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03/15/2004 - Minutes CITY OF TIGARD PLANNING COMMISSION Meeting Minutes March 15, 2004 1. CALL TO ORDER President Padgett called the meeting to order at 7:00 p.m. The meeting was held in the Tigard Civic Center, Town Hall, at 13125 SW Hall Blvd. 2. ROLL CALL Commissioners Present: President Padgett; Commissioners Bienerth, Buehner (arrived late), Caffall, Haack, Meads Commissioners Absent: Commissioners Munro, Sutton, and Webb Staff Present: Barbara Shields, Planning Manager; Duane Roberts, Associate Planner; Jerree Gaynor, Planning Commission Secretary 3. APPROVE MINUTES It was moved and seconded to approve the February 23, 2004 meeting minutes as submitted. The motion passed by a vote of 4-0. Commissioner Caffall abstained; Commissioner Buehner arrived after the vote was taken. 4. LAND USE TRAINING WITH CITY ATTORNEY Mayor Craig Dirksen and Councilors Sydney Sherwood, Tom Woodruff, and Nick Wilson were present for the training along with the Planning Commission. City Attorney Gary Firestone provided a PowerPoint presentation on Planning Commission issues and procedures related to land use decisions (Exhibit A). The training covered legislative and quasi-judicial decisions, substantive issues in quasi-judicial decision making, the hearing procedure, Commission participation in the decision process, and takings. 5. PLANNING COMMISSION COMMUNICATIONS President Padgett spoke about the purpose of updating the City's Comprehensive Plan. Initially the Comprehensive Plan was put together as a "blue print' as to what the City would be like after everything was developed. Now the question is if we want the City to turn out the same way as we wanted 20 years ago. If so, will the existing Comprehensive Plan get us there with perhaps a little fine-tuning. If not, what changes need to be made to the Comprehensive Plan to get us to what we want. If it's decided that we want the City to turn out differently from what we wanted 20 years ago, we will need to determine what changes, if any, need to be made to the Comprehensive Plan. PLANNING COMMISSION MEETING MINUTES -March 15,2004-Page 1 6. CITY AFFORDABLE HOUSING PROGRAM AND COMPLIANCE WITH METRO TITLE 7 (URBAN GROWTH MANAGEMENT FUNCTION PLAN) Associate Planner Duane Roberts advised that he would be returning to'the Commission soon with a Comp Plan amendment which is required to bring the City into compliance with Metro's Title 7. He referred to a chart outlining Tigard's affordable housing program (Exhibit B). He advised that none of the implementing measures listed in the program are mandatory. Barbara Shields reported that Statewide Goal #10 contains mandatory compliance issues related to affordable housing. The City must address maintaining the supply of existing affordable housing and increasing opportunities for new dispersed affordable housing. 7. GOAL 5 — ENVIRONMENTAL, SOCIAL, ECONOMIC, ENERGY (ESEE) ANALYSIS Duane Roberts advised that the Commission needs to make a recommendation to City Council on the adoption of the ESEE decisions. He provided a brief overview of the Goal 5 effort to develop protection programs for riparian and upland wildlife habitat resources. There are 3 steps involved: inventory, ESEE analysis (identifying conflicts between protecting the resources and allowing development and deciding how conflicts should be resolved), and developing a program for protecting the resources. Metro has given Washington County the responsibility for completing the second two steps in the Goal 5 process. By the end of March, a County policy committee will make its decision regarding the ESEE conceptual decisions. Roberts briefly reviewed the Title 3 Hydrologic Features map, the Allow-Limit- Prohibit (ALP) map, and the Goal 5 Riparian (final scoring) map. He also explained the ALP recommendation chart (Exhibit C). President Padgett agrees with the criteria and philosophy being used, however, he is not comfortable with the program if it means some other body will have sole discretion on determining how much and what kind of development can occur in the areas. Roberts advised that County jurisdictions must present a program to Metro that we can document will improve environmental conditions. Metro will review and approve or deny the program. The Commission wants to ensure that the cities in Washington County (Basin Partners) will be able to determine what the development levels will be in their final proposal to Metro. Commissioner Buehners moved and Commissioner Haack seconded the motion to make a recommendation to City Council to support the adoption of the Goal 5 ALP general recommendation, conditional upon Metro making the Allow-Limit- Prohibit map accurate, the City understanding what the designations will really mean (e.g., limited development), and the program developed by the Basin Partners reflecting Basin decisions. The motion passed unanimously. PLANNING COMMISSION MEETING MINUTES -March 15,2004-Page 2 8. METRO PERFORMANCE MEASURES SURVEY DISCUSSION Commissioner Buehner volunteered to attend the March 16th City Council meeting to clarify the Planning Commission's comments in their letter to Metro regarding physical attributes of Tigard's sense of place. 9. OTHER BUSINESS President Padgett is reviewing the ODOT 99W Corridor Study for information relating to funding for alleviating traffic on Hwy. 99W. The next meeting is scheduled for March 29th at 6:00 p.m. The Commission will also meet April 26th and May 24th for Comprehensive Plan workshops. 