UMATILLA
Meeting of
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COMMISSIONERS PRESENT:
Bill
Hansell (Chair), Dennis Doherty, Larry Givens
PLANNING STAFF PRESENT:
J.R.
Cook, Heather Haueter
Doug
Olsen
GUESTS PRESENT:
Michael Robinson, Michael
Connors, Travis Hibler, Paul Brunstad
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NOTE: THE FOLLOWING IS A SUMMARY OF THE MEETING. HOWEVER, A TAPE OF THE MEETING IS AVAILABLE AT THE PLANNING DEPARTMENT OFFICE.
CALL TO ORDER:
Commissioner
Hansell called the meeting to order at
CONTINUED
HEARING:
APPEAL OF CONDITIONAL USE
#C-1103-06. Flying J, Inc.
CONDITIONAL USE PERMIT allows
the following uses on portion of land with TC zoning: restaurant, travel
convenience store, automotive fueling stations and accessory improvements
(parking, signs, landscaping, etc.). The
following uses would be on portion of land with LI zoning: truck fueling
complex, truck service building, truck wash building and accessory
improvements.
The
proposed uses were approved by the Planning Commission as a conditional use
according to Section 152.277(E): other uses similar to the uses permitted or
the conditional uses normally located in a Tourist Commercial Zone. Other applicable criteria includes Sections
152.278, 152.280, 152.304 - 306 and 152.610 - 152.615.
Staff Report: County Counsel Doug Olson began by explaining that
the application was originally received in November 2005. It went through several hearings with the
Planning Commission and was finally approved 8:0. That decision was appealed to the Board of
Commissioners by the appellants, Space Age Fuel and Western Express.
This Board hearing is a de
novo review, so new evidence may be received.
A decision may be made today or the Board may decide to continue to a future
date.
Assistant Planning Director J.
R. Cook explained that the reasons for the appeal were summarized in a memo
from Planning Director Tamra Mabbott to the Board, dated
Mr. Cook began with transportation,
explaining that a lot of communications had occurred between staff and Perkins Coie,
who represents the applicant, and they have submitted a Development Agreement
for the roads, and an Irrevocable Consent Agreement (ICA) dealing with specific
improvements to
Staff had questions about
what standards Generation Road would be improved to because the Development
Agreement was vague, stating only that Generation Road would be “improved to
County road standards”. The county has
multiple road standards for development, so Mr. Cook hoped the applicant would
be able to clarify.
Mr. Cook noted that 67
exhibits were included in the Board’s packets and there were two more provided
today. #68 was a letter from Michael Connors
dated
Motion: Commissioner
Givens moved to enter Exhibits #1-69 into the record. Commissioner Doherty seconded. Motion carried unanimously.
Commissioner Doherty asked
about the transportation issues, noting a letter from the City of
There was further discussion
about lighting and turn lanes. Mr. Cook
referred to a site plan that was included with the April 9, 2008 letter from
Perkins Coie; Exhibit #1 of Exhibit #65 of the Board’s packet.
Commissioner Doherty asked if
there was anything showing configuration of the intersection of Lamb and Westland
Roads, referring to the county’s Interchange Area Management Plan (IAMP). He wanted to see if the impact of this
project will affect the IAMP. He noted
his concerns about the safety of this intersection for the past 10 years and
pointed out the importance of making sure we have proper transportation
planning for the entrance and exit from the proposed facility, and the
appropriate planning for the intersection where Lamb Road intersects Westland
Road.
Commissioner Doherty asked
about the language of the
Mr. Cook referred to a
Motion: Commissioner
Givens Larry moved to add the map of the proposed intersection improvements as a
result of the Access Engineering study, to the record as Exhibit #70. Commissioner Doherty seconded. Motion carried unanimously.
Commissioner Doherty noted
that the intersection in Exhibit #70 is the same intersection which is the
subject of paragraph three of the
Applicant/Proponent
Testimony: Michael Robinson of
Perkins Coie, attorney for applicant provided an email exchange of an interaction
between his colleague, himself and County Counsel, Doug Olsen to confirm the
effective date of Umatilla County Ordinance #2005-09 and the acceptance date of
the application. He requested that it be
added to the record.
