RE: FW: Taylor Appeal

From: Gerald Fisher

Sent: Tue Jan 23 09:36:07 2018

To: Scott Mansur

Subject: RE: FW: Taylor Appeal

Importance: Normal

Attachments: image001.jpg;

Planning Commission upheld my condition but the applicant will likely appeal to the City Council since he has an attorney. The applicants attorney said your memo was of no value in the decision (no surprising) and he spun it away from the fact that frontage improvements are standard requirements and proportionality only applies to offsite improvements and those above and beyond what the code requires for frontage improvements. Will let you know if I need anything more. Thanks Scott.

Regards,

Gerald Fisher, P.E. | Public Works Director

City of Molalla

117 N Molalla Ave. | PO Box 248 |Molalla, OR 97038

Office: 503.829.6855 | Direct: 503.759.0218

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From: Scott Mansur [mailto:smm@dksassociates.com]

Sent: Monday, January 22, 2018 5:53 PM

To: Gerald Fisher <gfisher@cityofmolalla.com>

Subject: Re: FW: Taylor Appeal

Gerald-

How did your meeting go?

Scott

Scott Mansur, P.E. (OR, WA, ID), PTOE

Principal/Office Manager, Salem Office

Ph: 503.391.8773 | Cell: 503.602.9575 | Email:smm@dksassociates.com

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On Wed, Jan 17, 2018 at 4:11 PM, Gerald Fisher <gfisher@cityofmolalla.com> wrote:

Thanks Scott.

Regards,

Gerald Fisher, P.E. | Public Works Director

City of Molalla

117 N Molalla Ave. | PO Box 248 |Molalla, OR 97038

Office: 503.829.6855 | Direct: 503.759.0218

From: Scott Mansur [mailto:smm@dksassociates.com]

Sent: Wednesday, January 17, 2018 2:25 PM

To: Spencer Parsons <Spencer@gov-law.com>

Cc: Gerald Fisher <gfisher@cityofmolalla.com>; Kristen Ketchel - Bain <Kristen@gov-law.com>

Subject: Re: FW: Taylor Appeal

Gerald-

Here is the final memo. Good luck tonight.

Scott

Scott Mansur, P.E. (OR, WA, ID), PTOE

Principal/Office Manager, Salem Office

Ph: 503.391.8773 | Cell: 503.602.9575 | Email:smm@dksassociates.com

On Wed, Jan 17, 2018 at 12:07 PM, Spencer Parsons <Spencer@gov-law.com> wrote:

Thanks Scott.

Gerald, Scott’s memo is consistent with the holding in the Locke case that I forwarded previously, and that we discussed regarding the requirement of frontage improvements. LUBA was very clear in that decision (a very analogous situation) that requiring frontage improvements consistent with standards applicable during a previous approval does not amount to an exaction The case involved addressed whether the City of Portland had the ability to require frontage improvements to a non-motorized pathway running in front of the applicant’s property. The decision summarizes Portland’s argument as follows:

The city disagrees with petitioner that the requirement to improve the pathway to city standards is an exaction as described in Nollan and Dolan, or in Koontz. The city argues that the requirement to improve the pathway that will serve the front entrance of the dwelling on Parcel 2 is a result of regulatory approval standards that applied to the 2015 decision and were re-applied to deny this portion of petitioner’s modification application. The City takes the position that the pathway was required to allow petitioner’s proposed land division to be approved at all, because the pathway is what allows Parcel 2 to meet the minimum lot frontage requirements. Slip Op. at 12.

In agreeing with the City, LUBA held as follows:

We agree with the city that no exaction has occurred in requiring petitioner to improve that pathway to the width, grade and materials standards designated by the city engineer, as [the Portland City Code] and Condition C.1 of the 2015 Decision require. This condition is unlike the condition that the water district in Koontz imposed that required Koontz to pay for and perform mitigation on district property several miles away from Koontz’s property, which in no way served to benefit Koontz’s property. Here, requiring that pathway to be improved makes it usable by the occupants of the dwellings on Parcels 1 and 2, which will have front entrances facing the pathway. It will also be usable by the public. The pathway serves as the front lot line access for Parcel 2 that petitioner sought to have approved, and that the city in fact improved. The [Portland City Code] includes standards that require petitioner to construct streets, such as a pathway, to city standards. The city’s requirement to improve the pathway to city standards is no different from a requirement to improve a new public street approved as part of a land division to city street standards for width, grade and materials, where the street largely serves parcels located in the subdivision. Slip Op. at 12-13 (emphases added).

Given that conclusion in Locke, by continuing to require that the applicant, as part of this approval, improve his street frontage as required by the City’s adopted standards applicable at the time of the original approval, “no exaction has occurred.”

Spencer

Spencer Q. Parsons

Beery Elsner & Hammond, LLP

1750 SW Harbor Way, Suite 380

Portland, OR 97201

t (503) 226 7191 | d (503) 802 0014

www.gov-law.com

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From: Scott Mansur [mailto:smm@dksassociates.com]

Sent: Wednesday, January 17, 2018 9:33 AM

To: Spencer Parsons

Cc: Gerald Fisher; Kristen Ketchel - Bain

Subject: Re: FW: Taylor Appeal

Gerald/Spencer-

Here is the draft memo I put together. Feel free to provide edits or comments in the Word doc. I can finalize it once I hear back from both of you.

