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Agenda Packet - 1992-02-19 • + • `.•o- b LAKE OS GO PLANNING DEPT. FILES • Development Review Board Agendas 1992 _ f t VY L)ci • • 1 4 •4 D 6• / , J ' P + e • 0. • • • 1 •4 - 4 ! f y Y/ AGENDA ' CITY OF LAKE OSWEGO DEVELOPMENT REVIEW BOARD CITY COUNCIL CHAMBERS,CITY HALL,380 'A' AVENUE 4• Wednesday, February 19, 1992 • a 7:30 P.M. I. CALL TO ORDER Agenda Book s IL ROLL CALL III. APPROVAL OF MINUTES a ' October 21, 1991 November 4, 1991 November 18,1991 February 3. 1992 IV, PETITION` AND COMMUNICATIONS V. PUBLIC BEARING DR 15-91\PD 6-91, a request by GSL Properties, Inc, for approval to develop a 360—unit multifamily apartment complex. The site is located north of Kruse Way, south of Parkview Drive,east of Westlake Meadows Apartments, and west of the proposed Baptist Church (Tax Lot 100 of Tax Map 2 lE 6). Staff coordinator is liamid.PiskyaituntliesicaLehinner. A/ S VI. GENERAL PLANNING • VII. OTHER BUSINESS—Findings, Conclusions and Order ', , VIII. ADJOURNMENT The Lake Oswego Development Review Board welcomes your interest in these agenda items. Feel free to , come and go as you please. aL,BILlomberst Staff: Robert H.Foster,Chair Tom Coffee,Planning Director • Skip Stanaway,Vice-Chair Robert Galante,Senior Planner Y b James A.Bloomer Ron Bunch,Senior Planner , ,'a Robert D.Greaves Humid Pishvaie,Dev,Review:'tanner Ginger Remy Catherine Clark,Associate Planner Harry N.Starr Jane Heisler,Associate Planner , Norman J.Sievert Barbara Smolak,Associate Planner ' Michael R.Wheeler,Associate Planner 11 Cindy Phillips,Deputy City Attorney Barbara Anderson, DRB Secretary Kathy Avery,PC Secretary . •Aa is 1 1. OF vAKE Qs, ,(� J' c J OREGO' n ' 1 C)I:I'AR'Iti'iFA. I'C)h Pt ANNI\C, :\NI) DIi\•'EI.01'\lI NI' Y •` ' MEMORANDUM 1'+ 1 TO: Development Review Board I. ,' FROM: Hamid Pishvaie,Development Review Planner ` SUBJECT': DR 15-91/PD 6,-91 DATE: February 7, 1992 The original proposal had been scheduled for a public hearing before the Board on January 20, 1992, following a Planning Commission hearing held on January 13, 1991, As Exhibit 11 ,, I •; illustrates, the Planning Commission was asked to review a modification to the Westlake PUD master plan and a Class II variance to LODS 18,020(3) in order to allow a limited access (right ,, • in/right out only) on Kruse Way. Those requests were denied by the Planning Commission, The applicant requested that the Board's hearing be continued to February 19, 1992, so that they can submit revised information and so that citizens are provided an adequate opportunity to review the information. The applicant has submitted the following exhibits for the Board's review: • J : Exhibit 51 Letter by Steven K. Routon (OTAK), dated January 24, 1992 : Exhibit 52 Letter by Daniel A. Seeman (Kittelson & Associates, Inc.), dated January 31, 191)2 Exhibit 53 Re Wised Site Plan Exhibit 54 Re•'ised Sanitary Sewer & Water Plan Exhibit 55 Revised Storm Drainage &Grading Plan , Exhibit 56 Revised Landscar e Plan (for Kruse Way Subarea) Exhibit 57 Revised Site Lighting Plan \ Exhibit 58 PUD 3-80(Mod. 11-91)/VAR '.5-91-931 —Findings, Conclusions &Order Based on an analysis of the information above, staff makes the following findings: h\ Adian;.i: \�►. elimination of the Kruse Wayaccess will reduce the project w As Exhibits 53 and 56 illustrate, the impact on the existing wetlands on the site. While the impact area will be reduced from .32 acres to .24 acres, the proposed mitigation area will remain the same at .34 acres, Exhibit 51. For a detailed staff analysis and discussion of the wetland issue please see the January 10, 1992 staff report, p:g a :Ind 9, • 1 a •4i \ k..1 Y .l I 'Vol I ,,,, =,.' i { ,11',•t I-00I'!,t. t Ill',,Itll'''11 i .1'1 ,I'RI I ,! 1 ,1 , • 1.11:,tint; 1'0 ,.,. , ,1,'I I r,Il;nli • I \v 1 , 5;,1, . i ' , i • •'4 Transit: Exhibit 53 does not illustrate the proposed pathway from Parkview Drive to Kruse Way (as was shown on the original site plan,Exhibit 11). Kruse Way is a public transit corridor, with transit 1: facilities at its intersections with Carman Drive and Westlake Drive. Therefore, to comply with the requirements of LODS 6.020(1) and (2), the at ave pathway should be reinstate,' in order to ," provide adequate pedestrian access to adjacent transit facilities. The pathway location should be •• ,:' designed so as to minimize any conflict with the wetlands along Kruse Way, The pathway should provide a pedestrian connection through the site to connect Parkview Drive and Kruse `:' Way. This will further implement Plan policies which require safe convenient access enabling residents to travel safely on foot or bicycle throughout the community, Transportation Policies, General policy VI. Utilities: As Exhibit 11 illustrates, the project was originally designed with three access point, two on Parkview Drive and one on Kruse Way (a limited right—in/right--out driveway), On January 13, ' 0 1992, the Planning Commission denied the Kruse Way access alternative, l' xhibit 58. The applicant has since revised the site plan and other supporting evidence, including the traffic report. The supplemental traffic report (Exhibit 52) indicates that even without the Kruse Way' access, the project will continue to function within acceptable level of service during the morning and evening peak hours, with minimal traffic related impacts to the adjacent streets and nearby intersections. These findings are consistent with earlier findings in Exhibits 36, ,�. • The traffic reports (Exhibits 36 and 52) also identify several improvements necessary along Kruse Way at the intersections of Kruse