Agenda - 10/29/1996 Spec Mtg
CITY OF WOODBURN
270 Montgomery Street . Woodburn, Oregon 97071 · (503) 982-5222
TDD (503) 982-7433 · FAX (503) 982-5244
AGENDA
SPECIAL MEETING
Woodburn City Council
October 29, 1996 - 7:00 p.m.
270 Montgomery Street * * Woodburn, Oregon
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A. COUNCIL BILL NO. 1755 - Ordinance affirming the decision of the Woodburn Planning
Commission; approving Site Plan Review Application 95-26 (3rd reading).
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COUNCil Bill NO. 1756
ORDINANCE NO.
AN ORDINANCE REGARDING COMPLIANCE WITH AND THE ENFORCEMENnNON-
ENFORCEMENT OF AN ACCESS CONDITION ON SITE PLAN REVIEW APPLICATION
92-12 AND DECLARING AN EMERGENCY.
WHEREAS, the Planning Commission conducted a public hearing in this matter
on April 25, 1996 and June 27, 1996 and considered the written information and
public testimony submitted; and
WHEREAS, the Commission, after providing a full and fair opportunity for
testimony, closed its public hearing and adopted a final order; and
WHEREAS, Mar-Dene Corporation appealed this matter to the City Council by
its letter dated July 24, 1996; and
WHEREAS, the City Council conducted a Wl ~ public hearing on October
14, 1996, and considered publiC testimony, written information and the certified
record of the Planning Commission proceeding; NOW, THEREFORE:
THE CITY OF WOODBURN ORDAINS AS FOllOWS:
Section 1. That the City Council finds that it has jurisdiction to determine
compliance with, and the enforcement\non-enforcementof an access condition on site
plan review application 92-12. Jurisdiction is based on the City Council's
interpretation of the relevant Woodburn Zoning Ordinance provisions.
When compliance with, and the enforcement\non-enforcement of the access
condition on Site Plan approval 92-12 became an issue, the Planning Commission
conducted a publiC hearing on the issue based upon the authority of the Commission
as provided in Chapter 6 of the Woodburn Zoning Ordinance, and specifically Section
6.070, which allows the Planning Commission to hold a hearing on its own motion
and in its discretion to consider such matters.
After the Commission closed its hearing and issued its Final Order, Mar-Dene
Corporation appealed the matter to the City Council. The City Council heard the
appeal pursuant to Section 11 .050 (b) of the Woodburn Zoning Ordinance which
allows the appeal to the City Council of any action taken by the Commission.
The issue involves a final land use decision within the exclusive jurisdiction of
the City Council and is a discretionary determination under the Woodburn Zoning
Ordinance, as opposed to a ministerial decision. The parties have been afforded, and
have availed themselves of, the full quasi-judicial land use hearing process both before
the Planning Commission and City Council.
Page 1 -
COUNCIL BILL NO. 1756
ORDINANCE NO.
Section 2. That the City Council finds that it is called upon to interpret the
terms of the City's own enactment, the access condition originally imposed by the
Planning Commission. The City Council has the legal authority to make this
interpretation. ~ ORS 197.829; Gage v. City of Portland. 319 Or 308 (1994);
Clark v.Jackson Countv f 313 Or 508 (1992). The City Council finds, based upon the
Findings and Conclusions contained in Exhibit A, which is attached hereto and by this
reference incorporated herein, that the access condition, originally imposed on Site
Plan Review Case 92-12 has been substantially complied with. Said condition is as
follows:
4. ACCESS: The affected property owners as described in
Section E, Subsection 1 (a-e) of the staff report shall prepare an
agreement that meets City and State Highway Division approval
prior to the issuance of a building permit for the Holiday Inn
Express.
