HomeMy WebLinkAboutHearings Official DecisionDECISION OPTHE HEARINGS OFFICIAL
FOR THE CITY OF EUGENE, OREGON
TENATIVE PLANNED UNIT DEVELOPMENT
Application File Name (Number):
Chamotee Trails PUD (PDT 15-1; ARA 15-13)
Applicant's Request:
Tentative Planned Unit Development and Adjustment Review approvals for the creation of 10
buildable single-family lots and 1 common open space lot. -
Applicant
Tom Walter, Walter Development, LLC
Subject Property/Location:
Tax Lot 1101 of Assessor's Map 18-03-20-23; Located south of Foxboro Lane and east of the
intersection of Fox Hollow Road and West Amazon Drive.
Relevant Dates:
PUD application submitted on February 18, 2015; Adjustment Review application and
supplemental materials for PUD submitted on August 10, 2015; application forced complete with
an extra 30-day review period at applicant's request on August 12, 2015; public hearing held
November 4, 2015. Written record closed on November 23, 2015.
Applicant's Representatives:
Renee Clough, Branch Engineering, Inc. (541) 746-0637
Bill Kloos, (541) 343-8596
Lead City Staff:
Erik Berg-Johansen, Assistant Planner, Eugene Planning Division, Phone: (541) 682-5437
Description of Planned Unit Development Request
The applicant requests Tentative Planned Unit Development (PUD) and Adjustment Review approvals for
11 lots (10 buildable residential lots and 1 open space parcel). The applicant proposes to develop single-
family homes consistent with the R-1 Low-Density residential zone. The proposed density will be a total of
10 units on 5.19 gross acres, which equals a calculated density of 1.9 units per acre.
Site Context
The subject property is located in the south hills of Eugene, and is zoned R-1 Low-Density Residential. A
"WR" Water Resources overlay zone was originally applied to the subject property, but it was removed by
an Overlay Zone Correction application process (OC2 12-1) that was initiated by the current property
owner in 2012. Through this process it was confirmed that no regulated Goal 5 water resources exist on
the subject site.
The area generally consists of single-family residences zoned either R-1 or AG (Agriculture). All adjacent
Hearings Official Decision (PDT 15-1/ ARA 15-13)
properties are zoned either R-1 or R-1/WR. Directly north and abutting the subject property is West
Amazon Drive, a partially improved right-of-way that provides access to the subject property. On the
other side of West Amazon Drive are eight single-family homes built along Foxboro Lane (a cul-de-sac).
Abutting and to the east is Vivian Drive, an unimproved right-of-way that ends at the southeast corner of
the property. Directly west and at the corner of Fox Hollow Road and West Amazon Drive is a privately
owned, undeveloped residential property.
To the south and southwest of the property is land owned by the City of Eugene. This land is partially
adjacent to Fox Hollow Drive, runs parallel to the right-of-way and then wraps around the southern
boundary of the subject property. That strip of land was originally intended to provide public access to a
portion of the City's recreational trail system. According to a deed restriction for the property, the
property "shall be used for park purposes" and is labeled as a "riding trail" on the Lane County Tax
Assessor's maps.
As noted above, the site has access from West Amazon Drive. This street has only one connection to the
City's transportation network, which exists at Fox Hollow Drive. While the West Amazon Drive right-of-
way continues to the northeast (where it meets Martin Street and runs parallel to East Amazon Drive), no
street has been constructed that would provide a through connection for motor vehicle access. The City
of Eugene recently purchased the land abutting that unimproved right-of-way segment for park purposes,
and plans to maintain the land as a natural area and part of the ridgeline trail system. For this reason,
staff found that the street connection will likely never be made.
Public Notice and Referrals
Public notice was mailed and posted on October 1, 2015, consistent with the requirements of EC 9.7315
Public Hearing Notice. The Planning Division received public testimony from neighbor Ross Williamson,
who argued that three deficiencies exist with the original application: 1) the application does not
demonstrate it is for needed housing as defined by state law; 2) no 5' interval topographic map was
submitted; and 3) a tree protection plan to "insure maximum preservation of existing vegetation" was not
submitted. He also argued that no documentation exists in the application in regards to certain Public
Works issues that were brought up at the applicant's neighborhood meeting. These issues were related to
paving width, sewer, and sidewalks.
Mr. Williamson also sent written testimony regarding the Adjustment Review application. He believes
that while the applicant requested an adjustment to street paving standards, they are actually trying to
adjust connectivity standards that might require a connection to Vivian Drive. Mr. Williamson also notes
that connectivity standards are not subject to an adjustment.
Neighbor Richard Zeller also submitted written testimony regarding the proposed PUD. Mr. Zeller's letter
discusses fire safety and egress issues, the proposed "detention facility" for stormwater, the Vivian Drive
right-of-way, and the proposed pump system for sewage. He also stated that the applicant assured him
that future homes on the lots adjacent to Vivian Drive will be constructed toward the uphill side of each
lot, but that he would like further assurance that this will be implemented. Finally, he stated that he does
not oppose the proposal in general, but believes there should be various conditions of approval to address
the issues specified in his letter.
No other written testimony was received as of the publication of the staff report. However, on November
2, 2015, the applicant's attorney Mr. Kloos submitted a letter suggesting that the Hearings Official should
Hearings Official Decision (PDT 15-1/ ARA 15-13) 2
recuse himself from the hearing due to a potential separation of powers problem. That issue is discussed
in more detail below. On November 3, 2015, Mr. Kloos submitted an additional letter summarizing the
primary reasons why the staff recommendation of denial should be set aside.
The Planning Division also provided information concerning the application to other appropriate City and
County departments, public agencies, service providers, and the affected neighborhood group. All referral
comments received by the Planning Division on this application are included in the application file for
reference, and addressed in the context of applicable tentative PUD approval criteria.
Consistent with EC 9.7005 Pre-application Conference, the applicant met with staff in April of 2014 (PC 14-
20). The applicant held a neighborhood meeting on January 27, 2015, in compliance with EC 9.7007
Neighborhood/Applicant Meetings.
Summary of the Public Hearing
On November 4, 2015, the Hearings Official held a public hearing. The Hearings Official stated he had
no conflicts of interests and had no ex parte communications to disclose. Mr. Kloos reiterated his
position asking the Hearings Official to recuse himself, but did not offer further oral argument on the
issue. I declined the request that I recuse myself because I disagree that a separation of powers
problem exists in connection with my duties to the City of Eugene as an independent contractor
providing hearings officer services. The origin of the applicant's recusal request is that the Hearings
Official is currently a member of the Oregon House of Representatives, representing House District 34,
which is in Beaverton, Oregon. The applicant's argument is that it might be possible for my legislative
functions as a state representative to interfere with my quasi-judicial functions as a Hearings Official.
My determination was that no potential conflict exists for two primary reasons: 1) the relative duties
exist at different levels of government and do not intersect through the review of the applicant's
request, and 2) that even if there were an intersection of duties, none of the legislation that I might
have voted on in my first term in 2015 could have yet been adopted or enforced at the municipal level
in the city. After those explanations, I continued with the public hearing.