Way and Carman Drive and Westlake Drive. These improvements would be needed to accommodate the project traffic for the year 2000. While the ;; evidence suggests that the improvements may not be necessary at this time, staff finds that the applicant's participation is necessary to adequately address these needs.'Therefore, the applicant will be required to sign a nonremonstrance agreement for future improvements of the above intersections. .0 CONCLUSION " ., Based upon the information submitted by the applicant and staff findings presented in this report, staff concludes that DR 15-91/PD 6-91 can be made to comply with all applicable criteria by the ', • application of certain conditions. RECOMMENDATION Staff recommends approval of DR 15-91/PD 6-91, subject to the following conditions: A. Prior to Issuance of Iiuildlt�g Per: : 1. The applicant shall submit a revised site plan showing a pathway connection ,. .: ,. from Parkview Drive to Kruse Way, 2. The applicant shall submit a final drainage plan for review and approval of . ,, City Engineer showing the following information (per City standards): t '\ — Pollution control manholes or vaults designed to replace the proposed "Dry . „.'. , Filter Pond Torbay". These structures shall be designed to meet DEQ water quality requirements, and shall be accessible to maintenance vehicles, ' ; • 4I1) . • , . DR 15-91/PD 6-91/Memo Page 2 of d yA 1 3. The applicant shall submit a final grading plan for review and approval of City Y.': Engineer, per City standards. • 4. The applicant shall submit a final erosion control plan in accordance with "Erosion Control Plans Technical Guidance Handbook" for review and approval . • of City Engineer, \ •. 5. The applicant shall obtain all necessary permits from DSL and Army Corp, of Engineers for the proposed development in the stream corridor and wetland areas. - ,. ' 6. The applicant shall obtain and submit all necessary off—site easements for extension of public utilities. 7. The applicant shall submit a final landscape plan for review and approval of staff showing the following information (per City standards): — Quantity and size of proposed planting materials, including the wetland planting — Additional parking lot planters •. — An irrigation plan 8. The applicant shall submit a final soils report for review and approval of City Engineer, per City standards. 9. The applicant shall sign a nonremonstrance agreement against formation of a• rf local improvement district(LID) for future street improvements at the • intersections of Kruse Way and Carman Drive, and Kruse Way and Westlake , Drive (per Exhibits 36 and 52). 10. The applicant shall relocate the proposed water connection in Parkview Drive to \ t, avoid any cutting of this road, and provide calculations for the minimum fire flow .' requirements. M B. Prior to Issuance of Any Occupancy Permit, •.: 1. The applicant shall install the landscaping and irrigation system approved by condition A.7, above, and submit the as—builts for the irrigation system. 2, The applicant shall provide all public easem:nts to the satisfaction of the City Engineer. i 3. The applicant shall provide a drainage easement (public) over the wetland and , •. stream corridor area, the storm detention area, and over all pollution control , . manholes or vaults. ' 4. The applicant shall declare all private streets as fire lanes in the deed or on a ` recorded map, and shall post the streets as such. `.. 5, The applicant shall provide a wetland and stream corridor conservation easement •, over the proposed wetland mitigation and buffer areas. The legal description of this easement should follow the proposed fence line and building footprint line around this area, down to the log weir above the existing detention pond (as shown on Exhibit 24), to the satisfaction of staff. (City conservation form are available) ,DR 15-91/i'D 6-91/Memo , , Page 3 of 4 a n the easement and 6. The applicant shall provide special maintenance restrictions ; in tho covenants for the development,regarding maintenance of the building adjacent to the wetland mitigation areas, to the satisfaction of staff. 5 p' 7. The applicant shall provide a public pathway easement over the pathway from Parkview Drive to Kruse Way. C. During Construction of the Project: x • 1. The applicant shall adhere to the erosion control guidelines in the Erosion Control Plans Technical Guicknce Handbook, as approved by condition A.3, above. • • •• ; 1. Staff review of the preliminary utility plans only verified the location and . capacity of utilities to serve the site. 2, A tree cutting permit shall be obtained prior to removal of any trees that are 5" or • YF greater in diameter. • 3. All construction plans shall be designed to the satisfaction of the City Engineer. /hp [hamid IIJ<reports>DR 15-91/PD 6-91/Mcmof2-7-92 • ` r k p. . 1 r' '♦1 ' 'a. ' 4 f • 4v_ ' 1 'A 4y l ttl'tM d ; .40 r , "k'' DR 15-91/PD G-91/Memn Page 4 of 4 1 i 1 January24, 1992 INCORPORATED, e, ARCHITECTS, P C. p ,,, I Architersturo . Mr. Humid Pishvaie Planning , • ' '•'- City of Lake Oswego Urban Design 380 "A" street Ddvolopmont Services .,,, `a Lake Oswego, OR 97034 L r docape Architecture ' . 0lv;l t:ngineer►ng y' Re: Plan Revisions for Westlake II Development 1}ansportation Environttiental Services .. Dear Hamid: Water Hesnurces 'Surveying Y. We have enclosed all of the revised plans for Westlake II. The only change made r ' '` was the deletion of the access onto Kruse Way from the project site. .