HomeMy WebLinkAboutPublic Comment (8)LAW OFFICE OF BILL IGLOOS PC
OREGON LAND USE LAW
375 W. 4THAVENUE, SUITE 204
EUGENE, OR 97401
TEL: 541.343.8596
WEB: WWW.LANDUSEOREGON.COM
BILL KLOOS
BILLKLOOS@LANDUSEOREGON. COM
November 3, 2015
Eugene Hearings Official
c/o Eugene Planning Director
99 West 10th Ave.
Eugene, OR 97401
Re: Chamotee Trails PUD (PDT 15-1/ARA 15-13); Applicant's Hearing Statement
Dear Hearings Official:
Please accept this into the record on behalf of the applicant. Generally, this responds to issues
raised in the Staff Report.
This application invokes the Needed Housing Statute to ensure that the city approves housing on
this site in this application process. Invoking the Needed Housing Statute is the only way the
owner can approach residential development and be assured of an approval. As the Deerbrook
case shows (Deerbrook decisions included as Exhibit A), applying the General Criteria in this
neighborhood can result in multiple denials over many years for the same site.
The key provisions of the Needed Housing Statute being involved here are in ORS 197.307:
197.307 Effect of need for certain housing in urban growth areas; approval
standards for certain residential development; placement standards for approval
of manufactured dwellings.
(4) Except as provided in subsection (6) of this section, a local government
may adopt and apply only clear and objective standards, conditions and
procedures regulating the development of needed housing on buildable land
described in subsection (3) of this section. The standards, conditions and
procedures may not have the effect, either in themselves or cumulatively, of
discouraging needed housing through unreasonable cost or delay.
(6) In addition to an approval process for needed housing based on clear and
objective standards, conditions and procedures as provided in subsection (4) of
this section, a local government may adopt and apply an alternative approval
process for applications and permits for residential development based on
approval criteria regulating, in whole or in part, appearance or aesthetics that
are not clear and objective if.-
Eugene Hearing Official
November 3, 2015
Page 2
(a) The applicant retains the option of proceeding under the approval process
that meets the requirements of subsection (4) of this section;
(b) The approval criteria for the alternative approval process comply with
applicable statewide land use planning goals and rules; and
(c) The approval criteria for the alternative approval process authorize a
density at or above the density level
authorized in the zone under the approval process provided in subsection (4) of
this section.
A handful of key cases are relevant here: Group B, LLC v. City of Corvallis, Or LUBA
(LUBA No. 2015-019, Aug. 25, 2015)(reversing denial under Needed Housing Statute);
Parkvierv Teri-ace Dev't Inc. v. City of Grants Pass, Or LUBA _ (No. 2014-024, July 23,
2014)(same); Rudell v. City of Bandon, 62 LUBA 279 (2010)(finding discretionary standards
inapplicable); Home Builders Assoc. of Lane County v. City of Eugene, 41 Or LUBA 370, 424
(2002)(facial challenge to new provisions in Eugene code as contrary to the statute).
Standard EC 9.56875(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.
As a starting point, three things are worth noting about this standard. First, as the Staff Report
explains at page 10, the 19 lot rule is unique to those who exercise their statutory right to clear
and objective standards; the rule does not appear in the standards under the General
(Discretionary) Criteria. Second, the rule is not about fire safety or it would appear under the
General Criteria. Third, the legislative history of the 19-lot rule explains nothing about its
purpose or intent. See attached legislative history excerpt fi•om the 2001 zoning code update in
Exhibit B. The 19-lot rule appeared in the first full draft of the new code in April 1999 without
comment.
1. Staff is asking the Hearing Official to apply this standard contrary to its terms.
The Staff Report concurs that West Amazon meets the definition in this standard because
"street" in the code is defined to include both improved and unimproved right of way. The Staff
Report is recommending that you apply the standard contrary to its terms. Staff is
recommending the Hearing Official ignore this standard for policy reasons unrelated to the
standard. The Hearing Official will not be able to explain a denial based on the language of the
standard.
2. The 19-lot standard may not be applied to deny development. The Needed Housing
Statute ensures the right to develop under clear and objective standards, not the right to be
denied under clear and objective standards.
Eugene Hearing Official
November 3, 2015
Page 3
Because this site is on the acknowledged Buildable Land Inventory (BLI), the owner has a right
to an approval of development under clear and objective standards. The Staff Report notes that
this site could be applied for under the General Criteria, which are discretionary. Staff Report at
10. However, as LUBA explained in Group B, LL C, the City may only apply discretionary
standards if the owner has a right to clear and objective standards.
"Under ORS 197.307(6), a local government may impose unclear, subjective or
discretionary standards and conditions on needed housing only if it offers a path
that allows needed housing subject only to clear and objective standards and
conditions." [Slip op 12 line 22]
Here the right to develop under clear and objective standards is illusory. The City may not apply
a standard that is clear and objective but is so stringent as to make development approval
unobtainable. An example of this is the stormwater standard adopted by the City in 2001 as part
of the zoning code update, but struck down by LUBA in 2002 in the Honze Builders decision.
There the Home Builders challenged a stormwater discharge standard that was clear and
objective but was so stringent that no development proposal could meet it. LUBA struck it down
as a prohibition on development under the guise of a clear and objective standard. LUBA agreed:
"2. Stormwater Runoff
In section II.A.2.u, we held that LUCU 9.8325(10) imposes a clear and
objective requirement that stormwater runoff from a PUD will not "create
negative impacts on natural drainage courses" such as erosion, turbidity or
sediment transport, "due to increased peak flows or velocity." We agreed with the
city that, while LUCU 9.8325(10) may be difficult to meet, its prohibition on
negative impacts of the specified type is clear and objective. Petitioners argue
that, even if LUCU 9.8325(10) is clear and objective, it nonetheless offends the
needed housing statute, because it is so difficult to meet that it effectively forces
needed housing applicants to opt for the alternative, discretionary track. [FN36]
Petitioners submit that rain *420 falls on all development, and all water moving
across ground carries some sediment, creates some turbidity, and has some
erosional component, no matter how minute, and therefore no PUD could
possibly comply with LUCU 9.8325(10).
"We agree with petitioners, at least in the abstract, that imposing a clear
and objective standard that is impossible or virtually impossible to meet is a
prohibition in the guise of a standard. ORS 197.307(3)(d) allows the city to offer a
discretionary approval track, "provided the applicant retains the option of
proceeding under the clear and objective standards[.]" That option is illusory if
the clear and objective standards are impossible to satisfy. It may not be the case
that LUCU 9.8325(10) is impossible to satisfy. However, the city provides no
assistance on this point, or indeed any response to this subassignment of error at
all. Accordingly, we sustain this subassignment of error." [Home Builders at 419]
Eugene Hearing Official
November 3, 2015
Page 4
The Hearing Official should find that: Because this site is on the BLI, the owner is entitled by
statute to a development approval under clear and objective standards; clear and objective
standards that prohibit development may not be applied under the statute; the 19-lot rule may not
be applied because it prohibits development.
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).
The plain language of the standard prohibits any development of the site.
This standard is troublesome for any residential developer, based on how it was interpreted in the
recent Deerbrook litigation. There is a 2004 Director Interpretation saying that fences are not
allowed in the 30-foot landscape area. See Exhibit C. (Director Interpretation and Hearing
Official decision on appeal). In the Deerbrook PUD matter, the Hearing Official interpreted the
standard as allowing a fence to be placed on the perimeter of the property with the 30-foot buffer
area to be inside the fence. Hearing Official decision, Exhibit A at 10-11. The Planning
Commission reversed that, saying the fence had to be on the inside of the 30-foot buffer.
Commission Decision, Exhibit A at 30-31. LUBA affirmed on that issue.
The inability to fence affects the marketability and value of lots. The market wants fences.
Having to fence inside the 30-foot buffer makes the buffer area an amenity for the neighbor
rather than the lot owner, which further impacts value.
With the briefing here, we ask the Hearing Official to determine that this standard may not be
applied because, under its plain language, it precludes any development on the site. The
requirement for a "30 foot wide landscape" "buffer area between the proposed development and
surrounding properties" may not'be applied to this application because it is contrary to the
requirements of the Needed Housing Statute. See discussion above.
The landscape standard has a fatal shortcoming. The plain language does not allow access roads
to penetrate the buffer; hence the standard prevents development; the statute requires it to allow
development; hence it may not be applied.
When this code standard was last interpreted in 2004, the Director opened a crack in it by saying
that "surrounding properties" does not include adjacent city streets. The Hearing Official gets a
fresh look at the standard here.
How deep of a crack would the Director read into this standard? Is it only city streets adjacent to
the site that afford relied from the buffer? How about a county street? How about city owned
property that is adjacent but not a street? School property? City owned Goal 5 property between
the subject property and a stream? What is the scope of this crack in the meaning of the
standard?
Eugene Hearing Official
November 3, 2015
Page 5
The plain language of this standard does not invite the crack that the Director read into it in
2004, or any crack for that matter. The language is pretty simple. It requires the buffer on the
perimeter adjacent to "surrounding properties." That would include private property, such as
adjacent private lots, and public property, such as streets. Surrounding is surrounding.
The dictionary definition of surrounding also does not allow the exception that the Director read
into it. See Webster's Third New MCI Dictionary (unabridged ed 2002) at 2302. "Surrounding
* * the circumstances, conditions, or objects by which one is surrounded." Applying this
standard as it is written would not permit any development of the property. The standard would
require the 30-foot buffer along West Amazon Drive, and that would preclude the private street
needed for access.
In summary, as LUBA explained in Horue Builders, this standard may not be applied consistent
with the statute because it does not allow development.
Sincerely,
O2
Bill Kloos
Exhibit A.
Deerbrook Decisions
FILED: October 23, 2013
IN THE COURT OF APPEALS OF THE STATE OF OREGON
SOUTHEAST NEIGHBORS NEIGHBORHOOD ASSOCIATION,
Petitioner
Cross-Respondent,
V.
CITY OF EUGENE,
Respondent,
and
WEST CREEK, LLC; SOUTH PARK ASSOCIATES, LLC; and HOMEBUILDERS
ASSOCIATION OF LANE COUNTY,
Respondents
Cross-Petitioners.
Land Use Board of Appeals
2013004
Al54841
Argued and submitted on October 02, 2013.
Before Ortega, Presiding Judge, and Hadlock, Judge; and Edmonds, Senior Judge.