Section E, Subsection 1 (a-e) of the staff report (incorporated by reference into the
access condition) provides as follows:
1. Since driveway access points to the State Highway disrupt the
flow of through traffic eliminate to the greatest extent possible
this number of access points to the Highway. To accomplish this
and not jeopardize the affected business requires the following
action:
a. Eliminate one of the two driveway access points on Highway
214 to the · J.s Restaurant that access closest to the Holiday Inn
driveway. In turn the Holiday Inn will allow J's Restaurant access
off of their driveway.
b. Eliminate on of the two access points on Highway 214 to
Wendy's Restaurant that driveway access closest to the Fairway
Plaza. An alternative access would be accommodated off the
Evergreen Road extension along the westerly portion of the
Fairway Plaza property.
c. The third action would require dedication and street
improvement of Evergreen Road to a point that access to the
Holiday Inn Express could be realized.
d. Allow for the driveway access between J's and Wendy's
restaurants be an entrance only. Vehicles accessing Highway 214
from the Holiday Inn would use the Evergreen Road extension
north of Highway 214.
Page 2 -
COUNCIL BILL NO. 1756
ORDINANCE NO.
e. Curb cuts for J's & Wendy's restaurants should be placed on
the northerly portion of those properties.
Section 4. That the City Council, based upon the Findings and Conclusions
contained in Exhibit A, which is attached hereto and by this reference incorporated
herein, finds that it can legally take no further action to enforce the access condition,
originally imposed on Site Plan Review Case 92-1 2 that is set forth in Section 3 .
above.
Section 5. This ordinance being necessary for the immediate preservation of
the public peace, health and safety, an emergency is declared to exist and this
ordinance shall take effect immediately upon passage by the Council and approval by
the Mayor.
Approved as to form.~ ~
City Attorney
Jo,.~r-lb
Date
APPROVED:
Nancy A. Kirksey, Mayor
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
Filed in the Office of the Recorder
ATTEST:
Mary Tennant, City Recorder
City of Woodburn, Oregon
Page 3 -
COUNCIL BILL NO. 1756
ORDINANCE NO.
EXHIBIT · A n
Page 1 of 7
FINDINGS
ACCESS CONDITION ON SITE PLAN APPROVAL 92-12
HOLIDAY INN EXPRESS
I. NATURE OF PROCEEDINGS
In 1992, the Planning Commission approved Site Plan 92-12 for the Holiday Inn
Express site. Various development conditions were attached to this approval,
including an access condition. One part of this condition required Holiday Inn Express
to extend Evergreen Road to allow access to its development site. Related to this, the
condition also required that Holiday Inn Express reach an agreement with a
neighboring property owner, Wendy's(Mar-Dene) to allow Wendy's(Mar-Dene)
driveway access onto the Holiday Inn Express Evergreen Road extension. Wendy's
(Mar-Dene) then refused to pay Holiday Inn Express for its pro rata share of the
Evergreen Road extension improvement, but still demanded an installed driveway
from Holiday Inn Express, pursuant to the terms of the site plan approval.
After it became apparent that an agreement could not be reached between Wendy's
(Mar-Dene) and Holiday Inn Express, planning staff brought the issue to the
Commission by a memo dated August 5, 1993. The issue was discussed briefly by
the Commission with staff at the August 12, 1993 meeting and a consensus was
reached not to further pursue enforcement of this portion of the access condition.
However, no formal hearing notice was given by staff of the Commission's discussion
of this condition.
On July 6, 1995, Mar-Dene Corporation (the owners and operators of Wendy's)
appealed the August 12, 1993 Commission decision to the Land Use Board of
Appeals (LUBA). On August 17, 1995, the Commission voted to withdraw for
reconsideration its August 12, 1993 action and on August 31, 1995, LUBA remanded
the decision on the condition back to the Commission.
The Commission first set the public hearing on the access condition for October 26,
1995 and then continued it until January 11, 1996, then February 22, 1996, then
March 28, 1996, in hopes that the private parties could voluntarily settle this dispute.
When a voluntary settlement did not materialize, the land use issue remained pending
before the Commission.