Planner Erik Berg-Johansen provided an overview of the staff report and explained the nature of the
proposed planned unit development. Staff recommended denial of the applications primarily for failure
to comply with EC 9.8325(6)(c).
Mr. Kloos spoke on behalf of the applicant. His testimony generally followed the argument set forth in
his November 3, 2015, letter. Mr. Kloos argued that because the site is over 5 acres in size, a PUD
application is required. He explained that since the proposal qualified as "needed housing," it was
entitled to be reviewed under the clear and objective standards set forth in EC 9.8310. As such, he
argued that once the determination of needed housing is made, ORS 197.303-307, the "Needed Housing
Statute," ensures the right to develop under those clear and objective standards. For this reason, he
argued, EC 9.8325(6)(c) -the so called "19 lot rule," cannot be the basis upon which to deny the
application. As support, Mr. Kloos offered the Land Use Board of Appeals' recent decision in Group 8,
LLC v. City of Corvallis,_Or LUBA_(LUBA No. 2015-019, August 25, 2015). In addition, he argued that
LUBA's decision in Home Builders Assoc. of Lane County v. City of Eugene, 41 Or LUBA 370 (2002) forbid
denial of a needed housing development when a particular clear and objective standard was near
impossible to meet.
Hearings Official Decision (PDT 15-1/ ARA 15-13) 3
Mr. Kloos also argued that for similar reasons the application could not be denied for failure to comply
with EC 9.8325(3) which required a buffer area between the proposed development and surrounding
properties. He asserted that the plain language of the standard does not allow fences within the buffer
or access roads to cross the buffer area. As a result, he stated that the standard could not be applied to a
PUD proposal.
Two neutral parties testified. Mr. Richard Zeller, similar to his written comments, questioned whether
the applicant adequately studied runoff potential since the related assessment was done during the dry
months of the year. He also asserted that the 19 lot rule had the purpose of addressing fire danger for
areas that did not have more than one ingress or egress route. Similarly, Mr. Larry Levinson argued that
the 19 lot rule was a guard against the danger of wildfire. He also raised concerns about the need to
pump sewage from the proposed home uphill to the line in West Amazon road.
Mr. Ross Williamson testified in opposition to the application. He made the following arguments:
The application must be denied because under EC 9.8325(1) the project does not meet the
state definition of "needed housing." In particular, he argued that neither the applicant, nor
the staff had determined that the single family homes proposed met the definition for
housing at "particular price ranges or rent levels." Further, he argued that the city's recent
Envision Eugene document states that no additional land for housing is necessary.
b. The applicant can proceed under the discretionary PUD provisions because the project does
not provide "needed housing." The fact that other PUD applications on nearby properties
have been denied (Deerbrook) is not relevant to the current application.
c. The proposal violates EC 9.8325(5) regarding development on slopes over 20% because the
applicant's map shows areas within the development envelope that exceed 20%.
The staff's opinion that Vivian Way can be excluded from consideration under the city's street
connectivity standards (for topographic reasons) is not supported by substantial evidence in
the record.
The 19 lot rule implements a fire safety function. He provided information on a recent
wildfire event at the intersection of West Amazon (Owl Rd.) and Fox Hollow Road that
temporarily trapped residents on West Amazon.
f. The adjustment requests are unnecessary and provide a means for the applicant to avoid
various street connectivity standards.
He argued that Mr. Kloos's interpretation of the buffer requirement in EC 9.8325(3) is absurd
and need not be applied so strictly.
The Hearing Official invited staff to respond to issues raised during public testimony. In response to the
Hearings Official's question, staff responded that the subject property could be developed through
partition, or multiple partition, rather than just the PUD process as Mr. Kloos asserted. Staff also
explained that the city's Buildable Lands Inventory ("BLI") included an assessment of "needed housing"
as required by ORS 197.307 and Statewide Planning Goal 10. The BLI identified housing types for the
Hearings Official Decision (PDT 15-1/ ARA 15-13)
"particular prices ranges and rent levels" as the statute requires. Staff stated that the city had
determined that all housing types were needed in the city pursuant to ORS 197.307 and Goal 10, and
therefore, the proposal is for "needed housing."
The applicant provided a brief rebuttal reiterating prior arguments and specifically asking the Hearings
Official to make a finding that Vivian Way cannot be built due to steep slopes and that the adjustment
request is unnecessary because the connectivity standard will be met.
At the end of the hearing, all parties agreed to an open record period as follows: 1) record open for
argument and evidence on any issue from any party until November 12, 2015, 2) record open for
responsive testimony and evidence until November 19, 2015, and 3) applicant's final argument due
November 25, 2015.
Mr. Williamson submitted argument by email on November 10, 2015. Staff submitted a memorandum
with an attached letter from the city attorney's office both dated November 12, 2015. Mr. Kloos
submitted a final argument on November 23, 2015 and the record closed on that day-. No objections
were made to the argument and evidence submitted during the open record period.
Documents Considered by the Hearings Official
The Hearings Official has considered all the documents submitted into the record either in writing, during
the public hearing, or during the open record period.
Summary of Decision
The Hearings Official finds that the application should be denied because it cannot comply with EC
9.8325(6)(c) - the 19 lot rule. The proposal is for "needed housing" as used in ORS 197.303-307.
However, EC 9.8325(6)(c) is a clear and objective standard with which this particular application cannot
comply.
Although I inquired during the public hearing about alternative application options for developing the
property, the responses to those questions do not play a part in this decision. The fact that the applicant
can potentially develop through partitions or the discretionary PUD track are not relevant to the findings
set forth below.
As a Hearings Official it has been my practice to avoid making what might be viewed as a type of
declaratory decision on contested provisions where I find the application must be denied for failure to
comply with at least one substantive standards. I will follow that practice here with regard to the
landscape and buffer standards in EC 9.8325(3). Although I want to be helpful to the Planning
Commission if there is an appeal of this decision, responding to Mr. Kloos's arguments in connection with
this standard and wading into the past determinations of the Planning Director as part of this application
appears more likely to muddy future analysis than to aid it. That is particularly true if the applicant
decides to pursue a different type of application under the discretionary PUD standards in the future.
Evaluation of Tentative Planned Unit Development Request
EC 9.8325(1): The applicant has demonstrated that the proposed housing is needed housing as
defined by State statutes.
Hearings Official Decision (PDT 15-1/ ARA 15-13)
Staff decision:
Oregon Revised Statutes define needed housing as follows:
197.303 "Needed housing" defined. (1) As used in ORS 197.307, until the beginning of the
first periodic review of a local government's acknowledged comprehensive plan, "needed
housing" means housing types determined to meet the need shown for housing within an
urban growth boundary at particular price ranges and rent levels. On and after the
beginning of the first periodic review of a local government's acknowledged comprehensive
plan, "needed housing" also means:
(a) Housing that includes, but is not limited to, attached and detached single-family housing
and multiple family housing for both owner and renter occupancy;
(b) Government assisted housing;
(c) Mobile home or manufactured dwelling parks as provided in ORS 197.475 to 197.490;
and,
(d) Manufactured homes on individual lots planned and zoned for single-family residential
use that are in addition to lots within designated manufactured dwelling subdivisions.
