Loading...
HomeMy WebLinkAboutHearings Official Public Hearing Exhibit HE #3YEW3 LAW OFFICE OF BILL KLOOS PC OREGON LAND USE LAW 375 W. 4THAVENUE, SUITE 204 EUGENE, OR 97401 TEL: 541.343.8596 WEB: WWW.LANDUSEOREGON.COM August 26, 2015 LaurelRidge Rezoning Applicant's Hearing Submittals from Round I LUBA Record Final Order of the Planning Commission (Oct. 14, 2013) Appeal of HO Decision to Commission (Sept. 27, 2013) Hearing Official Decision (Sept. 17, 2013) BILL KLOOS BILLKLOOS r@i LANDUSEOREGON.COM PDF Page 1 PDF Page 6 PDF Page 20 Applicant Final Argument to Hearing Official (Sept. 4, 2013) PDF Page 33 Received in Public Hearing City of Eugene Planning & Development File YI: J° Exhibit FINAL ORDER OF THE EUGENE PLANNING COMMISSION ON APPEAL OF HEARINGS OFFICIAL DECISION: LAURELRIDGE PUD (Z 12-2, PDT 12-2, TIA 12-6 and SDR 12-5) i. lid T RODUCTiON This Final Order concerns an appeal of the decision by the Eugene Hearings Official (HO) to deny a zone change, tentative PUD, Traffic Impact Analysis and Standards Review request for LaurelRidge PUD.' The applications request approval of a Zone Change from AG Agriculture to R-1 Low density residential, as well as a concurrent Tentative Planned Unit Development (PUD), Traffic Impact Analysis (TIA), and Standards Review approval for a multi-phased residential development totaling 608 dwelling units (including both single-family and multi-family units). The subject site is located at the southern end of the Laurel Hill Valley on the south side of East 30b) Avenue. On September 17, 2013, the HO issued his decision finding that the zone change and PUD requests were not consistent with the applicable approval criteria related to consistency with the Metro Plan: As the zone change is a threshold issue needed to facilitate the development, he denied the PUD, TIA and Standards Review applications also. He did not issue an advisory opinion on the approval criteria applicable to the three applications above, because denial of the zone change dispensed with any need to do so. On September 27, 2013, Rick Satre on behalf of Ralph Nauman of Environ-Metal Properties LLC, filed an official Appeal Statement that included two assignments of error. First, the appeal. asserted that the HO erred in finding the zone.change request was not consistent with the Metro Plan and the Laurel Hill Plan. Second, as the HO should have-approved the zone change, he should have also addressed the other applications. The Planning Commission (PC) held a public hearing on the appeal on October 1, 2013. The PC subsequently deliberated on the matter on October 7, 2013. As required by the Eugene Code, the appeals are based on the record and limited to the assignments of error contained in the appeal statements submitted. As described below in Section lll. Findings of Fact and Conclusions of Law, the PC resolves the assignments of error through affirmation of the HO decision. IL RECORD BEFORE THE PLANNING COMMISSION EC 9.7655(2) limits the nature of evidence that the PC can consider on appeal as follows: "The record from the proceeding of the Hearings Official shall be forwarded -to the appeal review authority. No new evidence pertaining to the appeal issues shall be accepted.". The PC's decision on the appeal is based upon consideration'of all relevant evidence and argument within the official record. Final Order - Laure►Ridge PUD (Z 12-2, PDT 12-2, TIA 12-6, SDR 12-5) October 14, 2013 Page 1 4 PDF Pape 2 App-2 On October 3, 2013 an objection to procedure was submitted by Bill Kloos on behalf of the . applicant asserting that testimony by City Staff regarding conversations with the applicant regarding a blow up of the Metro Plan (Map 7) should be stricken from the record. Mr. Kloos submitted further objection regarding testimony from Jared Margolis that were otherwise not in the record including assertions by Mr. Margolis that: The applicant never asked where the line is on the property The plan line should be determined by using a GPS in the field The applicant admitted the UGB in this area was delineated based on the ridgeline. The POS line must be drawn to include land on either side of the ridgeline, because the intent is to protect a certain resource. ® Advice on how a ridgeline should be located offered as a professional GIS planner At deliberations, Deputy City Attorney Anne Davies advised the Planning Commission that the assertions made by Mr. Kloos were correct and that the Planning Commission should additionally reject testimon'y•provided at the hearing by the applicant, staff and opponents regarding conversations the applicant had with staff that was not in the record before the Hearings Official. The Planning Commission voted to reject the testimony summarized above. On October 6, 2013 Mr. Kloos on behalf bf the applicant provided a procedural objection along with new argument. The procedural objection asserted the provision of the Agenda Item Summary to the Planning Commission prior to deliberations was the staff report that should have been provided to the Planning Commission priorto the public hearing in order for parties to respond, The Planning Commission found that the code requirement at EC 9.7670 addresses the provision of a staff report prior to the public hearing, but also indicates that a staff report is not required. The code provision does not apply to an Agenda Item Summary provided by.staff after the public hearing and prior to deliberations. The Planning Commission voted to reject the email and letter dated October 6, 2013 which included the objection and new argument. The record before the PC consists of all the items that were physically before, and not rejected above by the PC prior to its final decision. 111, FINDINGS OF FACT AND CONCLUSIONS OF LAW The PC findings-and conclusion regarding the appeal'are provided below and attached hereto, Pursuant to EC 9.7680, the PC may reverse a decision of the HO if it can demonstrate that he failed "to properly evaluate the application or make a decision consistent with applicable approval criteria. The relevant approval criteria for zone changes are found at EC 9,8865 -and are discussed below. Final Order - LaurelRidge PUD (Z 12-2, PDT 12-2, TIA 12-6, SDR 12-5) October 14, 2013 Page 2 5 PDF Page 3 App-3 EC 9.5865(1) Provides: The proposed change is consistent with applicable provisions of the Metro Plan. The written text of the Metro Plan shall take precedence over the Metro Pion diagram where apparent conflicts or inconsistencies exist. Appeal Issue 1: The Hearings erred in finding that part of the site is plan designated Parks and Open Space (POS•). The entire site is plan designated Low Density Residential (LDR). The HO should have.zoned the entire site R-1. The HO summarized the position of the applicant, staff and opponents relating to the Parks and Open Space designation of a portion of the property on the Metro Plan diagram. In determining that the subject site was partially designated Parks and Open Space (POS), the HO analyzed the Metro Plan Diagram, Metro Plan text and the Application of the Laurel Hill Plan. HO decision, pages 8-12. The HO noted that in reviewing the 2004 Metro Plan diagram he had no trouble determining, without magnification, that the diagram designates some portion of the property as parks and Open Space, HO decision page 8. He noted that East 30th Avenue and the Urban Growth., Boundary are sufficient reference points to determine, simply by looking at the map, that the Parks and Open Space designation should have been applied in this area. The Planning Commission finds that it is clearly evident that there is a POS designation north of the UGB because the QGB and East 30t' Avenue a•re both reference points which can be used to fix• its position with respect to other boundaries, These reference points also distinguish the facts of this case from the Knutson case which the applicant/appellant asserts require that the refinement plan designation prevail for this application. The HO next reviewed Metro Plan text noting that the text could resolve questions as to whether the City Council intended to impose a particular plan designation in. a particular place. HO decision pages 8-9. The HO points to Metro Plan text at Section II G regarding the Parks and Open Space designation to indicate intent by the City Council to impose the POS designation on a portion of the property. The Planning Commission finds that while the Metro Plan text "complements" the existing designation on the diagram, it does not, in itself, provide clarity on the designation of the subject property. Accordingly, the Planning Commission agrees with the HO that the Metro Plan Diagram is not ambiguous and that reliance on the Metro Plan text is unnecessary, given the findings regarding the Metro Plan Diagram, as outlined above. The HO next addressed the application of the Laurel Hill Plan with respect to this property noting that it is appropriate to seek additional information in-the Laurel Hill Plan for clarification or "refinement" of the proportion or delineation of the POS designation. HO decision, pages 9- 12. He noted that the laurel Hill Plan provides no additional refinement, as the Laurel Hill Plan designates the property for low-density residential. The HO went on to note that this represents a conflict with the Metro Plan because it would. completely eliminate the POS designation on the property in question. In the case of a conflict the Metro Plan prevails. The HO disagreed with the applicant's application of Knutson in.this case noting that the Metro Plan text and diagram have changed since the case, including more accurate and improved resolution iri the 2004 diagram. The HO also agreed with opponents of the application which Final Order-LaurelRidge PUD (Z 12-2, PDT 12-2, TIA 12-6, SDR 12-5) October 14, 2013 Page 3 6 PDF Page 4 App-4 noted that the existence of reference points differentiated this case from the Knutson case. The Planning Commission finds that while the rules for the Knutson case directs that ambiguities be resolved by referencing the refinement plan, in this case there is no ambiguity. There is a conflict or inconsistency between the two in which case the Metro Plan prevails, Relevant to this case and material to this site are reference points including a road and the UGB which were not available in the Knutson case. These reference points help clearly identify the POS designation on the subject property. The HO also addressed the 2007 Boundary Commission decision which annexed the subject property and, established the UGB along the southern property line. HO decision pages 12-13. The Boundary Commission noted the site as being designated LDR. The HO found that this statement did not add much relevant information as the Boundary Commission did not purport to, or have the authority to affect the land use designation. The Hearings official also responded to the applicant's assertion that based on the boundary commission setting the precise location of the UGB, the depiction of the UGB as it relates to the property on the Metro Plan diagram was inherently unclear. The HO noted that-all three Metro Plan diagrams in the record show POS designation north of the UGB and the boundary of the subject property was not significantly altered as part of the UGB boundary decision. The Planning Commission confirms that the Boundary Commission's action has no effect on their determination that the POS designation clearly falls on the applicant's property. The actions of the Boundary Commission to set the precise alignment of the UGB had minimal impact. on the UGB as depicted in the current Metro Plan diagram. Therefore, the setting of the UGB in 2007 did not alter the depiction of the POS designation north of the UGB. Based on the findings above the Planning Commission denies Appeal Issue 1 and upholds.the decision of the HO denying the proposed zone change. Appeal Issue 2: Because the HO got the plan designation wrong, he erroneously failed to evaluate the tentative PUD application and related Standards Review and TIA applications. Those applications should have been approved, either outright or with conditions. The Planning Commission finds that because the HO correctly identified the plan designation on the property as being partially Parks and Open Space, he was correct in denying the tentative PUD applications and related Standards 'Review and TIA applications without review. The Planning Commission therefore denies Appeal Issue 2. IV.. CONCLUSION After consideration of the applicable law and all argument and evidence in the record, the Eugene Planning Commission affirms the Hearing Official's decision in its entirety to deny the subject zone change and associated applications for LaurelRidge PUD (PDT 12-2, TIA 12-6, SDR 12-5 and Z 12-2). The HO's decision is adopted by reference and attached here as Attachment A. Final Order-LaurelRidge PUD (Z 12-2, PDT 12-2, TIA 12-6, SDR 12-5) October 14, 2013 Page 4 7 ( P®F Page 5 App-5 In the event of any conflict between the HO's decision and this Final Order, this Final Order shall prevail. The foregoing findings and conclusions are adopted as the Final Order of the Eugene Planning Commission on appeal of the LaurelRidge PUD (PDT 12-2, TIA 12-6, SDR 12-S and Z 12-2), on this 14th day of October, 2013. Wvr-- N N4uk- William Randall, Chair Eugene Planning Commission Attachments: A - Decision of the Hearings Official Final Order - LaurelRidge PUD (Z 12-2, PDT 12-2, TIA 12-6, SDR 12-5) October 14, 2013 Page 5 PDF Page 6 f" I I F y ptahniq(& Dev. loo invent F - PFanf}Ing Ei ~t f2113,. 29 ii tbVesf fib•..AV~nus ti'r v _.irg, E?r:egnAQf OR-HIS `CYRIC REVIEW-B.G- ARD DECISION. flip app l U ,in initial : ar riffs Official Hi:S otlu.~e~:ie~v B:o~r~T rt e;is ~~l ~re~ des fur; rea r F- q.4;4, jutlicial de isco. a highex review ad0ho i~t spec died. zi the Land 11m, C`ndin ge-Ijeral, fie aplieal rpe:cdures altow for a rev pe of the of gba) apphea#ian, Ile T-Zegas~.o6jofal or :E4fafofic :~04e rR&W. &*ElsI4, , jhe, apb~--ai appl:104um ena m-,y ~x #6slr:~~,c~~y xat~~~~ to ts~~ies ai cl mwatgl-ia44 that diihft4 tb- initial ~j~~~i l ~tdfeial. b[iG: li~~ pFaee~s. 1 ize l learn s; Of$cial bt flistor~e )tc~ i ,v T :o d rIECiuian imy, b' ffiFn cds veve sed, i b&t'e ,:oP ret iarizled by tqo plaYSriing. CQW=, 0 D'?. Pte~se ~liecl~ one o:~ the<fc~Ilo~~ in_~r ~HistQtac.l andmai Z3es n 19n :zI d P~rmat ,PIA,i, Lairretfldc~ PliCi ~`xt~FiJ,~.l`~umher•,. z'[22;:f~IrT ~2:~, TIfi:1~~6.~rtd•St~R 1:2tr5' l f t o i~lh ;s. C f#z~ ia10 sf kl.~' iii t~ oa d 1 of f't~ 0bbf t 0t3 (fhia date artist be ~7 fihiii 1- days''of tli.e: date. Mthe iiiailir g.:of the FIdsrint-~:omeral ,ael a vveitteiz apl staiienrie appeal.atit'sal ncluic` tixztfri:steanrit.~f issue_ o ap_p eal~ be:6a~ d ontl e I. e card; arid.be Iitnlt>;d ?the issues raised i 6x :oord-tha -aru.set mit in the tied st?t a ei~t f issues: T1~e ~tlili.Pai ~Wtemmt.*slt~tl_t daptain -Spoe ic4' ho he T, oai` ags Offl lal-.'or Mao& Ri v ewr~v~d_~all~d i~ ~tvp~~l-$v?~luate tl~e:a,pli~tidrt ~t m4kd'-4 dectstc 6 Consts w(~ rtl app-licable priterfa,. the basis ppe l is t it l to t}ie issue raised ciariv t i reyieW- of the origihal ap~IFl ~tifl ~Iease -sotitact l lar~ni a s ff:4 th~l?ermit d eirt? tr n C~Dte*W.99'w; St 1b` Avo6ue-- 3.41) *682a537 fl `~x~~~.~ brmlat 4~ wl ~a1'~~~c~ . ps 1 of iitialTl zi '.Qmelat pop-l Q1- -68 PDF Page 7 A:4in ee r that a i , ~iII ~s ?Ff i' T:a i Ii~tori ti 3v oarti appeals. TfZe tee Vatizs gcpprtJi ttit 11pen di&iypo of apphkat on an' is aOjusted peril}~dically, by h-e Crty.M°anagt( hec'_ .iti .t(t plaiinfng_* tt ff of lh-6.eia it and lntort atro.> ec to to cf eterr n Clip= rzcfuiz f fee r. cheek on th1 1YV ,1J.';3$> lT'1VSN,IE~tt~, il,'D i~tI1714F:t~~` ( e)7 trie iuadersi~Ft e I, I erel7 ! °at kc5t ~tl clg 'Cfifi j (iv hive i #Iie_ t~flv e appedl feriri, u6d&9t bid . tb >~qun~niepts fbr~liug ate a p p o H~a iai s aifiet~iI or Wstozic nevi rBo~ird €fi" i ion; ati . stag t~~t tkeii.~korntlt>~1t s~rpph~el ~a ~ ~~,~Yple~e ~~1 ~~tt~il4~'~~,Y~ e;uYet~tl~~.p~~s~vle, t~ t~~; b~~:~t: rn~T Comm. l o~uled . . X371c: (ta yt~,;lh.niu~t APPP19 ;YANll' cityys to/zip $x~iiatiu~` . IF this 4pP,4 41 taz n AWd 1 y`tli `a I ct d re o nizeci nei il;a fiou i ss c atia i_: o pl t ttJpQfJnitialcarit<g t Jtteia Page 2 of 69 j Ad&- Css. ~~'lirQr~ PutEt~l. P-rop~iti~s l L`G PDF Page 8 ,gix711~r,F~,i O -A,m - l s-ai Cs LAW OFFICE OF BILL ELOOS PC OREGON LAND USE LAW 375 W: 4' AVENUE, SUITE 204 EUGENE, OR 97401 TEL: 541.343.8596 WEB: WWW.LANDUSEOREGON.COM September 27, 2013 Eugene Planning Commission c/o Eugene Planning and Development Atrium Building; 99 West 10th Ave. Eugene; OR 97401 BILL KLOOS BILLKLOOS@LANDUSEOREGON. COM TEL: 541.343.8596 Re: Appeal of HO LaurelRidge Decision; Z 12-2, PDT 12-2, TIA 12-6,.SDR 12-5 Statement of Appeal Issues Dear Planning Commission: This statement of appeal issues is part to the applicant's appeal of the Hearing Official's decision, filed on this date, which also includes the appeal form and appeal fee. 1. Big picture summary. As the HO noted, the plan/zone issue is the threshold issue in this application. If the HO got the rule for reading the plari wrong, and the applicant got it right, then the entire site is correctly viewed as LDR, and the applicant is entitled to•the requested zone change, and then the PUD, standards review, and TIA approvals. The Court of Appeals stated the correct rule for reading the Metro Plan in 2005: "[T]he land use designation for properties near the boundary between use designations on the diagram is unclear. As indicated by the Metro Plan, those ambiguities require reference to local government refinement documents to conclusively determine the applicable designation. Under those circumstances, there is no inconsistency between the Metro Plan and'a refinement plan. Instead, the refinement plan serves to resolve the inherent ambiguities that exist in a general diagram such as the Metro Plan diagram." [Knutson, 200 Or App 301- 302]. That rule still applies here, even after the 2004 amendments, because the 2004 amendments did not make the Metro Plan Diagram parcel specific at this location, as everyone agrees. Every printing of the official Metro Plan Diagram (1980, 1987,•2004 and current on the web) shows a slightly different footprint.of colors at this location adjacent to the UGB. See Diagrams: Each shows a different smidgen of green POS pushing across the UGB somewhere near the 70 PDF Page 9 LaurelRidge Appeal Statement September 27, 2013 Page 2 south- property line. None of those Metro Plan printings came: with any City Council language saying the Metro Plan showed a precise footrprint for plan designations at this location. None has been referenced by the city; none exists. The only definitive statement made by the City Council about plan Diagram details at.this location came when it adopted the Laurel Hill refinement Plan Diagram in 1982 with language saying: "The land Use Diagram included in the Laurel Hill Plan Update is hereby adopted as a refinement of the Eugene-Springfield Metropolitan Area General Plan diagram." Res. No. 3700 (July 26, 1982) section 2. The refinement plan shows the entire property, everything north of the UGB, as LDR. At this location the POS starts south of the UGB. No city council action since 1982 has detracted from this ultimate policy choice by the City Council. When the HO said some part of this site is POS because the Metro Plan Diagram shows some POS on the property he goofed; he should have followed the City Council and Court of Appeals advice, recognized the Metro Plan Diagram as unclear at this location, and then looked to the refinement plan to conclude the site is LDR, and the requested zone change. is justified. II. List of Errors in the Hearing Official Decision 1. The Hearing Official erred in finding that part of the site is plan designated Parks and Open Space (POS). The entire site is plan designated Low Density Residential (LDR). The HO should have zoned the entire site R-1•. The Court of Appeals explained in the Knutson case in 2005 how to determine the plan designation for a property when, as here, the boundary line between two plan designations on the Diagram is near the property line and there is a more specific refinement plan in effect. One looks to the refinement plan to make the Metro Plan Diagram more clear. That is what refinement-plans are for under the text of the plan. That is what the City Council said when it adopted this refinement plan. Nothing material has been changed in the Metro Plan to alter the rule above when, as at this.location, the Metro Plan Diagram is not.parcel specific. Everyone agrees the Metro Plan Diagram is not parcel specific for this site. The HO goofed by making a final decision about the plan designation by looking only at the Metro Plan Diagram. On the Diagram he saw that a smidgen of Parks and Open Space green crossing the UGB line to touch on part of the south line of the property. With that observation, he concluded definitively that some part of the site is planned POS. Therefore, he looked at the refinement plan and saw a conflict. That was a very basic error that put the HO on the wrong track. Even if the HO were correct, and part of the site is POS, he should have zoned the balance to R-1. 71 PDF Page 10 jr LaurelRidge Appeal Statement September 27, 2013 Page 3 LUBA and the Court of Appeals will not defer to any part of the Commission's decision about how to read the plan. They will 'apply the Knutson rule unless the Commission can point to some change in the Metro Plan that is both relevant and material for this site. The HO hasnot identified any change. The Commission cannot either. 2. Because the HO got the plan designation wrong, he erroneously failed to evaluate the tentative PUD application and the related Standards Review and TIA applications. Those applications should have been approved, either outright or with conditions. The HO opined at the hearing that he did not have a positive staff report to work with if he wanted to approve the applications. After recommending denial of the zone change, staff truncated its review of the PUD application; they did not even-give the HO a list of proposed conditions in the event he approved the zoning, as they typically do. In its 71- page Final Argument, attached and incorporated into this list of appeal issues, the applicant gave the HO what amounts to a positive staff report supporting approval with a standard list of conditions pulled.-from previous South Hills tentative PUDs. We recommend that to the Commission. M. Discussion This discussion applies to each of the errors alleged above. The Hearing Official made a simple legal error in determining the plan designation for this property. He found a conflict between the Metro Plan diagram and the refinement plan diagram, which caused him to defer to the Metro Plan Diagram, which he said plainly designates part of this property as Parks and Open Space. This is exactly the kind of error that was recommended by the staff to the Hearing Official in the Knutson zone change in 2004. That Knutson staff recommendation was adopted by the Hearing Official and then affirmed by the Planning Commission, only to be reversed by LUBA and the Court of Appeals. See Knutson Family LLC v. City of Eugene, Eugene, 48 Or LUBA 399, aft'd 200 Or App 292, 114 P3d 1150 (2005) (June 22, 2005), relying on Carlson Y. City of Eugene, 3 Or LUBA 175 (1981). In Knutson the city said there was a conflict; LUBA and the Court of Appeals said there was no conflict, explaining how the Metro Plan and the refinement plan are to be read together. A. The language in the Metro Plan'supporting the Knutson decision is unchanged. The Hearing Official attempts to distinguish the rule in the Knutson decision as not outdated, in order to find a conflict between the plans in this situation. There is no basis for distinguishing Knutson. The plan language in effect for the Knutson decision describes the Metro Plan as a framework plan that includes refinement plans, with-the Metro Plan Diagram being generalized and made more specific by refinement plans. Refinement-plans may not conflict with the Metro Plan, but making the general Diagram more specific via a refinement plan is- not a conflict. 72 PDF Page 11 LaurelRidge Appeal Statement September 27, 2013 Page 4 The rules stated by the Court of Appeals in Knutson for how to read the two plans together remain valid today for this property. The relevant language from the Metro Plan has not changed. The following excerpts from the Metro Plan were relied upon by LUBA and the Court of Appeals in Knutson and remain verbatim in the Metro Plan today: The Metro Plan Diagram is a graphic depiction of. (a) the broad allocation of projected land use needs in the metropolitan area; and (b) goals, objectives, and policies embodied in the text of the Metro Plan. [Current Plan at I-5; 2002 version at I-4] and In addition, it is important to recognize that the written text of the Metro Plan takes precedence ovdr the Metro Plan Diagram where apparent conflicts or inconsistencies exist. The Metro Plan Diagram is a generalized map which is intended to graphically reflect the broad goals, objectives, and policies. As such, it cannot be used independently from or take precedence over the written portion of the IvIetro Plan. [Current Plan at 1-5; 2002 version at I-5] and The Metro Plan is the basic guiding land use policy document, but it is not the only such document. As indicated in the Purpose section, above, the Metro Plan is a framework plan, and it is important that it be supplemented by more detailed , refinement plans, programs, and policies. * * * * Refinements to the Metro Plan can include: * * (c) neighborhood plans or special area studies that address those issues that are unique to a specific geographical area. In all cases, the Metro Plan is the guiding document, and refinement plans and policies must be consistent with the Metro Plan. Should inconsistencies occur, the Metro Plan is the prevailing policy document. [Current Plan at I-6; 2002 version at I-5] and The Metro Plan Diagram is a generalized map and graphic expression of the goals, objectives, and recommendations found elsewhere in the Metro Plan. * * Finally, the Metro Plan Diagram is drawn at a metropolitan scale, necessitating supplementary planning on a local level. [Currrent Plan at II-G-1; 2002 version at II-E-1] 73 PDF Page 12 LaurelRidge Appeal Statement September 27, 2013 Page 5 B. LUBA and the Court of Appeals have stated the rule for reading the Metro Plan. When LUBA reversed the city's zoning decision in Knutson, it pointed to a much earlier case where the City Council correctly explained the relationship between the Metro Plan and refinement plan diagrams Carlson v. City of Eugene, 3 Or LUBA 175 (1981). When the Court of Appeals affirmed LUBA's decision in Knutson, the Court explained in crisp terms how to read the Metro Plan and the refinement plan together. "As we have already indicated, however, the critical issues in this case are the relationship between the Metro Plan and the WAP and the methodology for determining the plan designation of the subject property. Contrary to petitioners' [opponents'] assertions, those are not questions of fact but are legal issues that are governed by the plans themselves. [200 Or App at 300] u**** '"In other words, the Metro Plan is not the only planning document that must be considered in determining the designation of a particular site. Instead, the Metro Plan expressly contemplates that refinement plans will be considered as well. [200 Or App at 301] "Although it is clear that the Metro Plan is the guiding document and takes precedence over a refinement plan where inconsistencies exist, the Metro 'Plan diagram is only a generalized depiction of land uses. The Metro Plan diagram provides few clear boundaries between land use designations. Although some designations appear to border named streets, most do not, and the diagram's comparatively small one inch to 8,000-foot scale does not include any depiction of individual lots. As a consequence, the land use designation for properties near the boundary between use designations on the diagram is unclear. As indicated by the Metro Plan, those ambiguities require reference to local government refinement documents to conclusively determine the applicable designation. Under those circumstances, there is no inconsistency between the Metro Plan and a refinementplan..Instead, the refinement plan serves to resolve the inherent ambiguities that exist in a general diagram such as-the Metro Plan diagram.FN6 "FN6. Under different circumstances; however, an inconsistency between the Metro Plan and a refinement plan could clearly exist. For example, if it were possible to locate a subject property based on the minimal referents in the Metro Plan diagram and the location of the property was not near the boundary between two use designations, the Metro Plan diagram, as a matter of law, might indicate the subject property's land use designation. 74 PDF Page 13 LaurelRidge Appeal Statement September 27, 2013 Page 6 In that case, the designation in the Metro Plan diagram would prevail over an inconsistent designation in the applicable refinement plan." [200 Or App at 301-302] [Emphasis added] Applying this rule to the subject property, LUBA and the Court of Appeals will decide, without any deference to the Planning Commission, that the plan designation for the entire property is Low Density Residential: That is because the.subject property is "near the boundary between use designations on the diagram" and, therefore, based only on the Diagram, the designation is "unclear." Therefore, LUBA and the Court will look to the refinement plan; as they did in Knutson in 2005 and Carlson in 1981. The refinement plan provides clarity; it is plainly evident that LDR extends to the UGB in the refinement plan diagram. LUBA and the Court will view the refinement plan as refining the unclear Diagram, not conflicting with it. C. - Basic mistake by the Hearing official: failure to follow Court of Appeals' rule. Here is how the Hearing Official made his mistake:' Following the staff recommendation, he looked to the Plan Diagram and saw a smidgen of green on the city side of the UGB line and concluded that the Diagram is clear that there is some Parks and Open Space plan designation on the city side of the UGB; he then disregarded the refinement plan as being in conflict. According to the Court of Appeals, he should have noted that boundary line between LDR and the Parks and Open Space is very close to the UGB, which is the south boundary of the property, and then concluded that the Diagram is not clear; then he should have looked to the refinement plan for clarification, concluding the entire site is LDR. It was a 'simple error - seeing a conflict where the LUBA and the Court of Appeals say there is a clarification via the refinement plan, not a conflict. D. None of the other supporting reasons offered by the Hearing Official is a basis for not following the Court of Appeals direction. If the HO were following the Court of Appeals rule for reading the plan, he would have posed a different question for himself than he did. His basic question, posed at the top of page 8, is: "The fundamental question presented, by the applicant's zone change request is whether the City Council intended to apply a Parks and'Open Space designation to the subject property and adjacent lands in the adopted Metro Plan Diagram. if so, was it the City Council's intent to allow the Laurel Hill Plan to obviate that decision through a "refinement" of the Metro Plan." The question, according to the Court of Appeals, should have been: The fundamental question presented by the applicant's zone change request is whether the City Council intended to apply a Parks and Open Space designation 75 PDF Page 14 LaurelRidge Appeal Statement September 27, 2013 Page 7 to the subject property and adjacent lands in the adopted Metro Plan Diagram. If the Metro Plan Diagram is unclear because it shows a boundary between two plan designations near the subject property line, does Laurel Hill Plan clarify the intention of the City Council? So, the Hearing Official's analysis started out on the wrong foot. The balance of his analysis is focused on a number of reasons justifying his conclusion that there is a conflict. - We address each element of his reasoning here. None of his reasons is a lawful basis for'straying from the Court of Appeals' directive about how to read the plan in a situation like this. (1) The HO erred in conchiding that the Metro Plan text description of the Parks and Open Space designation supports pushing the POS into the subject property Looking to the text of the Metro Plan for guidance, the HO says that the description of the Park and Open Space plan designation indicates an intention to apply it to the private property at this location. Decision at 9..It does no such thing. The description quoted by the HO is: "This designation includes existing publicly owned metropolitan and regional scale Parks and publicly and privately owned golf courses and cemeteries in recognition of their role as visual open space. This designation also includes other privately owned lands in response to Metro Plan policies, such as the South Hills ridgeline, the Amazon corridor, the Q Street, ditch, and buffers separating sand and gravel designations from residential lands." This language says what kinds of land can be given the POS designation; it does not say how far the POS designation extends at any-particular location. For example, if this language actually describes what lands have the POS designation, then the POS designation would extend along the length of the South Hills ridgeline. It does not; large areas of the ridgeline are nowhere near POS. Were the POS can be applied does not tell you where it is applied. In addition, the operative phrase in this definition is "Metro-Plan policies; such as the South Hills ridgeline." However, no such Metro Plan policies are discussed by.the HO. Giving meaning to this phrase would require looking at Metro Plan South Hills ridgeline policies, which was not done. The applicant sees no Metro Plan policies saying that private land along the ridgeline should be plan designated POS: Instead of identifying relevant policies, the HO includes. simply at page 9: "The identification of the South Hills ridgeline as being privately owned lands that fall within the POS plan designation is a significant indication that the City Council intentionally adopted the Parks and Open Space- designation in that area of the city. Therefore, the Hearings Official concludes that the Metro Plan text and the Metro Plan Dia ram are consistent and strongly indicate an intention to impose the Parks and Open Space land use designation on the subject property. If 76 PDF Page 15 LaurelRidge Appeal Statement September 27, 2013 Page 8 there were any'ambiguity in the Metro Plan Diagram it is resolved by reference to the associated Metro Plan text." This reasoning does not logically support deviating from the Court of Appeals rule of thumb for interpreting the plan. A few undisputed facts are relevant here: • The property on both sides of the ridgeline here is in private ownership. [Record cite] • The UGB and city limits follow the property line at this location. [Record cite] • There is no Metro Plan text that says all property, public or private, along both sides of the South Hills ridgeline should be POS. There are large parts of the South Hills ridgeline that are quite remote from the POS designation. • For this location, in the 1982 refinement plan, the City Council explicitly stated-that the Laurel Hill Plan refines the Metro Plan, and the LDR extends all the way to the UGB. A plan description saying that POS is appropriate to implement the Metro Plan policies for the South Hills ridgeline is not relevant to answering the question - Where does the POS stop at this location? All 'the property along the ridgeline is private. Following the Court of Appeals rule for interpretation recognizes the plan designation boundary being at an easy to locate point on the ground-the UGB, which is the property line. If the Commission picks any reason to push the POS boundary into the subject property, it has no basis for determining exactly whereto draw the line. It will be guessing - making policy on the fly. That is not OK, as every square foot has a plan designation and getting it right is a question of law, not making policy. Consider this problem: If the POS line were considered to be inside the subject property, how would the Commission locate it? Staff could not locate it. The Commission should ask the staff: If the LDR-line is somewhere inside the property as you suggest, why did you not recommend rezoning that part to R-1? How would you resolve that question if you had to do it? Other than recognizing the south property line, the only way to draw the line without guessing would be to recognize the POS as going all the way to the north property line, leaving no LDR. If the HO is right about the weight of the POS plan description, then including all the property in the POS would implement the Metro Plan even better. But he is wrong. If the Commission agrees with the HO that part of the subject property is POS, then it has -an obligation to rezone the balance to R-1. We applied for R-1 on the property; we proved up on 77 PDF Page 16 LaurelRidge Appeal. Statement September 27, 2013 Page 9 that entitlement for all areas plan designated LDR. The Commission must rezone what is LDR. - Deciding what is LDR is the city's obligation, not the applicant's,, because it is the city's plan.' (2) Absence of a POS designation in the Laurel Hill Plan supports the applicant's position. The HO erroneously concluded that the refinement plan is uninformative because it does not show any Parks and Open Space designation. Decision-at 10. "As all parties note, the Laurel Hill Plan contains a land use diagram. The diagram shows three land use designations: low density residential, medium density residential, and commercial. There is no Parks and Open Space designation on the Laurel Hill land use diagram. As such, the Laurel Hill Plan is uninformative, and there is no additional information by which the Metro Plan Diagram can be refined." On the contrary, it is very informative. The Laurel Hill Plan only goes to the UGB. There is no POS inside the UGB. It shows LDR all the way to the city limlts/UGB, which is the south line of the subject property. And, in the adopting resolution, the City Council said: "The land Use Diagram included in the Laurel Hill Plan Update is hereby adopted as a refinement of the Eugene-Springfield Metropolitan Area General Plan diagram." Res. No. 3700 (July 26, 1982), section 2.