Ord 2296 - SPR 00-12 et al
COUNCIL BILL NO. 2332
ORDINANCE NO. 2296
AN ORDINANCE AFFIRMING THE WOODBURN PLANNING COMMISSION'S
APPROVAL OF SITE PLAN REVIEW 00-12, VARIANCE 01-04, AND PARTITION 01-
01 TO CONSTRUCT A RETAIL SHOPPING CENTER ON A 10.36 ACRE SITE
LOCATED AT THE SOUTHEAST CORNER OF THE INTERSECTION OF HIGHWAY
99E AND HIGHWAY 211; AND DECLARING AN EMERGENCY.
WHEREAS, the applicant, Pacific Realty Associates, requested approval of land use
applications for site plan review, variance, and partition to construct a retail shopping center on a
10.36 acre site located at the southeast corner of the intersection of Highway 99E and Highway
211; and
WHEREAS, The Woodburn Planning Commission held a public hearing on the matter at
their regularly scheduled meeting of March 22,2001 and adopted a final order on April 12, 2001
approving said applications; and
WHEREAS, the Planning Commission's decision was appealed to the Woodburn City
Council by Northwest Real Estate Services, Inc.; and
WHEREAS, the Woodburn City Council has reviewed the record pertaining to said
appeal and heard all public testimony presented at the appeal hearing; NOW, THEREFORE,
THE CITY OF WOODBURN ORDAINS AS FOLLOWS:
Section 1. That the decision of the Woodburn Planning Commission approving Site Plan
Review Case No. 00-12, Variance Case No. 01-04, and Partition Case No. 01-01 is affirmed
based upon Findings of Fact and Conclusions of Law, affixed hereto as Attachment "A".
Section 2. That 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<;Ol. ~~ 7 - b - 2 0 0 t
City Attorney Date
APproved:~l~
Passed by the Council July 9, 2001
Page I - COUNCIL BILL NO. 2332
ORDINANCE NO. 2296
Submitted to the Mayor
Approved by the Mayor
Filed in the Office of the Recorder
~,--,-- ~.
ATTEST: ~
Mary Te ant City Recorder
City of Woodburn, Oregon
Page 2 - COUNCIL BILL NO. 2332
ORDINANCE NO. 2296
July 11, 2001
July 11, 2001
July 11, 2001
ATTACHMENT ~
Page --'-- of 10
BEFORE THE CITY COUNCIL FOR THE CITY OF WOODBURN
In the Matter of an Appeal of the Planning
Commission's decision in that land use pennit
application known as Planning Department File
Nos. Site Plan Review 00-12, Variance 01-04,
and Partition 01-01 ("the Application")
) FINDINGS OF FACT AND
) CONCLUSIONS OF LAW
)
)
)
Introduction
Pacific Realty Associates ("Applicant") submitted the Application to the City. On April
12, 2001, the Planning Commission adopted an order approving the Application with
conditions, which the City mailed to parties of record on April 13, 2001. On April 23, 2001,
Northwest Real Estate Services, Inc. ("Appellant") fIled with the City a Notice of Intent to
Appeal the Commission's decision ("the Appeal").
At its June 25, 2001 meeting, the Council rendered a tentative decision denying the
Appeal and approving the Application, subject to conditions adopted by the Planning
Commission. These findings and conclusions supplement those set forth in the following, each
of which the Council adopts as its own and incorporates herein by this reference:
. the Planning Commission's April 12, 2001 Final Order regarding the
Application ('"the Commission Decision");
. the March 22, 2001 Staff Report to the Planning Commission; and
. the June 25, 2001 memorandum to the Council from Community Development
Director Jim Mulder.
To the extent that a conflict exists between the findings and conclusions set forth herein and
those set forth in those ancillary documents, the fonner prevail.
Procedural Matters
Description of Application
A description of the Application is set forth in Mr. Mulder's June 25, 2001
memorandum to the Council, which description the Council hereby adopts as its own.
Planning Commission Review
The Planning Commission reviewed the application at its regularly scheduled meeting
on March 22, 2001. Some Commission members described various ex parte contacts
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ATTAC.,ENT A
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W oodbum City Council
Supplemental Findings Re: Site Plan Review oo-12/Variance 01-04/Partition 01-01
regarding the application. No party requested further information regarding or an opportunity
to rebut those contacts.
