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CUP2017-00005 Decision - Jackson Food Stores #530 BEFORE THE LAND USE HEARINGS OFFICER FOR THE CITY OF TIGARD, OREGON Regarding an application by Barghausen Consulting ) F I N A L O R D E R Engineers for a conditional use permit for redevelopment ) CUP2017-00005/ of an existing gas station and store at 11290 SW Bull ) ADJ2018-00011 Mountain Road, in the City of Tigard, Oregon ) (Jackson Food Store No. 530) A. SUMMARY 1. The applicant, Barghausen Consulting Engineers, requests approval of a conditional use permit for the redevelopment of the existing Jackson Gas Station and Food Store No. 530 located at 11290 SW Bull Mountain Road; also known as WCTM 2S110AC, Tax Lot 01101 (the “site”). The proposal includes demolition of the existing convenience store, car wash, and dispenser canopy and construction of a new 4,250- square-foot convenience store, dispenser canopy, and associated site improvements. The applicant is also requesting an adjustment to the driveway spacing standard. Additional basic facts about the site and surrounding land and applicable approval standards are provided in the Staff Report to the Hearings Officer dated May 31, 2018 (the "Staff Report"), incorporated herein by reference. 2. Tigard Hearings Officer Joe Turner (the “hearings officer”) conducted a duly noticed public hearing to receive testimony and evidence in this matter. At the public hearing, City staff recommended approval of the application, subject to conditions of approval in the Staff Report. Representatives of the applicant testified in support of the application. One person testified orally with questions and concerns about the application. The only disputed issue in this case is whether the applicant can prevent pedestrians from crossing SW Bull Mountain Road outside of the marked crosswalk. 3. Based on the findings and discussion provided or incorporated in this final order, the hearings officer concludes that the applicant sustained the burden of proof that the proposed development does or will comply with the applicable criteria of the Community Development Code, provided development that occurs after this decision complies with applicable local, state, and federal laws and with conditions of approval warranted to ensure such compliance occurs in fact. Therefore those application should be approved subject to such conditions. B. HEARING AND RECORD 1. The hearings officer received testimony at the public hearing about this application on June 11, 2018. All exhibits and records of testimony are filed with the Tigard Department of Community Development. At the beginning of the hearing, the hearings officer made the declaration required by ORS 197.763. The hearings officer disclaimed any ex parte contacts, bias or conflicts of interest. The following is a summary by the hearings officer of selected testimony offered at the public hearing in this matter. CUP2017-00005 and ADJ2018-00011 Hearings Officer Final Order (Jackson Food Store No. 530) Page 2 2. City planner Agnes Lindor summarized the Staff Report and the proposed development. 3. Charles Moseley and Dan Haga testified on behalf of the applicant, Barghausen Consulting Engineers. Mr. Moseley accepted the findings and conditions in the Staff Report without exceptions. Mr. Haga noted that there is an existing cross-walk on SW Bull Mountain Road at the intersection with Highway 99, which provides safe pedestrian access to the site. The only way to prevent pedestrians from crossing the street outside of the crosswalk is through enforcement. 4. Reverend Dorothy Cottingham expressed concern with customers of the existing Jackson store crossing SW Bull Mountain Road outside of the crosswalk in order to reach the site. She questioned whether the proposed development will take steps to prevent such hazardous movements. 3. Principal city engineer Khoi Le testified that pedestrians crossing SW Bull Mountain Road outside of the crosswalk are doing so illegally. There is a marked crosswalk at the Highway 99 intersection, a few hundred feet to the east. The only way to prevent pedestrians from crossing the street outside of the crosswalk would be to install a physical barrier in the roadway. However the site frontage is within the ODOT controlled influence area of the Highway 99 intersection. ODOT would be unlikely to allow such a barrier, as it would limit left turn movements on Bull Mountain Road. This issue can only be addressed through enforcement. 4. The hearings officer closed the record at the end of the hearing and announced his intention to approve the application subject to the recommended conditions of approval in the Staff Report. C. DISCUSSION 1. City staff recommended that the hearings officer approve the application, based on the affirmative findings and subject to conditions of approval in the Staff Report. The applicant accepted those findings and conditions without exceptions. 2. The hearings officer finds that the Staff Report accurately identifies all of the applicable standards for the application and contains sufficient findings showing the application does or can comply with those standards subject to conditions of approval, based on substantial evidence in the record. The hearings officer adopts the affirmative findings in the Staff Report as his own except, except to the extent they are inconsistent with the following findings. 