- (3) The HO erroneously characterizes the applicant as saying that whenever the Metro Plan is not parcel specific under the 2004 amendments then one must look to the refinement plan to determine the plan designation. Decision at 10 last para, "First" point. This is not the applicant's argument. There are instances where the Metro Plan may not be parcel specific under the 2004 amendments but it is still possible to determine the plan designation without looking to a refinement plan .2 The Court of Appeals explained this is possible. See, for example, footnote 6 from the Court of Appeals' decision in Knutson quoted above. However, that is not the situation here. The Court explained that where the boundary line between two plan designations is near a property line, then the Diagram is "unclear" and one must look to the refinement plan. That is plainly the situation here. The HO is saying just the opposite - when the boundary line ofthe-P6S is on the city side of the UGB near the south property line then the Metro Plan is "clear" there is some POS on the property. t The HO said, at page five of his decision, that the applicant said it was allot nothing on the zoning. This misreads the applicant's final argument. The applicant has intended throughout this process to get the LRD area zoned R-1. The Final Argument was meant to acknowledge the reality that if any part of the site-is POS, then that part of the zone change must be denied and the three development applications must also be denied in their entirety. 2 Indeed, this is the only method in large areas of the city where there is not refinement plan. 78 PDF Page 17 LaurelRidge Appeal Statement September 27, 2013 Page 10 The language from the 2004 amendments the HO quotes at the top of page 11 says there is a need to continue to move toward a parcel-specific Diagram. That language, however, does not change the rules the Court stated. in Knutson for interpreting the Metro Plan where it is not parcel-specific and not clear, as is the situation here. (4) The HO's assumption that the 2004 Metro Plan Diagram, in areas where it is explicitly not parcel-specific, is a more reliable indication of the plan designation, is not based on any law. This is a legally erroneous assumption. Decision at 11 "Second" point. The following undisputed facts are relevant here: • The 1980, 1987 and 2004 adopted versions of the Metro Plan Diagram each show a bit of Parks and Open Space area near the south boundary line of the subject property, just inside the UGB. See three 11x17. copies of Diagram submitted at hearing • All parties agree that with respect to the subject property, the Metro Plan Diagram adopted in 2004 is not parcel-specific. See HO Staff Report at 4 para 1, 5 para 6. • The 2004 Diagram was printed from the RLID database. The 1980 and 1987 Diagrams were printed from some other database. The Hearing Official's assumption is that because the Diagram was printed from a different database, it is more reliable than the former 1987 Diagram and, therefore, more weighty in determining the plan designation. It is a reason to depart from the Knutson rule's for interpreting the plan designation. This assumption is completely unfounded in any law. The Metro Plan text says that both the 1987 and the 2004 Diagrams are not parcel-specific for the subject property. Just because the Diagram came out of a computer does not make it more accurate. The 1987 Diagram had colored blobs with Mundy edges.. The 2004 Diagram has colored blobs with straight edges because RLID prints polygons. That is very simple. If any more weight is to be given to a non-parcel specific part of the 2004 Diagram than to the same part of the non-parcel specific 1987 Diagram, that has to be justified in the language of Ordinance No. 20319 (April 21, 2004), which adopted the'2004 amendments and Diagram. There is no such justification, either in the 2004 plan diagram or in Exhibit D to the Ordinance No. 20319, which was supporting findings. The Diagram was left generalized at this location, with the refinement plan providing the clarity. The chronology.of plan mapping for this area is: • Adoption of 1980 Metro Plan Diagram (generalized and not parcel specific at this location.- • Adoption of 1982 Laurel Hill refinement plan Diagram (showing LDR all the way to the UGB). 7g- PDF Page 18 LaurelRidge Appeal Statement September 27, 2013 Page 11 • Adoption of 1987 Metro Plan Diagram (generalized and not parcel specific at this location. • Adoption of 2004 Metro Plan Diagram (generalized and not parcel specific at this location: No tweeking of the Diagram was necessary in 2004 because there was no conflict between the Metro Plan Diagram and the refinement plan Diagram at this location. We' explained to the Hearing Official that in each printed version of the Metro Plan Diagram (1980, 1987 and 2004), the location of the UGB line at this site, and the amount and location of POS green near the south property line, wiggled around a bit. There is no decision by the City Council saying that these changes are policy choices. The text of the Metro Plan says the UGB line at this location is to be firmed up at annexation, which occurred in 2007. The ebb and flow of the POS green near the property line is just the vagaries of the printing process for an explicitly non-parcel specific part of the Metro Plan Diagram. (5) The HO has mischaracterized the applicant's position as a straw man. The applicant is not arguing that every property can have only one plan designation. The applicant is saying to apply the Court of Appeals rule: Where the boundary between plan designations is near the property line the Diagram is unclear, and the refinement plan is to be consulted for more clarity. (Decision at 11, last para, "Third" point.) The Hearing Official says we are arguing that a piece of property can have only one plan designation. The applicant is not saying that. That position is not stated in the plan and is contrary to the plan. We are simply saying that the rule stated by the Court of Appeals in Knutson applies here: Where the plan boundary line is close to a property line the plan Diagram is "unclear" and the refinement plan is to be consulted for clarity. The Knutson rule is qualified by the 2004 amendments that say for which parcels the Metro Plan Diagram is now parcel-specific. That post-Knutson qualification does not apply here, as everyone seems to agree. 80 PDF Page 19 LaurelRidge Appeal Statement September 27, 2013 Page 12 As explained in item (4) above, in each version of the Metro Plan Diagram the location and the amount of POS green in the vicinity of the property has moved around a bit, as has the footprint of the UGB itself. In all versions of the Diagram, however, including most importantly the current version, the dividing line between the LDR and the POS is very, very close to the south property line of the subject property. Applying the Knutson rule, the Diagram is unclear, and we are to look to the refinement plan. Sincerely, Ed ~e&" Bill Kloos Encl. Applicant's Final Argument to Hearing Official (September 4, 2013) 81 PDF Page 20 App-6 Attachment A DECISION OF THE HEARINGS OFFICIAL FOR THE CITY OF EUGENE, OREGON ZONE CHANGE REQUEST Application File Name (Numbers): Laurel Ridge PUD - Z 12-2, PDT 12-2, TIA 12-6, SDR.12-5 Applicant's Request: Zone change from AG/WR Agricultural with Water.Resources Overlay to R-1/WR, Low - Density Residential with Water Resource Overlay. Subject Property/Location: Tax Lots 701 and 703 of As Map 18-03-10-00, approximately 122 acres located'at the south end of the Laurel Hill Valley, north of 30th Avenue. Relevant-Dates: Zone Change application submitted on January 18, 2013; application deemed complete on February 15, 2013; public hearings held on April 10, 2013 and April 24, 2013. Concurrent land use applications for Tentative Planned Unit Development, Traffic Impact Analysis, and Standards Review. Applicant's Representatives: Rick Satre, Schirmer Satre Group, Phone: 541-686-4540 Lead City Staff: Steve Ochs, Associate Planner, Eugene Planning Division, Phone: (541) 682-5453 Summary of the Public Hearing. The Hearings Official held a public hearing on this application on August 28, 2013. The Hearings official stated he had no conflicts of interests and had no ex parte communications to disclose. All the declarations required by ORS 197.763 were made. No person objected to the Hearings Official conductingthe hearing. Staff provided an overview of the staff report. Staff did not recommend approval of the zone change because in staffs opinion the applicant had not adequately taken account of the Parks and Open Space designation shown for the property on the Metro Plan Diagram. Therefore, staff concluded that the application was inconsistent with the Metro Plan and Metro Plan Diagram under EC 9.8865(1). For the same reason, the PUD application could not meet the threshold requirement of consistency with the Metro Plan under EC 9:8320(1). Hearings Official Decision Z 12-2, PDT 12-2, fIA T2-6, SDR 12-5 9 PDF Page 21 App-7 Mr. Ralph Nauman-introduced the applicant's team including Rick Satre and attorney Bill Kloos. Mr. Kloos provided testimony related to the application's consistency with the Metro Plan. He argued that staff made a fundamental mistake by expanding or magnifying the Metro Plan Diagram beyond its official size -11 x 17 inches in order to reach the conclusion that the subject property was partially burdened with the Parks and Open Space designation. He argued that the Oregon Court of Appeals' decision in Knutson Family LLC v. City of Eugene, 200 Or App 292 (2005) found that approach to violate the Metro Plan. He also argued under the same ruling, the Metro Plan Diagram is inherently unclear, requiring reference to the applicable refinement plan, in this case the Laurel Hill Plan. That refinement plan, he explained, shows the entire subject property in the Low Density Residential designation, He explained that reference to the refinement plan did not represent an inconsistency with the Metro Plan Diagram but that the court in Knutson held that such refinements are consistent with the Metro Plan because they clarify land use designations within the refinement plan areas. Mr. Satre presented testimony primarily related to the PUD criteria. He submitted two large- format spreadsheets into the record; one set addressing the zone.change criteria, the other set addressing the PUD criteria. As to the zone change'applicatio_n, he explained how to use the spread sheets which identified related documents in the record, and he reiterated the conclusions reached by Mr. Kloos. Mr. Ed McMahon submitted a letter from the Lane County Homebuilders Association in support of the application. Mr. Bill Blix submitted a narrative in opposition to the application with 10 exhibits supporting that narrative. His testimony was directed primarily toward noncompliance with the PUD criteria on the issue of integration of the development with natural resource areas and storm water concerns, Mr. Jan Wostman submitted testimony related to the PUD..He argued that Glenwood Road could not be connected through to 30th Avenue because the Laurel Hill Plan specifically forbids that connection, Ms. Stephanie Midkiff testified on the incompatibility of the proposed PUD with the nature of the subject property. She suggested that the development was located too close to the ridge line, that the density and size was incompatible with the slope and terrain of the subject property, and that the multifamily units were in the most heavily treed areas of the property. She noted that negative visual impacts could result for residents in the Laurel Hill area. Dr. Gunnar Schileder provided an extensive comment on the application's failure to comply with the requirements for a geologic and geotechnical analysis under EC 9.6710.. His comments were related to the PUD criteria, and he identified alleged errors in the conclusions reached in the applicant's geotechnical analysis, Hearings Official Decision Z 12-2, PDT-12=2, TIA 12-6, SDR 12-5 10 PDF Page 22 App-8 Mr. Jared Margolis testified primarily on the failure of the PUD application to address the adequacy of school services to serve the proposed development. He also addressed the zone change criteria by arguing that it is unnecessary to expand or magnifying the Metro Plan Diagram in order to determine that the subject property is designated, at least in part, as Parks and Open Space. Mr. Paul Orum discussed proposed conservation easements associated with the PUD and how those agreements might be enforced. Mr. Robert Melnick argued that the proposed PUD would have adverse visual effects and would negatively impact road safety and traffic. Mr. Larry Weinerman challenged whether the multifamily units proposed as part of the PUD would actually be affordable at all income levels. Ms. Kyra Carrol argued that the PUD would be visible from many locations at lower elevations in the Laurel Hill area because the South Hills ridge line can be seen from many of those locations. She also raised concerns about storm water impacts. Mr. George Neally testified about potential wildlife impacts and impacts on the unique microclimate in the Laurel Hill area. Mr. Pat Holleran raised specific concerns about having a single road serve as ingress and egress for the entire PUD. He also suggested'that Spring Blvd. will be unable to accommodate the new traffic related to the proposed development. Mr. Patrick Stevens argued that the zone change application is inconsistent with the Laurel Hill Plan and agreed that substantial traffic impacts are likely if the -PUD were approved. Mr. Kloos provided rebuttal testimony clarifying how the City's adopted Goal S inventory and decision allowed developments such as the proposed PUD in the-South Hills. He argued that' the applicant's geotechnical analysis only needed to be adequate to demonstrate that the PUD could conceptually meet the tentative PUD standards. Mr. Satre provided rebuttal testimony explaining how the layout of the proposed PUD would avoid interference with riparian areas, and adequately preserve trees and sensitive landscapes. Near the end of the August 28, 2013 hearing Patrick Stevens.made a request to leave the record open, but later rescinded that request in writing. No other party requested that the 'record remain open. The applicant then requested that the record remain open until September 4, 2013 for the applicant to submit argument but not evidence. The request was not a request to submit a final comment under ORS 197.763(6)(e). The effect of the request was to toll the 120 day deadline on the application by seven days, providing the Hearings Official with additional time to draft an issue a decision. That accommodation is appreciated. Hearings Official Decision Z 12-2, PDT 12-2, TIA 12-6, SDR 12-5' 11 PDF Page 23 App-9 Site Characteristics and Present Request The subject property consists of approximately 121 acres in two tax lots which are considered one development site under the current ownership. The area is forested with a mixture of coniferous and hardwood forest and is included on the City's adopted Goal 5 Scenic Areas Map (1978). The property also contains several upland streams inventoried as Goal5 resources on the east and northern portions of the property, as well as streams and wetlands along the north property line that are not listed as protected Goal 5 resources. The site is located on a generally north and northwest-facing hillside sloping down from the ridgeline, which runs in the approximate location of the south property line. The Urban Growth Boundary (UGB) also runs along the south property line to its most southerly tip, where itcrosses 30th Avenue. To the north of the property is a combination of developed and planned but not yet developed residential properties. The property also adjoins Moon Mountain Park near its northeast corner: To the west, is a-strip of City-owned land which includes the Ribbon Trail. Further to the west are additional residences, the Obsidians Lodge and Laurelwood Golf Course. To the east is undeveloped land outside of the City's UGB. The site is located between 560' and 950' in elevation, with slopes that range from 5% to over 50% as noted by the applicant. The zone change request is for approval of a zone change from AG (Agricultural) to R-1 (Low Density Residential). The application was deemed complete on November 9, 2012, at the applicant's request under ORS 227.178. The applicant also provided a series of time extensions to the state's mandated 120-day time limit for final land use decisions in order to provide a variety of revisions to the concurrent applications and to attempt to provide some of the missing information identified by the staff as part of completeness review. The applicant has extended the•120-day limit a total of 227 days (a maximum of 245 days may be granted) making October 22, 2013 the 120th day under the rule. Documents Considered by the Hearings Official The Hearings Official has considered documents listed in the "Hearings Official Exhibit List for Laurel.Ridge PUB" which is included in the record -to the extent the documents discuss arguments related to the proposed zone change. Other documents were considered only to the extent that they are dependent upon the zone change: Procedural Issues The applicant's final comment states that the Hearings Official's decision on the zone change request is a threshold issue for the entire set of applications identified above. They state: This is the the threshold standard for all related applications. R-1 zoning is requested for the entire property. This requires a finding that all of the property has a Low Density Residential•(LDR) Metro Plan designation: If a portion of the Hear!ngs.Official Decision Z112-2, PDT 12-2, TIA 12-6, SDR 12-5 12 PDF Page 24 App-10 property is plan designated something else, then the zone change application must be denied, and the applications for development approval, which are premised on R-1 zoning, must also be denied. The Hearings official agrees with this conclusion.. For that reason, the decision on the zone change request represents the beginning and the end of consideration of all four applications. For the reasons set forth more fully below, the Hearings Official concludes that the zone change request is inconsistent with the Metro Plan and the Metro Plan Diagram. It is the Hearings Officials practice to avoid issuing,advisory decisions opining on all the criteria that might be applicable to a given application where denial of the application is required based on a threshold criteria such as EC 9.8865(1). In this case, the Hearings Official concludes that to obtain approval for the zone change and PUD requires an accommodation of the Parks and Open Space Metro Plan designation and the applicable Park, Recreation and Open Space zone requirements set forth in EC 9.2600-2650. Acknowledging the Parks and Open Space designation could require the applicant to reconfigure the PUD design and provide additional demonstration of compliance with the applicable PUD criteria. Reviewing and determining compliancewith the PUD, TIA and Standards Review criteria based on the current record has the potential to prejudice. the rights of both the applicant and opponents of the application in any future consideration of this application or another application that acknowledges the Parks and Open Space designation. Therefore, the findings and conclusions set forth below are limited to determining compliance with EC 9.8865(1) for the zone change, and EC 9.8320(1) for the PUD application. Evaluation of Zone Change Request The Eugene Code, EC 9.7330 and 9.8865, require the Hearings Official to review an application for a zone change and consider pertinent evidence and testimony as to whether the proposed change is consistent with the criteria required for approval. EC 9.8865(1): The proposed zone change is consistent with applicable provisions of the Metro Plan. The written text of the Metro Plan shall take precedence over the Metro Plan Diagram where apparent conflicts or iriconsistencies exist. Determining consistency with EC 9.8865(1) depends primarily on whether the proposed zone change is consistent with the text of the Metro Plan and the Metro Plan Diagram. Applicant's Position The applicant argues that'the Metro Plan designation for the entire property is LDR. The applicant's argument is set forth in consistent detail in at least three locations in the record: an August 28, 2013 letter from Richard Satre, an August 28, 2013 letter from attorney Bill Kloos, and the applicant's September 4, 2013 final comment. The Hearings Official understands the applicant's argument to be as follows: Hearings Official Decision Z 12-2, PDT 12-2, TIA 12-6, SDR 12-5 13 PDF Page 25 App-11 The determination of a Metro Plan designation is a matter of law, governed by the methodology set forth in Knutson Family LLC v. City of Eugene, 200 Or App 292 (2005). The heart- of that methodology is set forth in the Court of Appeals holding which in pertinent part states: "The Metro Plan diagram provides few clear boundaries between land use designations. * * * As a consequence, the land use designation for properties near the boundary between use designations on the diagram is unclear.. As indicated by the Metro Plan, those ambiguities require reference to local government refinement documents to conclusively determine the applicable designation. Under those circumstances, there is no inconsistency between the Metro plan and a refinement plan. Instead the refinement plan serves to resolve the inherent ambiguities that exist in a general diagram such as the Metro Plan diagram." ® In 2004, the Metro Plan was amended, and the Metro Plan Diagram was made parcel specific for certain categories of lands inside the Metro Plan boundary. Where the Metro Plan Diagram is not parcel specific it is, by implication, generalized. In those non-parcel specific areas the applicable refinement plan must be consulted to determine the correct zoning designation. The subject property borders two different plan designations on the Metro Plan Diagram. The subject property and immediately surrounding properties do not fall into one of the "parcel-specific" categories, and therefore, the plan designations are inherently ambiguous requiring reference to the Laurel Hill refinement plan to determine the correct designation for the entire subject property. The Laurel Hill refinement Plan designates the entire subject property Low Density Residential. As additional support, th.e 2007 annexation decision identifies the subject property as Low Density Residential. There is no conflict between the Metro Plan, Metro Plan Diagram and the Laurel Hill Plan because the analysis conforms to the Knutson methodology. Absent such a conflict, the refinement plan designation prevails, regardless of whether the Metro Plan Diagram appears to show at least part of the subject property to be designated Parks and Open Space. Staff's Position Staff specifically disagrees with the applicant's position. While staff agrees that the Metro Plan Diagram is not parcel specific with respect to the subject property, they concludethat the diagram shows the Parks and. Open Space designation straddling the UGB which the subject property abuts. Staff found two "physical referents" which, in their opinion, resolves any ambiguity about the . location of the Parks and Open Space designation on the subject property. One is the UGB and the Hearings Official Decision Z 12-2, PDT 12-2, TIA 12-6, 5DR 12-5 6• 14 PDF Page 26 App-12 other is 30`h Avenue. According to staff, the intersection of these two reference points resolves any question of whether at least some portion of the subject property is designated Parks and Open Space.1 As to the necessity for referring to the Laurel Hill Plan, staff concluded that the plan did not provide any more detailed information about the location of the Parks and Open Space designation on the subject property. Staff concluded that, "[a]t best, reliance on the older, non parcel specific refinement plan diagram as suggested by the applicant would create an inconsistency and therefore-conflict between the two diagrams. In that case, the Metro Plan diagram controls over the refinement plan designation in accordance with EC 9.8865(2)." Opposition's Position At the August 28, 2013 public hearing, opponents of these applications agreed with staff on the Parks and Open Space designation of the subject property. The opponents argued that without magnification of any kind the Metro Plan Diagram clearly shows that some portion of the subject property is designated Parks and Open Space adjacent to the UGB. In support of this argument the opponents submitted an August 28, 2013 letter from attorney Sean Malone. Mr. Malone generally agrees with. staff's position and made the following additional arguments: ® The methodology set forth in Knutson is only triggered when there is an ambiguity in the Metro Plan Diagram. The facts in Knutson are distinguishable because there were no clear referents between two Metro Plan designations. Here, physical referents exist on the Metro Plan Diagram which resolves any ambiguity which precludes a reference to the Laurel Hill Plan: The Laurel Hill Plan is inconsistent with the Metro Plan and Metro Plan. Diagram because it shows no Parks and Open Space designation for the subject property whereas the Metro Plan Diagram shows both Low Density Residential and Parks and Open Space designation* for the subject 'property. The Laurel Hill Plan conflicts with both the Metro. Plan Diagram and the Metro Plan text and policies that inform the Parks and Open Space designation - particularly for the South Hills ridgeline which runs through the subject property, Mr. Malone's overall conclusion is that the Metro Plan Diagram shows a Parks and Open Space 'At the August 28, 2013 hearing, and in the applicant's written comments, it was alleged that staff's conclusions about the location of the Parks and Open Space designation were based on a "blown up" or otherwise magnified view of the Metro Plan Diagram. The applicant assigned error to that approach stating that the Metro Plan Diagram is only valid at the "11 x 17" scale. While the Hearings Official agrees with the applicant that the "11 x 17" diagram is the only appropriate scale upon which to make Metro Plan designation decisions, the record is sufficient to show that is what staff did, and that review of other versions of the Metro Plan Diagram in the course of reviewing the application materials was supplemental to staffs consideration of the official "11 x 17" Metro Plan Diagram. Hearings Official Decision Z 12-2, PDT 12-2, TIA 12-6, SDR 12-5 15 PDF Page 27 App-13 designation on the subject property. The text of the iyletro Plan controlling the Parks and Open Space designation indicates that it is intended to apply along the South Hills ridgeline which is where the subject property is located. As such, he concludes, "[tjhe Applicant's proposed plan designation would not only frustrate Metro plan.policies for the South Hills ridgeline, but also nullify any POS designation." Analysis The fundamental question presented by the applicant's zone change request is whether the City Council intended to apply a Parks and Open Space designation to the subject property and adjacent lands in the adopted Metro Plan Diagram. If so, was it the City Council's intent to allow the Laurel Hill Plan to obviate that decision through a "refinement" of the Metro Plan. In determining the meaning of a statute, the method set forth in PGE v. BOLI, 317 Or 606 (1993) requires an examination of the text and context of the given provision. -The same analysis applies to the construction, of local ordinances. Ramirez v, Hawaii T & S Enterprises, Inc., 179 Or App 416, 425 (2002). The methodology has been modified slightly by the Oregon Supreme Court's ruling in State v. Gaines, 346 Or 160 (2009) which found that while the correct analysis still begins with the text and context of the given provision, legislative history can also be relied upon even where the text itself does not on its face appear to be ambiguous. The goal of this analysis is to ascertain and apply.the City Council's intent regarding the code provisions or planning documents in question. What the Metro Plan Diagram Shows The Hearings Official agrees with staff and the opponents that the Metro Plan Diagram shows that a portion of the subject property along its southern boundary adjacent to the_.UGB is designated Parks and Open Space. I have reviewed the 2004 diagram at the ""11 x 17" scale and have no trouble determining, without magnification, that the diagram designates some portion of the subject property north of the UGB and to the east of E.3 01h Avenue as Parks and Open Space. I agree with both staff and Mr. Malone that the UGB and 30th Avenue are sufficient reference points upon which to locate the subject property and determine, simply by looking at the map, that the Parks and Open Space designation has been applied to this area. What the Metro Plan Text Shows As described above, the.applicant argues that all areas of the Metro Plan Diagram that are not "parcel specific" should be considered inherently ambiguous and require immediate reference to the associated refinement plan. While referring to the refinement plans may be necessary in many circumstances, rushing prematurely to review the refinement plans skips an important step in determining the City Council's intent with regard to the Metro Plan Diagram. Although the Hearings Official concludes that the Metro Plan Diagram is not ambiguous on the issue of whether the subject property is partially designated Parks and Open Space, if there were an ambiguity, reference to the Metro Plan text would be the next step in determining legislative Hearings Official Decision Z 12-2, PDT 12-2, TIA 12-6, SDR 12-5 16 P®F Page 28 App-14 intent, As the Hearings Official noted in the Benson (Z 13-2) decision, the City Council's 2004 amendments to the Metro Plan left unaltered the preeminence of the Metro Plan text over the Metro Plan Diagram "In addition, it is important to recognize that the written text of the Metro Plan takes _precedence over the JWetro Plan Diagrrnn where apparent conflicts and inconsistencies exist. The iWetro Plan Dia am is a generalized map which is intended to graphically reflect the broad goals, objectives, and policies. As such, it cannot be used independently from or take precedence over the written portion of theiVetro Plan. Ordinance no, 20319 p: 1-5. Even though the Metro Plan Diagram is a "generalized map" that is "drawn at a metropolitan scale," if there are questions about whether the City Council intended to impose a particular plan designation in a particular place reference to the Metro Plan text is required. Metro Plan Section II G explains the "Land Use Designations" shown on the diagram reflect specific intent as to where those designations are intended to'occur. The subsection on the Parks and Open Space designation states: This designation includes existing publicly owned metropolitan and regional scale Parks and publicly and privately owned golf courses and cemeteries in recognition of their role as visual open space. This designation also includes other privately owned lands in response to Metro Plan policies, such as the South Hills ridgeline, the Amazon corridor, the Q Street, ditch, and buffers separating sand and gravel designations from residential lands," The identification of the South Hills ridgeline as being privately owned lands that fall within the POS plan designation is a significant indication that the City Council intentionally*adopted the Parks and Open Space designation in that area of the city. Therefore, the Hearings Official concludes that the Metro Plan text and the Metro Plan Diagram are consistent and strongly indicate an intention to impose the Parks and Open Space land use designation on th*e subject property. If there were any ambiguity in the Metro Plan Diagram it is resolved by reference to the associated Metro Plan text. Application of the Laurel Hill Plan What the above analysis demonstrates is that with respect to the Parks and Open space designation of some portion of the subject property, the Metro Plan Diagram is unambiguous. Part of the subject property is designated Parks and Open Space, and part of the subject property is designated Low Density Residential. What the Metro Plan Diagram does not show with precision is the proportion of each designation and a clear delineation between the two for the subject property. According to both the Metro Plan and the Knutson methodology, assuming for the moment that it Hearings Official Decision Z 12-2, PDT 12-2, TIA 12-6, SDR 12-5 17 PDF Page 29 App-15 is still good law, it is appropriate to seek additional information in the Laurel Hill Plan for clarification or "refinement" of the proportion and delineation of the Parks and Open Space designation. This approach seems consistent with the direction given in the Metro.Plan: The Metro Plan is the basic guiding land-use policy document, but is not the only such document. As indicated in the purpose section, above, the Metro Plan is a framework plan, and it is import that it be supplemented by more detailed refinement plans, programs, and policies. Section 1-5. "Land use designations shown in the Metro Plan Diagram are depicted at a metropolitan.scale. Used with the text and local plans and policies they provide direction for decisions pertaining to appropriate reuse * * As all parties note, the Laurel Hill Plan contains a land use diagram. The diagram shows three land use designations: low density residential, medium density residential, and commercial. There is no Parks and Open Space designation on the Laurel Hill land use diagram. As such, the Laurel'Hill Plan is uninformative, and there is no additional information by which the Metro Plan Diagram can be refined. - Here, the Hearings Official agrees with staff and Mr. Malone, that if the applicant's position were accepted, the fact that the Laurel Hill land use diagram shows -the subject property to be low density residential represents a contradiction of, or conflict with, the Metro Plan text and Metro Plan Diagram. It represents a conflict because the refinement coming from the Laurel Hill plan would completely eliminate the Parks and Open Space designation for part of the subject property that the text and mapping of the Metro Plan strongly suggest-that the City Council intended to implement. Staff and the opponents are correct that in cases of a conflict between a refinement plan and the Metro Plan, the Metro Plan prevails. The Metro Plan text is clear on this point. Refinements to the Metro Plan can include * * * (c) neighborhood plans or special area studies that address those issues that are unique to a specific geographical area. In all cases, the Metro Plan is the guiding document, and refinement plans and policies must be consistent with the Metro Plan, Should inconsistencies occur, the Metro Plan is the prevailing policy document. 