Motion: Commissioner
Givens moved to add the above mentioned email as Exhibit #71. Commissioner Doherty seconded. Motion carried unanimously.
Mr. Robinson referred to
Commissioner Doherty’s question about the cap named in the
Commissioner Doherty
commented that it seemed that the county would be interested in eventually
implementing the IAMP, at which time a proportionate share of use of each
developer would be determined as represented by proportionate impact. Mr. Robinson replied that that was what they
had done, based on projections. Their share
would likely go down if there were more development at the intersection. Commissioner Doherty argued that it could also
go up if their development had more traffic than expected. Mr. Robinson replied that the applicant did
not want to commit to a plan that has no estimate of cost.
There was some discussion
about other ICAs in the subject area.
Mr. Robinson suggested that determination of an acceptable proportionate
share be required as a precedent condition of approval, and it could be brought
back before the Board for approval.
Commissioner Doherty was agreeable.
Mr. Robinson noted that they
had submitted an extension, but not a waiver of the 150 day rule. They would provide a further extension at the
end of the hearing.
Mr. Robinson continued his
presentation, noting that since the Planning Commission hearing Generation Road
had been vacated and the plat had been recorded, and at the conclusion of this
hearing they would extend 150 day waiver for another reasonable period of time. They had also submitted a letter from Corrine
Celko including Oregon Water Resources Department (OWRD) approval of a water
rights transfer.
Mr. Robinson explained that
this application was before the Board because it has been the Planning Department
and Planning Commission’s policy since the Space Age Fuel decision to treat the
multiple uses proposed in the application as one conditional use, as opposed to
individual uses permitted outright in the LI and TC zones.
One issue that arose in the
appellants’ appeal was whether or not the application was filed in a timely
manner. Ordinance #2005-09 was adopted
and was effective on
Mr. Robinson went on to
explain that each proposed use is allowed outright in the zones. A travel plaza is a similar use found in TC
zoning uses. The similar use provision prevails
over the more general use ordinance. Mr. Robinson noted the different titles
for other facilities: Western Express is
called a fueling center; Petro is a stopping center, etc. It is a double standard for Western Express
to now argue that the uses are not allowed, since they were approved in the
same manner, and there is nothing in relevant case law that says the county
can’t accept the application this way.
The traffic development standard
is in the Umatilla County Development Code requiring that the applicant
demonstrate “no undue burden” and performs a transportation study. The
applicant submitted a traffic study by Lancaster Engineering dated
The 2023 analysis is
irrelevant, but because of the concerns of the county regarding the
Lamb/Westland interchange the applicant has agreed to make it part of the
Development Agreement and
The Planning Commission found
their proposed water access credible.
They will need 35 gallons per minute for the facility and have 50
gallons per minute in water rights.
Needs were based on use of another truck stop of similar size and use. Mr. Robinson pointed out that if they don’t
have sufficient water the development won’t go forward, but there is more than
sufficient evidence that they will have adequate water supply. He also noted that there are no criteria for
water. It is the applicant’s risk.
Mr. Robinson explained that
the applicant agreed to meet the City of
Regarding storm water, Mr.
Robinson noted that the site plan includes an area for storm water. Analysis by a consultant concluded that there
is sufficient area.
Mr. Robinson also noted that
they have adequate evidence to show that they can treat their waste water. They looked at three different treatment systems
and chose the one that they were confident it was feasible to operate.
Mr. Robinson addressed
on-site screening, explaining that it only applies in the LI zone for
operations within 500 feet of adjoining property, which does not apply in this
case. If it did apply it would require that
operations be screened from view. He cited
a case where a petitioner alleged that screening not adequate from every
prospective. Mr. Robinson felt that a
reasonable common sense approach interpretation would determine that this would
not include things like the view from a bridge or airplane. He did note that it is feasible for the
applicant to screen in a way that complies with the standard.