Attorney for Petitioner-Cross-Respondent: Daniel C. Snyder.
Attorney for Respondent: Emily N. Jerome.
Attorney for Respondents-Cross Petitioners: Nicholas Klingensmith.
Attorney for knicus Curiae LandWatch Lane County: Sean T. Malone.
Attorney for 11172ic113 Curiae Cascadia Wildlands: Nicholas S. Cady.
AFFIRMED WITHOUT OPINION
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BEFORE THE LAND USE BOARD OF APPEALS
OF THE STATE OF OREGON
SOUTHEAST NEIGHBORS
NEIGHBORHOOD ASSOCIATION,
Petitioner,
V5.
CITY OF EUGENE,
Respondent,
and
WEST CREEK LLC,
SOUTH PARK ASSOCIATES LLC,
and HOMEBUILDERS ASSOCIATION
OF LANE COUNTY,
Intervenors-Respondents.
LUBA No. 2013004
FINAL OPINION
AND ORDER
Appeal from City of Eugene.
07/1 ,,3.~ At-1'100:158 U jOn
Daniel C. Snyder, Eugene, filed a petition for review and cross response brief and
argued on behalf of petitioner.
Glenn Klein, City Attorney, Eugene, filed a response brief. Emily N. Jerome,
Eugene, argued on behalf of respondent.
Bill Kloos, Eugene, filed a response brief and cross petition for review and argued on
behalf of intervenors-respondents.
RYAN, Board Member; BASSHANI, Board Member, participated in the decision.
IHOLSTUN, Board Chair, did not participate in the decision.
AFFIRMED
07/12/2013
You are entitled to judicial review of this Order. Judicial review is governed by the
provisions of ORS 197.850.
Page 1
I Opinion by Ryan.
2 NATURE OF THE DECISION
3 Southeast Neighbors Neighborhood Association (Southeast Neighbors) appeals a
4 decision approving a tentative planned unit development application.
5 REPLY BRIEFS
6 Southeast Neighbors and intervenors West Creek, LLC, South Park Associates, LLC
7 and HomebuiIders Association of Lane County (collectively, West Creek) each filed a
8 response brief and each moves for permission to file a reply brief to respond to new matters
9 raised in the others response brief The reply briefs are allowed.
10 FACTS
11 West Creek applied for tentative planned unit development (PUD) approval to create
12 75 residential lots on an approximately 26-acre property located in the South Hills area of the
13 city. The subject property is zoned Low Density Residential (R-1), and is within the PUD
14 overlay zone and the Water Resources (WR) overlay zone. The property is located south of
15 the intersection of West Amazon Drive and Martin Street. Access to the property is proposed
16 to be provided over an existing unimproved right of way that extends the developed portion
17 of West Amazon Drive through the property from north to south, from Martin Drive to Fox
18 Hollow Road. The entire property is included on the city's inventory of significant resources
19 under Statewide Planning Goal 5 (Natural Resources, Scenic and Historic Areas, and Open
20 Spaces) and the property is also included on the city's inventory of buildable lands under
21 Statewide Planning Goal 10 (Housing). Three segments of Amazon Creels are located on the
22 property.
23 The property is sloped. One provision of the Eugene Code (EC) that we set out and
24 discuss later prohibits grading on portions of a development site that meet or exceed 20
25 percent slope. EC 9.8325(5). The slope of the property was and is a central question in this
26 appeal. Based on a slope map of the property provided by West Creek that measured slope
Page 2
I using 5- foot contour intervals, planning staff prepared a slope map that showed that slopes
2 on most of the eastern portion of the property exceed 20 percent. The city's planning staff
3 initially recommended denial of the application for 75 lots because the plan proposed grading
4 of slopes on the eastern portion of the property that exceed 20 percent. In the alternative,
5 planning staff recommended a condition of approval that would limit the PUD to 47 lots
6 located only on the western portion of the property where West Creek's 5-foot contour
7 interval slope map shows there are no slopes greater than 20 percent. Thereafter, prior to the
8 initial public hearing before the hearings officer, West Creek submitted an alternative site
9 plan that sought approval for 47 lots by developing only the western portion of the property.
10 West Creek requested that the city approve either the 75-lot proposal or the alternative 47-lot
11 proposal.
12 During the proceedings before the hearings officer, Southeast Neighbors' expert,
13 Matthews, submitted a slope map (the Matthews Slope Map) that measured slopes on the
14 property using 5-foot contour intervals and showed more areas of the eastern portion of the
15 property as well as some areas on the western portion of the property as meeting or exceeding
16 20 percent slope, compared to the 5-foot contour slope map prepared by staff. The hearings
17 officer relied on the Matthews Slope Map to deny West Creek's 47-lot proposal (and 75-lot
18 proposal) because he determined that both plans proposed grading of portions of the property
19 that meet or exceed 20 percent slope.
20 Southeast Neighbors and West Creek both appealed the hearings officer's decision to
21 the planning commission. The planning commission concluded, based on the slope map
22 prepared by planning staff that was based on West Creek's 5-foot contour intervals slope
23 map, that the 47-lot plan did not propose grading on slopes equal to or greater than 20
24 percent, and approved the application for 47 lots. Southeast Neighbors appealed the planning
25 commission's decision to LUBA, and West Creek filed a cross petition for review.
Page 3
I SOUTHEAST NEIGHBORS' FIRST ASSIGNMENT OF ERROR/WEST CREEK'S
2 FIRST AND SECOND CROSS ASSIGNMENTS OF (ERROR
3 Southeast Neighbors' first assignment of error and West Creek's first and second
4 cross assignments of error challenge various aspects of the planning commission's decision
5 that are related to the question of the slopes on the property. We address West Creek's first
6 and second cross assignments of error that challenge the ability of the city to apply EC
7 9.8325(5) at all to the proposal and then turn to Southeast Neighbors' first assignment of
8 error that alleges that the planning commission committed procedural error.
9 A. West Creek's First and Second Cross Assignments of Error
10 The application is for "needed housing" as that term is used in ORS 197.303(1).1 EC
11 9.8325 provides the tentative PUD approval criteria for "needed housing." EC 9.8325(5)
12 provides that for a PUD for needed housing "[t]here shall be no proposed grading on portions
13 of the development site that meet or exceed 20% slope."
14 In its first and second cross assignments of error, West Creek argues that the city
15 erred in applying EC 9.8325(5) to its application for several reasons. First, according to West
16 Creek, the method for measuring slope is an application submittal requirement and failure to
1 ORS 197.303(1) provides:
"As used in ORS 197.307, `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,
including at least the following housing types:
"(a) 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;
"(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; and
"(e) Housing for farmworkers."
Page 4
I provide the requested information may not be used as a basis to deny an application. West
2 Creels additionally argues that including instructions about how to measure slope on the city's
3 application form is insufficient to make EC 9.8235(5) a "clear and objective standard[]"
4 within the meaning of ORS 197.307(4).' Finally, West Creek argues that ORS 227.173
5 prohibits the city from requiring applicants to use the city's method for measuring slope
6 where the method is not included in EC 9.8325(5). We address each argument in turn.
7 1. Information Requirement
8 The city's application form instructs applicants that for properties with slopes that
9 exceed ten percent, an applicant should provide slope data using 5-foot contour intervals.
10 Record 2315.3 West Creels initially submitted a slope map that measured slopes on the
11 property based on the difference in elevation between four sets of points on the property's
12 outer boundary, a method similar to measuring the average slope between points on the
13 property. Record 1851. By measuring slope using that method, the property's steepest slope
14 would be 15.2 percent and no grading on the plan for 75 lots would run afoul of the criterion.
15 West Creels also submitted slope measurements using 5-foot contour intervals. That
16 slope data showed that slopes on the property's eastern side meet or exceed 20 percent, and
17 led the city's planning staff to recommend denial of the 75-lot proposal or approval with a
18 condition limiting development to the western portion of the property. Finally, prior to the
19 close of the initial public hearing before the hearings officer, West Creek submitted a slope
20 map that measured slope using 20-foot contour intervals. Using that slope data, West
' ORS 197.307(4) provides:
"Except as provided in subsection (6) of this section, a local government may adopt and apply
only clear and objective standards, conditions and procedures regulating the development of
needed housing on buildable land described in subsection (3) of this section. The standards,
conditions and procedures may not have the effect, either in themselves or cumulatively, of
discouraging needed housing through unreasonable cost or delay."
' The city moves to supplement the record with West Creek's application. No party opposes the motion and
it is granted.
Page 5
I Creek's proposal for 75 lots would satisfy EC 9.8325(5). The hearings officer declined to
2 rely on the 20-foot contour interval slope map, and the planning commission affirmed that
3 decision. Record 12.
4 We agree with West Creek that a local government may not deny an application that
5 is otherwise complete merely for failure to provide the information required by the
6 application form or by the code. Caster v. Silverton, 54 Or LUBA 441, 450-51 (2007). Thus,
7 the city could not have denied the application solely because petitioner failed to provide a
8 slope map with 5-foot contours, as the application form requires, because such a slope map is
9 only an informational requirement. However, that is not what occurred here. What occurred
10 here is that the city requested that West Creek provide evidence regarding slopes on the
11 property based on 5-foot contour intervals, and based on that evidence provided by West
12 Creek, the city denied the 75-lot application but approved the alternate 47-lot application.
13 The city chose not to rely on other evidence provided by West Creek that measured slopes
14 using a different method. The city has discretion to rely on the evidence it chooses in making
15 its decision. Adler v. City of Portland, 25 Or LUBA 546, 554 (1993). That West Creek
16 desired that the city rely on different evidence to demonstrate slope on the property does not
17 provide a basis for reversal or remand of the decision. Younger v. City of Portland, 305 Or
18 346, 358-60 (1988).