1=6. Instead of relying on the Metro Plan direction for resolving such conflicts, the applicant wishes to substitute the holding in Knutson to resolve an implied ambiguity in the Metro Plan Diagram. On this issue, the Hearings Official finds that the applicant's contrary theory and application of Knutson is unpersuasive for at least three reasons. First, while the 2004 amendments to the Metro Plan did add provisions regarding parcel specific mapping in the Metro Plan Diagram, those amendments did not state that in all other instances reference to a refinement plan would automatically be required to establish.the correct plan designation for specific properties. There is no such language in Section II G. Hearings Official Decision Z 12-2, PDT 12-2, TIA.12-6, SDR 12-5 10. 18 PDF Page 30 App-16 Instead, in 2004 the City Council adopted the following language on this issue: There is a need for continued evaluation and evolution to a parcel specific diagram. The Metro Plan designation descriptions below, Metro Plan policies, adopted buildable lands inventory analyses, refinement plans, and local codes provide guidance to-local jurisdictions in determining the appropriate plan designation of parcels that border more than one plan designation within the metropolitan UGB. II G-2. This section, and related sections, could have stated that non-parcel specific portions of the Metro Plan Diagram require automatic reference to refinement plans. Such language is absent, and reading that language into the Metro Plan by negative implication violates ORS 174.010 by adding words or concepts to'a provision that have been omitted. Second, since the decision in Knutson, the jurisdictions participating in the Metro Plan have sought to make the diagram more accurate and more useful to understanding the expressed land use designations.2 A simple visual comparison between the adopted 1987 and 2004 Metro Plan Diagrams shows thatthat the 2004 diagram is a significant improvement in resolution and specificity. More specificity was added to the diagram in the area of the subject property, clearly indicating the Parks and Open Space designation. In addition, new text was added to the Metro Plan to explain that Regional Land Information Database information was used to improve the diagram. The original Metro Plan Diagram adopted in the 1982 Metro Plan and subsequently amended was not tax-lot specific * * * The use of the Regional Land Information Database (RLID) data for long-range planning studies led to the decision to base the Metro Plan Diagram on RLID data, as described below. The use of RLID information as the basis for the 2004 Metro Plan Diagram will certainly not clarify all questions with regard to zone changes, and ambiguities are still'likely to emerge. However, these changes, which are post-Knutson improvements, are evidence that the Metro Plan Diagram is more reliable and accurate in depicting land designations than those at issue in' Knutson. Understanding the use of the RLID irrthe 2004 diagram is a strong indication that the Parks and Open Space designation was intended to be placed on the subject property and is not an artifact: from the prior "blob map" diagrams. Third, the applicant's argument that Knutson demands an automatic reference to the Laurel Hill Plan is based on an incorrect premise. That premise is that the question at issue for this zone change is: "which one of two land use designations applies to the subject property?" That was the question in Knutson where the dispute was whetherthe diagram showed the subject property as z Remember that Knutson Family LLCv. City of Eugene, 48 Or LUBA 399 (2005), was decided based on the rules and regulations in place in 2003 when that application was deemed complete. LUBA and the Court of Appeals ruled on the 1987 version of the Metro Plan Diagram. The case does not, and cannot, completely circumscribe how the 2004 amendments to the Metro Plan are to be applied in the future. Hearings Official Decision Z 12-2, PDT 12-2, TIA 12-6, SDR 12-5 11 19 PDF Page 31 App-17 Commercial or Medium Density Residential.' That is not the question presented by this zone change request. The question here is: "whether two land use designations apply to the subject property?" Knutson does not answer that question. Here, the dispute is whether the 2004 Metro Plan Diagram depicts Low Density Residential and Parks and Open Space on the subject property. Based on the discussion above, the answer to the correct question is "yes." The Hearings Official has not been directed to any part of the Metro Plan or the Metro Plan Diagram which demands that, in all.cases, properties must fall into only one land use designation. While that might make sense in fact situations like those at issue in Knutson, it does not make sense in the application of the Parks and Open Space designation, because that designation can be applied to protect natural features, like the South Hills ridgeline, which do not follow property line boundaries. Particularly in the case of the Parks and Open Space designation, it is reasonable to expect that the Metro Plan Diagram would depict both a traditional use designation such as residential, commercial or industrial and the Parks and Open Space designation following'a natural feature-on the same property, without regard to property boundary lines. For this reason, the Hearings Official disagrees with the applicant's assertion that except for those instances where the Metro Plan Diagram is parcel specific, every determination of land use designation is a zero sum game exercise which requires automatic reference to the associated refinement plan. 2007 UGB Amendment The applicant has also submitted the 2007 Boundary Commission decision which added the subject property to the regional UGB. The applicant's purpose in doing so seems to.be to provide extrinsic evidence that the subject property is designated only as Low Density Residential. The Boundary Commission findings do identify the Metro Plan designation for the property as LDR. It also appears that the subject property's boundary lines were changed slightly prior to the UGB amendment, and that the amendment itself was intended to set the property line along the ridgeline. The Hearings Official has reviewed the Boundary Commission decision, findings and staff report submitted by the applicant. After doing so, the Hearings Official concludes that the proffered information does not add much relevant information. The Boundary Commission did not purport to, nor did it have authority to, affect the land use designations that the Metro Plan and Metro Plan Diagram applyto the subject property.. For UGB purposes it makes sense that the property is characterized as residential land, which would satisfy the requirement to show.that it is needed to address housing needs inside the UGB. Without a doubt, the subject property is predominantly designated Low Density Residential. However, the Boundary Commission's findings are no more than an observation and cannot be considered binding on any future consideration about land use designations shown on the. Metro Plan Diagram. 3 Both the WillakenAe Land Use Diagram and the Sheldon Subarea.map showed both the Commercial and Medium Density Residential land use designations adjacent to each other with respect to the Knutson Family, LLC properties. Hearings.Official Decision Z 1-2-2, PDT 12-2, TIA 12-6, SDR 12.5 12 20 PDF Page 32 App-18 Tfie' pf}Itrarjt's ntfier.ptirppse in sv.b:miL ing he B.ou.nd r7 C rite ssivtf ecisian: appears.tc.be to show.thatthe Pv erro Plan Diagram depfctiort of the UGB'as it rela.ti~to the ubject property is inherently unclear. This fu7_ine55, the applicant argues, reC res a lookwt~ie:ref'inerneh p]an h r uSe ti{7e UGB deri.si n sets she actual to atiait bl the OG.6 666 dart'' `t ' migl,s irip ctt:11 land use c(esigiiati-for the >nL# eet prp}izrt~c 1 he applicant also ~e'rns to argue that the 2!OO7 -UGO 00s1 ~6 Kull fiPV2 had the pffectcf eleanirio u.p ells ilet)rf?afitaii ba.tvre erl.tt~o Lnv~. DanstY kasfdentf3j and Parks and OpLa Space f..the-implication being that tKi Parks a)-icf Cipeh Space d si nat'iori afl°t tl-ie UGB arrrwn:drrmentvva ;mend d to eiq on] .i o~ts)de;Eh? IICG6, The° I-iearlrigs Official does.nr~tr7rfIese, arudl;entsrrsu:Sive= All Ohre `l2Ysign5 of t}ie.iVletro P]ari Olag.rd Vnduded )n the:rei orrl, fig 1dOk 1987 and 2004dia~iatns. S1 *{a' Pack :a:lien Su e d= r~atron opt th suhj.Q.-t tiropertyv: liq rio.tlh olf LtG81.. Tjit _r -d jciGlUrlbtl jttt ?t]~7 B~ii.ida"ry corr~rr5i~~ibn, ~h~i~i t}iat'tl~~ lipttnr}ary of the s111 Jet= pro~Er#~~ +>3a~ hOt.-:~ranl~)c~htl;l tt re aS, j3afii Ci to r~. L)~S ,bout~daty d i~a. The: tiearing~i- Ohr'Idai ca:n d np-ev)denc&that the Parks ariz3 Jpan ~ ac de rgr#~ti`z~n iu~s: r~ten!1 ~1 tr} I coterminol%s with t?ie UO8 °r ihE!'botfriclary. litj oft}i .sufi1ect i bRPityt,: I"n:f-c what-.N.- i the.fvlb#ro I?tairt t~rt~1 fie.fVi to i?f~ti:b)a rani trot a that tl#¢ Parks rrzl O Xt pa e igri tt~n ova interide to Pt titecf. t1~ 6t HII rrtlfine Tdaml)s[ tlaa fljctrir, it rs rasrrab4.~ tzp~Itlh tinnrQr'P fall -h sides df th rrd 164' Db M,_tr It' tti l~ifd5 5o- of`E}i_ I, 9 btau hdV'/. t3 e:~lsj tin acrr theu:ilabEi e;tierr at#l«dtnfir~flg,.1i+4a:rrr~iffil t?~I; applicants retfties fct as to th rig r rtt to P«llcvr iensjt5 F rdPt f)dl arlt#i§=` q`r lf~ ai t" : t ~sgns;.t Hei riiibp c* i 1 D rRlr.S thg Oyij aced PUgtor )IUre icy corrjpfy, Vvi i 83~t~f;1j; and tbi. assoc ated TIC arac! tali fairfs R v~$~r appCic flr ; pate_:ttl?tr;,~ tif.Staraier.zC~,: N-1afleci"tFiis . cta cif rr te>pb_ r 0 :3 Men >"tk ' N 1 . Hkaflug-5 Odal 5 : IOTi (ARI JG 6P 1 IA D LI 10" f FOR 5TA-T~T~I}U'_-r:L' t'I_'PE-* , -9 MTS F t, FlearIngs = 661 pecr~rop Z U Z„ PDT 12-2`11A 12-6; SDR 12-5 - 13 21 PDF Page 33 .i= September d; 2013 Eugene He arings.OFicial cID: City of EUgege Pldnning:and Development De,partme' nt Planning Divis oh 99 truest 1Q"'AvnUE gzpe; OR 9740.4 R': LaU'MRldi p- PUD File N.t*m6'rPRT 1:2=2- l'IA 12 G, SDf~ 12-5 a.nd_ 12,2 rlppllcarit`s FinalArgu~en, Dear Eugene Headngs Official" P,ttached is the Applicant's Final ArO6rtt; As. you review'this-niater-W we ertcouraga you ta.~iosely study the:entire appl cant pa!ckarge.. In order,.all of the moterfals subniitfed to. the: City ara in three ca#?o4ries' 9. 'fhaappticant's faii'r~ipplicati n,s:ubrnltlal5 -~-Plann:ed taniC l~ plepmErnt Tentative. Stagt (PDT 1 Z.2); TTafflc Impact Analysls (T IA 1276); Standardp, Rovlbw {SOR 12Y5), a;d Zona Dtiarige ('12 2): theiudfng iririttonldteinnts; ehlbif$,. attachments and plan$e.t'and dated ;ftifd2~F, X0:13. 68 ' dn *S iirittal, tHatp tic ge 6f mdteria(dated AugU U8,:2.0t3~ bi t submlt;?ed on A.ugus 23, 2d13, just after ~eeRiuing` ttQtaTfi repoft, 3. Ttie ppii an#'s Flea ing submit#al, that:,package of materaf dated .and submitted ak the [i~'rlrig: orc August 28, 2i11:~;. . we acl nawledge that jbia is a lot Qf hiai6 [A As tltitad at ilie :hearing, you are startlrig_ttifs r~vielsi. task without a:pusitive Staff Report, which ritherrvhta would. have been -4 great Fesourcg in ratting ail apjiioval ' ducisibn Hence; W Iiavq drafted this final a'rgume'nt in'tlie fashfon .a ,af Staff Report- If you are inclined. I apProvetl i5, e,~i rythir you Hoed is iri th Final A;rgumert;'or to#erer is d to fhe record tlleceiri: Typf€ally, even if the-sfaff repgmrnend.denial ofan applica{ion, th ydraft ~.ondifibris.ef ~pp~ovaI fhi, ase ttia NO wants. to approve Tlia1 did not happar! hsre. 7hrfa ;wa hava.lncluiid, typical, recommended conditions of`approval, pulled ivheta ~bssibla 666 a#ner PUD approval in the record, if you lid tha sC 0' 4e.wet6st d; wa w661d uialcorr,a tha.aApo*ri ty to i/bfk°vrith staff to ftrna up -`an agreed sol of conditlons, ~''ur.taam hes..p$tisrice doing tht_ittth pas# vyitlfh crty ;1 .:yuu sfu y'thts mater ai, yea t,tight pe'qih.VA1 is the applicatlons their vas,. ir1, pat i Ular t}ta P applicaUOn: lts Wrritdn tategnEnt is the most thorough and served as a. iaitnchh)g. &Ibt.foftha'.olh." t t#ir e ppli tions and ttialr yvrlt#en staterileiits. The vrfdtten statdrnents provide a autistanfiial:arnauni of Mai0a..1 fn partio.olar•whet the applicant refers tows fin&ho 1 support-oE llie pplicatlorr 7hase findings are_e trerriely detail du Fbr exarnple,.:W< Qi° Ztaff:rafers tq.the: PUD purpvoe statement and.ciies. congerris rgardirig, or ins#at1 00, t_ree.pfeservatton O'd vlows.. you wail( find detail d'aVittan> e.tti f tha: proposal do'QS ibdied:M-e et applka64 c,tt&ia (See PUD - kitten atatemerit, pdg-__ 9_ 3) t~itizra: iri iiigs are.prosen( d:i nafratly format in t)ta written stafeti ecit; addiUohat eViderii cati`b'efound lh tha eXtittitts atfaGhniaht5 a 1 .pEaps. in* particular, the plans cantaln & tail"s and spec' icaifons furfher dbcrimeriting a4t¢ai ge iii c t pllanc v~lth applicable: crateria acid starid'a. uppCartientirig the.applica#bris, ya~i'It riecf frtci the ProFleafg S~+bmitfal to be cUifa. helpfuL Eaily on in #heirreview pbnesis} staff shared a.list of it]~iat coricorns that they had !rilth 1h litopasail. (Pte-Hei ring Submittal,. ErhMt.0=0): ln° response, the aj3pllcanf PDF Page 34 LaurelRidge PUD (File Number PDT 12-2, Z 12-2, SDR 12-5 and TIA 12-6 Page 2 of 2 Applicant's Final Argument- Cover Letter Septbmber 4 2013 conducted additional research and submitted clarifying material. There; the applicant provides evidence of compliance with the Metro Plan and South Hills Study, along with additional material regarding tree preservation, building height, secondary access, conservation areas, street connectivity and block length. In responding to the staff report, you'll next find that the applicant's Hearing Submittal provides additional evidence of compliance with these referenced staff concerns as well as other staff issues presented in the staff report. Lastly, the Final Argument herein, using evidence in the record, summarizes the applicant's demonstration of compliance, including, where appropriate, suggested conditions of approval. With this, we believe that the Hearings Official can approve the four LaurelRidge applications. In advance, we thank you for your consideration of our applications. Sincerely, %R Cchcwc M . S at-el Richard M. Satre, AICP, ASLA, CSI Principal, Schirmer Satre Group 83 PDF Page 35 1. INTRODUCTION Site Characteristics and Present Request: The following it taken directly from the Staff Report (at Page 13): (We include in [ ] correction in errors in what we quote from the Staff Report.) The subject property consists of approximately.121 acres in two tax lots which- are considered one development site under the current ownership. The area is forested with a mixture of coniferous and hardwood forest and is included on the City's adopted Goal 5 Scenic Areas Map (1978). The property also contains several upland streams inventoried as Goal 5 resources on the [west] and ]northeastern] portions of the property, as well as streams and wetlands along the north property line that are not listed as protected Goal 5 resources. The site is located on a generally north and northwest [to west]-facing hillside sloping down from the ridgeline, which runs in the approximate location of the south property line. The Urban Growth Boundary (UGB) also runs along the south property line to its most southerly tip, where It crosses 30th Avenue_ To the north of the property is a combination of developed and planned but not yet developed residential properties. The property also adjoins Moon Mountain Park near its northeast corner. To the west, is a strip of City-owned land-which inc)udes.the Ribbon Trail. Further to the west are additional residences, the obsidians Lodge and Laurelwood Golf Course. To the east is undeveloped land outside of the City's UGB. The site is located between 560' and 950' in elevation, with slopes that range from 5% to over 50% as noted by the applicant. Current and proposed future access to the site is from a frontage road currently under Lane County jurisdiction and located outside City limits (but within the UGB) which accesses 30th Avenue at Spring Boulevard. Landslides occurred along 30th Avenue in the 1990's in the area of the frontage road [(but not on the LaurelRidge property)]. In order to repair the landslides Lane County asked for additional right of way from the property owner at the.time, and in exchange granted access to the north end of Spring Boulevard at the 30th Avenue intersection [(Exhibit E of the Applicant's application)]. For a fuller discussion of the Site Characteristics, see the Applicant's narrative, PUD Written Statement Part I.B., page 1-2, and Part II.A. Page 5. Summary of Land Use Applications: There are four concurrent land use applications. These are summarized in the Staff Report as (at Page 13): LaurelRidge Applicant Final Argument- Page 1 84 PDF Page 36 The applicant's proposal includes four (4) concurrent land use applications which are summarized below. For clarity, staff notes that the following evaluation of the applicant's tentative PUD, Traffic Impact Analysis and Standards Review is based on the applicant's proposed R-1/WR zoning. Staff's evaluation of the applicant's proposed Zone Change (Z 12-2) is included in a separate staff report, but that application is included as part of the concurrent request. The following evaluation is also based on the most recent application materials, as revised and re-submitted on June 31, 2013. Tentative PUD PUD approval is required for the proposed development based on applicability provisions at EC 9.8305(1) and (3). In addition to South Hills Study requirements, the proposal for multi-family residential and neighborhood commercial uses is also subject to PUD approval in the R-1 zone, according to EC Table 9.2740. The initial request submitted by the applicant included a total of 608 units, consisting of 408 multi-family units and 204 [200] single family lots. The application has since been revised to the version that is currently under . review, which is proposed as a nine (9) phase development consisting of 533 multi-family units, 75 single family lots, public and private streets, conservation areas and public open space, and area of neighborhood commercial uses. The proposed multi-family units are generally located on the western portion of the site, and consist.of a mixture of townhomes and apartments as shown on the applicant's site plans. The proposed neighborhood commercial area is located in the southwest portion of the site, but little information is provided in the application materials other than the site plan which depicts a building and parking area. It is unclear what if any specific commercial uses are proposed'. The single-family lots are generally located on the north and eastern portion of the site and include large lots sizes with impact areas on each lot shown as a circle. A large area of open space is proposed along the western boundary of the site, adjacent to the Ribbon Trail property, and along the south boundary, where a public trail access along the ridgeline is proposed. The proposal would connect the City's ridgeline trail system between the Ribbon Trail and Moon Mountain Park. As shown on the applicant's site plans, primary access to the site is proposed from a newly constructed street ("Frontage Road") extended to 30th Avenue via Spring Boulevard. "A" Street and "B" Street are the two public streets proposed to serve the development. "A" Street is proposed as a local residential street that will connect through the site from the Frontage Road to Brackenfern Road and Rockrose Lane, which are planned as part of the East Ridge Village PUD to the north, but have not yet been dedicated or constructed. "B" Street is another local residential street that extends east from "A" Street to serve lots on the 1 The proposal is for Neighborhood Commercial, thus any permitted use in the C-1 zone (subject to use limitations and standards, of course). LaurelRidge Applicant Final Argument- Page 2 85 P®F Page 37 eastern-most portion of the site. Two private streets extend from "A" Street to: serve the majority of proposed multi-family units, and include head-in parking along much of their length Z. Another private street continues to the east of the multi-family area, to serve the proposed single-family lots. The applicant requests several adjustments, exceptions, or modifications ("proposed non-compliance") under applicable development standards, as part of the tentative PUD. * * * * Traffic Impact Analysis A Traffic Impact Analysis (TIA) Review is required for any development that will generate over 100 peak hour vehicle trips. (See EC 9.8670 for TIA applicability requirements.) In this case, the applicant's proposed development would generate more than 100 peak hour trips and therefore includes a concurrent TIA application (TIA 12-6) which is subject to approval criteria.at EC 9.8680. The applicant proposes mitigation as a result of the TIA, including intersection improvements at East 30th Avenue and Hilyard Street, a significant distance to the west of the subject site. As addressed in the following evaluation, additional analysis and mitigation appears necessary to accommodate increased traffic impacts resulting from the development at the East 30th/Hilyard intersection, and the I-S/McVay Highway interchange to the east. Standards Review -A limited range of development, including the construction of streets and private access, can be permitted within protected Goal S stream corridors under the Water Resources Conservation (/WR) overlay zone requirements beginning at EC*9.4900. In this case, the proposal requires Standards Review approval, which addresses various setbacks, permitted uses, and related development standards of the /WR overlay zone. The applicant proposes several street crossings and other impacts to the Goal 5 protected streams which are therefore addressed in the applicant's concurrent Standards Review application (SDR 12-5), as well as other relevant tentative PUD criteria. Zone Change -The applicant's proposal is dependent upon approval of a concurrent Zone Change request (Z 12-2).. As addressed in the separate staff report for that request, the applicant proposes to change the zoning from AG .(Agricultural) to, R-1 (Low-Density Residential). The proposal includes retention of the 'existing /WR overlay zoning, but does not include application of the Planned Unit Development (/PD) overlay zone. Without approval of the requested zone change to R-1, residential uses, other than one single-family dwelling per existing lot, are not allowed under the existing AG zoning. * * * * 2 There is a drafting error on some of the plan sheets that label the multi-family driveways (drive aisles) as private roads. These are not "private streets" but are driveways (drive aisles) serving the multi-family development. LaurelRidge Applicant Final Argument - Page 3 86 PDF Page 38 Because the development proposal hinges on the zone change; that application is addressed first below. Application History/Procedural Summary: The Staff Report provides the following summary (beginning at Page 15): Pre-Application Conference and Neighborhood /Applicant Meetin The applicant held a required Pre-Application Conference (PC 12-12) with City staff on March 9th 2012. See EC 9.7005. The applicant also held a Neighborhood/Applicant Meeting as required by EC 9.7007. The applicant's development proposal which was the-subject of these initial meetings included 408 multi-family units and 200 single family lots. Based on completeness review comments from City staff, the applicant revised the application and re-submitted on July 31, 2012 (the revised submittal at that time still included 408 multi-family units and 200 single family lots). Subsequently, the applicant revised the application again to include 538 multi-family units and 70 single family lots, and held another neighborhood applicant meeting on January 31, 2013. After some additional revisions, the applicant submitted the most recent application materials on June 31, 2013. The current plan, subject to evaluation below, includes a total of 533 multi-family units and 75 lots. Completeness Review, Referrals and Public Hearing Notice The concurrent land use applications for Laurel Ridge PUD were deemed complete on November 9, 2012, at the applicant's request under the statutory allowance for doing so under ORS 227.178. The applicant also provided a series of time extensions under the state's mandated 120-day time limit for a final local decision (the "120-day rule"), in order to provide a variety of revisions to the concurrent applications included in this request and to attempt to provide some of the missing information identified by the City as part of completeness review. The applicant has extended the 120-day limit a total of 220 days (a maximum of 245 days may be granted) making October 15, 2013 the 120th day under the rule. Between March 2012 and June 2013 the Applicant submitted, and reviewed with city staff, six different site plans. These were submitted as a Hearing Exhibit (Exhibit 10) as a package. The First Plan (March 2012) showed 587 units, including 348 multi-family and 239 single family, with 39.1% open space. The Second Plan (May 2012) showed 608 units, including 408 multi-family and 200 single family, with 52.8% open space. This was discussed with staff in June 2012. The second plan differed from the first in that street locations were modified to lessen cut LaurelRidge Applicant Final Argument - Page 4 87 PDF Page 39 and fill requirements and single family homesites were reduced to increase clustering and provide more open space. . The Third Plan (July 2012) showed the same unit count and breakout as above, but it has 44.5% in open space. This was discussed with staff in August and September of 2012. The third plan differed from the second plan in that, in response to city comments, street connectivity was increased at public works request, multi-family driveway connectivity was increased at the fire marshal's request and single-family lot sizes were increased at the suggestion of planning staff (in the opinion that larger lot sites would allow for greater tree preservation). The Fourth Plan (September 2012) showed all multi-family development- 608 units, clustered at the west end of the site. This plan was generated and reviewed with staff during one of the staff/applicant completeness review meetings following submittal of the Third Plan. It was in response to a `what if comment regarding maximizing clustering and open space. This plan was never formally submitted as a proposal from the applicant. The Fifth Plan (January 2013) showed 608 units, including 538 multi-family and 70 single-family, with 58.5% open space. It was presented at the applicant's second neighborhood meeting. It differs from the Third Plan in a number of ways, primarily including fewer streets to lessen cut and fill impacts, fewer east-west streets, no need for more than one street connection to the south, no need to dedicate right-of-way clear to the south or east property lines, additional connections to and through the multi-family clusters, and fewer and larger single-family lots to maximize tree preservation and increase open space. The Sixth Plan (June 2013), now before the Hearing Official, shows 608 units, including 533 multi-family and 75 large lot single family, with 63.2% open spaceAt differs from the Fifth Plan in response to neighborhood concerns regarding proximity of multi-family units to existing residential developments. Two multi-family clusters were removed - the northernmost cluster adjacent to Hendrick's Hill PUD and the westernmost cluster adjacent to the City's Ribbon Trail Park near residential development to the west. The Four applications were submitted concurrently at staff's request. Ostensibly this path would give staff greater clarity and surety about what was being proposed in order to better evaluate the Zone Change request which would have been the first application submitted if they were not submitted concurrently. The Applicant,'in its Monday morning quarterbacking, believes that bundling the applications at staffs request was a mistake. The staff took a legally incorrect position on the plan designation, which spoiled their taste for the zone change, likely dampened their interest in the site plan, and resulted in an overly harsh review. Compared to other PUDs, staff has not taken the time to get familiar with the record, and has not even drafted conditions of approval in the event the HO wants to approve this project. This situation may have led to the HO's comment at the hearing that he is missing a positive Staff Report if he LaureiRidge Applicant Final Argument - Page 5 88 PDF Page 40 wants to approve the applications. The Applicant's team understands the importance of a positive Staff Report to make the HO's task manageable. Hence, we have crafted this Final Argument to include what would be in a positive Staff Report, and to include detailed references to the record. LaurelRidge Applicant Final Argument - Page 6 8 9* PDF Page 41 11. EVALUATION OF ZONE CHANGE REQUEST The Eugene code, EC 9.7330 and 9.8865 requires the Hearing Official to review an application for a zone change.and consider pertinent evidence and testimony as to whether the proposed change is consistent with the criteria required for approval. The applicant's final narrative in support of the zone change is 31'pages and dated June 24, 2013. The zone change standards are addressed beginning at page 14. There is a nine page Staff Report recommending denial. This is the threshold standard for all four related applications. R-1 zoning is requested for the entire property. This requires a finding that all of the property has a Low Density Residential (LDR) Metro Plan designation. If a portion of the property is plan designated something else, then the zone change application must be denied, and the applications for development approval, which are premised on R-1 zoning, must also be denied. The applicant and the staff disagree about what the Metro Plan designation is. 9.886S(1): The proposed change is consistent with applicable provisions of the Metro Plan. The written text of the Metro Plan shall take precedence. over the Metro Plan diagram where apparent conflicts or inconsistencies exist. Consistency with the Metro Plan Diagram and Text are addressed separately below, Metro Plan Diagram consistency. For the reasons discussed below, the Metro Plan Diagram is not parcel-specific at this location; the refinement plan makes it more specific and designates the entire site LDR. The plan