• ..q Due to these changes, the wetlands "area of impact" and "impact fill" totals have ' decreased. Area "C" as described on sheet W-1, will no longer be impacted, This reduces the total area of impact to .24 acres and reduces the impact fill to 770 a cubic yards. The mitigation area will remain the same, .34 acres, which results in a surplus mitigation area of 4,356 square feet. If you have any questions, please call. Think you, • 4b4_�/1, Steven K. Routon, A.I.A. OTta Architects, P.G. .$' skat/kw 3371/.003 <' i Enc: Revised Plans c: Tim Ramis I „� _..) • 2 4 1992 17355 SIN tloorteu refry Flood Lokn Ocwogo,Oregon 40035 W. r 003)035.3010 Mx 15031035•DiD'i XH ry IBIT . M r- 0 ajl i. to . KITTELSON & ASSOCIATES, INC. 4 TRANSPORTATION PLANNING/TRAFFIC ENGINEERING ti en SW ALDER.SUITE 700•PORiLAND.OREGON 97205•(503)228 5230•FAX(503)2'3 all., • aanuary 31, 1992 ry. Project Not: 602.00 Mr, Nawzad Othman OTAK, Inc. 17355 SW Boones Ferry Road Lake Oswego, OR 97035 ' t . ? , art Dear Mr. Othman: • y ` This letter is an addendumto October 18, 1991 traffic analysis submitted to the City for the proposed • .'Y" Westlake Apartment project. Since that original analysis was submitted, the alternative access that was being proposed (onto Kruse Way) has been denied. This letter summarizes the findings and recommendations of the analysis for the development, assuming that exclusive access is provided via two ' . - driveways on Parkway Drive, ," + : Based on the results of the analysis, the proposed site can be devt.iloped as planned with minimal traffic- related impacts to the adjacent street system and nearby y intersections. The significant findings and � recommendations are as follows: • • • The key signalized and unsignalized intersections within the study area are currently ;" t operating at an acceptable LOS during weekday morning and evening peak hour conditions, • Upon completion of the development,the site driveways and key off-site intersections will ;�. continue `�F operate within acceptable level of service limits during the morning and evening peak hours, • The traffic analysis conducted for this project is consistent with the the Buttke report, prepared for the Westlake PUD in 1979 and amended in the early eighties. The current : '� traffic patterns in the Westlake development arc consistent with the previous traffic assumptions and conclusions containeed in the previous traffic reports, The analysis indicates that this development will riot adversely impact the surrounding street system. • • The Westlake Drive/Kruse Way intersection will require the addition of a right-turn lane •r'. on the westbound approach to the intersection to be able to accomodate projected year 2000 traffic volumes, • Both the northbound and southbound approaches to the Carman Drive/Kruse Way ';, intersection will need to be widened and improved to allow for the provision of separate • • • left-turn, through and right-turn lanes to be able to accomodate projected year 2000 traffic : . volumes. u, d EXHIBIT . • . ,• `', ,a I. , gyp r° • ti Mr, Nawzad Othman • January 31, 1992 e Page 2 K a,. • • The improvements identified above will not be warranted upon completion of this development, but rather will be necessary at some time in the future as traffic volumes t3 within the utudy area begin to approach the year 2000 forecast levels. It is important to 04, note thto, • improvements will not be warranted upon completion of this development, but rathe► will be necessary at some time in the future as traffic volumes within the study area begin to approach the levels identified in the year 2000 forecasts. • • I trust that this letter addresses the concerns that you have regarding the revised project. These findings and recommendations are consistent with those in the October 18, 1991 letter. IC you have any questions, please don't hesitate to call me. Sincerely, • Ll'i/1/,;,, . • Daniel A.Seeman Associate • Y•. • • • • • /■/11 / Y. 0kr. • • . . , , , . .4, \,, 0 0 • , . \ _ frh del M " ✓♦IM�t yIFA 1 1t•I.Di Il.t ID c• I t I I i I 1, pAYNVIIW sfl1V'C ,� .A��,1t� Olit it 00 r. <.r a 1 / ,r" )i _\ 1 I 1 ':',.1. to•, ' •A, ,si ,51 , t''\ \ 1 1 I IY• �. 1 I I r 4' + i I\� .? 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( °talc r '"'0'.w,o, e,eh,l•rleie (.0 di ' e ICAtinY•s0•da Planting Plan t 3371 I l' °. k M Y + 0 4.. , . • 0 e- i �.• ►A�NYItW RAIYC 1 r. .., .. / ( i ' f/� ' ~ • / i1• y. .r+ , • •7 1 V ' DVMDOI LEGEND!FIN TURN types I o r, " ,y,.+•'e cAtt . 1,1 I �� 1. t i 1 .-w lnn y� •�:_ " a .�/` • • I 4, ('T• INwll��ii iiiYl,W l fi l.. ' " �+W'V i '/ 1j fn• 11111111M • '.t. r '` ' ti 1, I11!4 YwN IIIMI v 1 tll y, • J ` ,.:"......:',1,........ JJ•• d ,l tj f •t,`.'` , '.,� 1 k I. 4tr• 4 r Ir',1,lwwo.+. ,. h I nr l i -? .',I' r •(r i w.r:u«„wNl.l Fnl .�. e • i. nwa1.4.4'4 w b t-,. jr ; rI/ Sao n"`.iu" c • ,1 't,Y ,* \1` ' ,, { Y 1 ! } .fir` • u ;1 P L' 11� �1. •( Q N e I I i Q- 0 : r ;, \�,,.,,..It t t1 r r erJ.',:,✓ ,e'�1 ,I Site Lighting ['Intl i " it., .,o,. Fe lie SC n. ,, fr, l'i' . .. 6 4� �LI, '1 ..% 0 .1 rt,1• • I.I I l . . v I 4 1 ,•\ !1 11 1• � I ! ✓-/,.• • j b it `_ : •_. ,4. ,. t IiJ •l ; , ,�!Ill:11°11 l • • 11111 0/ ., 4/ • •4404, or FtN6b•Ary«In1 M.I. . �—i / I- . �`rrlC.aQ�]L!