Issues
    of
    Interest

    Past Issues
    Fred Meyer Complex
    LUBA Appeal Brief
    Our Goal: To improve the livability of Florence through public education and community involvement.
     
    LUBA Appeal Brief

    BEFORE THE LAND USE BOARD OF APPEALS

    OF THE STATE OF OREGON

    LUBA No. 98-089

    CITIZENS FOR FLORENCE, Petitioners
      v.
    CITY OF FLORENCE, Respondent,
      and
    FRED MEYER / WESTWOOD, INC., Intervenor-Respondent

     

     
     

    PETITION FOR REVIEW

    STATEMENT OF THE CASE
    FIRST ASSIGNMENT OF ERROR
    SECOND ASSIGNMENT OF ERROR
    THIRD ASSIGNMENT OF ERROR
    FOURTH ASSIGNMENT OF ERROR
    FIFTH ASSIGNMENT OF ERROR
    CONCLUSION

    ***************

    STATEMENT OF THE CASE

    Petitioner's Standing

    Petitioner Citizens for Florence ("CFF"') filed its Notice of Intent to Appeal on May 26, 1998, and submitted written and oral testimony at appearances before the Florence Planning Commission and City Council on the Resolution to approve development of a Fred Meyer Store. Rec 1, 157, 657. Therefore, CFF has standing to appeal this land-use decision under ORS 197.830(2).

    Nature of the Land Use Decision and Relief Sought

    CFF seeks reversal or remand of a land use decision by the Florence City Council entitled "Resolution No. 8, Series 1998: A Resolution Affirming the Decision of the Florence Planning Commission of October 29, 1997, Regarding a Design Review Application to Construct a 127,000 Square Foot Fred Meyer Retail Store Located at 4701 Highway 101 as Modified by the Florence City Council and Setting Additional Conditions of Approval." CFF seeks reversal because the City Council's decision violates relevant Florence city code provisions, comprehensive plan ("FCP or plan") provisions, and LCDC's Transportation Planning Rule. CFF seeks remand because the city's decision is not supported by adequate findings of fact or reasons.

    Summary of Arguments

    By approving the Resolution, the city misconstrued and misapplied the applicable law. Specifically, the city erred, as a matter of law, by failing to find that necessary sewage treatment facilities are available with sufficient capacity to accommodate the proposed development as required by FC 10-16-4(E). The city's findings are inconsistent with the express language of that code provision and are not supported by substantial evidence in the record.

    The city also failed to provide notice of, apply, or find compliance with the DLCD Transportation Rule criteria at OAR 660-012-045(3) as required by OAR 660- 012-055(4)(b).

    In addition, the city failed to interpret the term, "potential development" consistent with the express meaning of the term under FC 10-16-4(A). The city's interpretation is also inconsistent with the underlying policy that provides the basis for the code provision. The city's finding that FC 10-16-4(A) does not apply is contrary to the substantial evidence in the record that clearly demonstrates the city has long regarded the adjacent BLM property as potentially developable as a public well field.

    Further, the city erred by failing to make a finding that the applicant's proposed stormwater infiltration system is adequate to accommodate the proposed development as required by FC 10-16-4(E). The city's findings are inconsistent with the express language of the code provision and not supported by substantial evidence in the record.

    Finally, the city misinterpreted FC 10-16-4(B) by failing to require innovative site design alternatives that would have allowed the city to ensure that the proposed Fred Meyer development is as attractive as the nature of the use and the setting will allow. The city's interpretation is inconsistent with the express language of the code provision, is inconsistent with the purpose of the code provision, and is inconsistent with the underlying policies that provides the basis for the code provision.

    Summary of Facts

    The proposal to construct a 127,000 square foot commercial retail store on Highway District zoned land located near the northern boundary of Florence was initiated by the Respondent-Intervenor Westwood/Fred Meyer ("Westwood"). Rec 843. The 12.52 acre undeveloped site is located approximately 500 feet south of the intersection of Highway 101 and Munsel Lake Road. Rec 845. The site plan for the proposal includes development of two satellite pad parcels that are anticipated to be developed as a gas station and fast food restaurant. Rec at 344. The front of the proposed Fred Meyer store would face east, towards Highway 101, and span nearly 600 feet from north to south. Figure 4 of AHBL Storm Drainage Report, dated 2/98, Oversize Exhibit B.1.

    The surrounding use to the west of the site is the last active dune visible from Highway 101 within the Florence city limits. Id., at Figure 5 (color photograph). The dune and area west of the dune is managed by the Bureau of Land Management ("BLM"), and is designated as open space in the Florence Comprehensive Plan. Rec 343, App 43. The city is currently seeking to lease the property from the BLM, in part, for use as a potential domestic water well field to serve the northern portion of the city. Rec 177. The site north of the subject property is undeveloped land zoned Highway District. The site east of the property is undeveloped land that recently underwent a zone change designation from residential to Commercial to accommodate a proposed factory outlet mall. Id. The site south of the subject property belongs to Leisure Excavating Company and is zoned Highway District. Id.

    The Florence Planning Commission/Design Review Board approved the proposal following a hearing on October 29, 1997. Rec 667. CFF appealed the decision to the City Council which scheduled an "on the record hearing" for January 12, 1998. The postponed hearing was continued to February 4, 1998. Rec 636, 606. Based on arguments made at the February 4 hearing, the City Council remanded the decision back to the Planning Commission/Design Review Board to reconsider its decision and develop further information regarding compliance with certain Highway District code requirements and Design Review criteria. Rec 601.