designation is LDR. In terms of legal issues, the Metro Plan designation -the rules for deciphering it and the final answer - was the major legal bone of contention between the applicant and the Staff. The Applicant briefed this issue for Staff in October 2012. The Applicant addressed this issue in some detail in its Pre-hearing Exhibit 1 (Memo from Schirmer Satre) and its supporting Exhibit 1-1 (Lttr discussion of the law from Bill Moos), How to determine the Metro Plan designation was the subject of another recent zone change decision. See Hearing Official Decision (Benson) Z 13-2 (May 30, 2013), included in the record as applicant Prehearing Exhibit 1-1.4. In Benson the Metro Plan Diagram was parcel-specific for the property, based on 2004 amendments to the plan text. In this situation, the applicant and the Staff agree that the Metro Plan Diagram is not parcel-specific. Staff Report at 4 para 1, 5 para 6. The Benson decision discusses the nature of the Metro Plan and amendments to it. That discussion is worth supplementing here as background. The Preface to the Metro Plan explains Laurel Ridge Applicant Final Argument - Page 7 90' PDF Page 42 that it was adopted in 1980 and acknowledged in 1982 for the area inside the UGB and in 1985 for the balance of the Metro Area. The Metro Plan. the Diagram has been readopted periodically. The applicant submitted at the hearing a copy of the three Metro Plan Diagrams - 1980, 1987, and 2004, as well as the current online version (2013, which has not been separately adopted). The Metro Plan remains a framework plan. That is, it is supplemented by various area plans and functional plans. "[T]he Metro Plan is a framework plan, and it is important that it be supplemented by more detailed refinement plans, programs and policies." * * * "Refinements to the Metro Plan can include: * * (c) neighborhood plans or special area studies that address issues that are unique to a specific geographical area. In all cases the Metro Plan is the guiding document, and refinement plans and policies must be consistent with the Metro Plan. Should inconsistencies occur, the Metro Plan is the prevailing policy document." Metro Plan at 1-5. The nature .of the Metro Plan as a framework plan has been discussed in several cases. See, for example, Carlson v. City of Eugene, 3 Or LUBA 175 (1981); Stotter v. City of Eugene, 18 Or LUBA 135, 146-47 (1989); Graville Properties, Ltd. v. City of Eugene, 27 Or LUBA 583, 585 (1994); laquo v. City of Springfield, 46 Or LUBA 134, 144-45 (2004), reversed in port 193 Or App 573, 91 P3d 817 (2004); Knutson Family LLC v. City of Eugene, 48 Or LUBA 399, oyd 200 Or App 292, 114 P3d 1150 (2005). (For a more detailed discussion of these cases, see the 2005 Knutson petition to LUBA in LUBA No. 2004-100 at 9-15, which was submitted by the applicant as Hearing Exhibit 1.) The cases listed above reflect the status of the Metro Plan prior to 2004 amendments to the text and Diagram, which was accomplished by Ord. No. 20319. The 2004 amendments were. part of the periodic review process, and are commonly referred to the "Housekeeping Amendments." As explained in the Benson decision at 8: "By Ordinance No. 20319, the City Council adopted a new Metro Plan Diagram, replacing the prior version in its entirety, and provided additional guidance on . the question of when and where the Metro Plan Diagram should be considered parcel specific." [Footnote 2 omitted] New text added to the Metro Plan in 2004 explained in what circumstances the Metro Plan Diagram is parcel-specific after the Housekeeping Amendments. The language appears on page ]I-.G-2: "The Plan designation of parcels in the Metro Plan Diagram is-parcel-specific in the following cases: Laurel Ridge Applicant Final Argument - Page 8 91 P®F Page 43 1. Parcels shown on the Metro Plan Diagram with a clearly identified Plan designation, i.e., parcels that do not border more than one Plan designation; 2. Lands outside the UGB within the Metro Plan boundary; 3. Parcels with parcel-specific designations adopted through the citizen- initiated Plan amendment process; 4. Parcels shown on a parcel-specific refinement plan map that has been adopted as an amendment to the Metro Plan Diagram." ' In Benson the conclusion was that the Metro Plan Diagram was parcel specific for the subject property. See Benson at page 10 para 4. Here the applicant and the staff agree that the Metro Plan Diagram is not parcel specific under any of the four rules above. Agreement between the city and the applicant, or even among all the parties, is not enough to resolve the plan designation question. The plan designation of any piece of land is a question of law, not something to be reached by-consensus or determined as a matter of policy. Knutson, 200 Or App 292, 300 nS. Therefore, a fuller explanation is necessary under the established rules for interpreting the Metro Plan. The following facts are relevant and material to determining the Metro Plan designation: All-three Metro Plan Diagrams (1980, 1987, and 2004) added to the record by the applicant at the hearing show the vicinity of the subject property highlighted. Comparing the three diagrams shows: Each of the three adopted Diagrams shows the UGB at the location of the subject property at a slightly different location. Each of the three adopted Diagrams shows a little bit of the Parks and Open Space designation-on the city side of the UGB line. The amount of Parks and Open Space crossing the line to the city side of the UGB and the location along the UGB line changes from diagram to diagram. The location of the UGB line in this area is not accurately shown on any of the three Diagrams. The Metro Plan text explains that the exact location of the UGB here is not determined until annexation. "The UGB is tax lot-specific where it is coterminous with city limits, where it has been determined-through the annexation process, and where it falls on the outside edge of existing or planned rights-of-way. In other places, the UGB is determined on a case-by-case basis through interpretation of the Metro Plan Plan Boundaries Map in this Metro Plan and the following factors (see Metro Plan Plan Boundaries Map Key)." Metro Plan at II-G-14. LaurelRidge Applicant Final Argument - Page 9 92 PDF Page 44 The subject property was not.annexed until 2007, at which time the line marking the UGB at this location was reduced to a metes and bounds description along the south and east boundary of the subject property. See Boundary Commission Final Order, C EU 07-37 (Oct. 4, 2007) Exhibit A (metes and bounds) and Exhibit B (map), submitted as Applicant Prehearing Exhibit 1-1.1. The Boundary Commission set the exact location of the UGB after agreement among the city, the county, and the property owner. See Boundary Commission Staff Report, C EU 07-37 (Oct. 4, 2007) at 2 para 4, submitted as Applicant Prehearing Exhibit 1-1.2. The Boundary Commission found the plan designation is LDR. ('The land use designation for the annexation area was low-density residential in the Eugene Springfield Metropolitan Area Plan (Metro Plan).") See Boundary Commission Final Order, C EU 07-37 (Oct. 4, 2007) Exhibit C Finding 5, submitted as Applicant Prehearing Exhibit 1-1.1. The Staff Report to the Boundary Commission in support of the annexation stated that the subject property is MDR. See Boundary Commission Staff Report, C EU 07-37 (Oct. 4, 2007) at 3 para 3, submitted as Applicant's Pre-hearing Exhibit 1-1.2. Based on the above, it is clearthat the UGB line on the current Metro Plan Diagram does not reflect the actual footprint of the UGB at this location. That is in the annexation order. The Laurel Hills Refinement Plan (1982) was adopted by Res. No. 3700 (July 26, 1982). The applicant placed a full copy in the record at the hearing (Exhibit 3). Section 2 says- that "[t)he land Use Diagram included in the Laurel Hill Plan Update is hereby adopted as a refinement of the Eugene-Springfield Metropolitan Area General Plan diagram." The plan map included in the refinement plan shows the LDR plan designation extending south to the UGB line. Based on the facts above, the plan designation for the entire property is LDR. In this instance the Metro Plan Diagram is not parcel specific. The Metro Plan Diagram is made more specific by the refinement plan, which indicates the LDR designation extends to the UGB. The exact location of the UGB was fixed at annexation; all of the subject property is inside the UGB. This conclusion is supported by the relevant caselaw resolving the relationship between the Metro Plan Diagram, in situations where it is generalized, and a more specific refinement plan. The principal cases are Carlson and Knutson, referenced above. Carlson was a zone change from R-1 to R-2. The Metro Plan Diagram, drawn at a 1:8000 scale, showed the area to be Laurel Ridge Applicant Final Argument - Page 10 93 PDF Page 45 Industrial. The City Council approved the zone change based on the refinement plan, which clearly showed the area.to be MDR_ Knutson relied on Carlson. Knutson was a zone change from Residential to Commercial. The generalized Metro Diagram was'read by the Planning Commission to designate the property as MDR, although the refinement plan clearly showed it to be Commercial. LUBA and the Court of Appeals held that the Metro Plan designation was to be found in the refinement plan, which made the Metro Plan more specific. The Staff Report makes a number of arguments as to why they believe the plan designation is split. These theories are not framed in terms of the caselaw above, even though the Applicant briefed all these cases and rules for the Staff in October 2012. It is worth discussing the staff's theories briefly. The staff begins by enlarging the Metro Diagram to the scale of the site plan, to show that the southernmost part of the site is Parks and Open Space. This approach assumes that the Metro Plan Diagram is accurate enough to support this methodology, which it is not. More simply, the Metro Plan Diagram carries a bold print caveat saying "VALID AT 11X17 SCALE ONLY." The Court of Appeals has explained that the Metro Plan Diagram is not to be blown up and used this way. Knutson, 292 Or App at 301 n S. Because the staff sees some Parks and Open Space color inside the UGB line at this location, they view the Metro Plan Diagram as conflicting with the refinement plan. There is no conflict because,'as discussed above, the Metro Plan Diagram, including the. UGB line, at this location is too generalized to create a conflict. Where the Metro Plan Diagram is generalized and the refinement plan is more specific, the latter shows a refinement of the Metro Plan, not a conflict. This rule was applied in Carlson v. Eugene, 3 Or LUBA 175 (1981)("We believe it was the intent of the Metro Plan, particularly with respect to interpreting the Metro Plan Land Use Diagram, that the refinement plan land use diagrams be used in attempting to ascertain on a site specific basis the intended use of a particular parcel of property,") and Knutson Family LLC v. City of Eugene, 48 Or LUBA 399 (2005), both as summarized in Knutson Family LLC V. City of Eugene, 200 Or App 292, 114 P3d 1150 (2005). The Staff Report also favors the Metro Plan Diagram because it is newer than the refinement plan - 2Q04 versus 1982. There is no basis for assigning a pecking order among the many elements of the comprehensive plan based on age. It is the function and role of the document that count. In addition, as the applicant explained at the hearing, each adopted version of the Metro Plan Diagram (1980, 1987, 2004) has shown essentially the same thing at this location - a generalized UGB line that moves around a bit'from one diagram to another, with a bit of Parks and Open Space color shown inside the UGB, albeit at different locations in each printing. The first printing of this generalized diagram was in 1980, two years before the refinement plan. Metro Plan text consistency. The applicant's June 24 Narrative addresses Metro Plan policies at pages 16-21. The Staff Report characterizes all the Metro Plan policies as being mostly nonmandatory approval Laurel Ridge Applicant Final Argument - Page 11 94 PDF Page 46 criteria, but they want them addressed anyway. Staff does see the application "falling short of compliance with Metro Plan Policy C.21.," which says: When planning for and regulating development, local governments shall consider the need for protection of open spaces, including those characterized by significant vegetation and wildlife. Means of protecting open space include but are not limited to outright acquisition, conservation easements, planned unit development ordinances, streamside protection ordinances, open space tax deferrals, donations to the public, and performance zoning. This policy does not apply to review of site-specific applications. It is the kind of policy that is directive to local governments when adopting plans and regulations. To the extent that any of the Metro Plan policies discussed in the applicant's narrative may apply directly, the applicant's narrative provides adequate justification of consistency. 9.8865(2). The proposed zone change is consistent with applicable adopted refinement plans. Two refinement pans are relevant-the Laurel Hill Plan (1982) and the South Hills Study (1974). Laurel Hill Plan Diagram The plan diagram shows the LDR plan designation extending south to the UGB. The R-1 zoning is consistent with this plan designation. The Staff Report concurs with this conclusion, provided it is determined that the Laurel Hill Plan refines the Metro Plan Diagram, rather than conflicts with it. Staff Report at 5-6. That is the relationship between the.plans, as discussed above.- Laurel Hill Plan Text and South Hills Study Text The applicant's narrative addresses policies in the Laurel Hill Plan at pages 22-30. The Staff Report, at page 4 para 2, correctly notes that the policies in the plans are not relevant to this zone change. To the extent the policies may be relevant, the change is consistent with those policies for the reasons explained in the applicants narrative. 9.8865(3): The uses and density that will be allowed by. the proposed zoning in the location of the proposed change can be served through the. orderly extension of key urban facilities and services. . The applicant and the Staff Report agree that the property can be served in the meaning of this standard, based on the findings and evidence associated with the 2007 annexation. See Boundary Commission Final Order, C EU 07-37 (Oct. 4, 2007) Exhibit C at Finding 17, submitted as Applicant Prehearing Exhibit 1-1.1. Laurel Ridge Applicant Final Argument- Page 12 95 PDF Page 47 9,886S(4 : The proposed zone change is consistent with the applicable siting requirements set out for the specific zone in:* * * None of these siting requirements applies to the requested R-1 zone. 9.8865 (5): In cases where the NR zone is applied based on EC 9.2510(3), the property owner shall enter into a contractual arrangement with the city to ensure the area is maintained as a natural resource area for a minimum of 50 years. This standard does not apply. Transportation Planning Rule: The State Transportation Planning Rule (TPR) applies to a zone change. This issue is addressed at pages 7-9 of the Staff Report. The analysis is required by the TPR.if the uses allowed by the zone change will have a significant effect on an existing or planned transportation facility. OAR 660-012-0060. As noted at page 7 of the Staff Report, the Applicant submitted a study entitled: "Traffic Impact and TPR Analysis Laurel Ridge PUD," by Branch Engineering. Although the Applicant did a transportation study, it,asserts that this zone change is exempt from the state requirement for a study, based on OAR 660-012-0060(9). The operation of subsection (9) of the TPR is explained in some detail in the Benson decision. See Hearing Official Decision (Benson) Z 13-2 (May 30, 2013) at 15-17. Subsection (9) explains that when the proposed zone change is consistent with the existing comprehensive map designation, and the city has an acknowledged Transportation System Plan (TSP), and the proposed zoning is consistent with the TSP, then the rezoning is considered not to have a significant effect on transportation facilities, and no study is needed. The city applies this rule in this fashion, as quoted in the Benson decision, at page 16: Put another way, if a subject property held its current designation in 2001, TransPlan's transportation facility planning would have been based on the current designation; a zone consistent with the current designation is supported by, and consistent with, TransPlan's transportation facilities. The Staff Report takes the position this exemption does not apply to this zone change because part of the property is plan designation Parks and Open Space, However, as explained above, 'the existing plan designation for the entire site is Low Density Residential. Thus, this zone change request gets the benefit of the exception in subsection 0060(9) of the TPR, and no demonstration of compliance is needed under the Goal 12 Rule -the TPR. LaureiRidge Applicant Final Argument- Page 13 96 PDF Page 48 111. EVALUATION OF TENTATIVE PLANNED UNIT DEVELOPMENT REQUEST Big Picture Issues in South Hills Development This application has several qualities that make for a perfect land use storm. It is a large site - about 121 acres. It is in a part of the City-the South Hills -that has the most rigorous regulations to protect natural resources and values. It has several neighborhood organizations committed to preservation. And, yet, it is planned and zoned to allow residential development at up to 5 dwelling units per acre. The Staff Report is fairly direct in its criticisms of the project and its recommendation for denial. What is most unusual about the Staff Report is that it does not include a list of recommended conditions to apply in the event of an approval. The Applicant is suggesting conditions of approval. A comparison of the recommended conditions with other recent South Hills PUD decisions and staff reports the applicant has added to the record, in connection with the Prehearing Exhibits, shows that the level of conditioning and wording suggested here is typical for Tentative PUDs, in many cases identical. This section, as in introduction to the discussion of PUD standards, addresses several big picture issues, in an effort to create a framework for the findings related to specific standards. The issues are: The residential density cap in the SHS; the trade-offs among conflicting values; and the flexibility in standards associated with PUDs. 1. The residential density cap in the SHS The SHS caps the residential density for this site, and all other SHS areas east of Friendly Street, at 5 dwelling units per acres. (du/ac). To the west of Friendly Street the cap is 8 du/ac. This is down from 14 du/ac allowed in the base zone. The Applicant's site plan proposes 5 du/ac. The applicant submitted to the city, and discussed with city staff for more than a year, six different site plans. However, each site plan proposed to develop at or near the residential density cap. The Staff Report says this is too dense. That is an oft-repeated point and a dominant theme in the Staff Report. As further discussed below, the Applicant should be presumed to be entitled to 5 du/ac. This right needs to be treated as something of an independent variable or baseline consideration in the city's review of any site plan. There are several reasons for this. (a) Allowing 5 du/ac is part of the city's Goal 5 program. The City has already formally decided that 5 du/ac is acceptable in this area. It made this policy choice in adopting its Goal 5 program, which was initially acknowledged in 1982. (b) If the dwelling density were to be treated like any other variable in a PUD review, such as preserving trees or protecting views, then it would be hard to justify any dwellings LaurelRidge Applicant Final Argument - Page 14 97 PDF Page 49 in the PUD. That is, the best PUD would be one with no dwellings, as that would fully preserve the status quo, which would fully preserve all the values that are supposed to be preserved -trees, views, riparian resources, existing neighborhoods, and the like. There would be no question that the proposed PUD would minimize cut and fill, encourage preservation of steep slopes, vegetation, significant visual impact, ensure maximum preservation of existing vegetation and other such unquantifiable standards. No development would guarantee that these standards would be met. (c) Previous PUD approvals under the SHS recognize that natural resource values need to be maximized around allowing the level of development anticipated by the plan and code. These points are addressed individually below. (a) The 5 du/ac cap already reflects the city's'program for preserving Goal 5 resources. The city's acknowledged Goal 5 program reflects the city's ultimate policy choice for balancing the preservation of Goal 5 resources in the South Hills with the need to allow the conflicting use -residential development. Both the dwelling unit cap and the PUD process are acknowledged implementing measures. The applicant believes that up to five dwelling units should be allowed because the Goal 5 program says that limiting the conflicting use down to that level is the appropriate amount of mitigation. The opponents and the staff believe that the dwelling unit count should be reduced even more in order to do right in terms of things related to the Goal 5 visual resources in the South Hills, which really means trees and open space and the ridgeline and such. Opponents are really arguing for a second bite at the conflicting uses, when the governing body already has an acknowledged program limiting the size of the bite - reducing density by 64%, from 14 du/ac to 5. There really is no reasoned legal basis for the second bite. The status of the South Hills area as a Goal 5 scenic resource was discussed at the hearing by opponents' geotechnical expert, Gunnar Schlieder. The applicant's Prehearing exhibits provide more detailed documentation about the acknowledged Goal 5 resource present. These are collected primarily under Exhibit 2 in the Applicant's Prehearing Submittal. There is narrative discussion in Exhibit 2-1, a Letter from the Law Office of Bill Kloos. Supporting that is Exhibit 2- 1.1, the complete DLCD Staff Reports relating to Metro Plan Acknowledgment inside the UGB (1981-1982). Exhibit 2-1.2 is the Metro Plan Scenic Sites Working Paper (April 12, 1978), including Figure H-2. Exhibit 2-1.3 is the Hearing Official Decision, Deerbrook PUD, PDT 12-1 (Sept. 21, 2013), discussing the Goal 5 issue. The Applicant also relied upon a LUBA decision addressing the Metro Plan Goal 5 program. Home Builders Assn. of Lane County v. City of Eugene, 41 Or LUBA 370, 428, 431 (2002). The exhibits listed above are discussed in the Exhibit 2-1 Law Office letter. In summary, the1980-1982 Metro Plan acknowledgment documents explain that the South Hills area as a whole is an acknowledged Goal 5 Scenic Resource in which the conflicting residential uses are "limited" with the density caps stated in the South Hills Study, the SHS siting standards, and the PUD standards. LaurelRidge Applicant Final Argument- Page 15 98 PDF Page 50 The South Hills Study was addressed in detail in the 1981-1982 acknowledgment process. It was relied upon in the Metro Plan as part of the city's Goal 5 program to limit impacts on acknowledged scenic areas. See DLCD Staff Report (August 14, 1981) at 15-16. For a summary overview of SHS in the Goal 5 program, see Home Builders Assn, of Lone County v, City of Eugene, 41 Or LUBA 370, 428, 431 (2002). The South Hills area was identified as a visual resource in the Goal 5 scheme, DLCD Staff Report (August 14, 1981) at 15-16. The visual resource area included most of the South Hills area, and was shown on Map H-2, which appeared in the Scenic Sites Working Paper. supporting the Metro Plan.3 The DLCD Staff Report explained that the South Hills study included an ESEE analysis. Id. at 16 para 1. It included a range of policies limiting residential development in the South Hills. Id. at 15 para 6. The residential density cap (5 du/acre east of Friendly Street) is one of those implementing measures. For a general discussion by the Hearing Official for how the SHS fits into the Goal 5 Scenic Sites inventory, see Hearing Official Decision, Deerbrook PUD, PDT 12-1 (Sept. 21, 2012), reversed Planning Commission Decision, PDT 12-1 (Dec. 17, 2012), affirmed, Southeast Neighbors Neighborhood Assn. v. City of Eugene, _ Or LUBA . (LUBA No. 2013-004, July 12, 2013), oppeol pending. The Hearing Official and Commission decisions are Exhibits 2-1.3 and 2-1.4, respectively, in the applicant's Prehearing Exhibits. - (b) Without the right to the 5 du/ac cap, then the owner is not assured the right to develop any housing. One of the most dominant themes in the Staff Report is that the applicant should propose fewer units. The Staff Report explains that with fewer units the applicant could do a better job preserving other things, such as: leave the steeper slopes undeveloped (page 9 para 1); develop with fewer streets (page 12 para 2); leave more vegetation (page 12 para 2); leave more of the heavily forested area (page 13 Para 3); and so on. Each time the development density is reduced, it is possible to save other resources that the SHS intends to be preserved -steep slopes, views, vegetation, trees, riparian vegetation associated _with crossings, and the like. There is an indirect correlation between developing housing consistent with the cap and preserving resources/values that are supposed to be preserved. That leads to the logical conclusion that the best PUD is one that does not allow any housing, or maybe, say, just one house on the 120 acres. One couldn't do a better job of achieving the SHS objectives than that- maintaining the status quo ante. Looking at the SHS objectives, it would be hard to make a case for putting a second dwelling on the site. 3 See: id. at 4,*Aem 1 and at 15-16; Scenic Sites Working Paper (April 12, 1978) at Figure H-2, which 15 part G to the Natural Assets and constraints Working Paper (April 12, 1978). The Working Paper is Exhibit 2-1.2. LaurelRidge Applicant Final Argument - Page 16 - 99 PDF Page 51 Opponents and staff might argue that more than one or two dwellings is OK. But why is that, if the object is to meet SHS and PUD protection objectives? Where does one draw the line on how many houses? Each additional house is another ding on the objectives. Put differently, starting with the Staff Report recommendation for.fewer dwellings, how low does the applicant need to go in terms of a dwelling count irf order to earn favorable consideration from the staff? And what would be the justification for that number, which could be reduced to findings that are reasoned and based on the evidence. An unhappy opponent could appeal the approval with two dwellings and make an. empirical case for shorting the SHIS and PUD objectives. What makes sense is to posit the 5 du/ac cap as being the acknowledged ultimate policy choice about how far to mitigate the adverse impacts of housing on the South Hills Goal 5 visual resources, At that point, the inquiry in the PUD review shifts to how best to arrange that proposed density on the site. (c) Previous PUD approvals under the South Hills Study. The city's track record of PUD approvals in the South Hills supports the approach discussed above - honoring the density cap as the city's ultimate policy choice for the number of units allowed. The Hearing Official has demonstrated a willingness to posit the proposed development first, and then make tree preservation, for example, a secondary consideration. One example is the Friendly Place PUD, PDT 08-6 (Oct. 10, 2008), a copy which appears in the applicant's Prehearing Exhibits as Exhibit 3-1.2. There the Hearings Officer approved removing all 16 significant trees from the site. She explained that while the tree preservation standards are designed to protect trees, tree removal must occur to facilitate development. The commercial zoning of the property and the proposed density of the development made it difficult to locate development such that trees would have a reasonable chance of survival, See Decision at S. Summary In summary, the correct approach is to treat the 5 du/ac density cap as a presumed allowed density, based that density being part of the acknowledged Goal 5 program. The question then becomes what approaches to organizing the use on the site are an acceptable fit under the , other standards. This respects the Goal 5 program. And it avoids the slippery slope into whether one or two dwelling units on the entire site is a better plan. 2. South Hills PUDs as an exercise in making trade-offs among conflicting values. The approval standards for a South Hills PUD appear in both the SHS and the PUD sections of the code. They amount to a long list of values that are intended to be preserved or enhanced. These include: road connectivity, natural features, habitat, stormwater mitigation, view shed, buffering, trees, stability of development, wetlands, riparian areas, significant vegetation, compatibility with surroundings, solar, life/safety access, block length, views, and many more.. LaurelRidge Applicant Final Argument - Page 17 100 PDF Page 52 Not all of the values can be maximized, unless, of course, the PUD has only one dwelling unit- The second dwelling unit approved in South Hills PUD comes at the expense of some value that the PUD standards intend to be preserved or maximized. Put differently, if one starts with a PUD proposed at the five du/ac cap, and then reduces the unit count, one then must decide what values to boost in exchange for the lower dwelling count. For example, the Staff Report suggests a lower multi-family unit count. If the multi-family unit count were reduced by half, the number of those units would be 266; the total number of units in the project would be 342; the du/account would be 2.81. That would pose a choice: Would it be better to keep the multi- family building height the same, thus having a smaller footprint on the ground and saving vegetation? Or would it be better to keep the footprint the same, lower the building height, and improve the view (for some neighbor looking from somewhere)? At the hearing the applicant posed the allegory of the gathering of the footballs. With a football field strewn with 100 numbered footballs, the applicant's task is to'continuously move downfield gathering 10 footballs. At the other goal line the Staff Report reviews the applicant's choice to determine if she has the right collection. Five applicants picking up footballs each will have a different collection of footballs. Each armful reflects a collection of value choices. In this instance the Applicant walked the field six times, picking up a different collection of footballs each time. None was deemed to be correct by the Staff Report. But, as the Applicant's representative at the hearing, Ralph Nauman, explained, the Staff Report never explains why the footballs selected were the wrong ones. - The PUD application requirements ensure that the applicant has a comprehensive design team of professionals - landscape architect, civil engineer, stormwater engineer, geotechnical expert, arborist, biologist, and so on. This is the only professional design team that examines all the facts about the site in. light of the approval standards and settles upon a design for the entire site. The result is bound to make everyone unhappy about something. Anyone can point to a football left on the field that should have been collected. But only the Applicant has applied professional expertise to propose a comprehensive design. The Applicant here has proposed a development scheme for the entire site. That reflects value judgments that result in trade-offs between a conflicting set of values that can't all be maximized. The question for the Hearing Official is not whether the Staff or the neighbors believe the Applicant has selected a wrong football or two. The question should be whether the Applicant has selected a design that is within the legal parameters set by the implementing regulations. Inside those legal parameters there is room for many different designs. With respect to one of the values that is subject to trade-offs with other values, there cannot be only one right answer. In summary, there should be healthy degree of deference to the Applicant's design choices, as the one comprehensive proposal done by professionals looking at all the standards. There remains room for the staff to recommend changes through conditioning. The staff regularly tweeks projects with conditions to reflect a slightly different set of trade-offs. The LaurelRidge Applicant Final Argument - Page 18 101- PDF Page 53 Applicant's Prehearing Exhibit 2-1 (Lttr from Law Office of Bill Moos) appends PUD decisions and PUD Staff Reports that reflect such conditioning. Workable conditioning is generally welcome by PUD applicants. To be workable, however, recommended changes need to accommodate the inherent trade-offs. For example, the Public Works comments on this application want more connectivity among the streets on the project site. That can be done by conditioning. However, other city staff will need to be OK with the impacts of that- on vegetation, Goal 5 stream crossing, views, steep slopes, etc. As noted in our Prehearing Exhibit 2-1, that kind of coordinated review is not reflected in the Staff Report and is not typically done by city staff. Instead, the myriad of specialist stakeholders across the city staff critique applications from the perspective of their specialty areas, with no staff person making the ultimate policy choices that are reflected in the application. 