` �` Im eltnrlitll P t 4 , I ,h - kRUtt F`� - v r A16 1 v 1 �STt • Mi 1 Mi BEFORE THE PLANNING COMMISSION 1 OF THE 2 CITY OF LAKE OSWEGO ' 3 10 ' 4 5 A REQUEST FOR APPROVAL OF) PUD 3-80(Mod. 11-91)\VAR 21-91-931 ° A MINOR MODIFICATION TO ) (GSL Properties, Inc.) • r ` 6 THE WESTLAKE PUD MASTER ) FINDINGS, CONCLUSIONS &ORDER PLAN TO ALLOW DIRECT ) js' ! ' 7 ACCESS FROM THE SITE ) i 8 (MULTI FAMILY PHASE 3) ) ONTO KRUSE WAY BLVD. ) 9 ALSO,A CLASS 2 VARIANCE ) 10 TO THE ACCESS STANDARD ) ' ") 11 [LOC 18.020(3-4)] WHICH ) RESTRICTS DIRECT ACCESS ) ' 12 FROM A DEVELOPMENT TO ) ' w S' ', ` 13 AN ARTERIAL STREET ) ' 14 15 NATURE OF APPLICATION '' The applicant is requesting approval of the following requests; t 17 18 — A modification of the Westlake Planned Unit Development master plan in order to x, 19 introduce a direct access point on Kruse Way(an arterial street). © — A variance to LODS 18,020(3) which prohibits direct permanent access from a ; 21 development to an arterial street where an alternative access is available. M*x 2 2 23 In addition, the status of the development schedule concerning Multi—family Phase 3 will Y : 24 be reviewed. The development schedule appears not be applicable to this phase, as the , 25 Westlake development schedule only regulates the subdivision improvements as part of • r 26 the Single—family Phases 1-6. .t 27 28 The site is located north of Kruse Way, south of Parkview Drive, west of Carman Drive 29 and east of Westlake Drive(Tax Lot 100 of Tax Map 2 1E 6). 10 31 HEARINGS r 3 2 The Planning Commission held a public hearing and considered this application at its b meeting of January 13, 1992, 33 34 t ,ti ��• .:n „. PAGE y . 1 PUD 3-80(Modd. 11-91)\VAR 21--91-931 ,+ EXHIBIT • h 'L / •1•(„(�,,.. l • 1.. . , d .. • F F+' ' .• 1 d 7 ' • :' j C i+ t t • 9 "A'. . .�.SS9 . t • r M D 1 CRITERIA AND STAmARDS ,. I . 2 A. City of Lake OswegQComprehensive Plan: • 3 Impact Management Policies 4 Wildlife Management Policies Social Resources Policies 5� 5 Residential Density & Site Design Policies r�'t 7 B. City of Lake Oswego Zoning Ordinance: eH' x , 8 LOC 48.075(2) Relationship to Prior Approvals and Conditions of • Approval 9, LOC 48.120-48.155 R 5 Zone Description ... '`' 10 LOC 48.760 Quasi—Judicial Amendments to the Map LOC 48.810 11 LOC 48815 Quasi—Judicial Evidentiary Hearings . •1 6 Criteria for Approval 12 13 C. i y of ak Oswego Develonrn�pt Ordinance;, 14 LOC 49.300-49.335 Major Development Procedures LOC 49.500 Variance Classifications r. 15 LOC 49.510 Variance Standards '} 16 LOC 49.615 Criteria for Approval LOC 49.620 Conditional Approvals :r 17 18 D. City_of Lake Oswego Development Stancl^rdt 1 A; t 19 2.005—2.040 Building Design 20 5.005—5.040 Street Lights 21 6.005—6.040 Transit System 7,005 —7.040 ' Parking &Loading 22 8.005 —8.040 Park and Open Space 9.005 —9.040 Landscaping, Screening & Buffering 23 11.005— 11.040 Drainage for Major Development 2 4 13.005— 13.040 Weak Foundation Soils i 25 14.005— 14,040 Utilities 16.005 — 16.040 Hillside Protection &Erosion Control 2 6 18.005 18.040 Access 19.005 — 19,040 Site Circulation—Private Streets/Driveways 27 20.005 —20.040 Site Circulation—Bikeways/Pathways ' 28 E. City of Lake Oswego Ordinance: 29 10 Ordinance 1783 Order Adopting Final Development Plan and 31 Program for Westlake PUD _ 3 2 CONCLUSION 33 The Planning Commission concludes that PUD 3-80(Mod. 11r-91)\VAR 21-91 does not • 34 comply with the'applicable criteria, • 0 ,.. , * 'SAGE • 2 PUD 3-80(Mod, 11-91)\VAR 21-91-931 ' i Y ' 1 1 4 :I.': "f4 y + '' ,,: Y r D , r , 7,:',.:- 1. 4 ,r ' ,' ! 1 1��TDING7S AND REASONS '` 4 2 The Planning Commission incorporates only the background portions of the staff report �;'•'! 3 on PUD 3-80(Mod. 11-91)\VAR 21-91 as support for its decision, supplemented by the , �:°w.. Y 4 following: . ,,. 5 1. The following information was presented to the Planning Commission and entered a., 6 into the record at the public hearing: 7 Exhibit 22 Letter by Hillman Properties Northwest, dated January 8, 1992 1 ! i 8 Exhibit 23 Letter by Marjorie R. Kirschbaum,dated January 13, 1992 • 9 Exhibit 24 Letter of Authorization Signed by Patricia Swanson, Scott 'c` ' ' 10 Bigger and Beverlea Kramlich, undated i• 5 11 Exhibit 25 Westlake PUD Master Plan Published in the May 18, 1989 issue • 12 of Lake Oswego Review 13 ., Exhibit 26 Traffic Analysis by Keech Associates, Inc,, dated April 27, 1991 14 Exhibit 27 Westlake PUD Status of Development • 'LL Exhibit 28 Traffic Counts on Westlake Drive, dated October 3, 1989 15 ;� ''•„ 16 Exhibit 29 Approval Letter Extending the Westlake PUD Development 17 Schedule, dated November 19, 1990 18 Exhibit 30 Kruse Oaks Retail Center Site Generated Traffic Volumes by ' 19 ATEP (Exhibit 22 of DR 13-90)20 Exhibit 31 Excerpts from Traffic Report by Kittleson & Associates, Inc., 'n ' 21 dated October 18, 1991! 22 2. After receiving testimony from the applicant and citizens, the Planning Commission f23 made the following findings: ::: :*::'-‘‘,,,,,:c.: 24 — The applicant failed to provide adequate exit.-7.3 a to prove hardship [LOC ► '" 25 49510(1)(A)]. According to the applicant's traffic report (Exhibit 16), the 26 existing street system in the neighborhood is adequate to accommodate the site 27 generated traffic, without the proposed direct access on Kruse Way. 28 — The Kruse Way access will be injurious to the public, since it will cross a heavily 29 used pathway along the north side of the road. The applicant failed to a 10 adequately address safety related issues with respect to both pedestrians and 31 bicyclists who use that pathway [LOC 49,510(1)(B)]. ; i 3 2 — The proposed Kruse Way access also will be injurious to the neighborhood, by 4 y 3 3 having a negative visual/aesthetic impact on the recreational use of the existing 34 pathway [LOC 49,510(1)(B)), This access will require removal of large segments of the existing landscaping along that road, The landscaping currently ' functions as a vegetative buffer, separating the pathwayfrom the road.PAGE g p g , 3 PUD 3-80(Mod. 11-91)\VAR 21-91-931 r � 4 Ott ' ��ti N+ s �,� ,� { '�? i •� • 1 i t , �\.. 