With regard to ORS 197.303(1), the City's housing needs projection is embodied in the Eugene-
Springfield Metropolitan Area Residential Lands and Housing Study 1999 Draft Supply and Demand
Technical Analysis (ESRLS) and 1999 Draft Site Inventory Document. The City's housing needs
projection identifies a need for:
✓ Single-family detached housing, including manufactured dwellings on lots;
✓ Single family attached housing,
✓ Multi family housing, and
✓ Manufactured dwelling parks.
In order to establish that the type of housing proposed for development is "needed housing," an
applicant must show that the proposed housing falls within one of the housing types identified in the
City's housing needs projection or one of the types of housing identified in the statutes as "needed
housing." The applicant states that the site is included in Subarea 6 Southeast Eugene, in the Eugene-
Springfield Metropolitan Area Residential Lands and Housing Study Draft Site Inventory Document,
but is not given a specific site number since it is less than 10 acres. The applicant also states that local
documents identify a need for single-family housing which is an allowed needed housing type under
the state definition. The applicant's written statement confirms that their request is for 10 single-
family residential lots, which is identified as needed housing within the ESRLS and at ORS
197.303(1)(a), and consistent with this criterion.
No further analysis of the proposed housing type is necessary to demonstrate that the proposed
housing falls within a needed housing category and therefore it is allowable for the proposed .
application to be reviewed under the needed housing criteria rather than the general criteria. If the
Hearings Official ultimately approves the application, to ensure compliance with this criterion, the
following condition of approval is recommended:
o The applicant shall submit a "Use Restriction" or "Codes, Covenants, and Restrictions"
(CC&R's) to be recorded with the final plat that stipulates that the lots of the proposed
Hearings Official Decision (PDT 15-1/ ARA 15-13) 6
subdivision shall be developed only with needed housing and.uses accessory to that housing.
The document shall be subject to prior review and approval by the City's Planning Director
during the final plat review process. The document shall stipulate that the use restriction is
enforceable by the City of Eugene and that any amendment to, or removal of, the established
use restriction is subject to prior review and approval by the City's Planning Director.
Based on these findings and the condition of approval noted above, this criterion is met.
Hearings Official Findings:
Mr. Williamson both at the November 4, 2015 hearing, and in more detail in his November 10, 2015
submission makes two related arguments: 1) that the staff decision does not directly comply with the
definition of "needed housing" in ORS 197.303 and that term's use in ORS 197.307, and 2) to the
extent that the city has accounted for needed housing in its BLI, it cannot sidestep the state statutes
because ORS 197.304 requires that needed housing be satisfied within the City of Eugene alone and
therefore, the joint Springfield/Eugene BLI cannot be relied upon to account for needed housing.
The November 12, 2015 staff memo and accompanying city attorney memo argue that ORS 197.303-
307 are satisfied through the work that the city has already done, and has been acknowledged by the
Land Conservation and Development Commission and the Department of Land Conservation and
Development, with regard to housing in compliance with Goal 10. The city attorney argues that the
BLI and the city's Housing Needs Analysis ("HNA") have already taken into account information on
price ranges and rent levels. The BLI and HNA process is conducted in terms of "housing types" in
order to comply with state statute and Goal 10. According to the city attorney, once the number of
housing types that are needed are identified, future individual review of price ranges and rental levels
for a particular quasi-judicial land use application are unnecessary. The applicant's final argument of
November 23, 2015 generally concurs with the city attorney's analysis.
The Hearings Official agrees with the city attorney. The Court of Appeals in Montgomery v. City of
Dunes City, 236 Or App 194 (2010) provides a useful history of the evolution of ORS 197.307. The city
attorney and the applicant's recounting of the history of ORS 197.307 is consistent with court's
understanding. Although the holding in Montgomery turns on a different subsection of ORS 197.307,
the decision makes clear that accounting for needed housing is a process that occurs within the
context of a jurisdiction complying with its comprehensive planning duties - and the related
acknowledgement process. The court also reminds us that the rules of statutory construction allow
for conclusions that can be made when the Legislature serially amends a statute. Krieger v. Just, 319
Or 328, 336 (1994). Although ORS 197.303-307 have changed overtime, most recently in 2011, the
requirement that housing need be assessed within an urban growth boundary has remained. So too
have the "housing types" which must be analyzed as set forth in ORS 197.303.
That the assessment of housing need is a job connected with comprehensive plan development and
amendment is further supported by the requirement in ORS 197.303(3). That provision states:
"[w]hen a need has been shown for housing within an urban growth boundary at particular price
ranges and rent levels, needed housing shall be permitted in one or more zoning districts or in zones
described by some comprehensive plans as overlay zones with sufficient buildable land to satisfy that
need." This language provides context for interpreting both ORS 197.303 and EC 9.8325(1). The
reference to "zoning districts" and "zones" described in a comprehensive plan demonstrates that the
Hearings Official Decision (PDT 15-1/ ARA 15-13) 7
assessment to be made is one of legislative nature and not one of a quasi-judicial nature. There is no
indication in ORS 197.303 or 197.307 that a city must make an individualized assessment of needed
housing at particular price ranges and rent levels for particular housing projects as proposed through
a quasi-judicial land use process.
While the Hearings Official might agree with Mr. Williamson that EC 9.8325(1) and the related
statutes could be more precisely worded, the city has shown how the present application adequately
addresses "needed housing." Importantly, Mr. Williamson did not argue, nor does the record suggest,
that the city's BLI or HNA, which are acknowledged, fail to comply with any applicable statutes
including ORS 197.303-307. As to Mr. Williamson's assertion that ORS 197.304(1) requires a separate
and discreet BLI for Eugene in order to comply with ORS 197.307 and EC 9.8325(1) - that is not what
the statute says. To the extent that it is relevant, what ORS 197.304(1) appears to forbid is one city
within the joint UGB seeking to satisfy its needed housing obligations by shifting the provision of such
housing to the adjacent jurisdiction.
This criterion is met.
EC 9.8325(2): The proposed land uses and densities within the PUD are consistent with the land
use designation(s) shown on the Metro Plan Land Use Diagram, as refined in any applicable'
refinement plan.
The applicant correctly notes that the subject property is designated Low Density Residential on the
Metro Plan, which establishes an allowed density "through 10 units per gross acres." The South Hills Study
is the applicable refinement plan, which further limits the allowable density to a maximum of 5 units per
gross acre for the subject area. The applicant's proposal for 10 single-family homes on 5.19 gross acres
would result in a density of 1.9 units per acre, which is within the allowable limits.
The staff decision is not disputed. The criterion is met.
EC 9.8325(3): The PUD provides a buffer area between the proposed development and
surrounding properties by providing at least a 30 foot wide landscape area along the perimeter
of the PUD according to EC 9.6210(7).
Staff dPrkinn-
The applicant's plans show the required 30-foot wide buffer around the perimeter of the property.
The applicable landscape standard at EC 9.6210(7)(a)(5) Massed Landscape Standard (L-7) requires 70
percent of the 30-foot perimeter buffer to be covered by living plant material. The applicant asserts
that this standard is met by existing vegetation along the perimeter of the subject property, and has
provided evidence in the form of photo documentation. Based on the available evidence, this
criterion is met.