3. Flexibility of standards is the hallmark of PUDs. PUDs are intended to allow flexibility in applying plan and code standards to a development. EC 9.8300 begins with: "The planned unit development (PUD) provisions are designed to provide a high degree of flexibility in the design of the site and the mix of land uses, potential environmental impacts, and are intended to: * * * This provides a wide degree of latitude in designing a complex project for a challenging site like this one. The code sets a low bar to qualify for relief from a standard in orderto encourage flexibility. The entitlement to relief from the development standards in the code is set out explicitly in EC 9.8320(11)(k), which requires compliance with: "All other applicable development standards for features explicitly included in the application except where the applicant has shown that a proposed noncompliance is consistent with the purposes set out in EC 9.8300 Purpose o Planned Unit Development." Thus, approval or not of any requested relief from standard is earned based on achieving one or more of the purpose for PUDs. An example of how this works can be found in the Planning Commission decision in Rivendell PUD (PDT 10-1 (Oct. 25, 2010), remanded on other grounds Treadmil/loint Venture v. City of Eugene, _ Or LUBA _ (LUBA No. 2010-107, April 24, 2012). A copy of the decision appears in the Prehearing Submittals as Exhibit 4-1. There, on the recommendation of the staff, the Hearing Official denied several requests for relief from lot development standards in connection with a residential PUD in north Eugene. The Planning Commission reversed all the denials and afforded the relief, explaining that they met the purpose section of EC 9,8300, and the reasons for the initial denial by the Hearing Official and staff were not based on the purposes for PUD. In the sections below, where a request is made for relief from the plan and code standards, it is evaluated against the purpose statements for PUDs. Review of Specific PUD Standards Lau relRidge Applicant Final Argument - Page 19 102 P®F Page 54 PUD approval is required for the proposed development based on applicability provisions at EC 9.8305(1) and (3). In addition to the South Hills Study requirements, the proposal for multi- family residential and neighborhood commercial uses is also subject to PUD approval in the R-1 zone, according to EC Table 9.2740, The applicant's final narrative in support of the tentative planned unit development is 74 pages (plus exhibits) and dated June 24, 2013. The tentative planned unit development standards are addressed beginning at page 19. There is a 38 page Staff Report recommending denial of the requested tentative planned unit development. Six different Site Plans were submitted at the August 28 hearing. The Sixth Plan is the subject of the Final Staff Report. As explained at the hearing, staff was unwilling to support any of the alternatives. The record shows the following submissions and vetting: Title Shared Submitted Discussed Multi- Single Total Open w/neighbors to city w/staff family Family Units Space Units Units First March 2012 348 239 587 49.44 Plan acres or 39.1%' Second May 2012 June 2012 408 200 608 64.23 Plan acres or 52.8% Third July 2012 August '408 200 608 54.20 Plan 2012 acres or 44.5% Fourth September 608 0 608 89.41 Plan 2012 acres or 73.5% Fifth January 538 70 608 71.31 Plan 2013 acres or 58.5% Sixth June 2013 533 75 608 76.95 Plan acres or 63.2% The criteria for Tentative PUD approval are addressed below. 9.83201: The PUD is consistent with applicable adopted policies of the Metro Plan. laurelRidge Applicant Final Argument - Page 20 103 P®F Page 55 Consistency with the Metro Plan Diagram and Text is addressed In connection with Evaluation of Zone Change Request above. 9.8320(2): The proposed PUD is consistent with applicable adopted refinement plans. Two refinement plans are relevant - the Laurel Hill Plan (1982) and the South Hills Study (1974). Laurel Hill Plan Diagram Consistency with the Laurel Hill Plan Diagram is addressed in connection with Evaluation'of Zone Change Request above. Laurel Hill Plan Text The Applicant's June 24 narrative addresses policies in the Laurel Hill Plan at pages 32 - 35 See Discussion of Laurel Hill Plan later in this document (beginning at Page 32) South Hills Study (SHS The SHS applies because this site is at more than 500 feet elevation and is south of 18th Avenue. SHS adopting Resolution #2295 says that the Purpose Statement and Recommendations set forth in the SHS are adopted as policy statements and as a refinement of the Metro Plan, and are intended to be used in making land-use decisions in the SHS area. As the Hearing Official explained in approving the The Jewell Tentative PUD (PDT 08-1) at page 3 (included as Prehearing Submittal Exhibit 3-1.4): The South Hills-Study (SHS serves as the applicable adopted refinement plan for the site. The SHS does not have an adopted land use diagram, but does include siting and development policies that must be addressed for PUDs. In general, compliance with the SHS standards requires making design choices among conflicting standards that result in trade-offs in the final design. The Applicant's choices in this instance make sense in light of all the other standards that must be considered, weighed, and resolved. The Applicant's narrative explains why the standards are met; no party has explained why they are not met. Ridgeline Park Section - Specific Recommendations. That all vacant property above an elevation of 90,1' be preserved from an intensive level of development, subject to the following exceptions: 1. Development of individual residences on'existing lots; and LaurelRidge Applicant Final Argument- Page 21 104 PDF Page 56 2. Development under planned unit development procedures when it can be demonstrated that a proposed development is consistent with the purposes of this section. The applicant's materials demonstrate compliance with this requirement by largely preserving portions of the subject site over 901' in elevation from an intensive level of development. Staff concurs. Staff Report at Page 7 para 2. That all proposed developments in the south hills area be reviewed to determine if connecting linkages ore possible between various park sites, particularly north of Skyline Park to Hendricks Park and between Blanton Heights and Hawkins Heights. The applicant's plans show the proposed dedication of open space along the southerly boundary of the site which is intended to function as ridgeline open space and allow for future connectivity of the City's Ridgeline Trail system between the nearby Moon Mountain Park, which abuts the subject property at its northeast corner, and the Ribbon trail to the west of the subject site. Staff concurs that the applicant's proposed development meets the intent of this policy. Staff Report Page 7 para 4. That in the area east of friendly Street the maximum level of new development per gross acre be limited to 5 units per gross acre (the maximum figure of 5 dwelling units per gross acre being subject to positive findings under the planned unit development criteria.) The applicant proposes a density of 5 units per gross acre, which is the maximum allowed under this policy as the subject site is located east of Friendly Street. As discussed above, because the 5 du/ac cap is the city's ultimate policy choice for limiting the conflicting uses (residential) on a significant Goal 5 resource (visual resources), it should be presumed-that 5 du/acre are allowable. As noted by the last phrase in the standard, other PUD criteria must be met, too. The last phrase is not an invitation to roll back the Applicant's right to 5 du/acre. That is not what the language says, and that would be a slippery slope, one that would make it difficult to approve any units, That planned unit development procedures be required for development of any parcel over 4 acres in size, characterized by a slope in excess of 20 percent in the area between 500' and 701' in elevation. This standard requires the use of the PUD process to develop the site. That planned unit development procedures shall be utilized for the following purposes; To encourage clustering of development in areas characterized by: a.) shallowest slopes, b.) lowest elevations; LaurelRidge Applicant Final Argument - Page 22 14.5 PDF Page 57 c.) least amount of vegetation; d.) least amount of visual impact. 2. To encourage preservation as open space those areas characterized by: a.) intermediate and steep slopes; b.) higher elevations; c.) significant amounts of vegetation; d.) significant visual impact. These are standards and must be considered. Each is qualified by the term "encourage." Therefore, these are the softest of standards. They are grist for subjective exercise of determining the correct trade-offs among conflicting values that is done for any PUD. See the discussion at the start of this section. The applicant's June 24 narrative addresses these variables at pages 38 - 40. The June 24 narrative was the Applicant's sixth effort to balance these variables in a fashion that staff could support. Slopes and elevation: The shallowest slopes can be seen on the plans at some of the higher elevations. Some of the steeper slopes can be seen at some of the lowest elevations. Vegetation: The Staff Report says there is not enough information regarding existing vegetation. Data is endless, of course; more can always be collected. This application has an adequate foundation of information about vegetation. It is based on review of detailed air photos, on the ground investigation by a biologist, an exact mapping of trees on the western end of the site, and a lot-by lot field inspection by the Applicant's arborist to evaluate this proposed site plan and to recommend'changes in the location of dwellings. The Staff Report reflects an assumption that the development is to be designed around the trees,'ratherthan tree retention being designed around the residential project. The staff assumption is not based in the language of the code criteria. The code intends designing a residential project consistent with the base zoning and the density cap of the South Hills Study. As discussed in connection with the first of the "Big Picture" points above, the HO in the past has supported removal of all trees if that is what is needed to approve the proposed development in the South Hills. Visual Irimpact: Existing trees on site range from SO feet to 200 feet tall. Trees have been preserved on all boundaries of the property as well as internal to the development. Buildings are proposed to be a maximum of 35 feet tall. Except for a view by users of 30th Avenue, the buildings will be largely obscured by existing trees that are taller than the roof tops of these structures. That does not mean they are invisible and can never be seen, but the criterion does not require that. That adequate review of both on-site and off-site impact of any development by a LaurelRidge Applicant Final Argument - Page 23 106 PDF Page 58 qualified engineering geologist occur under any of the following conditions: 1. All formations: Soil depth of 40 inches and above. Slopes of 30 percent and above. 2. Basalt flows: Soil depth of 40 inches and above. Slopes of 20 percent to 30 percent. 3. Eugene Formation: Soil depth of 40 inches and above. Slopes of 20 percent to 30 percent. 4. " Basalt flows: Soil depth of 20 to 40 inches. Slopes of 30 percent and above. 5. Eugene Formation: Soil depth of 20 inches to 40 inches. Slopes of 30 percent and above. The Applicant submitted a geotechnical report entitled: Geotechnical Investigation, Branch Engineering (June 28, 2013). It was prepared by: (1) Ronald Derrick, whose qualification is Geotechnical Engineer; and (2) Gary Sandstrom, whose qualification is Engineering Geologist. Referral comments from Public Works staff indicate that the applicant's analysis is in compliance with Administrative Order AO-58-02-25-F and meets the Level 2 analysis requirements that would typically be required for a property, such as this one, that is not on the City's adopted Goal 5 inventory. As the Staff Report notes, this site is on the Goal 5 inventory. Staff Report at page 10 para 1 states that to provide a gauge of what an "adequate review" means. under this policy, that if the geotechnical standards at EC 9.6710 did apply, at a minimum, a Level 2 analysis would be required as the proposed development is a PUD with slopes greater than 5% and because the proposed development includes dedication and construction of public streets, drainage, and wastewater systems. (The staff report then notes that Public Works referral comments state that the Geotechnical Analysis meets the requirements of a Level 2 analysis.) A tentative PUD application is a conceptual plan of how the proposal meets the code criterion. At this stage of the project t a less detailed study can be "adequate." The Geotechnical Investigation report is adequate as submitted for evaluation of the conceptual site design for the. Tentative PUD. The Geotech report concludes by saying: "Based on our field observations, subsurface explorations, and data analysis, we conclude that the proposed site development is geotechnically feasible for the proposed planned development provided that the recommendations of this'report are LaureiRidge Applicant Final Argument - Page 24 107 PDF Page 59 incorporated into the planning and design of the project. We recommend that more site specific geotechnical studies be conducted once the project grading and building plans have been developed." (See Page 4 of the Geotechnical Investigation Report dated June 28, 2013, Branch Engineering) What this standard requires is "adequate review." "Adequate" is a relative term. Adequate for what? Here the application is not for approval to build anything. It is for the most conceptual approval (tentative PUD), which will give the applicant the right to apply for Final PUD and then tentative subdivision approval and then final subdivision approval. "Adequate" in this context means adequate to support conceptual approval. A demonstration of compliance with the more detailed requirements of the code for geotechnica) analysis can come later, when those standards are actually triggered. The City has a firm track record of approving Tentative PUDs under this standard based on studies just like the one submitted here, and imposing a condition requiring more detailed analysis prior to actual development. For example, see The Jewel on Bailey Hill (PDT 08-1)(Oct. 24, 2008) at page 6 (included as Prehearing Submittal Exhibit 3-1.4). This was a 116 unit PUD on 33 acres: "The applicant has submitted a preliminary geotechnica) analysis prepared by GeoScience Inc dated November 16 2007 which generally concludes that the subject property is well suited for the proposed development and that which concludes that it will be practical to construct the proposed improvements using conventional construction techniques. The report notes earthflow slope movement present in the swale in the southern and southwestern portion of the site, but that the extent of the feature appears to be essentially limited to the area already set aside for Goal 5 (the Goal 5 resource corridor). Staff notes that this area would be further evaluated in the event that this area is proposed for development in conjunction with the abutting property to the south. Public Works staff conceptually concurs with the subject assessment and recommendations from the Geotechnical reconnaissance will be implemented during the Privately Engineered Public Improvement (PEPI).process. "Public Works staff cohfirms that the geotechnical assessment indicates that the test pit areas do not have the formations of concern in this policy (i.e. shallow soil depth over rock). However, it is possible that these conditions may be present in other locations on the property that were not tested. Additionally the report provides preliminary geotechnical recommendations for design and construction of the proposed improvements and recommends that a qualified geotechnica) professional be retained during construction to periodically review excavations performed along.the infrastructure alignments, To implement these recommendations, the following condition of approval is warranted: LaurelRidge Applicant Final Argument - Page 2S 108 PDF Page 60 A geotechnical analysis from a certified engineer with specific recommendations for design and construction standards shall be provided with any applications for Privately Engineered Public Improvement PEPI permits as well as building permits and site development permits for the initial construction of infrastructure and residences on individual lots. The development proposed with each permit shall adhere to the recommended standards for design and construction as contained in the geotechnical analysis. Based on the available information and findings above and with the condition of approval as recommended, the proposal will be consistent with the applicable policy." Note that geotechnical study for the Jewel was done by Gunnar Schleider, who testified here for the opposition that the geotechnical study for the subject property was inadequate. And yet his own study for The Jewel found evidence of landslides, admitted the whole site had not been investigated, recommended more detailed study prior to actual development, and concluded that the site could be developed. That is the gist of the geotechnical study for LaurelRidge, too. The condition imposed for The Jewel, as quoted above, is the standard condition staff recommends and the city imposes at the Tentative PUD stage. See also, for example, the Tentative PUD approval for Timberline Hills PUD (PDT 05-2)(Oct. 27, 2005), a 255 lot PUD on 100 acres in the South Hills. This decision appears as Prehearing Submittal Exhibit 3-1.5. The identical condition was imposed. See pages 6-7. Based on the conclusion of the applicant's geotechnical consultant that "the proposed site development is geotechnically feasible for the proposed planned development provided that the recommendations of this report are incorporated into the planning and design of the project," this standard is complied with, subject to the following conditions: A geotechnical analysis from a certified engineering geologist, with specific recommendations for design and construction standards shall be provided with any applications for Privately Engineered Public Improvements (PEPI) permits, as well as building permits and site development permits for the initial construction of infrastructure and residences on individual lots. The development proposed with each permit shall adhere to the recommended standards for design and, construction contained in the geotechnical analysis. [ See for Timberline Hills PUD (PDT 05-2)(Oct. 27, 2005) at page 31 ] ® The Geotechnical Engineer of Record (or his successor) will work with Lane County Transportation staff to review existing conditions on the 30th Avenue off-ramp and provide a satisfactory analysis of stability during design of the proposed frontage road. LaurelRidge Applicant Final Argument- Page 26 109 PDF Page 61 That developments be reviewed to encourage clustering of open space elements of different developments in order to preserve the maximum amount of continuous open space. The applicant proposes open space area abutting the Ribbon Trail Park to the west, Moon Mountain Park near the northeast corner of the site, and along the ridgeline. Additional open space is proposed adjoining the adjacent Hendricks Hill PUD, where the applicant shows a 60' conservation buffer, and adjacent to East Ridge PUD along the rear of proposed single family lots. The applicant's design complies with this policy statement. That developments be reviewed in terms of scale, bulk and height to ensure that development blends with rather than dominates the natural characteristics of the south hills area. The applicants proposal includes 608 total dwelling units, consisting of 533 multi-family residential units and 75 large single family lots on a gross site area of 121.68 acres which results in the maximum allowable residential density of 5 units per acre, subject to PUD approval. This SHS standard is addressed at page 5 of the PUD narrative. The applicant is requesting approval for several exceptions to code standards including "proposed non-compliance" regarding the 3d-foot building height maximum in the R-1 zone, to allow a maximum building height of 35 feet.. See elevations of the proposed structures on the applicant's site plans (Sheet 10.0). Views are addressed in Exhibit L of the PUD narrative. The applicant also proposes to limit the height of the apartments nearest to the ridgeline to 2 stories (or 25 feet). Multi-Family development standards at EC 9.5500(6) require that apartment buildings within 40 feet of a front lot line be limited to 100 feet in length, which provides a good gauge of the intended bulk and scale limitations for multi-family buildings. These development standards are intended to mitigate bulk and scale when fronting a street as traditionally there would be nearby neighbors affected by any changes'to these standards. In this case none of the multi- family units front a street (a drive aisle for a parking lot is not considered a street) therefore these do not apply. The staff is correct in stating that this clustering creates a wider area of impact and concentration of building bulk and height. The inevitable tradeoff is that there is greater degree of preservation of natural resources, less impact to the total site, preservation of a larger amount of open space, and preservation of stands of trees rather than individual trees, etc. The inherent conflicting values and trade-offs of developing under the SHS policies is evident here. This policy requires that developments blend with rather than dominate the natural characteristics of the south hills area. In this instance the immediately surrounding area is predominantly vacant. To the east is the Ribbon Trail, 300 feet wide at the project's west property line, to the south and east there are no existing homes and the property is not within Laurel Ridge Applicant Final Argument- Page 27 110 PDF Page 62 the UGB, and on the north property line, except for the Hendricks Hill PUD (which fronts 700 feet of the 3898' long north property line).of tightly clustered single family homes the north property line largely fronts vacant private land and park land. While the proposed development will necessarily have an impact and change the look and feel of the development site it does not mean that it won't eventually blend in with the natural characteristics of the south hills area. Buildings are designed to flow with the topography; streets are aligned with existing logging roads where possible, large single family lots have been created to preserve large stands of existing trees/vegetation. Large amounts of open space have been preserved to ensure protection of sensitive natural resources. The ridgeline has an additional buffer along the south property line and a trail system as been dedicated to the city of Eugene to connect existing park land. The preserved vegetation, the applicants proposed tree replanting plan, the specific design and the conceptual elevations will help reduce the bulk, height and scale and help blend the development with the natural characteristics of the south hills area. As such, the proposal is consistent with the policy language. That all proposed road locations be reviewed to ensure minimum grade disturbance and minimum cut-and-fill activity, particularly in those areas most visible due to slope, topographic or other conditions. As noted, site design in areas of topography such as the LaurelRidge site is driven largely by vehicular access. Practical, least-costly.streets are a development pro forma requirement. Meeting city street standards is also a requirement. Given this, the proposed roads have been sited to minimize cut/fill impacts, while complying with street gradient, intersection alignment and gradient, street radius, vision clearance and emergency vehicle access requirements. Staff asserts that the Applicant's desire to develop the allowed number of units on the site directly impacts the corresponding number and alignment of streets. While this could be true, what is also true is that on properties with topography like this, in order to minimize cut and fill impacts, and in order to reach those areas where development of structures may occur, one has to build the same road whether there is one unit or 100 units, especially as it relates to multi- family units. If you couple that with fire access, fire turnaround and road length limits, the result is more roads to reach the areas. Put differently, it is easy for the staff to opine that there are too many roads, but they have not suggested how to do it differently. The Applicant has taken six runs at it. The key descriptor here is the word minimize. This is a difficult word to measure. If there were no existing logging roads could the applicant have been found to minimize cut and fill. Minimize might imply designing with zero cut and fill. That might lead to the conclusion that there should be only one dwelling approved. LaurelRidge Applicant Final Argument - Page 28 ill PDF Page 63 By following existing logging roads, aligning roads as is practical (except where they need to travel against the topography to connect to other roads), making required connections to abutting tax lots, providing required access for fire, all while balancing the SHS policies, the site design achieves the desired clustering of units around the circulation system while achieving a large degree of dedicated open space and preservation of resources. To the extent the applicant has balanced the competing policies of the SHS, the grading disturbance has been kept to a minimum and the cut and fill has been minimized. That planned unit development review shall be based upon recognition of both public and private interests. In areas of significant conflict, which could be resolved through the use of an alternative development plan, primacy shall be given to the public interest in any determinations. In the context of the SHS policies and the subject proposal, the public interest stems from the balance of preservation of natural features and the provision of increased urban densities within the urban growth boundary of the City, in a manner that balances private and public interests. Staff acknowledges that an appropriate level of residential development is intended to occur 1n the South Hills. In this case, staff's evaluation leads to their initial conclusion that the application does not achieve the required balance between all of the applicable policy objectives, based on failure to comply with several key approval criteria related to tree preservation and protection of natural features, among others. Many of staff's decisions about policies and criteria hinge on the findings regarding the metro Plan POS designation and by extension the SHS policies. As discussed above, the staff's conclusions about inconsistency with the plan designation are in error. Staff suggests that even if the area on the southwest portion of the site is zoned for residential use, further consideration must be given to preserving this area of the site as open space under the PUD requirements, due to a combination of factors. In the context of the PUD review process, and recognizing that the subject property is zoned for low-density residential development, an appropriate level of residential development can occur. This proposal reflects the primacy of the public interest in resolving conflicts. Goal S scenic resources are being protected consistent with the acknowledged 5 du/ac density cap. All Goal 5 riparian corridor Conservation Areas are being protected, consistent with the code provisions, which allow a few necessary encroachments by Standards Review. These corridors will be deeded to the city for public use. The ridgeline is being protected and will be deed to the City. Connections are being made available for rid geline trail connections. Large acreages will be committed to open space and park use highlighting one of the inherent competing conflicts. All of the above reflects adequate consideration of the public interest. That all developments shall be reviewed for potential linkage with or to the ridgeline park system. LaurelRidge Applicant Final Argument - Page 29 112 PDF Page 64 The City's ridgeline park system begins at its most eastern end at Moon Mountain Park. The applicant is proposing to dedicate a public connection along the south property line of the development from Moon Mountain Park to the existing frontage road. From the frontage road, where the applicant also proposes sidewalk improvements, a connection is made to the Ribbon Trail Park on the west side of the development. This policy is satisfied. That all developments (planned unit developments or subdivisions) be reviewed to ensure maximum preservation of existing vegetation. See discussion at EC 9.8320(4) below. The applicant's proposal includes a portion of the site to be developed with multi-family and a portion of the site to be developed with single family lots. The design of the site maximizes the use of existing logging roads, creates connections between park systems along the ridgeline, utilizes the multi-family strategy to cluster units, creates large lots which necessarily preserves some of the site ground plane, limits affected area within the single family lots and preserves large contiguous areas of open space containing Goal 5 resources. To the extent that the design accommodates the residential use of the property a total of 76.95 acres or 63.2% of the site has been left untouched (preserved). Except for one area of the site, the property is covered with vegetation fairly equally. In this manner, with the preservation of large contiguous areas of property, the vegetation is necessarily preserved as well. If the applicant had proposed the development under EC 9.8325 (12)(c) Tentative Planned Unit Development-Needed Housing Criteria, the requirement for open space would have been 40%. This is the maximum amount of open space preservation required anywhere in the land use code. In the predominantly vegetated areas of south hills properties this would also mean approximately 40% of the vegetation would be preserved at a maximum. The 63.2% preservation exceeds the highest maximum required in the current code. For these reasons, and with no definitive way to quantitythe word maximum in relation to other conflicting standards that must be met, this policy is met by the applicant's proposal. To the extent resource protection needs to be addressed through the Final PUDthe following conditions apply: (Text in ( ) indicates Tentative PUD decisions and Staff Reports in the Record from which the condition language is borrowed.) e Prior to Final Subdivision Approval, open space areas proposed for dedication to the city for preservation of Goal 5 resources and connections to parks and trail systems will be dedicated and recorded. Prior to Final Subdivision Approval, the applicant shall record a deed restriction for each single family lot that delineates the Forest Preservation areas. LaurelRidge Applicant Final Argument- Page 30 113 P®F Page 65 The following use restrictions and natural resource protections for the Forest Conservation Areas shall be established as notes on the Final PUD plans, with compliance ensured through the performance agreement: In Forest Conservation Areas, no buildings or structures, either temporary or permanent, are allowed. This includes but is not limited to: patios, decks, accessory structures, storage sheds, driveways, parking areas, play equipment, fencing and irrigation systems. No dumping of garden or other debris or storage of materials is allowed in the Forest Conservation Areas. Any activities outside of easements that damage critical root zones within the conservation areas are not allowed. (See Hearing Official Decision (Spring Knoll PUD Phase 4) PDT 05-3 (November 17, 2005). b. No excavation, grading, filling, trenching, material storage, staging, vehicle or equipment parking, or other construction related activity shall occur within the areas protected by tree protection fencing, except as necessary for allowed activities as otherwise described (such as within approved utility easements), without prior approval by a certified arborist and documentation of that approval provided to the City. (See Hearing Official Decision (The Jewel) PDT 08-1 (October 24, 2008). c. Building permit submittal plans shall indicate, for each single family lot, the exact location, size, species and condition of trees within the Forest Conservation Area that are within the lot boundaries and within 50 feet of the edge of the area delineated as the allowable area for disturbance as indicated on the Final PUD. d. The building permit submittal shall include sufficient detail to verify that no more than 30 percent of the critical root zones of trees to be preserved will be impacted by construction activities on the lot, or a report be'a certified arborist verifying that the proposed construction activities can otherwise be conducted in a manner that does not threaten the survival of the trees to be preserved or a report by a certified arborist with mitigating measures to preserve the affected preservation trees. Each building permit shall include tree protection fencing to be erected at the perimeter of the critical root zones for all trees to be preserved (or an alternative location as. approved and documented by a certified arborist and the City. (See Hearing Official Decision (The Jewel) PDT 08-1 (October 24, 2008), e. At the time of building per review, trees designated to be preserved on private lots shall be identified and marked in the field for verification of tree preservation prior to issuance of building permit. (See Hearing Official Decision (Spring Knoll PUD Phase 4) PDT 05-3 (November 17, 2005). Protective fencing for trees identified to be preserved shall be inspected and approved by the City prior to beginning and construction related activities. All LaurelRidge Applicant Final Argument - Page 31 114 PDF Page 66 protective tree fencing shall remain in place until issuance of Final Occupancy permit or until completion of all construction activities, whichever comes later. (See Hearing Official Decision (The Jewel) PDT 08-1 (October 24, 2008). The removal of diseased or hazardous trees is allowed with prior approval by a certified arborist and documentation of that approval and the need for removal provided to the City. Trees to be preserved may not be considered hazardous based on design or location of proposed residence or site improvement which would render the tree a future hazard. (See Hearing Official Decision (The Jewel) PDT 08-1 (October 24, 2008). In the event a diseased or hazardous preservation tree must be removed, it shall be replaced at a ratio of 2 trees for 1 preservation tree removed. Replacement trees shall be native species with a minimum caliper of 1 for deciduous trees and a minimum height of 5' for coniferous trees. (See Hearing Official Decision (The Jewel) PDT 08-1 (October.24, 2008). All structures and any at-grade site improvement, including but not limited to driveways, paved surfaces, decks, patios, and retaining walls, shall be setback a minimum of 5 feet from protective tree fencing boundaries to allow for normal construction activities to occur between building foundations/paved areas to be protected from impacts. Additional setbacks may be necessary to prevent construction activities from impacting