2 IT IS ORDERED BY THE PLANNING COMMISSION of the City of Lake Oswego , 2 a4 •: 3 that: _ 1. PUD 3-80(Mod. 11-91)\VAR 21-91 is denied. 5 ut W 6 7 u.`,. 4 .d.. �..r; 8 •.. , 10 11 ' 12 1 14 15 ' 16 . .4 I- 17 18 , . .' . 0 19 `• 20 21 ' 22 . : ,z ' 23 24 4 '.Y 3 r f 25 26 27 28 4 , 29 % 4 •, 1 0 4 31 : +; •y >. 32 :. • 33 ' :.t r. 3 4 , a '' PAGE 4 PUD 3...SI \!ru! 11- • ,',VAR ?1-91-9:11 ,ff: , . t 4w 1 2 I CERTIFY THAT THIS ORDER was presented to and APPROVED by the ' ' 3 Planning Commission of the City of Lake Oswego, 45 DATED this 27th day of January , 1992. i0 :.` 6 ,a 7 C�t�ur,r:.G'p 7 l t c _� a: 8 Charles Oldham, Chair 9 Planning Commission 10 11 C1 17 Secretary �� 13 1 ' ;, ' 14 A t"1 hST: 3 15 16 Substantirve Decision Approving this Application at the Meeting of,T.anuary 13, 199Z, o.... . 17 AYES: Beebe,Finnigan, Oldham, Rohrer 18- NOES: DeLacy, Colquitt 19 ABSTAIN: None 20 ABSENT: Garten fi 4 21 22 Vote at the meeting of January 27, 1992 approving these Findings as accurately 23 rsi#lectitlg the decision of the Planning Commission. 24 Beebe g 9 4` AYES: , F3nni an gldham Rohrer CoX uitt ,.,,. r 25 NOES: None ' (• 26 ABSTAIN: Gar ten 27 ABSENT: DeLacy A ♦' 28 29 10 31 32 r' 3 3 , 34 i t PACE 5 PUD 3-80(Mod. 11-91)\'VAR 21-91-931 I n1 • /j/J i + ji t • 1 y 44°r '` Memo: Lake Oswego Planning Commission ' February 3, 1992 ` Page 2 • Limited Land Use Decisions: The first and most important new category is called a •' ` "limited land use decision." The intent behind the creation of the "limited land use decision" was to establish a more expeditious, less rigorous, review process for lower impact land use decisions. As you will see, the adage "beware of good intentions" is applicable to the final product. '' A "limited land use decision" is defined in ORS 197.0'15(12) as; A final decision within an.urban growth boundary which concerns: k' ' ` a. The approval or denial of a subdivision or partition, as described in r.t.. ORS Chapter 92; or b. The approval or denial of an application based upon discretionary ' standards designed to regulate the physical characteristics of a use permitted outright, including, but not limited to site review and $ 1, design review. '' What does this mean in the context of the Lake Oswego Code? Basically, every development permit issued pursuant to the Development Code, except for a variance, is .�� now a "limited land use decision". Conditional use permits, es zone chan • t. variances continue to be regular "land use decisions." g and all Limited land use decisions are not required to go to public hearing before a hearing body (although nothingjurisdictionsg ( g prevents local from requiring that they do so). ORS 197.195 (2). Notice of a limited land use decision must be mailed prior to the staff decision, however, and must provide a 14—day y period for submission of written comments prior to the decision. ORS 197.195(3). The staff must then send a notice to everyone who comments which explains the decision and gives them an opportunity to r"` appeal to a hearing body. Id. The notice must include the LUBA warning, must list by citation all applicable Zoning and/or Development Code criteria, must list the address to » which comments can be sent, must state the date, time and place that the comments , ,• ' •, are due, must state that all evidence in favor of the application is available for review, and must state the name and phone number of a contact person. ORS 227.178, as amended by the 1991 Legislature, provides that any person who receives notice of a '. . t 1 decision may appeal the decision of the staff to the Planning Commission or other hearings body, and the appeal must handled as a de novo hearing (as if the application came to the Planning Commission or the Development Review Board in e first instance), If you are wondering what the differences are between review of "limited land use `' : nr� decisions" and "land use decisions," the answer is "not much." ORS 227.178(10) has always allowed staff to make initial land use decisions as long as notice of the decision ' and the opportunity to appeal is provided. Those sharp readers among you will notice that the new statute actually requires local governments to provide more notice of a ,` ' limited land use decision, because the City must send advance notice and give the opportunity to comment to the neighboring property owners prior to making a limited land use decision. (The City of Lake Oswego has, however, always sent out advance notice of staff decisions on most minor developments pursuant to LOC 49.205, The . A l Page 2 of 7 • • k J ♦ u., ` Y . _ N , , • , l. r . '•,•h` :; • a'.-e .,,(p el r, At -f Memo; Lake Oswego Planning Commission '` }; February 3, 1992 • Page 3 .1 LOC provision, however, requires only ten days notice; the new statute requires 14- x�, days). ORS 197.195 also supposedly exempts limited land use decisions from the onerous hearing procedures required by ORS 197.763. I use the term "supposedly" because ORS 197.195, ORS 227,173(2) and 227.178(10)(a), require virtually identical � procedures for limited land use decisions. The onlyprocedural re requirements ents In ORS 197.763 that I am confident are not applicable to limited land decisions are the , requirement that the hearing body grant a continuance if new information is submitted in favor of the application at the hearing and the requirement that the record be held open for 7 days upon request. Appeal Fees and Charges_ The new law provides that a local government may charge a maximum fee of $100,00 for appeal of a staff decision to a hearing body. This fee must be refunded if the appellant prevails. No fee may be charged for appeals