19 2. ORS 197.307(4)
20 ORS 197.307(4) allows the city to apply only "clear and objective standards" to West
21 Creep's proposed PUD. See n 2. West Creels argues that EC 9.8325(5) is not a "clear and
22 objective standard * og because nothing in EC 9.8325(5) or the city's comprehensive plan
23 or other land use regulations specify how the applicant must demonstrate and how the city
24 determines the "portions" of a development site that exceed a 20 percent slope. According to
25 West Creep, EC 9.8325(5) is deeply ambiguous on this point. West Creep argues that while
26 the city's application form requests that slope be demonstrated using 5-foot contours, that is
Page 6
I an arbitrary number chosen at staff's discretion, and using any other number yields very
2 different results, as the different slope maps in the record reflect. According to West Creels,
3 it is impossible to determine slope under EC 9.8325(5) without exercising judgment about
4 what "portion[] of the development site" is evaluated using what contour intervals. For that
5 reason, West Creels argues, EC 9.8325(5) requires the kind of "subjective, value-laden
6 analyses" that are the hallmark of a non-clear and objective standard we set out in Rogue
7 Valley Realtors v. City of Ashland, 35 Or LU13A 139, 155 (1998), aff d 158 Or App 1, 970
8 P2d 685 (1999).
9 In Homebuilders Assn of Lane County v. City of Eugene, 41 Or LUBA 370, 410-11
10 (2002), the petitioners argued that EC 9.8325(5) was not "clear and objective" on its face
11 because it did not specify how slope is measured. LUBA rejected the petitioners' facial
12 challenge to EC 9.8325(5), concluding that the city bad demonstrated that EC 9.8325(5) is
13 "capable of being imposed only in a clear and objective manner." Id. at 381. We concluded
14 that "the slope of a property is an objectively determinable fact, and the absence of
15 instructions on how to determine slope does not offend ORS 197.307(6)[(2001)]." Id. at 411.
16 West Creek argues that our decision in Hoinebuilders is not controlling in the present
17 appeal because the present appeal is a challenge to EC 9.8325(5) as the city has applied it to
18 West Creels. However, we see no difference in the challenge to EC 9.8325(5) that we
19 rejected in Hoinebuilders and West Creek's challenge in the present appeal. We concluded in
20 Hoinebuilders that "the absence of instructions on how to determine slope does not offend
21 ORS 197.307(4)." The city subsequently interpreted EC 9.8325(5) to require that slopes on
22 "portions of [a] development site" that have slopes that are greater than ten percent be
23 measured using 5-foot contour intervals. The city provides instructions on the application
24 form on how it will measure slope, and West Creels has not demonstrated that the city's
25 interpretation of EC 9.8325(5) or its chosen method of measuring slope introduces
26 subjectivity into the determination of the slope of a property. In instructing applicants on
Page 7
I how to measure slope, the city is not arbitrarily applying EC 9.8325(5) or otherwise engaging
2 in "subjective, value-laden analyses" but merely giving effect to the language of EC
3 9.8325(5) that prohibits grading on "portions of the development site" that meet or exceed 20
4 percent slope. That EC 9.8325(5) requires some interpretation in order to apply the 20
5 percent slope standard does not necessarily mean that EC 9.8325(5) is not clear and
6 objective, or that it requires a subjective, value-laden analysis. See Rudell v. City of Bandon,
7 249 Or App 309, 319, 275 P3d 1010 (2012) (city's interpretation of a defined term in its code
8 is sufficiently clear and objective for purposes of ORS 197.307(6)(2009)).
9 West Creels also argues that if the city is going to choose an arbitrary contour interval
10 with which to determine slope, the city must choose a contour interval that is based on and
I l consistent with the city's adopted comprehensive plans. West Creek notes that the city's
12 adopted refinement plan for the area, the South Hills Study, includes a US Geological Service
13 (USGS) topographic map of the area that depicts slope using 20-foot contour intervals.
14 However, EC 9.8325(5) applies in all areas of the city and there is no indication that in
15 adopting EC 9.8325(5) the city relied on the South Hills Study or any maps contained in the
16 study. Merely because a USGS map is included in the South Hills Study does not mean that
17 the city is required to employ the contour intervals used on that map in order to determine
18 slope under EC 9.8325(5).
19 Finally, West Creek argues that because the subject property is included in the city's
20 Buildable Lands Inventory (BLI), the city erred in relying on 5-foot contour intervals to
21 determine whether EC 9.8325(5) is satisfied. We understand West Creels to argue that the
22 inclusion of the subject property on the BLI requires the city to measure slope in a way that
23 will result in more development on property that is subject to the slope limit. However,
24 beyond asserting that the property is included on the city's BLI, West Creek does not
25 otherwise explain why that fact means the city must use a different measuring method to
26 measure slope or that it erred in measuring slope based on 5-foot contour intervals.
Page 8
I West Creek's real disagreement with the city is that measuring slope based on 5-foot
2 contour intervals precludes development of a "portion of the development site" under EC
3 9.8325(5). West Creels would prefer the city rely upon different evidence using a different
4 contour interval, if that would result in approval of its preferred 75-lot PUD. But that
5 disagreement does not convert an otherwise clear and objective standard into a standard that
6 offends ORS 197.307(4).
7 3. ORS 227.173(1)
8 ORS 227.173(1) provides:
9 "Approval or denial of a discretionary permit application shall be based on
10 standards and criteria, which shall be set forth in the development ordinance
11 and which shall relate approval or denial of a discretionary permit application
12 to the development ordinance and to the comprehensive plan for the area in
13 which the development would occur and to the development ordinance and
14 comprehensive plan for the city as a whole."
15 ORS 227.173(1) requires approval standards that are "clear enough for an applicant to
16 know what [it] must show during the application process." Lee v. City of Portland, 57 Or
17 App 798, 802, 646 P2d 662 (1982). As we understand West Creek's challenge under ORS
18 227.173, it boils down to an argument that ORS 227.173(1) prohibits the city from applying
19 EC 9.8325(5) because the standard does not specify how to determine 20 percent slope, and
20 thus the standard is not clear enough to allow an applicant to determine what must be
21 demonstrated in the application. According to West Creek, directions from planning staff on
22 the application form to measure slope using a 5-foot contour interval are not sufficient to
23 avoid the lack of clarity and subjectivity contained in EC 9.8325(5). West Creek argues that
24 the necessary clarity and objectivity must exist in the city's acknowledged code provisions.
25 In our discussion above rejecting West Creek's argument that ORS 197.307(4)
26 prohibits the city from applying EC 9.8325(5) to its application, we concluded that the 20
27 percent slope standard in EC 9.8325(5) is clear and objective on its face. We reiterate that
28 conclusion here and conclude that EC 9.8325(5) is similarly "clear enough for an applicant to
Page 9
I know what [it] must show during the application process." Lee, 57 Or App at 802. In
2 addition, we disagree that ORS 227.173(1) requires that a method of measuring slope must be
3 included in the development ordinance in order to determine whether the 20 percent standard
4 is met. No party disputes that the most straightforward way to determine slope, if not the
5 only way, is to compare vertical rise to horizontal distance, expressed as a fraction
6 ("rise/run"). EC 9.8325(5) does not specify the size of the vertical or horizontal distance
7 being compared. The city's application form requests that applicants provide a slope map
8 using a 5-foot vertical rise. West Creels submitted a total of three slope maps, one based on
9 5-foot intervals, one based on the width of the entire property, and one based on 20-foot
10 contour intervals. The city chose to base its decision on the 5-foot interval slope map, and
11 West Creek disagrees with that choice. But West Creek clearly understood how to
12 demonstrate slope, and the fact that it preferred using a larger vertical or horizontal distance
13 to determine slope than the city preferred does not demonstrate that EC 9.8325(5) is
14 impermissibly vague or unclear in violation of ORS 227.173(1). State ex Rel West Main
15 Townhomes v. City of Medford, 233 Or App 41, 225 Pad 56 (2009), modified and adhered to
16 on reconsideration 234 Or App 343, 228 P3d 607 (2010).
17 West Creek's first and second cross assignments of error are denied.
18 B. Southeast Neighbors' First Assignment of Error
19 During the proceedings before the hearings officer, Southeast Neighbors submitted
20 the Matthews Slope Map into the record. The Matthews Slope Map measured the slopes on
21 the property based on a copy of the same staff map with 5-foot contour intervals; but used a
22 different measuring tool than the tool that planning staff used to measure slopes on the
23 property, also based on 5-foot contour intervals.` The Matthews Slope Map showed more
24 areas of the property included within the 47-lot proposal that contain slopes equal to or
4 Matthews used a 25-foot diameter (at scale) circle to measure slope and the planning staff used a 25-foot
(at scale) square, Record 466.
Page 10
I greater than 20 percent than the staff map showed. Prior to the close of the record, West
2 Creels argued to the hearings officer that lie should not rely on the Matthews Slope Map
3 because it was less reliable than the map prepared -by the planning staff, for a number of
4 reasons. Record 498. The hearings officer relied on the Matthews Slope Map to deny the
5 applications for both a 75-lot subdivision and the alternative 47-lot subdivisions
6 EC 9.7655(3) provides in relevant part that an appeal of a hearings officer decision to
7 the planning commission is * based on the record, and Q limited to the issues raised in
8 the record that are set out in the filed statement of issues." EC 9.7655(2) provides that "[n]o
9 new evidence pertaining to appeal issues shall be accepted" by the planning commission.6
10 West Creels appealed the hearings officer's decision to the planning commission. In its
11 appeal statement, West Creek asserted that the hearings officer erred in relying on the
12 Matthews Slope Map for a number of reasons. Record 219-225. As an insert in its appeal
13 statement, West Creels included graphics showing slopes, which it produced using the
14 methodology that it understood Matthews had used. Record 221-22.
15 In response, Southeast Neighbors argued that West Creek's appeal statement sought
16 to appeal issues that were not raised before the hearings officer in contravention of EC
5 The hearings officer found:
"Mr. Matthews' map shows that staff's approach was remarkably accurate. W. Matthews'
map shows only a few large areas not included on stars map, but all of those are outside of
the specific spots shown for development. Additionally, Mr. Matthews' map shows slight
increases in the size of the areas that staff had marked as slopes of 20 percent or greater. The
hearings official believes that substantial evidence in the whole record shows that staffs map
and Mr. Matthews' map accurately measured slope, but that Mr. Matthews' map provides
slightly [more] accurate information of slopes equal to or greater than 20 percent. His
approach is essentially identical to the staff's approach, except for the shape of the
measure[ing] tool, so the hearings official concludes that Mr. Matthews' map shows the areas
that the applicant must avoid pursuant to this criterion." Record 466.
b EC 9.0500 defines "evidence" to mean "[f]acts, documents, data, or other information offered to
demonstrate compliance or noncompliance with the standards believed by the proponent to be relevant to the
decision."