protection areas and trees designated for preservation. No activity shall encroach within the fence area. (See Hearing Official Decision (The Jewel) PDT 08-1 (October 24, 2008). Limb removal or other tree pruningfor view clearance is prohibited within conservation zones. Tree pruning shall be permitted only if the pruning is necessary to facilitate or encourage growth of the tree or other native species, or to accommodate uses or activities otherwise allowed within the Forest Conservation area. (See' Hearing Official Decision (Timberline Hills PUD) PDT 05-2 (October.27, 2005). Laurel Hill Plan The following polities from the Laurel Hill Plan (LHP) apply to the tentative PUD. To the extent that the analysis in the applicant's written statement are relevant, that information is also incorporated. Land Use and Future Urban Design Policy 1: Approval of Valley Development will take into consideration; a. Density. The appropriate density for residential development shall be determined based on 1) the provision of the Metropolitan Area General Plan (MetroPlanj calling for an overall density range of one to ten units per acre; and LaurelRidge Applicant Final Argument - Page 32 115 P®F Page 67 2) provisions of the South Hills Study, including those limiting density to five units per acre forsites above 500 feetin elevation. b. Size. Large apartment complexes (over thirty-two units) are objectionable because their dominance would alter entirely the character of the Valley. Approval of apartment complexes larger than 32 units will depend upon the feasibility of providing adequate urban services, streets, schools, and transportation. C. Dispersal. Planned Unit Developments composed primarily of multiple family dwelling units shall be separated and dispersed and not abutting. The proposed development will result in a density of 5 units per acre. Policy (b) applies because the applicant is proposing 533 multi-family unit apartments. The policy is not a constraint if the adequate urban services are available. Staff concurrence is found in the 2007 Annexation findings, which say that key urban services are available or can be provided. Subsection (c) requires dispersal. There are no other PUDs with multi-family units abutting this proposed PUD Policy 5: New land divisions shall be planned to respect the existing topography and ensure solar potential to the extent possible. Developers shall be encouraged to investigate techniques other than grid-type division of land when planning for development. Grid-type land division is not being proposed. It is evident when looking at the Site Plan in context with the existing topography that existing topography is being respected. Remnant logging roads are being utilized for the proposed street network to the greatest extent practical. Logging roads typically follow the contours as the path of least resistance and impact in order for logging trucks to access a site. Street standards are also being flexed to minimize impacts to the hillside. Curbside sidewalks have been proposed by the applicant in an effort to further reduce the paved footprint on the ground which by extension minimizes necessary cut and.fill in order to construct roads to city standards. This policy has been met. Policy 6: The Laurel Hill Plan supports the South Hills Study Standards. In general, alteration of land contours-shall by minimized to retain views of natural features and retain as much of the forested atmosphere as possible. Aside from purely aesthetic considerations, these hillsides demand care in development because the topsoil is thin and the water runoff is rapid. Proposed developments shall respect the above considerations. The Valley hillside policy applies to all land with an average slope, from toe to crest, of 15°0 or greater. (A 15-percent slope is one in which the land rises 15 feet per 100 horizontal feet). a. If, in the opinion of the responsible City official, an adverse conservation or geological condition exists upon a parcel of land proposed for a subdivision, or LaurelRidge Applicant Final Argument - Page 33 116 PDF Page 68 before any major hillside clearing, excavation, filling or construction is contemplated, the requirements of the Uniform Building Code, Chapter 70, Excavation and Grading, and those sections of the code relative to foundation design may be invoked. b. Considerable latitude shall be allowed the developer in the shaping, depth, and required street frontages of lots where it is necessary to preserve the terrain. The Staff Report notes in many places and relies heavily on their findings that the SHS policies have not been met. This has been discussed above. As evidenced by the Site Plan and supporting documents, alteration of the land contours has been minimized to the greatest degree practical considering the underlying base zone and allowed use on the site. Extensive revegetation, tree planting, mitigation of loss of canopy and reforestation have been proposed. It is not practical to assume no disturbance will take place. (See Applicant's Narrative dated June 24, 2013 at pages 33 - 34) Additionally over 63% of the site will remain undisturbed. This number represents extensive conservation of vegetation, protection of resources and protection of existing topography. This policy has been met. Transportation Policy 1. No arterial or limited access road will be allowed within the boundaries of the Valley which would connect the Glenwood interchange on Interstate 5 to 30th Avenue or Spring Boulevard. Policy 2. No arterial or limited access road will be allowed within the Valley except as necessary to serve Valley residents, as it would physically and thus destroy the neighborhood. The applicant is proposing only local streets. No arterial or limited access road is proposed which is consistent with these policies. Policy 3: Street design will reflect the functions of the streets in accordance with their designation as "collector" or "local," and a mandatorystreet design standard should be avoided. Traffic patterns and street standards shall provide for such uses as public or school bus routes and emergency and service vehicles. Since this LHP policy was adopted; new street design standards have been adopted into the City's code which provide for a variety of street designs, and standards that a developer may choose from, depending on the circumstances. The design standards are largely based upon the amount of traffic capacity for the type of street. The applicant proposes three public, local residential streets as part of this proposal including the Frontage Road, "A Street" and "B Street" with one additional private street (labeled Private Road on the plan sheets) that connects to "A" Street on the west and "B" Street on the east. Additionally, there are several LaureiRidge Applicant Final Argument - Page 34 117 PDF Page 69 drive aisles that provide access to the multi-family development on the western portion of the development(these multi-family drive aisles are mis-labeled on the plan sheets as Private Roads. That is a drafting error as they are not private roads but multi-family drive aisles). The applicant's proposal seeks to minimize right-of-way width, eliminate sidewalk setbacks in some instances, and allow for sidewalks on one side only in some areas. Public Works staff indicates that the City's adopted local street standards allow flexibility in regards to these standards while insuring the street function in accordance with their respective classifications. Street design and function are discussed in greater detail below at EC 9.8320(5). The applicant's proposal regarding street classification, right of way width, and improvements responds to the existing topography on the site and an attempt to minimize impacts. Required minimum ROW widths reduces the probability that the applicant can reduce impacts further therefore this proposal is consistent with the policy, Policy 4: All future construction in the Valley or East Laurel Hill shall include adequate off-street parking to accommodate not only permanent residents but a reasonable number of visitors. Although on-street parking should be discouraged, in some areas pull-out facilities for parking should be developed, particularly where congestions exists. Off-street parking is provided as required by code for the multi-family development, and includes sufficient on-street spaces that would also accommodate a reasonable number of visitors. A minimum of one space is also required for single family lots. Typically, new houses contain garages and one space is often provided in front of the garage. This can be evaluated at time of building permit submittal but for purposes of this review this policy has been met. East Laurel Hill Area Policy 6: Development and expansion of park facilities and bicycle paths is encouraged. The South Hills ridgeline park plan shall be continued. . The East Laurel Hill area includes. the east end of this development site. The PUD proposes to dedicate a public connection from Moon Mountain Park to the Ribbon Trail, consistent with this policy. Transportation Policy: The Glenwood collector shall be designed to avoid breaking up large and existing properties, improve the intersection alignment of the Laurel Hill-Glenwood over-pass and maintain safe site distance. It shall serve as the primary access to future residential development south of the node, but terminate and diffuse into other roads serving the area. No connection to 30th Avenue shall be made. This policy discusses the limitation on extending the Glenwood collector from 1-5 south to 30th Avenue. The street design of East Ridge Village PUD to the north of the subject property, and the proposed street alignments in this development, will ensure there is no collector street LaurelRidge Applicant Final Argument - Page 35 118 PDF Page 70 extending through to 30th Avenue consistent with this policy. Tentative PUD Standards in the Code: 9.8320(3): The PUD will provide adequate screening from surrounding properties including, but not limited to, anticipated building locations, bulk, and height. The applicant's proposal includes 608 total dwelling units, consisting of 533 multi-family residential units and 75 single family lots on a gross site area of 121.68 acres. The multi-family units are located along the west portion of the site and. single family lots on the east portion. A wide buffer between proposed buildings is provided to the west adjacent to the Ribbon Trail (over 500 feet) and the ridgeline (over 130 feet). To the north and east, a buffer of 20 feet to 60 feet is provided between the single family homesites and the northern and eastern property lines. In an effort to cluster the multi-family, and preserve a greater degree of natural resources (headwaters to the Laurel Hill Valley Creek, the Ridgeline and existing vegetation) there is a less of an opportunity to add vegetation between the individual rows of multi-family units. This criterion contemplates buffering of the proposed units from surrounding properties and not from each other. The vast majority of the site preserves a setback area from surrounding properties whether the surrounding properties are vacant or developed. See Site Plan Sheet 3.0. Additional protections-provided by Forest Conservation Area and dedication of open space areas to the city of Eugene will ensure adequate screening from surrounding properties. Tree and vegetation replacement (See PUD narrative of June 24, 2013 at Page 43) will replace trees removed at a ratio of 3.65 : 1. The revegetation will include canopy trees as well as understory trees, shrubs and hydro seeding of the native forest floor. This strategy will further enhance the visual separation between neighboring properties. Through these conservation and mitigation strategies, as well as clustering of development, this policy is met. 9.8320 4 : The PUD is designed and sited to minimize impacts to the natural environment by addressing the following: (a) Protection of Natural Features. 1. For areas not included on the City's acknowledged Goal5 inventory, the preservation of significant natural features to the greatest degree attainable or feasible, including; a. Significant on-site vegetation, including rare plants (those that are -proposed for listing or are listed under State or Federal law), and native plant communities. b. All documented habitat for all rare animal species (those that are Lau relRidge Applicant Final Argument- Page 36 119 PDF Page 71 proposed for listing or are listed under State or Federal law), c. Prominent topographic features, such as ridgelines and rock outcrops. d. Wetlands, intermittent and perennial stream corridors, and riparian areas. e. Natural resource areas designated in the Metro Plan diagram as "Natural Resource' and areas identified in any city-adopted natural resource inventory. 2. For areas included on the City's acknowledged Goal 5 inventory: a. The proposed development's general design and character, including but not limited to anticipated building locations, bulls and height, location and distribution of recreation space, parking, roads, access and other uses, will: (1) Avoid unnecessary disruption or removal of attractive natural features and vegetation, and (2) Avoid conversion of natural resource areas designated in the Metropolitan Area General Plan to urban uses When alternative locations on the property are suitable for development as otherwise permitted. b. Proposed buildings, road, and other uses are designed and sited to assure preservation of significant on-site vegetation, topographic features, and other unique and worthwhile natural features, and to prevent soil erosion or flood hazard. EC 9.8320(4)(a)2 applies, due to the presence of Goal S water resources and scenic areas. For the latter, see the inventory shown on Metro Plan Working Papers, Scenic Areas (1978), Figure H-2). Also see Ordinance 20531, for more information on the inventories water resources. Compliance with the very subjective standards in Subsection (4)(a)2 is demonstrated by the site plan, the applicant's narrative, and the findings in the balance of this decision. A few highlights: Building locations have been clustered together as is practical; the bulk and height of the buildings are closely aligned with the maximum allowed in the base zone with some flexibility provided by the PUD itself; the streets have been located and-aligned with existing logging roads and existing topography as much as design and other competing standards allow; and open space areas have been overlaid where connections to parks are desired, where Goal 5 resources can be preserved and where buffers between abutting properties can be best utilized. In this manner over 63% of the site has been conserved (will be untouched) minimizing disruption or removal of attractive features. This policy is met. The design also seeks to avoid conversion of natural resource areas to urban uses. The greatest extent practical, this plan has avoided the conversion of the waterways, wetlands, and vegetation to urban uses, keeping in mind the intended use and underlying zoning of the site. Significant onsite resources have been preserved as far as practical. See also Applicant's Written Testimony at the public hearing on August 28, 2013, Exhibit 6. Laurel Ridge Applicant Final Argument- Page 37 120 PDF Page 72 This criterion is met. (b) Tree Preservation. The proposed project shall be designed and sited to preserve significant trees to the greatest degree attainable or feasible, with trees having the following characteristics given the highest priority for preservation: 1. Healthy trees that have a reasonable chance of survival considering the base zone or special area zone designation and other applicable approval criteria; 2. Trees located within vegetated corridors and stands rather than individual isolated trees subject to windthrow; 3. Trees that fulfill a screening function, provide relief from glare, or shade expansive areas of pavement; 9. Trees that provide a buffer between potentially incompatible land uses; 5. Trees located along the perimeter of the lot(s) and within building setback areas; 6. Trees and stands of trees located along ridgelines and within view corridors; 7. Trees with significant habitat value; 8. Trees adjacent to public parks, open space and streets; 9. Trees located along a water feature; 10. Heritage trees. See the Report of the Project Arborist, Kyle W. King, submitted as Prehearing Exhibit 3.2. That report establishes the following: o The health of the trees across the site is about the same overall: some good, some bad. Based on the health of the trees, there is no reason to try to preserve everything in any particular portion of the site, rather than another portion. Reducing the number of proposed single-family home sites to only 75, as in the current proposal (from something like 225 lots in an earlier proposal), coupled with the homesite disturbance limits and setback distances, results in significant area that will be preserved. C. In addition to homesite tree preservation, tree preservation will occur in the large areas. to be left as open space at the east and west ends of the project, in the riparian corridors that will be substantially untouched, and in the ridgeline strip that will remain forested. o Focusing on habitat area and not individual trees is a more sustainable objective. Meaningful area provides diverse habitat (mixed canopy, understory, forest floor, etc) which provides healthier forest ecology (shade, soil moisture, slope stability) while also providing for a healthy wildlife environment (avian and terrestrial). Laurel Ridge Applicant Final Argument - Page 38 121 PDF Page 73 , With a lot-by-lot site visit and analysis of trees within each single-family homesite, specific homesite locations and configurations were refined (See Pre-Hearing Submittal, Exhibit 3-2.1). It is worth pointing out that Kyle W. King is the only Arborist to have studied the site. He inventoried over 4,000 trees at the west of the site. He also walked the entire site with the current site plan in hand. His report is based on that lot-by lot site visit. Arborist Kyle W. King closes his report (Pre-Hearing Submittal, Exhibit 3-2 with the following: I have revisited and walked the site with proposed site plan in hand. I used the mobile GPS devise and located each of the proposed single-family lots on the site. With that level of accuracy, I was able to assess tree impact and tree preservation on every lot. 1 have an understanding of where trees will be left and potentially removed under the development proposal. In my opinion, the proposed site plan is a competent way to maximize tree preservation consistent with the 10 code priorities while still allowing development at the allowed density. Reducingthe number of proposed single-family homesites to only 75 as-in the current proposal (from something like 225 lots in an earlier proposal), coupled with the homesite disturbance limits and setback distances results in significant area that will be preserved. In addition to homesite tree preservation, tree preservation will occur in the large areas to be left as open space at the east and west ends of the project, in the riparian corridors that will be substantially untouched, and in the ridgeline strip that will remain forested. In summary, focusing on habitat area and not individual trees is a more sustainable objective. Meaningful area provides diverse habitat (mixed canopy, understory, forest floor, etc) which provides healthier forest ecology (shade, soil moisture, slope stability) while also providing for a healthy wildlife environment (avian and terrestrial). Tree preservation is accomplished through establishment of Forest Conservation Areas as well as areas that will be dedicated to the city of Eugene for trail and park connectivity. These areas offer protection to trees as well as other vegetation, natural resources and habitat areas. The conditions of approval stated above under the SHS policies will provide a reasonable framework for City enforcement of tree preservation requirements that are essential to ensuring compliance with the applicable approval criteria. (c) Restoration or Replacement. 1. For areas not included on the city's acknowledged Goal 5 inventory, the proposal mitigates, to the greatest degree attainable or feasible, the loss of significant natural features described in criteria (a) and (b) above, through LaurelRidge Applicant Final Argument - Page 39 122 P®F Page 74 the restoration or replacement of natural features such as: a. Planting of replacement trees within common areas; or b. Re-vegetation of slopes, ridgelines, and stream corridors; or c. Restoration offish and wildlife habitat, native plant habitat, wetland areas, and riparian vegetation. To the extent applicable, restoration or replacement shall be in compliance with the planting and replacement standards of EC 6,320. 2. For areas included on the city's acknowledged Goal 5 inventory, any loss of significant natural features described in criteria (a) and (b) above shall be consistent with the acknowledged level of protection for the features. The standard in (c)2 applies. This application complies with the code protections for Goal 5 Water Resources Conservation Areas. It also complies with the standards protecting the Goal S scenic areas because it complies with the SHS. Complying with the code meets this standard. (d) Street Trees. If the proposal includes removal of any street tree(s), removal of those street tree(s) has been approved, or approved with conditions according to the process at EC 6.305, This subsection does not apply because there are no street trees proposed for removal. 9.83.20(5): The PUD provides safe and adequate transportation systems through compliance with the following: (a) EC 9.6800 through EC 9.6875 Standards for Streets, Alleys, and Other Public Ways (not subject to modifications set forth in subsection (11) below). As shown on the applicant's site plans, primary access to the site is proposed from a newly constructed street ("Frontage Road") extended to 30th Avenue via Spring Boulevard. "A" Street and "B" Street are the'two public streets proposed to serve the development. "A" Street is proposed as a local residential street that will connect through -the site'from the Frontage Road to Brackenfern Road and Rockrose Lane, which are planned as part of the East Ridge Village PUD to the north, but have not yet been dedicated or constructed. "B" Street is another local residential street that extends east from "A" Street to serve lots on the eastern-most portion of the site. A private street extends from "A" Street on the west to "B" Street on the east to serve the central portion of the single-family lots. 9.6805 Dedication of Public Ways and 9.6870 Street Width. The proposed public streets (Frontage Road, A Street and B Street) which are not identified on the adopted Street Classification Map or on the adopted Right-of-Way Map (Fig. 60-61 of the Arterial and Collector Street Plan (ACSP)), are classified as local streets. The applicant's proposal seeks approval to reduce right-of-way width, eliminate sidewalk setbacks, reduce the area where sidewalks are.provided on both sides, and reduce sidewalk LaurelRidge Applicant Final Argument- Page 40 123 PDF Page 75 width based on proposed "noncompliance" under EC 9.8320(11)k). However, the street standards at EC 9.8320(5)(a) are not subject to non-compliance modifications. Public Works staff does indicate that based on the City's adopted local street design standards (Design Standards for Eugene Streets, Sidewalks, Bikeways and Accessways), that "curbside sidewalks and sidewalks on one side of the street [may be permitted] in special circumstances, such as to reduce excessive impacts to topography, wetlands, drainageways, and other natural features" (see Section F- Sidewalks) and that "depending on the projected traffic volumes and any circumstances unique to the location, pavement widths for local residential streets range from 20' to 34' with right-of-way widths ranging from 40' to 60'." The proposal meets the criterion regarding street classification, right of way width and improvements with summary comments provided below: Frontage Road - Medium-Volume Residential Street connecting Spring Boulevard at 30th to A Street, which includes 24 feet of paving, a 12-foot multi-purpose path on the north side with planter strips on both sides within 50 feet of right of way. Meets right of way minimum and allowance to provide setback sidewalk.on one side only, as the 12 foot sidewalk will function as a multi-use path and additional sidewalk would require additional impact to natural resources. Since the Frontage Road, which will be located at the base of the existing 30th Avenue embankment, is currently contained within the 30th Avenue right-of-way under Lane County'jurisdiction, several steps would be necessary before the Frontage Road right-of- way could be dedicated to the City of Eugene. This would include satisfaction of Lane County concerns regarding the stability of the 30th Avenue embankment and associated drainage, subsequent transfer of ownership from Lane County to the developers, and annexation of the future right-of-way to the City of Eugene. A Street - Medium-Volume Residential Street connecting the Frontage Road to Brackenfern Road, Rockrose Lane and B Street. Proposed 24-foot paved width and six- foot curbside sidewalks on one side along western portion and both sides on eastern portion within 50 feet of right of way. Meets right of way minimum of 50 feet for medium-volume residential street and exceeds.paving width minimum of 20 feet. Allowance to provide curbside sidewalks instead of setback sidewalks is acceptable, as meeting standard would require additional cut and fill. Segment east of Rockrose Lane should be revised to match B Street. B Street- Low-Volume Residential Street, connecting from-A Street to eastern portion of site. Proposed 21-foot paved width with sidewalk on one side, within 45-foot right of way. Meets right of way minimum of 45 feet and exceeds paving width minimum of 20- feet. Allowance to provide curbside sidewalks instead of setback sidewalks is acceptable as meeting standard would require additional cut and fill. Segment east of Rockrose Lane should be revised to match B Street. LaurelRidge Applicant Final Argument - Page 41 124 PDF Page 76 Brackenfern Road - Low-Volume Residential Street, connecting A Street to planned Brackenfern Road right-of-way to the north. Proposed 24-foot paved width and six-foot curbside sidewalks on both sides, within 45-foot right of way. Meets right of way minimum of 45 feet and exceeds paving width minimum of 20 feet. Allowance to provide curbside sidewalks instead of setback sidewalks is acceptable as meeting'standard would require additional cut and fill. Rockrose Lane - Medium-Volume Residential Street, connecting A Street to Rockrose Lane Right of Way to the north. Proposed 24-foot paved width and six-foot curbside sidewalks on both sides, within 45-foot right of way. Meets right of way minimum of 45 feet and exceeds paving width minimum of 20 feet. Allowance to provide curbside sidewalks instead of setback sidewalks is acceptable as meeting standard would require additional cut and fill. No sidewalk should be provided on east side of street, to match Rockrose Lane cross-section approved for East Ridge PUD. Public Works referral comments are included in the application file with more detail regarding street design and compliance with applicable standards. 9.6810 Block Length. Block length for local streets shall not exceed 600 feet, unless an exception is granted based on one or more of the following: (1) Physical conditions preclude a block length 600 feet or less. Such conditions may include, but are not limited to, topography or the existence of natural resource areas such as wetlands, ponds, streams, channels, rivers, lakes or upland wildlife habitat area, or a resource on the National Wetland Inventory or under protection by state or federal law. (2) Buildings or other existing development on adjacent lands, including previously subdivided but vacant lots or parcels, physically preclude a block length 600 feet or less, considering the potential for redevelopment. (3) An existing public street or streets terminating at the boundary of the development site have a block length exceeding-600 feet, or are situated such that the extension of the street(s) into the development site would create a block length exceeding 600 feet. In such cases, the block length shall be as close to 600 feet as practicable. (4) As part of a Type it or Type III process, the developer demonstrates that a strict application of the 600 foot requirement would result in a street network that is no more beneficial to vehicular, pedestrian or bicycle traffic than the proposed street network and that the proposed street network will accommodate necessary emergency access. Special block requirements related to multiple family developments are found in section (10) of EC 9.5500 Multiple-Family Standards. Public Works referral comments note that the proposal exceeds the maximum block length . standards. Block length is defined at EC 9.0500 as "the distance along a street between the LaurelRidge Applicant Final Argument- Page 42 125 PDF Page 77 centerline of two intersecting through public streets, including 'T' intersections, but excluding cul-de-sacs". The proposed block lengths are as follows: - Frontage Road Spring to A Street 2,308 ft. - Frontage Road A Street to E'ly Boundary 318 ft. - A Street Frontage Rd to Brackenfern Rd. 3,548 ft. - A Street Brackenfern Rd. to Rockrose 475 ft. - A Street Rockrose to B Street 906 ft. - A Street B Street to Hammerhead 384 ft. (approx) - B Street A Street to CDS 1,300 ft. (approx) Applicant submitted testimony requesting relief from block length in its Narrative dated June 24, 2013 at page 46. Applicant submitted additional testimony- See Pre-Hearing Exhibit 8-1 submitted by Branch Engineering. This supplemental block length analysis demonstrates that physical conditions preclude shorter blocks. Relief is requested for block length considering that connections to reduce block length exceed the 20 percent slope maximum for fire access. Avoidance of disturbing natural resources, vegetation, minimizing cut and fill, etc. are all considered in the additional testimony. It is also noted that adding additional connections would not provide the benefit of reducing travel length, travel time, emergency vehicle access or pedestrian access. The city comments regarding block length were discussed as relevant to the purpose and intent of the development code with the existing street layout shown on the current site plan to document the adequacy of the existing layout to serve the public with minimal impact to natural features and minimal travel times and distances for pedestrian, bicycle, and motor vehicle traffic. The SHS and The Laurel Hill Plan policies are intended to provide the developer with considerable latitude in the shaping, depth and required street frontage of lots where necessary to preserve the terrain (Laurel Hill Plan Land Use Policy 5 and Transportation Policy 3). Relief is requested regarding Standard EC 9.6810(1), Physical Conditions. This can be granted. This standard has been met. 9.6815 Connectivity for Streets. (2) Street Connectivity Standards. (a) All streets and alleys shall be public unless the developer demonstrates that a public street or alley is not necessary for compliance with this land use code or the street connectivity standards of subparagraphs (b) through (f) of this subsection. LaurelRidge Applicant Final Argument- Page 43 126 PDF Page 78 (b) The proposed development shall include street connections in the direction of all existing or planned streets within 114 mile of the development site. The proposed development shall also include street connections to any streets that abut, are adjacent to, or terminate at the development site. (c) The proposed development shall include streets that extend to undeveloped or partially developed land that is adjacent to the development site or that is separated from the development site by a drainage channel, transmission easement, survey gap, or similar property condition. The streets shall be in locations that will enable adjoining properties to connect to the proposed development's street system. (d) Secondary access for fire and emergency medical vehicles consistent with EC 9.6870 is required. (e) Except for applications proposing needed housing, all applicants shall show that the proposed street alignment shall minimize excavation and embankment and avoid impacts to natural resources, including water-related features. (f) In cases where a required street connection would result.in the extension of an existing street that is not improved to city standards and the street has an inadequate driving surface, the developer shall-construct a temporary barrier at the entrance to the unimproved street section with provision for bicycle, ' pedestrian, and emergency vehicle access. The barrier shall be removed by the city at the time the existing street is improved to city standards or to an acceptable standard adopted by the public works director. In making a determination of an inadequate driving surface, the public works director shall consider the street rating according to Eugene's Paving Management System and the anticipated traffic volume. (g) In the context of a Type 11 or Type 111 land use decision, the city shall grant an exception to the standards in subsections (2)(b), (c) or (d) if the applicant demonstrates that any proposed exceptions are consistent with either subsection 1. or 2. below: 1. The applicant has provided to the city, at his or her expense, a local street connection study that. demonstrates: a. That the proposed street system meets the intent of street connectivity provisions of this land use code as expressed in EC 9.6815(1); and ,b. How undeveloped or partially developed properties within a quarter mile can be adequately served by alternative street layouts. 