At the March 22 meeting, the Planning Commission conducted the initial evidentiary
hearing on this application. The Commission took evidence and argument, written and oral,
from various persons at that time. No person requested that the Commission continue its
hearing or leave the record open for additional written comment. The Planning Commission
concluded the public hearing that evening and rendered a tentative decision to approve the
application subject to various conditions.
The Planning Commission adopted a written order approving the Application, with
conditions, at its regularly scheduled meeting on April 12, 2001.
Description of the Appeal
The Appeal asserted only one error in the Commission's decision, viz., that two
conditions of that approval "are beyond the control of the Applicant and are therefore
improper." The two conditions cited by Appellant read as follows:
Condition No. 20: "Access and improvement requirements on Highway 99E and
Highway 211 is contorlled and conditioned by the Oregon Department of
Transportation (ODOT). Applicant shall obtain road approach permit from
ODOT. "
Condition No. 22: "Dedicate a minimum of 7 additional feet right-of-way along
Highway 211 adjacent to subject property. However, the actual dedication shall
include all of the property needed to construct the improvements on both
Highway 211 and Highway 99E as required by ODOT. Provide an additional
10foot wide public utility easement adjacent to such dedicationfor location of
franchised utilities. "
The Appeal went on to assert that, stripped of these conditions, the record does not evidence
compliance with WZO ~ 11.070(d).
Council Decision
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ATTACJ:lMENT A
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Woodburn City Council
Supplemental Findings Re: Site Plan Review 00-12/Variance 01-04/Partition 01-01
The City Council considered the Appeal at its regularly scheduled meeting of June 25,
2001 with Mayor Jennings and Councilors Figley, Sifuentez, Bjelland, Chadwick, and
McCallum present. Councilor McCallum stated at that time that, because certain of his
immediate relatives are employed at the law fIrm that represents Appellant, he would recuse
himself from the proceeding, which he did. When asked by the Mayor, no person asserted that
the Council lacked jurisdiction to consider the matter, nor that any Councilor should stand
down for any reason.
The City Recorder read the statements required by ORS 197.763(5) regarding the
conduct of a quasi-judicial land use hearing. The Mayor then opened the public hearing.
During the Council hearing, Mr. Mulder presented an oral report. He noted that staff had
delivered to each Councilor before the hearing his memorandum dated June 25, 200 1. That
memorandum included the following exhibits:
. the March 22, 2001 Staff Report to the Planning Commission;
. minutes of the March 22, 2001 Planning Commission meeting regarding the
Application;
. the Commission Decision;
. the Appeal; and
. the June 7, 2001 letter from Applicant commenting on the Appeal.
The entirety of the Planning Department's me on the matter was made available to and placed
before the Council. All of these documents form the record of the City's proceedings to the
date of the Council hearing. At the hearing, the Council heard testimony from the following
people: Andrew Jones of PacifIc Realty Associates, LP, Michael Robinson, attorney for
Applicant, Beth Whemple, traffIc engineer, Dan Fricke of ODOT, and Christopher Koback,
attorney for Appellant.
No party requested that the Council either continue its hearing or leave open the written
record. Nor did anyone ask the Council to reject any evidence that had been presented to it.
The Council rejected none of the evidence presented.
The Council concluded the public hearing and closed the record to all evidence and
argument at the same June 25, 2001 meeting. Councilors proceeded immediately to discuss the
matter. Upon such discussion, Councilor Figley moved the Council to render a tentative
decision denying the Appeal and approving the Application, subject to conditions adopted by
the Planning Commission, and directed City staff to prepare fmdings supporting the decision
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ATTA~ENT A
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Woodburn City Council
Supplemental Findings Re: Site Plan Review oo-12/Variance 01-04/Partition 01-01
for presentation to the Council at its July 9, 2001 meeting. Councilor Sifuentez seconded the
motion. All Councilors present - the Mayor is not a Councilor - voted to approve the motion.