made by " ., the Department of Land Conservation and Development (DLCD) or neighborhood or community organizations recognized by governing body and whose boundaries include • the affected property. ORS 227.178(10)(b). The City of Lake Oswego does not currently charge an appeal fee for appeals of a staff decision to a hearing body. ORS 227,180 continues to provide that the City may charge a fee for an appeal of hearing body decision to the City Council. The fee must be no more than the average • cost of such appeals or the actual cost of the appeal, excluding the cost of preparation of a written transcript, The City currently charges no fee for appeal of a hearing body's decision to the City Council except for a fee to defray the cost of preparation of a transcript. The statute, '•• •4 ,`_ was amended to limit the amount that the City can collect for preparation of a transcript. Previously, the City was authorized to collect $500.00 plus one—half of any additional " cost up to $1,000.00. The transcript fee is now limited to $500.00, which must be , , .y refunded if the appellant prevails. The new statute also states, however, that the " governing body is not required to prepare a transcript, but must allow any party to an appeal proceeding to prepare and submit into the record a transcript of relevant portions M >• " of the proceeding at his or her own expense, • fT:. The City Code currently requires the preparation of a transcript of a hearing bt,°dy's ' •{ �• hearing. After a year of sitting through Council appeals, I question the utility of requiring • a transcript, Generally, the transcript is referred to only for the purpose of determining I •'t who spoke before the hearing body. It would be relative easy to make that same " i • determination from the minutes and from the list of exhibits submitted into the record. Preparation of the transcript is also extremely time consuming and expensive, Transcripts frequently cost more than $500.00, and the preparation and review of the '• ' •' • transcript takes staff away from other projects and significantly delays the time between the hearing body's decision and the Council's review. Consideringthe significant l • *: increase in appeals, the greater frequency with the Cityis beingsued for ' or threatened with a violation of the 120 day local action rule, and that the City must now bear almost all of the costs of transcript preparation, I suggest that the City abolish the transcript requirement and adopt the alternative in the new state law which allows the parties to submit transcripts prepared at their own expense into the record. Page 3 of 7 4 . i. { I1 k Y ii d• tY +f1' • i *tl. r .. I Y. h Y Memo: Lake Oswego Planning Commission s• . February 3, 1992 Page 4 Standard of review fora appealing limited land use decisions: Prior to the 1991 t Session, all land use decisions had to be based upon "substantial evidence in the whole tA record," The Supreme Court has held that this standard e r quires a reviewing body such : - as LUBA to review all of the evidence in the whole record to determine whether there is credible evidence which supports the local government's decision. Younger v, City of ,: .\., m Portland, 305 Or 346 (1988). If a reasonable person could conclude that the evidence ` supports the decision, then LUBA must uphold the local government even if it would have reached a different conclusion. The 1991 amendments changed the scope of review for limited land use decision by deleting the term "whole" from the standard: Limited land use decisions are now must ` ' be supported by "substantial evidence in the record." ORS 197.828.(2)(a), The y reasoning of the persons who sought this change is based upon the Supreme Court r `� case mentioned above: They argue that removing the term "whole" limits the scope of LUBA's review to the evidence in support of the local government's decision. LUBA may only reverse the local government's decision if the supporting evidence does not t ' support the decision, regardless of what the opposing evidence may be. Theoretically, this should .nake a decision of the City to approve or deny a limited land use decision more difficult to overturn at LUBA. In myopinion, however, the statute draws a distinction without a difference; �, I doubt whether the actual scope of review will change ` I significantly for limited land use decisions, Applicability of Comprehensive Plan to limited land use decisions: If you have 7.Y reached the conclusion that the amendments mentioned so far merely increase the : complexity of the land use statute without significantly affecting the way the City does business, you are correct, One provision in ORS 197.195 will, however, will significantly• i s affect the way the Gity reviews limited land use deci ons in the future, ;t Since 1981, all development permits have been reviewed against the criteria contained . ' in LOC 49615. In addition to compliance with all applicable Code provisions and development standards, LOC 49,615(2)(a) requires that the proposal conform to the "City's Comprehensive Plan". A ORS 197,195 states: Within two years of September 29, 1991, Cities and Counties shall ' �' •. incorporate all Comprehensive Plan Standards applicable to limited • ` land use decisions into their land use regulations. A decision to incorporate ail, some, or none of applicable Comprehensive Plan Standards into land use regulations shall be undertaken as a post w' . acknowledgment amendment under ORS 197.610 to 197.625. Until a Y City or County has undertaken the post acknowledgment process, all applicable Comprehensive Plan Standards shall continue to