( 45,000) Writedown of certain assets to net realizable value, not deductible for tax purposes until sold ( 82,000) (614,000) 41,000 Leases capitalized under SFAS No. 13 for book purposes, treated as operating leases for tax purposes ( 751,000) (926,000) (965,000) Leasehold Maintenance capitalized for book purposes, deducted as incurred for tax purposes 1,635,000 Insurance recorded as income on books, not recog- nized for tax purposes until settled ( 46,000) (675,000) Sale of property treated as installment sale for income tax purposes ( 239,000) 408,000 Safe harbor lease transactions 1,304,000 Other, net 84,000 33,000 16,000 $3,743,000 ($146,000) ($808,000) • 25 ��.W_y : "wn. c , 15 Total income tax expense amounted to $17,712,000, respectively, computed by $6,427,000 in 1982, $11,143,000 in 1981, and applying the U.S. Federal income tax rate of $17,978,000 in 1980 (an effective tax rate of 46% to income before income taxes. The 42.0%,45.2%,and 46.7% respectively), corn- reasons for these differences are as follows: pared to $7,038,000, $11,316,000, and 1981 1980 1982 (Restated,Note 2) (Restated,Note 2) Computed "expected" Income tax expense $7,038,000 $11,316,000 $17,712,000 State and local income taxes,net of Federal tax benefit 419,000 797,000 1,115,000 Capital gain resulting from sale of property and equipment ( 35,000) ( 374,000) Investment tax credit (1,173,000) ( 579,000) ( 824,000) Other,net 178,000 ( 17,000) ( 25,000), $6,427,000 $11,143,000 $17,978,000 13. Pension Plane The Company has a noncontributory, trusteed pension plan for the benefit of The weighted average assumed rate of substantially all employees. Total pension return used in determining the actuarial pre- expense for 1982, 1981, and 1980 was sent value of accumulated plan benefits was $1,965,000, $1,993,000, and $1,657,000, 7 percent for 1982, 1981, and 1980. respectively, including amortization of past service cost over 30 years. The Company makes annual contributions to the plan equal to the amounts accrued for pension ex- pense. A comparison of accumulated plan benefits and plan net assets for the Com- pany's defined benefit plan is presented below: February 1, 1981 1980 Actuarial present value of accumulated plan benefits Vested $2,607,000 $1,957,000 Non-vested 3,735,000 3,504,000 $6,342,000 $5,461,000 Net assets available for benefits $11,031,000 $8,62.6,000 so REPORT OF INDEPENDENT ACCOUNTANTS LAV E N T H O L & HORWATH 1845 WALNUT STREET PHILADELPHIA, PA 19103 TCERTIFIED PUBLIC ACCOUNTANTS (215)491-1700 Tl A MEMBER OF HORWATH&HORWATH INTERNATIONAL WITH AFFILIATED OFFICES WORLDWIDE Board of Directors and Shareholders Levitz Furniture Corporation Miami, Florida We have examined the consolidated balance sheets of Levitz Furniture Corporation and Subsidiaries as of January 31, 1982 and 1981 and the related consolidated statements of in- come, shareholders' equity and changes in financial position for each of the three years in the period ended January 31, 1982. Our examinations were made in accordance with generally accepted auditing standards and, accordingly, included such tests of the account- ing records and such other auditing procedures as we considered necessary in the cir- cumstances. In our opinion, the financial statements referred to above present fairly the consolidated financial position of Levitz Furniture Corporation and Subsidiaries at January 31, 1982 and 1981 and the consolidated results of their operations and changes in their financial position for each of the three years in the period ended January 31, 1982 in conformity with generally accepted accounting principles consistently applied during the period except for the changes, with which we concur, in the method of determining inventory costs and after restatement for the change in accounting for compensated absences, as described in Note 2 to the consolidated financial statements. March 18, 1982 k INFLATION ACCOUNTING' 2 7 ..r T 7 v„< T -7' Sj 3 r' 47.c77 wR ¢-- ^{ . Generally accepted accounting principles cost income statements, three additional require measurement of financial position inflation-oriented measurements were and operating results of an enterprise in calculated for 1982 and 1981. terms of historical dollars without regard to The first measures gain from the decline changes in the relative purchasing power of in the purchasing power of net monetary money over time. The Financial Accounting liabilities. During inflationary periods, Standard Board Statement No. 33, "Finan- monetary assets lose purchasing power, cial Reporting and Changing Prices", since they will purchase fewer goods or basically requires two additional income services in time. Conversely, holders of computations to disclose the effects of in- monetary liabilities benefit during such flation on a business enterprise. The infor- periods because less puchasing power will mation set forth below was compiled in ac- be required to satisfy their obligations. cordance with Statement No. 33 and should Since the Company's monetary liabilities be viewed as an estimate of approximate were substantially in excess of its effects of inflation rather than as a precise monetary assets at year end, there was an measurement. unrealized gain in purchasing power. Constant Dollars The second measurement is the difference The constant cost dollar calculation pro- of the increase in general price level of in- vides financial information in dollars of ventories and property and equipment (net equivalent value or purchasing power. The of accumulated depreciation) over in- historical financial information is adjusted creases in the specific prices (current cost) for "general inflation" by using the Con- of those items. sumer Price Index for All Urban Consumers The Company uses the LIFO (last-in, first- as a broad-based measure of the general out) inventory method of determining inven- inflation rate. The constant dollar income tory costs (see Note 2 of notes to con- statement contains revised amounts only solidated financial statements). This for depreciation expense, cost of sales, and method charges current costs to the results gain on the sale of property and equipment. of operations for both financial reporting Current Costs and income tax purposes. For the sup- The current cost calculation requires plemental inflation accounting data, no ad- estimated adjustments to the financial justment to cost of goods sold was statements to give effect to changes in necessary except to give effect to the par- specific prices of resources used in opera- tial liquidation of the base year inventory. tions. Measurement of those resources and The third measurement is year ending their consumption reflect current cost shareholders' equity adjusted to average rather than historical cost amounts expend- fiscal 1982 and 1981 dollars. The adjust- , ed to acquire them. Adjustments to proper ment restates (to average fiscal 1982 ty and equipment were primarily based on dollars) inventories, property and equip- indices applied by year of asset acquisi ment and net monetary liabilites under both tion. Land was valued based on the current the constant dollar and the current cost selling price of similar property in the same methods. geographic area. Depreciation expense was Five-Year Comparison calculated using the same methods and The five-year comparison shows the rates as were used in the historical finan- average level of the Consumer Price Index cial statements. Inventories were for each of the last five years and the ef- calculated based on the year-end price of fect of adjusting the historical cost merchandise. Cost of sales was based on amounts for net sales, cash dividends amounts used in the historical financial declared per common share and year-end statements adjusted for any last-in, first-out market price per common share for each of (LIFO) layer liquidations. the five years, in terms of average (con- Other stant) 1982 dollars, as measured by the Consumer Price index. In addition to constant dollar and current 28 YY +, n«,...o ,, I , avrt i wm. a qzY...a.� � t _..< e r .. , �. .... � ..',, STATEMENT OF INCOME ADJUSTED FOR CHANGING PRICES YEAR ENDED JANUARY 31, 1982 (dollars In thousands,except per share data) Primary statements 1982 Historic cost Constant dollars Current cost Net sales $488,544 $488,544 $488,544 Cost of sales 268,966 269,091 268,985 Depreciation and amortization expense 11,783 17,837 17,926 Other operating expense 181,073 181,553 181,073 Interest expense, net 11,422 11,422 11,422 Income taxes 6,427 6,427 6,427 479,671 486,330 485,833 Net income $ 8,873 $ 2,214 $ 2,711 Earnings per common share $ 2.10 $ .52 $ .64 Increase In specific prices(current cost) of inventory and property and equipment held during the year $ 43,154 Effect of increase in general price level 33,352 Excess of Increase in specific prices over increase In the general price level $ 9,802 FIVE YEAR COMPARISON OF SELECTED FINANCIAL DATA ADJUSTED FOR CHANGING PRICES (In thousands,except amounts per share and price Index) 1982 1981 1980 1979 1978 Sales-average 1982 dollars $488,544 $551,228 $681,859 $693,785 $643,447 Constant dollar data(in 1982 dollars): Net income(loss) 2,214 ( 1,006) 7,016 Earnings(loss)per common share .52 ( .23) 1.65 Net assets at year end 278,785 250,067 267,780 Current cost data: Net income 2,711 8,969 7,752 Earnings per common share .64 2.10 1.83 Net assets at year end 292,402 285,089 275,263 Excess increase in specific prices over Increase In the general price level 9,802 ( 25,032) ( 7,255) Gain from decline In purchasing power for net amounts owed 11,734 18,733 2.5,672 Cash dividends per share 1.00 1.09 1.11 .90 .30 Market price per share at year end 33,97 25.26 31.89 29.64 34,79 Average consumer price index 274.2 249.1 219.7 196.9 182.5 Current cost at January 31, 1982: Inventory $102,172 Property and equipment 332,189 t CORPORATE MANAGEMENT BOARD OF DIRECTORS GERALD M,ANDERSON Retired, former Chmn. of Board of Directors, Continental Bank, Phila.,PA JOHN W. DUALL Senior Vice President & Controller ROBERT M. ELLIOTT; President & Chief Executive Officer ERIK O.GIESE President,Comfort Products, Inc.,Aspen, CO. ALLEN H.GLICK Senior Vice President — National Marketing Director MELVYN N. KLEIN President & Chief Executive Officer,Altamil Corporation, Corpus Christi,TX BRUCE C. LEADBETTER President,The Post Company, Dallas,TX GARY R. LEVITZ President of an aviation services company PHILLIP A. LEVITZ Private Investor RALPH LEVITZ Chairman of the Board of Directors HENRY J. MORGAN Senior Vice President,Secretary & General Counsel ROBERT RUSSELL Private investor CURTIS L.WARD Retired, former Senior Vice President of Montgomery Ward & Co., Inc. OFFICERS RALPH LEVITZ Chairman of the Board of Directors ROBERT M. ELLIOTT President&Chief Executive Officer JOHN W. DUALL Senior Vice President & Controller ALLEN H. GLICK Senior Vice President — Marketing HENRY J. MORGAN Senior Vice President, Secretary &General Counsel DONALD MUSTAIN II Senior Vice President, Planning & Development PATRICK J.NOLAN Senior Vice President &Treasurer FRANK W. BONHEIM Vice President — Personnel ELEANOR PARI ECKARDT Vice President — Consumer Relations ROBERT E. GORDEN Vice President — Advertising &Sales Promotion RICHARD N. HIRNEISEN Vice President — Management Information Services LUCY J. MAZZONI Vice President — Office Administration JULIAN T. PIPKIN, JR. Vice President — Operations GARY R. MILLER Assistant Treasurer HARRY 0. BORETH Assistant Secretary DAVID M. DEVINS Assistant Secretary GROUP EXECUTIVE AUDIT VICE PRESIDENTS COMMITTEE COMMITTEE GEORGE H. BRADLEY ROBERT M. ELLIOTT, Chairman BRUCE C.LEADBETTER,Chairman RONALD A. KAPLAN MELVYN N. KLEIN GERALD M.ANDERSON ROGER E. MILO BRUCE C. LEADBETTER PHILLIP A. LEVITZ KENNETH R. ROE GARY R. LEVITZ MICHAEL I. ROSS CURTIS L. WARD BERNARD S. YAUCH NOMINATING COMPENSATION COMMITTEE COMMITTEE ROBERT M.ELLIOTT,Chairman ROBERT M. ELLIOTT GERALD M.ANDERSON MELVYN N. KLEIN ERIK 0.GIESE PHILLIP A. LEVITZ i MELVYN N. KLEIN ROBERT RUSSELL RALPH LEVITZ CURTIS L.WARD TOYS "51.. US INC TITTYT 395 WEST PASSAIC STREET 1 ROCHELLE PARK,NJ 07662 SAP 83 MICHAEL PAUL MILLER CITY OF TIGARD Vice?RISIDENT-RAL ESTATE PLANNING DEPT. September 9, 1983 Mr. Frank 'jepedino, Chairman City of Tigard Planning Commission 11910 S.W. Summercrest Drive Tigard, Oregon 97223 RE: Toys "R" Us Retail Store Portland Chain Manufacturing Company PCM Associates Dear Mr. '1epedino: Toys "R" Us has been notified by PCM Associates that the zoning designation for Portland Chain Manufacturing, a neighbor to the north, has been changed from C-3 to M-4. Such a change is very detrimental to our interests and we find it amazing that such a change could be made without our input and without notification. We purchased the land upon which our retail store now sits from PCM Associates in 1981 with the knowledge that the zoning and land use criteria allowed commercial/retail establish- ments on our land and that the neighboring property, Portland Chain, was zoned the same way. The Chain Plant was allowed to exist as-is for the term of its lease, which we knew would end at least by December 31, 1985 . PCM Associates discussed their long range plans with us at that time and we knew that it would only be a few years before the unsightly neighbor was gone and a more complementary neighbor installed. We also relied on the documentation provided by the City of Tigard Planning Staff as defined in their staff report where they specifically recommended a retail furniture facility, or the like, as "best" use for the Chain Plant site. The City of Tigard ordinance specifically changed the zoning to C-3 on both parcels and set in concrete all of the plans for our facility and for the ultimate rehabitation of the Chain Plant. Mr. Frank Pepedino Portland Chain Manufacturing Co. Page 2 We have committed millions of dollars to our investment which is irreversible. If the Chain Plant and the industrial101-4- zone is allowed to remain it may seriously impair our business and our economic investment. The unsightly nature of the Chain Plant, the noise, chemical smell and the activity surrounding the fabrication of heavy chain is not the least bit condusive to a retail sales establishment. I'm sure I 'm not just speaking for ourselves, since nearly all of our neighbors in this retail hub are now commercial businesses. The City of Tigard has in fact created an island out of our property. The rezoning of the Chain Plant to heavy Lc industrial leaves the Toys "R" Us store as an isolated retail- establishment. We feel very strongly that the petition by PCM Associates to have the Portland Chain site rezoned to C-3 needs to be approved on a basis of the best use for the land as well as the fact that the zoning was C-3 and there appears to be no logical reason for its reversion to M-4. All of the reasons which led the City of Tigard to change this land to C-3 pn 1981 are even stronger today as we witness the growth of the regional hub which is commonly known as the Washington Square retail center. We urge you to approve the rezoning of the Portland Chain Site to C-3. 'Sincerely, cc: Sanford Bolinger Michael McKenna TO: Tigard Plahnir g Commission FROM: RriAce P. Clark----NPO #2 RE: Building, Cascade street I h +vo had discussions regarding the P.C.M.-Levitz proposal with some of the area: busine::s people which leads me to conclude that there iti, little..or no objection to the proposal> provided that trnf'f i.c. be oriented to exit and entrance from Scholl a"P i ^y Road in order to minimize the traffic impact on the Greenburg/Casoado intersection. The existence of Toys. R. Us certainly has not produced detr&mNn it l neighborhood impacts to date. '--440idee 712(. Bruce P. Clark A (503)646-8171 t,. A Webster Industries Inc.Division Portland Chain Manufacturing Co. 9770 S.W.Scholls Ferry Road Portland,Oregon 97223 August 30 , 1983 Mr . Frank Tepedino , Chairman City of Tigard Planning Commission 11910 S .W . Summercrest Drive Tigard , Oregon 97223 RE : Portland Chain Manufacturing Company Tigard , Oregon Rezoning Petition by PCM Associates Dear Mr . Pepedino : The purpose of this letter is to express our support for the zone change and land use plan change which PCM Associates has applied for on the land commonly known as the Portland Chain site . Portland Chain Manufacturing is a wholly owned subsidiary of Webster Industries , an Ohio concern , and as' its General Manager , I have direct responsibility for the operation of this facility . 1y support for the rezoning is a recognition of the change in the area in which our business is located. When the plant was con- structed over fifteen ( 15) years ago , the area surrounding it was rural and consisted mostly of farms and just a few businesses . Portland Chain , with its heavy equipment , noise , and industrial " look" operated with little or no notice in this open setting . That situation has changed dramatically since those early days and we find ourselves as the nonconforming member of the community . The area around our plant has grown to be the largest retail hub Manufacturers of PORTALLOY®Chains for Industry W.Id.d Stool Chains Since 1936 Mr. Frank Pepedino , Chairman City of Tigard Planning Commission Page Two in the state of Oregon and is comprised of commercial and retail establishments . There are a few true industrial users further down Cascade Boulevard , however , they as ourselves , are a minority because of the changing nature of the area. We recognized this change in our neighborhood a number of years ago and made the conscious decision to sell the land and buildings and take a lease back for a medium term. This provided us with flexibility to relocate to another area . The pressures which have led us to the recognition of a need to relocate are not confined to just the fact that we are surrounded by commercial retail establishments , but go further to the cost of operating our facility. Items such as real estate taxes and munici - pal services have increased dramatically over the last few years and we believe our facility is better suited in a true industrial area away from commercial and residential neighbors , and quite possibly in areas where the tax burden is not as heavy. The net effect of the chain plant moving from Tigard in negligible when you consider that the proposed user of the site is an active retailer who will employ as many or more employees than our plant does . We have not yet selected an alternative site and it is within the realm of possibility that our relocation could be within the City of Tigard in another area. The present lease does not have the possibility of expiring before December 31 , 1985 , which will allow us time to con- duct further studies on alternative sites . We were supportive of the initial successful effort by PCM Assoc- iates to zone the land to C- 3 back in 1980-81 , recognizing the tt • 4` .: Mr. Frank Pepedino , Chairman City of Tigard Planning Commission Page Three facts that I have previously mentioned. We feel that the redesig nation was not correct and asked that the commission strongly con- sider granting the petitioner their request for a C-3 zone on this property. Very truly yours, PORTLAND CHAIN MANUFACTURING_ COMPANY John B. Nordholt III General Manager JBN : lam • • AGENDA ITEM 5.2 MEMORANDUM TO: PLANNING COMMISSION FROM: PLANNING STAFF DATE: September 7, 1983 SUBJECT: COMPREHENSIVE PLAN AMENDMENT CPA 13-83 Carl Johnson Attached is a letter from Carl Johnson, a member of NPO # 4, requesting amendments to the text of the Comprehensive Plan. The policy in dispute is 11.4., a special area of concern for NPO # 4. The amendments being proposed relate to the interpretation of a Council Policy. At their June 1, 1983, meeting, NPO #4 voted unanimously to support Mr. Johnson's recommended Comprehensive Plan Policy 11.4 changes (see attached minutes). The City Council, at their public hearing of March 14, 1983, discussed the Tigard Triangle at length and as a result of that discussion adopted language for policy 11.4 to be incorporated into the special areas of concern for NPO # 4's section of the Comprehensive Plan text (see attached minutes). Staff recommends that the Planning commission review the attached documents, including the March 14, 1983 City Council minutes, and make a recommendation to City Council on the interpreation of policy 11.4. dmj(0153P) 61r . S. W. Bonita Pd. Lake Grove Ore 97O3i June 2, ''' �} I Mr. William A. Monahan Director of Planning & Development JL'i I City Of Tigard, Oregon RE: Comprehensive Plan Changes - 11.L.2 NG pEpT Submitted pursuant to Council requests to a.71 applicants heard May 9, 1983. Fee Waived. Dear Mr. Monahan, On June 1, 1983, NPO #44 heard, discussed, and voted for the following proposed changes to the Comprehensive Plan Findings & Policies. (See NPO #I minutes for the June 1 meeting to get the exact wording.) To resolve the controversy over NPO #C, policy 11.11 and to reflect original intent: (1) amend 1]..L.2 by inserting the following between the words "D ;VELOPNiENT" and "SHALL" in the second line: ....which lie westerly of SW 72nd Ave. and were previously designated Industrial Park (2) amend 11.L.2 a. by crossing out that part follow- ing the words "FREEWAY ACCESS-RPMT'S" (3) Eliminate 11./1.2 b. entirely Please add this to the Planning Commission Pgenda for June 9. Yours STery Truly, Carl N. Johnson 11.4 NEIGHBORHOOD PLANNING ORGANIZATION #4 POLICY 11.4. 1 IN THE TIGARD TRIANGLE (I.E. THAT AREA BOUNDED BY PACIFIC HIGHWAY, HIGHWAY 217, AND THE INTERSTATE 5-FREEWAY) , IN THOSE PARCELS DESIGNATED "CP", HIGH DENSITY RESIDENTIAL DEVELOPMENT (I.E. 20 TO 40 UNITS PER ACRE) SHALL BE A USE ALLOWED OUTRIGHT IN CONJUCTION WITH COMMERCIAL PROFESSIONAL USES 11.4.2 IN THE TIGARD TRIANGLE DESCRIBED IN POLICY 11.4. 1, THOSE PARCELS , DESIGNAlED FOR ANY COMMERCIAL DEVELOPMENT SHALL NOT DEVELOP FOR SUCH USE, IF NOT ALREADY SO DEVELOPED, UNLESS A MAJOR COLLECTOR, CONNECTING THE AREA ON PACIFIC HIGHWAY AT APPROXIMATELY 78TH AVENUE AND THE WESTERLY PORTION OF HAINES ROAD INTERCHANGE AT INTERSTATE FREEWAY (AT APPROXIMATELY 69TH AT DARTMOUTH) BE CONSTRUCTED, BE GUARANTEED WITHIN ONE YEAR FOR CONSTRUCTION BY A PUBLIC AGENCY, OR BE APPROVED FOR CONSTRUCTION AS A PART OF A LOCAL IMPROVEMENT DISTRICT AFTER THE REMONSTRANCE AND REVIEW PERIOD HAVE EXPIRED. a. THIS CONDITION SHALL NOT APPLY TO PARCELS HAVING DIRECT ACCESS TO PACIFIC HIGHWAY, OR THE INTERSTATE 5 FREEWAY ACCESS RAMPS UNLESS THE PORTION PROPOSED FOR DEVELOPMENT IS GREATER THAN 1000' FROM • THE RIGHT-OF-WAY LINE OF PACIFIC HIGHWAY OR INTERSTATE 5 INTERCHANGE RAMPS. b. UNTIL NEW COMMERCIAL DEVELOPMENT IS PERMITTED IN THE TRIANGLE UNDER THIS CONDITION, THE ONLY NEW DEVELOPMENT THAT MAY OCCUR ON ANY PARCEL IN THE TRIANGLE IS A SINGLE FAMILY RESIDENTIAL USE. • • • • :.`"' • * • . e V..• • ' f"; • , • ,•,. ,; , , . ,:.„ • . . , • •: •0 , •—•.•N; • • t t,` , . • • .„. , • MINUTES OF NPO #4 MEETING - June 1, 1983 Roll Call: NPO #4 Members Rick McMahon, Lou Christen, Carl Johnson, Iry Larson, Jean Danley, Geraldine Ball and Gordon Martin Guests - Dennis O'Neill, representing Farmers Insurance, Chet Larter, Lois Larter, Jennie Larson, George Hansen representing ()EA Motion was made and seconded that the minutes be approved. Motion passed unanimously. Under old business Rick McMahon said he understood that the "No Parking" on 66th near Hampton Oaks is to be handled by the Council at the next meeting. Under new business the matter of the 68th Atlantic/Pacific Street L.I.D. #35 was brought up. Jeremy stated that on June 20 the Council would hold an informal meeting and the Engineers report and feasibility study would go to Council on the 27th of June. It was stated that the Council would continue the Public Hearing on June 13 as one property owner had just heard of the L.I.D. a few hours before the previous Council meeting. After a very lengthy discussion a motion was made by Carl Johnson, seconded by Jean Danley and unanimously passed that under 11. .2 that we change "a" and "b" as follows: Y unanimously P 4 a. This condition shall not apply to Parcels having direct access to Pacific Highway or the Interstate 5 Freeway access ramps. b. This condition will apply only to those areas changed from Industrial Park to General Commercial Under other business Mr. Dennis O'Neill of Norris, Beggs & Simpson and representing Farmers Insurance approached the NPO group in regard to expanding the code to allow Hotel use under CP. The NPO #4 stated they had no objection to a Hotel on Farmers insurance property. After a lengthy discussion a motion was made, seconded and unanimously passed that the Development Code include the albowance of Motor Inn or Hotel use as a conditional use in CP zone. In regard to Iry Larsen's questions in regard to heighth of buildings, Jeremy stated that was already handled under conditional use. The question was asked how the feasibility study was progressing in regard to the Interchange extension. Jeremy stated that large property owners have received their agreement and if they sign the agreement the City will enter into a feasibility study and the Council will enter into an agreement to go father if those property owners agree on the feasibility study. Mention was made of an article in the Tigard Times about a group studying the economic development of Main Street and the Triangle and in response to an inquiry as to whether the NPO would be kept informed, Jeremy stated he did not know what process was being followed. There being no further business, the meeting adjourned. late Geraldine L. Ball - Secretary Attest: Hick McMahan, Glialiiuwi T I G A R D C I T Y C O U N C I L REGULAR MEETING MINUTES MARCH 14, 1983 - 7:30 P.M. 1. ROLL CALL: Present: Mayor Wilbur Bishop; Councilors Tom Brian, John Cook, Kenneth Scheckla, Ima Scott (leaving at 11:05 P.M. ) ; Jeremy Coursolle, Associate Planner; City Staff Doris Hartig, Finance Director/City Recorder; Bob Jean, City Administrator; Bill Monahan, Director of Planning and Development; Liz Newton, Associate Planner; Ed Sullivan, Legal Counsel. 2. CALL TO AUDIENCE FOR NON-AGENDA ITEMS UNDER OPEN AGENDA (a) No one appeared to speak. 3. COMPREHENSIVE PLAN - COMPREHENSIVE PLAN MAP (a) Public Hearing Reopened by Mayor (b) Associate Planner Coursolle noted letters in Council's packet dealing with the same area (west of Hwy. 217 and South of 99W property). Other areas of concern are properties at SW 66th Avenue and I-5 Freeway and deal with change from CP to Commercial designation. All Letters speak to more general commercial type use. 3.1 NPO #4 (a) Public Testimony o Lavalle Allen, 7540 SW Hermosa Way, NPO #4, recommended properties west of SW 70th to Hwy. 217 be zoned general commercial. o Cordon Martin, 12265 SW 72nd Avenue referred to a letter dated February 28, 1983 that contains all the issues of concern to the NPO. He urged higher zone designation so property will become more valuable and thereby it will be economically feasible for homeowners to relocate as well as allow for property to develop. o Councilor Scheckla questioned long-range plans for Phil Lewis School. Staff responded that during the planning period the City was assured the school will stay. o Gary Reid, 12700 SW 72nd, Tigard, NPO #4 member, and business owner spoke to the conversion idea for homeowners and felt light industrial • lacks the flexibility as general commercial zone, as well as it doesn't provide for transition period and is extremely difficult against low density residential areas. He noted the main issue is residential owners being able to economically sell their homes and compete with vacant industrial land. He urged general commercial zoning in this area. o Geraldine L. Ball, representing herself and DJB Inc. , 11515 SW 91st Tigard, recommended general commercial zoning for Larson property. She questioned if her property is designated as wetlands or floodplain and by whose authority is it so designated. She also objected to incorrect maps used by the Boundary Review Commission #1910 annexation. She submitted maps for records and an album, noting the environmental impact statement report. o Planning Director requested time for staff to review her testimony and respond to her questions later in the evening. Council concurred. o Virginia Campbell, 12120 SW 72nd, NPO #4, agreed with Martin and Reid's testimony and requested if any transition zone is provided that they not be included in that zone. o Fred Anderson, Attorney representing Dietzman property, stated he is in accord with NPO #4 recommendation. o David Campbell, 12120 SW 72nd, reported he was in favor of commercial designation and endorsed his wife's comments. He expressed concern for the quality of life for remaining residential property owners. He suggested a buffer zone around property be removed. o Lou Christen, 17895 SW Shasta Trail, Tualatin, spoke to the transportation plan and in his opinion didn't think the secondary road will ever be developed. The road is too close to the Phil Lewis School. He addressed the issue of trying to sell his property with the incorrect floodplain designation. He reported he has some sensitive land areas but felt there was lack of staff support. Staff responded that his property was incorrectly designated and the map has been corrected. Council suggested the corrected information be posted and Mr. Christen receive letter from staff giving designation. Christian continued testimony stating he was in favor of general commercial zoning. o Donald Maltine, representing Coldwell Banker, 12755 SW Buena Vista Dr. and representing Mr. Finke, stated he was in accord with commercial designation. He noted industrial land in this area is too expensive for development and supported the staff's proposal. o Merrill Haddon, 13545 S.W. Village Glen Drive representing Invest-A-Venture, testified in favor of the commercial zone designation. He noted his proposed recreation center and requested it be allowed. He also commented industrial designation is not suitable for this area as well as the impact of that kind of development on schools and transportation problems. • Councilor Scott questioned Haddon regarding type of recreation center. Mayor Bishop responded the issue is whether the land is to be zoned industrial park or commercial. PAGE 2 - COUNCIL MINUTES - MARCH 14, 1983 Councilor Scott referred her question to Attorney Sullivan. Attorney Sullivan responded the issue is to decide whether it is appropriate to zone this property industrial or commercial. The basic land use issue will be decided if it is a permitted outright land use. Only item for consideration at a later date would be Site Design Review. o David Sant, JaSant Corp, representing client in Invest-A-Venture, supported the commercial designation for the triangle area He noted most industrial areas want to avoid residential areas due to potential conflict over industrial uses. The configuration of the property does not lend itself to large industrial development of the . triangle area. In his opinion, the highest potential use for the land is commercial development. o Ted Williams, 4382 45th Avenue N.E. , Salem, spoke in favor of NPO #4 proposal and concurs with the plan and feels it is in the best interest of Tigard. o JB Bishop, Suite 303, 10505 S.W. Barbur Blvd. , Portland, displayed aerial photo of area and spoke to future development. He encouraged Council to review the City inventory of industrial park land and general commercial areas. He suggested the area be a mix of uses; some industrial park and some commercial uses. He urged development of the transportation plan and the providing of City services. John Gibbon, Counsel for Robert Randall, owner of property adjoining Finke spoke in favor of Commercial designation. He feels a mixture of office/warehouse space would be suitable for their area. He urged a good transportation and pedestrian system be developed for the area especially around Phil Lewis School. He continued on and recommended all their property be zoned commercial as some of it is now in a split zone. o Terry Loller, 11682 S.W. Tooze Rd. , Wilsonville, representing Sam . Sofos, urged general commercial designation, not industrial zoning. o Hans Grunbaum, property owner in triangle area endorsed commercial development. o Jim Corliss, resident and operator of Landmark Ford, supported commercial designation of entire area. o Jean Danley, 7060 S.W. Beveland, supported commercial designation to her property. • o City staff returned to the meeting and responded to Mrs. Ball's letter. Staff noted Mr. Larson's property was not omitted in the annexation. City 1977 map does not indicate her property is in the floodplain, however, it is possible a portion of land could be in the • wetlands, i.e. having a high water table. Staff reported the Boundary Review Commission maps were incorrect, however, the boundary PAGE 3 - COUNCIL MINUTES - MARCH 14, 1983 1 description is the binding documents and maps are for illustrative purposes only. The legal metes and bounds description submitted was correct. Planning Director further responded to the rest of Mrs. Ball's questions. Council and staff discussed the designation of wetland and use of the property when time for development arrives. RECESSED AT 9:45 P.M. RECONVENED AT 10:06 P.M. o Mayor Bishop questioned if Council wanted to meet again this week to complete the work on the Comprehensive Plan Map. He noted the Zone Change Annexations have to be decided by March 18, 1983. Consensus was to meet Wednesday, March 16, 1983, 7:30 P.M. at Fowler Junior High School. o Councilor Cook suggested the area of Franklin east of 72nd should be changed to commercial professional, he suggested Legal Counsel assist with the language in dealing with existing residential properties, conversation and buffering. o Councilor Brian expressed concern for conversion from light industrial to commercial professional; the request for C-5 for property on I-5 Freeway and agrees with general commercial designation. Councilor Scheckla agreed with Brian's comments endorsing general commercial. He noted roads and transportation is an item of great concern. o Mayor Bishop expressed his concern regarding the proposed extension from SW 78th/R9W . to Interchange__.at. I-S _Freeway to Haines. He recommended this be in place before any development takes place (or a legal agreement to complete collector road). He also stated he would like to consider the possible use of some residential medium density in that area and encourage above the first floor commercial development, to residential uses. He agreed with other Council members with strict interpretation of development of collector streets. o Council and City Attorney discussed at length specific language to • implement Council's recommendation. Council clarified areas on the map (exhibit to these minutes) the noted changes in zoning. Legal Counsel requested he be allowed to leave the meeting to draft, motion to work out details with interested property owners and bring back for Council consideration. Council concurred. • Councilor Scott left at 11:05 P.M. PAGE 4 - COUNCIL MINUTES - MARCH 14, 1983 C o Vittz Ramsdell 11635 Terrace Trails, addressed Bechtold property density and traffic issues. o Ralph Flowers 11700 S.W. Gaarde, spoke to Bechtold Annexation and expresses support of low density issue. o Discussion by Council regarding testimony followed. Councilor Scheckla favored low density for Bechtold property on Walnut Avenue. Council suggested medium high permit use or C.P. zone on Beef-Bend property. Associate Planner Newton pointed out and marked areas on map and made a part of this record, marked Exhibit "A". (b) Motion by Councilor Cook the 4 changes as discussed be made as • outlined on the map with respect to NPO #3. Councilor Brian seconded the motion. o Motion approved by unanimous vote of Council present. 