Hearings Official Findings:
As noted above in the Summary of Decision, the plain wording of the text seeks a buffer from
surrounding properties. The Hearings Official reads this standard to be achievable even where a road
may need to pierce a section of the buffer to provide access to interior lots. However, I decline to
Hearings Official Decision (PDT 15-1/ ARA 15-13) 8
address Mr. Kloos's other arguments with regard to this criterion.
EC 9.8325(4): For areas not included on the city's acknowledged Goal 5 inventory, the PUD
preserves existing natural resources by compliance with all of the following:
(a) The provisions of EC 9.6880 to EC 9.6885 Tree Preservation and Removal Standards, (not
subject to modifications set forth in subsection (11) below).
(b) Natural resource areas designated on the Metro Plan diagram as "Natural Resource" are
protected.
The subject site is located on the City's adopted Goal 5 inventory, which includes Figure H-2 of the 1978
Scenic Sites Working Paper according to Ordinance No. 20351. That figure shows the area of the subject
property as a "Natural Site of Visual Prominence." As such, this criterion is not applicable.
The staff decision is not disputed. The criterion is met.
EC 9.8325(5): There shall be no proposed grading on portions of the development site that
meet or exceed 20% slope.
Staff decision:
The applicant's site plan (Sheet 1), prepared by professional/licensed surveyor Renee Clough, shows
areas on the subject site with slopes exceeding 20%. According to the application narrative, the
slopes were calculated using computer software based on Triangulated Irregular Network (TIN)
surface models. No development is proposed in areas with calculated slope exceeding 20%, and
based on the applicant's evidence it appears this criterion is met.
If the Hearings Official ultimately approves the application, and to ensure compliance with this
criterion, the following condition of approval is recommended:
The final PUD site plan shall note that no grading is allowed on any portions of the development
site that meet or exceed 20% slope. The applicant's final PUD plans shall clearly indicate those
areas consistent with what it shown on the tentative PUD site plans.
Based on these findings and the condition noted above, this criterion is met.
Hearings Official Findings:
At the hearing, Mr. Williamson testified that he had reviewed the site map and found some areas that
are proposed for development that exceed 20% slopes. He provided an annotated map to show the
area at issue.
During the open record period the applicant submitted a revised map and additional evidence
showing the areas of 20% slope. This information appears to resolve questions about where
development may occur consistent with this criterion. This criterion is met.
Hearings Official Decision (PDT 15-1/ ARA 15-13)
EC 9.8325(6): The PUD provides safe and adequate transportation systems through compliance
with all of 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).
EC 9.6805 Dedication of Public Ways
Pursuant to EC 9.6805, as a condition of any development, the City may require dedication of public
ways for bicycle and/or pedestrian use as well as for streets and alleys, provided the City makes
findings to demonstrate consistency with constitutional requirements. The public ways for streets to
be dedicated to the public by the applicant shall conform with the adopted right-of-way map and EC
Table 9.6870. As discussed in EC 9.6870 Street Width below, which is incorporated herein by
reference, there is no requirement for additional right-of-way as a condition of this development.
EC 9.6810 Block Length
Block length standards are not applicable because no new local streets are proposed or required.
EC 9.6815 Connectivity for Streets
Staff decision:
In order to meet Street Connectivity standards, the proposed development must, at a minimum,
provide extensions of the public way which are consistent with subsections (2)(b), (2)(c) and (2)(d). EC
9.6815(2)(b) requires street connections in the direction of any planned or existing streets within
mile of the development site and connections to any streets that abut, are adjacent to, or terminate
at the development site. EC 9.6815(2)(c) requires that the proposed development include streets that
extend to undeveloped or partially developed land adjacent to the development site in locations that
will enable adjoining properties to connect to the proposed development's street system. EC
9.6815(2)(d) requires secondary access for fire and emergency vehicles. EC 9.6815(2)(e) also requires
that applications proposing needed housing shall show that the proposed street alignment shall
minimize excavation and embankment and avoid impacts to natural resources, however, no streets
are proposed or otherwise required within the PUD.
EC 9.6815(2)(g)2.a. allows for an exception to the street connectivity standards if the applicant
demonstrates that a connection cannot be made because of physical conditions such as site
topography. In this case, referral comments from Public Works staff note that the maximum street
grade permitted in hillside developments is fifteen percent (15%), and as noted above, EC 9.8325(5)
prohibits grading on portions of the development site that meet or exceed 20% slope. As such, an
exception to the street connectivity standards is warranted with respect to EC 9.6815(2)(b), (2)(c) and
(2)(d). The remaining street connectivity standards at (2)(a) and (2)(f) are not applicable.
Hearings Official Findings:
Mr. Williamson challenges the staff decision on substantial evidence grounds. Although a decision on
this standard is academic because the application must be denied, referral comments from Public
Works do constitute substantial evidence. Along with the maps in the record, the referral comments
show that the southern portion of the property consists of slopes equal to or exceeding 20%. This is
Hearings Official Decision (PDT 15-1/ ARA 15-13) 10
sufficient to show that the PUD access way cannot be punched through to the southern portion of Fox
Hollow Road. Vivian Way is similarly situated and appears to qualify for the exception as well.
EC 9.6820 Cul-de-Sacs and Turnarounds
These standards do not apply because no new public cul-de-sacs or streets are proposed or required.
EC 9.6830 Intersections of Streets and Alleys
These standards are not applicable because no new intersections are proposed or required.
EC 9.6835 Public Accessways
The applicant is requesting to adjust EC 9.6835(1), which requires accessways connecting to adjacent
undeveloped or publicly owned sites, citing that access to the adjacent publicly owned Tax Lot 4500
can be accessed directly from Fox Hollow Road. Public Works staff also note that a connection to this
adjacent publicly owned property would be in conflict with EC 9.8325(5) which prohibits grading on
portions of the development site that meet or exceed 20% slope. The standards of EC 9.6835(2) do
not apply, as there are no existing or potential accessways on adjacent sites that dictate the
dedication or construction of a public access way.
EC 9.6840 Reserve Strips
These standards do not apply because no new public streets are proposed or required and none of
these criteria specifically result in the need for a reserve strip.
EC 9.6845 Special Safety Requirements
These standards do not apply because no new public streets or alleys are proposed or required.
EC 9.6850 Street Classification Map
The proposal complies with this standard as discussed in EC9.6870 Street Width, which is incorporated
herein by reference.
EC 9.6855 Street Names
These standards to not apply because no new streets are proposed or required.
EC 9.6860 Street Right-of-Way Map
The proposal does not amend the right-of-way map. This criterion is not applicable.
EC 9.6870 Street Width
Pursuant to EC 9.6870, the right-of-way and paving widths of streets shall conform to those widths
designated on the adopted Street Right-of-Way map. When a street segment right-of-way width is not
designated on the adopted Street Right-of-Way map, the required street width shall be the minimum
width shown for its type in Table 9.6870 Right-of-Way and Paving Widths, although a greater width can be
required based on adopted plans and policies, adopted Design Standards and Guidelines for Eugene
Streets, Sidewalks, Bikeways and Accessways, or other factors which in the judgment of the planning and
public works director necessitate a greater street width.