apply to limited land use decisions. After September 29, 1993, the City will not be able to apply Comprehensive Plan Standards to "limited land use decisions" unless the City has Incorporated such regulations into the Zoning or Development Codes. This amendment was sought by 4 • Page 4 of 7el c r, F �4 1 1 • � •P ry . { • 1.: Memo: Lake Oswego Planning Commission February 3, 1992 Page 5 development organizations who were frustrated that their members' permits are denied based upon vague or/and subjective Comprehensive Plan Polices. As the Planning Commission will recall from the discussion over the applicability General and Specific Comprehensive Plan Policies, the applicabilityvague and/or of of subjective Comprehensive Plan Policies is problematic regardless of the new a result of LUBA case law and ORS 227.175(1), which requires that approval or de as of a permit be based upon, clear standards and criteria. Clarifyingth e denia, , Comprehensive Plan Policies to clearly indicate which are directly applicable Cty individual applications and which are not, and amending the Zoningandnt { ' Codes to carry out the intent of the plan is a job that we recognized e hd to dopm he conclusion of the GeneraVSpecific controversy. ORS 197.195 basicallyestablishes at the ,r two year deadline to complete this review. ablishes a "Classification" decisions: ORS 227;160(2)(b) establishes another subgroup use decision" called the zoning classification decision. A classificatin decisionfland basically an interpretation of the Code to determine whether a is r ti a particular zone, use is or is not allowed in i Because the Lake Oswego Code contains extensive )is of ed uses in each zone, ,.', this provision is not likely to have a significant impact on the City. This s in contrast to the City of Portland Code, which lists broad zoning categories rather than specific In Portland, the PlanningDirector mustto p ie uses. ,u.�e his or her discretion to determine whether a • '• particularly use fits within a classification. Such a classification decision determined by LUBA to be a land use decision for which notice and appealwas be given. For this reason, the City of Portland requested rights must new type of land use decision with lesser requirerret that the legislature create this The new legislation provides that a classification decision can be made if the decision set forth in a registry available to the public containing the address of the r erty, the is date of the decision and a description of the decision made. The decision .property,appealable i 1 ,' in the same manner as I'mited land use decision and is subject to described in ORS 'I97.830(4)(b). The local government is not equired to appealhe periodo of a classification decision, but if it does not, then the 21 day appeal period r the date of actual discovery of the decision, If notice is provided, th provide runs appealal terminates In 21 days as with other land use decisions.` Needles to say, this Is1 much of a "choice'" notice should be provided unless the• ,, unending appeal period. City wishes to endure not Although the extensive list of uses set forth in the Lake classification decisions a rarity in this city, the Code does provide that th Code makes may allow a use not specifically enumerated in a zone as long as it is "similar"eity anager uses allowed in the zone in terms of intensity, density, and Impacts. LOC8.09toh the , type of decision would be a classification decision within the meaning of te new statutes To my knowledge the City has made only one classification decision since City Attorney, Alihough the Code is silent on notice for such decisions, theI have been advance notice as we would have for a minor development, cisi�ns, City mailed {',, Page 5 of 7 ' i �♦ r ._y I ,,a♦ sir :� , . .,'�: + 'y.:-. 1 `_ . t +Y • I ` '•. t t, Memo: Lake Oswego Planning Commission February 3, 1992 Page 6 • Y., Other types of decisions: The 1991 Legislation changed three other types of decisions: —Ministerial decision: As noted above, a ministerial decision used to be defined as a , decision which is "made under land use standards which do not require interpretation or the exercise of factual, policy or legal judgment." The 1991 Legislation deleted the term "factual" from this phrase. This would allow staff to make those land use decisions without notice if the decision solely involves a factual determination, such as .. compliance with mathematical requirements (e.g. setbacks, minimum lot size, height : $ i etc). There are a number of "minor developments" which potentially qualify as ministerial decisions. LOC 49.615 requires, however, that all minor developments must comply ' ` with "all applicable" Comprehensive Plan policies and development standards. This " requires interpretation as well us legal and sometimes policy judgement, and thus ' elevates all minor developments to the status of "limited land use decision." The City Code only requires notice of some minor developments; all such applications should �, be noticed in order to comply with the law, or the Code should be amended to ' • eliminate the discretionary interpretations. —Building Permits_ The new statute also exempts from the definition of "land use A decision" a decision "which approves or denies a building permit issued under clear and objective land use standards," Because the Lake Oswego Development Code 'w' requires all building permits for a new structures to be reviewed as a minor development, which involves the application of the Comprehensive Plan and ,y Development Standards, onlybuilding ., • this exception, permits for exempt structures would