3. The hearings officer understands Reverend Cottingham’s concerns with illegal pedestrian crossings on Bull Mountain Road. As discussed at the hearing, a physical barrier is the only way to prevent such crossings. However a barrier sufficient to preclude CUP2017-00005 and ADJ2018-00011 Hearings Officer Final Order (Jackson Food Store No. 530) Page 3 pedestrian crossings would likely interfere with vehicular traffic and potentially create a safety hazard. The existing crosswalk east of the site provides safe and legal access to the site for pedestrians accessing the site from the north side of Bull Mountain Road. Reasonably prudent pedestrians will utilize this crosswalk. Unfortunately not all pedestrians are prudent. However there is no evidence that the development proposed in this application will contribute a disproportionate share of imprudent pedestrians. If necessary the City can address issues of jaywalking by providing increased enforcement of traffic laws in this area. B. ORDER In recognition of the findings and conclusions contained herein, and incorporating the Staff Report and public testimony and exhibits received in this matter, the hearings officer hereby approves CUP2017-00005 and ADJ2018-00011(Jackson Food Store No. 530), subject to the following conditions of approval: CONDITIONS OF APPROVAL THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO COMMENCING ANY SITE WORK: The applicant shall prepare a cover letter and submit it, along with any supporting documents and/or plans that address the following requirements to the COMMUNITY DEVELOPMENT DEPARTMENT ATTN: Agnes Lindor, 503-718- 2429. The cover letter shall clearly identify where in the submittal the required information is found: 1. Prior to site work, the project arborist shall perform a site inspection for tree protection measures, document compliance/non-compliance with the urban forestry plan, and send written verification with a signature of approval directly to the project planner within one week of the site inspection. 2. The project arborist shall perform semimonthly (twice monthly) site inspections for tree protection measures during periods of active site development and construction, document compliance/non-compliance with the urban forestry plan, and send written verification with a signature of approval directly to the project planner within one week of the site inspection. 3. Prior to site work, the applicant shall provide a tree establishment bond for all trees to be planted in accordance with the approved urban forestry plan. The total bond amount shall be equivalent to the city’s average cost to plant and maintain a tree per the applicable standards in the Urban Forestry Manual for a period of one year after planting multiplied by the total number of trees to be planted and maintained. Final amount determined upon submittal of revised plans. 4. Prior site work, the applicant shall submit to the city the current Inventory Data Collection fee for urban forestry plan implementation. The fee shall be CUP2017-00005 and ADJ2018-00011 Hearings Officer Final Order (Jackson Food Store No. 530) Page 4 for the two preserved trees and any newly planted trees. Final amount determined upon submittal of revised plans. 5. The applicant shall submit a revised plan showing the required street trees, pay into the street tree fund, or a combination thereof. 6. Tree #16 is too close to paved surfaces, and Trees #19 through #24 do not meet the minimum 30-foot spacing requirements and spacing from underground utilities. The applicant shall submit a revised urban forestry plan and supplemental report to address these deficiencies, pay into the urban forestry fund, or combination thereof. 7. The applicant shall submit a revised plan showing the required screening for the refuse areas. The applicant shall prepare a cover letter and submit it, along with any supporting documents and/or plans that address the following requirements to the ENGINEERING DEPARTMENT, ATTN: Khoi Le 503-718-2440. The cover letter shall clearly identify where in the submittal the required information is found: 8. Improvements associated with public infrastructure, including street improvements and right-of-way dedication, utilities, grading, water quality and quantity facilities, streetlights, easements, easement locations, and utility connections for future utility extensions shall be designed in accordance with the following codes and standards:  City of Tigard Public Improvement Design Standards  CleanWater Services (CWS) Design and Construction Standards  Tigard Community Development Codes, Municipal Codes  Fire Codes  Other applicable Utility District, County, State, and Federal Codes and Standard Guidelines 9. Improvements associated with public infrastructure, including street improvements and right-of-way dedication, utilities, grading, water quality and quantity facilities, streetlights, easements, easement locations, and utility connections for future utility extensions, are subject to the City Engineer’s review, modification, and approval. 10. Prior to commencing site improvements, a Public Facility Improvement (PFI) Permit is required for this project to cover all public infrastructure work including storm water quality and detention facilities and any other work in the public right- of-way. Four (4) sets of detailed public improvement plans shall be submitted for review to the Engineering Department. An Engineering cost estimate of improvements associated with public infrastructure including but not limited CUP2017-00005 and ADJ2018-00011 Hearings Officer Final Order (Jackson Food Store No. 530) Page 5 to street, street grading, utilities, stormwater quality and water quantity facilities, sanitary sewer, streetlights, and franchise utilities shall be required at the time of PFI Permit submittal. Engineering cost estimate of water improvement shall be listed as a separate line item from the total cost estimate. NOTE: these plans are in addition to any drawings required by the Building Division and should only include sheets relevant to public improvements. PFI Permit plans shall conform to City of Tigard Public Improvement Design Standards, which are available at City Hall and the City’s web page (www.tigard-or.gov). 11. Prior to commencing site improvements, submit the exact legal name, address and telephone number of the individual or corporate entity who will be designated as the “Permittee,” and who will provide the financial assurance for the public improvements. For example, specify if the entity is a corporation, limited partnership, LLC, etc. Also, specify the state within which the entity is incorporated and provide the name of the corporate contact person. Failure to provide accurate information to the Engineering Department will delay processing of project documents. 