    The Planning Commission/Design Review Board subsequently held an evidentiary hearing on March 10, 1998. At this hearing the applicant submitted a revised Storm Drainage Report, a revised Traffic Impact Analysis, revised building elevations, and a landscaping plan. The city Public works director submitted a memorandum on the city's wastewater treatment collection facilities. Rec 390. CFF presented additional testimony concerning application of the relevant criteria and adequacy of the supplementary evidence presented. Rec 306.

    Following the testimony, the Planning Commission issued Resolution 98-3-24-17 recommending that the City Council approve the project subject to certain conditions contained within the Resolution. Rec 188.

    The Florence City Council held a hearing on April 7, 1998 to consider the resolution and allowed certain new evidence and testimony regarding the adequacy of the proposed stormwater infiltration system. Rec 157, 152. The City Council continued its deliberations at a May 4, 1998 meeting, culminating in a decision to uphold the Planning Commission's Resolution, as amended. Rec at 11. This appeal followed. Rec 1.

    LUBA Jurisdiction

    LUBA has jurisdiction to review the city's Resolution under ORS 197.825(1) because the action is a both a land use and limited land use decision as defined by ORS 197.015(10)(A) and (12)(b).

    FIRST ASSIGNMENT OF ERROR

    The city erred by failing to make a finding that the necessary sewage treatment facility is available with sufficient capacity to accommodate the proposed development as required by FC 10-16-4(E). The city's findings are inconsistent with the express language of the code provision and are not supported by substantial evidence in the record.

      The Florence Highway District development criteria states that:

      Before a building or use is established within the Highway District, the Petitioner must demonstrate to the City that the proposed development will meet the following criteria:

      ***

      E. The necessary utility systems and public facilities are available with sufficient capacity.

    FC 10-16-4(E).

    On April 9, 1996, the city and the Oregon Department of Environmental Quality ("DEQ") signed a Mutual Agreement and Order ("MAO") (No. WQMW-WR-96-056). Rec 392. The MAO states that city had allowed numerous unpermitted discharges of raw or partially treated sewage into the Siuslaw because the city's wastewater treatment facility (WWTF):

      has reached and/or exceeded its hydraulic capacity resulting in the circumstances described in Paragraph 4. The City of Florence is experiencing rapid growth, and any additional connections will increase the hydraulic loading to the WWTF and will likely result in additional violations of the Permit limits and water quality standards in the receiving stream.
    Rec 392-93 (emphasis added). By signing the MAO, the city agreed to this finding, thereby conceding that it did not, and would not, have sufficient capacity to accommodate additional sewage connections until it had upgraded and expanded the WWTF. Hence, the city has already admitted that that any additional sewage connections, particularly high volume sewage connections such as the proposed 127,000 square foot Fred Meyer store, the adjunct fast food restaurant, and the service station, will violate FC 10-16-4(E). CFF argued this point repeatedly throughout the proceedings before the city. Rec 157, 306.

    "[W]hen a relevant issue is adequately raised by evidence and testimony in the record, it must be addressed in the decision maker's findings." Blesser v. Yamhill County, 18 Or LUBA 253, 264 (1989), citing Norvell v. Portland Metropolitan, LGBC, 43 Or App 849, 852-53, 604 P2d 896 (1979); McCoy v. Linn County, 16 Or LUBA 295, 318 n 15 (1987), afSd 90 Or App 271, 752 P2d 323 (1988). The city's findings, however, fail to mention the MAO disclosure quoted above. Instead, the city relies on a memorandum from Public Works Director, Ken Lanfear, to Community Development Director, John Theilacker, dated February 2, 1998, concerning the city's ability to deal with its wastewater. Rec 34. In his memo, Mr. Lanfear, (who is not a certified engineer and who's qualifications to assess the adequacy of the city's sewer system are not disclosed in the record), merely describes the current capacity of the treatment plant without drawing any conclusions as to its adequacy or refuting the MAO finding that the treatment facility has reached and/or exceeded its hydraulic capacity. Rec 390.

    Mr. Lanfear appears more confident about the status of the sewage collection network:

      The collection system was modeled, and field checked, during preparation of the Wastewater Facilities Plan, and with the exception of Ivy Street pump station, determined to have adequate reserve capacity for area development during the next several years. That is, no manholes were near a surcharge condition during peak flows. Surcharge is a condition where wastewater may be above the top of a pipe in a manhole.
    Rec 390, (emphasis added). This statement, however, only indicates that raw sewage was not observed overflowing from manhole covers onto the streets of Florence. That type of pollution discharge is not what gave rise to the MAO or, as discussed below, the Clean Water Act lawsuit filed against the city. Rather, it is the treatment facility that has exceeded its capacity and continues to discharge untreated or partially treated sewage into the Siuslaw river, not the collection system.

    Moreover, Mr. Lanfear's assertion in his February 2, 1998 memo that "no bypasses have occurred since the heavy spring 1997 rains" has also been proven wrong. Rec 391. On February 14, 20, and 21, 1998, tens of thousands of gallons of contaminated raw sewage once again bypassed the overloaded WWTF and flowed into the Siuslaw River. Rec 306.