As noted previously, the site is abutted by two public rights-of-way, West Amazon Drive and Vivian
Drive, neither of which are identified on the adopted Street Classification Map or adopted Right-of-
Hearings Official Decision (PDT 15-1/ ARA 15-13) 11
Way Map (Figs. 60-61 of the Arterial and Collector Street Plan (ACSP)). Vivian Drive, which has an
existing 60-foot right-of-way that ends at the southeast corner of the subject property, is unimproved.
The applicant is requesting an adjustment to the standards for street improvements at EC
9.6505(3)(b), which would require that the developer pave the street adjacent to the development
site to the width specified in EC 9.6870 Street Width. That request is evaluated below, in the context
of the applicable public improvement standards at EC 9.6505.
West Amazon Drive is classified as a local street, with a 60-foot right-of-way width and a variable
paving width of approximately 18 feet. Paving width of West Amazon Drive is addressed in EC 9.6505
below.
Since the existing 60-foot rights-of-way in both streets meet the maximum right-of-way width
identified for local streets in EC Table 9.6870, there is no requirement for additional right-of-way or a
special setback in either street.
EC 9.6873 Slope Easements
This standard does not apply because no public streets are proposed or required.
EC 9.6875 Private Street Design Standards
This standard does not apply because no new private streets are proposed or required.
(b) Provision of pedestrian, bicycle and transit circulation among buildings located within
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 1/4 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.
There are no nearby or adjacent office or industrial parks; however, a bus stop exists north of the site
near the intersection of Fox Hollow Road and Donald Street (LTD Bus #24), and a neighborhood
commercial center (Edgewood Center) exists less than 2 miles from the subject property. These
amenities are within 2 miles of the subject site, and could therefore be accessed by bicyclists. On the
other hand, no amenities listed in the above criterion are within X mile of the proposed PUD;
therefore it would not be expected that these amenities are used by pedestrians.
(c) The street layout of the proposed PUD shall disperse motor vehicle traffic onto more
than one public local street when the PUD exceeds 19 lots or when the sum of proposed
PUD lots and the existing lots utilizing a local street as the single means of ingress and
egress exceeds 19.
Staff decision:
In the applicant's original narrative, the only statement they provide under this standards is as
follows:
"Under EC 9.0500, street includes both improved and unimproved right-of-way. The dedicated
West Amazon right-of-way connects from Fox Hollow to Martin Street."
Hearings Official Decision (PDT 15-1/ ARA 15-13) 12
While staff agrees with the applicant that the unimproved section of West Amazon Drive is right-of-
way and meets the definition of a "street" under EC 9.0500, staff expressed concern as part of
completeness review that this standard could not be met since the street segment is unimproved and
would not allow for motor vehicle use. See Attachment C for a graphical representation of West
Amazon Drive and other streets in the vicinity. In response to the initial concerns raised by staff, the
applicant stated the following:
"Needed housing applications are to be reviewed under clear and objective standards. As
discussed in the Written Statement, EC 9.0500 clearly and objectively includes unimproved
public rights-of-way within the definition of street. Therefore the entire length of West
Amazon Drive from Fox Hollow Road to Martin Street must be included in the analysis of the
"19 Lot Rule" (EC 9.8325(6)(c)).
At this location, the sum of proposed lots and the existing lots utilizing West Amazon Drive as the
single means of ingress and egress exceeds 19 (see Attachment D), and the applicant does not appear
to dispute or otherwise challenge that finding of fact. The proposal does not include any new streets
within the PUD, and the unimproved segment of West Amazon Drive to the north precludes its use for
dispersal of motor vehicle traffic onto more than one public local street. Yet, the applicant does not
address the plain meaning of this requirement in consideration of the full text of the standard, except
to assert that the unimproved segment "must be included in the analysis of the 19-Lot Rule" based on
the definition of a street. Their application materials do not address the fact that motor vehicles
cannot actually use this unimproved right-of-way as a means of secondary access, and the reality that
there is only one way in or out, where West Amazon Drive connects to Fox Hollow Road. In other
words, to satisfy this criterion, the proposal cannot simply rely on a line on a map. As a result, staff
concludes that the standard is not met.
Serving as additional evidence of non-compliance is the Planning Commission's Final Order for
Deerbrook PUD (PDT 12-1), which provides some relevant case history under the Needed Housing
criteria that the Hearings Official should consider. The Deerbrook PUD site (Tax Lots 101, 300 and 302
of Assessor's Map 18-03-20-21) is located to the northeast of the subject property along West
Amazon Drive and south of Martin Street. Staff notes that the Deerbrook PUD approval has expired,
and the City has recently purchased the site for park purposes and protection as a natural area, but
the Planning Commission's findings on appeal stated the following regarding the "19-Lot Rule":
This standard is really about dead-end streets, where there is only one way in or out. With.the
applicant's improvement of West Amazon Drive, the site can be accessed from the north via Martin
Street or from the south via Fox Hollow Road. The issue here would have been if West Amazon
Drive did not connect to Fox Hollow Road. The Applicant's improvements will complete the missing
connecting link in the street system (Page 32, PC Final Order adopted 12-17-2012).
This finding was not further challenged on appeal to LUBA by any party, and thus became part of the
City's final local approval. Unlike the Deerbrook PUD, the subject proposal does not disperse vehicle
traffic onto more than one local public street to provide more than "one way in or out-."-'°
Further, and although it is not directly relevant with respect to the applicable standard here, referral
comments from Fire Marshal staff (see Attachment E) note that Eugene Fire Code Appendix D, Section
Hearings Official Decision (PDT 15-1/ ARA 15-13) 13
D107.1 states that where the number of one and two-family dwellings exceed 30, there shall be
provided two separate and approved fire apparatus access roads. The referral from Eugene-
Springfield Fire states that they do not support the proposed development at this time until a fire
apparatus access road meeting the requirements of EFC Appendix D, Section D104.3 and D107.1 is
provided.
Based on the above findings above, this criterion is not met. As an aside, staff notes that the "19-Lot
Rule" is not included in the PUD General Criteria. That is, the applicant could have reverted to
applying the General Criteria when staff raised concerns in regard to this standard, yet they chose to
proceed under the Needed Housing criteria anyway.
Hearings Official Findings:
Mr. Kloos makes two arguments in response to the staff decision.
First, he argues that EC 9.8325(6)(c) can be applied and met according to its terms if West Amazon is
found to meet the definition of a "street" as defined in EC 9.0050. According to this argument, once it
is conceded that West Amazon is a street, then the requirement of EC 9.8325(6)(c) to "disperse motor
vehicle traffic onto more than one public local street" is met. He notes that nothing in the legislative
history surrounding the adoption of the 19 lot standard requires a different result.
Staff and the city attorney respond that even though West Amazon may technically fit the definition
of a "street," the evidence in the record that the right of way is not improved, is blocked by a locked
gate, and that prior land use decisions show that the section of West Amazon at issue will likely never
be used as a street suitable for vehicular traffic, show that traffic cannot be dispersed in that direction
to meet the standard.