On March 28, 1996, the Commission formally requested a legal opinion, which was
memorialized in Memorandum Opinion No. 96-01 and was introduced as part of the
record. This legal opinion advised the Commission that its authority to impose and
Page 1 - FINDINGS, ACCESS CONDITION ON SITE PLAN APPROVAL 92-12
EXHIBIT " A"
Page 2 of 7
enforce conditions is limited by constitutional principles. Specifically, if the
Commission were to require Holiday Inn Express to provide a northern driveway for
Wendy's (Mar-Dene) onto the Evergreen Road extension, without compensation, this
would subject the City to civil liability for an unconstitutional taking of the property
of Holiday Inn Express under the Fifth Amendment to the United States Constitution.
The Commission conducted a quasi-judicial land use hearing and heard public
testimony on April 25, 1996.
In response to a request from the attorney for Mar-Dene Corporation (Wendy's), the
publiC hearing was continued by the Commission until June 27, 1996, to afford the
parties a full and fair opportunity to prepare and present additional public testimony.
On June 27, 1996, the Commission heard additional public testimony and closed the
public hearing and record.
On July 11, 1996, the Commission adopted a Final Order.
Mar-Dane Corporation (Wendy's) then appealed this matter to the City Council by its
letter dated July 24, 1996.
On October 14, 1996, the City Council conducted a de novo public hearing and
considered public testimony, written information and the certified record of the
Planning Commission proceeding. The publiC hearing and record were closed and the
City Council directed staff to prepare this ordinance for its consideration at the
October 28, 1996 meeting.
II. FINDINGS OF FACT
A. Facts
1 . The facts concerning this matter before the City Council are contained
in the record of this proceeding, including the staff submissions, public
testimony, and documentary evidence presented before the City Council
and the certified record of the Planning Commission proceeding, all of
which are by this reference incorporated herein.
2. The access condition originally imposed by the Planning Commission in
Site Plan Review Case 92-12 is as follows:
Page 2 - FINDINGS, ACCESS CONDITION ON SITE PLAN APPROVAL 92-12
EXHIBIT II A"
Page 3 of 7
4. ACCESS: The affected property owners as described in
Section E, Subsection 1 (a-e) of the staff report shall prepare an
agreement that meets City and State Highway Division approval
prior to the issuance of a building permit for the Holiday Inn
Express.
Section E, Subsection 1 (a-e) of the staff report (incorporated by reference into the
access condition) provides as follows:
1. Since driveway access points to the State Highway disrupt the
flow of through traffic eliminate to the greatest extent possible
this number of access points to the Highway. To accomplish this
and not jeopardize the affected business requires the following
action.
a. Eliminate one of the two driveway access points on Highway
214 to the MJ"S Restaurant that access closest to the Holiday Inn
driveway. In turn the Holiday Inn will allow J's Restaurant access
off of their driveway.
b. Eliminate on of the two access points on Highway 214 to
Wendy's Restaurant that driveway access closest to the Fairway
Plaza. An alternative access would be accommodated off the
Evergreen Road extension along the westerly portion of the
Fairway Plaza property.
c. The third action would require dedication and street
improvement of Evergreen Road to a point that access to the
Holiday Inn Express could be realized.
d. Allow for the driveway access between J's and Wendy's
restaurants be an entrance only. Vehicles accessing Highway 214
from the Holiday Inn would use the Evergreen Road extension
north of Highway 214.
e. Curb cuts for J's & Wendy's restaurants should be placed on
the northerly portion of those properties.
3. The City Council finds that is called upon to interpret the terms of the
access condition previously imposed by the Planning Commission. The
City Council has the legal authority to make this interpretation. ~
Page 3 - FINDINGS, ACCESS CONDITION ON SITE PLAN APPROVAL 92-12
EXHIBIT -A-
Page 4 of 7
ORS 197.829; Gage v. Citv of Portland. 319 Or 308 (1994); .cIiu:k
v.Jackson County, 313 Or 508 (1992). The City Council finds that the
terms of the access condition set forth in paragraph 2 above has been
substantially complied with. The component parts of the condition can
be addressed as follows: .