Page II
1 9.7655(3), and to consider "new evidence" in contravention of EC 9.7655(2), where West
2 Creek asserted that the hearings officer erred in relying on the Matthews Slope Map. The
3 parties then engaged in a lengthy battle of motions, responses to motions, replies to
4 responses, sur-replies to responses, etc. about whether the planning commission could
5 consider the issues and whether West Creek improperly submitted new "evidence." Record
6 157-58; 179-181; 182-86. Additionally, during the single public hearing,before the planning
7 commission, Matthews testified and used an enlarged 2 foot by 3 foot version of West
8 Creek's 47-lot site plan and measured slopes on the property with a ruler and a red pen to
9 demonstrate slopes on the property.
10 In its final decision, the planning commission concluded that the issues presented in
11 West Creek's appeal statement that challenged the Matthews Slope Map had been raised
12 before the hearings officer. Record 7-8. The planning commission rejected as "new
13 evidence" the two graphics that West Creek had included in its appeal statement and struck
14 all references to the graphics contained in West Creek's appeal statement. The planning
15 commission also determined that the Matthews demonstrative exhibit from his testimony at
16 the planning commission hearing was "new evidence" under EC 9.7655(2) and rejected it.
17 The planning commission then reversed the hearings officer's decision and concluded that
18 the map prepared by the city's planning staff based on the map provided by West Creek was
19 more reliable than the Matthews Slope Map, and approved the 47-lot PUD. Record 15-18.
20 ORS 197.835(9)(a)(B) provides that LUBA will reverse or remand a decision if the
21 local government "[f]ailed to follow the procedures applicable to the matter before it in a
22 manner that prejudiced the substantial rights of the petitioner[.]" In its first subassignment of
23 error under the first assignment of error, Southeast Neighbors argues that the planning
24 commission committed a procedural error that prejudiced its substantial rights when it
25 allowed West Creek to challenge the Matthews Slope Map in the appeal of the hearings
Page 12
I officer's decision, and that it erred in accepting and relying on new evidence relating to those
2 appeal issues in contravention of EC 9.7655(2).
3 West Creels responds that the issues that it raised in its appeal statement regarding the
4 Matthews Slope Map were raised before the hearings officer at Record 498 and that the
5 planning commission did not err in correctly concluding that West Creek had raised the
6 issues below. West Creek argues that the planning commission correctly interpreted EC
7 9.7655(3) as allowing the planning commission to consider West Creek's additional
8 arguments related to issues that were properly raised below. Finally, West Creels responds
9 that the planning commission correctly concluded that, except for the material that the
10 planning commission struck as new "evidence," no new evidence was included in West
11 Creek's submissions.
12 We agree with West Creek. First, Southeast Neighbors' arguments in the first
13 subassignment of error conflate the "issues" that it alleges were not raised with the more
14 detailed arguments on the issues that West Creek made to the planning commission. The
15 planning commission interpreted the requirement in EC 9.7655(3) that an "issue" have been
16 raised not to require that an appealing party must have raised all arguments in connection
17 with that issue in order to make those arguments to the planning commission. Southeast
18 Neighbors does not challenge that interpretation or otherwise explain why it is not correct.
19 Gage v. City of Portlafzd, 133 Or App 346, 349-50, 891 P2d 1331 (1995).
20 Second, Southeast Neighbors does not identify in the petition for review with any
21 specificity the `'new evidence" that it alleges was introduced before the planning
22 commission.7 The planning commission adopted detailed findings that identify the evidence
23 it determined was "new evidence" contained in West Creek's and Southeast
7 The petition for review refers to a chart at Record 328-29, but that chart does not identify with any
specificity new "evidence" that Southeast Neighbors believes was introduced. Southeast Neighbors' Petition for
Review 26.
Page 13
I Neighbors'/Matthews' submissions, and rejected that evidence. Southeast Neighbors does
2 not challenge those findings or otherwise explain why those findings regarding new evidence
3 are incorrect.
4 In its second subassignment of error, we understand Southeast Neighbors to argue that
5 the planning commission erred in rejecting as "new evidence" under EC 9.7655(2) the
6 Matthews demonstrative exhibit created at the planning commission hearing. Petition for
7 Review 30. We understand Southeast Neighbors to argue that the Matthews demonstrative
8 exhibit should not have been rejected because the planning commission allowed West Creels
9 to introduce new evidence, and the demonstrative exhibit was merely Southeast Neighbors'
10 response to that improperly introduced new evidence. We reject that argument. First, we
11 have already determined above that the planning commission did not improperly accept any
12 new evidence from West Creep. More to the point, EC 9.7655(2) is clear that "no new
13 evidence * * * shall be accepted." Given such a prohibition, the remedy for correcting a
14 planning commission error in accepting new evidence in contravention of EC 9.7655(2) is
15 not to allow an evidentiary free-for-all in the form of more new evidence to be introduced
16 before the planning commission in violation of EC 9.7655(2), but to remand the decision for
17 the planning commission to make its decision without relying on arty new evidence.
18 Southeast Neighbors' first assignment of error is denied.
19 SOUTHEAST NEIGHBORS' SECOND ASSIGNMENT OF ERROR/WEST
20 CREED'S SEVENTH CROSS ASSIGNMENT OF ERROR
21 EC 9.8325(13) requires an applicant for a planned unit development to show that:
"[s]tormwater runoff from the PUD will not damage natural drainage courses
23 either on-site or downstream by eroding or scouring the natural drainage
24 courses or by causing turbidity, or the transport of sediment due to increased
25 peals flows or velocity."
Page 14
1 A. Vest Creek's Seventh Cross Assignment of Error
2 In West Creek's seventh cross assignment of error, it argues that EC 9.8325(13) may
3 not be applied to the proposal because it is not a "clear and objective standards" within the
4 meaning of ORS 197.307(4). According to West Creels, EC 9.8325(13) is a subjective
5 standard because the city must determine what a "natural drainage course" is, since that term
6 is not defined in the EC, and determine what constitutes "damage" to that natural drainage
7 course.
8 Southeast Neighbors responds initially by arguing that West Creek is prohibited under
9 Mftles v. City of Florence, 190 Or App 500, 79 P3d 382 (2003) from asserting the issue raised
10 in its seventh cross assignment of error, because West Creels failed to raise the issue in its
11 appeal before the planning commission. West Creek responds that the issue is merely raised
12 as a "backup defense" in its cross-petition for review. West Creels also cites Olstedt v.
13 Clatsop County, 62 Or LUBA 131, 13940 (2012), for the proposition that Miles is inapposite
14 because West Creek prevailed on the issue before the hearings officer, and therefore there
15 was no "issue" to appeal to the planning commission in order to preserve the right to raise the
16 issue at LUBA. Finally, West Creek also cites to the pages in the record where the issue was
17 raised before the hearings officer.
18 We do not understand West Creek to contend that it raised the issue in its appeal or in
19 any response to Southeast Neighbors' appeal. Where the issue of whether the city may apply
20 EC 9.8325(13) at all to a proposal is raised as an assignment of error in West Creek's cross
21 petition for review, the issue is not a "backup defense" as West Creek suggests. In that
22 circumstance, we agree with Southeast Neighbors that West Creek may not assign error to the
23 planning commission's decision on the basis that EC 9.8325(13) does not apply at all to the
24 proposal, where the issue was not raised in West Creek's appeal to the planning commission
25 or in any response to Southeast Neighbors' appeal to the planning commission. That differs
26 from the situation in Olstedt that West Creels relies on. In Olstedt, the petitioners at LUBA
Page 15
I prevailed in the initial decision, and the applicants filed the local appeal, where they
2 ultimately gained approval of their application. The petitioners at LUBA, therefore, had no
3 reason to appeal the initial decision and we determined that Miles was inapplicable in those
4 circumstances.
5 In contrast, here, West Creels and Southeast Neighbors both filed local appeals of the
6 hearings officer's decision, and Southeast Neighbors assigned error to the hearings officer's
7 determination that EC 9.8325(13) was met.8 In that circumstance, we think that Miles
8 requires West Creek to alert the planning commission, the final decision maker, that one of
9 West Creek's positions is that EC 9.8235(13) violates the needed housing statute and that it
10 may not be applied at all, in order to give the planning commission the opportunity to
11 consider that issue. Alfiles, 190 Or App at 510. Having failed to do so, West Creels is
12 precluded under ORS 197.825(1) and Miles from assigning error to the planning
13 commission's decision on the basis that a criterion does not apply to the proposal, where the
14 response amounts to an allegation that the city made a different error in applying EC
15 9.8325(13). That is the case whether the issue is raised in a cross petition for review or in a
16 response brief.
17 West Creek's seventh cross assignment of error is denied.
18 B. Southeast Neighbors' Second Assignment of Error
19 In 2003 the city adopted the current version of EC 9.8235(13). Three years later, in
20 2006, the city adopted its stormwater standards at EC 9.6790 through 9.6797. EC
21 9.8325(7)(j) requires an applicant to show compliance with the city's stormwater standards,
22 as relevant, "regarding flow control for headwaters area [EC 9.6793] *."9
s During the proceedings before the hearings officer, West Creek also took the position that EC 9.8325(13)
is not a clear and objective standard, but West Creek did not take that position before the planning commission.
9 EC 9.6793 Stormwater Flow Control (Headwaters) provides in relevant part:
Page 16
I To address stormwater runoff from the proposed development, West Creek proposes
2 to transmit stormwater from the streets and individual lots in underground pipes that will
3 connect to the existing piped stormwater system in Martin Street located north of the subject
4 property. That existing system is piped until it eventually outfalls to the Amazon Canal in an
5 open drainage system some distance to the north of Martin Street. During the proceedings
6 below, West Creek tools the position that EC 9.8325(13) is satisfied by its agreement to
7 satisfy EC 9.6793, Stormwater Flow Control (Headwaters), which does not otherwise apply
8 to the proposed PUD because the open portion of the natural drainage course, the Amazon
9 Canal, is located below 500 feet in elevation. EC 9.6793(3)(a). See n 10. The planning
10 commission imposed a condition of approval that requires West Creek to include on the final
11 PUD plans and final subdivision plat a requirement that each lot in the subdivision must have
12 its own filtration stormwater system that meets EC 9.6793, and a condition that requires the
" (1) Purpose. The purpose of EC 9.6793 is to protect waterways in the headwaters area
from the erosive effects [sic] of increases in stormwater runoff peals flow rates and
volumes resulting from development.
"(3) Standards.