Second, Mr. Kloos argues that the holding in the Group 8 LLC case requires that if the 19 lot rule can
be applied in a way that allows the proposal, then it must be applied in that manner. In other words,
once the type of housing applied for is determined to be "needed housing" all the clear and objective
standards that apply may only do so in a way that approves development. Mr. Kloos likens the 19 lot
standard to the city's former stormwater standard that LUBA found to be impossible to comply with in
Homebuilders of Lane County v. City of Eugene.
Staff and the city attorney respond that the 19 lot rule is not impossible to comply with because other
applicants in other locations can meet the standard. That factual circumstance is different than the
stormwater standard at issue in the Homebuilders case. They further respond that neither ORS
197.307 nor Goal 10 go so far as to require an approval for a needed housing application without
regard to whether the applicant meets the clear and objective approval standards.
The Hearings Official agrees with staff and the city attorney.
As an initial matter, I find that EC 9.8325(6)(c) is a clear and objective standard. It represents a simple
counting exercise and a determination of whether more than one point of ingress and egress is
available to disperse motor vehicle traffic. The standard does not represent a "subjective, value laden
analyses that are designed to balance or mitigate impacts." Rogue Valley Assoc. of Realtors v. City of
Ashland, 35 Or LUBA 139, 158, aff'd 158 Or App 1 (1999). It is also my conclusion that the necessity to
Hearings Official Decision (PDT 15-1/ ARA 15-13) 14
determine the plain meaning of words such as "disperse" or "motor vehicle traffic" does not
transform the clear and objective standard into a discretionary exercise. Nor does taking account of
evidence in the record with regard to the current condition of West Amazon make application of the
standard less clear and objective. In connection with these conclusions, I decline to delve into the
offered legislative history of the 19 lot rule because it is my opinion that the text and context of EC
9.8325(6)(c) is sufficient to resolve the competing arguments.
At the heart of Mr. Kloos's definitional argument is that the term "disperse" does not have a spacial
aspect. He argues, based on the Webster's Third New International Dictionary definition, that the
potential to move in more than one direction from a given location is sufficient to "disperse" vehicular
traffic. He specifically asserts that the Hearing Official should not make policy of the fly by making a
determination about how far a vehicle must travel before it is dispersed enough to meet the 19 lot
rule.
There are at least two problems with Mr. Kloos's argument, one definitional, and one evidentiary.
Although Mr. Kloos offers the "1a" part of the Webster's definition in his argument, there is a second
part to the primary definition that has been left out. That part is "1b" which states: "to cause to
become spread widely." Taking this part of the definition of "disperse" into account contradicts the
argument that it is enough that traffic can move in both directions along West Amazon from the
proposed PUD. Mr. Kloos concedes that such traffic could only travel 1000 feet to the barrier on West
Amazon - but he urges that even such a short distance is enough to meet the standard. By this logic
the standard could be met if traffic could travel even one block to an existing cul-de-sac. This
interpretation is contrary to the both the "1a and 1b" definition of "disperse" as used in EC
9.8325(6)(c).
The Hearings Official agrees with the Planning Commission interpretation offered by staff above. Mr.
Kloos would deem the standard to be met even though it sent future residents down the proverbial
"Road to Nowhere."' Here, where the "layout" of the PUD relies on only one public street to disperse
motor vehicle traffic, that traffic at minimum must be able to go somewhere in two different
directions that do not terminate in a dead end.
As to the evidentiary problem, the applicant does not provide any evidence to contradict that
provided by staff showing that West Amazon to the west of the subject property is not likely to be
developed to allow "motor vehicle traffic" at any time in the future if ever. Evidence of prior land use
decisions and testimony that the barrier will remain to facilitate a park is unrebutted. Nor was
reliable evidence submitted that any of the other local streets along West Amazon might be
developed through to Fox Hollow Road to either the north or south of West Amazon.
In response to Mr. Kloos's second argument, I agree with the city attorney's analysis as set forth in the
November 12, 2105 memo and adopt the reasoning on pages 5-6 (Section II, Subsections A and B) as
my own by this reference. In addition, I add two reasons to reject the applicant's position.
First, the record contains maps reflecting prior land use approvals on the section of West Amazon
west of Fox Hollow Road. It appears that some of the lots created over time were done through the
PUD process. In any case, all other factors being equal, the applicant could have developed the
Talking Heads, Little Creatures (1985)
Hearings Official Decision (PDT 15-1/ ARA 15-13) 15
proposed PUD in compliance with the 19 lot rule at some point in the relatively recent past - before
the area had exceeded the 19 lot threshold. I point this out not to somehow blame the applicant for
not moving quicker, but to amplify the city attorney's argument that the 19 lot rule has city wide
application and is not applicant specific. The record simply shows that other land owners in the
immediate vicinity developed lots to the available capacity before the applicant made the current
proposal. This means the 19 lot rule has a temporal component. It does not mean that EC
9.8325(6)(c) is impossible for ANY applicant to comply with as discussed in the Homebuilders case.
Second, I disagree with Mr. Kloos's assertion that the Group 8 LLC holding demands a lock step
decision to approve a needed housing application once a given property is found on the BLI. The
Group 8 case involved a unique outlier condition that was a peculiar historical appendage to the
specific property at issue. That condition was not part of the city's set of clear and objective
standards. As I read the case, the applicant had met the city's needed housing standards but the city
determined that the property specific condition was not met. LUBA found that the condition could be
interpreted to allow the proposed development, and that finding in combination with the property
being identified on the BLI required approval. Those are starkly different facts that those at issue in
the current application.
For all these reasons the Hearing Official finds that this criterion is not met.
EC 9.8325(7): The PUD complies with all of the following (an approved adjustment to a standard
pursuant to the provisions beginning at EC 9.8015 of this land use code constitutes compliance
with the standard):
(a) EC 9.2000 through 9.3915 regarding lot dimensions and density requirements for the
subject zone. Within the /WR Water Resources Conservation Overlay Zone or /WQ
Water Quality Overlay Zone, no new lot may be created if more than 33% of the lot, as
created, would be occupied by either:
1. The combined area of the /WR conservation setback and any portion of the Goal 5
Water Resource Site that extends landward beyond the conservation setback; or
2. The /WQ Management Area.
Lot Dimensions: All proposed lots comply with the minimum lot area requirement of 4,500 feet in the
R-1 zone. Lots #3 and #6 exceed the maximum allowable lot size of 13,500 square feet; however,
these lots are impacted by criterion EC 9.8325(5), which restricts grading or any development on
slopes greater than 20%. With implementation of this slope restriction, Lots #3 and #6 have a
developable area of less than 13,500 square feet. Based on these findings, the proposed parcels meet
lot dimension standards.
Flag Lots: While it is not clear on the submitted site plans, the applicant states that Lots #5 and #6 are
proposed as flag lots. These lots appear to meet the 6,000 square feet lot area minimum for
residential flag lots, as well as the minimum lot width of 50 feet. Consistent with flag lot standards,
Lots #5 and #6 have a combined frontage (pole width) of 25 feet.
The proposal complies with all lot dimension and density requirements for the subject zone.