3.3 NPO #4 (a) Attorney Sullivan, returned to the meeting and reviewed the proposed statement that represents a consensus of property owners. Council discussed the specifics and intent of the motion as well as the, impact on proposed development. (b) Motion by Councilor Cook, seconded by Councilor Brian, that the Plan Map designations for NPO #4 recommended to Council by the Planning Commission be approved and, in addition the 3 other changes shown on the map, marked as Exhibit "A": , be adopted by Council. The following additional policies are also adopted for the development in NPO #4 specified below. "1. In the Tigard Triangle (i.e. that area bounded by Pacific Highway, Highway 217, and the Interest 5-Freeway), in those parcels designated "CP", High Density Residential Development (i.e. 20 to 40 units per acre) shall be a use allowed outright in conjunction with commercial professional uses. "2. In the Tigard Triangle described above, those parcels designated for any (3) Commercial development shall not develop for such use, if not already so developed, unless a major collector, connecting the area on Pacific Highway at approximately 78th Avenue and the Westerly portion of Haines Road Interchange at Interstate Freeway (at approximately 69th at Dartmouth) be constructed, be guaranteed within one year • for construction by a public agency, or be approved for • • construction as a part of a local improvement district after the remonstrance and review period have expired. This condition shall not apply to parcels having direct access to Pacific Highway, or the Interstate 5 Freeway access ramps unless the portion proposed for development is greater than 1000' from the right-of-way line of Pacific Highway or Interstate 5 Interchange ramps. PAGE 6 COUNCIL MINUTES MARCH 14, 1983 "Until new commercial development is permitted in the triangle under this condition, the only new development that may occur on any parcel in the triangle is a single family residential use." Brain stated he was uncomfortable without suggestions from the property owners as to how to get the job done. Motion approved by 3-1 majority vote of Council present, Councilor Brian voting "NAY". 4. ZONE CHANGE ANNEXATIONS • o ZCA 3-92 (Durham Island) NPO #5/#6 ZCA 5-82 (Bechtold Annexation) NPO #3 ZCA 7-82 (North Dakota Annexation) NPO #2/#7 ZCA 17-82 (Randall) NPO #4 ZCA 16-82 (Cooper) NPO #4 ZCA 11-82 (Benny Larson) NPO #3 o Public Hearing Opened By consensus of Council Mayor continued public hearing until March 17, 1983, 7:30 P.M. Fowler Junior High School. 5. RADIFY FLOODPLAIN POLICY Planning Director requested this item be continued to give Council change for further review. Council concurred. 6. APPROVE EXPENDITURES AND INVESTMENTS: $124,344.39 (a) Motion Councilor Cook, seconded by Councilor Scheckla to approve. Approved by unanimous vote of Council present. 7. ACCEPT RIGHT-OF-WAY REGARDING 72ND AVENUE LID (a) Motion by Councilor Cook, seconded by Councilor Scheckla to accept. Approve by unanimous vote of Council present. 8. ACCEPT STREET DEDICATION - Forrest Cowgill ( (a) Motion by :Councilor Cook, seconded by Councilor Scheckla to accept. Approved by unanimous vote of Council present. • 9. APPROVE OLCC APPLICATIONS AS FOLLOWS: o Gaffer's, 206/207 Tigard Plaza, Tigard, OR Class A License o Big B Thirftway, 14363 SW Pacific Hwy, New License (Canterbury Square) o Bergmann's Restaurant, 12725 SW Pacific Hwy, (McKenzie & Pacific Hwy. ) o Tigard Bowl, 11660 SW Pacific Hwy, RMB (Pfaffle & Pacific Hwy. ) (a) Motion by Councilor Cook, seconded by Councilor Scheckla to approve Approved by unanimous vote of Council present. PAGE 7 - COUNCIL MINUTES - MARCH 14, 1983 AGENDA ITEM 5.3 MEMORANDUM TO: PLANNING COMMISSION FROM: PLANNING STAFF DATE: September 8, 1983 SUBJECT: SUBDIVISION S 8-83 PD Century 21 Homes Please be advised that the planning staff has received insufficient information from Century 21 Homes Inc. in order to review a conceptual and detailed plan approval of a Planned Development, S 8-83 PD. Staff has contacted the applicant's engineer and requested additional information. The item will be placed on the October 4, 1983, Planning Commission agenda, provided that the additional information required to complete the staff report is received prior to September 20, 1983. SS:dmj(0153P) STAFF REPORT AGENDA ITEM 5.4 TIGARD PLANNING COMMISSION September 13, 1983 - 7:30 P.M. FOWLER JUNIOR HIGH SCHOOL - LGI ROOM 10865 SW WALNUT, TIGARD, OREGON A. FINDING OF FACT 1. General Information CASE: ZC 12-83 Annexation and Zone Change City of Tigard - SW 78th & Pfaffle CPO #4 (Future NPO #4) REQUEST: For consideration and recommendation to the City Council on annexation of 8.8 acres into the City of Tigard and a Zone Change on the property from Wash. Co. RU-4, RU-020, and B-4 to City of Tigard R-7. COMPREHENSIVE PLAN DESIGNATION: Low Density Residential (Wash. Co.) High Density Residential General Commercial ZONING DESIGNATION (Wash. Co.): RU-4, RU-020, B-4 RECOMMENDATION: Based on staff's review of the annexation proposal, site inspection and analysis of applicable plan policies, staff recommends that the Planning Commission recommend approval of the annexation proposal to the City Council and that the Planning Commission approve the zone change request. APPLICANT: City of Tigard OWNER: Please see attached Exhibit "A" LOCATION: SW 78th Ave. between SW Spruce and SW Pfaffle (Wash. Co. Tax Map 1S1 36CA, Tax Lots 400, 500, 600, 700, 800, 900, 1000, 1100, 1200, 1300, 1400, 2000, 2001, 2001, 2003, 2006, 2007, 2008, 2009, 4800, 4900, 5000, 5100, 5201, 5300, 5500). LOT AREA: 8.8 acres NPO COMMENT:: The area is not within an NPO boundary. PUBLIC NOTICES MAILED: Notices were mailed to 75 property owners in the surrounding area. No written comment had been received at the writing of this report. 2. Background None STAFF REPORT - ZC 12-83 - PAGE 1 I 3. Vicinity Information The surrounding land uses are as follows: The properties to the north and west are developed as single-family residential and are still within Washington County. The property to the west is developed as multi-family and is zoned A-12. There is a bank and a restaurant to the south. 4. Site Information The properties are developed as single-family residential, and the area slopes to the north. SW 78th is in substandard condition. B. APPLICABLE PLANNING POLICIES 1. Comprehensive Plan Policies 2.1.1 THE CITY SHALL MAINTAIN AN ONGOING CITIZEN INVOLVEMENT PROGRAM AND SHALL ASSURE THAT CITIZENS WILL BE PROVIDED AN OPPORTUNITY TO BE INVOLVED IN ALL PHASES OF THE PLANNING PROCESS. All owners of record within 250 feet of this site were notified by mail on September 1, 1983 of the application request. A notice was published in the Tigard Times. 2.1.3 THE CITY SHALL ENSURE THAT INFORMATION ON LAND USE PLANNING ISSUES IS AVAILABLE IN AN UNDERSTANDABLE FORM FOR ALL INTERESTED CITIZENS. All interested parties are given at least 10 days to comment on application requests and are encouraged to do so. In addition, the planning staff is available on a regular basis to answer any questions on specific applications. 10.1.1 PRIOR TO THE ANNEXATION OF LAND TO THE CITY OF TIGARD: a. THE CITY SHALL REVIEW EACH OF THE FOLLOWING SERVICES AS TO ADEQUATE CAPACITY, OR SUCH SERVICES TO BE MADE AVAILABLE, TO SERVE THE PARCEL IF DEVELOPED TO THE MOST INTENSE USED ALLOWED*, AND WILL NOT SIGNIFICANTLY REDUCE THE LEVEL OF SERVICES AVAILABLE TO DEVELOPED AND UNDEVELOPED LAND WITHIN THE CITY OF TIGARD. THE SERVICES ARE: 1. WATER; 2. SEWER; 3. DRAINAGE; 4. STREETS; *Most intense use allowed by the conditions of approval, the zone or the Comprehensive Plan. STAFF REPORT - ZC 12-83 - PAGE 2 5. POLICE; AND 6. FIRE PROTECTION Water is available from a 6" line in SW Pfaffle and from a 2" & 6" line in SW 78th Ave. Sewer is available from an 8" sewer line in SW Pfaffle and SW 78th Ave. SW 78th Ave. can be improved to the City standards. Police and fire protection are available. c. THE CITY SHALL PROVIDE URBAN SERVICES TO AREAS WITHIN THE TIGARD URBAN PLANNING AREA OR WITH THE URBAN GROWTH BOUNDARY UPON ANNEXATION. 10.1.2 APPROVAL OF PROPOSED LAND ANNEXATIONS BY THE CITY SHALL BE BASED ON FINDINGS WITH RESPECT TO THE FOLLOWING: a. THE ANNEXATION ELIMINATES AN EXISTING "POCKET" OR "ISLAND" OF UNINCORPORATED TERRITORY; OR b. THE ANNEXATION WILL NOT CREATE AN IRREGULAR BOUNDARY THAT MAKES IT DIFFICULT FOR THE POLICE IN AN EMERGENCY SITUATION TO DETERMINE WHETHER THE PARCEL IS WITHIN OR OUTSIDE THE CITY; c. THE POLICE DEPARTMENT HAD COMMENTED UPON THE ANNEXATION; d. THE LAND IS LOCATED WITHIN THE TIGARD URBAN PLANNING AREA AND IS CONTIGUOUS TO THE CITY BOUNDARY. e. THE ANNEXATION CAN BE ACCOMMODATED BY THE SERVICES LISTED IN 10.1.1(b)(2) . The City is prepared to provide urban services to the area. The annexation does not create an irregular boundary that would make it difficult for the police to service. The police department has been notified of the annexation proposal. The land is contiguous to the current City boundary, but it is not within the Tigard Urban Planning Area. 2. Tigard Municipal Code There are no specific criteria in the Tigard Municipal Code which address zone changes. Therefore, staff relies on the adopted { Comprehensive Plan Policies. C. CONCLUSIONS The annexation proposal and proposed zoning are in conformance with the adopted Comprehensive Plan Policies and Map. STAFF REPORT =- ZC 12-83 - PAGE 3 D. RECOMMENDATIONS Staff recommends that the Planning Commission forward the annexation proposal to the City Council with a favorable recommendation. Further, staff recommends that the Planning Commission assign the R-7 zoning designation to the properties to be effective upon annexation. RECOMMENDED MOTION Should the Planning Commission agree with staff's recommendation, the following motion may be made: "Move to forward recommendation of approval to the City Council for the proposed Annexation, and for approval of the Zone Change to become effective upon Council approval of the Annexation." NOTE Should the Planning Commission pass a motion other than that recommended by the staff, findings shall be adopted with the motion. . . 6 \\ 40111.141 . N ) ' V. iit-t-BY: S. Hamid Pishvaie APPROVED BY: William A. Monahan Assistant Planner Director of Planning & Development (SHP:pm/0156P) STAFF REPORT - ZC 12-83 - PAGE 4 1 NE 'I/4SW.1/4 SECTION 36 T I S R I W W.M. I WASHINGTON "P INTY OREGON■ 1 y < � a.. SCALE"U �u-lI 23_64.___ ______ _ _. . .___ SEE MAF S W is' 3680 SPRUCE P, v �± 4529 85 85 85 ,.- l-6'�_ ^h 21 00 G 2008 1 5700 5800 5900 6000 R<IR w r-4 r, 2iAc. 5600 . ■I I .a I,N/ r 1 %\\ Jr"- r s6iii9 'R:. Y'4c _$ 7 6 °I 5 4 /1 a 1_4. 1_l 1 r . 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E .. MEMORANDUM September 8, 1983 TO: Planning Commission FROM: Planning Staff k2 SUBJECT: ESEE Goal 5 Resources, Agenda Item 5.5 In the spring of 1983, the planning staff with the help of students from Portland Community College, conducted a thorough field study to evaluate sites in Tigard's Urban Growth Boundary which meet Goal 5 guidelines. Goal 5 reads as follows: GOAL: To conserve open space and protect natural and scenic resources. Programs shall be provided that will: (1) insure open space, (2) protect scenic and historic areas and natural resources for future generations, and (3) promote healthy and visually attractive environments in harmony with the natural landscape character. The location, quality and quantity of the following resources shall be inventoried: a. Land needed or desirable for open space; b. Mineral and aggregate resources; c. Energy sources; d. Fish and wildlife areas and habitats ; e. Ecologically and scientifically significant natural areas, including desert areas; f. Outstanding scenic views and sites ; g. Water areas, wetlands, watersheds and groundwater resources; h. Wilderness areas; i. Historic areas, sites, structures and objects; j. Cultural areas; k. Potential and approved Oregon recreation trails; 1. Potential and approved federal wild and scenic waterways and state scenic waterways. Where no conflicting uses for such resources have been identified, such resources shall be managed so as to preserve their original character. Where conflicting uses have been identified, the economic, social, environmental and energy consequences of the conflicting uses shall be determined and programs developed to achieve the goal. Attached is the staff's analysis of Goal 5 resources. Each potential site is identified and described in relation to Goal 5. In addition, a staff recommendation is included for each site. STAFF RECOMMENDATION: The Planning Commission should review the information submitted by staff, hold a public hearing on this issue and forward a recommendation to the City Council. The Planning Commission may delete sites recommended by staff or add sites omitted by staff which meet the Goal 5 guidelines. (WAM:lw/0154P) CONTENTS LCDC Goal #5 Analysis I. Resource Inventory A. Significant, Outstanding or Needed B. Conflict Analysis C. Economic, Social, Environmental and Energy Consequence Analysis D. Program Decision II. Identified Resource A. Little Bull Mountain Natural Forest B. Summer Creek Floodplain and Riparian Forest C. Krueger Creek D. Summer Creek Floodplain and Riparian Forest East of S.W. 135th Avenue E. Tigard/Tiedeman Fanno Creek Marsh and Floodplain F. Tualatin River Floodplain West of Cook Park G. Fanno Creek Park/Main Street H. Fanno Creek North of North Dakota I. Fanno Creek Hall/Bonita - Bonita/Durham J. Ravine 108/113 Tualatin Floodplain K. Durham Elementary School L. John F. Tigard House M. Summer Creek/Woodward School Fir Grove N. Windmill/121st and Katherine 0. Joy Theatre P. IJpshaw House/Seven Gables Q. Tigard Grange R. Kallstrom Fir Grove S. Tigard Street Farmhouse and Windmill T. Tigard Feed and Seed - 2 - :_ I WII}-J 1JI. for 111,-, _ ';� i h { _1 � 1_ ,���,1r.��1�r� { 1 111 111 11117 r,+•T I1 J r•. b l�Tt7Tlr1 t •°'° 1i' 1f _-]G[ i 1 11ll[[��IliIh1'11liFil:!!PJI 11 I -1 I � II' ;FI.�.���+�,.J L.�'JI1 H' II 11111.111iI�c��l�[llyl7[I�1J[tll I 1 I 1 ,`' ® eHAa 31l�f • `� '. 1., 1111•i - sli�'�1_t11[1��1%1 L'II_pL�t1� 114:i1���1[!._■,II;{11�;Jl�{�[7•"7J'.1 I SI i.,�,,°ss4 + /e/111111BI1U, _ 'N44111 .� / I!� 7•� 1' e1}' • _ I r 1 A :f rah it - V. 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"VOX ale`541; ■ r.16. 1!'',..r` .✓'00 .I•. = I ��� y •.II6 s \uJ•.��,�p , =1 Opu a ■e p✓ i� a✓ fit@ 46 V.�. r i-.1 i ®`mss,._•IC-a.... ::limp 111 .� �# ill.'._ '_''7 N..�IIOMI� �_ a.�s4E j� ,li • 1 / :' Eli r ggi ���ggqt• 41 .unllr S:d —. .ie•1 1.1 111.111-in II m A1V -1 I 1 •••111 i ^ : IIIt n L t /lb r.,...„. „.:. ...,„.111! tree ,y_ Y7. JL-. _ I Ce :, ' —lltil iiig& iZ I .. " is e,• 1.�.. L� 1• , k _.. ,. , —� W• . , ra, ..x,w.:::::::,::::::::•::„ .. , - -- 1 ,,,, ,,, . i_ ....-. 14 . . AII , 1 :4s a mi. ��F I ,•:, Iii--„. .,i: f..1::::1t ' ;/C JITiiNWj!7 $ �.® - ltir Q�3s e: i ::,r,.. '';iii pp _ .. I. ):-. tic 't-al I. / .. I ` ._, EXISTING VEGETATION 1•` MANN i oA ...Wwul/.. ' ' i I I I ; •III l;\ i..! Ii° ! t a :� 1•s Lid f %iiS�.., ,_ .., — t t # 1, I:. 1 CD CONIFEROUS I , 11 S ` L ` I vt.. .iJ (� DECIDUOUS l[ !L L 1 i l D''1 •, J,J 1 11 r ii - ,. f © MIXED-CONIFEROUS/DECIDUOUS L J I�I ..,;'.:_ �� 11 D BRUSH �.cr? L..'r. �( �I Fi I /It'I'`•O MEADOW I 1T I yI O MARSH 1-- I I I I ��__ 1.1 1 r: "111 L ' �� v - 1�l II 1 t 17 I '. r � � ' i\ CITNW6f.`I)NU PLANNING AREA _ I_i I' I� )I� , II �� _��1_�II..�'I1 I Y` \ ,, 1 `` SCALE 1"moo' ._ �. Nile—. ... _...... ..._.. _. �. GOAL 5 RESOURCES LCDC Goal #5 Analysis OAR 660-16-000 deals with the implementation of Statewide Planning Goal #5 -- Open Spaces, Scenic and Historic Areas, and Natural Resources. There are various steps that must be followed in meeting the goal. This section will deal with these steps by summarizing the findings, conclusions, and actions of the total plan. I. Resource Inventory. The first step is the inventory of resources within the Tigard active urban planning area. Of the required items for inventory, the following are found in the study area: 1. Land needed or desirable for open space. This includes the areas within the 100-year floodplain and greenway of Fanno Creek. 2. Fish and wildlife areas and habitats. This also includes the Fanno Creek 100-year floodplain and marshland. 3. Ecologically and scientifically significant natural areas. Little Bull Mountain is a part of this inventory. 4. Water areas, wetlands, watersheds and groundwater resources. The pond and marsh adjacent to Park 217 would be included in this inventory. 5. Historic and Cultural resources. Part of this inventory would include the Tigard Grange and the John F. Tigard House. A. Significant, Outstanding or Needed The resources listed in this inventory are determined to be significant, outstanding and needed related to the overall development of Tigard as a diverse community. It is the determination of the City through this Goal #5 process that these resources are of great value to the community and should be preserved, or preserved to some degree. B. Conflict Analysis For each of the resources identified worthy of some degree of protection, there is a potential of conflict for other uses. Potential conflicts include: 1. Loss of the resource through conversion of the area to a developed residential, commercial or industrial use; for example, the cutting of trees, the filling of a marsh area or the demolition of a historic structure. 2. Creation of adjacent activities that would degrade the resource areas. In particular, this involves the potential of uses adjacent or near to the resource that would disrupt or jeopardize the viability of that resource. - 3 - C. Economic, Social, Environmental and Energy Consequence Analysis Where there is a conflicting use, or the potential thereof, an analysis of the consequences of each of the factors (Economic, Social, Environmental and Energy) must be made. The consequences are: 1. The economic impact of protecting the resource is directly related to the loss of potentially developable land. For example, it would be almost impossible to utilize some of the parcels, or portions thereof, in the floodplain for any type of development due to the cost of fill and engineering. There should be no adverse economic impact from the area's preservation. The wooded areas on several resource sites will have an impact on the character and intensity of the use allowed. The trees, however, can be incorporated into required setback and landscaping areas without much loss of net buildable area. 2. Some of the resource areas inventoried have significant social impact. This could be due to the historic or cultural nature of a site, educational significance because of unique natural characteristics and/or their proximity to schools, i.e. the marsh just north of Fowler Junior High. The wooded areas will be of special significance when the residential areas become heavily developed. These wooded areas will be important breaks or buffers in the residential areas. The loss of these areas would be of considerable social harm due to their unique natural value, environmental significance and community beauty. 3. Environmental impacts would be great if natural areas were not preserved. The trees provide an important visual buffer or break as well as providing for wildlife habitats. Some of the areas within the 100-year floodplain of Fanno Creek have outstanding ecological, educational and recreational value. Their destruction would cause irreparable impact on the community and environment. 4. There are no known energy consequences of either using or not using the resource areas, other than the fact that without these the members of the Tigard community could potentially have to drive somewhere else in order to enjoy such amenities. D. Program Decision There are several actions that will be taken to preserve these resources. 1. The significant wooded areas are identified and mapped. The policy of the City's comprehensive plan is that these areas will be preserved in a natural state as much as possible or integrated into the design of any development, i.e. parking lot island, building setbacks, street rights-of-way and landscaping areas whenever possible. If it is necessary to remove a portion or all of the trees, the replacement landscape features shall be subject to approval by the applicable approval authority. - 4 - • 2. Historic structures and cultural sites are placed within the Historic Overlay District (HD) which prescribes standards and procedures for development within each (HD) area. The purpose of the standards and procedures are to preserve the structure on site, whenever possible, and ensure that any development within the district is compatible with the character of the district; both architecturally and through the overall site plan. 3. Areas designated for residential and within the Fanno Creek • 100-year floodplain are protected from development encroachment and will be preserved for greenway, open space and recreational • uses. These safeguards are specifically addressed within policy language of the comprehensive plan and within the Sensitive Lands Overlay chapter of the Tigard Community Development Code. Some of the area designated for commercial or industrial use within the Fanno Creek 100-year floodplain will accommodate development provided that they meet the applicable planning policies and the requirements set forth in the Sensitive Lands chapter of the Tigard Community Development Code. 4. The provisions of these policies and ordinances will be implemented administratively by the City staff and through the Hearings Officer, Planning Commission and City Council. II. Identified Resources A. Little Bull Mountain Natural Forest The Little Bull Mountain natural forest area located on the west side of Little Bull Mountain was determined to be a significant Goal #5 resource as an outstanding scenic site. The size of the treed area includes approximately 24.9 acres. The wildlife within the site is limited to small birds and animals. The major significance of this area is its visual impact viewed from many vantage points within Tigard. This area is the largest stand of nature coniferous trees within the Tigard active urban planning area, and, therefore, serves as a City visual landmark. The Comprehensive Plan designates this area a Low Density Residential (1-5 units to the acre) with a Planned Development overlay zone required of any type of residential development. If the resource is preserved, it will be necessary to situate any structures in a manner that minimizes the loss of the trees. The land also has economic value. Given its proximity to Pacific Highway and adjacent residential areas and its topography, the land does lend itself to a low density residential use. The staff recommendation for this site is to limit conflicting uses. The limited conflicting uses allowed will be single family detached residential units, reviewed through the Planned Development process, - 5 - • and community recreation reviewed through the Conditional Use process. Both of the processes listed in the Community Development Code have standards which review the removal of any major vegetation. In addition, the Tree Removal chapter of the Community Development Code protects major vegetation on undeveloped land. B. Summer Creek Floodplain and Riparian Forest The Summer Creek floodplain and riparian forest were determined to be significant Goal #5 resources as water areas and wetlands, fish and wildlife habitat, and as an open space/recreation site. The size of the 100-year floodplain is approximately 2.9 acres. This swamp/marsh is the only one within the area, and is an extension of the similar ecosystem west of Scholls Ferry Road. The combination of deciduous swamp and coniferous upland vegetation is especially valuable as diverse wildlife habitat, according to Mike Houck, the wildlife biologist who surveyed sites for Washington County. He called the site an "important wetland," one of the three most important wildlife sites in the area. Summer Creek is the only major tributary basin of Fanno Creek which has not been substantially urbanized. Wetlands such as this will serve an even more important function in purifying water as the basin is developed. The Comprehensive Plan designates the site as Medium-High Density Residential (13-20 units per acre) which might conflict in some ways with preservation of the Goal #4 resources. If the resources are preserved, there may possibly be a loss of buildable land, fewer dwelling units, and additional development costs; on the other hand, land and amenity values might be enhanced, dwellings might be buffered from road traffic, and local open space generated. If the conflicting use (Medium-High Density Residential, 13-20 units/acre) is allowed unaltered, there may be loss of wildlife habitat, lower water quality, and additional costs of modifying the floodplain. The staff recommendation of this Goal #5 site is that the floodplain and immediately adjacent riparian upland be preserved in their natural condition, including topography and vegetation. Density transfer from the site will be allowed up to 25% of the density allowed on buildable land (non-floodplain). Parcels containing any of the site will be required to develop under Planned Development provisions of the Tigard Community Development Code. C. Krueger Creek The unnamed stream which flows north across this area and into Summer Creek was determined to be a significant Goal #5 resource as a waterway, wildlife habitat, and open space/recreation site. Though not an especially outstanding resource, the creek provides, with its narrow strip of natural vegetation, the kind of small-scale natural features that can markedly soften and buffer the impact of urban development. As wildlife habitat in particular, it would be retained as an important corridor, and would also help minimize the water pollution impact of urbanization. The image is one of small children playing with frogs along a waterway fringed with shrubs and trees. - 6 - The Comprehensive Plan designates the site as Medium-High Density Residential (13-20 units per acre, except 6-12 units on the south), which might conflict in some ways with preservation of the Goal #5 resources. If these resources are preserved, there may possibly be loss of buildable land, fewer dwelling units, additional development costs, enhanced amenity values, and local open space. If the conflicting use (Residential) is allowed, there may be loss of wildlife habitat, lower water quality, and additional costs of development and maintenance for structural drainage management. The staff recommendation for this Goal #5 site is that the waterway and immediately adjacent riparian upland (a minimum 25' on each site) be entirely preserved in their natural condition, including topography and vegetation. Density transfer from the site shall be allowed. Parcels containing any of the site shall be required to develop under the provisions of Planned Development. D. Summer Creek Floodplain and Riparian Forest East of S.W. 135th Avenue The Summer Creek floodplain and adjacent riparian forest area was determined to be a significant resource as water area and wetlands, fish and wildlife habitat, and as an open space/recreation area. The area within the 100-year floodplain is approximately 9.43 acres. This area is a continuation of the Summer Creek environment west of S.W. 135th Avenue, and many of the same attributes are found in this area. The Comprehensive Plan Map indicates that this area is Medium-High Density Residential (13-20 units to the acre), which might conflict in some ways with preservation of this area. According to policies 3.2.2 and 3.2.3, residential development within the 100-year floodplain area is not permitted which creates a possible loss of potential buildable land. Density transfer, however, is permitted up to 25% of the area within the 100-year floodplain. If the conflicting use (Medium-High and Medium Density Residential) is allowed within the resource area, there may be a loss of significant vegetation, wildlife habitats, lower water quality and additional costs of modifying the floodplain. The staff recommendation for this resource area is that the land within the 100-year floodplain and the immediately adjacent riparian upland be preserved in their natural condition, including topography and vegetation. E. Tigard/Tiedeman Fanno Creek Marsh and Floodplain The Tigard/Tiedeman marsh and floodplain site is located south of Tigard Street and west of Tiedeman Avenue. The size of this marsh area is approximately 8.7 acres. This area was determined to be a significant resource originally in 1977 by a State Field Biologist as a significant wetland area. Since that time, no development has occurred within the marsh area and the City has continued to consider it to be a resource. There exists, however, various types of development adjacent to the area. Directly to the east of Fanno Creek and the marsh area, there are single family and duplex residential units. To the southwest of the marsh area lies Fowler Junior High School. Two or three activity fields separate the school from the marsh area. - 7 - As a fish and wildlife habitat area, it could be retained as an education tool for the community, and school system, especially due to its close proximity to Fowler Junior High School. The Tigard Comprehensive Plan designates this area as Medium Density Residential (6-12 units per acre) although it is almost all within the 100-year floodplain. Policies 3.2.2 and 3.2.3 prohibit residential development within the floodplain area which facilitate the preservation of this marsh site. Density transfer from the site will be allowed up to 25% of the unbuildable area (marsh and floodplain). The staff recommendation for this resource site is the marsh area and floodplain area adjacent to the marsh be preserved in their natural state, including topography and vegetation; excluding a pedestrian/bikepath through or adjacent to the area. Any marsh or floodplain development would be required to be reviewed in accordance with the standards of the Sensitive Lands chapter. F. Tualatin River Floodplain West of Cook Park This area of. the Tualatin River Floodplain has been determined to be a significant resource as a water area and as open space/recreation area (addition to Cook Park). The size of this resource site is approximately 33.4 acres. This wooded and grassy area connects the floodplain area with Cook Park as an extended greenway. Segments of the pedestrian/bike path have been constructed to the west of this area. The path would be continued through the area as adjacent development occurs, connecting to Cook Park. The Tigard Comprehensive Plan designates this area as Low (1-5 units per acre) and Medium (6-12 units per acre) Density Residential. Since residential development of any type is not permitted within the floodplain (policies 3.2.2 and 3.2.3), this area can be exempted from conflicting development. The staff recommendation for this resource site is that the floodplain area should be preserved with limited conflicting uses within the area. These conflicting uses would include park and pedestrian/bike pathway related uses. The Sensitive Lands section of the Community Development Code establishes the standards by which any park related development within the floodplain would be reviewed. G. Fanno Creek Park/Main Street This area within Tigard's Central Business District along Fanno Creek has been determined to be a significant resource as a water area and needed open space for recreation purposes. This extends from Main Street on the north to Hall Blvd. on the south and includes approximately 32.5 acres. This area is needed for open space for two reasons: 1) It will provided for a variety of needed park uses in an area of Tigard where park uses are not readily available, and 2) It establishes an open space buffer between residential and commercial uses. - 8 - The park and open space will be developed in two distinct phases. The active park area is between Ash Avenue right-of-way and Hall Blvd. The remaining park area will be developed as passive open space in conjunction with the Main Street development project. Both of these park plans and developments have been adopted by the City Council. The Comprehensive Plan for the City designates these areas as Central Business District; which includes park uses as an allowed use. Limiting the area only to its natural condition would retard the economic viability of the downtown core. In addition, prohibiting conflicting uses could also limit the City's ability to alleviate existing and potential increased flooding problems due to the circuitous route of Fanno Creek. The staff recommendation for this resource site is to allow for conflicting uses, park and commercial development in accordance with the adopted City Council plans. H. Fanno Creek North of North Dakota The Fanno Creek floodplain north of North Dakota was determined to be a significant wetland and water area and open space/recreation resource. The resource includes the 100-year floodplain area directly north of North Dakota north to approximately the Black Diamond subdivision area, approximately 36.3 acres in area. This marshy area serves as a buffer between the residential areas on the west and the industrial areas east of Fanno Creek. According to a number of residents that live adjacent to this area, it also supports a wide variety of wildlife habitats, The Tigard Comprehensive Plan designates the area to the west of Fanno Creek as Minimum Density Residential (6-12 units per unit) while the area east of the area east of the creek is designated as Light Industrial. Due to the requirements of policies 3.2.2 and 3.2.3, no residential development can occur within the 100-year floodplain area. Industrial development may occur within the floodplain if the requirements of the Sensitive Lands chapter of the Tigard Community Development Code are met. These standards are clear and concise and require that the functioning capacity of the floodplain be retained and no up or down stream adverse impacts occur as a result of the development. In additional, vegetation must be installed to restore the floodplain/greenway characters of the resource as well as visual screening for the residences or the west side of the creek. It is the City's contention that due to the irregular shaped industrial land in this area it may be necessary to partially develop portions or the floodplain in order to adequately accommodate industrial development. In addition, the railroad already traverses the industrial area which also decreases the desire for the City to preserve the entire east side of the creek. - 9 - • The staff recommendation for this Goal #5 resource area is to: 1) limit conflicting uses on the industrial side of the creek, 2) provide any pedestrian/bike pathway that may be required with this section of the floodplain/greenway area, 3)perform any necessary channel work for Fanno Creek to alleviate existing and potential increased flooding along Fanno Creek. Residential development along the west side of the floodplain would be prohibited. Twenty-five percent of the density on the unbuildable land may be transferred to the buildable portion of the land for development purposes. I. Fanno Creek Hall/Bonita - Bonita/Durham The Fanno Creek floodplain south of Hall Blvd. and north of Bonita Road was considered to be a significant water area and open space/recreation resource. The resource includes the land within the 100-year floodplain, approximately 50 acres in area. The majority of the floodplain area south of Hall Blvd. to about the Bonita Firs development is heavily wooded and provides an excellent buffer for the residential areas along the west and south sides of the creek. Light Industrial designated areas border the creek on the north and east sides. Besides serving as a buffer, the wooded areas also support a wide variety of small birds and animals. 