2. The applicant demonstrates that a connection cannot be made because of the existence of one or more of the following conditions: a. Physical conditions preclude development of the connecting street. Such conditions may include, but are not limited to, topography or likely 'impact to natural resource areas such as wetlands, ponds; streams, channels, rivers, lakes or upland wildlife habitat area, or a resource on the National Wetland Inventory or under protection by state or federal low. Laurel Ridge Applicant Final'Argument - Page 44 127 PDF Page 79 b. Buildings or other existing development on adjacent lands, including previously subdivided but vacant lots or parcels, physically preclude a connection now or in the future, considering the potential for redevelopment. The Staff Report says, at page 28: In addition to the proposed connections to Brackenfern Road and to Rockrose Lane, the applicant proposes to extend A Street in a southerly direction to the southerly boundary of the proposed development, B Street in an easterly direction from the B Street cul-de-sac to the easterly boundary of the proposed development, and Frontage Road in an easterly direction towards adjacent Tax Lot 6900 (Betz/Evans property). As noted in the applicant's written statement, in lieu of dedicating street right-of-way, presumably because of the lack of certainty that the streets will ever be extended beyond the UGB, the applicant proposes deed restrictions in lieu of outright dedication in both cases. While the proposal for extension of the streets is acceptable, staff notes that a deed restriction would not guarantee the dedication of right-of-way at a future date when the right-of-way would be needed for extension of the street and notes that the proposed street connections must be accomplished by right-of-way dedication, or by a reserve strip that can be converted to right-of-way when the right-of-way is needed in the future. It should be noted that the applicant originally proposed right-of-way dedication (See July 2012 PUD submittal) but staff indicated they didn't want that. If it never ends up being needed, they didn't want to deal with dedicated, but undeveloped, right-of-way out there. Staff then stated that Deed restrictions would be an appropriate tool to facilitate connectivity. The applicant complied. Now however, the Staff Report makes clear that this is no longer the case. As such a condition of approval is suggested: Prior to Final PUD approval the applicant will indicate dedicated right-of-way and/or reserve strips where "A" Street and "B" Street extend to neighboring and undeveloped properties. The Staff Report says, at page 28: The applicant requests an exception to street connection requirements per EC 9.6815(g)(2)(a) which allows for exceptions to subsections (b) nearby streets (c) adjacent properties and (d) the provision of secondary access, based on "physical conditions (which) preclude development of the connecting streets". In order to satisfy the street connectivity standards at subsections (2)(b) and (c), the proposed development would also need to demonstrate justification for an exception under (2)(g) for the lack of any street connection to the existing LaurelRidge Applicant Final Argument - Page 4S 128 PDF Page 80 Everglade Avenue right-of-way, or to another point on the northerly boundary which would feasibly allow for streets to be extended through the Ruff and Carroll properties when those properties develop. While it appears that the applicant may be able to justify an exception based on steep slopes and natural features in this area, inadequate information has been provided with the application. City of Eugene review comments concerning street connectivity were discussed as relevant to the purpose and intent of the development code with the existing street layout shown on the current site. The SHS and Laurel Hill Refinement Plan objectives are intended to provide the developer with considerable latitude in shaping, depth and required street frontage of lots where it is necessary to preserve the terrain. A review of the site plan and existing natural features reveals that the site layout is constrained by natural resources that limit development potential, including Goal 5 riparian corridors and slopes that exceed 20% that preclude the development from meeting all of the City of Eugene design standards, including street connections to undeveloped properties, The applicant conducted additional connectivity analysis and submitted its findings in the Pre- Hearing submittal (See Applicant's Pre-Hearing submittal Exhibits 5, 5-1 and 5-2, and Exhibits 7 and 7-1 (Branch Engineering). Exhibit 7-1 states: The LaurelRidge site meets the purpose and intent of the street connectivity standards of EC 9.6815(2)(g)(1)(a) and (b) with regard to the Laurel Hill Refinement Plan and South Hills Study objectives. The applicability of EC 9.6815(1) was discussed previously in the context of providing a connection to Floral Hill Drive from the site via a new connection or the existing alignment of Everglade Avenue. The Ruff property has frontage on Floral Hill Drive that could provide access to the majority of property on that parcel north of the natural features that create a boundary for access through the site to Floral Hill Drive. The Carrol property has frontage on the existing right-of way of Floral Hill Drive as well as Everglade Avenue, which provides street access to Floral Hill Drive from that property. EC 9.6815(2)(g)(1)(b) should be satisfied with adequate access available to the Ruff and Carroll properties. The South Hills Study and the Laurel Hill Refinement Plan objectives include minimizing cut and fill slopes to the maximum extent practicable. Thus, with this, it is demonstrated that the Ruff and Carrol properties can be adequately accessed from existing right-of-way, and additional connectivity to the subject property is both impractical and unnecessary. 9.6820 Cul-de-Sacs or Emergency Vehicle Turnarounds. (1) Except for streets that are less than 150 feet long and streets that will be extended in the future, all streets that terminate shall be designed as a cul-de-sac bulb or an emergency vehicle turnaround. LaurelRidge Applicant Final Argument - Page 46 129 PDF Page 81 (2) If a street will be extended in the future, a temporary easement shall be provided and an emergency vehicle turnaround shall be constructed. (3) There shall be no cul-de-sacs more than 400 feet long from the centerline of the intersecting street to the radius point of the cul-de-sac bulb. (4) Public accessways to provide safe circulation for pedestrians, bicyclists and emergency vehicles shall be required from a cul-de-sac or emergency vehicle turnaround longer than 150' in length-when measured from the centerline of the intersecting street to the radius point of the cul-de-sac or to the center point of the emergency vehicle turnaround. (5) As part of a Type 11 or Type 111 process, an exception maybe granted to the requirements of (1), (3) and (4) of this section because of the existence of one or more of the following conditions: (a) Physical conditions preclude development of the connecting street. Such conditions may include, but are not limited to, topography or likely impact to natural resource areas such as wetlands, ponds, streams, channels, rivers, lakes or upland wildlife habitat areas, or a resource on the National Wetland Inventory or under protection bystate or federal law. (b) Buildings or other existing development on the subject property or adjacent lands, including previously subdivided but vacant lots or parcels, physically.' preclude a connection now or in the future, considering the potential for redevelopment. EC 9.6820 Cul-de-Sacs: The proposed development includes two streets which terminate on-site. A Street will be approximately 384 feetfrom its intersection with B Street and will terminate with a hammerhead turnaround. B Street, from its intersection with A Street will be approximately 1,300 feet long and will terminate with a cul-de-sac bulb. While the applicant proposes to provide for the extension of both streets to the development boundary, the timing of the future extension of the streets is unpredictable and the applicant is proposing permanent end treatment of the streets. Therefore, the length of these street segments will be reviewed under the cul-de-sac standards, rather than the block length standards. The applicant has requested an exception to EC 9.6820(3) and the maximum cul-de-sac length standard of 400 feet pursuant to EC 9.6820(5)(a), based on physical conditions as detailed in referral comments in the file. Based on the current street configuration and phasing proposal, temporary emergency vehicle turnarounds and easements would be required at the terminus of A Street for Phases 1, 3 and 4. This criterion is met and as such agrees with the applicant's exception request. 9.6830 Intersections of Streets and Alleys. (1) Angles." LaurelRidge Applicant Final Argument - Page 47 130 PDF Page 82 (a) Streets and alleys shall intersect one another at an angle as near to a right angle as is practicable considering topography of the area and previous adjacent layout. (b) If an intersection must occur at an angle of less than 90 degrees, it shall comply with the standards in the American Association of State Highway and Transportation Officials (AASHTO) publication entitled "A Policy on Geometric design of Highways and Streets," then in effect, or its replacement publication. (2) Offsets. The minimum intersection offset shall be 100 feet on a local street, 200 feet on a collector street, and 400 feet on an arterial street unless adjusted through the process for adjustments to standards of EC 9.8030(12). Offsets shall be measured from the center lines of the two intersecting streets. Because of the sharp angle at the Spring Blvd./Frontage Road intersection, the proposed development does not comply with subsection (1), which requires that streets intersect one another at an angle as near to a right angle as practicable. In this case, Public Works and Lane County Transportation staff indicate that the proposed alignment would need to be revised, for example to swing the street north and intersect with Spring Boulevard at closer to a right angle. This would likely result in additional fill impacts along the slope in this location, but necessarily, in order to address this traffic safety concern. Other than the aforementioned intersection, proposed street intersections are at 90 degrees or as near as practicable, and minor adjustments may be necessary during the PEP] review to ensure conformance with AASHTO requirements. A suggested Condition of Approval could be: Or • Prior to Final PUD Approval, the applicant will revise the intersection of Frontage Road and Spring such that the intersection is 90 degrees. Prior to Final PUD approval road alignment will be reviewed by Public Works and revised accordingly. Given the proposed configuration of streets, the proposed development complies with the offset standards at subsection (2), which in this instance is a minimum spacing of 100 feet required for local streets. 9.6835 Public Accessways. (1) The city shall require within the development site the dedication to the public and improvement of accessways for pedestrian and bicyclist use to connect the development site to adjacent cul-de-sacs or to an adjacent site that is undeveloped, publicly owned, or developed with an accessway that connects to the subject site, provided the-city makes findings to demonstrate consistency with constitutional requirements. Public accessways shall conform to design standards LaurelRidge Applicant Final Argument- Page 48 131 PDF Page 83 for accessways contained in the "Design Standards for Eugene Streets, Sidewalks, Bikeways and Accessways". (2) Existing unimproved public accessways on properties adjacent to the development site shall be improved consistent with the "Design Standards for Eugene Streets, Sidewalks, Bikeways and Accessways" if such accessways are connected to the subject site, provided the city makes findings to demonstrate consistency with constitutional requirements. Said improvements to unimproved public accessways shall connect to the closest public street or developed accessway. (3) Adjustments to Standards. The standard at EC 9.6835(1) maybe adjusted if consistent with the'criteria of EC 9.8030(20). Public Works referral comments indicate that existing trails provides adequate access to Moon Mountain Park. Project #242 in the Pedestrian and Bicycle Master Plan provides for a 'Paved shared use path that is projected to connect the Laurel Hill Valley (LHV) to 30th Avenue. The Laurel Ridge PUD plans appear to satisfy this facility need by providing local street connections between LHV and 30th Avenue. The inclusion of a Public Accessway overthe proposed Emergency Vehicle Access to 30th Avenue would provide a more direct connection than the Frontage Road, although Lane County referral comments indicate safety issues with that connection until such future time as bicycle and pedestrian facilities may be provided along 30th Avenue. 9.6840 Reserve Strips. The city manager may require the developer to dedicate a reserve strip controlling the access to a street or alley when a reserve strip is necessary to address one or more of the following: (1) To prevent access to abutting land at the end of a street in order to assure the proper extension of the street pattern and the orderly development of land lying beyond the street. To prevent access to abutting land at the end of public streets and in order to assure the proper extension of the street pattern and the orderly development of land lying beyond the street, reserve strips would be required for any streets that terminate at the development site boundary including the easterly terminus of Frontage Road, the southerly terminus of A Street, the easterly terminus of B Street and the northerly termini of Brackenfern Road and Rockrose Lane. The reserve strips would be required at the time of a subsequent subdivision review. 9.6865 Transit Facilities. (1) Except for applications proposing needed housing, the city manager may require provisions, including easements, for transit facilities where future transit routes are required on streets extending through or adjacent to the area of the development, and where a need for bus stops, bus pullouts or other transit facilities within the development has been identified, provided the city makes findings to demonstrate consistency with constitutional requirements. Referral comments from Lane Transit District indicate that the closest stop is located on 30th LaureiRidge Applicant Final Argument - Page 49 132 PDF Page 84 Avenue at Spring Boulevard, and nothing further is required of the applicant. 9.6875 Private Street Design Standards. Private streets, when permitted under EC 9.6815(2), shall be designed and constructed in accordance with applicable requirements for private streets contained in the adopted "Design Standards and Guidelines for Eugene Streets, Sidewalks, Bikeways and Accessways." Parking lot drive aisles are mistakenly labeled as private roads. This is a simple labeling error. The same error may be found in the written statement. These should have been labeled as drive aisles and as such do not need to meetthe standards for private roads. There is also a private road on the plan. This was a scrivener's error in the Applicant's Narrative date June 24, 2013. This Narrative was the third narrative submitted to city staff. The site plan had changed-at this point to include a private road and is labeled as such on Sheet 9.0 in Plan Set. This was simply missed by the Applicant in the written discussion. The private street is also shown in section on Sheet 9.0 which demonstrates compliance with city standards: The private street(s) will be built to city standards. This criterion has been met. (b) Pedestrian, bicycle and transit circulation, including related facilities, as needed among buildings and related uses on the development site, as well as to adjacent and nearby residential.areas, transit stops, neighborhood activity centers, office parks, and industrial parks, provided the city makes findings to demonstrate consistency with constitutional requirements. "Nearby" means uses within 114 mile that can reasonably be expected to be used by pedestrians, and uses within 2 miles, that can reasonably be expected to be used by bicyclists. Bicycle and pedestrian connections are provided among buildings to the right-of-way. The proposed streets with sidewalks will provide bicycle and pedestrian access to the nearest transit stop at 30th Avenue via the Frontage Road which has a multi-purpose path on one side. Street stubs with sidewalks are provided to a future residential development to the north (East Ridge Village PUD) via Brackenfern Road and Rockrose Lane. Pedestrian connections are also proposed to the Ridgeline Trail system which provides access to Moon Mountain Park and to the Ribbon Trail via the Frontage Road multi-purpose path. (c) The provisions of the Traffic Impact Analysis Review of EC 9.8650 through 9.8680 where applicable, A Traffic Impact Analysis (TIA) was submitted as part of the concurrent application package (see Applicant's Attachment 7) and evaluated in referral comments from Public Works staff. EC 9.8670(1) requires a TIA for developments that will generate 100 or more vehicle trips during any peak hour as determined by using the most recent edition of the Institute of Transportation LaurelRidge Applicant Final Argument - Page 50 133 PDF Page 85 Engineer's (ITE) publication Trip Generation. The TIA application is discussed in the next section of these findings. 9.8320(6., The PUD will not be a significant risk to public health and safety, including but not limited to soil erosion, slope failure, stormwater or flood hazard, or an impediment to emergency response. The proposed PUD will not pose a significant risk to public health and safety if the applicant complies with conditions of approval regarding development set out elsewhere in this evaluation. Those specific design and construction standards will be addressed through subsequent subdivision applications and related permitting processes. This specifically includes findings and requirements related to the applicant's stormwater drainage system and analysis, and the applicant's geotechnical analysis. The subject property is not located within a designated flood hazard area and erosion prevention permits will be required for various components of the proposed development to ensure there are no significant risks associated with soil erosion. Emergency response will be facilitated by the available secondary access. See Applicant's Pre- Hearing submittal, Exhibits 5, 5-1 and 5-2. Additional Stormwater analysis clarifies that adequate downstream capacity exists for basins 3, 4 and 5. (See applicant's Hearing submittal, Exhibit 13). Based on the evidence presented, and provided the applicant complies with the development standards identified in the Geotech Report and subsequent requirements listed during permit review, the HO can conclude that the proposed PUD will comply with this criterion. 9.8320(7). Adequate public facilities and services are available to the site, or if public services and facilities are not presently available, the applicant demonstrates that the services and facilities will be available prior to need. Demonstration of future availability requires evidence.of at least one of the following: (a) Prior written commitment of public funds by the appropriate public agencies. (b) Prior acceptance by the appropriate public agency of a written commitment by the applicant or other party to provide private services and facilities. (c) A written commitment by the applicant or other party to provide for offsetting all added public costs or early commitment of public funds made necessary by development, submitted on a form acceptable to the city manager. The Staff Report, at page 45-46, supports the conclusion that services are available or can be provided, as explained in the annexation decision. See Staff Report for further discussion. In response to the discussion in the Staff Report regarding Criterion (6) and (7) the following conditions of approval are recommended; LaurelRidge Applicant Final Argument - Page 51 134 PDF Page 86 Should the adjacent East Ridge PUD development not occur in a timely manner, the applicant will procure and develop the Secondary Interim Access as described in the Pre- Hearing submittal Exhibit 5 beginning with LaurelRidge Phase 3. Should the adjacent East Ridge PUD development not occur in a timely manner to facilitate later phases of t aurelRidge development (those associated with stormwater basins 3, 4 and 5) additional on-site detention to attenuate flows shall be provided. The detention system(s) shall be located within areas approved for impact by development (outside the natural resource preservation areas) 9.8320(8): Residents of the PUD will have sufficient usable recreation area and open space that is convenient and safely accessible. The Staff Report, at page 46, explains why this standard is met. That discussion is incorporated here. 9,8320(-9): stormwater runoff from the PUD will not create significant negative impacts on natural drainage courses either on-site or downstream, including, but not limited to, erosion, scouring, turbidity, or transport of sediment due to increased peak flows or velocity. This standard will be met by the applicant's stormwater plan, which will hold the post develop peak-discharge to the pre-development rate. The majority of the stormwater is being directed to existing piped stormwater systems. The stormwater that is directed tQ the Goal 5 resource areas will be controlled through detention facilities. Discharge from the detention facilities will be directed to designated outfall areas with rip-rap pads sized appropriately for design storm peak flow rates. (See Stormwater Analysis submitted June 24, 2013 by Branch Engineering at Page 2 para 6). The solution proposed here for discharges to the natural drainageway is the same as was imposed by the HO in the Spring Knoll PUD to address the same issue. The Hearings Official found a solution for approval of this standard as follows: As identified in the tentative PUD plans for all stormwater run off from the site will-be directed to open waterways or to storm drainage facilities provided in Wendell Lane. Lots and access roads that are unable to drain directly to the storm drainage system in Wendell Lane will discharge their stormwater run off to the existing drainage channels that pass through the site. Channelized outfalls to open drainage ways are erosive to the banks and riparian features of the open channel. All outfalls to open drainage ways shall require a building permit and shall be designed to include energy dissipation measures. (See Hearing Official Decision (Spring Knoll PUD Phase 4) PDT 05-3 (November 17, 2005) at page 21, Prehearing Exhibit 3-1.6.) LaureiRidge Applicant Final Argument - Page 52 135 P®F Page 87 9.8320(10): Lots proposed for development with one family detached dwellings shall comply with EC 9,2790 Solar Lot Standards or as modified according to subsection (11) below, 9.2790 Solar Lot Standards. The Staff Report, at page 36, explains that the application complies with this standard. 9.8320(11): The PUD complies with all of the following: (a) EC 9.2000 through 9.3915 regarding lot dimensions and density requirements for the subject zone. The Staff Report, at page 47, explains that the proposal meets the density and dimension requirements, with a few exceptions, as explained below. Oversized single family lots: Staff appears to support the single family lots exceeding the 13,500 sq. ft. maximum, due to the conditions on the site, as provided for in-EC 9.2761(5)(a)_ However, the Staff requests a covenant against further division of the lots- This objective can be accomplished with the following condition: O All single-family lots will be precluded from future land division. Three double frontage lots: For the reasons stated in the Application Narrative at page 57, the applicant has shown three double frontage lots (Lots 20-22), contrary to the single frontage requirement in EC 9,2761(7). Double frontage is allowed when there is no feasible alternative. The Staff Report does not object to this request. The risks associated with the double frontage lots can be avoided with the following condition: Prior to Final POD approval the double frontage lots will indicate a 1 foot reserve strip on one of the two frontages so as to eliminate the ability to access the lots from 2 sides. Lots with no street frontage: Staff notes that 12 lots will have no frontage on a public or private street, hence do not meet the 50-foot frontage requirement so Table EC9.2760. The staff asserts these variations were not explicitly requested and are notjustified. In a PUD, lots with no frontage are allowed if there is an access easement. The following condition should be applied: Prior to Final PUD approval the applicant will note on the plans that Lots 15-17, 25-27, 40-42 and 58-60 do not meet frontage minimums. A note will be added to the plans indicating the location and dimensions of a joint access and maintenance easement servicing these lots. LaurelRidge Applicant Final Argument- Page 53 . 136 PDF Page 88 With the conditions of approval above, this criterion is met. (b) EC 9.6500 through EC 9.6505 Public Improvement Standards. With regards to EC 9,6500 Easements, the applicant notes that additional easements may be necessary to provide necessary street connection, access to lots without road frontage and others. These easements can be easily added to the Final PUD plans and addressed further at time of tentative Subdivision approval. This condition of approval is recommended: Prior to Final PUD approval the applicant will show all proposed easements on the Final Site Plan, indicating size and location. With regards to EC 9,6505 Improvements, the applicant is proposing that the public improvements will be privately engineered and constructed. Design details and engineering details, coupled with geotechnical engineering to support these documents, will be subject to review and approval during the PEPI process. This is standard operating procedure. All utilities are available to the site as shown on the plans and provided in the Applicants Narrative for PUD Submittal. Sidewalks have been provided and the location of these sidewalks has been discussed elsewhere in this document. The applicant has demonstrated compliance with a variety of street and public improvement standards for the proposed layout and design, utility locations and availability, and sidewalk location. This standard has been met. (c) EC 9.6706 Development in Flood Plains through EC 9.6709 Special Flood Hazard Areas -Standards. These standards do not apply because the subject property is not located within a flood plain or special flood hazard area. (d) EC9.6710 Geological and Geotechnical Ana/ysis, (2) Geological and Geotechnical Analysis Required. Except for those activities exempted under EC 9.6710(3) (3) Exemptions from Geological and Geotechnical Analysis Requirements. The following activities are exempt from the requirements of this section: (f) Activities on land included on the city's acknowledged Goals LaurelRidge Applicant Final Argument - Page 54 137 PDF Page 89 inventory. The Staff Report, at page 48, agrees that this standard does not apply, as provided for in EC 9.6710(3), because the subject property is included on the City's acknowledged Goal 5 inventory. (e) EC 9.6730 Pedestrian Circulation On-Site. The Staff Report, at page 48, that the Application complies with this standard, as reflected by Sheet 3.0 of the plans. (f) EC 9.6735 Public Access Required. (2) Except as otherwise provided in this land use code, no building or structure shall be erected or altered except on a lot fronting or abutting on a public street or having access to a public street over a private street or easement of record approved in accordance with provisions contained in this land use code. The Staff Report notes, at page 49, that 12 lots will have no frontage on a public or private street, hence do not meet the 50-foot frontage requirement so Table EC9.2760, In a PUD, lots with no frontage are allowed if there is an access easement. The Staff Report for The Jewel PUD found the same omission in the plans and resolved it with this condition: The final PUD plans shall be revised to provide an access easement for each lot with no frontage or with reduced frontage and shared access, (See The Jewell on Bailey Hill, PDT 08-1 (Oct. 24, 2008) at 25; Prehearing Exhibit 3-1.4.) (2) Access from a public street to a development site shall be located in accordance with EC 7.420 Access Connections - Location. If a development will increase the development site's peak hour trip generation by less than 50% and will generate less than 20 additional peak hour trips, the development site's existing access connections are exempt from this standard: The Staff Report, at page 49, notes that, with respect to EC 7.420(1)(b), driveways may not be permitted on streets with grades over 15%, and there are several areas with grades in excess of 15%. Therefore, the proposal needs to demonstrate that access connections at these locations are feasible. Staff has not read the plans correctly. Information showing compliance with the 15% driveway grade standard is shown on Plan Sheet 3.0. As shown and noted, the direction of driveway location and driveway travel are indicated for each single-family homesite (the small triangles). These have been located to avoid the 15% gradient street sections. Notwithstanding having made the showing of compliance, the Applicant is fine with a condition of approval as follows: LaurelRidge Applicant Final Argument - Page 55 138 PDF Page 90 o Prior to Final PUD approval the site plans will demonstrate that access connections to lots whose frontage is on that portion of the street with grades over 15% is feasible. (g) EC 9.6750 Special Setback Standards. No special setbacks are required in this instance. (h) EC9.6775 Underground Utilities. The Staff Report, at page 49, notes that the plans show all on-site utilities will be placed underground, consistent with this standard. (i) EC9.67S0 Vision Clearance Area. The Staff Report, at page 49, notes that Sheet 7.5 depicts vision clearance areas (VCA) at each of the public intersections and Sheet 7.6 details typical low screen plantings with a maximum height of 18". The staff says that these standards for vision clearance would be subject to further review at the time the corner lots development is reviewed during building permit submittal. O) EC 9.6791 through 9.6797 regarding storm water destination, pollution reduction, flow control for headwaters area, oil control, source control, easements, and operation and maintenance. See discussion earlier in this document under EC 9.8320 (11). The Staff Report, at page 50, has this to say about the Applicant's plans to comply with the stormwater standards: Referral comments from Public Works staff include a review of the applicant's stormwater analysis prepared by Nathan Patterson, P.E., Branch Engineering, which identifies the existing conditions and identifies 5 proposed storm drainage basins on the site (see Applicant's Attachment 4). Regarding standards at EC 9.6791 Stormwater Destination and EC 9.6793 Stormwater Flow Control, since Basins 1 and 2 (on the west portion of the site) drain directly to headwater streams, flow control is required for those systems. The analysis indicates that post development flows to the headwater streams from areas identified as Basins 1 and 2 will be limited to pre-development levels by means of detention systems. Metered discharge from the detention systems would be directed to designated outfall areas constructed consistent with City standards in order to reduce the velocity of stormwater entering the headwater streams. The proposal indicates that runoff from the new impervious surfaces of Laurel Ridge Applicant Final Argument - Page 56 139 PDF Page 91 Basins 3-5 (located in the middle and eastern portions of the site) will not be permitted to exceed the existing capacity of the existing downstream piped and ditch systems. For these basins, the proposal defers determination of capacity to the design phase. The report notes that, if at the time of final design, it is determined that there is inadequate capacity for the additional flows in any of the downstream systems, detention systems providing for flow control similar to that which is proposed for Basins 1 and 2 will be required. The report does not indicate what potential impact or'site design changes may result, should detention systems be necessary in Basins 3-5. The applicant's stormwater plan Sheet 6.0 does show the.location of detention facilities in Basins 1 and 2. With this information it can be determined if the facilities are public or private and how they may impact site design. For example, it is noted that the private detention facility in the northwest corner of the site is located in an area that is shown on Sheet 3.0 is within a proposed forest conservation area. These impacts and inconsistencies appear to require further information and plan revisions that are not addressed in the application. Further, without any information aboutthe design and.location of detention facilities that may be required for Basins 3-5, deferral of this issue could have significant impact on other elements of the project design, including areas of disturbance (grading, tree removal, etc.) and perhaps building or street locations: Staff believes that in order to adequately address this criterion, the applicant must determine now whether in fact, there is adequate capacity and if not, show how detention facilities will impact the site. Without such information, compliance with the applicable standards remains in question. Public Works referral comments in the file provide further information regarding the stormwater standards at EC 9.6791 through 9.6797. Based on these findings and available evidence, this criterion is not met. In response, the applicant notes the following: ® City of Eugene Public Works Referral Response dated 8/7 (and revised 8/12, 8/13 and 8/16) concludes the PUD application meets this criteria. PUD Staff Report indicates additional information is needed regarding possible stormwater detention system locations to document whether the detention systems (if necessary) will be constructed in natural resource or preservation areas. Technical Memorandum by Branch Engineering, dated 8/27/2013 (Hearing Exhibit 13) clarifies that if stormwater detention is determined to be necessary during final design, sealed detention systems such as vaults, tanks, or constructed planters will be used, and they will be located in non-preservation areas such as streets, parking areas, or other areas approved to be impacted. The applicant is agreeable to a condition of approval requiring anyfuture stormwater detention system not depicted in the PUD application shall be located laurelRidge Applicant Final Argument - Page 57 140 PDF Page 92 outside natural resource preservation areas. (See proposed Condition of Approval under criterion (6) and (7) above) (k) All other applicable development standards for features explicitly included in the application except where the applicant has shown that a proposed noncompliance is consistent with the purposes set out in EC 9.8300 Purpose of Planned Unit Development. The PUD "Purposes" are the touchstone for flexibility: EC 9.8300 Purpose of Planned Unit Development. The planned unit development (PUD) provisions are designed to provide a high degree of flexibility in the design of the site and the mix of land uses, potential environmental impacts, and are intended to: (1) Create a sustainable environment that includes: .