fall under A,. a —Transportation Facilities: Finally, ORS 197.020(10)(b)(D) also exempts from the definition of "land use decision" a decision which determines final engineering, design, construction, operation, maintenance, repair or preservation of a transportation facility which is otherwise authorized by or consistent with the Comprehensive Plan and land ; use regulations, In other words, if the transportation facility is provided for in the Comprehensive Plan or is otherwise consistent with the zoning Code, a determination ' . ' ,' to build, repair and maintain such a facility is not a land use decision. It would seem to ' me, however, that a decision that a particular transportation facility. was in compliance 0.: with the Comprehensive Plan and land use decision Might qualify as a classification decision for which a notice and the opportunity to comment would have to be given, ''• This exception may therefore also qualify as another distinction drawn by the statute that has little or no practical application. CONCLUSION: , In light of the 1991 amendments, I recommend three actions: ' .'• First, the City should immediately begin issuing 14—day notice of all "minor developments," There are a number of items listed as "minor developments" which do ' not require, and routinely are riot given, the broad review required by LOC 49,615; the , •, .. . City should consider placing them in a separate category with review criteria which ` '; would qualify such permits as ministerial or clear and objective decisions. .1 Page 6 of 7 1 1 . ; I .. �. x 51. . . . w►: r: y G i 'r 4 Memo: Lake Oswego Planning Commission ti ' February 3, 1992 Page 7 tr Second, the City should amend its application, notice and appeal procedures to bring ' them into compliance with state law. ORS 227.175, 197.763 and the 1991 amendments have all significantly changed land use procedure since the LOC Chapter 48 and 49 procedures were adopted. While the City has changed its practices to comply with the � state law, the Code should reflect these practices as well. Amending the ordinance would also provide Lin opportunity to streamline procedures, such as abolishing the "'` transcript requirement and differentiating between notice of hearings held before the hearing body and the appeal hearings held on the record before the City Council. In the latter case, for example, the Code currently requires the same published, posted and t mailed notice for both types of hearings even though the g only persons who can participate on appeal to Council are those persons who testified before the hearing ,,..: body. The City can save considerable time and money by providing mailed notice of ,, Council publishing and posting requirements. Third, the City should plan to amend the ComprehensivE3 Plan, Zoning and Development Codes within two years so that all of the Comprehensive Plan provisions that we intend to apply on a case by case basis to limited land use decisions are contained or duplicated in the Zoning and Development Codes. We have already begun this process with the Transportation Element; we need to continue with the other provisions of the Comprehensive Plan. \\ • jJ '( •Y JC:bp c; Peter C. Harvey, City Manager Cynthia L. Phillips, Deputy City Attorney ��0, I cAoa,Momo • ai ', r k { i . ._` r Page 7 of 7 '\ f, .` r. e ' a MEMORANDUM r ;ti ;e To: Lake Oswego Planning Commission Tom Coffee, Planning Director From: Jeffrey G. Condit, City Attorne �� Date: February 3, 1992 Suhect: 1991 Legislation INTRODUCTION �" . • ,. Followingis mylong %' ' promised memorandum regarding the changes made by the 1991 Legislature to the Oregon statewide land use program. These changes were adopted ' Y pursuant to 1991 Or. Laws, Ch. 817 and are incorporated into ORS Chapters 197 (Statewide land Use Planning), 215 (County Planning) and 227 (City Planning). BACKGROUND Prior to the 1991 amendments, ORS Chapter 197 differentiated between two types of • land use decisions: "Land Use Decisions" and "Ministerial Land Use Decisions." Land Use Decisions: A land use decision was a final decision or determination made b a local government that concerns the adoption, amendment or application of an - land • use regulation. y Ministerial Land Use Decisions: A ministerial land use decision was a decision made by a local government under land use standards "which do not require interpretation or the •: „;. exercise of factual, policy or legal judgment." The distinction was critical to the scope of review of the decision: requires notice, the opportunity for a hearing and the opportunity ty to appal to the d usedeciLand Use Board of Appeals (LUBA), "Ministerial land use decisions," on the other hand, may be made by staff without such notice or opportunity for review. Case law, most notably {. the Doughton v. Douglas County line of cases, strictly defined "ministerial land •decisions" to the effect that if the decision involved any discretion whatsoever, the 1 decision was a "land use decision" requiring notice. The penalty for guessing wrong and not providing the re uired notice is that the appeal o ,t period on the decision never runs, or begins to run only upon the receipt of "actual i• notice" by an interested party, a problematic event to prove. The City could therefore approve a permit and the applicant could appealconstruct the project but continue to be subject to and reversal for years. For this reason, it is always preferable to err on side :' '� of giving notice, DISCUSSION 1 Y t., 1991 Or. Laws, Ch. 817 broke "land use decisions" into two additional subcategories, with different notice and review requirements: . . . e