"(a) Applications shall demonstrate, using methodology in the Stormwater Management
Manual, that peals rates of flow delivered to an existing open waterway at a point
above 500 feet in elevation will not increase during storms larger than the water
quality design storm and smaller than the flood control design storm as a result of the
development that is the subject of the application;
"(b) For purposes of designing the system as required by the standards in this section, the
amount of impervious surface per lot is assumed to be the maximum lot coverage
allowed for the use in the zone in which it is located, unless the applicant
demonstrates otherwise.
"(c) All facilities to control the rate of stormwater runoff shall be sited, designed and
constructed according to the flow control provisions and the facility design
requirements set forth in die Stormwater Management Manual. Flow control
facilities must be designed using one of the methodologies outlined in the Stormwater
Management Manual.
"(d) The standards in EC 9.6793(3) may be adjusted pursuant to EC 9.8030(21)."
Page 17
I piped stormwater system located within the public streets to meet EC 9.6793. The planning
2 commission concluded that the onsite detention of all stormwater runoff from the
3 development in pipes "will not increase peak flows or velocity in such a manner as to cause
4 damage to the open drainage system." Record 32. The planning commission concluded that
5 with the conditions of approval that require onsite detention stormwater management systems
6 on the subject property, the proposal demonstrated compliance with EC 9.8325(13):
7 "The [planning commission] rejects [Southeast Neighbors'] arguments and
8 finds that the [hearings officer] did make an independent evaluation of the
9 criteria at EC 9.8325(7)0) and EC 9.8325(13), which both relate to stormwater
10 runoff from the proposed development. Although EC 9.8325(7)0) does not
11 require the development to meet EC 9.6793 Stormwater Flow Control
12 (Headwaters), the [planning commission] endorses the hearings officer's
13 imposition of this standard to ensure that the development provides onsite
14 storm-water management facilities that detain post-development peak flows to
15 pre--development levels, which is necessary to ensure compliance with EC
16 9.8325(13). The flow control standards * * * provide this detention and are
17 the standards that city staff can readily implement during the building permit
18 process. The [planning commission] finds that the [hearings officer] did not
19 [err] by correlating the detention requirements of EC 9.8325(7)0) to address
20 the * * * `increased peak flow or velocity' test of criterion EC 9.8325(13)."
21 Record 33 (underlining in original).
22 In its second assignment of error, we understand Southeast Neighbors to argue that
23 the planning commission misconstrued the applicable law when it determined that EC
24 9.8325(13) is satisfied because the planning commission imposed conditions that require EC
25 9.6793 to be satisfied for each lot and for the public stormwater system within streets and
26 utility easements.10 We understand Southeast Neighbors to argue that EC 9.8325(13) is
27 concerned with ensuring that the proposed PUD will not "erod[e] or scour the natural
28 drainage courses [either on-site or downstream] * * * or caus[e] turbidity, or the transport
29 of sediment due to increased flows or velocity" and that EC 9.6793 does not address those
30 issues. According to Southeast Neighbors, the city's stormwater standard at EC 9.6793 does
10 Apparently EC 9.6793 does not apply to development of the western portion of the property because the
open portion of the Amazon Canal is not above 500 feet in elevation. EC 9.6793(3).
Page 18
I not address eroding or scouring of the Amazon Canal, or turbidity in that open waterway due
2 to increased flows or velocity.
3 Although the hearings officer's findings are not particularly clear, and the planning
4 commission's attempt to clarify the hearings officer's findings is of limited value, we agree
5 with West Creek that the planning commission correctly concluded that EC 9.8325(13) is
6 satisfied by requiring compliance with EC 9.6793, Storm-water Flow Control (Headwaters).
7 Record 32-33. EC 9.6793(1) provides that the purpose of the stormwater standards is "to
8 protect waterways in the headwaters area from the erosive effects of increases in stormwater
9 iLmoff peals flow rates and volumes resulting from development." (Emphasis added.)
10 Southeast Neighbors does not explain why the purpose statement at EC 9.6793(1) and the
11 provisions that follow in EC 9.6793 that require an applicant to demonstrate that "peals rates
12 of flow delivered to an existing open waterway E` * a` will not increase during storms larger
13 than the water quality design storm and smaller than the flood control design storm as a result
14 of the development that is the subject of the application" do not also protect the downstream,
15 open portion of the Amazon Canal from the "erosive effects" of increases in stormwater
16 runoff, such as * * eroding or scouring of the natural drainage courses or * * * turbidity, or
17 the transport of sediment due to increased peals flows or velocity." Given these overlapping
18 concerns, the planning commission could reasonably conclude that preventing any increase in
19 stormwater flows pursuant to EC 9.6793 is sufficient to ensure compliance with the EC
20 9.8325(13) requirement to prevent "eroding or scouring the natural drainage courses or by
21 causing turbidity, or the transport of sediment due to increased peals flows or velocity."
22 Southeast Neighbors' second assignment of error is denied.
23 SOUTHEAST NEIGHBORS' THIRD ASSIGNMENT OF ERROR
24 As explained above, an unimproved portion of West Amazon Drive bisects the
25 property from its intersection with Martin Street to the north to its intersection with Fox
Page 19
I Hollow Road to the south. The proposed development proposes multiple new streets within
the PUD that directly or indirectly connect to West Amazon Drive.
3 EC 9.8325(6)(c) provides that "[t]he street layout of the proposed PUD shall disperse
4 motor vehicle traffic onto more than one public local street when the PUD exceeds 19 lots or
5 when the sum of proposed PUD lots and the existing lots utilizing a local street as the single
6 means of ingress and egress exceeds 19." The hearings officer concluded that West Creek's
7 proposal satisfied EC 9.8325(6)(c):
8 "The street layout disperses motor vehicle traffic onto more than one public
9 local street, as all streets proposed within the development connect with West
10 Amazon Drive, which extends beyond the development site to the north
11 (connecting with Martin Street) and south (connecting with Fox Hollow
12 Road). The applicant proposes to improve West Amazon Drive to provide
13 this traffic dispersal; the PUD proposes no phasing of the development, which
14 means that the street improvements will be in place prior to development of
15 the lots, rather than on an incremental basis that would bring the 19-lot rule
16 * * * into question.
17 "The applicant additionally notes that there are two dispersion points-one to
18 the north, which sends traffic onto the portion of the Eugene Street network
19 leading to the 30th Ave./Hilyard grid, and one to the south connecting the
20 portion of the Eugene street network comprised of Fox
21 Hollow/Donald/Willamette Street. The applicant states that the two street
22 networks are sufficiently separated that if a blockage occurred on one, the
23 other would not be affected." Record 473.
24 The planning commission adopted findings that agree with the hearings officer's conclusion
25 and further explain:
26 "This standard stems from Fire Code about isolated access. The concern
27 would be if West Amazon Drive dead-ended at the site. Instead, the Applicant
28 proposes to improve West Amazon Drive between the existing street
29 improvements at the north and south ends of the site. * * :k Fire staff has
30 confirmed that this meets their requirements for providing two points of
31 access." Record 35.
32 In its third assignment of error, Southeast Neighbors argues that the planning
33 commission erred in concluding that EC 9.8325(6)(c) is satisfied because West Amazon
34 Drive, as it is proposed to be improved, is the single public street onto which traffic from the
Page 20
I subdivision will disperse. West Creels responds, and we agree, that the planning commission
2 correctly concluded that EC 9.8325(6)(c) is met where West Amazon Drive will connect the
3 street layout of the PUD with both of the existing street systems to the north and the south.
4 Essentially, the planning commission concluded that the proposed street layout will result in
5 the connection of the proposed development to "North" West Amazon Drive for the northern
6 part of the development and to "South" West Amazon Drive for the southern part of the
7 development, without creating two streets out of the existing unimproved West Amazon
8 Drive right of way.
9 Southeast Neighbors' third assignment of error is denied.
10 SOUTHEAST NEIGHBORS' FOURTH ASSIGNMENT OF ERROR
11 EC 9.8325(7)(a) provides lot dimension standards and prohibits new lots where more
12 than 33percent of the lot occupies the combined area of the Water Resources conservation
13 setback and any portion of a Goal 5 water resource that extends beyond the setback. EC
14 9.8325(10) requires the PUD to comply with the solar lot standards at EC 9.2790. EC 9.2790
15 in turn provides that 70 percent of the lots in a proposed PUD must have a minimum north-
16 south dimension of 75 feet and a front lot line orientation that is within 30 degrees of the true
17 east-west axis.
18 The hearings officer found that West Creek's 47-lot proposal failed to satisfy EC
19 9.8325(7)(a) or EC 9.8325(10), and also denied West Creek's request for a modification of
20 the lot dimension standards under EC 9.8325(11)." West Creels appealed the hearings
21 officer's decision on the criteria and the modification to the planning commission, and the
22 planning commission granted modifications to both standards. Record 21-25.
" EC 9.8325(11) allows a modification to applicable lot standards if consistent with the purposes of the
standard. EC 9.2790 provides exceptions to the solar lot standards.
Page 21
1 In its fourth assignment of error, we understand Southeast Neighbors to argue that the
2 planning commission's approval of modifications to the lot dimension and solar lot standards
3 misconstrues ORS 197.307(4)'s mandate that the city may only apply "clear and objective
4 standards" to a proposal for needed housing, because the factors that the city must consider in
5 a request for a modification under EC 9.8325(11) or a request for an exception to the solar lot
6 standards under EC 9.2790 require the city to apply standards that are not "clear and
7 objective." In essence, Southeast Neighbors seeks to use the needed housing statute's
8 mandate to apply only "clear and objective standards" as a sword to prevent applicants for
9 needed housing from gaining approval of needed housing projects under discretionary
10 standards.
11 West Creek responds that nothing in the language of the needed housing statute
12 prohibits the city from offering a discretionary process for approval of a proposal for needed
13 housing as long as the non-discretionary process remains available to an applicant. In
14 essence, West Creek argues that the needed housing statute is a shield for applicants to
15 choose to use or not to use according to project demands. In Hornebuilders, we concluded
16 that "the city may provide a needed housing applicant with a choice between meeting a clear
17 and objective standard by complying with its terms or by obtaining a discretionary variance
18 or adjustment to that standard without offending ORS 197.307(6)[(2001)]." Hornebuilders,
19 41 Or LUBA at 400. We agree with West Creek that the needed housing statute protects an
20 applicant for a permit for needed housing from the city's imposition of discretionary
21 standards without its agreement, but that an applicant may agree to be bound by discretionary
22 standards without running afoul of the statute. See Linstroinberg i,. City of Veneta, 47 Or
23 LUBA 99, 108-09 (2004) (ORS 197.307(4) does not require that a variance standard to an
24 approval criterion for needed housing be clear and objective).