10 • Residential development within the 100-year floodplain is prohibited in accordance with policies 3.2.2 and 3.2.3 of Tigard's adopted Comprehensive Plan. Although if additional residential development does occur adjacent to the floodplain/greenway area, a pedestrian/bike pathway would be required to the development, in accordance with the standards set forth in the Sensitive Lands chapter of the Community Development Code. The areas adjacent, and in some cases within, the 100-year floodplain area have been determined to be needed and desired industrial development sites, which are vital to maintain Tigard's strong commercial and industrial economic base. These sites are abutting railroad tracks and have easy access to collector and arterial classified streets. The need to develop these sites may, in some instances, require a portion of the floodplain area to be altered in order to adequately accommodate the developments. Any such proposals would be reviewed in accordance with the standards set forth in the Sensitive Lands section of the Community Development Code, to ensure that there would not be any adverse impacts as a result of any such development. The staff recommendation for this resource area is to limit conflicting uses on all areas within the floodplain that "are designated for residential uses. The limitation would include any pedestrian/bike pathway that may be required of development, plus any necessary channel work along Fanno Creek to alleviate existing and potential increased flooding along Fanno Creek. Actual residential development within the floodplain area is prohibited in accordance with policies 3.2.2 and 3.2.3. Twenty-five percent of the density on the unbuildable portion of the land may be transferred to the buildable portions of the land for development purposes; provided all of the applicable Code requirements are met. On areas designated for industrial uses within the floodplain, conflicting uses will be allowed fully in accordance with policies 3.2.2 and 3.2.3 and the standards set forth in the Sensitive Lands chapter of the Community Development Code. J. Ravine 108/113 Tualatin Floodplain This resource area is actually part of the Tualatin Floodplain area, yet has a setting much unlike the normal floodplain area. It has, therefore, been considered to be a significant open space, water shed and wetland area; and it includes all of the land designated as floodplain, approximately 35 acres. This low lying area is primarily covered with deciduous trees and underbrush with a few marshy areas. It provides a habitat for a variety of small animals and birds while providing a unique open space resource. In some of the areas, the property owners have maintained the area as lawn. This natural area also functions as a drainageway primarily during the months of higher water concentration. Many of the slopes going into the area exceed 15%, and adjacent to the mobile home park the reinforced slopes are a minimum of 25 percent. The actual floodplain area is less area than the entire resource area. - 11 - II The Tigard Comprehensive Plan indicates that the areas surrounding this resource will be developed for Low Density Residential uses (1-5 units per acre), except for the mobile home park which is already developed at a Medium Density Residential use (6-12 units per acre). These uses may conflict in some ways with the preservation of this resource. If the entire resource is preserved, there may be a loss of buildable lands, fewer dwelling units, and additional development costs. On the other hand, land and amenity values might be enhanced, dwellings buffered from other dwellings, and local open space generated. If the conflicting use is allowed unaltered, there may be a loss of wildlife habitat, lower water quality, and additional costs of modifying the area. The staff recommendation for this Goal #5 is that the floodplain and the entire ravine area below the foot elevation mark be preserved in their natural condition, including topography and vegetation. Density transfer from the site will be allowed up to 25% of the density allowed within the resource area. Parcels containing any of the resource site will be required to develop under an approved Sensitive Lands permit and the standards set forth in the Community Development Code. K. Durham Elementary School The Durham Elementary School was determined to be a significant historic structure. The school site size includes 5.59 acres. Now part of the Tigard School District 23J, the Durham School was erected in 1920. In 1951, an addition was added to the facility which now houses classes to the sixth grade. In addition, this school house is the only remaining institutional land mark in the southeastern portion of Tigard. Efforts are continuing to place the structure on the National Historic Register. The Comprehensive Plan Map indicates the site as Public/Institution. The designation would restrict conflicting uses on the site to public or institution, therefore, no other residential, commercial or industrial uses would be permitted on the site. The Community Development Code includes a Historic Overlay District (HD) which is placed on he school site property. This overlay district requires any development proposal to be reviewed in a public hearing. The standards within the Historic Overlay District chapter requires that all changes with the district be compatible with the historic structure. The staff recommendation for this resource is to preserve the structure as historic and facilitate, if possible, placing the structure on the National Historic Register. A Historic Overlay District designation should be placed over the zoning. L. John F. Tigard House The John F. Tigard House, located on the southwest corner of S.W. 103rd and S.W. Canterbury, was included on the National Register of Historic Structures on July 20, 1979, and, therefore, has been - 12 - included as a historic resource for the City of Tigard. This structure has been Tigard's historic focal point, and is a good example of early frame construction. In 1979, it was moved from its original location on Pacific Highway to its present location on the southwest corner of S.W. Canterbury and S.W. 103rd. It is currently being restored. The exterior restoration is almost complete, however, there is still substantial work needed on the interior of the structure. The property on which the structure is located is owned by the Tigard Water District. The Comprehensive Plan Map indicates the site is Low Density Residential (1-5 units per acre) with an underlying zoning of R-10 (Single Family Residential). These designations are not in conflict with the historic resource since it is a residential use. The 10,000 square foot minimum lot size appears adequate to situate the structure and accessories in a similar setting as originally built. A Historic Overlay District (HD) designation will be placed upon land area on which the structure and accessories stand. This designation will ensure that any development upon the land area will be compatible with the character of the historic structure. The staff recommendation for this resource is to preserve structure and accessories, and a Historic Overlay District designation should be placed over the land area. M. Summer Creek/Woodward School Fir Grove This heavily treed area has been determined to be a significant Goal #5 resource as a natural area and an outstanding scenic site. The approximately 2.5 acre site is bordered by the Summer Creek floodplain/greenway on the north and east, the Mary Woodward Elementary School on the south and vacant land/residential land on the west. (The westerly land is designated for Low Density Residential (1-5) units per acre) and is zoned R-4.5 (PD), part of the Summerlake development. ) The resource area is largely covered with mature Douglas Fir with various underbrush especially along its edges. It is one of a few undisturbed fir stands in the northwest portion of Tigard, and is seen as a visual amenity by the various neighborhoods in northwest Tigard. Although the wildlife habitats within the area are not significant (small birds and animals), the area does lend itself as a possible educational tool for school children as well as the surrounding residents. The combination of upland and riparian vegetation presents a diversity of native environments. In addition, this particular site is landlocked and has never been included in any of the adjacent development plans. Once the lower phase of Summerlake has been platted and development initiated, it would be difficult to incorporate this piece into any development. Given all of the above analysis, it is more apparent that this area should be kept in its natural state. 13 - The Comprehensive Plan designates this resource site as Low Density Residential (1-5 units per acre). If the resource is preserved, there would be a loss of a development potential, however if the conflicting use R-4.5 (Single Family Residential) is allowed, there would be a significant visual, natural and educational resource within the northwest area of Tigard. The staff recommendation on this Goal #5 resource is to limit conflicting uses within the resource site to trail and related educational uses. Otherwise, the resource site should be preserved in its natural condition. N. Windmill/121st and Katherine The windmill structure has been determined to be significant as a historic resource. The windmill is situated on the southwest corner of 121st and Katherine on land dedicated to the City for park purposes; approximately .14 acres. The windmill was constructed around 1901 and currently is being restored. The windmill is one of three known windmills in the Tigard planning area, and is a definite structural link to Tigard's historic character. The Comprehensive Plan designates the resource site open space which does not conflict with the presentation or renovation of the resource. In addition, the R-4.5 zoning designation will include a Historic Overlay District designation (HD) which requires that any modifications to the structure or grounds would be required to meet certain standards of compatibility. The staff recommendation for this historic resource is to renovate and preserve the windmill structure and allow for other passive related park uses on the site. 0. Joy Theatre The Joy Theatre has been determined to be a significant historical resource. Built in 1939, it is the only indoor theatre in Tigard with a classical marquee. Although, the lobby of the theatre was remodeled after 1939, the remaining portions of the structure are original and the theatre has never been used for anything other than a theatre use. The Tigard Comprehensive Plan designates the resource site for Commercial-General with the same underlying zoning; which allows theatres outright. Therefore, there would not be any conflicting uses due to land use designations. In addition, adjacent uses include commercial and office uses which complement the theatre. Other information about this potential resource is sketchy to say the least. More time will be needed to gather qualitative information. The staff recommendation for this Goal #5 historic resource is to delay the Goal #5 process until further information can be gathered on the quality of the resource. The perceived quality of the resource, however, is such, primarily due to its marquee and traditional theatre architecture, that staff believes it is necessary to include it within the - 14 - resource inventory. In the next fiscal year the City will be collecting data for a master City park plan. At that time, it will be necessary to point out all City points of interest as well as recreation areas. The Joy Theatre will be included in the inventory. P. Upshaw House/Seven Gables The Upshaw House has been determined to be a significant historic resource due to the age and architecture of the structure. At this time, the City's knowledge on this unique residence is limited. The residence was erected around 1909, and has never been moved. The site now is approximately 1.1 acres although it appears to have once been at least 13-15 acres. Remnants of the apple orchard still remain. The residence has a classic farm house type architecture with numerous dormers, and remains in good condition. There are very few pre-1930 structures remaining in Tigard, and this particular structure is one of the finest. The Comprehensive Plan designates the area for Low Density Residential with an underlying zone designation of R-10 (Single Family Residential). Therefore, there is not a conflict between the existing use and the land use designation. To ensure that development on the resource site is compatible with the structure, a Historic Overlay District (HD) will be placed on the site. The staff recommendation for this resource is to include the structure on the City's resource inventory and delay the Goal #5 process until further data can be obtained. During the next fiscal year, the City will be proceeding with the development a a master City parks plan which will also point out citywide points of interest as well as park needs and assessment. It is the intent of the City to preserve the character of the structure through the standards set forth in the Tigard Community Development Code. Q. Tigard Grange The Tigard Grange building located on Pacific Highway has been determined to be a significant historic resource. Although the City does not know the specific date, it has been stated by the Washington County Historical Society that the grange building is one of the oldest such granges in the west. It is currently being used as a church. The remaining information on the structure is somewhat sketchy. It is a one-story wood-frame structure with a stucco front and wood horizontal siding on the remaining sides. The building is currently in good repair. The Comprehensive Plan designation for this resource site is Commercial-General with an underlying zoning designation of C-G (General Commercial). There does not seem to be a conflict concerning land use. Church uses are not permitted in a C-G zoning district, therefore, it is considered nonconforming. Its use or other subsequent commercial use, however, may be appropriate, provided that the architectural character of the structure remains. - 15 - The staff recommendation for this resource is to include the structure on the City's resource inventory and delay the Goal #5 process until further data can be obtained regarding the structure. During the next fiscal year, the City will be proceeding with the development of a master City parks plan, which will also discuss citywide points of interest as well as park needs and assessments. It is also the intent of the City to preserve the architectural character of the structure through the review of the standards set forth in the Tigard Community Development Code. R. Kallstrom Fir Grove It has been determined by the City that the Kallstrom Fir Grove is a significant Visual and Natural resource. Located on the east property line of the Kallstrom property, the trees represent the only major stand of Douglas Firs on the south side of the Little Bull Mountain area. Planted by the original owners of the property, the unique row of trees represent a visual landmark for the residents in the area. There is a small plaque along SW 100th denoting the fir grove. The Comprehensive Plan indicates a Low Density Residential (1-5 units per acre) designation for the area with an underlying zoning district designation of R-10 (Single Family Residential). There are no land use conflicts between the use and the tree grove other than the fact that the grove could possibly be destroyed due to subsequent development. The staff recommendation for this resource is to preserve the visual and natural resource. The City recommends that a special al NPO #6 policy be written to call special attention to preservation of these trees regardless of the type of subsequent development that may occur on the site. The policy may read: THE CITY SHALL PRESERVE THE KALLSTROM FIR GROVE ON N.W. 100TH AVENUE. a. ANY DEVELOPMENT ON OR ADJACENT TO THE SITE ON WHICH THE TREES ARE LOCATED SHALL INCORPORATE THE FIR GROVE INTO THE DEVELOPMENT PLANS. b. A DENSITY TRANSFER SHALL BE PERMITTED IN LIEU OF DESTROYING THE TREES. S. Tigard Street Farmhouse and Windmill The farmhouse and windmill on the northside of S.W. Tigard Street just west of Fanno Creek has been determined to be a significant historic resource. Once again, the City has very little information on these structures. Based on the architecture, it appears as though the farmhouse and windmill could pre-date 1920. Both of the structures are in good repair. In addition, it is the City's understanding that there is a tree which is rare to this area, that was brought from the eastern United States by the original property owner. - 16 - The Comprehensive Plan designation for the resource is Medium Density Residential (6-12 units per acre) with an underlying zoning of R-12 (Multiple Family). The land use designation could be a potential problem related to land values and the feasibility of keeping the single family farmhouse and windmill structures amongst higher density development. In 1982, the owner of the site partitioned off the farmhouse and windmill from the remaining 10 acres; thus somewhat deterring extensive development on the resource. In addition, it is possible to integrate the farmhouse and windmill architecture into any development proposal. This would be accomplished via the Planning Development (PD) process. The staff recommendation for this resource is to include the structures on the City's resource inventory and delay the Goal #5 process until further data can be obtained regarding the background and significance of the structures. During the next fiscal year, the City will be proceeding with the development of a master City parks plan which will also discuss citywide points of interest as well as park needs and assessments. It is also the intention of the City to preserve the architectural character of the farmhouse and uniqueness of the windmill through the review of the standards set forth in the Tigard Community Development Code under the Historic Overlay chapter. T. Tigard Feed and Seed This structure has been determined to be a significant cultural and "historic" resource and should be included on the City's resource inventory. Like so many of the older structures in the community, the City has very little information about this structure. From what information the City does have, it appears that the structure was built in the 1940's or earlier and has never been moved. Apparently a portion of the structure was removed when the viaduct for Pacific Highway was built . The structure is wood frame and is a classic example of once rural, small town americana. Situated in the center of Tigard's downtown, it is a focal point to the downtown area. The Comprehensive Plan designates the site as Central Business District (CBD) with the same underlying zoning district. In addition, this site falls within the Tigard Urban Revitalization Area which is currently of the subject of a revitalization effort. The staff recommendation for this resource is to include the structure on the City's resource inventory and delay the Goal #5 process until further data can be obtained re garding the background and significance of the structure. During the next fiscal year, the City will be proceeding with the development of a master City parks plan which will also discuss citywide paints of interest as well as park needs and assessments. It is also the intent of the City to preserve the architectural character of the structure regardless of the use; through the review of the standards set forth in he Historic Overlay chapter of the Tigard Community Development Code. (JC:pm/0106P) - 17 - • /7 r s= f 9 ?) e/✓ra2dm ial itonewbekm 9;44 August 23, 1983 closed/ha.fc ✓ca! my summary of the 1983. changes made in the structure of Oregon's land use process. Please call me if you have any comments or questions. • Sincerely, •EJS:mch 21 . enclosure • / Edward J. Sullivan each(/ Klee,/ cGJe ad otali fr. /woo(of(lanc/Jtttv. Mr. Bob Jean, City Administrator City of Tigard O'DONNELL, SULLIVAN & RAMIS TO P. 0. Box 23397 Tigard, Oregon 97223 ATTORNEYS AT LAW 1727 N.W. HOYT STREET PORTLAND. OREGON 97209 (503) 222-4402 YF. 6 CHANGES MADE IN OREGON LAND USE SYSTEM By Edward J. Sullivan The 1983 Oregon Legislature received a Governor' s Task Force Report somewhat critical of that state's land use system and accepted most of the recommendations of that body in making major modifications to the Oregon system. The following is an examination of the major changes made by that legislation. (Ch. , Oregon Laws, 1983) . g y Acknowledgment - Acknowledgment is the term Oregon law uses to confirm that city and county plans and land use regulations (e.g. zoning and land division ordinances) comply with statewide planning standards. or "goals" . The Task Force criticized the process, finding the Land Conservation and Development Commission (LCDC) , the statewide body charged with review of local plans against those goals, too strict in exercising their functions. The legislation requires all outstanding plans for Oregon' s 279 cities and counties to be submitted for acknowledgment review by ✓ January 1, 1984 and acknowledged by July 1, 1984 . Alternatively, LCDC may issue an enforcement order (which would place a moratorium of some or all development in the local jurisdiction) , cut-off of state funds, or completion of local plans by LCDC. The legislation allows for acknowledgment for all but limited geo- graphical areas, but those areas must themselves be acknowledged no later than July 1, 1984 . The legislation also redefines "goal compliance" , the standard for acknowledgment recommended by the Task Force to mean that local plans and regulations: "***on the whole, conform with the purposes of the goals and any failure to meet individual goal requirements is technical or minor in nature. " Economic Development - The legislature thrOglia a little incense on the alter of economic development by adopting Chamber of Commerce-type language encouraging "economic development and opportunity for all citizens" and coming out strongly against delay or increased costs for "appropriate development" . The legislature instructed LCDC to do what it is already charged with doing, including: - Analyzing local economic "patterns, potentialities, strengths and deficiencies" and relating these to state and local trends. - To require local plans to have economic development policies and adequate supplies of commercial and industrial lands "consistent with plan policies" and to avoid conflicting uses around such sites. Also required and more popular in the area is the adoption of "public facilities plans" with "rough costs" for infastructure, as well as coordination with state agencies. -1- - As an extra "goodie" for development interests, the legis- lature told local governments to provide for "residential and industrial development and other economic activities on appropriate lands outside urban growth boundaries in a manner consistent with conservation of the state' s agricultural and forest land base" , language which means very little. - Key facilities and services to be provided for within "urban growth boundaries" (generally cities and areas needed for development by the year 2000) . Exceptions An "exception" is the name given to a procedure provided for in the goals for goal avoidance, e.g. , allowing bare land outside urban growth boundaries to be used for nonresource purposes such as shopping centers and electronic plants. Exceptions have been the subject of much litigation, see e.g. , Still v. Marion County, 42 Or App 115, 600 P2d 433 (1979) , and much criticism in the Task Force Report. The legislature has rewritten the process, so as to loosen it, and to put it in the statutes. LCDC is charged with rewriting the goals and adopting rules consistent with legislative "direction" . Time will tell the result, but the extreme difficulty which had faced exceptions in the past may not be mitigated much. Indeed, a concomitant side agreement which accompanied, but is not included in, this legislation states that the major exception case, Still, which states that a demand or desire for alternative uses does not justify an exception, may nullify any real change in the process. Local Processes - Cities and counties are now: 1. Required to limit transcript fees on zoning or land division appeals to actual costs up to $500 and one-half actual costs thereafter and also are required to limit most other appeal fees to actual or average costs of service. 2. Required, at varying dates in the future, to provide a consolidated local application process. 3. Allow for approvals of applications without hearings , so long as a de novo review is provided for on appeal and notices given to interested persons. 4 . Generally requires a determination of completeness of an application to be made within 30 days of receipt and a final decision on the application to be made within 120 days of receipt. If not, a writ of mandamus to approve the application may be applied for in the local court of general jurisdiction (circuit court) , which writ must be granted unless the court finds the application violates a substantive provision of the local plan or land use regulation. This mandamus process is probably of scant help to developers , given mandamus caselaw relating to discretionary approvals. -2- LUBA - The Land Use Board of Appeals (LUBA) was a 4-year experiment begun in 1979 to supplant local judicial review of city, county and state agency land use decisions. The experiment was successful and LUBA became permanent under this legislation with a few changes, the greatest of which was to allocate state agency land use decision appeals to the (intermediate and state-wide) Court of Appeals. Circuit courts, however, retain jurisdiction over relief by declaration, injunction and mandamus. Under the new system, a party to a local decision or the Department of Land Conservation and Development (DLCD) may appeal the same by filing a Notice of Review with LUBA within 21 days. The local govern- ment would transmit its record to LUBA within another 21 days and there would be a 77-day period for LUBA to receive briefs and arguments and to decide the case. There are exceptions to the 77-day rule and relief by way of mandamus (to force LUBA to decide immediately, rather than to make a particular decision) . The Board is allowed to publish its decisions in the form of official reports. LUBA' s grounds for review are limited to the constitutional statutory and procedur al aspects cts of local decision-making, as well as conformity to applicable local plans and ordinances. LUBA has the power to stay a local decision, but if it does, it must require a $5 , 000 bond so that, if the stay be unjustified, there is a reserve to pay damages, attorney fees and costs. LUBA is also given "post-acknowledgment" authority to review amendments to comprehensive plans and land use regulations after their acknowledgment, to review for conformity to the acknowledged plan or, if there is a departure from that plan or the regulation is not controlled by that plan, with the State-Wide Planning Goals. Judicial Review of LUBA Decisions - The Court of Appeals retains jurisdiction here , but its processes are speeded up. Appeal notices must be filed within 21 days of the LUBA decision and a further 7 days is given for LUBA to return its record. The Court of Appeals must hear oral argument within 42 days from the transmittal of the record and render a decision within 91 days of oral argument. The oral argument and decisional timelines are experimental and repealed as of 1985 . Additionally, those timelines do not include periods 1, 19 Y Ju l , Y o in which motions are decided and also allows the court to extend the time to serve "the ends of justice" . Again , time will tell whether the Task Force criticism over the length of the process of land use decision-making will be met. Other Matters - Many other issues are addressed in this 43-page Bill , including significant amendments to the periodic review process (under which plans and land use ordinances are reviewed at least every five years after acknowledgment to assure continued vitality and goal compliance) , limitations on new and amended goals being applied to local governments , and legislative interim studies of coastal and agricultural lands goals, among other things . -3- Conclusion - The 1983 legislation is a significant effort to retain the basic concensus over Oregon's land use system, while trimming perceived excesses. It will probably not stop the fourth effort to repeal or eviscerate that system. It probably accommodates local government and development interests a bit more than necessary. It probably contains provisions which are empty and misleading. But its approach is basically sound and reasonable. If there is an area of concern in , this legislative effort, it is a tendency to lose the balance of the federalized approach taken by Oregon in land use whereby the state would set and enforce standards (goals) and local governments would implement the same. The ability of DLCD to appeal most local government decisions, the statutory standards on economic development (despite their weakness) and exceptions , and a curious series of statutory requirements that local governments allow transmission towers in all zones bespeak more than just lobbying skill. Rather, these trends show a disturbing tendency toward state control over land use, which could destroy the concensus on which the Oregon system is based. -4_ • 62nd OREGON LEGISLATIVE ASSEMBLY-1983 Regular Session PREVIOUS AMENDMENTS By House May 16 (Bill not printed engrossed) SENATE AMENDMENTS TO HOUSE BILL 2295 By COMMITTEE ON ENERGY AND ENVIRONMENT .. . July 12 • Amended Summary Allows acknowledgment of comprehensive plan and land use regulations[in substantial compliance]which conform,on the whole,with purposes of goals. Allows acknowledgment of part of plan and regulations related to identifiable geographic area Authorizes[Land Conservation and Development Commission to direct] department to complete plans and regulations not acknowledged by July 1, 1984,if requested to do so by local government. Allows commission to direct State Treasurer to withhold state-shared revenues of city or county until plan and regulations acknowledged[,and to order city or county to adopt plan and regulations as completed by department]. Establishes time limits and procedures for periodic review of local government plans and regulations. Creates procedure for adoption of exceptions to goals. Changes certain local government permit procedures. Requires commission to amend goals to include certain provisions relating to economic development. [Creates Land Development Review Panel to replace Land Use Board of Appeals as of July 1, 151%3.] Authorizes[panel]Land Use Board of Appeals to review land use decisions[, including decisions]involving goal matters. Authorizes [panel] board to review amendments and new regulations. [Provides appeal to Court of Appeals.]Makes other changes in Land Use Board of Appeals procedures. [Makes related changes.] Declares[an]emergency,effective on passage. 