10. ADJOURNMENT The meeting adjourned at 10:04 p.m. i rd re �ynor, PI-nnin; ommission Secretary AT1 ST: 'Ilr-sident Mark Padgett PLANNING COMMISSION MEETING MINUTES -March 15,2004-Page 3 Overview of Presentation 'PLANNING COMMISSION Legislative/Quasi-judicial ISSUES AND PROCEDURES • Legislative Decisions Substantive Issues in Quasi-Judicial Decision Timothy V.Ramis Making Gary Firestone Hearing Procedure Ramis Crew Corrigan&Bachrach Participation in Decision City Attorneys RESPONSIBILITIES LEGISLATIVE - • LEGISLATIVE - Land use legislation • In most cases,the Planning • Comprehensive Plan(Text,Inventories and Maps) Commission makes a recommendation • Community Development Code to the City Council,which adopts the • Annexations Comprehensive Pfan amendment,zone • QUASI-JUDICIAL change, or CDC amendment - Hearingson land use applications • Applicable standards include • Quasi-judicial may Include site-specific Comprehensive constitutional and statutory provisions, Plan map and Zoning Map changes statewide land use planning goals, and Comprehensive Plan n LEGISLATIVE DECISIONS COMPREHENSIVE PLANS • Even legislative decisions must be based on • ORS 197.175(2)requires each city and applicable standards and criteria and on county to prepare,adopt and amend substantial evidence comprehensive plans in compliance with the statewide land use planning goals • Findings are not absolutely required,but are • If a local government has an acknowledged always advisable to help explain decision, comprehensive plan,the statewide goals do and a lack of findings may result in a remand no apply directly to develop findings to explain consistency Goal 2 requires that plans include factual with applicable standards and criteria data,including inventories and other information 1 PERIODIC REVIEW/ PLAN AMENDMENT • A local government may amend its UBSTANTIVE ISSUES IN comprehensive plan at any time by following the post-acknowledgment plan amendment UASI JUDICIAL procedures of ORS 197.610—197.625 • LCDC may require comprehensive plan ECISION MAKING amendments or changes to implementing regulations as part of periodic review, but comprehensive plan amendments may be adopted outside of periodic review • With cuts to DLCD,periodic review _ opportunities will be limited in the future i • APPLICABLE LAW DECISION STANDARDS Primary Law Governing Decisions: - Community Development Code • CDC is main source of standards and Other criteria - CDC 18.210.030 provides: Each development and - CDC requires compliance with applicable land use application...Shall be consistent with the federal and state laws and regulations adopted comprehensive plan of the City of Tigard _ CDC must be construed in conformity with as implemented by this title and with applicable state and federal laws and regulations. All the Comprehensive Plan provisions of this title shall be construed in conformity with the adopted comprehensive plan." applicability of Law other than CDC STANDARDS AND CRITERIA State and Federal Constitutions • Mandatory standards and criteria in • Statte o Always- statutes statutes andregulahons CDC must be followed - Usually. Some statutes/regulations apply only until • Failure to make decision based on implemented in the CDC,atter which CDC controls. • Goals mandatory standards or criteria may - Do not apply directly once Implemented by acknowledged prevision lead to reversal at LUBA In CDC Comprehensive Plan • Failure to follow procedure will result in • - Not directly applicable_applications must comply with reversal only if substantial rights Comprehensive Plan as Implemented by the CDC affected • Metro Plans and Rules - Normally are not applicable In quasidudicial context. 2 DEFERENCE TO CITY EVIDENCE • The City Council's interpretation of its • Decisions must be based on substantial own code is entitled to deference by evidence in the whole record LUBA and the courts If evidence is presented on both sides, decision maker must decide which evidence • The Planning Commission's is more persuasive and explain why that interpretation is not entitled to deference evidence is more persuasive • Evidentiary standard is less onerous than in • The City Council's interpretation of state court trial statutes is not entitled to deference • Staff report and comments are evidence that can support a decision PROCEDURE _ Due process requirements • Notice of hearing must be provided HEARING PROCEDURE • Present and rebut evidence • Decision must be based on the record • Issue must be raised • Impartial decision maker • Burden of proof(on applicant) FARING PROCESS Planning Commission/City Council rder of Hearing _ Role at Hearing • • Ask questions • staff Presentation • Applicant • Give instructions to staff • Those in support • Neutral • Deliberate • Those opposed • Rebuttal by Applicant • Make decision - Applicant has burden so is entitled to go first and last 3 ORS 197.763 FINDINGS Statutory procedural requirements for hearing Raise it or waive it '• Notice of hearing must be provided • Decisions must be based on findings, • Documents available to public which must be based on evidence in the • Opening statement at hearing record • Substantive criteria • Tesumeny must be directed atcriteria • Findings are statements of facts, and • Failure to raise an issue waives It explanations of how the decision is • Right to conllnuancelsubmission or additional evidence on request • Additional hearing based on the facts • submittal of written evidence • Findings must address all relevant • Right to respond to additional evidence • Applicant has right to argument after all evidence in criteria • if record reopened,all have rdohtto raise new Issues relating to new evidence CONDITIONS OF APPROVAL 120 Day Rule Conditions of approval may be imposed: • Local government has 120 days from When authorized by code date of application to make final land • use decisions • When application could