25 Southeast Neighbors' fourth assignment of error is denied.
Page 22
I SOUTHEAST NEIGHBORS' FIFTH ASSIGNMENT OF ERROR
2 EC 9.7007(2) requires an applicant to hold a meeting for surrounding property owners
3 "prior to the submittal of an application." EC 9.7007(12) provides that "if the site plan
4 submitted with an application does not substantially conform to the site plan provided at the
5 meeting, the applicant shall be required to hold a new neighborhood/applicant meeting."
6 Prior to submitting its application, West Creek met with surrounding property owners. As
7 described above, during the proceedings before the hearings officer West Creek submitted an
8 alternative site plan seeking a 47-lot PUD and that site plan was ultimately approved.
9 In its appeal to the planning commission, Southeast Neighbors argued that the
10 planning commission should require West Creek to hold a new neighborhood meeting based
11 on the modified site plan seeking a 47-lot PUD. The planning commission concluded that
12 EC 9.7007(2) is an application requirement rather than an approval criterion, and that because
13 West Creek's initial application was deemed complete, the planning commission had no
14 authority to require West Creek to meet again with the neighborhood and surrounding
15 property owners. Record 28-9. In its fifth assignment of error, Southeast Neighbors argues
16 that the planning commission misconstrued EC 9.7007(2) in refusing to deny the application
17 based on West Creek's failure to hold a new neighborhood meeting.
18 West Creek responds, and we agree, that the planning commission correctly
19 concluded that it did not have the authority to deny the application based on EC 9.7007(2),
20 where there was no dispute that West Creek held a neighborhood meeting prior to submitting
21 its application, or that the site plan submitted with the application was the same site plan
22 provided at the meeting. EC 9.7007(2) is concerned with ensuring that an applicant meets
23 with the neighborhood and surrounding property owners prior to submitting its application
24 and that the site plan submitted i0th the application does not differ significantly from the site
25 plan provided at the meeting. EC 9.7007(2) plays no further role after the application is
26 submitted.
Page 23
I Southeast Neighbors' fifth assignment of error is denied.
2 'VVEST CREED'S FOURTH CROSS ASSICNM ENT OF ERROR
3 During the proceedings before the planning commission, West Creels argued that the
4 planning commission should reject Southeast Neighbors' appeal because Southeast
5 Neighbors' board of directors did not authorize the appeal prior to its being filed. Record
6 271-72. In its fourth cross assignment of error, we understand West Creek to argue that the
7 planning commission misconstrued applicable law when it concluded that it lacked authority
8 to consider whether Southeast Neighbors' appeal was authorized by the association's board
9 of directors when it was filed. West Creels argues that the planning commission has
10 "inherent authority" to consider whether an appeal is validly filed. West Creels Cross Petition
11 for Review 38. West Creels also argues that "LUBA should find, based on uncontroverted
12 evidence, that there was not a valid appeal filed by [Southeast Neighbors] within the deadline
13 set by the code. To the extent issues raised by [Southeast Neighbors] in their appeal depend
14 on :k * * having been raised * * ' in a local appeal, those issues were not raised Miles v. City
15 of Florence, 190 Or App 500, 510, 79 Pad 382 (2003)." West Creek Cross Petition for
16 Review 39.12
17 In response, Southeast Neighbors moves to take evidence not in the record under
18 OAR 661-010-0045, in order to demonstrate that the appeal of the hearings officer's decision
19 was authorized by its board of directors. 13 West Creels responds, and we agree, that
1' We understand West Creek to argue that if the planning commission had rejected Southeast Neighbors'
appeal, then Southeast Neighbors would be barred from raising its assignments of error in the appeal to LUBA
under Miles, and LUBA would be required to deny those assignments of error.
OAR 661-010-0045(1) provides in relevant part:
"Grounds for Motion to Take Evidence Not in the Record: The Board may, upon written
motion, take evidence not in the record in the case of disputed factual allegations in the
parties' briefs concerning unconstitutionality of the decision, standing ex parte contacts,
actions for the purpose of avoiding the requirements of ORS 21.427 or 227.178, or other
procedural irregularities not shown in the record and which, if proved, would warrant reversal
or remand of the decision. The Board may also upon motion or at its discretion take evidence
Page 24
I Southeast Neighbors has not demonstrated a basis under OAR 661-010-0045 for LUBA to
2 grant its motion to tape evidence not in the record. While OAR 661-010-0045(1) allows a
3 motion to take evidence in order to resolve "disputed factual allegations * * * concerning * 'k
4 * standing," the reference in the rule to disputes over "standing" refers to standing to appeal a
5 decision to LUBA, not to standing disputes that arise during the proceedings before the local
6 government. Accordingly, Southeast Neighbors' motion to take evidence is denied.
7 However, we agree with Southeast Neighbors that West Creek's assignment of error
8 provides no basis for reversal or remand. West Creels does not argue that Southeast
9 Neighbors failed to satisfy the requirements of EC 9.7655(1) - (3) governing appeals of
10 hearings officer decisions to the planning commission, and it appears that it did. West Creek
11 does not point to any requirement in the EC or anywhere else that an organization must
12 provide documentation that an appeal was authorized by the organization's officers or
13 directors prior to the appeal being filed or that requires the local governing body to
14 independently verify the validity of an appeal. Absent such a code requirement, LUBA will
15 not require the local government to independently verify that an entity that files an appeal of a
16 local decision is authorized to do so by its governing body.
17 West Creek's fourth cross assignment of error is denied.
18 WEST CREED'S FIFTH CROSS ASSIGNMENT OF ERROR
19 EC 9.8325(3) requires the proposed PUD to provide a "buffer area between the
20 proposed development and surrounding properties by providing at least a 30 foot wide
21 landscape area along the perimeter of the PUD * * West Creels proposed to place a fence
22 along the perimeter of the PUD so that the landscape buffer will be enclosed within the fence.
to resolve disputes regarding the content of the record, requests for stays, attorney fees, or
actual damages under ORS 197.845."
Page 25
I
3
4
5
6
7
8
9
10
I1
12
13
14
15
16
The hearings officer concluded that West Creek's proposal satisfied EC 9.8325(3). 14
Southeast Neighbors appealed that issue to the planning commission, and the
planning commission concluded that the fence is not allowed within the landscaped buffer
area under EC 9.8325(3). The planning commission imposed a condition of approval that
"fencing is not allowed on the perimeter of the PUD or within the required 30' landscape
buffer under the provisions of EC 9.8325(3) and EC 9.6210(7)." Record 34.
In its fifth cross assignment of error, West Creep argues that the planning commission
erred in prohibiting the fence and that the plain language of EC 9.8325(3) does not support
the planning commission's interpretation. We review the planning commission's
interpretation of the relevant EC provisions to determine whether it is correct. Gage, 133 Or
App 346, 349-50. We disagree with West Creek that the planning commission
misinterpreted the plain language of EC 9.8325(3) when it prohibited a fence on the
perimeter of the PUD or within the landscape buffer area. The planning commission's
interpretation of EC 9.8325(3) is more consistent with the presumed purpose of the buffer
requirement to provide a landscape buffer for the surrounding properties from the visual
impacts of the PUD. If the landscaping is located behind a fence, then the fence, not the
17 landscaping, is providing the buffer. Accordingly, the planning commission properly
18
19
construed EC 9.8325(3) in prohibiting West Creek's proposed perimeter fence.
West Creek's, fifth cross assignment of error is denied.
1`t The hearings officer found that the text of EC 9.8325(3) supports West Creek's proposal to place a fence
on the perimeter of the property:
"The hearings [officer] believes that the text of this criterion does not require [Southeast
Neighbors'] proposed interpretation. This provision specifies a landscaped area between the
proposed PUD and surrounding properties, and along, but not 'on' the perimeter. Here, where
the applicant is proposing a 30-foot landscaped buffer up to the fence and the fence is on the
perimeter, the landscaped buffer is `between the proposed development and surrounding
properties' and is `along the perimeter.' Further, EC 9.6210(7)(x) lists `Required Materials'
for the landscaped area, but does not purport to exclude all other materials. For example, EC
9.6210(7)(a) does not use the phrase 'Allowable Materials,' which would suggest a list of only
those materials allowed." Record 464.
Page 26
1 WEST CREED'S SIXTH CROSS ASSIGNMENT OF ERROR
2 As described above, the hearings officer denied West Creek's original proposal to
3 develop 75 lots on the property, including on the steeply sloped eastern portion. West
4 Creek's appeal challenged the hearings officer's denial of the 75-lot proposal. In this
5 assignment of error we understand West Creek to attempt to keep the 75-lot proposal under
6 consideration by the planning commission if the decision is remanded.
7 In various places in the decision the planning commission concluded that West
8 Creek's application to develop 75 lots, including several on the steeply sloped eastern portion
9 of the property, failed to comply with the stormwater standards that apply to development on
10 the property. Record 12, 16, 30, 32, 33. In its sixth cross assignment of error, West Creels
11 argues that the planning commission erred in concluding that the proposal to develop 75 lots
12 fails to satisfy the stormwater standards with respect to the eastern portion of the property.
13 According to West Creels, no party raised an issue regarding the eastern portion of the
14 property's compliance with the stormwater standards in the appeals of the hearings officer's
15 decision.
16 Initially, we note that West Creels cites "EC 9.8325(7)(b)" in its assignment of error
17 and characterizes that provision as "the stormwater standards incorporated into EC
18 9.8325(7)(b)." However, EC 9.8325(7)(b) requires an applicant to show compliance with
19 "EC 9.6500 through 9.6505 public Improvement Standards" and there is no reference to
20 stormwater standards in any of those sections. It is EC 9.8325(7)0) that requires an applicant
21 to demonstrate compliance with EC 9.6791 through 9.6797.
22 The planning commssion findings that West Creels challenges in its petition for
23 review at 45 and 46 address compliance with the standards at EC 9.6791 through 9.6797 as
24 required by EC 9.8325(7)6). Those standards were clearly at issue in the appeals of the
25 planning commission's decision, as evidenced by our discussion and resolution of Southeast
26 Neighbors' second assignment of error and West Creek's seventh assignment of error.
Page 27
Moreover, West Creels appealed the hearings officer's decision to deny the 75-lot proposal
and argued to the planning commission that it should be approved. The planning commission
committed no error in finding as additional bases to deny the 75-lot proposal failure to satisfy
4 the stormWater standards at EC 9.8325(7)0).