1 Delete the printed House amendments dated May 16. 2 On page 1 of the printed bill,line 2,after"ORS"delete the rest of the line and lines 3 through 5 and insert 3 "34.020,92.044,92.046,92.105, 197.015, 197.090, 197.175, 197.180, 197.250, 197.251, 197.254, 197.255, 197.265, 4 197.320, 197.350, 197.395, 197.540, 197.610, 197.615, 197.620, 197.625, 197.640, 197.650, 203.113, 215.213, 5 215.416, 215.422, 227.175, 227.180, 268.390, 459.049, 527.726, 541.626, sections la, 2 and 2a, chapter 772, 6 Oregon Laws 1979 and section 3, chapter , Oregon Laws 1983 (Enrolled Senate Bill 318); repealing 7 ORS 197.605, 197.630, 197.635,sections 4,5,6,6a,28 and 29,chapter 772,Oregon Laws 1979,sections 9a,31, 8 59 and 61, chapter 748, Oregon Laws 1981, and section 51, chapter , Oregon Laws 1983 (Enrolled 9 House Bill 2452);and declaring an emergency.". 10 Delete lines 7 through 20 and pages 2 through 20 and insert: 11 "SECTION 1.ORS 197.015 is amended to read: v 12 "197.015. As used in ORS 197.005 to 197.430 and[197.605] 197.610 to 197.650,unless the context requires 13 otherwise: 14 "(1) 'Acknowledgment' means a commission order that certifies that a comprehensive plan and land use IS regulations,land use regulation or plan or regulation amendment[conforms]complies with the goals. 16 "(2)'Board'means the Land Use Board of Appeals or any member thereof. 17 "(3)`Commission'means the Land Conservation and Development Commission. 18 "(4)'Committee'means the Joint Legislative Committee on Land Use. 1 "(5) 'Comprehensive plan' means a generalized, coordinated land use map and policy statement of the 2 governing body of a local government that interrelates all functional and natural systems and activities relating 3 to the use of lands,including,but not limited to,sewer and water systems,transportation systems,educational 4 facilities, recreational facilities, and natural resources and air and water quality management programs. 5 'Comprehensive'means all-inclusive,both in terms of the geographic area covered and functional and natural 6 activities and systems occurring in the area covered by the plan. 'General nature'means a summary of policies 7 and proposals in broad categories and does not necessarily indicate specific locations of any area, activity or 8 use. A plan is 'coordinated'when the needs of all levels of governments,semipublic and private agencies and 9 the citizens of Oregon have been considered and accommodated as much as possible. `Land' includes water, 10 both surface and subsurface,and the air. 11 "(6)`Department'means the Department of Land Conservation and Development. 12 "(7)`Director'means the Director of the Department of Land Conservation and Development. 13 "(8) 'Goals' mean the mandatory state-wide planning standards adopted by the commission pursuant to 14 ORS 197.005 to 197.430 and[197.603]197.610 to 197.650. 15 "(9) 'Guidelines'mean suggested approaches designed to aid cities and counties in preparation, adoption 16 and implementation of comprehensive plans in compliance with goals and to aid state agencies and special 17 districts in the preparation,adoption and implementation of plans,programs and regulations in compliance with 18 goals. Guidelines shall be advisory and shall not limit state agencies,cities, counties and special districts to a 19 single approach. 20 "(10)'Land use decision'[means]: 21 "(a)Includes: 22 "[(a)] (A) A final decision or determination made by a local government or special district that concerns 23 the adoption,amendment or application of: 24 "[(A)](i)The goals; 25 "[(B)](ii)A comprehensive plan provision;[or] 26 "[(C)](iii)A land use regulation;or 27 "(iv)A new land use regulation;or 28 "[(b)] (S) A final decision or determination of a state agency other than the commission with respect to 29 which the agency is required to apply the goals. 30 "(b)Does not include a ministerial decision of a local government made under clear and objective standards 31 contained in an acknowledged comprehensive plan or land use regulation and for which no right to a hearing is 32 provided by the local government under ORS 215.402 to 215.422 or 227.160 to 227.180. 33 "(I I) 'Land use regulation' means any local government zoning ordinance, land division ordinance 34 adopted under ORS 92.044 or 92.046 or similar general ordinance establishing standards for implementing a 35 comprehensive plan. `Land use regulation'does not include small tract zoning map amendments, conditional 36 use permits,individual subdivision,partitioning or planned unit development approvals or denials,annexations, 37 variances,building permits and similar administrative-type decisions. 38 "(12) 'Local government' means any city, county or metropolitan service district formed under ORS ( 39 chapter 268 or an association of local governments performing land use planning functions under ORS 197.190. SA to HB 2295 Page 2 1 "(13)'New land use regulation'means a land use regulation other than an amendment to an acknowledged 2 land use regulation adopted by a local government that already has a comprehensive plan and land regulations 3 acknowledged under ORS 197.251. 4 "(14) `Person' means any individual, partnership, corporation, association, governmental subdivision or 5 agency or public or private organization of any kind. 6 "(15)'Special district'means any unit of local government,other than a city,county,metropolitan service 7 district formed under ORS chapter 268 or an association of local governments performing land use planning 8 functions under ORS 197.190 authorized and regulated by statute and includes, but is not limited to: Water 9 control districts,domestic water associations and water cooperatives,irrigation districts,port districts,regional 10 air quality control authorities,fire districts,school districts,hospital districts,mass transit districts and sanitary II districts. 12 "(16)'Voluntary association of local governments'means a regional planning agency in this state officially 13 designated by the Governor pursuant to the federal Office of Management and Budget Circular A-95 as a 14 regional clearinghouse. 15 "SECTION 2.ORS 197.090 is amended to read: 16 "197.090.(1)Subject to policies adopted by the commission,the director shall: 17 "[(IA(a)Be the administrative head of the department. 18 "[(2)] (b)Coordinate the activities of the department in its land conservation and development functions 19 with such functions of federal agencies,other state agencies,local governments and special districts. 20 "[(3)](c)Appoint,reappoint,assign and reassign all subordinate officers and employes of the department, 21 prescribe their duties and fix their compensation,subject to the State Personnel Relations Law. 22 "[(4)] (d) Represent this state before any agency of this state, any other state or the United States with 23 respect to land conservation and development within this state. 24 "[(5)1(e)Provide clerical and other necessary support services for the board. 25 "(2) Subject to local government requirements and the provisions of sections 31 to 34 of this 1983 Act, the 26 director may participate in and seek review of a land use decision involving the goals,acknowledged comprehensive 27 plan or land use regulation or other matter within the statutory authority of the department or commission under 28 ORS 197.005 to 197.430 and 197.610 to 197.650. The director shall report to the commission on each case in which 29 the department participates and on the positions taken by the director in each case. 30 "SECTION 3.ORS 197.175 is amended to read: 31 "197.175. (1) Cities and counties shall exercise their planning and zoning responsibilities, including, but 32 not limited to,a city or special district boundary change which shall mean the[incorporation or]annexation of 33 unincorporated territory by a city,the incorporation of a new city and the formation or change of organization of 34 or annexation to any special district authorized by ORS 198.705 to 198.955, 199.410 to 199.519 or 451.010 to 35 451.600, in accordance with ORS 197.005 to 197.430 and [197.603] 197.610 to 197.650 and the goals approved 36 under ORS 197.005 to 197.430 and[197605] 197.610 to 197.650. The commission shall adopt rules clarifying how 37 the goals apply to the incorporation of a new city. Notwithstanding the provisions of section 15 of this 1983 Act,the 38 rules shall take effect upon adoption by the commission. The applicability of rules promulgated under this section 39 to the incorporation of cities prior to the effective date of this 1983 Act shall be determined under the laws of this • 40 state. SA to HB 2295 Page 3 1 "(2)Pursuant to ORS 197.005 to 197.430 and[197.603]197.610 to 197.650,each city and county in this state 2 shall: CJ 3 "(a) Prepare, adopt, amend and revise comprehensive plans in compliance with goals approved by the 4 commission; 5 "(b)Enact land use regulations to implement their comprehensive plans; 6 "(c) Except as provided in [ORS 197.605 (6)1 subsection (7) of section 32 of this 1983 Act, if its 7 comprehensive plan and land use regulations have not been acknowledged by the commission, make land use 8 decisions in compliance with the goals;and 9 "(d)If its comprehensive plan and land use regulations have been acknowledged by the commission,make 10 land use decisions in compliance with the acknowledged plan and land use regulations. 11 "(3)Notwithstanding subsection(1)of this section,the commission shall not initiate by its own action any 12 annexation of unincorporated territory pursuant to ORS 222.111 to 222.750 or formation of and annexation of 13 territory to any district authorized by ORS 198.010 to 198.915 or 451.010 to 451.600. 14 "SECTION 3a.It is the intention of the Legislative Assembly in amending ORS 197.175(1)by section 3 of 15 this Act to correct grammatical inconsistencies in the amendments to ORS 197.175(1)by section 15, chapter 16 748,Oregon Laws 1981. It is not the intention of the Legislative Assembly to become involved in,or reflect on, 17 pending proceedings concerning incorporations proclaimed before the effective date of this Act. 18 "SECTION 4.ORS 197.180 is amended to read: 19 "197.180. (1) Except as provided in ORS 527.722, state agencies shall carry out their planning duties, 20 powers and responsibilities and take actions that are authorized by law with respect to programs affecting land 21 use: 22 "(a) In compliance with goals adopted or amended pursuant to ORS 197.005 to 197.430 and [197.603] 23 197.610 to 197.650;and 24 "(b)Except when a finding is made under ORS 197.640[(2)](3)(c),in a manner compatible with: 25 "(A)Comprehensive plans and land use regulations initially acknowledged under ORS 197.251;and 26 "(B) Amendments to acknowledged comprehensive plans or land use regulations or new land use 27 regulations acknowledged under ORS 197.625[(2)or 197.670(1)and(4)]. 28 "(2) Upon request by the commission, each state agency shall submit to the department the following 29 information: 30 "(a)Agency rules and summaries of programs affecting land use; 31 "(b)A program for coordination pursuant to ORS 197.040(2)(e); 32 "(c)A program for coordination pursuant to ORS 197.090[(2)1(IXb);and 33 "(d)A program for cooperation with and technical assistance to local governments. 34 "(3)Within 90 days of receipt, the director shall review the information submitted pursuant to subsection 35 (2)of this section and shall notify each agency if the director believes the rules and programs submitted are 36 insufficient to assure compliance with goals and compatibility with city and county comprehensive plans and 37 land use regulations. 38 "(4)Within 90 days of receipt of notification specified in subsection(3) of this section, the agency may 39 revise the rules or programs and resubmit them to the director. 40 "(5)The director shall make findings under subsections(3)and(4)of this section as to whether the rules 41 and programs are sufficient to assure compliance with the goals and compatibility with acknowledged city and SA to NB 2295 Page 4 n � , - 1 county comprehensive plans and.land use regulations, and shall forward the rules and programs'to the ' 2 commission for its action. The commission shall either certify the rules and programs as being in C.' 3 with the goals and compatible with the comprehensive plans and land use regulations of affected local 4 governments or shall determine the same to be insufficient. 5 "(6) Until state agency rules and programs are certified as being in compliance with the goals and • 6 compatible with applicable city and county comprehensive plans and land use regulations, the agency shall 7 make findings when adopting or amending its rules and programs as to the applicability and application of the 8 goals or acknowledged comprehensive plans,as appropriate. e 9 "c7)The commission shall adopt rules establishing procedures to assure that state agency permits affecting 10 land use are issued in compliance with the goals and compatible with acknowledged comprehensive plans and land 11 use regulations,as required by subsection(1)of this section. The rules shall prescribe the circumstances in which . • 12 state agencies may rely upon a determination of compliance or compatibility made by the affected city or county. 13 The rules shall allow a state agency to rely upon a determination of compliance by a city or county without an 14 acknowledged comprehensive plan and land use regulations only if the city or county determination is supported by • 15 written findings demonstrating compliance with the goals. Nothing in this subsection requires decisions made 16 under subsection(7)of section 32 of this 1953 Act to be reviewed for or include findings showing compliance with • 17 the goals. . • 18 "SECTION S.ORS 197.251 is amended•to read: 19 "197.251. (1) Upon the request of a local government, the commission shall by order grant, deny or . 20 continue acknowledgment of compliance with the goals. A commission order granting, denying or continuing 21 acknowledgment shall be entered within 90 days of the date of the request by the local government unless the 22 commission finds that d r►g ue to extenuating circumstances a period of time greater than 90 days is required. 23 "(2) In accordance with rules of the commission, the director shall prepare a report for the commission 24 stating whether the comprehensive plan and land use regulations for which acknowledgment is sought are in 25 compliance with the goals. The rules of the commission shall: 26 "(a) Provide a reasonable opportunity for persons to prepare and to submit to the director written 27 comments and objections to the acknowledgment request;and 28 "(b)Authorize the director to investigate and in the report to resolve issues raised in the comments and 29 objections or by the director's own review of the comprehensive plan and land use regulations. 30 "(3)Upon completion of the report and before the commission meeting at which the director's report is to 31 be considered,the director shall afford the local government and persons who submitted written comments or 32 objections a reasonable opportunity to file written exceptions to the report. 33 "(4) The commission's review of the acknowledgment request shall be confined to the record of 34 proceedings before the local government,any comments,objections and exceptions filed under subsections(2) 35 and(3)of this section and the report of the director. Upon its consideration of an acknowledgment request,the 36 commission may entertain oral argument from the director and from persons who filed written comments, 37 objections or exceptions. However,the commission shall not allow additional evidence or testimony that could 38 have been presented to the local government or to the director but was not. 39 "(5)A commission order granting,denying or continuing acknowledgment shall include a clear statement (--- 40 of findings which sets forth the basis for the approval,denial or continuance of acknowledgment. The findings 41 shall: Page 5 SA toHB2295 ., 1 "(a)Identify the goals with which the comprehensive plan and land use regulations comply and those with 2 which they do not comply;and 3 "(b) Include a clear statement of findings in support of the determinations of compliance and 4 noncompliance. 5 " "(6) A.commission order granting acknowledgment shall be limited to an Identifiable geographic area 6 described in the order if: 7 "(a)Only the identified geographic area is the subject of the acknowledgment request;or 8 n "(b)Specific geographic areas do not comply with the goals,and the goal requirements are not technical or 9 minor in nature. 10 "(7) The commission may issue a limited acknowledgment order only in the circumstances identified in 11 subsection(6)of this section and all plans and regulations shall be acknowledged in their entirety no later than July , • 12 1,1984,as required by subsection(1)of section 13 of this 1983 Act. 13 "(8)Notwithstanding the provisions of subsection(7)of this section and of subsection(1)of section 12 of this 14 1983 Act,the commission may issue or continue a limited acknowledgment order for a coastal area or for the area 15 within an urban growth boundary and outside the city limits after July 1,1984. 16 "(9)A limited acknowledgment order shall be considered an acknowledgment for all purposes and shall be a 17 final order for purposes of judicial review with respect to the acknowledged geographic area. A limited order may 18 be adopted in conjunction with a continuance cc denial order. 19 "[(6)1(10) The director shall notify the Real Estate Division, the local government and all persons who C 20 filed comments or objections with the director of any grant,denial or continuance of acknowledgment. 21 "[(7Jj(11)The commission may grant a planning extension,which shall be a grant of additional time for a 22 local government to comply with the goals in accordance with a compliance schedule. A compliance schedule 23 shall be a listing of the tasks which the local government must complete in order to bring its comprehensive 24 plan,land use regulations and land use decisions into initial[conformity]compliance with the goals,including a • 25 generalized time schedule showing when the tasks are estimated to be completed and when a comprehensive 26 plan or land use regulations which comply with the goals are estimated to be adopted. In developing a 27 compliance schedule,the commission shall consider the population,geographic area,resources and capabilities 28 of the city or county. 29 "[(8)1(12)As used in this section: i 30 "(a)`Continuance'means a commission order that: 31 "(A)Certifies that all or part of a comprehensive plan,land use regulations or both a comprehensive plan 32 and land use regulations do not comply with one or more goals; 33 "(B) Specifies amendments or other action that must be completed within a specified time period for 34 acknowledgment to occur;and 35 "(C)Is a final order for purposes of judicial.review of the comprehensive plan,land use regulations or both 36 the comprehensive plan and land use regulations as to the [goals with which] part of the plan, regulations or 37 both the plan and regulations that are in compliance with the goals. 38 "(b)`Denial'means a commission order that: 39 "(A)Certifies that a comprehensive plan,land use regulations or both a comprehensive plan and land use 40 regulations do not comply with one or more goals; 41 "(B)Specifies amendments or other action that must be completed for acknowledgment to occur;and . SA to l{B 2295 Page 6 1 "(C) Is used when the amendments or other changes required in the comprehensive plan, land use 2 regulations or both the comprehensive plan and land use regulations affect many goals and are likely to take a 3 substantial period of time to complete. 4 "SECTION 5a. Notwithstanding the provisions of ORS 197.251 (2Xa), a person may not submit written 5 comments and objections to the acknowledgment request of any city or county that submits its plan or 6 regulations to the commission for acknowledgment for the first time after the effective date of this Act,unless 7 the person participated either orally or in writing in the local government proceedings leading to the adoption of 8 the plan and regulations. 9 "SECTION 6.ORS 197.265 is amended to read: 10 "197.265. (1)As used in this section, `action [or suit]' includes but is not limited to a proceeding under 11 sections[4 to 6, chapter 772,argon Laws 1979,as amended by sections 35 to 36a,chapter 748,argon Laws . 12 /5457]31 to 34 of this 1983 Act. 13 "(2)If any[suit or]action is brought against a local government challenging any comprehensive plan,land 14 use regulation or other action of the local government which was adopted or taken for the primary purpose of 15 complying with the goals approved under ORS 197.240 and which does in fact comply with[such] the goals, 16 then the commission shall pay reasonable attorney fees and court costs incurred by such local government in 17 the action or suit including any appeal, to the extent funds have been specifically appropriated to the 18 commission therefor. 19 "SECTION 7.ORS 197.610 is amended to read: 20 "197.610. (1) A proposal to amend a local government acknowledged comprehensive plan or land use 21 regulation or to adopt a new land use regulation shall be forwarded to the director at least 45 days before the 22 final hearing on adoption. The proposal forwarded shall contain the text and any supplemental information that 23 the local government believes is necessary to inform the director as to the effect of the proposal. The director 24 shall notify persons who have requested notice that the proposal is pending. 25 "(2)Wheti a local government determines that the goals do not apply to a particular proposed amendment or 26 new regulation, notice under subsection(1)of this section is not required. In addition, a local government may 27 submit an amendment or new regulation with less than 45 days' notice if the local government determines that 28 there are emergency circumstances requiring expedited review. In both cases: 29 "(a)The amendment or new regulation shall be submitted after adoption as provided in ORS 197.615(1)and 30 (2);and 31 "(b)Notwithstanding the requirements of subsections(2)and(3)of section 31 of this 1983 Act,the director or 32 any other person may appeal the decision to the board under sections 31 to34 of this 1983 Act. 33 "[(2A(3)When the department participates in a local government proceeding,at least 15 days before the 34 final hearing on the proposed amendment to the comprehensive plan or land use regulation or the new land use 35 regulation,it shall notify the local government of: 36 "(a)Any concerns it has concerning the proposal;and 37 "(b)Advisory recommendations on actions it considers necessary to address the concerns, including,but 38 not limited to,suggested corrections to achieve compliance with the goals. (.. 39 "[(3, (4)The director shall report to the commission on whether the director: 40 "(a)Believes the local government's proposal violates the goals;and 41 "(b)Is participating in the local government proceeding. SAtOHR2295 Pagel f I "[(4)j(5)The commission may establish by rule a fee to cover the cost of notice given to persons by the 2 director under subsection(1)of this section. 3 "SECTION S.ORS 197.620 is amended to read: SF.C "I 4 "197.620, (1)[(a)]Notwithstanding the requirements of subsections(2)and(3)of section 31 of this 1983 Act, 5 persons who participated either orally or in writing in the local government proceedings leading to the adoption 6 of an amendment to an acknowledged comprehensive plan or land use regulation or a new land use regulation 7 may[mail or otherwise submit written objections to the dire=ctor and the local government not later than 30 days 8 • after the date of the final decision by the local government]appeal the decision to the Land Use Board of Appeals 9 under sections 31 to 34 of this 1983 Act. A decision.to not adopt a legislative amendment or a new land use 10 regulation is not appealable. 11 "[(b)The director may permit persons to mail or otherwise submit written objections on grounds that the- 12 director raised in the local government proceedings leading to the adoption of an amendment to an 13 acknowledged comprehensive plan or land use regulation or a new land use regulation. The objections must be 14 mailed or otherwise submitted to the director and the local government not later than 30 days after the date of the 15 final decision by the local government. However,the director shall not allow a filing under this paragraph unless 16 the director finds that the person filing the objection:] 17 "[(A)Was adversely affected or aggrieved by the final decision;and] 18 "[(B)Has demonstrated good cause why that person did not participate either orally or in writing in the 19 local government proceedings leading to the final adoption.] 20 "[(c)An objection filed under this subsection or subsection(3)of this section shall be treated in the same 21 manner as an appeal by the director under subsection(2)or(3)of this section.] 22 "[(2)Not later than 30 days after the final decision by the local government to adopt an amendment to an 23 acknowledged comprehensive plan or land use regulation or a new land use regulation, the director may file an 24 appeal of the amendment or new land use regulation with the commission if the department participated either 25 orally or in writing in the local government proceedings leading to the final adoption.] 26 "[(3)j (2) Notwithstanding the requirements of subsections (2) and (3) of section 31 of this 1983 Act, the 27 director or any other person may file an appeal of the local government's decision[with the commission and any 28 person may file an objection to that decision with the director] under sections 31 to 34 of this 1983 Act, if an 29 amendment to an acknowledged comprehensive plan or land use regulation or a new land use regulation differs 30 from the proposal submitted under ORS 197.610 to such a degree that the notice under ORS 197.610 did not 31 reasonably describe the nature of the local government final action. 32 "[(4Xa)Except as provided in subsection(3)of this section, neither the director nor a person appealing by 33 filing an objection may appeal on grounds which that party did not raise in the local government proceedings 34 leading to the final adoption.] 35 "[(b)An objection under subsection(1)of this section or an appeal under subsection(2)of this section shall 36 specify the alleged grounds of noncompliance of the amendment to the acknowledged comprehensive plan or 37 land use regulation or the new land use regulation with the goals.] 38 "SECTION 9.ORS 197.615 is amended to read: (.. 39 "197.615. (1)A local government that amends an acknowledged comprehensive plan or land use regulation 40 or adopts a new land use regulation shall mail or otherwise submit to the director a copy of the adopted text of 41 the comprehensive plan provision or land use regulation together with the findings adopted by the local SA to HB 2295 Page 8 I . 1 government. The text and findings must be mailed or otherwise submitted;not later than five working days after ( 2 the final decision by the governing body. If the proposed amendment or new regulation that the director 3 received under ORS 197.610 has been substantially amended, the local government shall specify the changes 4 that have been made in the notice provided to the director. 5 "(2Xa) Not later than five working days after the final decision,the local government also shall mail or 6 otherwise submit notice to persons who: 7 "(A)Participated in the proceedings leading to the adoption of the amendment to the comprehensive plan 8 or land use regulation or the new land use regulation;and 9 "(B)Requested of the local government in writing that they be given such notice. 10 "(b)The notice required by this subsection shall: 11 "(A)Describe briefly the action taken by the local government; 12 "(B)State the date of the decision; 13 "(C)List the place where and the time when the amendment to the acknowledged comprehensive plan or 14 land use regulation or the new land use regulation,and findings,may be reviewed;and 15 "(D)Explain the requirements for appealing the action of the local government under sections 31 to 34 of this 16 1983 Act[the submission of written objections to the director under ORS 197.626j. 17 "(3)Not later than five working days after receipt of an amendment to an acknowledged comprehensive 18 plan or land use regulation or a new land use regulation submitted under subsection (1) of this section, the 19 director shall notify by mail or other submission any persons who have requested notification. The notice shall: (,,,- 20 "(a)Explain the requirements for[the submission of written objections,] appealing the action of the local 21 government under sections 31 to 34 of this 1983 Act;and 22 "[(b)State the deadline by which objections must be received by the director and the local government;and] 23 "[(c)](b)List the locations where the comprehensive plan or land use regulation amendment or new land 24 use regulation may be reviewed. 25 "[(4)The commission may establish by rile a fee to cover the cost of notice given to persons by the director 26 under subsection(3)of this section.] 27 "SECTION 10.ORS 197.625 is amended to read: 28 "197.625. [(1) The commission shall dismiss any appeal or objection filed under ORS 197.620 if it 29 determines at any time after the submission and notice required by ORS 197..615(1)that an amendment to an 30 acknowledged land•use regulation or a new land use regulation is consistent with specific related land use 31 policies contained in the acknowledged comprehensive plan. A dismissal under this subsection is a final order.] ? 32 "[(2)](1)If no notice of intent to appeal[or objection]is filed[under ORS 197.62(1]within the 21-day period 33 set out in subsection(7)of section 31 of this 1983 Act,the amendment to the acknowledged comprehensive plan 34 or land use regulation or the new land use regulation shall be considered acknowledged upon the expiration of 35 the[30-day]21-day period[following the final decision by the local government]. • 36 "(2)if the decision adopting an amendment to an acknowledged comprehensive plan or land use P P a regulation or 37 a new land use regulation is affirmed on appeal under sections 31 to 35 of this 1983 Act,the amendment or new 38 regulation shall be considered acknowledged upon the date the appellate decision becomes final. 39 "(3)The director[, upon request,] shall issue certification of the acknowledgment[after the expiration of 40 the 30-day period]upon receipt of an affidavit from the board stating either; 41 "(a)That no appeal was filed within the 21 days allowed under subsection(7)of section 31 of this 1983 Act;or SA to HB 2295 Page 9 J P 1 "(b)The date the appellate decision affirming the adoption of the amendment or new regulation became final. 2 "(4)The board shall issue an affidavit for the purposes of subsection (3)of this section within five days of 3 receiving a valid request from the local government. 