    For each applicable standard, the city must make the ultimate finding that the actual standard is met. Beck v. City of Tillamook (Beck I), 18 Or LUBA 587 (1990). Mr. Lanfear's conclusion, which the city adopted in the findings, is that "given the ongoing improvements to the wastewater system, reserve capacity in the collection system, and the plans to have an improved treatment plant on line during the year 2000, staff does not believe this additional loading, approximately equivalent to 25 to 30 new homes, would cause an overloading to the system." Rec 34.1 This finding ignores the relevant criteria. The standard is whether "the necessary utility systems and public facilities are available with sufficient capacity," not whether the Fred Meyer store would cause an overloading to the system. The city's finding must accurately reflect the criteria language. Burghardt v. City of Molalla, 18 Or LUBA 361 (1989) (Finding that changing a plan designation for a particular parcel is "preferable" does not satisfy a criterion that this particular parcel best serves "identified public needs"); Newcomer v. Clackamas County, 92 Or App 174, modified 94 Or App 33 (1998) ("typical farm unit" is not the equivalent of "commercial farm").

      1 Notably, City Councilor Braley requested that the city not adopt Mr. Lanfear's memorandum as part of its findings, stating that "for the record, he does not agree with the findings as reported by PW Director Lanfear." Rec 43.
    The city's failure to make the requisite ultimate finding that the sewage treatment plant has sufficient capacity is not surprising given the substantial evidence in the record that the necessary sewage treatment facilities are not available, and, according to Mr. Lanfear's memo, will not be available until at least the year 2000.

    The city also tries to show compliance with the public facilities criteria by erroneously finding that the MAO between the city and DEQ:

      is a binding agreement under which certain repairs to the City's treatment plant are required to be done on an established schedule, certain interim discharge limits are agreed to, certain Penalties are agreed to, and certain previous violations are settled, in exchange for which the city is not required to impose a moratorium on sewage hook-ups.
    Rec 34, (emphasis added). CFF's response to this finding is twofold: First, a careful readings of the MAO reveals that nowhere in that document does the DEQ "agree" that the city can continue allowing new sewage hook-ups in exchange for the city's promise to rebuild its WWTF. The only provision relieving the city of an obligation is paragraph 13, which states: "... the violations set forth in Paragraphs 2-8 above, ... are expressly settled herein without penalty...." Rec 397. The city's claim that the DEQ sanctioned new sewage connections grossly misstates the DEQ's position and the scope of the MAO.

    Second, even if the DEQ had implicitly or expressly given the city the green light in the MAO to continue allowing new sewer hook-ups, that agreement would have absolutely no bearing on whether the city had complied with FC 10-16-4(E). Failure to comply with a requirement may not be waived by the local government or cured by later performance of the requirement. Moorefield v. City of Corvallis, 18 Or LUBA 95 (1989) (A finding that a proposed use "complies with DEQ regulations" does not satisfy a criterion that a proposal will "comply with all local, state and federal standards and will not create a nuisance"). See also Simonson v. Marion County, 21 Or LUBA 313 (1991); Olsen v. Columbia County, 8 Or LUBA 152, 168 (1983). In this case, the DEQ waived penalties against the city for certain past violations of state water quality standards. But neither the city nor the DEQ can, through a contractual agreement, waive compliance with the city's Highway District criteria that a new development can only be approved if "the necessary utility systems and public facilities are available with sufficient capacity."2

      2Likewise, the city and the DEQ cannot contractually circumvent the regulatory mandate or penalties of the Federal Clean Water Act (CWA). This point is aptly demonstrated by the fact that another environmental organization recently filed a lawsuit in federal court against the city's continuing illegal discharges from the deficient WWTF. The city refers to this lawsuit in the findings: 'The Council also now finds against the claim that a moratorium on sanitary sewer hook-ups is required by law due to the pendency of a Clean Water Act lawsuit." Rec. 34. It is not clear what "claim" the findings refer to, as CFF has never requested a general moratorium on new hook-ups because of the pending CWA lawsuit.
    To conclude, if the city believes that plain language of FC 10-16-4(E) is too strict or inflexible, then the proper approach would be for the city to amend FC 10-16-4(E), not misinterpret or ignore the criteria. Boldt v. Clackamas County, 21 Or LUBA 40, 49(1991), affd 107 Or App 619, 813 P2d 1078 (1991); Von Lubken v. Hood River County, 104 Or App 683, 688, 803 P2d 750 (1990), adhered to 37 Or App 3, 7, 586 P2d 99(1978). Until it does, it must abide by the code's unambiguous standard.

    SECOND ASSIGNMENT OF ERROR

    The city failed to Provide notice of, apply, or find compliance with the DLCD Transportation Rule criteria at OAR 660-012-045(3) as required by OAR fi60-012-055(4)(b).

      The DLCD Transportation Planning Rule ("TPR") mandates that:

      Affected cities and counties that do not have acknowledged plans and land use regulations as provided in subsection (a) of this section, shall apply relevant sections of this rule to land use decisions and limited land use decisions until land use regulations complying with this amended rule have been adopted.

    OAR 660-012-055(4)(b). The city does not have an approved or acknowledged transportation systems plan ("TSP") or land use regulations that specifically implement the TPR standards. Hence, until the city approves its city-wide TSP and adopts local land use regulations that comply with the TPR requirements, it must apply the relevant sections of the TPR in lieu of local criteria.

    The applicable TPR substantive criteria is OAR 660-012-045(3), which requires local governments to provide:

      (a) Bicycle parking facilities as part of new multi-family residential developments of four units or more, new retail, office and institutional developments, and all transit transfer stations and park and ride lots.