West Creek's sixth cross assignment of error is denied.
6 The city's decision is affirmed. t'
" West Creek's third contingent assignment of error is related to the EC's geotechnical standards at EC
9.6710 et seq. Southeast Neighbors did not challenge the city's conclusion that the geotechnical standards are
satisfied, and accordingly we need not resolve the third cross assignment of error.
Page 28
Certificate of Mailing
I hereby certify that I served the foregoing Final Opinion and Order for LUBA No. 2013-004
on July 12, 2013, by mailing to said parties or their attorney a true copy thereof contained in a
sealed envelope with postage prepaid addressed to said parties or their attorney as follows:
Bill Kloos
Law Office of Bill Kloos PC
375 W. 4th Avenue Suite 204
Eugene, OR 97401
Daniel C. Snyder
Law Offices of Charles M. Tebbutt PC
941 Lawrence Street
Eugene, OR 97401
Emily N. Jerome
Speer Hoyt LLC
975 Oak Street Suite 700
Eugene, OR 97401
Glenn Klein
Eugene City Attorney's Office
125 East Sth Avenue
Eugene, OR 97401-2926
Dated this 12th day of July, 2013.
Kelly Burgess L ICristi Sey.C iced
Paralegal Executive Support Specialist
APP-1
Planning & Development
Planning
City of Eugene
99 West 10`h Avenue
Eugene, Oregon 97401
(541) 682-5377
(541) 682-5572 FAX
www.eugene-or.gov
December 19, 2012
NOTICE OF DECISION:
FINAL ORDER OF THE EUGENE PLANNING COMMISSION ON APPEAL OF DEERBROOK PUD (PDT 12-1)
On December 17, 2012, on appeal, the Eugene Planning Commission reversed the Eugene Hearings
official's denial the Type III Tentative Planned Unit Development application. The Planning
Commission's decision is set forth in the Final Order of the Eugene Planning Commission. The final
order is available by request or online at: www.eugene-or.gov/luplanning,
The decision of the Eugene Planning Commission is final. Persons who appeared before the local
government orally or in writing may appeal the decision to the Oregon Land Use Board of Appeals
within 21 days of the Planning Commission's decision. Appeals to the Oregon Land Use Board of
Appeals are governed by ORS 197.805 to 197.860 and OAR Chapter 661, Division 10.
If you have questions, or would like more information, please contact City staff at the address or phone
number listed below.
Becky Taylor, Associate Planner
City of Eugene Planning Division
99 west 10th Avenue
Eugene, OR 97401
E-mail: becky.g.taylor@ci.eugene.or.us
Phone: (541) 682-5437
4 APP-2
Planning Commission
FINAL ORDER OF THE EUGENE PLANNING COMMISSION
ON APPEAL OF DEERBROOK PUD. (PDT 12-1)
1. INTRODUCTION
This Final Order concerns a cross-appeal of the decision by the Eugene Hearings Official (HO) to deny
the request for tentative approval of Deerbrook PUD (PDT 12-1). The application requests approval for
the development of 75 single-family residential lots on the approximately 26-acre subject property
which is located in the south hills of Eugene, adjacent to West Amazon Drive and south of Martin
Street. The property is zoned R-1/PD/WR (Low-Density Residential with Planned Unit Development
and Water Resource Overlays). The application seeks approval under the Needed Housing approval
criteria rather than the General criteria, as provided in Eugene Code (EC) section 9.8325.
Upon an initial staff recommendation for denial of the 75-lot proposal (as reflected in the June 2012
staff report), the applicant postponed the public hearing and submitted plans showing a 47-lot plan
that included development of only the western portion of the subject property. As described in the
HO's decision and clarified by City staff, the 47-lot plan as referred to in the record below, is best
described and understood as the applicant's illustration of how the possible conditions of approval
suggested in the initial staff report could be met (that is, in the event that the HO granted approval
rather than denial as initially recommended by staff). Most importantly, the applicant's illustrative plan
removes all proposed development from the eastern portion of the site, in a manner that is necessary
to show compliance with the Needed Housing approval criteria at EC 9.8325(5) related to the
prohibition of grading on portions of the site that meet or exceed 20% slope, as well as other
applicable criteria.
After a second public notice, following the applicant's postponement and submittal of the 47-lot
illustrative plan, the HO held a public hearing on August 1, 2012. At that time, the staff report was
revised to recommend conditional approval based largely on the changes shown on the applicant's 47-
lot illustrative plan. However, after receiving further testimony and evidence during the public hearing
and open record period, the HO issued a decision denying the application on September 21, 2012.
On October 3, 2012, two appeals were filed: one from Dan Snyder, Law Office of Charles M. Tebbitt,
PC, on behalf of the Southeast Neighborhood Association (SEN); and another from Bill Kloos, Law
Office of Bill Kloos, PC, on behalf of the Applicants, Martin and Leslie Beverly, and Ed McMahon for the
Homebuilders Association (HBA). The Planning Commission (PC) held a public hearing on the appeals,
on November 14, 2012. At the public hearing, both appellant parties and other members of the public
testified on the appeals. The same evening, immediately following closure of the public hearing, the
PC closed the record to additional argument. The PC subsequently deliberated on the issues raised by
the parties at its meetings on December 3rd and 10th, 2012.
4 Final Order - Deerbrook PUD (PDT 12-1) December 17, 2012 Page 1
APP-3
As required bythe 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 III, Preliminary
Issues, the PC resolves a. number of procedural and evidentiary issues raised by the parties. In Section
IV, Appeal Issues, the PC includes findings and conclusions with regard to each appeal issue raised by
the parties which ultimately lead the PC to its final local decision in this matter to reverse the HO's
decision. As reversed on appeal, and further discussed below, the PC's Final Order approves the
tentative PUD application for Deerbrook PUD (PDT 12-1), with conditions and revised findings.
For clarity, the PC notes that tentative PUD approval is only granted for development of the western
portion of the subject site. This approval excludes the development proposed on the eastern portion
of the site as shown on the applicant's original 75-lot plans. For purposes of this Final Order, when
referring below to the required removal of proposed development on the "eastern portion" of the site,
the PC means the development shown on Tax Lot 101 of Assessor's Map 18-03-20-21, including Canyon
Drive, Starwood Loop, Lots 50 through 75, and all related utilities and infrastructure.
ii. RECORD BEFORE THE PLANNING COMMISSION
The record before the Planning Commission consists of all the items listed in the attached Index of
Planning Commission Record, which were physically before, and not rejected by, the PC prior to its
final decision. 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 or Historic Review Board shall be forwarded
to the appeal review authority. No new evidence pertaining to the appeal issues shall be accepted."
Pursuant to this section, the PC cannot accept any new evidence, and there is no process for an
exception to this rule. As addressed below in Section III, Preliminary Issues, a number of items
submitted by the parties are specifically rejected by the PC as inadmissible new evidence. As such,
these items are not included in the record or referenced in the attached index, nor are they considered
by the PC in reaching a decision on these appeals. The PC's decision on the appeals is otherwise based
upon consideration of all other relevant evidence and argument within the record to date.
Ill. PRELIMINARY ISSUES
Preliminary issues are those raised by the appellants that are procedural or evidentiary in nature. The
PC resolves these issues below.
SEN Request that the PC Dismiss the HBA from Deerbrook Appeal
Relevant Code Text:
EC 9.7655(1)(d) specifies that "[a]ny person who submitted written comments in regard to the original
application" may appeal a Hearings Official's decision.
On October 5, 2012:
The SEN submitted a request that the PC "dismiss" the HBA from the Deerbrook Appeal. The SEN
assert that:
1) The HBA's written comments to the HO were prepared before the applicant formally
submitted its application to the City and, therefore, must not have been "in regard to the
Final Order- Deerbrook PUD (PDT 12-1) December 17, 2012 Page 2
5
original application";
APP-4
2) The HBA comments did not "raise any issues of substance concerning the Applications'
compliance with the requisite code criteria";
3) The HBA should have submitted its own appeal form and fee and should not be allowed to
join the Applicant's appeal; and
4) It appears the HBA did not sign the appeal statement or appeal form.
On October 9, 2012: .
The Applicant/HBA submitted a response, first noting that SEN's request is pointless since, if it was
approved, nothing would change; it would merely result in striking some.references to the HBA from
the appeal documents (the appeal would otherwise remain as it is filed and the HBA would simply
testify as a participant in the hearing before the PC). In response to SEN's issues, the Applicant/NBA
assert that:
1) The February 23, 2012 HBA letter was dated after the neighborhood meeting where the
development plan (later submitted with the application) was presented to the
neighborhood, so the comments were "in regard to the original application"; and
2) The code does not require that an appellant's comments be substantive as to the
applications' consistency with specific criteria;
3) The code does not prohibit multiple persons from filing a joint appeal; and
4) The HBA did sign the appeal form and was not required to sign the appeal statement (like
SEN's appeal statement, the Applicant/RBA's appeal statement was signed only by the
attorney).
On October 11, 2012:
The SEN submitted a reply to NBA's response, stating that:
1) "The Code does not allow for HBA to circumvent this process by 'pre-commenting' on a
developers proposed plans before those plans have actually been transcribed onto a formal
application and officially filed with the City"; and
2) The HBA's comments to the HO did not include any of the issues now raised in the appeal
and HBA should be limited to raising issues that it raised to the HO. Specifically, HBA did not
raise before the HO the argument that the code should be interpreted in such a way that
"allows property in the Buildable Lands Inventory to be developed under clear and objective
standards."
PC Determination:
The PC hereby denies SEN's request because HBA has clearly satisfied the City's requirements for filing
an appeal, as further articulated below.
1) The February 23, 2012 HBA letter qualifies as "written comments in regard to the original
application." The date on the HBA letter is immaterial. A copy of the HBA letter was
submitted for the HO's consideration in regard to the application that. originated this appeal
and it clearly relates to that application. This is consistent with the code text at EC
9,7655(1)(d). The letter specifically refers to PDT 12-1 and states, in part: "I have reviewed
the Site Plan and narrative for the PUD, which will go to public hearing in late June. This
project, proposing 75 lots on 26 acres in the South Hills, to be reviewed under the Needed
Housing Standards, is a case study for the reasonableness of the density assumptions for
the BLI in the South Hills." The June 2012 staff report specifically identified and responded
Final Order - Deerbrook PUD (PDT 12-1) December 17, 2012 Page 3
APP-5
to the February 23, 2012 HBA letter.