4 "[(3)(a)If an objection or appeal is filed under ORS 197.620, within 3S days after the final decision the 5 director shall nail notice to the local government listing ail objections and appeals concerning the amendment to 6 the acknowledged comprehensive plan or land use regulation or the new land use regulation and requesting that a 7 record be submitted. The local government shall file the record of proceedings relating to the grounds raised in 8 the objections and appeals not later than 60 days after the final decision of the local government. Upon receipt 9 of the record,the director shall notify all persons who submitted objections that the record has been received and 10 of the location where the record may be reviewed] 11 "[(b)The commission may prescribe by rule the form and content of records. However,the form, content 12 and time for frling or supplementing the record may be determined by stipulation of all the parties.] 13 "[(4) Within five days after receipt of the record from the local government, the director shall refer the 14 objection or appeal to the commission for action. The referral shall consist of] 15 "[(a)The text,the findings and any other materials the local government has submitted,1 16 "[(b)The objections received by and the appeals initiated by the director;and] 17 "[(c)The record before the local government.] 18 "[(5)The commission shall establish by ride a deposit to be paid by a person filing an objection to cover the 19 cost of preparation of the record by the local government. The amount of the deposit shall not exceed$50. The 20 local government shall be awarded the deposit if the commission acknowledges the amendment to the 21 acknowledged comprehensive plan or land use regulation or the new land use regulation under ORS 197 630. The 22 deposit shall be refunded to the person who filed the objection if the commission invalidates the amendment or I 23 new land use regulation under ORS 197.630.] 24 "SECTION 11.ORS 197.640 is amended to read: 25 "197.640. (1) [Not later than two years] After its decision to initially acknowledge a local government's 26 comprehensive plan and land use regulations[pursuant to]under ORS 197.251 [and periodically thereafter on a 27 schedule to be established by it but in no case less frequently than once every five years],the commission shall 28 periodically review each local government's comprehensive plan and land use regulations to insure that they are 29 in compliance with the goals and are coordinated with the plans and programs of state agencies. Periodic review 30 shall be conducted in accordance with a schedule to be established by the conunission,but unless requested at an ■ 31 earlier date by the local government: 32 "(a)No review shall be conducted before July 1,1984; 33 "(b)No comprehensive plan and land use regulations shall be reviewed sooner than two years after the plan 34 and regulations are acknowledged under ORS 197.251; 35 "(c)The first periodic review shall be two to five years after acknowledgement under ORS 197.251;and . 36 "(d)All subsequent reviews shall be three to five years after the previous review. 37 "(2) When feasible, the schedule for periodic review shall be based upon the dates contained in 38 acknowledged comprehensive plans. In addition, the commission shall attempt to schedule the review on a ( 39 regional basis in order that the county and city plans in a geographic area of common interest will be reviewed 40 together. SA to HB'2295 Page 10 1 "[(2)](3)The review required by this section shall be conducted in the manner provided in subsections[(3) 2 to(.f)](4)to(8)of this section and sections llb to 11f of this 1983 Act. [Upon completion of its]Through the 3 review,the [commission shall take action as provided in subsection(6)of this section if it finds that:]city or 4 county shall determine if any of the following factors apply and take any action necessary to bring the plan and 5 regulations Into compliance with the goals or to make them consistent with state agency plans and programs: 6 "(a)There has been a substantial change in circumstances, including,but not limited to,the conditions, 7 findings or assumptions upon which the comprehensive plan or land use regulations were based, so that the 8 comprehensive plan or land use regulations do not comply with the goals; 9 "(b)Previously acknowledged provisions of the comprehensive plan or land use regulations do not comply 10 with the goals because of goals subsequently adopted or state-wide land use policies adopted as rules 11 interpreting goals under ORS 197.040; 12 "(c)The comprehensive plan or land use regulations are inconsistent with a state agency plan or program 13 relating to land use that was not in effect at the time the local government's comprehensive plan was 14 acknowledged,and the agency has demonstrated that the plan or program: '15 "(A)Is mandated by state statute or federal law; 1 16 "(B)Is consistent with the goals;and 17 "(C)Has objectives that cannot be achieved in a manner consistent with the comprehensive plan or land 18 use regulations;or 19 "(d)The city or county has not performed additional planning that: 20 "(A)Was required in the comprehensive plan or land use regulations at the time of initial acknowledgment 21 or that was agreed to by the city or county in the receipt of state grant funds for review and update;and 22 "(B)Is necessary to make the comprehensive plan or land use regulations comply with the goals. 23 "(4)The department shall notify each local government in writing at least 180 days before the date established 24 by the commission for periodic review of the local government plan and land use regulations. The notice shall: 25 "(a) Notify the local government of its responsibility to conduct a review of its plan and regulations to 26 determine whether the factors listed in subsection(3)of this section apply,and to submit a proposed review order 27 to the department not later than the date established by the commission for periodic review;and 28 "(b)Advise the local government of: 29 "(A) Any goals adopted, or state-wide land use policies adopted as rules interpreting goals, subsequent to 30 acknowledgment of the local government's plan and regulations; "' 31 "(B)Any applicable state agency plan or program described in paragraph(c)of subsection(3)of this section; 32 and . 33 "(C)Any additional planning responsibilities as described in paragraph(d)of subsection(3)of this section. 34 "(5)The local government shall conduct a review of its plan and regulations and,on or before the date set by 35 .the conunlssior,shall submit its proposed review order to the department. The local government shall notify the 36 department of the date set for final hearing on the proposed order,which shall be at least 90 days after the date the 37 proposed order is submitted to the department.The proposed review order shall be accompanied by: 38 "(a)Findings that none of the factors in paragraphs(a)to(d)of subsection(3)of this section apply and the e39 comprehensive plan and land use regulations continue to be in compliance with the goals and coordinated with ti. 40 state agency plans and programs;or SA to 1-113 2295 Page 11 1 "(b) Proposed amendments to the cmnpreheeuive plan or land use regulations or proposed new land use 2 regulations that the local government finds necessary to bring the plan or regulations into compliance with the 3 goals or with state agency plans or programs because of the applicability of one or more of the factors in 4 paragraphs(a)to(d)of subsection(3)of this section. • 5 "(6)The director shall mail or otherwise submit notice to persons who have requested notice that the proposal 6 is pending,of their opportunity to participate in the local government's proceedings,and of the times and places 7 where the local government's proposal and accompanying documents may be reviewed. 8 "(7) At least 30 days before the local government's final hearing on the proposed review order, the 9 department shall notify the local government of: 10 "(a) Any concerns it has about the proposal's compliance with requirements identified by the department 11 under paragraph(b)of subsection(4)of this section;and 12 "(b)Advisory recommendations on actions it considers necessary to address the concerns,including,but not 13 limited to,suggested corrections to meet these requirements. 14 "(8)At any time before the local government adopts a final review order,the local government may submit 15 another proposed review order to the department under subsection (5) of this section. The new proposal shall 16 supersede the previous proposed review order and shall be subject to all the requirements of this section and 17 sections llb to 11f of this 1983 Act. 18 "[(3)In accordance with procedural rules of the commission,the director shall prepare a report addressing 19 the considerations stated in paragraphs(a)to(d)of subsection(2)of this section. The procedural rules of the C. 20 commission shall.] 21 "[(a)Provide a reasonable opportunity for persons to prepare.and submit to the director written comments 22 and objections addressing considerations stated in paragraphs(a)to(d)of subsection(2)of this section;anti] . 23 "[(b)Authorize the director to investigate and in the report to resolve issues raised in the comments and 24 objections or by the director's own review of the comprehensive plan and land use regulations.] 25 "[(4)Upon completion of the report and before the commission meeting at which the director's report is to • 26 be considered, the director shall afford the local government and the persons who submitted written comments 27 and objections a reasonable opportunity to file exceptions to the report.] 28 "[(S) The commission's review shall be confined to the record of any proceedings before the local 29 government held in preparation for periodic review, any comments, objections or exceptions filed under 30 subsections(3)and(4)of this section and the director's report. The commission may entertain oral argument 31 from the director and from persons who filed comments or objections. However, the commission shall not allow 32 additional evidence or testimony.] 33 "[(6)(a)At the conclusion of the review under subsection(5)of this section, the commission shall enter an 34 order that:] 35 "[(A) Terminates periodic review if it finds that none of the conditions stated in paragraphs(a)to(d)of 36 subsection(2)of this section exist;or] 37 "[(B) Requires the local government to amend its acknowledged comprehensive plan and land use 38 regulations to comply with the commissions findings.] 39 "[(b)An order under subparagraph(B)of paragraph(a)of this subsection shall specify a reasonable time 4• 40 for the local government to bring its comprehensive plan and land use regulations into compliance with the 41 commission's findings.] SA to HB 2295 Page 12 . I 1 "[(17 Me director shall notify the Real Estate Division, the local government and all persons who filed I s 2 comments or objections of the commission's order.] ' 3 "SECTION l la.Sections l lb to 1 if of this Act are added to and made a part of ORS 197.610 to 197.650,. 4 "SECTION 11b.(1)A local government shall mail or otherwise submit to the director a copy of the final 5 review order, including the adopted text of any comprehensive plan provision or land use regulation, the 6 findings adopted by the local government and any supplemental information the local government believes 7 necessary to inform the director of the effect of the order. The order, text and findings shall be mailed or 8 otherwise submitted not later than five working days after the final decision by the governing body. If the 9 proposed final review order, text or findings that the director received under ORS 197.640 (5) have been 10 substantially amended, the local government shall specify the changes that have been made in the notice 11 provided to the director. 12 "(2Xa) Not later than five working days after the final action, the local government shall also mail or 13 otherwise submit notice to persons who: 14 "(A)Participated in the proceedings leading to the adoption of the final review order;and 15 "(B)Requested of the local government in writing that they be given such notice. 16 "(b)The notice required by this subsection shall: 17 "(A)Describe briefly the action taken by the local government; 18 "(B)State the date of the decision; 19 "(C)List the place where and the time when the final review order,findings and text may be reviewed;and 20 "(D)Explain the requirements for the submission•of written objections to the director under section 11c of 21 this 1983 Act. 22 "(3)Not later than five working days after receipt of a final review order submitted under subsection(1)of 23 this section,the director shall mail or otherwise submit notice to any persons who have requested notice. The 24 notice shall: 25 "(a)Explain the requirements for the submission of written objections; 26 "(b)State the deadline by which objections must be received by the director and the local government;and 27 "(c)List the locations where the final review order,findings and text may be reviewed. 28 "SECTION Ile. (1) Except as provided in subsection (2) of this section, only persons who participated 29 either orally or in writing in the local government proceedings leading to the adoption of the final review order 30 may file an objection to the final review order with the director and the local government. 31 "(2)Any person may file an objection to the final review order with the director and the local government 32 if the final review order differs from the proposed order submitted under ORS 197.640(5)to such a degree that . 33 the notice did not reasonably describe the nature of the local government's final action. 34 "(3)An objection filed under this section shall: 35 "(a)Be in writing; 36 "(b)Be mailed or otherwise submitted not later than 30 days after the date of the final action by the local 37 government; 38 "(c) Be limited to those issues raised by the objector in the proceedings before the local government, 39 unless the final review order differs from the proposed order to such a degree that the notice did not reasonably 40 describe the nature of the local government's final action;and SA to HB 2295 Page 13 L ' 1 C" f I "(d) Specify the alleged grounds upon which the final review order does adequately respond to the 2 applicable standards of ORS 197.640(3). 3 "SECTION lid.(1)The director shall review the local government's final review order and any objections 4 filed with the director, and not later than 60 days after receipt of the final review order, take,one of the 5 following actions: 6 "(a)Issue an order terminating periodic review,based on findings that the requirements of ORS 197.640(3) 7 are met or do not apply;or .8 "(b)Prepare and submit to the commission a report addressing the standards of ORS 197.640(3),the local 9 government's final review order and any objections filed with the director,together with a recommendation for 10 approval or for an order requiring amendments to the plan or regulations or adoption of new regulations. ti "(2) The director shall notify the local government and any objectors of the action taken under this 12 section: Any objector may appeal to the commission the director's order terminating periodic review within 30 13 days following the mailing of notice by the director under this subsection. In any appeal under this subsection, 14 the director shall prepare and submit a report in the manner provided in paragraph(b)of subsection(1)of this 15 section: 16 "SECTION Ile.(1)Within 60 days following the submittal of a report under paragraph(b)of subsection(1) 17 of section lid of this 1983 Act,or within such other time as may be stipulated by all the parties,the commission 18 shall issue a final order in accordance with subsection(4)of this section. 19 "(2)Commission review of a final review order shall be conducted as follows: 20 "(a)Upon completion of the director's report and at least 20 days before the commission meeting at which 21 the review of the final review order is to be considered, the director shall afford the local government and i 22 persons who submitted objections a reasonable opportunity to review the director's report and the objections 23 and to submit written exceptions to the report and the objections. 24 "(b) The local government and persons who submitted objections shall be afforded reasonable written 25 notice of the time and place of the commission's review. 26 "(c) In its review of the final review order, the commission shall provide for oral argument from the 27 director,the local government and persons who filed objections. 28 "(d)The commission's review of the final review order shall be confined to the record,which shall consist 29 of: 30 "(A)Any objections to the final review order filed with the director under section I lc of this 1983 Act; 31 "(B)The final review order,including findings,the text of any amendments or new regulations and other 32 materials submitted by the local government; . 33 "(C)The acknowledged comprehensive plan and land use regulations of the local government;and 34 "(D)The director's report,the written exceptions filed to the director's report and the oral arguments. 35 "(3)The commission may adopt rules for the conduct of the review described in subsection (2) of this 36 section. 37 "(4)At the conclusion of the review under subsection(2)of this section, the commission shall enter an 38 order: 39 "(a) Affirming the final review order of the local government and terminating periodic review if the 40 commission finds the final review order adequately responds to the applicable standards of ORS 197.640(3);or SA to HB 2295 Page 14 . • 1 "(b) Requiring the local government to'amend its acknowledged comprehensive plan and land use C 2 regulations to adequately respond to the standards of ORS 197.640(3). 3 An order under paragraph(b)of subsection(4)of this section shall specify a reasonable time for the "(5) Pm'aBmP 4 local government to bring its comprehensive plan and land use regulations into compliance with the 5 commission's order. 6 "(6)The director shall notify the Real Estate Division,the local government and all persons who filed 7 comments or objections of the commission's order. 8 "(7)Notwithstanding the requirements of ORS 197.640(4)to(8)and sections 1 lb to l le of this 1983 Act, 9 the commission shall adopt rules establishing a simplified and expedited periodic review procedure for: 10 "(a)Cities with a population under 2,500 within the urban growth boundary; 11 "(b)Counties with a population under 5,000;and . 12 "(c) Counties within which there are no cities with a population over 2,500 within the urban growth 13 boundary. 14 "SECTION 111.The commission may establish by rule fees to cover the cost of notice given to persons by 15 the director under ORS 197.615(3),197.640(6)and subsection(3)of section 1 lb of this 1983 Act. 16 "SECTION 12. (1) Except as provided in section 13 of this Act, comprehensive plans and land use 17 regulations required under ORS 197.175 shall be submitted to the commission for acknowledgment no later than 18 January 1,1984. Except as provided in section 13 of this Act or ORS 197.251(8),all comprehensive plans and 19 land use regulations shall be acknowledged in their entirety no later than July 1,1984. 20 "(2) If a local government does not submit its comprehensive plan and land use regulations for 21 acknowledgment by January 1, 1984,or the comprehensive plan and land use regulations are not acknowledged I 22 in their entirety by July 1,1984: 23 "(a)The commission may enter an order under ORS 197.320;and 24 "(b)If the local government is not making progress towards acknowledgment and a good faith effort to 25 meet deadlines, the commission shall notify the officer responsible for disbursing state-shared revenues to 26 withhold that portion of the state-shared revenues to which the local government is entitled under ORS 221.770, 27 323.455, 366.525, 366.800 or 471.810 which represents the proportion of total state planning grant moneys 28 previously provided the local government by the commission to the amount of the local government 29 comprehensive plan which is not submitted or acknowledged. If state-shared revenues are withheld,the local 30 government may certify to the commission costs incurred after that withholding for completion of its 31 comprehensive plan in accordance with the commission order. The commission shall review those costs and 32 certify those costs it deems reasonable to the officer responsible for disbursing state-shared revenues. The 33 officer shall withhold the amount of state-shared revenues identified by the commission and release all of that 34 amount when the officer receives notice from the commission that the plan and regulations have been 35 submitted or acknowledged, whichever is applicable, or release those costs incurred by the local government . 36 which the commission certifies to the officer. 37 "(3)If a local government's plan and regulations are not acknowledged in their entirety by July 1, 1984,at 38 the request of the local government,the department may complete the plan and regulations. 39 "SECTION 12a.Sections 13 to 19a of this Act are added to and made a part of ORS 197.610 to 197440. 40 "SECTION 13. Cities incorporated after January 1, 1982, shall have their comprehensive plans and land 41 use regulations acknowledged under ORS 197.251 no later than four years after the date of incorporation. SA to HB 2295 Page 15 1 "SECTION 14.For the purposes of acknowledgment under ORS 197.251 and periodic review under ORS 2 . 197.640 and sections l lb to l le of this 1983 Act,`compliance with the goals'means the comprehensive plan and 3 regulations, on the whole, conform with the purposes of the goals and any failure to meet individual goal 4 requirements is technical or minor in nature. S "SECTION 15.Unless a local government so chooses,a local government need not comply with a new or 6 amended goal or rule adopted under a goal until after the comprehensive plan and land use regulations of the 7 local government are acknowledged under ORS 197.251,if the new or amended goal or rule was adopted after 8 January 1,1983,but before January 1,1985. 9 "SECTION 16.It was the intent of the Legislative Assembly in enacting ORS chapters 197,215 and 227 not 10 to prohibit, deter, delay or increase the cost of appropriate development, but to enhance economic • 11 development and opportunity for the benefit of all citizens. 12 "SECTION 17.(1)In addition to the findings and policies set forth in ORS 197.005, 197.010 and 215.243, 13 the Legislative Assembly finds and declares that,in carrying out state-wide comprehensive land use planning, 14 the provision of adequate opportunities for a variety of economic activities throughout the state is vital to the 15 health,welfare and prosperity of all the people of the state. 16 "(2) By the adoption of new goals or rules, or the application, interpretation or amendment of existing 17 goals or rules,the commission shall implement all of the following: 18 "(a)Comprehensive plans shall include an analysis of the community's economic patterns,potentialities, 19 strengths and deficiencies as they relate to state and national trends. 20 "(b)Comprehensive plans shall contain policies concerning the economic development opportunities in the 21 community. 22 "(c)Comprehensive plans and land use regulations shall provide for at least an adequate supply of sites of 23 suitable sizes, types, locations and service levels for industrial and commercial uses consistent with plan 24 policies. 25 "(d)Comprehensive plans and land use regulations shall provide for compatible uses on or near sites zoned 26 for specific industrial and commercial uses. 27 "(e) A city or county shall develop and adopt a public facility plan for areas within an urban growth 28 boundary containing a population greater than 2,500 persons. The public facility plan shall include rough cost 29 estimates for public projects needed to provide sewer,water and transportation for the land uses contemplated 3') in the comprehensive plan and land use regulations. Project timing and financing provisions of public facility 31 plans shall not be considered land use decisions. 32 "(f)In accordance with ORS 197.180,state agencies that provide funding for transportation,water supply, • 33 sewage and solid waste facilities shall identify in their coordination programs how they will coordinate that 34 funding with other state agencies and with the public facility plans of cities and counties. In addition, state 35 agencies that issue permits affecting land use shall identify in their coordination programs how they will 36 coordinate permit issuance with other state agencies and cities and counties. 37 "(g)Local governments shall provide: 38 "(A)Reasonable opportunities to satisfy local and rural needs for residential and industrial development 39 and other economic activities on appropriate lands outside urban growth boundaries, in a manner consistent 40 with conservation of the state's agricultural and forest land base;and SA to HB 2295 Page 16 i 1 "(B) Reasonable opportunities for urban residential, commercial and industrial needs over time through (r--- 2 changes to urban growth boundaries. 3 "(3)A comprehensive plan and land use regulations shall be in compliance with this section by the first 4 periodic review of that plan and regulations under ORS 197.640. 5 "SECTION 18.(1)State agencies shall provide technical assistance to local governments in: 6 "(a) Planning and zoning land adequate in amount, size, topography, transportation access and 7 surrounding land use and public facilities for the special needs of various industrial and commercial uses; 8 "(b)Developing public facility plans;and 9 "(c)Streamlining local permit procedures. 10 "(2)The Economic Development Department shall provide a local government with `state and national 11 trend'information to assist in compliance with paragraph(a)of subsection(2)of section 17 of this 1983 Act. 12 "(3) The commission shall develop model ordinances to assist local governments in streamlining local 13 permit procedures. 14 "SECTION 19. (1) Lands within urban growth boundaries shall tie available for urban development 15 concurrent with the provision of key urban facilities and services in accordance with locally adopted 16 development standards. 17 "(2)Notwithstanding subsection(1)of this section, lands not needed for urban uses during the planning 18 period may be designated for agricultural,forest or other nonurban uses. 19 "SECTION 19a.(1)A local government may adopt an exception to a goal when: (.... 20 "(a)The land subject to the exception is physically developed to the extent that it is no longer available for 21 uses allowed by the applicable goal; 22 "(b)The land subject to the exception is irrevocably committed as described by commission rule to uses 23 not allowed by the applicable goal because existing adjacent uses and other relevant factors make uses allowed 24 by the applicable goal impracticable;or 25 "(c)The following standards are met: 26 "(A)Reasons justify why the state policy embodied in the applicable goals should not apply; 27 "(B)Areas which do not require a new exception cannot reasonably accommodate the use; 28 "(C)The long term environmental,economic,social and energy consequences resulting from the use at the 29 proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would 30 typically result from the same proposal being located in areas requiring a goal exception other than the 31 proposed site;and 32 "(D)The proposed uses are compatible with other adjacent uses or will be so rendered through measures 33 designed to reduce adverse impacts. 34 "(2) Compatible, as used in subparagraph (D) of paragraph (c) of subsection (1) of this section, is not 35 intended as an absolute term meaning no interference or adverse impacts of any type with adjacent uses. . 36 "(3)The commission shall adopt rules establishing under what circumstances particular reasons may or 37 may not be used to justify an exception.under subparagraph (A) of paragraph (c) of subsection (2) of this 38 section. Cf: 39 "(4)A local government approving or denying a proposed exception shall set forth findings of fact and a 40 statement of reasons which demonstrate that the standards of subsection(1)of this section have or have not 41 been met. SA to HB 2295 Page 17 1 "(5)Each notice of a public hearing on a proposed exception shall specifically note that a goal exception is 2 proposed and shall summarize the issues in an understandable manner. 3 "(6)Upon review of a decision approving or denying an exception: 4 "(a)The board or the commission shall be bound by any finding of fact for which there is substantial 5 evidence in the record of the local government proceedings resulting in approval or denial of the exception; 6 "(b)The board upon petition,or the commission,shall determine whether the local government's findings 7 and reasons demonstrate that the standards of subsection(1)of this section have or have not been met;and 8 "(c)The board or commission shall adopt a clear statement of reasons which sets forth the basis for the • 9 determination that the standards of subsection(I)of this section have or have not been met. 10 "(7)The commission shall by rule establish the standards required to justify an exception to the definition 11 of'needed housing'authorized by ORS 197.303(3). 12 "(8)As used in this section,`exception' means a comprehensive plan provision,including an amendment 13 to an acknowledged comprehensive plan,that: 14 "(a)Is applicable to specific properties or situations and does not establish a planning or zoning policy of 15 general applicability; 16 "(b)Does not comply with some or all goal requirements applicable to the subject properties or situations; 17 and 18 "(c)Complies with standards under subsection(1)of this section. 19 "(9)An exception acknowledged under ORS 197.251, 197.625 or 197.630(1)(1981 Replacement Part)on or 20 before the effective date of this 1983 Act shall continue to be valid and shall not be subject to this section. 21 "SECTION 19b. The commission shall amend the goals and other rules, as necessary, to make them 22 consistent with the provisions of section 19a of this Act no later than January 1, 1984. To the extent existing 23 goals or rules are consistent with section 1%of this Act,they remain in effect unless revised or repealed by the 24 commission. On and after the effective date of this Act,an exception shall only be taken according to section 25 19a of this Act,notwithstanding any existing provisions of the goals or other rules governing exceptions to the 26 goals. 27 "SECTION 19c. The commission shall review the coastal goals and report to the committee before the 28 beginning of the Sixty-third Legislative Assembly on recommended changes to those goals. 29 "SECTION 19d.The committee shall study the Agricultural Land Evaluation and Site Assessment System 30 and make recommendations to the Sixty-third Legislative Assembly on the merits of using it rather than the 31 Soil Capability Classification System of the United States Soil Conservation Service for classifying land for the 32 purposes of the goals. 33 "SECTION 19e.ORS 92.044 is amended to read: 34 "92.044. (1)The governing body of a county or a city shall,by regulation or ordinance,adopt standards 35 and procedures,in addition to those otherwise provided by law,governing,in the area over which the county or 36 the city has jurisdiction under ORS 92.042, the submission and approval of tentative plans and plats of 37 subdivisions and governing the submission and approval of tentative plans and maps of major partitions. 38 "(a) Such standards may include, taking into consideration the location and surrounding area of the C� 39 proposed subdivisions or the proposed major partitions,requirements for: 40 "(A) Placement of utilities,for the width and location of streets or for minimum lot sizes and such other 41 requirements as the governing body considers necessary for lessening congestion in the streets; SA to HB 2295 Page 18 1 "(B)Securing safety from fire,flood,slides,pollution or other dangers; • 2 "(C) Providing adequate light and air including protection and assurance of access to incident solar 3 radiation for potential future use; 4 "(D)Preventing overcrowding of land; 5 "(E) Facilitating adequate provision of transportation, water supply, sewerage, drainage, education, 6 recreation or other needs;or 7 "(F) Protection and assurance of access to wind for potential electrical generation or mechanical 8 application. 9 "(b) Such ordinances or regulations shall establish the form and contents of tentative plans of major 10 partitions and subdivisions submitted for approval and shall establish the form and contents of maps of major 11 partitions for filing upon approval with the county recording officer. 12 "(c)The procedures established by each such ordinance or regulation shall provide for the coordination in 13 the review of the tentative plan of any subdivision or major partition with all affected city, county, state and 14 federal agencies and all affected special districts. 15 "(2Xa)The governing body of a city or county may provide for the delegation of any of its lawful functions 16 with respect to subdivisions and major partitions to the planning commission of the city or county or to an 17 official of the city or county appointed by the governing body for such purpose. 18 "(b) If an ordinance or regulation adopted -der this section includes the delegation to a planning 19 commission or appointed official of the power to take final action approving or disapproving a tentative plan 20 for a subdivision or major partition,such ordinance or regulation shall also provide for appeal to the governing 21 body from such approval or disapproval and require initiation of any such appeal within 30 days after the date 22 of the approval or disapproval from which the appeal is taken. 