Based on the foregoing, the City Council finds that no party asserted an error in the
procedures by which the City considered the Application, much less asserted that such
procedural error prejudiced that party's substantial right to prepare and present its case for
consideration. That is, no party asserted any of the following:
· that the public notices of the Planning Commission hearing were insufficient;
· that the Planning Commission failed, upon request, to continue its hearing or
leave the written record open;
· that the Commission improperly rejected any of the evidence and argument
presented to it.
The Council specifically Concludes that all persons were given a full and fair opportunity to
raise any and all issues regarding the Application and its compliance or lack there of with
applicable law.
Scope of Council's Review
The Council reviews the Application de novo.
Substantive Issues
Approval Condition Nos. 20 and 22
"Section 11.070(d) of Chapter 11 of the City's Code (Site Plan Review) requires
that access to public streets shall minimize the impact of traffic patterns.
***
"[T]he Planning Commission approved Applicant's request with conditions
[Nos. 20 and 22J that Applicant dedicate property Applicant does not own or
control. The conditions are beyond the control of the Applicant and are
therefore improper." The Appeal, pages 2-3.
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Woodburn City Council
Supplemental Findings Re: Site Plan Review 00-12/Variance 01-04/Partition 01-01
The Appeal implicitly recognizes that, under the framework set forth in Burg;hardt v.
Molalla, 29 Or LUBA 223 (1995), the City must reach one of two conclusions regarding each
criterion in order to approve the Application. "A local government may properly grant permit
approval based on either (1) a finding that an applicable approval standard is satisfied, or (2) a
finding that it is feasible to satisfy an applicable approval standard and the imposition of
conditions necessary to ensure that the standard will be satisfied." Id. at 236.
The Council's task in considering Appellant's assertion, therefore, is two-fold. We
must first determine whether the City may lawfully impose Condition Nos. 20 and 22 on its
approval of the Application. If so, then we must determine whether it is feasible to satisfy
WZO ~ 11.070(d) and whether the conditions ensure that it will be satisfied. However, if we
determine that those conditions are not lawful, then we must determine whether WZO ~
11.070(d) is satisfied.
LUBA has set forth a two-prong test for the validity of permit conditions.
"[C]onditions attached to land use approval must support some legitimate planning purpose,
and the local government must have authority under its comprehensive plan or land use
regulations to impose the conditions." Davis v. City of Bandon, 28 Or L UBA 38, 48 (1994).
Appellant presented no evidence or argument that Condition Nos. 20 and 22 fail either
prong of this test. We note that these conditions require improvements to the City's
transportation infrastructure and that such improvements will be made as required by ODOT.
We further note Comprehensive Plan policies that call for improvement of public facilities
through the development process and coordination in that endeavor with other jurisdictions.
See, e.g., Plan Policy K-I-2 ("Develop a street system wherein arterial streets are of sufficient
width to accommodate traffic flows without interruption."); Plan Policy K-I-3 ("To insure that
state and federal highways with routes through the City are improved in accordance with
projected traffic volumes and the elements contained within this plan."); Plan Policy K-l-lO
("In order to bring Highway 214 and Highway 99E into compliance with the Access
Management Policy guidelines, the City of Woodburn shall coordinate with
ODOT. . . .")
Appellant does not appear to dispute the City's authority, as a general matter, to
approve a land use permit application subject to conditions. The Council finds that such
authority is set forth at WZO ~ 11. 030(b): "Any conditions attached to approval of the Site
Plan shall be conditions on the issuance of a building permit." Indeed, as the Applicant noted
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in its testimony to the Council, ORS 197.522 mandates the Council to "impose reasonable
conditions. . . to make the propos[al] consistent with the plan and applicable regulations."
Appellant appears to assert that Condition Nos. 20 and 22 are unlawful because they
require "that Applicant dedicate property that it does not own." Appellant fails, however, to
provide any explanation of why such a requirement, as a condition of permit approval, is
unlawful. Appellant fails even to present evidence that these conditions require the Applicant
to dedicate property that it does not own.
As an initial matter, the Council notes that Condition Nos. 20 and 22 specify merely the
extent to which additional right-of-way is needed. They do not, individually or collectively,
specify the property that must provide that right-of-way.