      (b) On-site facilities shall be provided which accommodate safe and convenient pedestrian and bicycle access from within new subdivisions, multi-family developments, planned developments, shopping centers, and commercial districts to adjacent residential areas and transit stops, and to neighborhood activity centers within one-half mile of the development. Single family residential developments shall generally include streets and access ways. Pedestrian circulation through parking lots should generally be provided in the form of access ways.

      (A) "Neighborhood activity centers" includes, but is not limited to, existing or planned schools, parks, shopping areas, transit stops or employment centers.

      ****

      (d) For purposes of subsection (b) "safe and convenient" means bicycle and pedestrian routes, facilities and improvements which:

      (A) Are reasonably free from hazards, particularly types or levels of automobile traffic which would interfere with or discourage pedestrian or cycle travel for short trips.

      (B) Provide a reasonably direct route of travel between destinations such as between a transit stop and a store; and,

      (C) Meet travel needs of cyclists and pedestrians considering destination and length of trip; and considering that the optimum trip length of pedestrians is generally 1/4 to 1/2 mile.

      (e) Internal pedestrian circulation within new office parks and commercial developments shall be provided through clustering of buildings, construction of access ways, walkways and similar techniques.

    The proposed Fred Meyer's store is clearly a new retail development and is located within one half mile of the planned commercial shopping area across Highway 101. Rec 343. Therefore, the above criteria applies to the proposed development. Yet, there is no analysis of bicycle and pedestrian access to the site or analysis of internal bicycle and pedestrian circulation. At minimum, the site Plan must indicate bicycle parking. There is no indication whether raised pedestrian crosswalks or speed bumps will be placed in front of the store to help control vehicle speeds, or whether walkways will be located between the pad parcels and Fred Meyer. Neither the traffic impact analysis, the findings nor the conditions of approval address these on-site and off-site pedestrian and bicycle circulation issues that must be considered to ensure compliance with the requirements of OAR 660-012-045(3). Therefore, the city should be directed on remand to apply this state criteria.

    THIRD ASSIGNMENT OF ERROR

    The city misinterpreted the applicable law by narrowly reading FC 10-16-4(A) as applicable only to immediate future development of adjacent properties rather than to Potential development. The city' interpretation is inconsistent with the express language of the code and underlying policy that provides the basis for the code provision. The city's finding that FC 10-16-4(A) does not apply is contrary to the substantial evidence in the record that clearly demonstrates that the city has consistently and actively regarded that adjacent BLM property for potential development as a public well field.

    The Highway District criteria at FC 10-16-4(A), mandates that "the operating characteristics and intensity of land use will be compatible with and will not adversely affect the development potential of adjacent properties."

    The findings acknowledge that the 40 acre BLM parcel to the west of the proposed Fred Meyer has been designated as "open space" and that the code allows for such open space to be developed for public water sources as a conditional use. Rec 25. Nevertheless, rather than make a finding that the proposed development will not adversely affect the development potential of this adjacent parcel as a public well site, the findings instead avoid substantive compliance with the criteria by insisting that:

      the potential development of the well field on the BLM tract is too remote to be considered as potential development under this criteria due to: 1) the location of any City wells on BLM property would be subject to successful findings after performance of well field production capacity studies, such studies of which are not scheduled to be performed in the immediate future, 2) the 40 acre BLM tract is one of several public lands identified for potential well sites in this area, and 3) the City has another identified source of domestic water, that being Clear Lake, to address its immediate domestic water needs.
    Rec 25. For the following reasons, CFF will demonstrate why this "interpretation" by the city council, as the governing body, cannot be afforded qualified deference by icJBA pursuant to Clark v. Jackson County, 313 Or 508, 836 P2d 710(1992). The appropriate standard for review of the city's interpretation is found at ORS 197.829(1).3
      3 ORS 197.829 provides, in part:

      "Board to affirm certain local government interpretations. (1) The Land Use Board of Appeals shall affirm a local government's interpretation of its comprehensive plan and land use regulations, unless the board determines that the local government's interpretation:

      (a) Is inconsistent with the express language of the comprehensive plan or land use regulation;

      (b) Is inconsistent with the purpose for the comprehensive plan or land use regulation;

      (c) Is inconsistent with the underlying policy that provides the basis for the comprehensive plan or land use regulation; or

      (d) Is contrary to a state statute, land use goal or rule that the comprehensive plan provision or land use regulation implements."

    First, in reaching its conclusion that the criteria does not apply, the city fails to articulate what the term "potential development" means. Without such an interpretation, the city cannot explain whether the standard applies, much less is met. Hence, the city's decision should be remanded to allow the city to supply the missing interpretation.

    Second, if the city's attempt to explain why the likely development of the adjacent BLM parcel as a public well site is not a Potential development, and the city's effort is regarded by LUBA as an interpretation, the interpretation is inconsistent with the express language of the code provision. The term "potential" is defined by the Oxford American Dictionary (1980) to mean "capable of coming into being or of being developed..... Ability or capacity available for use or development." In this case, the adjacent BLM site is not just capable of being developed as a well field, but has long been considered for such a purpose by the city itself, as demonstrated by statements made by the city council at the April 7, 1998 hearing:

      Councilor Braley said that ... his understanding is that he remembers that the well field that we are talking about to the west of the highway has been for many years now ahas [sic] been recognized as a future water field for the city. He said that even the last study that we did by, I think it was Brown & Caldwell, was indicating that that would be one of the next developments; there is some sort of an economic choice between Clear Lake and the well fields to the west and I guess we are not quite sure ...which one is going to be developed next but at some Point it is going to be developed if we are going to provide adequate water for town.
    Supp Rec 870. Moreover:
      Mayor McCorkle said that there has been several potential well fields identified one which does involve that 40 acres to the west. He said that it has not been determined that that will be a site but it is one that has been identified in the past.
    Supp Rec 867.