23 "(c)The governing body may establish,by ordinance or regulation,a fee to be charged for an appeal under 24 this subsection. Tice fee shall be reasonable and shall be no more than the average cost of such appeals or the actual 25 cost of the appeal,excluding the cost of preparation of a written transcript. The governing body may establish a fee 26 for the preparation of a written transcript. That fee shall be reasonable and shall be no more than the actual cost of 27 the transcript up to$500 plus one-half the actual costs over$500. 28 "(3) The governing body may, by ordinance or regulation, prescribe fees sufficient to defray the costs 29 incurred in the review and investigation of and action upon proposed subdivisions that are submitted for 30 approval pursuant to this section. As used in this subsection, `costs'does not include costs for which fees are 31 prescribed under ORS 92.100 and 205.350. 3Z "(4) The governing body may, by ordinance or regulation, prescribe fees sufficient to defray the costs 33 incurred in the review and investigation of and action upon proposed major partitions that are submitted for 34 approval pursuant to this section. 35 "(5) Ordinances and regulations adopted under this section shall be adopted in accordance with ORS 36 92.048. 37 "(6)Any ordinance or regulation adopted under this section shall comply with the comprehensive plan for 38 the city or county adopting the ordinance or regulation. 39 "(7)For the purposes of this section: 40 "(a)'Incident solar radiation'means solar energy falling upon a given surface area. SA to NB 2295 Page 19 1 "(b) 'Windy means the natural movement of air at an annual average speed measured at a height of 10 2 meters of at least eight miles per hour. 3 "SECTION 19f.ORS 92.046 is amended to read: 4 "92.046. (1)The governing body of a county or a city may,as provided in ORS 92.048,when reasonably 5 necessary to accomplish the orderly development of the land within the jurisdiction of such county or city 6 under ORS 92.042 and to promote the public health, safety and general welfare of the county or city, adopt 7 regulations or ordinances requiring approval,by the county or city of proposed partitions not otherwise subject 8 to approval under a regulation or ordinance adopted pursuant to ORS 92.044. Such regulations or ordinances 9 may be applicable throughout the area over which the county or city has jurisdiction under ORS 92.042,or over 10 any portion thereof. Such ordinances or regulations may specify the classifications of such partitions which • 11 require approval under this section and may establish standards and procedures governing the approval of 12 tentative plans for such partitions. The standards may include all,or less than all,of the same requirements as 13 are provided or authorized for subdivisions under ORS 92.010 to 92.160 and may provide for different 14 standards and procedures for different classifications of such partitions so long as the standards are no more 15 stringent than are imposed by the city or county in connection with subdivisions. 16 "(2)Such ordinances or regulations may establish the form and contents of the tentative plans of minor 17 partitions submitted for approval and may establish adequate measures for the central filing,including but not 18 limited to recording with the city recorder or the county recording officer,and for the maintenance of tentative 19 plans for minor partitions following approval. c 20 "(3Xa)The governing body of a city or county may provide for the delegation of any of its lawful functions 21 with respect to minor partitions to the planning commission of the city or county or to an official of the city or 22 county appointed by the governing body for such purpose. 23 "(b) If an ordinance or regulation adopted under this section includes the delegation to a planning 24 commission or appointed official of the power to take final action approving or disapproving a tentative plan 25 for a minor partition, such ordinance or regulation shall also provide for appeal to the governing body from 26 such approval or disapproval and require initiation of any such appeal within 10 days after the date of the 27 approval or disapproval from which the appeal is taken. 28 "(c)The governing body may establish,by ordinance or regulation, a fee to be charged for an appeal under 29 this subsection. The fee shall be reasonable and shall be no more than the average cost of such appeals or the actual 30 cost of the appeal,excluding the cost of preparation of a written transcript. The governing body may establish a fee • 31 for the preparation of a written transcript. That fee shall be reasonable and shall be no more than the actual cost of 32 the transcript up to$500 plus one-half the actual costs over$500. 33 "(4)The governing body may, by ordinance or regulation, prescribe fees sufficient to defray the costs 34 incurred in the review and investigation of and action upon applications for approval of proposed minor 35 partitions. . 36 "(5)No tentative plan of a proposed minor partition may be approved unless the tentative plan complies 37 with the applicable zoning ordinances and regulations and the ordinances or regulations adopted under this 38 section that are then in effect for the city or county within which the land described in the tentative plan is 39 situated. �- 40 "(6)Any ordinance or regulation adopted under this section shall comply with the comprehensive plan for 41 the city or county adopting the ordinance or regulation. SA to HB 2295 Page 20 1 "SECTION 20.ORS 215.416 is amended to read: 2 "215.416. (1)When required or authorized by the ordinances,rules and regulations of a county,an owner 3 of land may apply in writing to such persons as the governing body designates, for a permit, in the manner 4 prescribed by the governing body. The governing badly shall establish fees charged for permits at an P Y 8 ng Y• go ing y processing perms 5 amount no more than the actual or average cost of providing that service. 6 "(2)The governing body shall establish a consolidated procedure by which an applicant may apply at one time 7 for all permits or zone changes needed for a development project. The consolidated procedure shall be subject to 8 the time limitations set out in section 23 of this 1983 Act. The consolidated procedure shall be available for use at • 9 the option of the applicant no later than the time of the first periodic review of the comprehensive plan and land use 10 regulations under ORS 197.640. 11 "[(2)](3) Except as provided in subsection (9)of this section, the hearings officer shall hold at least one 12 public hearing on the application [and within Sid days after receiving it•deny or approve it. However, with the 13 agreement of the county and the applicant, the proceeding on the application may be extended for a reasonable 14 period of time, as detemrined by the hearings officer, but not to exceed six months from the date of the first 15 public hearing on the application]. 16 "((3J](4)The application shall not be approved if the proposed use of land is found to be in conflict with 17 the comprehensive plan of the county and other applicable ordinance provisions. The approval may include 18 such conditions as are authorized by statute or county legislation. 19 "[(4)](5)Hearings under this section shall be held only after notice to the applicant and also notice to other 20 persons as otherwise provided by law. 21 "[(SA(6)Approval or denial of a permit application shall be based on standards and criteria which shall be 22 set forth in the zoning ordinance or other appropriate ordinance or regulation of the county and which shall 23 relate approval or denial of a permit application to the zoning ordinance and comprehensive plan for the area in 24 which the proposed use of land would occur and to the zoning ordinance and comprehensive plan for the 25 county as a whole. 26 "[(6)](7)Approval or denial of a permit shall be based upon and accompanied by a brief statement that 27 explains the criteria and standards considered relevant to the decision,states the facts relied upon in rendering 28 the decision and explains the justification for the decision based on the criteria,standards and facts set forth. 29 "[(7J](8)Written notice of the approval or denial shall be given to all parties to the proceeding. 30 “(9)The hearings officer,or such other person as the governing body designates, may approve or deny an • 31 application for a permit without a hearing if the hearings officer or other designated person gives notice of the 32 decision and provides an opportunity for appeal of the decision to these persons who would have had a right to 33 notice if a hearing had been scheduled or who are adversely affected or aggrieved by the decision. Notice of the 4. 34 decision shall be given in the same manner as notice of the hearing would have been given if a hearing had been 35 held. An appeal from a hearings officer's decision shall be to the planning commission or governing body of the 36 county. An appeal from such other person as the governing body designates shall be to a hearings officer, the 37 planning commission or the governing body. In either case,the appeal shall be a de novo hearing. 38 "SECTION 21.ORS 215.422 is amended to read: 39 "215.422. (1Xa)A party aggrieved by the action of a hearings officer or other decision making authority ..• 40 may appeal the action to the planning commission or county governing body,or both,however the governing 41 body prescribes.The appellate authority on its own motion may review the action.The procedure and type of SA to LIB 2295 Page 21 1 hearing for such an'appeal or review shall be prescribed by the governing body,but shall not require the notice 2 of appeal to be filed within less than sever,days after the date the governing body mails or delivers the decision to 3 the parties. 4 "(b)Notwithstanding paragraph(a)of this subsection,the governing body may provide that the decision of 5 a hearings officer is the final determination of the county. 6 "(c)The governing body may prescribe,by ordinance or regulation,fees to defray the costs incurred in acting 7 upon an appeal from a hearings officer or planning commission. The amount of the fee shall be reasonable and 8 shall be no more than the average cost of such appeals or the actual cost of the appeal, excluding the cost of • 9 preparation of a written transcript. The governing body may establish a fee for the preparation of a written 10 transcript. The fee shall be reasonable and shall not exceed the actual cost of preparing the transcript up to$500 11 plus one-half the actual costs over$500. . 12 "(2) A party aggrieved by the final determination may have the determination reviewed in the manner 13 provided in sections[4 to 6, chapter 772, Oregon Laws 1979, as amended by sections 35 to 36a, chapter 748, 14 Oregon Laws 1981]31 to 34 of this 1983 Act. •- 15 "SECTION 22.Sections 23 and 23a of this Act are added to and made a part of ORS 215.402 to 215.422. 16 "SECTION 23.(1)Except as provided in subsections(3)and(4)of this section, the governing body of a 17 county or its designate shall take final action on an application for a permit or zone change,including resolution 18 of all appeals under ORS 215.422,within 120 days after the application is deemed complete. 19 "(2)If an application for a permit or zone change is incomplete,the governing body or its designate shall C 20 notify the applicant of exactly what information is missing within 30 days of receipt of the application and allow 21 the applicant to submit the missing information. The application shall be deemed complete for the purpose of k 22 subsection(1)of this section upon receipt by the governing body or its designate of the missing information. If 23 the applicant refuses to submit the missing information, the application shall be deemed complete for the 24 purpose of subsection(1)of this section on the 31st day after the governing body first received the application. 25 "(3)If the application was complete when first submitted or the applicant submits the requested additional 26 information within 180 days of the date the application was first submitted and the county has a comprehensive 27 plan and land use regulations acknowledged under ORS 197.251,approval or denial of the application shall be 28 based upon the standards and criteria that were applicable at the time the application was first submitted. 29 "(4)The 120-day period set in subsection(1)of this section may be extended for a reasonable period of 30 time at the request of the applicant. 31 "(5)The 120-day period set in subsection(1)of this section applies only to decisions wholly within the 32 authority and control of the governing body of the county. 4 33 "(6)Notwithstanding subsection(5)of this section,the 120-day period set in subsection(1)of this section 34 does not apply to an amendment to an acknowledged comprehensive plan or land use regulation or adoption of 35 a new land use regulation that was forwarded to the director under ORS 197.610(1). 36 "(7)if the governing body of the county or its designate does not take final action on an application for a 37 permit or zone change within 120 days after the application is deemed complete,the applicant may apply in the 38 circuit court of the county where the application was filed for a writ of mandamus to compel the governing 39 body or its designate to issue the approval. The writ shall be issued unless the governing body shows that the 40 approval would violate a substantive provision of the county comprehensive plan or land use regulations as 41 defined in ORS 197.015. • SA to HB 2295 . Page 22 . ----1 . • 1 "SECTION 23a.The governing body of a county or its designate may allow a transmission tower over 200 \. 2 feet in height to be established in any zone subject to reasonable conditions imposed by the governing body or 3 its designate. 4 "SECTION 24.ORS 227.175 is amended to read: 5 "227.175. (1)When required or authorized by a city,an owner of land may apply in writing to the hearings 6 officer,or such other person as the city council designates,for a permit or zone change,upon such forms and 7 in such a manner as the city council prescribes. The governing body shall establish fees charged for processing 8 permits at an amount no more than the actual or average cost of providing that service. 9 "(2)The governing body of the city shall establish a consolidated procedure by which an applicant may apply 10 at one time for all permits Or Lone changes needed for a development project. The consolidated procedure shall be 11 subject to the time limitations set out In section 27 of this 1983 Act. The consolidated procedure shall be available 12 for use at the option of the applicant no later than the time of the first periodic review of the comprehensive plan 13 and land use regulations under ORS 197.640. 14 "[(2)1 (3)Except as provided in subsection (6)of this section, the hearings officer shall hold at least one 15 public hearing on the application[and within 60 days after receiving it deny or approve it.However,at the option 16 of either the city or the applicant, the proceeding on the application may be extended for a reasonable period of 17 time,as determined by the hearings officer]. 18 "[(3)1 (4)The application shall not be approved unless the proposed development of land would be in 19 compliance with the comprehensive plan for the city. The approval may include such conditions as are C. 20 authorized by ORS 227.215 or any city legislation. 21 "[(4J](5)Hearings under this section may be held only after notice to the applicant and other interested IN 22 persons. 23 "(6)The hearings officer, or such other person as the governing body designates,may approve or deny an 24 application for a permit without a hearing if the hearings officer or other designated person gives notice of the 25 decision and provides an opportunity for appeal of the decision to those persons who would have had a right to 26 notice if a hearing had been scheduled or who are adversely affected or aggrieved by the decision. Notice of the 27 decision shall be given in the same manner as notice of the hearing would have been given if a hearing had been 28 held. An appeal from a hearings officer's decision shall be to the planning conunission or governing body of the 29 city. An'appeal from such other person as the governing body designates shall be to a hearings officer,the planning 30 conunission or the governing body. In either case,the appeal shall be a de novo hearing. • 31' "SECTION 25.ORS 227.180 is amended to read: 32 "227.180. (lxa)A party aggrieved by the action of a hearings officer may appeal the action to the planning 33 commission or council of the city,or both,however the council prescribes.The appellate authority on its own 34 motion may review the action.The procedure for such an appeal or review shall be prescribed by the council, 35 • but shall:[include] 36 "(A)Not require that the appeal be filed within less than seven days after the date the governing body mails or 37 delivers the decision of the hearings officer to the parties; 38 "(Ii)Require a hearing at least for argument;and[.] (.___ 39 "(C)Require that upon appeal or review the appellate authority.[shall)consider the record of the hearings 40 officer's action.That record need not set forth evidence verbatim. • SA to LIB 2295 Page 23 k • .. paragraph (a) of this subsection, the council may provide that the decision of a 1 (b) Notwithstanding paraBt'aP Q ) 2 hearings officer in a proceeding for a discretionary permit or zone change is the final determination of the city.3 "(c)The governing body may prescribe,b ordinance or regulation,fees to defray the costs incurred in acting (e...--- y from a hearings officer or planning commission. The amount of the fee shall be reasonable and 4 upon an appeal the cost of cost of such appeals or the actual cost of the appeal, excluding 5 shall be no more than the average tlon of a written 6 preparation of a written transcript. The governing body may establish a fee for the prepare 7 transcript. The fee shall be reasonable and shall not exceed the actual cost of preparing the transcript up to$500 8 plus one-half the actual costs over$500. 9 "(2)A party aggrieved by the final determination in a proceeding for a discretionary permit or zone change to may have the determination reviewed under sections[4 to 6, chapter 772, Oregon Laws 1979, as amended by 11 sections 35 to 36a,chapter 7.8,Oregon Laws 1981131 to 34 of this 1983 Act. 12 "SECTION 26.Sections 27 and 27a of this Act are added to and made a part of ORS 227.160 to 227.180. 13 "SECTION 27.(1)Except as provided in subsections(3)and(4)of this section,the governing body of a 14 city or its designate shall take final action on an application for a permit or zone change,including resolution of 15 all appeals under ORS 227.180,within 120 days after the application is deemed complete. 16 "(2)If an application for a permit or zone change is incomplete, the governing body or its designate shall 17 notify the applicant of exactly what information is missing within 30 days of receipt of the application and allow 18 .the applicant to submit the missing information. The application shall be deemed complete for the purpose of 19 subsection(1)of this section upon receipt by the governing body or its designate of the missing information. If .:, C 20 the applicant refuses to submit the missing information, the application shall be deemed complete for the 21 purpo se of subsection(1)of this day is section on the 31st da after the governing body first received the application. 22 "(3)If the application was complete when first submitted or the applicant submits the requested additional 23 information within 180 days of the date the application was first submitted and the city has a comprehensive 24 plan and land use regulations acknowledged under ORS 197.251,approval or denial of the application shall be 25 based upon the standards and criteria that were applicable at the time the application was first submitted. r:, 26 "(4)The 120-day period set in subsection(1)of this section may be extended for a reasonable period of 27 time at the request of the applicant. 28 "(5)The 120-day period set in subsection(1)of this section applies only to decisions wholly within the 29 authority and control of the governing body of the city. 30 "(6)Notwithstanding subsection(5)of this section,the 120-day period set in subsection(1)of this section 31 does not apply to an amendment to an acknowledged comprehensive plan or land use regulation or adoption of 32 a new land use regulation that was forwarded to the director under ORS 197.610(1). of the city or its designate does not take final action on an application for a 33 "(7) If the governing body Y 1 in the 34 permit or zone change within 120 days after the application is deemed complete,the applicant may apply 35 circuit court of the county where the application was filed for a writ of mandamus to compel the governing 36 body or its designate to issue the approval. The writ shall be issued unless the governing body shows that the 37 approval would violate a substantive provision of the city comprehensive plan or land use regulations as 38 defined in ORS 197.015. 39 "SECTION 27a. The governing body of a city or its designate may allow the establishment of a 40 transmission tower over 200 feet in height in any zone subject to reasonable conditions imposed by the 41 governing body or its designate. Page 24 SA to HB 2295 p , 1 "SECTION 27b.ORS 215.213 is amended to read: 2 3 "215.213. (1)The following uses may be established in any area zoned for exclusive farm use: "(a)Public or private schools. 4 •(b)Churches. 5 "(c)The propagation or harvesting of a forest product. 6 "(d) Utility facilities necessary for public service, except commercial facilities for the purpose of 7 • generating power for public use by sale and transmission towers over 200 feet in height. 8 "(e)A dwelling on real property used for farm use if the dwelling is: 9 "(A)Located on the same lot or parcel,as those terms are defined in ORS 92.010,as the dwelling of the 10 farm operator;and 11 "(B)Occupied by a relative,which means grandparent,grandchild, parent,child,brother or sister of the 12 farm operator or the farm operator's spouse,whose assistance in the management of the farm use is or will be 13 required by the farm operator. 14 "(f)The dwellings and other buildings customarily provided in conjunction with farm use. 15 "(g)Operations for the exploration of geothermal resources as defined by ORS 522.005. 16 "(h)A site for the disposal of solid waste that has been ordered to be established by the Environmental 17 Quality Commission under ORS 459.049, together with equipment, facilities or buildings necessary for its 18 operation. 19 "(2)The following nonfarm uses may be established,subject to the approval of the governing body or its 20 designate in any area zoned for exclusive farm use: 21 "(a)Commercial activities that are in conjunction with farm use. 22 "(b) Operations conducted for the mining and processing of geothermal resources as defined by ORS 23 522.005 or exploration, mining and processing of aggregate and other mineral resources or other subsurface 24 resources. 25 "(c)Private parks,playgrounds,hunting and fishing preserves and campgrounds. 26 "(d) Parks, playgrounds or community centers owned and operated by a governmental agency or a 27 nonprofit community organization. 28 "(e)Golf courses. 29 "(f)Commercial utility facilities for the purpose of generating power for public use by sale. 30 "(g)Personal-use airports for airplanes and helicopter pads,including associated hangar,maintenance and • 31 service facilities.A personal-use airport as used in this section means an airstrip restricted,except for aircraft 32 emergencies, to use by the owner, and, on an infrequent and occasional basis, by invited guests, and by 33 commercial aviation activities in connection with agricultural operations. No aircraft may be based on a 34 personal-use airport other than those owned or controlled by the owner of the airstrip. Exceptions to the 35 activities permitted under this definition may be granted through waiver action by the Aeronautics Division in • 36 specific instances. A personal-use airport lawfully existing as of September 13, 1975, shall continue to be 37 permitted subject to any applicable regulations of the Aeronautics Division. 38 "(h)Home occupations carried on by the resident as an accessory use within dwellings or other buildings C._. 39 referred to in ORS 215.203(2)(bXF)or(G). 40 "(i) A facility for the primary processing of forest products, provided that such facility is found to not 41 seriously interfere with accepted farming practices and is compatible with farm uses described in ORS 215.203 SA to HE 2295 Page 25 E 1 (2). Such a facility may be approved for a one-year period which is renewable.These facilities are intended to 2 be only portable or temporary in nature. The primary processing of a forest product, as used in this section, 3 means the use of a portable chipper or stud mill or other similar methods of initial treatment pPe al of a forest product 4 in order to enable its shipment to market. Forest products,as used in this section,means timber grown upon a 5 parcel of land or contiguous land where the primary processing facility is located. 6 "(j)The boarding of horses for profit. 7 "(k)A site for the disposal of solid waste approved by the governing body of a city or county or both and 8 for which a permit has been granted under ORS 459.245 by the Department of Environmental Quality together 9 with equipment,facilities or buildings necessary for its operation. 10 "(3) Single-family residential dwellings, not provided in conjunction with farm use, may be established, 11 subject to approval of the governing body or its designate in any area zoned for exclusive farm use upon a - 12 finding that each such proposed dwelling: 13 "(a) Is compatible with farm uses described in ORS 215.203 (2) and is consistent with the intent and 14 purposes set forth in ORS 215.243; 15 "(b)Does not interfere seriously with accepted farming practices, as defined in ORS 215.203 (2Xc), on 16 adjacent lands devoted to farm use; 17 "(c)Does not materially alter the stability of the overall land use pattern of the area; 18 "(d)Is situated upon generally unsuitable land for the production of farm crops and livestock,considering 19 the terrain,adverse soil or land conditions,drainage and flooding,vegetation,location and size of the tract;and 20 "(e)Complies with such other conditions as the governing body or its designate considers necessary. 21 "SECTION 28.Section la,chapter 772,Oregon Laws 1979,is amended to read: 22 "Sec. la. It is the policy of the Legislative Assembly that time is of the essence in reaching final decisions 23 in matters involving land use and that those decisions be made consistently with sound principles governing 24 judicial review. It is the intent of the Legislative Assembly in enacting sections[la to 6a of this 1979Ac/j 1 to 25 2,chapter 772,Oregon Laws 1979 and sections 36 to 44 of this 1983 Act to accomplish these objectives. 26 "SECTION 28a.Section 2,chapter 772,Oregon Laws 1979,is amended to read: 27 "Sec.2. (1)There is hereby created a Land Use Board of Appeals consisting of not more than[five]three 28 members appointed by the Governor subject to confirmation by the Senate in the manner provided in ORS 29 171.562 and 171.565. The board shall consist of a chief hearings referee chosen by the referees and such other 30 referees as the Governor considers necessary. The members of the board first appointed by the Governor shall 31 be appointed by the Governor to serve for a term beginning November 1, 1979, and ending July 1, 1983. The 32 salaries of the members shall be fixed by the Governor unless otherwise provided for by law. The salary of a 33 member of the board shall not be reduced during the period of service of the member. 34 "(2) The Governor may at any time remove any member of the board for inefficiency, incompetence, 35 neglect of duty, malfeasance in office or unfitness to render effective service. Before such removal the 36 Governor shall give the member a copy of the charges against the member and shall fix the time when the 37 member can be heard in defense against the charges, which shall not be less than 10 days thereafter. The 38 hearing shall be open to the public and shall be conducted in the same manner as a contested case under ORS 39 183.310 to 183.550. The decision of the Governor to remove a member of the.board shall be subject to judicial 40 review in the same manner as provided for review of contested cases under ORS 183.480 to 183.550. SA to HB 2295 Page 26 • i 1 "(3)Referees appointed under subsection (1) of•this section shall be members in good standing of the • 2 Oregon State Bar. 3 "SECTION 28b.Section 2a,chapter 772,Oregon Laws 1979,is amended to read: 4 "Sec.2a.(1)The board shall conduct review proceedings upon petitions filed in the manner prescribed in 5 section[4 of this 1979Actj 31 of this 1983 Act. 6 "(2)In conducting review proceedings the members of the board may sit together or separately as the chief 7 hearings referee shall decide. ' 8 "(3)The chief hearings referee shall apportion the business of the board among the members of the board. • 9 Each member shall have the power to hear and issue orders on petitions filed with the board and on all issues 10 arising under those petitions[,except as provided in section 6of this 1979Ac/J. 11 "(4) The board shall adopt rules governing the conduct of review proceedings brought before it under 12 sections[4 to 6of this 1.979 Act]31 to 34 of this 1983 Act. 13 "SECTION 28c.Sections 29 to 35 of this Act are added to and made a part of ORS 197.005 to 197.430. 14 "SECTION 29. The principal office of the board shall be in the state•capital, but the board may hold 15 hearings in any county or city in order to provide reasonable opportunities to parties to appear before the board 16 with as little inconvenience and expense as is practicable. Upon request of the board, the county or city 17 governing body shall provide the board with suitable rooms for hearings held in that city or county. 18 "SECTION 30. (1) Except as provided in subsections (2) and (3) of this section, the board shall have 19 exclusive jurisdiction to review any land use decision of a local government,special district or a state agency in 20 the manner provided in sections 31 to 34 of this 1983 Act. 21 "(2)The jurisdiction of the board: 22 "(a)Is limited to those cases in which the petitioner has exhausted all remedies available by right before 23 petitioning the board for review; • 24 "(b)Is subject to the provisions of sections 35 and 35a of this 1983 Act relating to judicial review by the 25 Court of Appeals; 26 "(c)Does not include those matters over which the Land Conservation and Development Commission has 27 review authority under ORS 197.005 to 197.430 and 197.610 to 197.650;and 28 "(d)Does not include those land use decisions of a state agency over which the Court of Appeals has 29 jurisdiction for initial judicial review under ORS 183.400, 183.482 or other statutory provisions. 30 "(3)The provisions of paragraph(a) of subsection (2)of this section do not affect the authority of the • 31 board to decide issues not raised in the local government proceedings. 32 "(4)Notwithstanding subsection(1)of this section,the circuit courts of this state retain jurisdiction: 33 "(a)To grant declaratory,injunctive or mandatory relief in proceedings arising from decisions described in • 34 ORS 197.015(10Xb)or proceedings brought to enforce the provisions of an adopted comprehensive plan or land 35 use regulations;and 36 "(b)To enforce orders of the board in appropriate proceedings brought by the board or a party to the 37 board proceeding resulting in the order. 38 "SECTION 31.'(1) Review of land use decisions under sections 31 to 34 of this 1983 Act shall be (,.... 39 commenced by filing a notice of intent to appeal with the Land Use Board of Appeals. 40 "(2)Except as provided in ORS 197.620(1),a person may petition the board for review of a legislative land 41 use decision if the person: SA to HB 2295 . Page 27 I "(a)Filed a notice of intent to appeal the decision as provided in subsection(I)of this section;and C. 2' "(b)Is aggrieved or has`interests adversely affected by the decision. 3 "(3)Except as provided in ORS 197.620(1),a person may petition the board for review of a quasi-judicial 4 land use decision if the person: 5 "(a)Filed a notice of intent to appeal the decision as provided in subsection(1)of this section; 6 "(b)Appeared before the local government,special district or state agency orally or in writing;and 7 "(c)Meets'one of the following criteria: 8 "(A)Was entitled as of right to notice and hearing prior to the decision to be reviewed;or Or 9 "(B)Is aggrieved or has interests adversely affected by the decision. 10 "(4)For purposes of subsections(2),(3)and(5)of this section,the word 'person' shall include the Land 11 Conservation and Development Commission or its designate. 12 "(5)Within a reasonable time after a petition for review has been filed with the board, any person may 13 intervene in and be made a party to the review proceeding upon a showing of compliance with subsection(2)or 14 (3)of this section. 