Scott

Scott Mansur, P.E. (OR, WA, ID), PTOE

Principal/Office Manager, Salem Office

Ph: 503.391.8773 | Cell: 503.602.9575 | Email:smm@dksassociates.com

On Tue, Jan 16, 2018 at 4:05 PM, Spencer Parsons <Spencer@gov-law.com> wrote:

Scott,

Thanks for your time on the telephone today. Here is what I provided to Gerald last week.

Feel free to call or email if you have any questions,

Spencer

Spencer Q. Parsons

Beery Elsner & Hammond, LLP

1750 SW Harbor Way, Suite 380

Portland, OR 97201

t (503) 226 7191 | d (503) 802 0014

www.gov-law.com

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From: Spencer Parsons

Sent: Thursday, January 11, 2018 3:44 PM

To: 'Gerald Fisher'

Cc: Dan Huff; David Doughman; Kristen Ketchel - Bain

Subject: Taylor Appeal

Gerald,

As we discussed on the telephone earlier today, after looking through the forwarded materials, it is my conclusion that staff has a sound basis for continuing to recommend that the Council impose a condition requiring that street improvements be completed. As I will explain in detail below, given the above conclusion, if the applicant continues to challenge the validity of the imposition of a remonstrance waiver, staff should consider recommending that the Council revise the condition to simply require the frontage improvements to completed (without any remonstrance waiver and related deferral).

Under the current Code, Section 17-3.6.020.A.1 requires the following:

Except as provided by subsection A.5, existing substandard streets and planned streets within or abutting a proposed development shall be improved in accordance with the standards of Chapter 17-3.6 as a condition of development approval.

That provision functions as an explicit requirement that street improvements be made any approval, and means that the requirement does not need to be articulated as a separate approval condition. Subsection A.5 authorizes the City Engineer to waive or allow deferral of street improvements, upon making a finding that certain circumstances exist (listed in Section 17-3.6.020A.5(a-d) if the property owner provides a remonstrance waiver. No remonstrance waiver, no deferral and the requirement for the frontage improvements applies directly/immediately upon approval.

The current Code language outlined above is very similar to a Code language that was applicable at the time of the previous approval. Old Code Section 18.16.020.A.2 provided as follows:

Streets within or adjacent to a development shall be improved in accordance with the Transportation System Plan and the provisions of this Chapter.

The previous provision required street improvements to be made consistent with the Code’s Public Facilities Chapter and its TSP. As you indicated, those showed the road as an improved Neighborhood Street. One important distinction we discussed is that the old Code did not allow for deferral with a remonstrance waiver (and the making of an appropriate finding to support the deferral). Given that fact, and given the fact that granting the deferral is discretionary, if the applicant continues to object to the condition requiring the waiver, I suggest staff recommend that the Council revise the condition to simply require street frontage improvements consistent with applicable Code requirements.

Pertaining to the applicant’s argument that requiring street frontage improvements are unconstitutional, I have a call in to Scott Mansur to discuss his Dolan findings. However, recent LUBA caselaw supports staff’s position in requiring frontage improvements consistent with the applicant’s previous approval (as outlined above). In a very recent decision, LUBA rejected an argument that requiring frontage improvements to a pedestrian path, also imposed as part of an unchallenged prior land use approval, was unconstitutional under Nollan and Dolan. See, Locke v. City of Portland, LUBA No. 2017-061 (Dec. 19, 2017). In that case, the applicant challenged the constitutionality of an approval condition requiring pathway frontage improvements that was consistent with the requirements of a prior approval decision and the city’s adopted approval standards. As in this application, in that case the applicant had not challenged the requirement at the time of the previous land use approval. The City of Portland argued, and LUBA agreed, that requiring the applicant to complete the pathway frontage improvements consistent with the requirements of the prior approval was not unconstitutional. As LUBA explained:

The [Portland City Code] includes standards that require petitioner to construct streets, such as a pathway, to city standards. The city’s requirement to improve the pathway to city standards is no different from a requirement to improve a new public street approved as part of a land division to city street standards for width, grade and materials, where the street largely serves parcels located in the subdivision. Slip Op. at 13.

A copy of that LUBA opinion is attached to this email for your review. In this matter, the City of Molalla had (and continues to have) similar standards in place requiring the applicant to construct street frontage improvements. Those requirement is ongoing and continues to apply. Another significant parallel is that in this matter, just as in Locke, the applicant previously obtained a land use approval that required the construction of street frontage improvements, and that approval was not appealed. Given those facts, and given LUBA’s recent conclusion in Locke, the City has a sound legal basis for requiring the street frontage improvements as part of this approval.

Please feel free to call of email me if you would like to discuss the matter some more.

Spencer

Spencer Q. Parsons

Beery Elsner & Hammond, LLP

1750 SW Harbor Way, Suite 380

Portland, OR 97201

t (503) 226 7191 | d (503) 802 0014

www.gov-law.com

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