Furthermore, Applicant provided testimony from experts in the field of traffic
engineering, Beth Whemple of Kittelson and Associates, Inc. and Dan Fricke ofODOT. Ms.
Whemple and Mr. Fricke testified to their familiarity with the traffic intersection at issue and
to the fact that they have identified means of completing the needed improvements without
using any portion of Appellant's property. Each rendered an expert opinion that it is feasible
to satisfy the approval conditions without constructing improvements on Appellant's property.
We find that testimony both credible and persuasive in rebutting Appellant's contention, and
conclude that the Condition Nos. 20 and 22 do not require Applicant to dedicate property that
it does not own.
Finding that its essential factual premise - that Applicant can satisfy the conditions only
if it dedicates property that it does not own - is wrong, we reject Appellant's argument and
conclude that Appellant has failed to demonstrate that Condition Nos. 20 and 22 are unlawful.
Notwithstanding this conclusion we will assume, for purposes of argument, that Appellant can
establish that, indeed, in order to satisfy Condition Nos. 20 and 22, Applicant must dedicate
property that it does not own or control.
Appellant cites us to, and we find, no law to support a conclusion that an approval
condition that an applicant is able to satisfy only upon obtaining a property interest from
another entity is unlawful. In fact, such an argument has been rejected by the state's Land Use
Board of Appeals ("LUBA").
In Choban v. Washington County, 25 Or LUBA 572 (1993), the applicant requested
approval of a construction project in which wetlands would be filled. The County approved
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the project pursuant to a wetland mitigation plan that included property owned by an entity
other than the applicant. Petitioner asserted that there was insufficient assurance that the
mitigation plan could be implemented. LUBA disagreed, finding the approval conditions
"adequate to ensure [applicant] will have the right to control the land upon which the off-site
improvements will be constructed. . . ." Choban, 25 Or LUBA at 585-86. We thus conclude
that it is not unlawful for the City to impose an approval condition that can be met only if the
applicant obtains property from another entity.
Finding no proscription in law, it is possible that Appellant simply invites the Council,
in deciding this case, to adopt a City policy against such conditions. We find that such a
policy choice by the Council would be unwise and we decline to adopt it. The City's ability to
require public facility improvements as a condition of project approval is critical to building
and maintaining adequate public facility infrastructure.
Appellant went on to present other reasons, unrelated to any approval criteria, why the
Council should not uphold Condition Nos. 20 and 22. We are thus left to determine whether,
as urged by Appellant, there are reasons for the Council not to uphold the Planning
Commission's use of this authority.
In its oral testimony to the Council, Appellant asserted that Condition Nos. 20 and 22
bind Appellant's use of its property. The conditions do not run with Appellant's property.
Rather, they bind only Applicant's ability to use and develop its property in the manner
approved in the permit. Appellant is free to refuse to work with Applicant to implement the
highway improvements. Nothing in the Planning Commission's decision forces the Appellant
to accept on its property improvements that it does not want.
The Transportation Planning Rule
The Appellant then raised the issue of compliance with the Transportation Planning
Rule, OAR 660-012-0000, et.seq. Neither the Staff Report nor the Commission Decision
identifies any provision of the TPR that it believes constitutes a relevant approval criterion to
this Application. The Appellant failed to identify the specific TPR provision that it believes
applies to the Application.
The Council notes that the TPR is the LCDC administrative rule that implements Goal
12, Transportation. The Council also notes that the TPR consists mainly of directives for City
action (Le. to adopt a TSP), rather than regulatory criteria. The Council also notes that the
City has addressed the TPR through adoption of a Transportation System Plan (TSP)
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Woodburn City Council
Supplemental Findings Re: Site Plan Review 00-12/Variance 01-04/Partition 01-01
OAR 660-012-0060 applies directly to post-acknowledgment plan amendments, of which the
Application is not.
As such, the TPR clearly applies to plan amendment and zone change applications.
Without citation by Appellant to a specific provision of that rule that it believes to apply,
Appellant fails to raise this issue with specificity sufficient for us to address the issue. Based
upon the foregoing, the Council concludes that the TPR is not a criterion applicable to the
Application.