15 "(6) If a state agency whose order, rule, ruling, policy or other action is at issue is not a party to the 16 proceeding,it may file a brief with the board as if it were a party. The brief shall be due on the same date the 17 respondent's brief is due. 18 "(7)A notice of intent to appeal a land use decision shall be filed not later than 21 days after the date the 19 decision sought to be reviewed becomes final. Copies of the notice shall be served upon the local government, 20 special district or state agency and the applicant of record, if any,in the local government, special district or 21 state agency proceeding. The notice shall be served and filed in the form and manner prescribed by rule of the 22 board and shall be accompanied by a filing lin fee of$50 and a deposit for costs to be established by the board. If a 23 petition for review is not filed with the board as required in subsections(8)and(9)of this section,the filing fee 24 and deposit shall be awarded to the local government,special district or state agency as cost of preparation of 25 the record. - 26 "(8)Within 21 days after service of the notice of intent to appeal,the local government, special district or 27 state agency shall transmit to the board the original or a certified copy of the entire record of the proceeding 28 under review. By stipulation of all parties to the review proceeding the record may be shortened. The board 29 may require or permit subsequent corrections to the record. 30 "(9) A petition for review of the land use decision and supporting brief shall be filed with the board as • 31 required by the board under subsection(10)of this section. The petition shall include a copy of the decision 32 sought to be reviewed and shall state: , 33 "(a)The facts that establish that the petitioner has standing. 34 "(b)The date of the decision. 35 "(c)The issues the petitioner seeks to have reviewed. 36 "(10) The board shall adopt rules establishing deadlines,for filing petitions and briefs and for oral 37 argument. 38 "(11).Review of a decision under sections 31 to 34 of this 1983 Act shall be confined to the record. In the ( 39 case of disputed allegations of unconstitutionality of the decision, standing, ex parte contacts or other 40 procedural irregularities not shown in the record which,if proved,would warrant reversal or remand,the board 41 may take evidence and make findings of fact on those allegations. The board shall be bound by any finding of SA to HB 2295 Page 28 I 1 1 fact of the local government,special district or state agency for which there is substantial evidence in the whole 2 record. 3 "(12)The board shall issue a final order within 77 days after the date of transmittal of the record. If the 4 order is not issued within 77 days the applicant may apply in Marion County or the circuit court of the county 5 where the application was filed for a writ of mandamus to compel the board to issue a final order. 6 "(13Xa)Upon entry of its final order the board may,in its discretion,award costs to the prevailing party 7 including the cost of preparation of the record if the prevailing party is the local government,special district or 8 state agency whose decision is under review. The deposit required by subsection(7)of this section shall be .1 9 applied to any costs charged against the petitioner. 10 "(b)The board may also award reasonable attorney fees and expenses to the prevailing party against any 11 other party who the board finds presented a position without probable cause to believe the position was 12 well-founded,and primarily for a purpose other than to secure appropriate action by the board. 13 "(14)Orders issued under this section may be enforced in appropriate judicial proceedings. 14 "(15)The board shall provide for the publication of its orders that are of general public interest in,the form IS it deems best adapted for public convenience. The publications shall constitute the official reports of the 16 board. The board shall provide the publisher with a list of those public officers who shall receive the _ 17 publications without charge. 18 "(16)All fees collected by the board under this section that are not awarded as costs shall be paid over to 19 the State Treasurer to be credited to the General Fund. 20 "SECTION 32. (1) The board shall review the land use decision and prepare a final order affirming, 21 reversing or remanding the land use decision.The board shall adopt rules defining the circumstances in which it i 22 will reverse rather than remand a land use decision that is not affirmed. 23 "(2)The board shall reverse or remand a land use decision not subject to an acknowledged comprehensive 24 plan and land use regulations if the decision does not comply with the goals. 25 "(3)The board shall reverse or remand a land use decision subject to an acknowledged comprehensive 26 plan and land use regulations if the decision is not consistent with the acknowledged comprehensive plan and 27 land use regulations. 28 "(4) Notwithstanding the provisions of subsections 2 and 3 of this section, the board shall reverse or 29 remand a decision to adopt an amendment to an acknowledged comprehensive plan or land use regulation or a 30 new land use regulation if the amendment or new regulation does not comply with the goals. The board shall 31 find an amendment or new land use regulation in compliance with the goals,if: 32 "(a)The board determines that the amendment to an acknowledged land use regulation or the new land use • 33 regulation is consistent with specific related land use policies contained in the acknowledged comprehensive 34 plan;or 35 "(b)The amendment to an acknowledged comprehensive plan or land use regulation or a new land use 36 regulation, on the whole, comply with the purposes of the goals and any failure to meet individual goal 37 requirements is technical or minor in nature. 38 "(5)Notwithstanding the provisions of subsection(3)of this section,the board shall reverse or remand a (4 39 decision adopting a small tract zoning map amendment to an acknowledged land use regulation if the decision 40 does not comply with the goals and: 41 "(a)The amendment applies to land outside an acknowledged urban growth boundary; SA to NB 2295 Page 29 1 "(b)The local government has a comprehensive plan that was acknowledged before July 1,1981;and 2 "(c)The commission has not reviewed the acknowledged comprehensive plan under ORS 197.640. 3 "(6) If the board determines that an amendment described in subsection(5)of this section is consistent 4 with specific related land use policies contained in the acknowledged comprehensive plan or land use 5 regulations or it complies with the goals,the board shall find the amendment in compliance with the goals. 6 "(7) Notwithstanding any other provision of ORS 197.005 to 197.430 and.197.610 to 197.650, the board 7 shall not review a mobile home siting permit, septic tank permit or building permit issued under the state 8 building code as defined in ORS 456.750 for compliance with the goals if the permit is issued: 9 "(a)For land subject to an acknowledged comprehensive plan and land use regulation; 10 "(b)For land included within an urban growth boundary acknowledged under ORS 197.251; 11 "(c)For land within the corporate limits of a city on August 21,1981; 12 "(d)For land subject to an acknowledged estuarine plan element;or 13 "(e)After June 30, 1983,unless the commission has issued an order under ORS 197.320 requiring a local 14 government to continue to apply the goals to building permits after that date. 15 "(8)In addition to the review under subsections(1)to(7)of this section,the board shall reverse or remand 16 the land use decision under review if the board finds: 17 "(a)The local government or special district: 18 "(A)Exceeded its jurisdiction; 19 "(13) Failed to follow the procedures applicable to the matter before it in a manner that prejudiced the 1 20 substantial rights of the petitioner; C21 "(C)Made a decision not supported by substantial evidence in the whole record; 1 22 "(D)Improperly construed the applicable law;or 23 "(E)Made an unconstitutional decision;or 24 "(b)The state agency made a decision that violated the goals. 25 "(9) Whenever the findings, order and record are sufficient to allow review, and to the extent possible • 26 consistent with the time requirements of subsection(12)of section 31 of this 1983 Act,the board shall decide all 27 issues presented to it when reversing or remanding a land use decision described in subsections(2)to(8)of this 28 section. 29 "(10)In reviewing a provision of a comprehensive plan or land use regulation that has also been submitted 30 to the director under section 1 lb of this 1983 Act,the board shall not review the plan provision or regulation for • 31 compliance with the requirements of ORS 197.640(3). 32 "SECTION 32a.If Senate Bill 318 becomes law,section 3,chapter ,Oregon Laws 1983(Enrolled 33 Senate Bill 318),is repealed and section 32 of this Act is amended to read: 34 "Sec.32.(1)The board shall review the land use decision and prepare a final order affirming,reversing or 35 remanding the land use decision. The board shall adopt rules defining the circumstances in which it will reverse 36 rather than remand a land use decision that is not affirmed. 37 "(2)The board shall reverse or remand a land use decision not subject to an acknowledged comprehensive 38 plan and land use regulations if the decision does not comply with the goals. Ci. 39 "(3)The board shall reverse or remand a land use decision subject to an acknowledged comprehensive �'' 40 plan and land use regulations if the decision is not consistent with the acknowledged comprehensive plan and . 41 land use regulations. SA to HE 2295 Page 30 • 1 "(4) Notwithstanding the provisions of subsections 2 and 3 of this section, the board shall reverse or 2 remand a decision to adopt an amendment to an acknowledged comprehensive plan or land use regulation or a 3 new land use regulation if the amendment or new regulation does not comply with the goals. The board shall 4 find an amendment or new land use regulation in compliance with the goals,if: 5 "(a)The board determines that the amendment to an acknowledged land use regulation or the new land use 6 regulation is consistent with specific related land use policies contained in the acknowledged comprehensive 7 plan;or 8 "(b)The amendment to an acknowledged comprehensive plan or land use regulation or a new land use 9 regulation, on the whole, comply with the purposes of the goals and any failure to meet individual goal 10 requirements is technical or minor in nature. 11 "(5)Notwithstanding the provisions of subsection(3)of this section,the board shall reverse or remand a ' 12 decision adopting a small tract zoning map amendment to an acknowledged land use regulation if the decision 13 does not comply with the goals and: 14 "(a)The amendment applies to land outside an acknowledged urban growth boundary; 15 "(b)The local government has a comprehensive plan that was acknowledged before July 1,1981;and 16 "(c)The commission has not reviewed the acknowledged comprehensive plan under ORS 197.640. 17 "(6)If the board determines that an amendment described in subsection(5)of this section is consistent 18 with specific related land use policies contained in the acknowledged comprehensive plan or land use 19 regulations or it complies with the goals,the board shall find the amendment in compliance with the goals. 20 "(7)Notwithstanding any other provision of ORS 197.005 to 197.430 and 197.610 to 197.650, the board 21 shall not review a mobile home siting permit, septic tank permit or building permit issued under the state 22 building code as defined in ORS 456.750 for compliance with the goals if the permit is issued: 23 "(a)For land subject to an acknowledged comprehensive plan and land use regulation; 24 "(b)For land included within an urban growth boundary acknowledged under ORS 197.251; 25 "(c)For land within the corporate limits of a city on August 21, 1981; 26 "(d)For land subject to an acknowledged estuarine plan element;or 27 "(e)After June 30, 1983,unless the commission has issued an order under ORS 197.320 requiring a local 28 government to continue to apply the goals to building permits after that date. 29 "(8)In addition to the review under subsections(1)to(7)of this section,the board shall reverse or remand 30 the land use decision under review if the board finds: 31 "(a)The local government or special district: 32 "(A)Exceeded its jurisdiction; 33 "(B) Failed to follow the procedures applicable to the matter before it in a manner that prejudiced the 34 substantial rights of the petitioner; 35 "(C)Made a decision not supported by substantial evidence in the whole record; 36 "(D)Improperly construed the applicable law;or 37 "(E)Made an unconstitutional decision;or 38 "(b)The state agency made a decision that violated the goals. 39 "(9) Whenever the findings, order and record are sufficient to allow review, and to the extent possible 40 consistent with the time requirements of subsection(12)of section 31 of this 1983 Act,the board shall decide all SA to HB 2295 Page 31 r 1 issues presented to it when reversing or remanding a land use decision described in subsections(2)to(8)of this (-- 2 section. 3 "(10)In reviewing a provision of a comprehensive plan or land use regulation that has also been submitted 4 to the director under section 1 lb of this 1983 Act,the board shall not review the plan provision or regulation for 5 compliance with the requirements of ORS 197.640(3). 6 "(11)The board may reverse or remand a land use decision under review due to ex parte contacts or bias 7 resulting from ex parte contacts with a member of the decision-making,body, only if the member of the 8 ,decision-making body did not comply with ORS 215.422(3)or 227.180(3),whichever is applicable. 9 "(12)Subsection(11)of this section does not apply to reverse or remand of a land use decision due to ex parte 10 contact or bias resulting from ex parte contact with a hearings officer. 11 "SECTION 33.(1)The following periods of delay shall be excluded from the 77-day period within which. 12 the board must make a final decision on a petition under subsection(12)of section 31 of this 1983 Act: 13 "(a)Any period of delay resulting from the board deferring all or part of its consideration of a petition for 14 review of a land use decision that allegedly violates the goals if the decision involves: 15 "(A)A comprehensive plan or land use regulation submitted for acknowledgment under ORS 197.251;or 16 "(B) A comprehensive plan or land use regulations that have been submitted for review under ORS 17 197.640. 18 "(b) Any period of delay resulting from a motion, including but not limited to, a motion disputing the 19 constitutionality of the decision,standing,ex parte contacts or other procedural irregularities not shown in the 20 record. 21 "(c)Any reasonable period of delay resulting from a request for a stay under section 34 of this 1983 Act. "(d)An. reasonable period of delay resulting from a continuance granted by a member of the board on the 22 Pe II � ( ) Y 23 member's own motion or at the request of one of the parties, if the member granted the continuance on the 24 basis of findings that the ends of justice served by granting the continuance outweigh the best interest of the 25 public and the parties in having a decision within 77 days. 26 "(2) No period of delay resulting from a continuance granted by the board under paragraph (d) of 27 subsection(1)of this section shall be excludable under this section unless the board sets forth in the record, 28 either orally or in writing, its reasons for finding that the ends of justice served by granting the continuance 29 outweigh the best interests of the public and the other parties in a decision within the 77 days. The factors the 30 board shall consider in determining whether to grant a continuance under paragraph(d)of subsection(1)of this 31 section in any case are as follows: 32 "(a)Whether the failure to grant a continuance in the proceeding would be likely to make a continuation of I • 33 the proceeding impossible or result in a miscarriage of justice;or 34 "(b)Whether the case is so unusual or so complex,due to the number of parties or the existence of novel 35 questions of fact or law,that it is unreasonable to expect adequate consideration of the issues within the 77-day 36 time limit. 37 "(3) No continuance under paragraph (d) of subsection (1) of this section shall be granted because of 38 general congestion of the board calendar or lack of diligent preparation or attention to the case by any member • (.._, 39 of the board or any party. 40 "(4)The board may defer all or part of its consideration of a land use decision described in paragraph(a)of 41 subsection (1) of this section until the commission has disposed of the acknowledgment or periodic review SA to HB 2295 Page 32 A , 1 proceeding described in subparagraph(A)or(B)of paragraph(a)of subsection(1)of this section: If the board 2 deferred all or part of its consideration of a decision under this subsection,the board may grant a stay of the 3 comprehensive plan provision,land use regulation or land use decision under section 34 of this 1983 Act. 4 "SECTION 34.(1)Upon application of the petitioner, the board may grant a stay of a land use decision 5 under review if the petitioner demonstrates: 6 "(a)A colorable claim of error in the land use decision under review;and 7 "(b)That the petitioner will suffer irreparable injury if the stay is not granted. 8 ''(2) If the board grants a stay of a quasi-judicial land use decision approving a specific development of 9 land, it shall require the petitioner requesting the stay to give an undertaking in the amount of$5,000. The 10 undertaking shall be in addition to the filing fee and deposit for costs required under subsection(7)of section 31 • I1 of this 1983 Act. The board may impose other reasonable conditions such as requiring the petitioner to file all . 12 documents necessary to bring the matter to issue within specified reasonable periods of time. 13 "(3)If the board affirms a quasi-judicial land use decision for which a stay was granted under subsections 14 (1)and(2)of this section,the board shall award reasonable attorney fees and actual damages resulting from the 15 stay to the person who requested the land use decision from the local government, special district or state 16 agency,against the person requesting the stay in an amount not to exceed the amount of the undertaking. 17 "(4)The board shall limit the effect of a stay of a legislative land use decision to the geographic area or to 18 particular provisions of the legislative decision for which the petitioner has demonstrated a colorable claim of 19 error and irreparable injury under subsection(1)of this section. The board may impose reasonable conditions 20 on a stay of a legislative decision,such as the giving of a bond or other undertaking or a requirement that the 21 petitioner file all documents necessary to bring the matter to issue within a specified reasonable time period. 22 "SECTION 35.(1)Any party to a proceeding before the Land Use Board of Appeals under sections 31 to 23 34 of this 1983 Act may seek judicial review of a final order issued in those proceedings. 24 "(2) Notwithstanding the provisions of ORS 183.480 to 183.550, judicial review of orders issued under 25 sections 31 to 34 of this 1983 Act shall be solely as provided in this section. 26 "(3)Jurisdiction for judicial review of proceedings under sections 31 to 34 of this 1983 Act is conferred - 27 upon the Court of Appeals. Proceedings.for review shall be instituted by filing a notice of intent to appeal in the 28 Court of Appeals. The notice shall be filed within 21 days following the date the board delivered or mailed the 29 order upon which the notice is based. 1 30 "(4)'The notice shall state the nature of the order the petitioner desires reviewed. Copies of the notice 31 shall be served by registered or certified mail upon the board, and all other parties of record in the board 32 proceeding. � 33 "(5)Within seven days after service of the notice, the board shall transmit to the court the original or a 34 certified copy of the entire record of the proceeding under review, but, by stipulation of all parties to the 35 review proceeding, the record may be shortened. Any party unreasonably refusing to stipulate to limit the 36 record may be taxed by the court for the additional costs. The court may require or permit subsequent 37 corrections or additions to the record when deemed desirable. Except as specifically provided in this 38 subsection,the cost of the record shall not be taxed to the petitioner or any intervening party. However,the 39 court may tax such costs and the cost of transcription of record to a party filing a frivolous petition for review. 40 "(6)Petitions and briefs shall be filed within time periods and in a manner established by the Court of 41 Appeals by rule. SA toHB2295 Page33 1 "(7) Within 42 days of the date of transmittal of the record, the court shall hear oral argument on the 2 petition. 3 "(8)Review of an order issued under sections 31 to 34 of this 1983 Act shall be confined to the record. The 4 court shall not substitute its judgment for that of the board as to any issue of fact. 5 "(9)The court may affirm,reverse or remand the order. The court shall reverse or remand the order only 6 if it finds: 7 "(a)The order to be unlawful in substance or procedure, but error in procedure shall not be cause for 8 reversal or remand unless the court shall find that substantial rights of the petitioner were prejudiced thereby; 9 "(b)The order to be unconstitutional;or 10 "(c)The order is not supported by substantial evidence in the whole record as to facts found by the board 11 under subsection(11)of section 31 of this 1983 Act. 12 "(10)The Court of Appeals shall issue a final order on the petition for review with the greatest possible 13 expediency: 14 "(11)If the order of the board is remanded by the Court of Appeals or the Supreme Court,the board shall 15 respond to the court's mandate within 30 days. 16 "(12)A party shall file with the board an undertaking with one or more sureties insuring that the party will 17 pay all costs,disbursements and attorney fees awarded against the party by the Court of Appeals if: 18 "(a)The party appealed a decision of the board to the Court of Appeals;and 19 "(b)In making the decision being appealed to the Court of Appeals,the board awarded attorney fees and 20 expenses against that party under paragraph(b)of subsection(13)of section 31 of this 1983 Act. 21 "(13)The undertaking required in subsection(12)of this section shall be filed with the board and served on 22 the opposing parties within 10 days after the date the notice to appeal of p1'eal filed was f with the Court of 23 Appeals. 24 "SEC'T'ION 35a. (1)The Court of Appeals shall issue a final order on a petition for review filed under 25 section 35 of this Act within 91 days after oral argument on the petition. 26 "(2)The following periods of delay shall be excluded from the 91-day period within which the court must 27 issue a final order on a petition: 28 "(a)Any period of delay resulting from a motion properly before the court;or 29 "(b)Any reasonable period of delay resulting from a continuance granted by the court on the court's own 30 motion or at the request of one of the parties,if the court granted the continuance on the basis of findings that 31 the ends of justice served by granting the continuance outweigh the best interest of the public and the parties in 32 having a decision within 91 days. 33 "(3) No period of delay resulting from a continuance granted by the court under paragraph (b) of 34 subsection(2)of this section shall be excludable under this section unless the court sets forth, in the record, 35 either orally or in writing, its reasons for finding that the ends of justice served by granting the continuance 36 outweigh the best interests of the public and the other parties in a decision within the 91 days. The factors the 37 court shall consider in determining whether to grant a continuance under paragraph(b)of subsection(2)of this 38 section in any case are as follows: 39 "(a)Whether the failure to grant a continuance in the proceeding would be likely to make a continuation of 40 the proceeding impossible or result in a miscarriage of justice;or SA to HB 2295 Page 34 i 1 "(b)Whether the case is so unusual or so complex,due to the number of parties or the existence of novel 2 questions of fact or law,that it is unreasonable to expect adequate consideration of the issues within the 91-day 3 time limit. - 4 "(4) No continuance under paragraph (b) of subsection (2) of this section shall be granted because of 5 general congestion of the court calendar or lack of diligent preparation or attention to the case by any member 6 of the court or any party. 7 "SECTION 35b.Section 35a is repealed on July 1,1985. 8 "SECTION 36.(1)Any petition filed with the Land Use Board of Appeals before October 1, 1983,that is 9 still pending on that date,shall be finally determined by the board under sections 4 to 6a,chapter 772,Oregon 10 Laws 1979,as amended by sections 35 to 37,chapter 748,Oregon Laws 1981. 11 "(2)Any petition for judicial review of an order of the Land Use Board of Appeals filed with the Court of 12 Appeals before October 1, 1983,that is still pending on that date,shall be finally determined by the.Court of 13 Appeals or Supreme Court under section 6a, chapter 772, Oregon Laws 1979, as amended by section 37, 14 chapter 748,Oregon Laws 1981. 15 "NOTE:Sections 37 to 41 were deleted. Subsequent sections were not renumbered. 16 "SECTION 42.ORS 34.020 is amended to read: 17 "34.020. Except for a proceeding resulting in a land use decision as defined in ORS 197.015, for which 18 review is provided in sections [4 to 6, chapter 772, Oregon Laws 1979, as amended by sections 35 to 36a, 19 chapter 749, Oregon Laws/NA 31 to 34 of this 1983 Act,any party to any process or proceeding before or by 20 any inferior court,officer,or tribunal may have the decision or determination thereof reviewed for errors,as 21 provided in ORS 34.010 to 34.100,and not otherwise. Upon a review,the court may review any intermediate 22 order involving the merits and necessarily affecting the decision or determination sought to be reviewed. I 23 "SECTION 43.ORS 197.350 is amended to read: 24 "197.350.(1)A party appealing a land use decision made by a local government to the board or commission 25 has the burden of persuasion: 26 "(2)A local government that claims an exception to a goal adopted by the commission has the burden of 1 27 persuasion. 28 "(3)There shall be no burden of proof in administrative proceedings under ORS 197.005 to 197.430 and 29 [197.60.1 197.610 to 197.650. 30 "SECTION 44.ORS 197.395 is amended to read: 31 "197.395. (1)Any person or public agency desiring to initiate an activity which the state may regulate or 32 control and which occurs upon federal land shall apply to the local government in which the activity will take 33 place for a permit.The application shall contain an explanation of the activity to be initiated,the plans for the 34 activity and any other information required by the local government as prescribed by rule of the commission. 35 "(2)If the local government finds after review of the application that the proposed activity complies with 36 goals and the comprehensive plans of the local government affected by the activity, it shall approve the 37 application and issue a permit for the activity to the person or public agency applying for the permit. If the 38 governing body doe's not approve or disapprove the permit within 60 days of receipt of the application, the 1 C. 39 application shall be considered approved. SA to HB 2295 Page 35 . 1 "(3)The local government may prescribe and include in the permit any conditions or restrictions that it 2 considers necessary to assure that the activity complies.with the goals and the comprehensive plans of the local 3 governments affected by the activity. 4 "(4) Actions pursuant to this section are subject to review under sections [4 to 6, chapter 771, Oregon 5 Laws 1979,as amended by sections 35 to 36a,chapter 748,argon Laws 191]31 to 34 of this 1983 Act. 6 "SECTION 45.ORS 197.540 is amended to read: 7 "197.540.(1)In the manner provided in[ORS 197.305 to 197.315(1977 Replacement Part)]sections 31 to 34 8 of this 1983 Act,the[Land Conservation and Development Commission]Land Use Board of Appeals shall review 9 upon petition by a county, city or special district governing body or state agency or a person or group of 10 persons whose interests are substantially affected,any moratorium on construction or land development or a 11 corrective program alleged to have been adopted in violation of the provisions of ORS 197.505 to 197.530. 12 "(2)If the [commission] board determines that a moratorium or corrective program was not adopted in 13 compliance with the provisions of ORS 197.505 to 197.530, the [commission] board shall issue an order 14 invalidating the moratorium. 15 "(3)All review proceedings conducted by the[Land Conservation and Development Commission]Land 16 Use Board of Appeals under subsection(1)of this section shall be based on the administrative record,if any, 17 that is the subject of the review proceeding. The [commission] board shall not substitute its judgment for a 18 finding solely of fact for which there is substantial evidence in the whole record. 19 "(4) Notwithstanding any provision of ORS 197.005 to 197.430 and [197.603] 197.610 to 197.650 to the 20 contrary, the sole standard of review of a moratorium on construction or land development or a corrective 21 program is under the provisions of this section, and such a moratorium shall not be reviewed for compliance 22 with the state-wide planning goals adopted under ORS 197.005 to 197.430 and [197.605 to 197.6401 197.610 to 23 197.650. 24 "(5)The review of a moratorium on construction or land development under subsection(1)of this section 25 shall be the sole authority for review of such a moratorium,and there shall be no authority for review in the 26 circuit courts of this state. 27 "SECTION 45a. If House Bill 2452 becomes law, section 51, chapter , Oregon Laws 1983 28 (Enrolled House Bill 2452),is repealed. 29 "SECTION 46.ORS 203.113 is amended to read: 30 "203.113. Except for a proceeding resulting in a land use decision as defined in section 3, chapter 772, • 31 Oregon Laws 1979, for which review is provided in sections [4 to 6, chapter 772, Oregon Laws 1979, as 32 amended by sections 35 to 36a, chapter 748, Oregon Laws 1%')] 31 to 34 of this 1983 Act, the decisions of a . 33 county court made in the transaction of county business shall be reviewed only as provided in ORS 34.010 to 34 34.100,and not otherwise. 35 "NOTE:Sections 47 to 49 were deleted. Subsequent sections were not renumbered. 36 "SECTION 50.Sections 31 to 35a of this Act apply to petitions for review of land use decisions filed on or 37 after October 1, 1983. 38 "SECTION 51.ORS 92.105 is amended to read: 39 "92.105. [(1)]The governing body of a city or county or its designate[shall take]is subject to the provisions �• 40 of section 23 or 27 of this 1983 Act in taking final action on an application for approval of a tentative plan for a 41 subdivision or major partition located within an acknowledged urban growth boundary. [within 1819 days after SA to HB 2295 Page 36 , a 1 the application is found to be complete. If the governing body of a city or county or its designate does not take 2 final action on an application for approval of a tentative plan fora subdivision or major partition located within 3 an acknowledged urban growth boundary within 180 days after that application is found to be complete, the 4 applicant may apply in the cin^uit court of the county where the application was filed for a writ of mandamus to 5 compel the governing body or Its designate to issue the approval. The writ shall be issued unless the governing I6 body of the city or county shows that the approval would violate a substantive provision of the city or county 7 comprehensive plan or land use regulations as defined in ORS 197.015.] 8 "[(2)If an application for approval of a tentative plan fora subdivision or major partition located within an ■ 9 acknowledged urban growth boundary is incomplete, the governing body shall notify the applicant of that fact 10 within 30 days of the receipt of the application and allow the applicant to provide the additional information • 11 required.] 12 "[(3)As used in this section, 'acknowledged urban growth boundary'means an urban growth boundary 13 acknowledged as being in compliance with the goals.] 14 "SECTION 52.ORS 197.650 is amended to read: 15 "197.650. (1)A commission order may be appealed to the Court of Appeals in the manner provided in ORS 16 183.482 by the following persons: 17 "(a) A person who submitted.comments or objections pursuant to ORS 197.251 (2) and is appealing a 18 commission order issued under ORS 197.251;or 19 "(b)A person who is adversely affected or aggrieved by a commission order issued under ORS 197.251 or 20 [197.640,1 subsection(4)of section lie of this 1983 Act. 21 "[(c)A person who is entitled under ORS 197.635(2)to appeal a commission order issued under ORS :a 22 197.630(1)and(4);or] 23 "[(d)A person who is entitled under ORS 197.635(3)to appeal a commission order issued under ORS 24 197.625(1).] 