Hearings Official Decision (PDT 15-1/ ARA 15-13) 16
The second part of this criterion does not apply as the site is not within the /WR Water Resources
Conservation Overlay Zone or /WQ Water Quality Overlay Zone.
(b) EC 9.6500 through 9.6505 Public Improvement Standards.
EC 9.6500 Easements
This section authorizes the City to require dedication of easements for public utilities and access
under certain circumstances. The applicant proposes a 7' wide Public Utility Easement (PUE) adjacent
to West Amazon Drive. The application does not propose any other public easement dedications nor
are there any public improvements that would result in the need for additional public easements on
the subject property. Based on these findings, the development complies with these standards.
EC 9.6505 Improvements - Specifications
This section requires that all public improvements be designed and constructed in accordance with
adopted plans, policies, procedures and standards specified in EC Chapter 7. All developments are
required to make and be served by the infrastructure improvements described below.
(1) Water
Water service for the proposed development must be provided in accordance with Eugene Water and
Electric Board (EWEB) policies and procedures.
(2) Sewage
Staff decision:
This standard requires all developments to be served by wastewater sewage systems of the City, in
compliance with the provisions of EC Chapter 6. The applicant proposes to extend the public wastewater
system to the development site from existing public manhole #49670. The manhole is located in Foxboro
Lane (a private street), which contains a PUE.
Referral comments from Public Work staff note that the proposed extension of the public system is
conceptually acceptable, with the details of the system design to be evaluated during a subsequent
Privately Engineered Public Improvement (PEPI) process. Details of the private service lines would be
evaluated at the time of building permit.
Hearing Official Findings:
Mr. Levinson raised concerns about the potential need to pump sewage uphill and the concomitant noise
that might bring to the neighborhood. This standard does not require an analysis of potential noise
impacts and simply assesses whether services can be provided. As such the criterion is met.
(3) Streets and (4) Sidewalks
EC 9.6505(3), (a) & (b) requires all streets in and adjacent to the development site to be paved to the
width specified in EC 9.6870, and improved according to adopted standards and specifications
pursuant to EC Chapter 7, unless such streets have already been paved to that width. As noted above
Hearings Official Decision (PDT 15-1/ ARA 15-13) 17
with respect to EC 9.6870, West Amazon Drive, adjacent to the proposed development, is not fully
improved to City standards including paving, curbs and gutters, storm drainage, sidewalks, street
lights, and street trees.
The applicant's site plan, and Stormwater Management Plan and Drainage Study, reference additional
paving and a setback sidewalk proposed in West Amazon Drive. Public Works staff notes that the
construction of curb, sidewalk and storm system would be evaluated and constructed under the
Privately Engineered Public Improvement (PEPI) process. Construction of additional paving to meet
the 20-foot-width minimum under the Temporary Surface Permit process, in addition to an
Irrevocable Petition for future improvements to West Amazon Drive, is also an acceptable option.
At the time of the subsequent subdivision review, the applicant would be responsible for completing
improvements in West Amazon Drive along the frontage of the subject property, by either: 1)
completing half-street improvements through the PEPI process; or 2) by indicating that additional
paving which will result in a minimum 20-foot surface will be constructed through a Temporary
Surfacing Permit, in which case an Irrevocable Petition for future improvements will be required.
The applicant has also requested an adjustment to EC 9.6505(3)(b), for the paving requirement of Vivian
Drive, citing that Lots 7-10 will not take access to Vivian Drive, and therefore Vivian Drive will not be
impacted by the development. In the event the Hearings Official approves the request, and to ensure
compliance with the Adjustment Review approval criteria at EC 9.8030(19)(b), the following condition is
warranted:
• The Final PUD plans shall note that access connections from Vivian Drive are not permitted.
With this condition of approval, and future permitting requirements as noted above, the applicable
standards would be met.
5) Bicycle Paths and Accessways
No bicycle paths or public access ways are required per the previous findings at EC 9.6835, which are
incorporated by reference.
(c) EC 9.6706 Development in Flood Plains through EC 9.6709 Special Flood Hazard Areas -
Standards.
This standard does not apply as the site is not located within a Special Flood Hazard Area per Flood
Insurance Rate Map 41039C-1627-F.
(d) EC 9.6710(6) Geological and Geotechnical Analysis.
The applicant has stated this standard does not apply due to the exemption listed in EC 9.6710(3)(f). As
confirmed above, the property is included on the City's acknowledged Goal 5 inventory and therefore
qualifies for the exception. While not required with the PUD application, Public Works staff notes that a
geotechnical analysis will be required as part of the Privately Engineered Public Improvement (PEPI)
process for public wastewater improvements.
(e) EC 9.6730 Pedestrian Circulation On-Site.
Hearings Official Decision (PDT 15-1/ ARA 15-13) 18
These standards do not apply to single-family residential development.
(f) EC 9.6735 Public Access Required.
(1) 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 development site has frontage along West Amazon Drive and Vivian Drive right-of-way. All lots
will be restricted to access from West Amazon Drive, either directly or via a private easement. The
proposed PUD complies with this criterion.
(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 proposed development site is subject to this standard. The shared access proposed for lots 4-10
meets the standards at EC 7.420 Access Connections - Location. Access for Lots 1-3 will be further
evaluated during the building permit process.
(3) The standard at (2) may be adjusted if consistent with the criteria of EC 9.030(28).
Based on the foregoing findings, the development complies with these standards and no adjustment
is necessary.
(g) EC 9.6750 Special Setback Standards.
As discussed previously at EC 9.6805 and EC 9.6870, which is incorporated herein by reference,
adjacent streets comply with applicable right-of-way width requirements. No special setbacks are
required for future right-of-way or public utility easements.
(h) EC 9.6775 Underground Utilities.
All utilities will be required to be underground, consistent with this standard.
(i) EC 9.6780 Vision Clearance A
No encroachments within a regulatory Vision Clearance Area are shown. Should Vivian Drive be
improved in the future, Lot 7 would be subject to these standards, and analysis of potential Vision
Clearance Area encroachments would be evaluated at the time of building permit.
Hearings Official Decision (PDT 15-1/ ARA 15-13) 19
(j) EC 9.6791 through 9.6797 regarding stormwater flood control, pollution reduction, flow
control for headwaters area, oil control, source control, easements, and operation and
maintenance.
The applicant has provided a Stormwater Management Plan and Drainage Study prepared by Branch
Engineering detailing how runoff from the development will be managed. Stormwater runoff from
roofs, driveways, and other impervious surfaces of the development site will be collected in a shared
private storm drainage system that will be located within private easements or shared common areas.
The runoff from the private development will be detained and released to mimic existing flows and
drainage patterns. A stormwater quality facility is proposed to treat the shared driveway.
Staff notes that a maintenance agreement for the shared system will be required at the time of the
subsequent subdivision review. Additionally, if the private storm system is not addressed in CC&R's,
they will need to be covered by private easements.
EC 9.6791 Stormwater Flood Control - Existing drainage patterns will be maintained by discharging
stormwater runoff created by the PUD through a shared, private spreader system to the unimproved
Vivian Drive right-of-way.