    The potential of the adjacent BLM parcel for development as a public water source is confirmed by the city's submittal of a lease application to the BLM seeking to use the site, in part, as a well field. The BLM took the city's application seriously enough that it prepared an Environmental Assessment ("EA") for the proposal which it completed on March 10, 1998. The EA explains that:

      the current City of Florence proposal would involve obtaining a patent on the BLM parcel.... with development anticipated on portions of the parcel....[T]he City anticipates the need for up to six water wells to supplement the municipal water supply. These wells were identified in the original 1990 R&PP proposal and their use was recently affirmed in the City's October, 1997 update of the Water Facilities Plan. These wells would be dispersed over the BLM parcel, each with a 4'x 8' x 5' pump house, all connected in series by a buried waterline.
    Rec 177.

    In addition, Brown and Caldwell, the consulting engineering firm retained by the city for numerous past public works projects and who independently assessed Fred Meyer's proposed stormwater infiltration system emphasized in both its final and draft analysis of the Fred Meyer infiltration system that: "[t]he potential for a public well system to the west of the Fred Meyer facility increases the need to protect the quality of the stormwater being discharged into the ground." Rec 154; "[t]he AHBL proposes a system for preventing sediment and oils from entering into the infiltration system, but the report does not discuss whether the treatment system would ensure compliance with state drinking water or ground water standards. This is an important issue since the city is currently considering development of a public water supply field adjacent to the Fred Meyer facility." Rec 170, (emphasis added); " [t]he proposed use of infiltration facilities for the Fred Meyer facility presents additional concerns due to its proximity to a proposed public well system." Id., (emphasis added).

    These facts are sufficient unto themselves to refute the dubious finding that "the potential development of the well field on the BLM tract is too remote to be considered as potential development under this criteria...." Rec 25. The city's rationalizations in support of its finding are equally absurd. First, the city claims exemption from the criteria on the grounds that "the location of any City wells on BLM property would be subject to successful findings after performance of well field production capacity studies, such studies of which are not scheduled to be performed / in the immediate future." Id. The problem with this argument is that potential development of any adjacent property, whether it be for a specific residential, commercial, or industrial use, is subject to future findings of compliance with legal standards or "unscheduled" factual determinations, findings that cannot necessarily be made concurrent with the subject land use decision because they involve potential, versus actual, development. The city's faulty reasoning, if granted deference by LUBA, would effectively render the criteria meaningless.

    Second, the city's claim that "the 40 acre BLM tract is one of several public lands identified for potential well sites in this area" and that "the City has another identified source of domestic water, that being Clear Lake, to address its immediate domestic water needs "begs the applicable standard. Rec 25. The facts demonstrate that the city is not merely contemplating use of the adjacent BLM parcel for development of a public water supply, it is actively pursuing a lease of the BLM land for that use. Whether or not the city is considering development of other public lands for well sites is irrelevant. The issue is whether the city has made the necessary finding that the Fred Meyer and service station will be compatible with and not adversely affect the use of the adjacent BLM parcel as a potential well site, a parcel that has consistently and affirmatively been identified as a likely site for future well development.

    The city's interpretation is also inconsistent with an underlying purpose of the Highway District criteria and related comprehensive plan policies: "the economic potential of this District should be developed, but in a manner that enhances our coastal village atmosphere and is consistent with the Florence Comprehensive Plan." FC 10-16-1, App 33. A primary objective of the FCP is:

      To maintain the quality of the air, water and land resources through control of waste and process discharges from future development.
      ****
      3. Water recharge areas ... which have a direct bearing on the quality of the water resources shall be protected to insure the continuous quality and quantity of public water supplies.
      ****
      5. Solid, liquid, gaseous and industrial waste discharges and/or disposal from septic tanks and/or sewers must not contaminate land, air, and water resources.
    App 41-42. Hence, by refusing to consider whether the Fred Meyer will be compatible with the proposed development of the adjacent BLM parcel as a public well site, the city also fails to insure compliance with the FCP objectives.

    In summary, the city failed to demonstrate that the proposed use is compatible with and will not adversely impact the development of public wells on the adjacent BLM property. The city's finding of exemption from FC 10-16-4(A) is premised on a myopic interpretation of the term "potential development" that is inconsistent with plain language of the criteria, the substantial evidence in the record, and the FCP objective to prevent contamination of the public's water supplies.

    FOURTH ASSIGNMENT OF ERROR

    The city erred by failing to make a finding that the applicant's proposed stormwater infiltration system is adequate to accommodate the proposed development as required by FC 10-16-4(E). The city's findings are inconsistent with the express language of the code provision and not supported by substantial evidence in the record.

    As noted above under CFF's First Assignment of Error, the Highway District development criteria states that:

      Before a building or use is established within the Highway District, the Petitioner must demonstrate to the City that the proposed development will meet the following criteria:
      ***
      E. The necessary utility systems and public facilities are available with sufficient capacity.
    FC 10-16-4(E).