12. Prior to commencing site improvements, submit plans showing the following items to Engineering for review and approval: SW Bull Mountain Road along the proposed development frontage shall be shown to have:  Between 35 feet and 42 feet of right-of-way from centerline dedication to accommodate the following: o 6-foot half center lane o 11-foot travel lane o 5-foot bike lane o 11-foot right turn lane where required  Curb and gutter  8-foot curb tight sidewalk  5-foot planter where required  Storm water LIDA where required  Driveway approaches meeting the City of Tigard Standards  Street trees in the planter strip spaced per requirements  Streetlights as recommended from the approved photometric analysis  Street and bike lane striping and traffic signs meeting the City of Tigard Standards, the Manual of Uniform Traffic Control Devices (MUTCD), and applicable codes  Street transition from narrower to wider sections meeting the City of Tigard and ODOT Standards CUP2017-00005 and ADJ2018-00011 Hearings Officer Final Order (Jackson Food Store No. 530) Page 6 13. Construction on the old Frontage Road, Pacific Highway/Highway 99, and ODOT controlled influence area on SW Bull Mountain Road will require a permit with ODOT. New and replaced sidewalk on the old Frontage Road must be constructed in concrete and meet the City of Tigard and ODOT standards. 14. Prior to commencing site improvements, provide a construction vehicle access and parking plan for approval by the City Engineer. The purpose of this plan is for parking and traffic control during the public improvement construction phase. All construction vehicle parking shall be provided onsite. No construction vehicles or equipment will be permitted to park on the adjoining residential public streets. Construction vehicles include the vehicles of any contractor or subcontractor involved in the construction of site improvements or buildings proposed by this application, and shall include the vehicles of all suppliers and employees associated with the project. 15. Prior to commencing site improvements, provide a photometric analysis along SW Bull Mountain Road for the review and approval. Photometric analysis will follow the recommended values and requirements per ANSI/IESNA. If new streetlights are required based on the photometric analysis, the applicant shall submit plans showing the location of streetlights for review and approval. Type and color of pole and light fixture shall also be included on the plan. 16. Prior to commencing site improvements, submit a final storm drainage report and site plans as part of the PFI Permit indicating how run-off from new and modified impervious areas located onsite and offsite will be collected and treated for review and approval. The storm drainage report shall include a maintenance plan in accordance with CWS Design and Construction Standards and the City of Tigard Design Guidelines. 17. Prior to commencing site improvements, obtain a CWS Stormwater Connection Authorization prior to issuance of the City of Tigard PFI Permit. Plans shall be submitted to the City of Tigard for review. The city will forward plans to CWS after preliminary review. 18. Prior to commencing site improvements, submit site plans as part of the PFI Permit showing the location of proposed sanitary sewer laterals and connections for review and approval. Plans shall include any existing and proposed public sanitary sewer easements. All public sanitary sewer facilities and easements shall be designed and constructed in accordance with the City of Tigard and CWS Design and Construction Standards. 19. Prior to commencing site improvements, submit site plans as part of the PFI Permit showing the location of proposed water improvements, including but not limited to the location of the tap, water meter, double check and fire vaults, fire hydrants, and any associated facilities for review and approval. CUP2017-00005 and ADJ2018-00011 Hearings Officer Final Order (Jackson Food Store No. 530) Page 7 20. Prior to commencing site improvements, provide an erosion control plan as part of the PFI Permit. The plan shall conform to the "CWS Erosion Prevention and Sediment Control Design and Planning Manual” (current edition). 21. Prior to commencing site improvements, submit a final grading plan showing the existing and proposed contours for review and approval. The plan shall detail the provisions for surface drainage, and show that they will be graded to ensure that surface drainage is directed to the street or a public storm drainage system. 22. Prior to commencing site improvements, obtain a 1200-CN General Permit issued by the City of Tigard pursuant to ORS 468.740 and the Federal Clean Water Act. 23. Prior to commencing site improvements, provide written approval from Tualatin Valley Fire & Rescue for fire flow, hydrant placement, and emergency vehicular access and turn around. 24. Prior to commencing site improvements, provide written approval from ODOT for work in the old Frontage Road, Pacific Highway/Highway 99, and ODOT controlled influence area on SW Bull Mountain Road. THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO A FINAL BUILDING INSPECTION: The applicant shall prepare a cover letter and submit it, along with any supporting documents and/or plans that address the following requirements to the COMMUNITY DEVELOPMENT DEPARTMENT ATTN: Agnes Lindor 503-718- 2429. The cover letter shall clearly identify where in the submittal the required information is found: 25. Prior to final building inspection, the applicant shall contact the Project Planner, Agnes Lindor, 503-718-2429 for final walk-through. All site improvements must be completed per approved plans. The applicant shall prepare a cover letter and submit it, along with any supporting documents and/or plans that address the following requirements to the ENGINEERING DEPARTMENT, ATTN: Khoi Le 503-718-2440. The cover letter shall clearly identify where in the submittal the required information is found: 26. Prior to final building inspection, record the deed dedication of the right-of-way along SW Bull Mountain Road and a 6-foot PUE along the frontage of SW Bull Mountain Road. Document shall be on the City form.