be denied if • Applies to most quasi-judicial conditions not imposed applications • To insure compliance with applicable - • Does not apply to Comprehensive Plan criteria text or map changes or CDC text amendments EFFECT OF 120 DAY RULE EXPEDITED LAND DIVISIONS • Applicant can seek writ of mandamus • Expedited land divisions are govemed by statutes from Circuit Court that are mandatory on local governments - Court will order application approved • Heard by a referee,not the Planning Commission (usually without conditions)if applicant is • Apply to entitled to approval - Residential subdivisions outside of designated natural and historical resource areas that satisfy street connectivity standards and minimum density(80%of maximum) • City required to refund fees and deposit - Partitions tat meet the standards for subdivisions other than the minimum density standard • Optional procedure--Applicant may choose either _ standard procedure or expedited land division 4 PUBLIC MEETINGS -• Planning Commission and City Council Meetings are Public Meetings • Must be noticed and open to the public PARTICIPATION I N • Must be accessible • Interpreter to be provided for hearing DECISION impaired upon request • Written minutes are required • A quorum cannot meet except at a noticed public meeting PARTICIPATION IN DECISION IMPARTIALITY Conflict of Interest(Financial) • Actual conflict of interest if decision would • Due process requires an impartial have a financial effect on decision-maker tribunal and a decision based on the - Must announce conflict and not participate in decision(unless vote needed to decide matter) record • Potential conflict of interest if could have a financial effect on decision-maker - Must announce potential conflict but may participate in decision • IMPARTIALITY (Continued) EX PARTE CONTACTS •Bias • Decisions must be on the record • Political view in most cases does not constitute bias • Any information obtained by a • Bias is based on a personal relationship(positive or Commissioner outside the record must negative)with a party • Bias(personal relationships)should be disclosed be disclosed • A decision maker should not participate In a decision -All communications with the applicant or if a personal relationship with a party makes It any person other than City staff about the Impossible for that person to decide fairly and application or the property impartially -Any site visit 5 • DISCLOSURE OF EX PARTE CONTACTS • Ex parte contacts do not prevent participation in a decision by a Commissioner if they are disclosed on TAKINGS the record • The disclosure must state the circumstances of the contacts, who the contact was with,and the contents of the communication CONSTITUTIONAL BASES TAKINGS IN THE LAND USE _ CONTEXT• Fifth Amendment, U.S. Constitution • Article I, section 18 of the Oregon • Regulatory takings Constitution • Both require governments to pay for • property they have taken Exactions • Takings: - Eminent domain(condemnation) - Regulatory Takings - -Exactions - REGULATORY TAKINGS EXACTIONS • 'land-use regulation that deprives t - property owner of all reasonable use of the Requirement to dedicate property or to allow property others on property is an exaction • In Oregon,the property"may be less than an Requirement to build public improvements is existing lot an exaction under Oregon law,especially if • Measure 7 provided that,if a land use off-site regulation restricts the use of property and Setbacks,height limitations,design the restriction reduces the value of the standards,and similar regulations are not property,compensation for the lost value exactions,but may together result in a would be required. Measure 7 was declared regulatory taking if they prevent all use of the invalid,but similar provisions may be passed property _ in the future 6 RULES GOVERNING EXACTIONS _(Nollan/Dolan Rules) • Government may exact property at time of land use approval • If exaction Is roughly proportional to(or less than) and directly related to an Impact of the development on a matter of public Interest,no compensation Is required • If the exaction exceeds the rough proportionality standard,compensation is required 7 Tigard Affordable Housing Program Land Use Strategies • An updated and streamlined development review process • Reduced parking requirements for affordable housing projects • Allowance of accessory dwelling units Non-Land Use Strategies • Tax abatement for affordable housing • A budget set-aside to reduce fees and charges imposed on affordable housing development • Support for the sale or donation of tax foreclosed properties to non-profit housing providers • Financial support for the operation of the Tigard-based Good Neighbor Center homeless shelter • Rent-free office space for a Tigard-based affordable housing provider • Identification and pursuit available grants to finance needed on- and off-site public improvements, such as sidewalks, streets, and storm sewers, serving affordable housing areas or projects • The Housing Inspection Program to maintain the quality of the City's existing housing stock • The Housing Emergency Fund to assist occupants of housing declared to be unsafe or uninhabitable • The Enhanced Safety Program, administered through the Tigard Police Department, to improve the safety of rental properties • Membership in the County-wide Housing Advocacy Group i�h∎�{ G i 7`4 4 --1TH '4!-, , endation • , _ _ _ _ cc \ - ri , Recof P General �i ��v k� f � k "'..sn. F Use Category Conflicting High Other Future Non- Resource Value intensity Urban Urban 5111111.1111.11"11 11;Ell Urban Urban Class I resource Class 11 resource liallinill MUM Class 111 resource Inner Impact Area A A A Outer Impact Area A 19