     

     
     
     
     
     

    Westwood commissioned the consulting firm, EGR and Associates of Eugene, Oregon, to Prepare a plan for stormwater discharge via an underground infiltration system. Rec 793. Inexplicably, Westwood subsequently rejected the EGR design for a completely new Storm Water Management Plan provided by a new engineering firm ("AHBL") from Tacoma, Washington.

    The second Stormwater Drainage Report ("Report") prepared for the applicant by AHBL claims that its stormwater disposal system "will not noticeably aggravate any existing downstream problems either due to water quality or quantity." AHBL Storm Drainage Report, dated 2/98, Oversize Exhibit B.1, at 14. This conclusion was based, in part, on AHBL's conclusion that "the proposed bottom elevation of the infiltration bed is 78 feet [above sea level], this is below the bottom of the uncontrolled fill and well above the elevation of any anticipated ground water." Id., at 6. (emphasis added).

    CFF argued before the Planning Commission/Design Review Board and the City Council that ground water levels in the vicinity of the proposed Fred Meyer are considerably higher than the 78 feet claimed by AHBL. Rec 162, 309.

    Following the hearing on remand before the Planning Commission/Design Review Board, the city retained Brown & Caldwell as an independent consultant to review the AHBL Report. Brown & Caldwell observed that the "water table elevation is a major factor in determining if the proposed infiltration system will perform as designed. The water table must remain below the invert of the infiltration system to provide the required storage volume. Localized flooding will occur if the storage volume is not provided." Rec 153.

      In its draft analysis of the AHBL Report, Brown and Caldwell found that: The proposed invert (bottom) elevation of the infiltration system is 78 feet above mean sea level (msl). The high seasonal water table elevation for the proposed site of the infiltration facility ranges from approximately El. 83 to El. 86 msl. A map showing the seasonal high water table elevations is included in the EGR section of the Fred Meyer report. In addition, the North Florence Dunal Aquifer Study (Christensen and Rosenthal, 1982, Report for Lane Council of Governments) shows the water level at approximately the same elevation as the EGR report. In a separate study conducted in February 1997, EGR as a sub-consultant to Brown and Caldwell, performed a pump test at well #24 from the 1982 study. Well #24 is located approximately one mile from the study area, but the general characteristics of the area are similar to the proposed Fred Meyer site. The depth to water was 4.84 feet below the ground surface. Our experience in the area suggests that the water table may drop several feet during the dry season, but throughout most of the year the water table is within 4 to 5 feet of the ground surface.

      ****

      Based on the above noted information, we believe that the water table will be above the top of the storage area of the proposed infiltrations system throughout most of the year. As a result, the proposed system will not have the capacity to store the design storm as indicated in the [AHBL] report. Without adequate storage, stormwater will run off site during the design storm.

      Raising the infiltration system to above the water table would restore the desired storage capacity but may impact other elements of the design. The design of the building foundation will require consideration of the depth of the water table.

    Rec 169 (emphasis added). AHBL had inexplicably ignored the fact that three separate engineering studies had already concluded that seasonal high ground water levels in the vicinity of the proposed Fred Meyer site range from 83 to 86 feet. AHBL instead had relied on data gathered during the summer months of June through August, the dry season on the coast, as the basis for its erroneous conclusion that the highest ground water level would not exceed 78 feet and that its proposed infiltration system would be located well above any ground water. Rec 153.

    Following Brown & Caldwells' submittal of its draft analysis of the AHBL report to Mr. Ken Lanfear, the city's public works director, the city apparently notified Westwood of Brown & Caldwells' conclusions because shortly thereafter, on March 23, 1998, AHBL was on the site digging four test holes with a backhoe. Rec 153. Brown & Caldwell stated in its revised final analysis that this fieldwork "tends to indicate" that the seasonal high ground water level is 82 feet. Rec 154.

    This estimate, although significantly higher than the ground water levels assumed in the AHBL Report, is lower than the 83 to 8~ feet range of seasonal high ground water previously reported by Brown& Caldwell. It is also inconsistent with another recent field test of the site conducted by Poage Engineering, an independent consulting firm located in Eugene and retained by CFF to review the AHBL report. Poage Engineering referred to the earlier ground water studies noted above and performed a site investigation to verify ground water levels:

      Our investigation consisted of a visual observation of the site for ponded water, drainage channels, etc. We also bored two holes with a hand auger to verify ground water conditions. One hole was near the base of the sand dune, and the other was near AGRA's boring #9 across the site, in the proposed infiltrator chamber location. Both the anger locations were at approximately an elevation of 88 feet, based on the Existing Drainage Basin Map, Figure 2, of AHBL's report. Both holes showed a distinct water table at approximately 18 inches below the surface, or at approximately elevation 86.5 feet. Rec 173.
    Although the Poage Report concurred that the storage capacity of the proposed infiltrator chambers would likely dispose of all stormwater runoff from the 100-year storm event:
      the seasonal high ground water at the site is believed to be significantly higher than currently designed for. The current proposed elevation of the bottom of the chamber is believed to be approximately 7 feet below the seasonal high ground water table. This is supported by our recent auger holes, the report by EGR and Associates, the North Florence Dunal Aquifer Study, and our knowledge of ground water in the area. If the chambers are placed as proposed, we anticipate the required storage discussed in the report will not be available because the chambers will likely be submerged. This could result in flooding on site, or possible drainage off the site to adjacent properties.
    Rec 173-74.