Mr. Robinson went on to
address conditions, requesting that the Board impose a condition for a
requirement that where there’s any discretion, a Type II notice must be
provided to the public for opportunity to participate in making sure that the conditions
are satisfied. He read language from a LUBA
case approving this type of action.
Mr. Robinson read through the
precedent and subsequent conditions, explaining which were complete, and which
they were still working on.
Mr. Robinson noted that the
Table of Contents of the Board’s exhibit packets listed Exhibit #7 as received
in 2008, but it was actually received in 2006, as can be seen on the document
itself.
Mr. Robinson again requested
that, if the Board chooses to approve the application, they impose a condition
that a Type II notice is given to allow the public input on conditions that are
deferred.
Mr. Robinson asked that
subsequent condition C be modified to be consistent with the Development
Code.
He also asked that the written
record be kept open for the applicant only.
The appellant had submitted a large packet of information and the applicant
would like to have time to have it reviewed by their consultant.
Commissioner Hansell asked
that the record reflect that evidence shows that Exhibit #7 was received in
2006, not 2008.
Commissioner Doherty asked
about the requested change to subsequent condition C. Mr. Cook replied that it is a blanket
subsequent condition. Mr. Robinson
explained that his point was to have the condition relate back to the approval
criteria. They don’t have a problem with
screening as it applies to outdoor storage on the site, but they don’t want it extended
to the boundary of the entire site. Mr. Cook clarified that there is a
difference in criteria between perimeter fencing and screening for storage and
the intent of this provision is for storage.
Appellant Testimony: Mike Connors, attorney with Davis Wright Tremaine
testified on behalf of the appellants. Mr.
Connors acknowledged that there is a history of the county determining that the
proposed use is appropriate, and he respected that, so he wouldn’t address that
issue, although he believed it to still be an issue. However, there were several issues that he
felt would affect the county and needed to be addressed.
First was traffic,
particularly the problematic intersection of Lamb,
The problem with how the
applicant estimated traffic is that they used the ITE Manual, which is commonly
used by traffic engineers, and categorized the facility as an automobile gas
station. This is flawed because there
are other uses associated with the facility that are not included in their
analysis.
The second problem is that an
auto gas station is different than a truck stop. The county’s Kittelson study recognized that there
was no category of truck stop, so they used the Pilot facility in
Hermiston. The appellant’s engineer did
this at Flying J’s Troutdale facility and traffic counts demonstrated that there
would be a greater number of trips than the Flying J application
indicates. The percentage of their share
of contribution for improvements is based on the estimate of traffic generation
and it is flawed because it does not account for all the uses.
The second issue is that the
concept of the
Mr. Connors not only thought
that deferring the traffic issue not legal, but he also felt that the county
just shouldn’t. He referred to
Development Code Section 152.017, which states what the obligations of the
applicant are, and that the facility should not significantly impact or cause
undue burden. There is nothing in the
Code that says these issues can be deferred.
The must be mitigated now. The
applicant has means to address the problem by getting other truck stops to
cooperate, or come up with some sort of reimbursement mechanism. Mr. Connors urged the Board to use this as
opportunity to force the applicant to figure out how to fix the problem.
Mr. Connors also pointed out
that there area a number of outs and protections for Flying J written into the
The Development Agreement
primarily addresses
Mr. Connors talked about
deferring criteria through conditions.
He noted that in the Petro case, LUBA determined that criteria cannot be
deferred because there is no opportunity for public input. The county also loses leverage. He felt the applicant should be required to
redo the traffic study, figure out what the improvement will be and how it will
get fixed. From the county perspective,
it is important to weigh these issues and make sure that they are getting solid
analysis.
The third issue was
water. The applicant says that water is
their problem, but the county typically requires that adequate water be demonstrated
and does have a specific code provision.
If the applicant’s needs exceed availability then there is potential for
impact on other users. If this happens
it is then left up to enforcement, which is inadequate.