4. A CCESS The affected property owners as described in Section E,
Subsection 1 (a-e) of the staff report shall prepare an agreement that
meets City and State Highway Division approval prior to the Issuance of
a building permit for the Holiday Inn Express.
MAffected property owners. would include J's Restaurant, Wendy's (Mar-Dene) and
the applicant, Holiday Inn Express.
J's Restaurant reached an agreement with Holiday Inn Express to obtain northern
access onto the Evergreen Road Extension. J's Restaurant also voluntarily closed a
driveway access to Highway 214.
Wendy's (Mar-Dene) has not reached an agreement with Holiday Inn Express and will
not pay Holiday Inn Express for its pro rata share of the Evergreen Road extension
improvement constructed by Holiday Inn Express.
Also, Wendy's (Mar-Dene) has not voluntarily closed an access to Highway 214 but
continues to have direct access.
a. Eliminate one of the two driveway access points on Highway 214 to
the 1# J.s Restaurant that access closest to the Holiday Inn driveway. In
turn the Holiday Inn will allow 1# JIIS Restaurant access off of their
driveway.
As just stated above, this part of the condition was voluntarily accomplished by the
affected property owners J's and Holiday Inn Express.
b. Eliminate on of the two access points on Highway 214 to Wendy's
Restaurant that driveway access closest to the Fairway Plaza. An
alternative access would be accommodated off the Evergreen Road
extension along the westerly portion of the Fairway Plaza property.
As just stated above, this part of the condition was not accomplished. Wendy's (Mar-
Dene) and Holiday Inn Express have not reached an agreement and Wendy's (Mar-
Page 4 - FINDINGS, ACCESS CONDITION ON SITE PLAN APPROVAL 92-12
EXHIBIT "A"
Page 5 of 7
Dene) will not pay Holiday Inn Express for its pro rata share of the Evergreen Road
extension improvement constructed by Holiday Inn Express. Also, Wendy's (Mar-
Dene) has not voluntarily eliminated direct access to Highway 214.
c. The third action would require dedication and street improvement of
Evergreen Road to a point that access to the Holiday Inn Express could
be realized.
This part of the condition was accomplished by Holiday Inn Express. Evergreen Road
was extended onto the private property of Holiday Inn Express in order to provide
access to the Holiday Inn Express development.
d. Allow for the driveway access between · J's and Wendy's
restaurants be an entrance only. Vehicles accessing Highway 214 from
the Holiday Inn would use the Evergreen Road extension north of
Highway 214.
This part of the condition was also achieved, but not by the City's legal authority.
Direct access onto all state highways is legally controlled by the state. The decision
as to whether to designate the driveway between J's and Wendy's as -entrance only'
is entirely a state determination. When Holiday Inn Express was developed, the state
designated this driveway -entrance only' and had the pavement narrowed. Traffic
is now routed to the Evergreen Road traffic signal.
e. Curb cuts for · J'& Wendy's restaurants should be placed on the
northerly portion of those properties.
When J's reached an agreement with Holiday Inn Express, a curb cut was made and
a northern driveway was installed onto the Evergreen Road Extension, which is
privately owned by Holiday Inn Express.
Wendy's (Mar-Dene) could not reach an agreement with Holiday Inn Express and
would not pay Holiday Inn Express for Its pro rata share of the Evergreen Road
extension improvement constructed by Holiday Inn Express. Because of this, no curb
cut and northern driveway was installed onto the Evergreen Road extension for
Wendy's(Mar-Dene). Wendy's (Mar-Dene) refused to pay Holiday Inn Express for a
pro rata share of the Evergreen Road extension improvement, but still wants to be
given an installed driveway.
Page 5 - FINDINGS, ACCESS CONDITION ON SITE PLAN APPROVAL 92-12
EXHIBIT "A"
Page 6 of 7
III. CONCLUSIONS OF LAW
A. The City Council concludes that the issue before it, consideration of compliance
with, and the enforcement\non-enforcement of the access condition on Site
Plan Review Case 92-12, constitutes a land use decision under ORS 197.015
(10)(a).