    If conflicting evidence effectively undermines and refutes evidence relied on by the local government, then the findings should explain why the refuting evidence should be disregarded or accorded less probative value. Sea~zraves v. Clackamas County, 17 Or LUBA 1329 (1989). The findings do not explain why the refuting evidence should be disregarded, but only insist that the evidence was "considered and rejected by Brown & Caldwell." Rec 33. In addition to being conclusory, this statement is false. Nowhere in the record does Brown Br. Caldwell "reject" the previous scientific analysis of ground water levels in the vicinity of the proposed Fred Meyer. The strongest statement made by Brown & Caldwell in its final analysis is merely that "the recent field work tends to indicate" a high ground water level of 82 feet. Rec 154 (emphasis added).

    Notwithstanding the fact that all other ground water studies except AHBL's eleventh hour backhoe test support Brown & Caldwell's original finding that ground water levels at the sight are between 83 and 86 feet, the revised Brown & Caldwell report accepted the infiltration system as presented by AHBL, but recommended "that AHBL raise the elevation of the infiltration system to as high as possible to provide for potential seasonal variations in the water table." Rec 154.

    Brown & Caldwell's statement that the system would function as planned presumes that AHBL will raise the bottom of the system from the 78 feet reported in the AHBL Report to the new 83.5 feet level noted under Condition 25(a) of the Resolution. Rec 17. However, nothing in the record indicates that the AHBL Report has been amended to reflect the revised- estimation that the ground water level is five and a half feet higher than AHBL initially estimated.

    Thus, the findings contained in the AHBL stormwater report, which the city "found to be persuasive," are still in error and contrary to all evidence in the record. The city's failure to insist that Westwood provide it with a revised AHBL report that includes design changes to the system that reflect the revised and significantly higher ground water levels is essential, given the observation by Brown & Caldwell in its final analysis that "raising the infiltration system to a higher elevation may impact other elements of the design .... [and] the final design must include consideration of this high water table elevation." Rec 154.

    The requirement to comply with ordinance criteria applicable to the resolution/conceptual site plan stage of the review process cannot be avoided by deferring those determinations to the preliminary development plan stage of the review process, through restatement of the first stage approval criteria as conditions of approval for the second stage. Foland v. Jackson County, 18 Or LUBA 731(1990). Similarly, where the local code requires physical constraints review to be conducted simultaneously with site review, and approval of a physical constraints review permit requires application of substantive criteria which could result in denial of the proposed development, the city's failure to require a proposed development to obtain a required physical constraints review permit at the time of site review approval is not a mere procedural error. Neuenschwander v. City of Ashland, 20 Or LUBA 144(1990).

    In this case, in spite of the warnings by Brown & Caldwell, the city failed to determine whether raising the vast network of detention basins, sediment traps, collection pipes, and drains that comprise the proposed infiltration system up an additional 5.5 feet will require fundamental changes to the design of the system or of the overstory structures. Instead the city drafted Condition 25, which defers to the director of public works any last minute changes to infiltration system, while ignoring the underlying issue of whether the AHBL infiltration system plans would in fact be implemented as depicted in the AHBL Report. Rec. 17-18.

    FIFTH ASSIGNMENT OF ERROR

    The city misinterpreted the applicable law by failing to require innovative site design alternatives that would have allowed the city to ensure that the proposed Fred Meyer development is as attractive as the nature of the use and the setting will allow as required under FC 10-16-4(B). The city's interpretation is therefore inconsistent with the express language of the code provision, is inconsistent with the purpose of the code provision, and is inconsistent with the underlying policies that provides the basis for the code provision. ORS 197.829.

    The code provision at issue, FC 10-16-4(B), states:

      Before a building or use is established within the Highway District, the petitioner must demonstrate to the City that the proposed development will meet the following criteria:
      ****
      B. The site planning and building design will be as attractive as the nature of the use and the setting will allow.
    FC 10-16-4(B). App 33-34. As shown below, the code, the FCP, and the city's Visual Management Plan ("VMP") provide considerable guidance as to how the city must interpret and apply the standard to this particular site.

    The stated purpose of the Highway District is to ensure that the multiple use development concept "employs a design review procedure that encourages highway enterprises to blend harmoniously with the scenic and aesthetic features at the entrance to the City." Florence Code ("FC") 10-16-1. App 32 (emphasis added). The code also makes clear that "it is intended that the economic potential of this [highway] District should be developed, but in a manner that enhances our coastal village atmosphere and is consistent with the Florence Comprehensive Plan. " App 33. Thus, the code expressly states that land use decision in the Highway district must adhere to FCP policies.

    The FCP instructs that "[i]mportant scenic views of the river, dunes, ocean and jetty area should be identified and protected. Scenic area designations should be considered only in those locations where visual qualities are found to be a community asset and there is a need to recognize and protect them, however." App 40 (emphasis added).

    The VMP, adopted by the city in 1992, identifies the dune setting behind the proposed Fred Meyer store as one of the eight designated scenic resources in the city. App 47-48. The VMP notes that the site is a prime scenic location offering "vantage points of active sand dunes advancing on pine forest." App 47. The VMP further states that although "buyout of [the Fred Meyer] property may needed to ensure long-term visual quality in this area. The viewshed can be adequately preserved through innovative site design...." Id. (emphasis added). 4

      4 Unfortunately, although the VMP states that "site design options that can preserve the viewshed are illustrated on the next page" the "next page" is missing from the master copy of the VMP in the city's file. App 47.
    The FCP policies also emphasize the need: "[t]o strive for an environment which is functional, visually attractive, and allows for innovative responses to local conditions" and "[t]o recognize the existing natural and architectural assets of the community and encourage development that enhances and is compatible with those assets." App 39 (emphasis added).