At the Planning Commission level
the appellant’s water consultant, GSI produced a letter dated
The appellant’s consultant
picked two existing Flying J facilities and acquired use numbers. This showed that the overall annual demand is
almost twice what the applicant is showing for the proposed facility.
The fourth issue was
wastewater/storm water. Nothing regarding
waste and storm water was brought before the commission and no plans had been
provided to the county. There was no
explanation why they haven’t provided this information already.
The fifth issue was deferring
compliance through conditions of approval.
These are basic and fundamental components of projects that should be
answered. Even if they are deferred, the
applicant is asking defer to a Type II review process, but it needs to be
equivalent to the original process, which is Type
Mr. Connors addressed Mr.
Robinson’s request for the right to closing argument. The basis is statutory, which allows for the
Board to leave the record open and give the applicant final argument, but this only
applies in the initial hearing process, which was actually the Planning
Commission hearing. The appellant
objects to just the applicant having closing argument. Mr. Connors requested that both sides be
allowed argument only and no new evidence.
Commissioner Givens noted the
statement that there is no mechanism to manage water usage, but he pointed out
that there is a process, although complaint driven. Mr. Connors argued that it puts other water
right holders in a position of defending their rights. Enforcement is not as good as ensuring
now.
Commissioner Givens pointed
out that typically, if transfer rights state a certain amount, it is monitored
by a meter. If they go over that the
applicant would be putting a vast amount of resources at stake, knowing that if
they go over their right they have a lot to lose. Mr. Connors agreed that this might create
some incentive, but the Code requires the county to preserve and protect water
resources and this is in a critical groundwater area.
Mr. Cook added that many
conditions of approval rely on water to complete, but how do we prove that they
can meet the conditions of approval if we don’t know that the water supply is
there to do so. That particular
condition is very vague and confusing in a critical groundwater area. They are required to meter and report, but at
that point the development is there and if they go over who is at fault? Commissioner Givens again noted that the client
is the one at risk of losing their investment if they overuse their right.
Commissioner Doherty referred
to the appellant comment that the applicant does not have adequate water to
meet their peak demand. Mr. Connors replied
that what the applicant’s own water consultant cites as their instantaneous
peak demand is greater than their water right.
Commissioner Doherty asked if
Mr. Cook agreed that supply was not adequate.
Mr. Cook replied that they have obtained a water source. Whether or not it was adequate he could not
determine.
Commissioner Doherty also
asked about a letter from the fire district about fire provisions. Mr. Cook replied that staff had asked the fire
districts for a copy of their fire provisions because the county does not have
a copy of each district’s code. Mr.
Robinson noted that Exhibit J of his
Commissioner Doherty noted
that one of the conditions was to provide proof of compliance with fire and
emergency services requirements. Mr.
Robinson replied that it is really just administerial, done through the course
of acquiring a zoning permit.
Commissioner Doherty asked
for staff clarification. Mr. Cook
explained that staff usually calls the fire district to clarify whether a
proposed plan will work and make a finding to that affect. The Planning Commission found that there was sufficient
supply and the site plan was adequate.
Commissioner Doherty was
concerned about the need to make some kind of finding on water. Mr. Cook replied that if the Board found that
the applicant had sufficient water right they could remove precedent condition
#6 requiring documentation that an adequate water source had been
obtained. The Board could find that a
water supply source had been quantified. Mr. Connors interjected that adequate, at a
minimum, is to show that their water right exceeds accurate water need, yet evidence
in the record indicates that water use could be double their water right. Mr. Olsen added that another problem is that
the county doesn’t have a Code provision requiring proof.
Commissioner Givens commented
that OWRD only allows the gallonage of your permit, but you can use more per
hour at peak times as long as you don’t go over your yearly limit. If you go over that then you’re cut off. Mr. Connors asked if the county wants to be
put in the position of dealing with that, and he disagreed that there is no
criteria that requires water analysis. He
noted the provision to preserve and protect in the critical groundwater area,
and it has been the county’s historical policy.