Impact on Adjacent Property
Appellant asserted that approving this Application will cause the existing Safeway store
to go vacant. This issue clearly does not relate to the City's authority to approve the
Application subject to Conditions 20 and 22. Appellant does not identify, and the Council does
not find, a criterion to which this assertion relates. Rather, the Council finds that the assertion
relates primarily to regulation of business competition, an issue upon which it specifically
declines to judge the Application. The Council thus concludes that Appellant's assertion that
approval of the Application will tend to force the existing Safeway to become vacant is not
relevant to the Application.
WZO ~ 11.070(d)
As noted above, the Council concludes that the City may lawfully impose Condition
Nos. 20 and 22 on approval of the Application. Therefore, in order to approve the
Application, we must conclude that it is feasible to satisfy WZO ~ 11.070(d) and that the
approval conditions ensure that it will be satisfied.
WZO ~ 11. 070( d) reads as follows:
"Access to public streets shall minimize the impact of traffic
patterns. Whenever possible, direct access shall not be allowed
to arterial streets. Whenever possible, access shall be shared
with adjacent uses of a similar nature."
This criterion regulates the placement of access from private property to public rights-
of-way. Specifically, it requires that driveways be placed in locations that minimize impact to
traffic on the adjacent road.
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ATTACHMENT
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Woodburn City Council
Supplemental Findings Re: Site Plan Review 00-12/Variance 01-04/Partition 01-01
Appellant presented no evidence regarding the extent to which placement of driveways
on the site would negatively affect traffic flow on public streets. The Council has reviewed the
traffic study submitted by Kittelson. The study describes the site's access locations and the
safety and efficiency of traffic operation. It concludes that placement of those access
driveways does not undermine such safety and efficiency. This testimony was unrebutted. We
find it credible and persuasive in demonstrating that the site's access driveways minimize
impact to traffic on the adjacent road.
Appellant implies that this criterion regulates the extent to which traffic generated by a
proposed development may affect traffic patterns. Assuming for purposes of argument that
this is the case, the criterion does not prohibit such affect, but merely requires that it be
reasonably minimized. As such, the focus of inquiry is the sufficiency of the Applicant's
mitigation plan. Specifically, does the plan mitigate to the extent practicable the impact of
traffic generated by the proposed development? The criterion also enumerates two specific
impact-mitigating techniques that must be investigated.
The Council has reviewed the traffic study submitted by Applicant. The study
estimates the amount of traffic that the project will generate and the impact that added traffic
would have on the surrounding street system. No party rebutted that testimony. We find it
credible and persuasive.
The March 22 Staff Report (pages 7-9) describes ODOT's review of the Application
and the highway improvements that the agency suggests are necessary to mitigate the above-
described traffic impacts. We find ODOT's comments regarding traffic impacts and mitigating
road improvements to be highly credible and not effectively rebutted. We are persuaded,
based upon those comments as summarized in the March 22 Staff Report, that it is feasible for
the Applicant to comply with this criterion and that Condition Nos. 20 and 22, which
implement the mitigation plan suggested by ODOT, ensure such compliance.
Appellant appears to suggest that it is infeasible for Applicant to satisfy the conditions
themselves because they require Applicant to dedicate property that it does not own. We
conclude above that, contrary to Appellant's assertion, satisfaction of Condition Nos. 20 and
22 does not necessitate dedication by Applicant of property that it does not own. For example,
the conditions could be satisfied by alternative intersection improvements. We further
conclude above that, assuming that those conditions do make that requirement, the City
remains authorized to impose them.
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Woodburn City Council
Supplemental Findings Re: Site Plan Review 00-12/Variance 01-04/Partition 01-01
We now conclude that, assuming Condition Nos. 20 and 22 require Applicant to
dedicate property that it does not own, it is feasible for Applicant to satisfy those conditions.
Feasibility is a determination oftechnical capability (e.g., whether it is feasible for a site's
soils to accommodate the development without eroding away). Appellant presents no evidence
that Applicant is incapable of completing an acquisition of the property from Appellant (or any
other property owner). The unwillingness of a present owner to sell does not render a land
purchase "infeasible."
IX. CONCLUSION
The Council hereby approves the Application subject to the conditions set forth in the
Commission Decision.
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