    Thus, the city code, the FCP, and the VMP all require innovative site planning for this particular site to ensure the long-term visual attractiveness of the north entrance to the City. Consequently, the city's interpretation of the applicable Highway District criteria, FC 10-16-4(B), which mandates that the proposed "site planning and building design will be as attractive as the nature of the use and the setting will allow," must be made against this backdrop.

    The city erred by not identifying what configurations of commercial site development would maximize the attractiveness of the setting in accordance with FC 10-16-4(B). Instead, the city's findings state that:

      In regard to the "setting" portion of this criterion, the Appellant submitted three conceptual site layout alternatives to demonstrate that options to the applicant's proposal may exist. While the Council concurs with the Appellant that development of the site might be done differently, the Council fails to see how these examples demonstrate that the Applicant's site layout does not comply with this criterion. More so, the Appellant's alternatives were submitted without detail to demonstrate compliance with other City Code provisions. To simply lay these alternatives before the Council without further demonstrating that they are feasible based on satisfying the city's Code criteria adds little weight to the Appellant's argument on this issue.
    Rec 28.

    CFF provided the site design options referred to in the above finding because, as previously noted, the page of site design options referred to and supposedly included in the city's VMP was inexplicably missing. Rec 179-180. CFF's submittal of alternative siting configurations for the store was intended to demonstrate options for retaining a better view of the dune while still allowing for development of the proposed commercial uses. Westwood submitted a single siting proposal that locates the 600 foot wide store along the base of the dune, blocking the view of this outstanding visual resource over a length of two football fields. There is no evidence in the record that the store could not be oriented, for example, on an east-west axis along the north or south border of the site, a configuration that would allow significantly more open space and dune to remain visible over the parking lot.

    The city now finds, however, that because CFF did not demonstrate that the site options are feasible based on satisfying the city's other code criteria, these alternatives can be ignored. The city cannot find that a criterion is satisfied solely on the basis that no, or limited, evidence to the contrary was presented, Platt v. Washington County, 16 Or LUBA 151 (1987) (opponent need not show that nonfarm dwelling will have significant impact on nearby farm uses; applicant must show affirmatively that significant adverse impact will not occur). Thus, merely because CFF provided the city with conceptual siting alternatives does not mean that CFF must demonstrate those options comply with the other applicable criterion. That burden belongs to the applicant: "Before a building or use is established within the Highway District, the petitioner must demonstrate to the City that the proposed development will meet the following criteria...." FC 10-16-4, App 33.

    LUBA must only accept local interpretation of an ordinance when that interpretation is consistent with express language or with apparent purpose or policy. West Hills & Island Neighbors v. Multnomah Co.,68 Or App 782, 683 P.2d 1032 (1984), Sup Ct review denied; Reusser v. Washington County, 122 Or App 33, 857 P.2d 182 (1993), Sup Ct review denied; Clark v. Jackson County,313 Or 508, 836 P.2d 710 (1993); Langford v. City of Eugene, 126 Or App 52, 867 P.2d 535 (1994), Sup Ct review denied. In order for the city to abide by the criteria's mandate to ensure that the store is developed as attractively as the site and setting will allow, Westwood must either provide the city with alternative site designs to accomplish that general goal, or the city must locate the missing page of site design options in the VMP to ensure that the current design conforms with at least one of those alternatives. It may be that in light of other, as yet undefined, constraints, the current siting is the only feasible configuration for a 127,000 square foot retail store on Highway 101. But until such an analysis is performed, the city's failure to interpret section FC 10-16-4(B) to require Westwood to submit innovative site plan options forecloses the city's opportunity to determine whether the development will be as attractive as the nature of the use and the setting will allow.

    CONCLUSION

    For the foregoing reasons, Petitioner CFF requests that LUBA reverse and remand the city's Resolution.

              Respectfully submitted this 15th day of July, 1998,

              William H. Sherlock, Attorney for Citizens for Florence

  • 1/21/99 Settlement Agreement
    		•
  • News
    		•
  • 10/30/98 LUBA Decision
    		•
  • 5/26/98 CFF News Release
    		•
  • 8/25/98 BLM Decision on Dune Lease
    		•
  • 1/21/99 CFF News Release
    		•
  • 7/15/98 CFF LUBA Appeal Brief
    		•
  •  
    		•
  • 8/19/99 AHBL Meeting Minutes
    		•
  • June 1998 CFF Thoughts
    		•
  • 4/30/98 Letter to Editor
    		•
  •  
    		•
    Fred Meyer Retail Complex
    Proposed
    Outlet Mall
    Sewage Treatment Plant
     
    		    
     
     
     
    		  
           
     
    Citizens For Florence
    P.O. Box 1212
    Florence, Oregon 97439
    E-mail Address: citizensforflorence@yahoo.com
    Copyright © 1998-2001 Citizens For Florence. Users may download information from this web site for personal use only.  Unauthorized copying or distribution of this site or any of its contents without the express permission of the author is expressly forbidden.