EC 9.6792 Stormwater Quality - The applicant's proposal to treat the runoff from the proposed
shared driveway with a water quality treatment swale is conceptually acceptable, subject to more
detailed review for compliance with applicable standards during the building permit process.
Treatment for individual lots will be evaluated at the time of building permit review for each lot.
EC 9.6793 Stormwater Flow Control (Headwaters) applies to the site given its proximity to a
Headwaters stream located on the east side of Vivian Drive. The applicant proposes a detention
facility and spreader system, as detailed in the Stormwater Management Plan and Drainage Study, to
restrict post-development flows to pre-development rates.
EC 9.6794 Stormwater Oil Control does not apply because the development will not trigger any of the
applicability standards of EC 9.6794(2).
EC 9.6795 Stormwater Source Control does not apply because the proposed development does not
include any of the pollution sources specified in EC 9.6793(2).
EC 9.6796 Dedication of Stormwater Easements, does not apply because the proposed storm drainage
system will be privately operated and maintained.
EC 9.6797 Stormwater Operations and Maintenance applies to all facilities designed and constructed
in accordance with the stormwater development standards. This section also specifies when, and
under what conditions, the public will accept functional maintenance. Consistent with these
standards, the applicant proposes private operation and maintenance of the on-site stormwater
management facilities. To ensure compliance with EC 9.6797(3)(c), as proposed, the following
condition of approval is recommended in the event the Hearings Official approves the proposal:
• Final PUD plans shall include the note: "On-site stormwater management facilities will be
privately owned and operated. An operation and maintenance plan will be developed
Hearings Official Decision (PDT 15-1/ ARA 15-13) 20
consistent with the City's Stormwater Management Manual, and notice of this plan will be
recorded, during the building permit process."
With the findings, conditions, and future permit requirements noted above, this criterion is met.
EC 9.8325(8): The applicant has demonstrated that wastewater service, transportation service,
stormwater service, water service, and electrical service will be provided to the site prior to the
need for those facilities and services. Where the facility or service is not already serving the site,
this demonstration 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.
Public Works staff concurs with the applicant's statement that adequate public utilities and services,
including wastewater and stormwater service, are presently available to the site. Findings at EC
9.8325(7)(b) and (j), regarding public improvements and stormwater respectively, are incorporated
herein by reference as further evidence that these services are available to the site. Given these
findings, the proposal is in compliance with this criterion.
The provision of water and electric services and other utilities is subject to review by EWEB or other
utility providers.
Based on the above findings, this criterion is met.
EC 9.8325(9): All proposed dwellings within the PUD are within 1/4 mile radius (measured from
any point along the perimeter of the development site) of an accessible recreation area or open
space that is at least 1 acre in size and will be available to residents.
This criterion is met by the proposed common open space within the development site and by the
City-owned parkland located to the north of the dead-end of West Amazon Drive.
EC 9.8325(10): Lots proposed for development with one-family detached dwellings shall comply
with EC 9.2790 Solar Lot Standards (these standards may be modified as set forth in subsection
(11) below).
EC 9.2790(3)(b) allows an exception to EC 9.2790(2) if compliance with street standards requires a
configuration that prevents lots from being oriented for solar access. Additionally, an exception can be
granted if natural features prevent the lots from being oriented for solar access. Lots 1-3 comply with
solar lot standards as they have a north-south dimension greater than 75 feet and a front lot line
orientation within 30 degrees of east-west. The applicant asserts that Lots 4-10 are exempt from
these standards because the alignment of West Amazon Drive and Vivian Drive prevent a front line
orientation within 30 degrees of east-west. Therefore, in the event that the Hearings Official
approves the tentative PUD, an exception to EC 9.2790 is recommended for Lots 4-10.
Hearings Official Decision (PDT 15-1/ ARA 15-13) 21
As an informational item, staff notes this exception does not apply to solar setback requirements at
EC 9.2795, which would be subsequently addressed as part of the building permit process for future
development of the proposed lots.
Based on these findings, this criterion is met.
EC 9.8325(11): The PUD complies with all applicable development standards explicitly
addressed in the application except where the applicant has shown that a modification is
consistent with the purposes as set out in EC 9.8300 Purpose of Planned Unit Development.
The applicant's written statement references a paving width for the shared access easement of 28
feet to allow for fire access and parking on both sides. As an informational item, staff notes that on-
site fire access and the proposed parking along the private driveway would be subject to further
review for compliance with applicable standards at the time of future permitting processes.
Otherwise, there appear to be no other development standards explicitly addressed in the
application, nor any requests for "modification" to standards under this criterion.
Based on these findings, this criterion is met.
EC 9.8325(12): For any PUD located within or partially within the boundaries of the South Hills
Study, the following additional approval criteria apply:
(a) No development shall occur on land above an elevation of 900 feet except that one
dwelling may be built on any lot in existence as of August 1, 2001.
The subject property is below 900 feet in elevation (the highest elevation is 842 feet).
(b) Development shall be setback at least 300 feet from the ridgeline unless there is a
determination by the city manager that the area is not needed as a connection to the
city's ridgeline trail system. For purposes of this section, the ridgeline trail shall be
considered as the line indicated as being the urban growth boundary within the South
Hills Study plan area.
The subject property is located more than 300 feet from the south hills ridgeline and thus complies
with this standard.
(c) Development shall cluster buildings in an arrangement that results in at least 40% of the
development site being retained in 3 or fewer contiguous common open space areas.
For purposes of this section, the term contiguous open space means open space that is
uninterrupted by buildings, structures, streets, or other improvements.
The development provides contiguous common open space which is configured consistent with the
above approval criterion. The applicant notes that the common open space constitutes 2.18 acres of
the 4.45-acre property. This results in 49% of the development site shown as common open space.
Staff notes that this figure of 4.45 acres is not consistent with the 5.19 gross acres noted elsewhere in
the application materials. Using the larger "gross acres" figure, the development site includes 42% of
Hearings Official Decision (PDT 15-1/ ARA 15-13) 22
the total area provided as common open space. However, regardless of which total area figure is
used in the calculation, the proposed layout complies with this standard.
(d) Residential density is limited as follows:
1. In the area west of Friendly Street, the maximum level of new development per gross
acre shall be 8 units per acre.
2. In the area east of Friendly Street, the maximum level of new development per gross
acre shall be limited to 5 units per acre.
3. Housing developed as Controlled Income and Rent Housing shall be exempt from the
density limitations in subsections 1 and 2 above, but are subject to the other
applicable development standards and review procedures.
The development proposed by the applicant (10 units on 5.19 acres) would result in a residential
density of about 1.9 units per acre, which is below the limitation of five units per acre required by the
property's location being east of Friendly Street.
Based on the above findings, this criterion is met.
Decision
Based upon the available evidence and preceding findings, the Hearings Official DENIES the applicant's
request for a Tentative Planned Unit Development.
Dated this 3rd day of December, 2015. Mailed this 411 day of December, 2015.
Kenneth D. Helm
Hearings Official
SEE NOTICE OF HEARINGS OFFICIAL DECISION FOR STATEMENT OF APPEAL RIGHTS
Hearings Official Decision (PDT 15-1/ ARA 15-13) 23