Burden should be on the applicant to resolve the problem.
Mr. Robinson commented that
it is not as complicated as it appears.
There are three issues. First, the
fire district requires an onsite water source for fire control of 20,000 gallon
water reserve and the district will supplement another 10,000. From the minutes, Mr. Weden notes portable
water in two 40,000 gallon containers.
This plus the fire district supplement water is 90,000 gallons.
Second, is the question of
the water requirement for this use. The
requirement is 30,000 gallons and the applicant has a water right for
50,000. Plus, they have an 80,000 gallon
water reserve that could be used if a spike in use were to occur. Third, there are no approval criteria for
preservation of water. The conditional
use section says that the decision maker can impose a condition regarding
protection of water resources, but this facility cannot have a negative impact
when it’s using an existing water right.
Mr. Robinson pointed out that the appellant, Western Express had
themselves purchased an existing water right for their own facility. He
felt there was ample evidence in the record to show that they meet any water
requirements and would not be adversely affecting water.
Mr. Connors argued that the
only evidence from the applicant is a one page letter from their water
consultant with nothing to back it up his figures. Mr. Porfily testified at Planning Commission
that he did not determine water need, but was told what the need was and based
on that, acquired rights that would satisfy that. The appellants’ position is that the need is
underestimated by half. The applicant is
also stating that they will have storage capacity for fire purposes, but that’s
presuming that they will have excess.
They won’t if their water usage exceeds their right. The county has historically required evidence
of water need, and based on numbers from the applicant’s other facilities, they
do not have enough water right.
Commissioner Doherty
addressed Mr. Connors about traffic concerns, noting that Mr. Connors had previously
stated that the Board had the right to require the applicant to mitigate the intersection. Commissioner Doherty wondered about
proportionality. Mr. Connors replied
that there were two issues; getting it done and cost. He
pointed out that the Code talks about what mitigation measures are available to
an applicant and referred to page 10 of the Planning Commission findings where
it quotes that section of the code. That
provision requires improvements, not an agreement to pay a proportionate share
in the future.
Commissioner Doherty
commented that Mr. Connors was basically saying that the Board had the authority
to impose the whole cost of improvement on the applicant, but Commissioner
Doherty questioned the Boards ability to assure the applicant that they would
be reimbursed by other parties. Mr.
Connors replied that it could be addressed through a development agreement or
local improvement district, providing that the county will assure that future
projects have a “late comers” reimbursement mechanism. The Code requires that the applicant should
be required to fix the problem and there are mechanisms to ensure that they are
reimbursed.
Commissioner Doherty noted
that Mr. Connors suggested that the applicant be required to redo their traffic
study, but he pointed out that when people do their own traffic studies there
is always suspicion that maybe they’re not really credible. How would a new study resolve anything? Mr. Connors replied that they just request
that the applicant use a method consistent with what traffic engineers are
supposed to use; using comparable studies of existing truck stops for a basis,
since the ITE manual doesn’t have a category for truck stops.
Agency Testimony: None
Rebuttal Testimony: Mr. Robinson
addressed the procedural issues first. First,
he disagreed about the statute on final written argument. In a setting like this, the Board doesn’t
have to keep the record open. The
applicant always has the burden of proof and last word. He requested that only final written argument
be allowed and no new testimony. He also
asked that if the Board chooses not to grant his request that they allow the
written record to remain open seven days for both parties.
There was further discussion
about final written argument. Mr.
Connors objected to consultant work being included in the closing argument,
because that would be considered expert evidence. He requested only legal argument be allowed;
no new evidence. Mr. Robinson argued
that a letter from a consultant that relies on evidence already in the record
would not be new evidence.
Commissioner Doherty asked
how it would affect the issued if the Board were to decide to require a new
traffic study. Mr. Robinson first
requested that, if the Board requires a new study that they be precise in
what’s missing because there are already two studies in the record. Then he recommended keeping the written
record open for more than 7 days because it would take some time to submit a
new study.