(a) Shared use of services and facilities. (b) A compatible mix of land uses that encourage alternatives to the use of the automobile. (c) A variety of dwelling types that help meet the needs of all income. groups in the community. (d) Preservation of existing natural resources and the opportunity to enhance habitat areas. (e) Clustering of residential dwellings to achieve energy and resource conservation while also achieving the planned density for the site. (2) . Create comprehensive site plans for' geographic areas of sufficient size to provide developments at least equal in quality to those that are achieved through the traditional lot by lot development and that are reasonably compatible with the surrounding area. Subsection (k) is the standard that recognizes the applicant's right to have the PUD standards apply flexibly. This standard is addressed in the Applicant's Narrative PUD Application dated June 24, 2013 at pages 19-21. The Staff Report puts a fair amount of energy into listing variations from standards for which the Applicant has not explicitly requested noncompliance or for which it has not made a sufficiently convincing showing of consistency with the PUD Purposes list in EC 9.8300. Hence, the Staff Report recommends a finding of noncompliance under this standard. This is the harsh look theme in this Staff Report - recommending denial for failure to cross "i"s and dot 'T's. It may be that the Staff Report is applying this standard harshly because there are so many things about the project that the Staff does not like. In contrast, when the Staff supports a project, the Staff Report is aggressive in justifying noncompliance when requested, and even approving noncompliance on the fly when the Applicant failed in the details of the application Laurel Ridge Applicant Final Argument - Page 58 141 PDF Page 93 to explicitly request relief for some item. As an example of the latter, we recommend the HO PUD in The Jewell on Bailey Hill, PDT 08-1 (Oct. 24, 2008) at 29-31, Prehearing Exhibit 3-1.4. The Staff Report organizes the noncompliance requests into three categories, addressed below. Multi-Family Design Standards, EC 9.5500: The Staff Report looks at the design of the Multi- Family units, for which noncompliance is not requested, and says there is not enough detail to show compliance with the standards with respect to upper story building entrances, percentage of street facade in windows, and building articulation. The Applicant may have made a mistake in providing enough detail for these buildings that it invites the Staff to pick at it. The Applicant will comply with these three sets of design standards. No relief is requested. These details are way down the road, at the end of the marathon. Here, with the tentative PUD application, the race is just starting. Standards with "Proposed Noncompliance": The Staff Report lists these on page 51, to include: EC 9.2750 Building Height (35 versus 30 foot building height); EC 9.5500 Multi-Family Standards for Street Frontage, maximum Building Dimension, Block Requirement, Setback Sidewalks; and EC 9.6420(3)(c) and (d) (Parking Area Driveway and Perimeter Landscaping). The Applicant has adequately shown these requests for relief are consistent with the PUD Purposes. A summary of the Applicant's showing on these items is provided below. Standards Not Met/No "Proposed Non-Compliance": The staff report states on multiple occasions that the application does not appear to include a request for flexibility. These items, from the Staff Report at page 52, are: Standards Not Met/No "Proposed Non-Compliance" EC 9.2760 Residential Zone Lot Standards - Lot Frontage EC 9.5500 Multi-Family Standards (12)(b) Maximum of 3 Parking Courts connected (12)(c) Parking along no more than 50% of private street frontage The Applicant documents numerous requests for non-compliance throughout the narrative as well as through non-compliance depicted on the face of the drawing set. The operative word in the purpose statement is show. Whether the applicant textually requested non-compliance in narrative, or requested flexibility by showing non-compliance within the drawing set, the objective is met. The Applicant addresses the Purpose Statement of the PUD in the Applicant's Narrative dated June 24, 2013 at pages 19 -21, There are instances where the applicant's text states that the project is in compliance with the standard. Following that is a statement regarding non-compliance following each standard. This is a complex, lengthy and challenging set of documents. It is possible this was an oversight by the applicant when crafting the written statement, and recrafting it two more times as the Applicant chased a blessing from Staff through six successive Site Plans. In these cases no non- compliance is needed. This isn't a difficult conclusion to reach and many of these standards will LaurelRidge Applicant Final Argument - Page 59 142 PDF Page 94 be reviewed again at time of building permit submittal. The Hearing Official should do here what the HO has done in other PUDs approved. Look at the narrative and the plans as a whole, see what flexibility is needed, see that it isjustified under the "Purposes," and approve it. A summary of the "Proposed Non-Compliance" issues follows: EC 9.2750 Maximum Building Height -30 feet required - 35 feet proposed EC 9.5500 Multi-Family Standards ' (4)(b) Street Frontage - 60 percent of frontage occupied by building (6)(a) Maximum Building Dimension -Maximum of 100 feet (10) Block Requirement-4 acres maximum (11)(d) Site access regarding requirement for setback sidewalks EC 9.6420(3)(c),(d) Parking area driveway and perimeter landscaping. This is a complex, lengthy and challenging set of documents. It is possible that requesting non- compliance where none was needed or not requesting non-compliance where it was needed was an oversight by the applicant when crafting the written statement. There were 6 different Site Plan designs created and 3 iterations of the written statement submitted to the city. It would not be unreasonable to expect that revisions were made to the site plan that weren't carried over to the Narrative. In the Hearing Official decision on The Jewel (PDT 08-1) at Page 31 there is an extensive discussion of how minor oversights in Tentative PUD phases can be resolved through conditioning of the project or deferring these issues until building permit phase. It has been done before, it can be done again. The Applicant's discussion of the Purpose of the PUD as well as the accompanying drawings demonstrates the need for the flexibility provided by this application. These standards are met. 9.8320(12): The proposed development shall have minimal off-site impacts, including such impacts as traffic, noise, stormwater runoff and environmental quality. The Staff Report, at pages 41-42, finds noncompliance with this standard, with that finding being derivative of Staff's faulting the application on issues of the TIA, the stormwater analysis, and geotechnical. If, as the Applicant requests,' the HO finds thatthe approval, as conditioned, will comply with the standards in these three areas, then the basis for the staff's finding of noncompliance with this standard should be gone. In terms of noise, the Staff Report concurs there are no noise issues. 9.832 13 : The proposed development shall be reasonably compatible and Laurel Ridge Applicant Final Argument - Page 60 143 PDF Page 95 harmonious with adjacent and nearby land uses. The Staff Report, at page 54, says this standard is not met, based on the inclusion of multi- family uses, the proposed development of land the staff views as planned designated Parks and Open Space, too great an impact on trees, buildings that are too high, unresolved traffic issues, lack of emergency access, and lack of adequate screening. The legal issue in the staff's position relates to the plan designation. The Applicant is correct about the plan designation, as explained above. - Traffic impacts should come out of the staff's list of shortcomings, based on the discussion of the TIA above, The remaining issues reflect a disagreement with the Applicant about final design choices that reflect the applicant's best judgment about what trade-offs to make among values that can't all be maximized. The Hearing official should find that this standard is met. 9.8320114) : If the tentative PUD application proposes a land division, nothing in the approval of the tentative application exempts future land divisions from compliance with state or local surveying requirements. Future land division applications are not exempt from compliance with state and local surveying requirements. As required by tentative subdivision criteria at EC 9.8515(12), subsequent land division applications shall be consistent with any approved PUD. 9.8320(15): If the proposed PUD is located within a special area zone, the applicant shall demonstrate that the proposal is consistent with the purpose(s) of the special area zone. The subject property is not located within any of the special area zones as listed in the Eugene Code, EC 9.3000 through EC 93915. As such, this criterion is not applicable. 9.8320(15: For property with the /SR Site Review Overlay Zone, the PUD complies with any additional site-specific criteria that were specified at the time the /SR designation was applied to the property. The subject property does not have a /SR overlay. As such this criterion is not applicable, LaurelRidge Applicant Final Argument - Page 61 144 PDF Page 96 IV. EVALUATION OF THE STANDARDS REVIEW APPLICATION The subject property contains streams that are protected Goal 5, resources. Each stream has a Conservation Area that extends 40 feet back from the Top of High Bank. In these Conservation Areas uses and development are severely restricted in order to protect the resources. See EC 9.4930(2) (Uses Permitted) and 9.4930(4)(Uses Prohibited). There is a third category of uses - those are "Uses Subject to Standards Review." See EC 9,4930(3). Standards Review lists a number of uses in the Conservation Area that are permitted, subject to performance standards regulating how they are done, Standards Review is typically a Type it process, but here it is consolidated with the tentative PUD application. The Applicant proposes development in the Conservation Area in several places in connection with its development plan. The Staff Report, at page 55, summarizes what uses are proposed in the Conservation Area, and uses from the list of Standards Review items, authorize its proposed development. The Staff Report says: EC 9.4930(3) identifies the uses that are permitted within the /WR conservation areas, subject to Standards Review. Sheets 7.1 and 7.4 shows areas of impact to the /WR setbacks and resources. Staff notes that impact areas 7, 8 and 9 are not subject to standards review since the areas (shown as Reach 3 and Reach 4) do not included protected Goal 5 water resource areas. Based on the project description and as shown on Sheets 7.1 and 7.4, the proposal is requesting approval of Standards Review under the following subsections of EC 9,4930(3): (b) Construction of public improvements (including but not limited to streets, bridges, paved bikeways and pedestrian paths, and public utilities. Subject to EC 9,4980 /WR Water Resources Conservation Overlay Zone Development Standards (1) through (11). The proposal requests Standards Review for impact areas 1-3, S and 10 under this allowance. (h) Discharge of stormwater collected from impervious surfaces into a wetland or stream within the /WR conservation area, if the following standards 1. through 4.'are met: The applicant is requesting Standards Review to allow discharge of stormwater into streams within the /WR conservation area. (j) Construction of a private access road where no other point of access is available except through the /WR conservation area of a Category A, B, C or D stream or a Category A, B, or C wetland, and where the number of stream or wetland crossings is the minimum necessary for the approved use. Subject to LaurelRidge Applicant Final Argument- Page 62 '14 5 PDF Page 97 EC 9.4980 /WR Water Resources Conservation Overlay Zone Development Standards (2) through (6) and(1D). The applicant is requesting standards review for impact areas 4 and 6 to allow private crossings to access the apartments and townhomes in the middle portion of the site. The applicant has stated that due to topography, crossing the stream is the only access to the townhomes and apartments on the northwest portion of the site. The Staff Report recommends denial of the Standards Review application because the PUD uses to be served have not been justified. In this sense, once again, the recommended denial is derivative of the recommended denial of the Tentative PUD. The Staff Report says, again at SS; However, the location, size and intensity of the multi-family development does not comply with SHS policies, natural resource standards and other PUD criteria. Without resolution to those fundamental issues, the applicant cannot demonstrate that these crossings are the minimum necessary for an "approved use," As such, the applicant has not provided adequate justification to support a positive finding under this standard. If the Hearings Official approves the concurrent PUD and TIA applications and finds that the number of private crossings is the minimum necessary for an approved use, the applicant's findings on pages 22-33 of the Standards Review written statement could be relied on for further information. The Staff'Repbrt is correct in observing that the Standards Review approvals that are needed are derivative of the site plan being considered. In a site such as this, which spans several drainages protected with Conservation Areas, approval of improvements in the Conservation Area is going to be needed. The code spells out in objective terms the.rules for making the improvements. The larger question is whether the uses need to be made at all? That takes the question back to whether the Site Plan as a whole is adequate to be approved. The Tentative PUD can be approved, as discussed above. Based on that approval, the . requested uses under Standards Review, as listed in the Staff Report quoted above, should also be approved. The site plan has been amended (many times) to trim down the number of items needed Standards Review. LaurelRidge Applicant Final Argument - Page 63 146 PDF Page 98 V. TRAFFIC IMPACTANALYSIS EVALUATION A Traffic Impact Analysis (TIA) Review is required for any development that will generate over 100 peak hour vehicle trips. (See EC 9.8670 for TIA applicability requirements.) In this case, the applicant's proposed development would generate more than 100 peak hour trips and therefore includes a concurrent TIA application (TIA 12-6) which is subject to approval criteria at EC 9.8680. The applicant proposes mitigation as a result of the TIA; including intersection improvements at East 30th Avenue and Hilyard Street, a significant distance to the west of the subject site. As addressed in the following evaluation, additional analysis and mitigation appears necessary to accommodate increased traffic impacts resulting from the development at the East 3&/Hilyard intersection, and the I-5/McVay Highway interchange to the east. The city approved scope of the TIA included examining the impacts on eight intersections. These are listed in Table 2 on page 4 of the TIA. The Table indicates the jurisdiction that is in charge of each intersection studied, There are two in Lane County jurisdiction, five in ODOT jurisdiction, and only one in Eugene jurisdiction - E. 30th Ave. at Hilyard Street. The triggers in the code for requiring a TIA are listed in EC 9.8670. There are four triggers listed. This TIA was required under EC 9.8670(1), because the project at build out "will generate 100 or more vehicle trips during any peak hour." The triggers for doing a TIA beg the question of what the code requires in response to the TIA in orderto comply with the code. The four standards in EC 9.8680 are to be applied in orderto get "approval or conditional approval." As staff notes, only subsections (1) and (2) are relevant in this context. Subsection (2) describes how improvements are to be done, rather than whether they need to be done. . The focus, then, is on EC 9.8680(1), which potentially requires the applicant to make improvements determined to be needed by the TIA. EC 9.8680(1): .Traffic control devices and public or private improvements as necessary to achieve the purposes listed in this section will be implemented. These improvements may include, but are not limited to, street and intersection improvements, sidewalks, bike lanes, traffic control signs and signals, parking regulation, driveway location,.and street lighting. There are three key points worth discussing here: 1. A conversation between the project Transportation Engineer and pubic works revealed that public works had made an error and actually agreed with the project Transportation Engineer that the TIA was correct and that in fact the criterion had been met. This should be documented in the record in the form of follow a follow up email from Scott Gillespie, public works staff to planning. 2. The TIA and the data contained within ends with the conclusion that the overall system LaurelRidge Applicant Final Argument - Page 64 147 PDF Page 99 reaches a level of service that is identical to the projected level of service in the same horizon year whether this project is developed or not. This study was completed by a licensed Transportation Engineer and the data contained within is sufficient to assure the criterion to approve the TIA has been met. If for any reason anyone at the city wants to take issue with that they need to have a study that is based on the same rules utilized in the Applicant's study that refutes these findings. Barring that, there is noting in the submitted TIA that indicates that the criterion is not m et. To summarize the criteria, the development cannot create an impact that reduces a facility below the performance standard, nor can it cause a facility to be further degraded when it is already operating below the performance standard. LaurelRidge complies with these criteria as clearly demonstrated in the TIA. If the engineer preparing the analysis notices an operational issue, occasionally that issue will be identified and potentially recommended for mitigation as was done for the westbound approach at the 30th/Hilyard intersection in the LaurelRidge TIA. Note that the improvements were recommended with or without the development. These mitigation measures amounted to the following: • Construct an additional west bound left turn lane which can be constructed within the existing right of way. Considering these improvements are minor and would need to happen regardless of the development, and the TIA proves all intersections are with the required mobility standard Moth or without the projected traffic, this TIA is approved. EC 9.8680(2): Public improvements shall be designed and constructed to the standards specified in EC 9.6505 Improvements - Specifications. The requirement of improvements based on a traffic impact analysis does not negate the ability of the city traffic engineer to require improvements.by other means specified in this code or rules or regulations adopted thereunder. The Staff Report recommends denial of the Traffic Impact Analysis application because there are several other key areas of non-compliance under the PUD. In this sense, the recommended denial of TIA is derivative of the recommended denial of the Tentative PUD. The Staff Report says, at 44: While the applicant has demonstrated compliance with a variety of street and public improvement standards for the proposed layout and design, as addressed in the application materials and further detailed in referral comments from Public Works staff, there are several other key areas of non-compliance under the PUD approval criteria that would appear to necessitate fairly drastic changes in the proposed layout. As such, LaurelRidge Applicant Final Argument - Page 65 148 PDF Page 100 staff cannot evaluate those possible changes for compliance with EC 9.6505 without first addressing these fundamental design issues. In reading EC9.8680(1) one can see'that this criterion refers back to the purposes of this section found in EC 9.8650. In summary the purpose of this section is to provide the facilities necessary to accommodate traffic impacts of the proposed development. It goes on to say that in addition to the facilities necessary that the materials and structure of these facilities accommodate associated vehicle traffic. The Staff Report relies on a general reference for non-compliance with PUD standards. Staff is saying that, in their opinion, because the PUD application falls short on such things as Metro Plan Diagram, SHS, tree preservation, etc, that the TIA Cannot be evaluated. This is incorrect.. This section does not ask that question. The project Transportation Engineer (Branch Engineering) states that: As demonstrated on the Site Plan and in the TIA, standard streets and sidewalks and traffic control devices are proposed to be constructed with the development. No other traffic control devices and public or private improvements were considered necessary to achieve the purposes in this section except a lane addition at one intersection. Transportation analysis and the resultant effects of added trips on existing facilities are dependent on the use of the property and unit count. In this case the study was based on.533 multi-family units and 75 single family lots- Issues discussed in the denial of the Tentative PUD revolve around tree preservation, resource preservation, cut and fill street connectivity, etc. Even if the applicant desired or were required to make "drastic changes" to the la out of the project this would not significantly affect, if at all, the use (residential multi-family and single family)*and the trips generated by that count. It has already been concluded both through application and observation that the site has all the challenges associates with development in the hillsides. For discussion sake one could suppose that the project could change the use to all multifamily (608 units). In this case the pm peak hour trip count would be reduced as multi-family generates fewer trips than a single family lot. Or the property could be designed with all single family lots that generate the most trips. Looking back on the first plan, Sheet L1.0,Hearing Submittal August 28, 2013, Exhibit 10; this site plan had 239 single family lots and 348 multi-family units, If the multi-family use were to be converted to all single family lots one could imagine perhaps an additional 100 or so single family lots. The total unit count would then be 339 single family lots. The resultant trips generated in the pm peak would be 339 x .75 or 254, less than the trip generation of 406 based on the current plan. if one were to double the single family lots (one look at the site-plan shows this scenario to be impossible) the total would be 478 x .75 or 359 pm peak hour trips. Still less than those generate by the current site plan. LaurelRidge Applicant Final Argument - Page 66 149 PDF Page 101 It is easy to conclude that revising the la out based on deficiencies in the PUD stated in the Staff Report, which might result in a different looking site plan, would not have any effect on the traffic count. Only changing the balance of the uses would make a difference and even that would only serve to reduce the number of trips and lessen the impact stated in the TIA. The TIA as submitted identifies that standards streets and sidewalks and traffic control devices are proposed to be constructed. Public Works referral comments state "The applicant has proposed Eugene Specific public improvement in accordance with the City Standards and Specifications. Therefore this criterion is satisfied. The Staff Report embellishes on this and recommends that this criterion can not be evaluated and refers back to the "drastic" changes required based on the review of the PUD. This criterion refers to standards to which the facilities are built; in this case City of Eugene standards. Public Works got it right. A more detailed review will occur at the time of PEPI (Privately Engineered Pubic Improvements) review. This criterion is met. EC 9.8680(3): In addition to the above criteria, if the Traffic Impact Analysis Review was required based on EC 9.8670(4), the improvements shall also address the structural capacity of the street in the County's jurisdiction and address identified structural deficiencies, or reduction in the useful life of existing street structures related to the proposed development. Improvements may be needed to eliminate the identified structural deficiencies and to accommodate vehicle impacts to structures. The TIA was not required based on EC 9.8670(4) in this case. EC 9.8680(4): In addition to the above criteria, if the development is located within the S-WS Walnut Station Special Area Zone, and increased traffic the development would generate on streets within the Fairmount neighborhood to the south of the Walnut Station Special Area Zone shall be mitigated through the use of traffic calming strategies or other mechanisms designed to discourage such traffic. The proposed development is not located within the S-WS zone. The Tentative PUD should be approved. Based on that approval, the criterion under the TIA, as listed in the Staff Report quoted above, are also approved. CONSOLIDATED LIST OF ALL RECOMMENDED CONDITIONS (Note: As we have done in previous applications recommended for denial by staff, the applicant's team is open to working with staff over the next two weeks to tune up a set of conditions that could be jointly recommended in the event the HO wants to approve.) LaurelRidge Applicant Final Argument- Page 67. 150 PDF Page 102 A geotechnical analysis from a certified engineering geologist, with specific recommendations for design and construction standards shall be provided with any applications for Privately Engineered Public Improvements (PEPI) permits, as well as building permits and site development permits for the initial construction of infrastructure and residences on individual. lots. The development proposed with each permit shall adhere to the recommended standards for design and construction contained in the geotechnical analysis. [ ) The Geotechnical Engineer of Record (or his successor) will work with Lane County Transportation staff to review existing conditions on the 30th Avenue off-ramp and provide a satisfactory analysis of stability during design of the proposed frontage road. Prior to Final Subdivision Approval, open space areas proposed for dedication to the city for preservation of Goal 5 resources and connections to parks and trail systems will be dedicated and recorded. Prior to Final Subdivision Approval, the applicant shall record a deed restriction for each single family lot that delineates the Forest Preservation areas. The following use restrictions and natural resource protections for the Forest Conservation Areas shall be established as notes on the Final PUD plans, with compliance ensured through the performance agreement: In Forest Conservation Areas, no buildings or structures, either temporary or permanent, are allowed. This includes but is not limited to: patios, decks, accessory structures, storage sheds, driveways, parking areas, play equipment, fencing and irrigation systems. No dumping of garden or other debris or storage of materials is allowed in the Forest Conservation Areas. Any activities outside ofeasements that damage critical root zones within the conservation areas are not allowed. (See Hearing Official Decision (Spring Knoll PUD Phase 4) PDT 05-3 (November 17, 2005), b. No excavation, grading, filling, trenching, material storage, staging, vehicle or equipment parking, or other construction related activity shall occur within the areas protected by tree protection fencing, except as necessary for allowed activities as otherwise described (such as within approved utility easements), without prior approval by a certified arborist and documentation of that approval provided to the City. (See Hearing Official Decision (The Jewel) PDT 08-1 (October 24, 2008). c. Building permit submittal plans shall indicate, for each single family lot, the exact location, size, species and condition of trees within the Forest Conservation Area that are within the lot boundaries and within 50 feet of the edge of the area delineated as the allowable area for disturbance as indicated on the Final PUD. LaurelRidge Applicant Final Argument - Page 68 151 PDF Page 103 The building permit submittal shall include sufficient detail to verify that-no more than 30 percent of the critical root zones of trees to be preserved will be impacted by construction activities on the lot, or a report be a certified arborist verifying that the proposed construction activities can otherwise be conducted in a manner that does not threaten the survival of the trees to be preserved or a report by a certified arborist with mitigating measures to preserve the affected preservation trees. Each building permit shall include tree protection fencing to be erected at the perimeter of the critical root zones for all trees to be preserved (or an alternative location as approved and documented by a certified arborist and the City. (See Hearing Official Decision (The Jewel) PDT 08-1 (October 24, 2008). e. At the time of building permit review,.trees designated to be preserved on private lots shall be identified and marked in the field for verification of tree preservation prior to issuance of building permit. (See Hearing Official Decision (Spring Knoll PUD Phase 4) PDT OS-3 (November 17, 2005). f. Protective fencing for trees identified to be preserved shall be inspected and approved by the City prior to beginning and construction related activities. All protective tree fencing shall remain in place until issuance of Final Occupancy permit or until completion of all construction activities, whichever comes later. (See Hearing Official Decision (The Jewel) PDT 08-1 (October 24, 2008). g. The removal of diseased or hazardous trees is allowed with prior approval by a certified arborist and documentation of that approval and the need for removal provided to the City. Trees to be preserved may not be considered hazardous based on design or location of proposed residence or site improvement which would render the tree a future hazard. (See Hearing Official Decision (The Jewel) PDT 08-1 (October 24, 2008). h. In-the event a diseased or hazardous preservation tree must be removed, it shall be replaced at a ratio of 2 trees for 1 preservation tree removed. Replacement trees shall be native species with a minimum caliper of 1 for deciduous trees and a minimum height of 5' for coniferous trees. (See Hearing Official Decision (The Jewel) PDT 08-1 (October 24, 2008). All structures and any at-grade site improvement, including but not limited to driveways, paved surfaces, decks, patios, and retaining walls, shall be setback a minimum of 5 feet-from protective tree fencing boundaries to allow for normal construction activities to occur between building foundations/paved areas to be protected from impacts, Additional setbacks may be necessary to prevent construction activities from impacting protection areas and trees designated for preservation. No activity shall encroach within the fence area. (See Hearing Official Decision (The Jewel) PDT 08-1 (October 24, 2008). Laurel Ridge Applicant Final Argument - Page 69 152 PDF Page 104 Limb removal or other tree pruning for view clearance is prohibited within conservation zones. Tree pruning shall be permitted only if the pruning is necessary to facilitate or encourage growth *of the tree or other native species, or to accommodate uses or activities otherwise allowed within the Forest Conservation area. (See Hearing Official Decision (Timberline Hills PUD) PDT 05-2 (October 27, 2005). Prior to Final PUD approval the applicant will indicate dedicated right-of-way and/or reserve strips where "A" Street and "B" Street extend to neighboring and undeveloped properties. Prior to Final PUD Approval, the applicant will revise the intersection of Frontage Road and Spring such that the intersection is 90 degrees. Or Prior to Final PUD approval road alignment will be reviewed by Public Works and revised accordingly. O Should the adjacent East Ridge PUD development not occur in a timely manner, the applicant will procure and develop the Secondary Interim Access as described in the Pre- Hearing submittal Exhibit 5 beginning with LaurelRidge Phase 3. Should the adjacent East Ridge PUD development not occur in a.timely manner to facilitate later phases of LaurelRidge development (those associated with stormwater basins 3, 4 and 5) additional on-site detention to attenuate flows shall be provided. The detention system(s) shall be located within areas approved for impact by development (outside the natural resource preservation areas) All single-family lots will be precluded from future land division. o Priorto Final PUD approval the double frontage lots will indicate a 1 foot reserve strip on one of the two frontages so as to eliminate the ability to access the lots from 2 sides. a Priorto Final PUD approval the applicant will note on the plans that Lots 15-17, 25-27, 40-42 and 58-60 do not meet frontage minimums. A note will be added to the plans indicating the location and dimensions of a joint access and maintenance easement servicing these lots. ® Prior to Final PUD approval the applicant will show all proposed easements on the Final Site Plan, indicating size and location. o The final PUD plans shall be revised to provide an access easement for each lot with no LaurelRidge Applicant Final Argument- Page 70 -153 PDF Page.1O5 frontage or with reduced frontage and shared access. (See The Jewell on Bailey Hill, PDT 08-1 (Oct. 24, 2008) at 25; Prehearing Exhibit 3-1.4.) s Prior to Final PUD approval the site plans will demonstrate that access connections to lots whose frontage is on that portion of the street with grades over 15% is feasible. LaureiRidge Applicant Final Argument - Page 71 154