B. The City Council concludes that it has jurisdiction to determine compliance
with, and the enforcement\non-enforcementof an access condition on Site Plan
Review Application 92-12, previously imposed by the Planning Commission.
Jurisdiction is based on the City Council's interpretation of the relevant
Woodburn Zoning Ordinance provisions.
When compliance with, and the enforcement\non-enforcement of the
access condition on Site Plan approval 92-12 became an issue, the
Planning Commission conducted a public hearing on the issue based
upon the authority of the Commission as provided in Chapter 6 of the
Woodburn Zoning Ordinance, and specifically Section 6.070, which
allows the Planning Commission to hold a hearing on its own motion and
in its discretion to consider such matters.
After the Commission closed its hearing and issued its Final Order, Mar-
Dene Corporation appealed the matter to the City Council. The City
Council heard the appeal pursuant to Section 11.050 (b) of the
Woodburn Zoning Ordinance which allows the appeal to the City Council
of any action taken by the Commission.
C. The issue involves a final land use decision within the exclusive
jurisdiction of the City Council and is a discretionary determination under
the Woodburn Zoning Ordinance, as opposed to a ministerial decision.
Medford Assemblv of God v. Citv of Medford, 297 Or 138, 681 P 2d
790 (1984) cert. denied, 474 US 1020 (1985). The parties have been
afforded, and have availed themselves of, the full Quasi-judicial land use
hearing process both before the Planning Commission and City Council.
D. The City Council concludes that it is called upon to interpret the terms of the
City's own enactment, the access condition previously imposed by the Planning
Commission. The City Council has the legal authority to make this
interpretation. ~ ORS 197.829; Gage v. Citv of Portland, 319 Or 308
(1994); Clark v.Jackson Countv, 313 Or 508 (1992). The City Council finds
Page 6 - FINDINGS, ACCESS CONDITION ON SITE PLAN APPROVAL 92-12
. ~
EXHIBIT II A II
Page 7 of 7
that the access condition, originally imposed on Site Plan Review Case 92-12
has been substantially complied with.
E. The City Council concludes that, as a matter of law, no further action should
be taken to enforce the remaining portion of the Planning Commission access
condition on Site Plan Review 92-12, based upon the evidence in the record
and the legal reasoning contained in Memorandum Opinion 96-01 (Staff Exhibit
VI, Planning Commission Record) which is contained in the record and is, by
this reference, incorporated herein.
F. Specifically, if the City were to require HOliday Inn Express to provide a
northern driveway for Wendy's (Mar-Dene) onto the Evergreen Road
extension, without compensation, this would subject the City to civil
liability for an unconstitutional taking of the property of Holiday Inn
Express under the Fifth Amendment to the United States Constitution
G. For the City to continue to require Holiday Inn Express, the original
applicant in Site Plan Review 92-12, to reach an agreement with
Wendy's (Mar-Dene) would subject the City to potential liability based
upon a -temporary taking- since Holiday Inn Express does not have the
ability to comply with this portion of the access condition. ~
Schoonover v. Klamath County, 105 Or App 611, 806 P2d 156 (1991).
H. The City Council concludes that the portion of the Planning Commission
access condition that requires Holiday Inn Express to provide a northern
driveway for Wendy's (Mar-Dene) onto the Evergreen Road extension,
without compensation violates Nollan v. California Costal Commission,
483 US 825, 107 S Ct 3141 (1987) because an "essential nexus. to a
legitimate government interest cannot be demonstrated.
I. The City Council concludes that the portion of the Planning Commission
access condition that requires Holiday Inn Express to provide a northern
driveway for Wendy's (Mar-Dene) onto the Evergreen Road extension,
without compensation violates Dolan v.Citv of Tigard, 512 US , 129
L Ed 304 (1994) because the City cannot demonstrate a "rough
proportionality. between that portion of the condition and the
developmental impacts.
Page 7 - FINDINGS, ACCESS CONDITION ON SITE PLAN APPROVAL 92-12