Mr. Robinson went on to
address the substantive issues, starting with traffic. The
Mr. Robinson noted that the
appellants’ engineer, DKS used a truck stop in an urban area for their analysis,
where there are much different traffic patterns. He also noted that Mr. Connors stated they
were low balling their trip generation, but they used an ITE model, the Barton
traffic study, and neither ODOT nor the Public Works Director disagreed with
their figures. The only one who disagreed
was the opponent’s engineer.
Regarding the safety of the
intersection, Mr. Robinson pointed out that there had only been eight accidents
over the course of five years. Even if
deemed unsafe, requiring the applicant to improve the intersection would not
ensure increased safety. Mr. Robinson also
noted that no other applicant had been required to make all improvements to the
intersection. There is no legal
mechanism to require existing developers to pay back Flying J for improvements. They would have to wait for new developers.
Mr. Robinson felt the most
equitable way to impose improvements would be through an
Mr. Robinson referred to Mr.
Connor’s comments about the
The warranty on improvements to
Mr. Robinson noted that Mr.
Connors had compared this application to the Petro case, but it really is not
the same. The Petro decision was
remanded by LUBA because the county improperly relied on deviation to access
spacing standards. In Petro LUBA also
noted lack of evidence on the impact. In
this case there are actually two traffic studies, both showing that there would
be no adverse impact on the intersection or any of the ramps to I-84.
Mr. Robinson addressed water,
stating that there is nothing to say that the county can impose a condition,
and there would be no water resource impact.
The Planning Commission wanted the applicant to provide documentation that
an adequate water source had been obtained, and they have two pieces; a letter
from their consultant stating need and a letter from Mr. Porfily stating that water
rights had been secured. The appellant’s
evidence looked at two sites only, and doesn’t account for storage or water
conservation methods. Mr. Robinson also
noted that the applicant’s site plan shows an area for storage and treatment of
wastewater and storm water.
Mr. Robinson did not feel the
applicant was deferring compliance through conditions as Mr. Connors
suggested. Some conditions simply can’t be
completed until after the zoning permit is acquired.
In response to Mr. Connors’
argument that they must use a Type
The condition of approval
imposed by Planning Commission requiring widening of
Mr. Robinson did not think
the applicant could be required to repair the entire intersection, but if the
Board feels they need to revise how they determined proportionality then they
would be willing to do that.
To conclude, Mr. Robinson requested
that the Board grant final written argument to the applicant only. If not, he requested that they leave the
evidentiary record open for both parties for 14 days for final written
argument, with 7 days for written rebuttal for the applicant.
Mr. Robinson also noted that
if the Board requires the applicant to submit a new traffic study and revised
Hearing Closed;
Deliberation and Decision: Commissioner Doherty commented that he would like
to extend closing argument to the applicant only, but the line between what is evidence
and what is not is fine, and he did not want to get caught up in what can and
can’t be attached. He would put the burden
on Mr. Connors to test that rule.
Commissioner Doherty
explained that his interest in redoing the traffic study was tied to the
Commissioner Hansell agreed
with Commissioner Doherty on granting Mr. Robinson’s request for final written
argument. If Mr. Connors wants to
challenge at LUBA he is able to do that.
He was comfortable with the
traffic study, especially since the Public Works Director and ODOT had signed
off on the current study.
Mr. Robinson stated that if
the applicant is allowed final written argument they can address the wording of
the
Commissioner Givens would
also agree to grant written testimony to the applicant only.
He was not interested in requiring
a new study, but he was also not comfortable with the 7.6% cap.
There was discussion about
scheduling and when written argument would be due. It was decided that Mr. Robinson’s written
argument would be due
Commissioner Hansell closed
the hearing for testimony and the request by the applicant for final written
argument was granted, being due
APPROVAL OF MINUTES:
The minutes of
ADJOURNMENT:
The meeting was adjourned at
Respectfully submitted,
Heather Haueter
Secretary