25 "(2)Notwithstanding ORS 183.482(2)relating to contents of the petition,the petition shall state the nature 26 of the order petitioner desires reviewed and whether the petitioner: 27 "(a)Submitted comments or objections as provided in ORS 197.251(2);or 28 "[(b)Submitted objections as provided in ORS 197.620(1)or(3),] 29 "[(c)Participated either orally or in writing in the local government proceedings as provided in ORS 197.635 30 (3);or] 31 "[(d)](b)Is seeking judicial review as a person adversely affected or aggrieved by the order. 32 "(3)Notwithstanding ORS 183.482(2) relating to service of the petition, copies of the petition shall be 33 served by registered or certified mail upon the department, the local government and all persons who filed 34 comments or objections. 35 "SECTION 53.ORS 268.390 is amended to read: 36 "268.390. A district council shall: 37 "(1) Define and apply a planning procedure which identifies and designates areas and activities having (...... 38 significant impact upon the orderly and responsible development of the metropolitan area, including, but not 39 limited to,impact on: 40 "(a)Air quality; 41 "(b)Water quality;and SA to FIB 2295 Page 37 1 1 "(c)Transportation. • 2 "(2)Prepare and adopt functional,plans for those areas designated under subsection(1)of this section to 3 control metropolitan area impact on air and water quality,transportation and other aspects of metropolitan area 4 development the council may identify. 5 "(3) Adopt an urban growth boundary for the district in compliance with applicable goals adopted under 6 ORS 197.005 to 197.430[and 1.9Z605 to 1926501. 7 "(4)Review the comprehensive plans in effect on January 1, 1979,or subsequently adopted by the cities 8 and counties within the district which affect areas designated by the council under subsection(1)of this section 9 or the urban growth boundary adopted under subsection(3)of this section and recommend or require cities and 10 counties,as it considers necessary,to make changes in any plan to assure that the plan and any actions taken 11 under it conform to the district's functional plans adopted under subsection(2)of this section and its urban . 12 growth boundary adopted under subsection(3)of this section. 13 "SECTION 54.ORS 459.049 is amended to read: 14 "459.049. (1)Upon its own motion or upon the recommendation of the department, the Environmental 15 Quality Commission may determine that a landfill disposal site within the counties of Marion,Polk,Clackamas, 16 Washington or Multnomah must be established in order to protect the health, safety and welfare of the 17 residents of an area for which a local government solid waste management plan has identified the need for a 18 landfill disposal site. In making its determination on the need for a landfill disposal site or,where applicable,on 19 the location of a landfill disposal site,the commission shall give due consideration to: 20 "(a)The legislative policy and findings expressed in ORS 459.015,459.017 and 459.065, and particularly 21 the policy that action taken under this section be exercised in cooperation with local government; 22 "(b)The provisions of the solid waste management plan or plans for the affected area; 23 "(c) Applicable local government ordinances, rules, regulations and plans other than for solid waste 24 management; 25 "(d)The state-wide planning goals adopted under ORS 197.005 to 197.430; 26 "(e)The need for a landfill disposal site; 27 "(f)The availability and capacity of alternative disposal sites or resource recovery systems and facilities; 28 "(g)The time required to establish a landfill disposal site; 29 "(h)Information received from public comment and hearings;and 30 "(i)Any other factors the commission considers relevant. 31 "(2)If the commission makes a determination under subsection(1)of this section that there is a need for a 32 landfill disposal site within a plan area,the commission may adopt an order directing the local government unit 33 responsible for implementing the plan to establish a landfill disposal site within a specified period of time. The 34 order may specify a time schedule for the completion of the major elements required to establish the site. A 35 local government unit directed to establish a landfill disposal site under this section may request assistance 36 from the department or request that the department establish the disposal site as provided in ORS 459.047. 37 "(3) If the commission determines that the establishment of a landfill disposal site ordered by the 38 commission under subsection (2) of this section is not being accomplished or that the completion of major (., 39 elements has fallen behind the time schedule specified in the order,the commission may direct the department l 40 to establish the disposal site or complete the establishment of the disposal site undertaken b. the local po p po by SA to HE 2295 Page 38 1 government unit. The commission may direct the department to establish or complete the establishment of a 2 landfill under this section only if the commission finds that: 3 "(a)The action is consistent with the state-wide planning goals relating to solid waste management adopted 4 under ORS 197.005 to 197.430[and/97.605 to 197.650 and any applicable provisions of a comprehensive plan 5 or plans;and 6 "(b)The responsible local government unit is unable to establish the landfill disposal site ordered by the 7 commission under subsection(2)of this section. 8 "(4) If the commission directs the department to establish or complete the establishment of a landfill 9 disposal site under subsection (3)of this section, the department may establish the site subject only to the 10 approval of the commission and the provisions of the solid waste management plan adopted for the area and in 11 consultation with all affected local government units. Notwithstanding any city, county or other local 12 government charter or ordinance to the contrary,the department may establish a landfill disposal site under this 13 subsection without obtaining any license,permit,franchise or other form of approval from a local government 14 unit. 15 "SECTION 55.ORS 527.726 is amended to read: 16 "527.726. (1)Nothing in ORS 527.722 and 527.724 is intended to preclude counties from performing their 17 ,planning duties pursuant to ORS 197.005 to 197.430 and[197.6051 197.610 to 197.650 with respect to forested 18 lands by: 19 "(a)Designating in comprehensive plans forested lands to be conserved in accordance with the state-wide te- 20 planning goals; 21 "(b)Zoning forested lands for uses other than or.complementary to commercial growing and harvesting of 0 22 forest tree species in implementing a comprehensive plan;or 23 "(c)Adopting rules, regulations or ordinances regulating forest operations on those forested lands zoned 24 for primary uses other than the commercial growing and harvesting of forest tree species in accordance with 25 the use or purpose for which those lands have been zoned. 26 "(2)As used in this section,'forested lands'means those lands upon which forest tree species are growing. 27 "SECTION 56.ORS 541.626 is amended to read: 28 "541.626. (1) As used in this section, 'mitigation' means the creation, restoration or enhancement of an 29 estuarine area to maintain the functional characteristics and processes of the estuary, such as its natural 30 biological productivity,habitats and species diversity,unique features and water quality. 31 "(2)Except as provided in subsection(4)of this section,the director shall require mitigation as a condition 32 of any permit for filling or removal of material from an intertidal or tidal marsh area of an estuary. 33 "(3)If the director requires mitigation,the director shall consider: 34 "(a)The identified adverse impacts of the proposed activity; 35 "(b)The availability of areas in which mitigating activities could be performed; 36 "(c)The provisions of land use plans for the area adjacent to or surrounding the area of the proposed 37 activity; 38 "(d)The recommendations of any interested or affected state or local agencies;and 39 "(e)The extent of compensating activity inherent in the proposed activity. 40 "(4)Notwithstanding any provisions of ORS 197.005 to 197.430 and [/97.605] 197.610 to 197.650 or the 41 state-wide planning goals adopted thereunder to the contrary,the director may: SA to HE 2295 Page 39 ti n 1 "(a) Waive mitigation in part for an activity for which mitigation would otherwise be required if,after i 2 consultation with appropriate state and local agencies the director determines that: 3 "(A)There is no alternative manner in which to accomplish the purpose of the project; 4 "(B)There is no feasible manner in which mitigation could be accomplished; 5 "(C)The economic and public need for the project and the economic and public benefits resulting from the 6 project clearly outweigh the potential degradation of the estuary; 7 "(D)The project is for a public use;and 8 "(E)The project is water dependent or the project is publicly owned and water related;or 9 "(b)Waive mitigation wholly or in part for an activity for which mitigation would otherwise be required if 10 the activity is: 11 "(A)Filling for repair and maintenance of existing functional dikes and negligible physical or biological 12 damage to the tidal marsh or intertidal areas of the estuary will result; 13 "(B)Riprap to allow protection of an existing bankline with clean,durable erosion resistant material when 14 a need for riprap protection is demonstrated that cannot be met with natural vegetation and no appreciable 15 increase in existing upland will occur; 16 "(C)Filling for repair and maintenance of existing roads and negligible physical or biological damage to the 17 tidal marsh or intertidal areas of the estuary will result; 18 "(D) Dredging for authorized navigation channels, jetty or navigational aid installation, repair or 19 maintenance conducted by or under contract with the Army Corps of Engineers; C. 20 "(E) Dredging or filling required as part of an estuarine resource restoration or enhancement project 21 agreed to by local,state and federal agencies;or 01 22 "(F)A proposed alteration that would have negligible adverse physical or biological impact on estuarine 23 resources. 24 "(5) Nothing in this section is intended to limit the authority of the director to impose conditions on a 25 permit under ORS 541.625(4). 26 "SECTION 56a.ORS 197.250 is amended to read: 27 "197.250. Except as otherwise provided in ORS 197.245,all comprehensive plans and land use regulations 28 adopted by a local government to carry out those comprehensive plans and all plans, programs, rules or 29 regulations affecting land use adopted by a state agency or special district shall be in[conformity]compliance 30 with the goals within one year after the date those goals are approved by the commission. 31 "SECTION 57.ORS 197.254 is amended to read: 32 "197.254. (1) A state agency shall be barred after the date set for submission of programs by the 33 commission as provided in ORS 197.180 (2), from contesting a request for acknowledgment submitted by a 34 local government under ORS 197.251 or from[submitting an objection] filing an appeal under ORS 197.620(1) 35 or[(3) (2),if the commission finds that: 36 "(a)The state agency has not complied with ORS 197.180;or 37 "(b) The state agency has not coordinated its plans, programs or rules affecting land use with the 38 comprehensive plan or land use regulations of the city or county pursuant to a coordination program approved ( 39 by the commission under ORS 197.180. 40 "(2) A state agency shall be barred from seeking a commission order under ORS 197.640[(2)](3)(c)and 41 [(6XaXB)(7)requiring amendment of a local government comprehensive plan or land use regulation in order to SA to HB 2295 Page 40 ■ A 1 comply with the agency's plan or program unless the agency has first requested the amendment from the local 7. 2 government and has had its request denied. 3 "(3) A special district shall be barred from contesting a request for initial compliance acknowledgment 4 submitted by a local government under ORS 197.251 or from [submitting an objection] filing an appeal under 5 ORS 197.620(1) or [(3)] (2), if the county or Metropolitan Service District assigned coordinative functions 6 under ORS 197.190(1)finds that: 7 "(a)The special district has not entered into a cooperative agreement under ORS 197.185;or 8 "(b)The special district has not coordinated its plans,programs or regulations affecting land use with the 9 comprehensive plan or land use regulations of the local government pursuant to its cooperative agreement 10 made under ORS 197.185. 11 "(4)A special district shall be barred from seeking a commission order under ORS 197.640[(2)](3Xc)and 12 [(6)(a)(B)] paragraph (b) of subsection (4) of section lle of this 1983 Act requiring amendment of a local 13 government comprehensive plan or land use regulation in order to comply with the special district's plan or 14 program unless the special district has first requested the amendment from the local government and has had its 15 request denied. 16 "SECTION 57a.ORS 197.255 is amended to read: 17 "197.255. Following the approval by the commission of goals and guidelines,each county governing body 18 shall review all comprehensive plans for land conservation and development within the county, both those 19 adopted and those being prepared.The county governing body shall advise the local government preparing the 20 comprehensive plans whether or not the comprehensive plans are in[conformity]compliance with the goals. 21 "SECTION 58.ORS 197.320 is amended to read: 22 "197.320. (1)The commission shall issue an order requiring a local government, state agency or special 23 district to take action necessary to bring its comprehensive plan,land use regulation or other land use decisions 24 into[conformity]compliance with the goals if the commission has good cause to believe: 25 "(a) A comprehensive plan or land use regulation adopted by a local government not on a compliance 26 schedule is not in [conformity]compliance with the goals by the date set in ORS 197.245 or 197.250 for such 27 [conformity]compliance; 28 "(b)A plan,program,rule or regulation affecting land use adopted by a state agency or special district is 29 not in[conformity]compliance with the goals by the date set in ORS 197.245 or 197.250 for such[conformity] 30 compliance; 31 "(c) A local government is not making satisfactory progress toward performance of its compliance 32 schedule; 33 "(d)A state agency is not making satisfactory progress in carrying out its coordination agreement or the 34 requirements of ORS 197.180; 35 "(e) A local government has no comprehensive plan or land use regulation and is not on a compliance 36 schedule directed to developing the plan or regulation; 37 "(f) A local government has engaged in a pattern or practice of decision making that violates an 38 acknowledged comprehensive plan or land use regulation;or ( 39 "(g) A local government has failed to comply with a commission order entered under [ORS 197.640 40 (6)(a)(B)]paragraph(b)of subsection(4)of section l le of this 1983 Act. SA to FIB 2295 Page 41 1 "(2) An order issued under subsection (1) of this section and the copy of the order mailed to the local 2 government,state agency or special district shall set forth: 3 "(a)The nature of the noncompliance, including, but not limited to, the contents of the comprehensive 4 plan or land use regulation,if any,of a local government that do not comply with the goals or the contents of a 5 plan,program or regulation affecting land use adopted by a state agency or special district that do not comply 6 with the goals; 7 "(b)The specific lands,if any,within a local government for which the existing plan or land use regulation, 8 if any,does not comply with the goals;and 9 "(c) The corrective action decided upon by the commission, including the specific requirements, with 10 which the local government,state agency or special district must comply. 11 "(3) An order issued under subsection (1) of this section shall state that a hearing may be requested to 12 contest the order.The local government,state agency or special district affected by the order or any person or 13 group of persons substantially affected or aggrieved by the order may request a hearing to contest the order. 14 The order shall become final 20 days after the mailing unless within such 20-day period the local government, 15 state agency or special district to which it is directed or person or group of persons substantially affected or 16 aggrieved,files with the commission a request for hearing.Where a hearing is requested,the commission shall 17 set a date for the hearing to be held within 60 days after the receipt of the request, and shall give the local 18 government,state agency or special district and person or group of persons substantially affected or aggrieved, 19 if any,notice of the hearing at least 30 days prior thereto. Where a hearing has been requested,the order shall 20 become final when there is no right to further hearing before the commission.The hearing and judicial review 21 of a final order shall be governed by the provisions of ORS 183.310 to 183.550 applicable to contested cases 22 except as otherwise stated in this section. The commission's final order shall include a clear statement of 23 findings which set forth the basis for the order.Where a petition to review the order has been filed in the Court 24 of Appeals,the commission shall transmit to the court the entire administrative record of the proceeding under 25 review. Notwithstanding ORS 183.482(3) relating to a stay of enforcement of an agency order, an appellate 26 court,before it may stay an order of the commission,shall give due consideration to the public interest in the 27 continued enforcement of the commission's order and may consider testimony or affidavits thereon. Upon 28 review,an appellate court may affirm,reverse,modify or remand the order.The court shall reverse,modify or 29 remand the order only if it finds: 30 "(a)The order to be unlawful in substance or procedure, but error in procedure shall not be cause for 31 reversal,modification or remand unless the court shall find that substantial rights of any party were prejudiced 32 thereby;or 33 "(b)The order to be unconstitutional;or 34 "(c)The order is invalid because it exceeds the statutory authority of the agency;or 35 "(d)The order is not supported by substantial evidence in the whole record. 36 "(4) If the commission finds that in the interim period during which a local government, state agency or 37 special district would be bringing itself into compliance with the commission's order under subsection(1)or(3) 38 of this section it would be contrary to the public interest in the conservation or sound development of land to 39 allow the continuation of some or all categories of land use decisions in one or more specified geographic areas, 40 it may,as part of its order,limit,[orj prohibit or require the approval by the local government of applications 41 for subdivisions,partitions or building permits until the plan or land use regulation is brought into compliance. SA to 1413 2295 Page 42 1 Any restriction under this subsection may be imposed only if the commission finds that the activity, if (--- 2 continued,aggravates the,goal,comprehensive plan or land use regulation violation and that the restriction is 3 necessary to correct the violation. A restriction imposed under this subsection shall apply only to the 4 geographic area that is the subject of the violation. 5 "(5)As part of its order under subsection(1)or(3)of this section,the commission may withhold grant 6 funds from the local government to which the order is directed. 7 "(6)The commission may institute actions or proceedings for legal or equitable remedies in the Circuit • 8 Court for Marion County or in the circuit court for the county to which the commission's order is directed or • 9 within which all or a portion of the porC applicable city is located to enforce compliance with the provisions of any 10 order issued under this section or to restrain violations thereof. Such actions or proceedings may be instituted r` 11 without the necessity of prior agency notice,hearing and order on an alleged-violation. 12 "SECTION 59.ORS 197.605,197.630,197.635,sections 4,5,6,6a,28 and 29,chapter 772,Oregon Laws r 13 1979,and sections 9a,31,59 and 61,chapter 748,Oregon Laws 1981,are repealed October 1,1983. 4; 14 "SECTION 60.(1)The following provisions of this Act shall not become operative until October 1,1983: 15 "(a)The provisions of section 1 deleting the reference to ORS 197.605 and inserting the reference to ORS 16 197.610; 17 "(b) The provisions of section 3 deleting references to ORS 197.605 and inserting references to ORS 18 197.610,and the provision of section 3 amending ORS 197.175(2Xc); 19 "(c)The provisions of section 4 amending ORS 197.180(1)and(2); 20 "(d)The provision of section 21 amending ORS 215.422(2); 21 "(e)The provision of section 25 amending ORS 227.180(2); - 22 "(f)The provisions of section 57 amending ORS 197.254(1)and(3);and 23 "(g)Sections 2,6 to 10,28 to 35a,42 to 46,52,55 and 56. 24 "SECTION 61.This Act being necessary for the immediate preservation of the public peace, health and 25 safety,an emergency is declared to exist,and this Act takes effect on its passage.". is SA to HB 2295 Page 43 1 • • • 1 AGENDA - - TIGARD PLANNING COMMISSION SEPTEMBER 13, 1983 - 7 :30 P .M. FOWLER JUNIOR HIGH SCHOOL - LGI Room 10865 S .W. Walnut - Tigard , Or . 1 . Open Meeting 2 . Roll Call 3 . Approval of minutes from previous meeting 4 . Planning Commission Communication 5 . PUB! IC HEARINGS 5. 1 COMPREHENSIVE PLAN AMENDMENT CPA 12-83 ZONE CHANGE 9-83 PCM ASSOCIATES/PORTLAND CHAIN NPO # 2 5.2 COMPREHENSIVE PLAN AMENDMENT CPA 13-83 CARL JOHNSON NPO # 4 5.3 SUBDIVISION - PLANNED DEVELOPMENT S 8-83PD CENTURY 21 HOMES NPO # 3 5.4 ANNEXATION - ZONE CHANGE ZC 12-83 S.W. 78th and Pfaffle NPO # 4 4'14 5.5 COMPREHENSIVE PLAN AMENDMENT CPA 14-83 LCDC Goal # 5 6. Other Business CA 7 . Adjourn Meeting flt1 - • , • T I G A R D P L A N N I N G C O M M I S S I O N REGULAR MEETING September 13, 1983 1. Acting President Edin called the meeting to order at 7:40 P.M. The g g P.M. , meeting was held at Fowler Junior High School - in the Lecture Room, 10865 S.W. Walnut, Tigard, Or. 2. ROLL CALL: PRESENT: Acting President Edin, Commissioners Owens, Butler, Vanderwood, Leverett and Fyre. ABSENT: President Tepedino; Commissioners Christen and Moen. STAFF: Director of Planning and Development William A. Monahan; Associate Planner Elizabeth Newton and Assistant Planner Hamid Pishvaie; Secretary Diane ( M. Jelderks 3. Minutes from August 30, 1983, were considered, Commissioner Owens moved and Commission Fyre seconded to approve the minutes as submitted. 4. PLANNING COMMISSION COMMUNICATION a Chief Adams appeared before the Commission as invited. He discussed crime prevention through environmental design and asked for an opportunity to apear before the Commission to give a formal presentation. Staff will schedule. 5. PUBLIC HEARINGS 5. 1 COMPREHENSIVE PLAN AMENDMENT CPA 12-83 ZONE CHANGE ZC 9-83 PCM Associates/Portland Chain NPO # 2 A remand from the City Council to the Planning Commission for a Comprehensive Plan Change from Light Industrial to General Commercial and a Zone Change from M-4 to C-3. Located: 9770 SW Scholls Ferry Rd. (Wash. Co. Tax Map 1S1 27DD lot 1200) o Associate Planner Newton explained how the application was remanded back to the Planning Commission. She also made staff's recommendation for denial. n NPO - CCI COMMENTS - No one appeared to speak. o APPLICANT'S PRESENTATION - Terry Hauck, Attorney, 1200 Standard Plaza, representing the applicant, read a letter from Bruce Clark, a member of NPO # 2, supporting the application. Mike McKenna, 400 SW 6th, Portland, showed a video tape of the surrounding area and the site. The tape is to be reproduced and submitted to the city staff for the public record. 1110 4110 Richard Wright, Toys "R" Us, Kent, Washington, read a letter into the record from Michael Miller, Toys "R" Us, Inc. , Rochelle Park, New Jersey, supporting the application. He concluded that a business is aided or hampered by his neighbor and they needed the adjoining 1 property to be zoned commercial. Robert Figone, Levitz, Santa Clara, California, explained how the site would be used as a retail showroom with no warehousing. He submitted a copy of Levitz's annual report, before and after pictures of a remodeled Levitz store, photos of the site and area, and a drawing of the proposed building. Guy Barber, General Manager, Levitz, Milwaukie, Oregon, stated that he had been looking for a southwest site for the last five years. This is a excellent location for their needs. 0 Mr. Hauck reviewed the staff report noting that the history did not include adotption of the Comprehensive Plan which changed the site from Commerical to Industrial. He read a letter into the record from John B. Nordholt III, General Manager for Portland Chain, supporting the rezoning. He reviewed the amount of vacant industrial land within the city. He reviewed staff's findings, taking axception'l' and pointing out inconsistencies which he did not feel were supported by evidence. He explained how the site met the criteria for commercial retail use. PUBLIC TESTIMONY 1 o John Skourtes, 17010 SW Weir Road, Beaverton, opposed the changed. He felt this would be breaking the block. If they changed one site they should change the whole area. He stressed that the Planning commission is considering a zone change, not the advantages of Levitz over another use. CROSS EXAMINATION AND REBUTTAL o Mr. Hauck stated they were here to correct a injustice caused by the rezoning done during the Comprhensive Plan process. o Commissioner Owens asked staff to clarify why staff was requesting denial when the application appeared to meet the criteria for commercial retail. Also, Portland Chain was not an appropriate use for a Industrial Park zone. Associate Planner Newton explained how staff made their decision based on land use not on client use. Lengthy discussion followed. PUBLIC HEARING CLOSED o Commissioner Butler did not support. o Commissioner Leverett favored the application as being the highest and best use for the land. PLANNING COMMISSION MINUTES September 13, 1983 Page 2 4110 4110 • o Commissioner Pyre felt it was unfortunate that Toy "R" Us was allowed at this location as it is ideal for Light Industrial/Industrial Park use a Acting President Edin had mixed emotions, he felt areas should be protected from encroachment. There was a mistake made in zoning Toys "R" Us and he supported staff's recommendation. However he did not see any problem with zoning the property commercial. Commissioner Owens was concerned that once they started changing designations to commercial this would cause other property owners in the area to request changes to commercial. She felt this was a difficult application to decide. o Commissioner Vanderwood moved, and Commissioner Butler seconded to • move for denial of the applicant's request for a Comprehensive Plan Amendment from Light Industrial to General Commercal and for denial of the Zone Change from M-4 to C-3. Motion carried by majority vote of Commissioner present, Commissioner o Edin and Leverett voting no. RECESS: 9:10 P.M. RECONVENE: 9:25 P.M. 5.2 COMPREHENSIVE PLAN AMENDMENT CPA 13-83 Carl Johnson NPO # 4 A request to amend policy 11.4.2, 11.4.2 a and b regarding the NPO # 4 area in the Findings, Policies and Implementation Strategies document. o Associate Planner Newton requested the Planning Commission review the information submitted and make a recommendation to City Council on the interpreation of the policy. APPLICANT'S PRESENTATION - Mr. Johnson, 6155 SW Bonita, Lake Grove, • explained how they were requesting that language be changed to enable development to occur west of 72nd Ave. . _ a NPO COMMENTS - Gordon Martin, NPO # 4 member, stated that the NPO was in unanimous agreement with Mr. Johnson. PUBLIC TESTIMONY o Jim Miller 12918 SW 63rd Place supported Mr. Johnson's request. CROSS EXAMINATION AND REBUTTAL o Discussion followed regarding the LIDs in the Tigard Triangle and the intent of the City Council's policy language. PLANNING COMMISSION MINUTES September 13, 1983 Page 3 4111 4110 PLANNING COMMISSION DISCUSSION AND ACTION Commissioners Butler and Vanderwood, both stated trey had attended the City Council public hearings and did not support the change. Conu issioner Fyre supported the NPO's recommendation. o Commissioner Owens did not feel there was enough information to make a decision, espcially since the NPO felt one way and the City Council another. o Acting President Edin was sensitve to NPO # 4 concerns, however, there is merit to the City Council decision and he supported the existing language. o Commissioner Butler moved and Commisioner Vanderwood seconded to keep policy 11.4 as stated in the Findings, Policies and Implementation Strategies document. Motion carried by majority vote of the Commissioners present, Commissioner Fyre voting no. 5.3 SUBDIVISION - PLANNED DEVELOPMENT S 8-83 Century 21 Homes NPO # 3 This item has been withdrawn and will be reheard on October 4, 1983. 5.4 ANNEXATION - ZONE CHANGE ZC 12-83 S.W. 78th and Pfaffle. A request by residents of SW 78th Avenue to consider a petition for annexation to the City of Tigard. Also, to assign a low density residential Comprehensive Plan designation and a R-7 zoning designation. Location: (Wash. Co. TAx Map 181 36CA tax lots 400, 50Q, 600, 700, 800, 900, 1000, 1100, 1200, 1300, 1400, 2000, 2001, 2002, 2003, 2006, 2007, 2008, 2009, 4800, 4900, 5000, 5100, 5201, 5300 and 5500). o Assistant Planner Pishvaie made staff's recommendation for approval. o NPO AND CCI COMMENTS -- No one appeared to speak. o APPLICANT'S PRESENTATION - Steve Mosacher, 11115 SW 78th, respresenting area requesting annexation stated they were unhappy with the Metzger Plan. They had problems with the condition of their street and it being opened to through traffic. They hoped to be annexed to the City of Tigard and that the City would help them maintain their residential character. PUBLIC TESTIMONY o Shirley Rowe, 10307 SW 90th, Chairperson for the Metzger CPO, stated the plan recommended there be no piecemeal annexation done. They did not support the application unless the whole Metzger CPO area would be annexed. PLANNING COMMISSION MINUTES September 13, 1983 Page 4 4110 4110 o Mary Bartlett, 11045 SW 78th, stated they not only had a traffic problem but also wanted police protection. There is also a drainage problem which they felt the City would be able to help them correct. CROSS EXAMATION AND REBUTTAL o Commissioner Owens questioned if any other, people were interested in • annexing to Tigard and why was staff recommending a piecemeal annexation. o Director of Planning and Development Monahan explained that the Urban Planning Area Agreement does not allow the City to initiate piece • meal annexations. However, if property owners initated the petition then the city could accept. No one else in the area was interested in annexing. COMMISSION DISCUSSION AND ACTION o Commissioner Butler was concerned about the substandard streets and if the policy was being followed as stated in the Policies document regarding nonremonstrance agreements against the formation of LIDS. o Lengthy discussion followed regarding the condition of the streets j s and who was responsible for bringing them up to standard. Consensus of the Commission was that they supported the zone change annexation with the signing of nonremonstrance agreements. • o Commissioner; Butler moved and Commissioner Fyre seconded to forward a recommendation of approval to the City Council for the proposed annexation, and for approval of the Zone Change to R-7 (single family residential) become effective upon Council approval of the annexation with the condition that policy 10.1.1 b, c and d for LIDs be required • for annexation. Motion carried unanimously by Commissioners present. 5.5 COMPREHENSIVE PLAN AMENDMENT CPA 14-°83 LCDC Goal # 5 A request by the City of Tigard to update the Comprehensive Plan to comply with LCDC Statewide Planning Goal # 5 considering an analysis of Economic, Social Environmental and Energy (EESE) factors. a Associate Planner Newton reviewed the document requesting the Planning Commission make a recommendation to City Council. PUBLIC TESTIMONY - No one appeared to speak CROSS EXAMINATION AND REBUTTAL o Commissioner Edin questioned if an operating Tree Farm would be able to cut trees. Associate Planner Newton explained there was a Tree Cutting Ordinance which exempts individuals who belong to a certain Tree Farming Organization. PLANNING COMMISSION MINUTES September 13, 1983 Page 5 A 4110 4110 o Mrs. Rowe, Metzger CPO Chairperson, questioned why all the Greenway area were not colored in on the Map. Staff explained that this map only showed items covered under the Goal # 5. o Commission Owens requested that the first paragraph on page fourteen be clarified. o Commissioner Leverett moved and Commissioner Vanderwood seconded to forward Comprehensive Plan Amendment CPA 14-83 to City Council with a recommendation for approval. •Motion carried unanimously by Commissioners present. 6. OTHER BUSINESS o Commissioner Eyre stated he would be out of town until October 17, 1983 and would not be able to attend the next Planning Commission meeting. 1 7. Meeting Adjourned 10:45 P.M. 1 i-,,,,i-iw ...,:,....,,,,./ : . , „.,/ Diane M. Jelder Secretary r II 0 ATTEST: 1 14."i /, a/ Phil Edin, Acting President • PLANNING COMMISSION MINUTES September 13, 1983 Page 6.