From: Dan Huff
Sent: Wed Jan 17 13:27:10 2018
To: Gerald Fisher
Cc: Aldo Rodriguez
Subject: RE: Document1
Importance: Normal
Attachments: Taylor 1-17-18 Planning Commission.docx; Gerald I think we should say P.C. instead of Council 1 and 2. Also, Is 2 the same as 10 when you read it? From: Gerald Fisher [mailto:gfisher@cityofmolalla.com] Sent: Wednesday, January 17, 2018 11:50 AM To: Dan Huff <dhuff@cityofmolalla.com> Subject: RE: Document1 This looks good. Attorney points: 1. Staff has a sound basis for continuing to recommend that the Council impose a condition requiring that street improvements be completed 2. 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) 3. Standards for requiring improvements is covered in Code, Section 17-3.6.020.A.1 4. 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. 5. 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. 6. No remonstrance waiver, no deferral and the requirement for the frontage improvements applies directly/immediately upon approval. 7. Old Code Section 18.16.020.A.2 stated Streets within or adjacent to a development shall be improved in accordance with the Transportation System Plan and the provisions of this Chapter. 8. The previous provision required street improvements to be made consistent with the Code’s Public Facilities Chapter and its TSP 9. One important distinction we discussed is that the old Code did not allow for deferral with a remonstrance waiver. 10. 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. 11. Pertaining to the applicant’s argument that requiring street frontage improvements are unconstitutional, 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. 12. As in this application, in that case the applicant had not challenged the requirement at the time of the previous land use approval. 13. In this matter, the City of Molalla had (and continues to have) similar standards in place requiring the applicant to construct street frontage improvements. 14. 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. I am still waiting on DKS’s memo. Thanks. 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 CONFIDENTIALITY NOTICE: The information contained in this email message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient and have received this communication in error, please contact the sender by reply email and destroy all copies of the original message. Thank you. From: Dan Huff [mailto:dhuff@cityofmolalla.com] Sent: Wednesday, January 17, 2018 8:58 AM To: Gerald Fisher <gfisher@cityofmolalla.com> Subject: Document1 My comments