2) There is no code requirement that, to file a local appeal, the appellant must have raised an
issue as to the application's consistency with a particular criterion. The code does require
that every appeal issue must have been raised sornewhere, by someone, in the HO's record
[EC 9.7655(3)]. SEN argues that "HBA did not raise before the hearings official the
argument that the code should be interpreted in such a waythat allows property in the
Buildable Lands Inventory to be developed under clear and objective standards." However,
that issue was raised by the Applicant as part of its September 12, 2012, final argument,
where it states and elaborates on the following argument: "[tjhe statutory scheme
anticipates that land inventoried in the acknowledged BLI for housing is to be developable
for housing under clear and objective standards, not off-limits to development under clear
and objective standards."
3) There is no code requirement that prohibits numerous persons or entities from joining in a
single appeal. In this case, there is a single appeal form and a single narrative, with one
individual representing both appellant parties (attorney Bill Kloos).
4) Contrary to SEN's assertion, the HBA did sign the appeal form and was not required to sign
the appeal statement (like SEN's appeal statement, the applicant/NBA's appeal statement
was signed only by the attorney).
SEN Request that the PC Strike Portions of the Applicant/HBA Appeal
Relevant Code Text:
EC 9.7655 Filing Appeal of Hearings Official or Historic Review Board Initial Decision provides at (2) that
"No new evidence pertaining to appeal issues shall be accepted." EC 9.7655 Filing Appeal of Hearings
Official or Historic Review Board Initial Decision provides at (3) that the basis of an appeal "is limited to
the issues raised during the review of the original application."
On October 5, 2012:
The SEN objects to what it identifies as new evidence and issues introduced in the Applicant/HBA
appeal:
1) The alleged new evidence is the set of figures submitted by the Applicant/HBA to support its
critique of Kevin Matthew's slope map at pages 8-9 of the Applicant/HBA Appeal
Statement; and
2) The alleged new issue is addressed in the Applicant/HBA's first assignment of error (sections
3 and 4) asserting that the "Matthews Map" has methodological flaws that are not in the
staff map, at pages 6-12 of the Applicant/NBA appeal.
On October 9, 2012:
The Applicant/HBA responded, asserting that there is no new evidence in their appeal statement. They
argue that the two graphics on page 8 of their appeal statement are evidence excerpted from the
record, displaying the same small part of the site plan, one graphic taken from Sheet L2.0 of the
Applicant's plan and the other a "re-creation" of the "Matthews Map." Also, they provide a different
set of graphics for the PC to consider, in case the PC determines that the "re-creation" is new evidence.
This different set of graphics includes a direct copy of the Applicant's site plan and an enlargement of
that same site plan with a 25' circle drawn on top.
Final Order- Deerbrook PUD (PDT 12-1) December 17, 2012 Page 4
APP-6
The Applicant/HBA argues that its appeal issues do not need to be limited to the issues raised before
the HO. Further, they assert that if the PC finds new evidence, it should strike the evidence and not the
entire issue being raised.
On October 11. 2012:
The SEN responded that the request to strike is also based on the Applicant's failure to raise the
alleged deficiencies of Mr. Matthew's map before the HO.
PC Determination:
With respect to EC 9.7655(2), "No new evidence pertaining to appeal issues shall be accepted," the PC
rejects the two graphics imbedded in the Applicant/NBA's appeal statement at page 8. The PC finds
that these "re-creations" are more than admissible manipulations of existing record evidence. The-set
of graphics provided in the Applicant/NBA's October 9 letter are acceptable and those graphics may be
consulted instead of the ones at page 8 of the Applicant/NBA's appeal statement; references to the
stricken graphics are also stricken or ignored. The remaining text in the appeal statement relevant to
the October 9 graphics, and as discussed in the following paragraph, are retained as part of the record.
That critique of Mr. Matthews' map can be argued based on the record evidence.
With regard to EC 9.7655(3), "limiting an appeal to issues raised during the review of the original
.application," the PC reject SEN's contention that the Applicant/HBA raises a new issue in its first
assignment of error (sections 3 and 4). The PC considers the issues raised in the Applicant/HBA appeal.
The PC disagrees with assertions made by both SEN and the Applicant/HBA. The PC does not agree
with the Applicant/HBA assertion that the code allows it to raise'a new issue to the PC. However, the
PC also disagrees with SEN's assertion that that the Applicant/HBA has actually raised a new issue. The
record before the HO very clearly includes assertions about the correctness of the various slope maps
in the record. In the Applicant's final argument, it directs such assertions specifically at the "Matthews
Map." SEN contends that every argument pertaining to an appeal issue must have been made in the
initial review process. The PC disagrees. For these reasons, the PC considers the issues raised in the
Applicant/HBA appeal.
Applicant/HBA Request that the PC Take Official Notice of Documents
Relevant Code Text:
EC 9.7095 Quasi-Judicial Hearings - Official Notice and Record of Proceedings provides that the PC may
take official notice of any public record of the City. EC 9.7655 Filing Appeal of Hearings Official or
Historic Review Board Initial Decision provides that "No new evidence pertaining to appeal issues shall
be accepted." (italics added for emphasis).
Applicant/HBA:
In their Appeal Statement., the Applicant/HBA has asked the PC to take official notice of several HO
decision documents on other PUD applications to support their argument that the HO decision on the
modification to lot standards is unprecedented in Eugene.
PC Determination:
The PC denies the request for official notice. The documents are being offered by the-Applicant/HBA-as
substantive evidence to aid in its Appeal Issues #3 and #4. This is arguably inconsistent with EC 9.7655
Final Order - Deerbrook PUD (PDT 12-1) December 17, 2012 Page 5
which provides that "No new evidence pertaining to appeal issues shall be accepted." The I38961
notes that in response to staff's November 14 recommendation against taking official notice, the
Applicant has acknowledged that "the PC has much material ...and that not taking official notice-will
lessen the work before you. The applicant is OK with this [staff's] recommendation." (See November
14, 2012 Hearing Exhibit C, letter from Rick Satre). The Applicant does not rely on these documents to
support their related appeal issues (#3 and #4), so they are unnecessary.
Request to Consider SEN Testimony that the HO Excluded from the Record
SEN:
In their Appeal Statement, the SEN claims that the HO erred when he refused to consider the SEN
rebuttal testimony dated September 11, 2012.
PC Determination;
The SEN testimony could not be considered because it was submitted after the close of the record.
While the HO would likely have considered an extension of the record with a timeline extension from
the Applicant, none was provided, so the HO had no recourse but to formally issue an Order denying
the SEN request. The PC denies the SEN request and rejects testimony submitted after the close of the
HO record.
Applicant/HBA Request to Reject the SEN Appeal
Applicant/HBA:
At the November 14, 2012 hearing, Bill Kloos argued that the SEN was not approved by the SEN Board
of Directors and that the SEN Charter does not allow appeals (see Hearing Exhibit A).
SEN:
Dan Snyder argued that the neighbors had a quorum of board members present at the hearing and
took an official vote ratifying the filing of the appeal; he also asserted that the neighbor's charter
clearly authorizes the filing of appeals in local land use planning actions.
PC Determination:
Whether or not SEN complied with its own charter is not an issue for the PC to consider. It does not
relate to an approval criterion and was not an issue before the HO. Therefore, it is beyond the scope
of the PC's review. City staff accepted the SEN appeal with the 50% fee for recognized neighborhood
associations; to assert its argument, the Applicant/HBA could challenge that staff action, not the HO
decision. For these reasons, the PC will continue to consider SEN's appeal.
Request to Reject the SEN "Googie Map" Transparency (Hearing Exhibit E)
SEN:
At the November 14, 2012 hearing, Mr. Snyder distributed documents to the Planning Commission,
which he described as being a transparency of a "Googie Map" overlaying an excerpt of the Goal 5
Scenic Areas map. This information was being presented by the SEN to support its Appeal Issue 46 - to
show that the subject property is not on the Goal 5 Scenic Area map and, as such, the PUD is not
exempt from the geotechnical analysis standards: Refer to Appeal Issue #6 for more information.
Final Order - Deerbrook PUD (PDT 12-1) December 17, 2012 Page 6
9
APP-8
Applicant/HBA:
Mr. Kloos requested that the PC reject this as "new evidence." (See Hearing Exhibit E.)
PC Determination:
The PC rejects and does not consider the "Google Map" transparency because it is new evidence that is
not in the record and was not considered by the HO in rendering his decision.
Request to Reject the SEN "Demonstrative Exhibit"
SEN:
At the November 14, 2012 hearing, Mr. Snyder posted the Applicant's full-size contour map and then
called Mr. Matthews, with ruler and marker in hand, to measure and mark on that map.
Applicant/HBA:
Mr. Kloos requests that the PC not accept this map because the markings on the map are new
evidence.
PC,Determination:
The PC rejects and does not consider the map prepared by Mr. Matthews at the hearing because the
markings on the map are new evidence.
Request to Reject Appellants' Testimony Received After November 14, 2012
Both Parties:
Staff received an email with an attached letter from Dan Snyder on November 16, 2012, and emails
with attached letters from Bill Kloos on November 15 and November 19, 2012. Staff also received a
letter from Dan Snyder, dated November 30; 2012.
PC Determination:
The time for submitting material into the record closed on November 14, 2012. Therefore, all the
materials submitted after close of the record are excluded and not considered.
W. FINDINGS OF FACT AND CONCLUSIONS OF LAIN
The PC's findings and conclusion regarding each appeal issue are provided below. After consideration
of the applicable law and all argument and evidence in the record, the PC finds that the subject
application meets all applicable PUD approval criteria from EC 9.8325, with additional findings and
conditions of approval as described below. The HO's initial decision to deny the application is therefore
reversed. As a result of the PC's determinations on the appeal issues below, tentative PUD approval is
only granted for development of the western portion of the subject site. This approval specifically
excludes the development proposed on the eastern portion of the site as shown on the applicant's
original 75-lot plans (i.e. the proposed development shown on Tax Lot 101 of Assessor's Map 18-03-
20-21, including Canyon Drive, Starwood Loop, Lots 50 through 75, and all related utilities and
infrastructure). In the event of any conflict between the HO's decision and this Final Order, this Final
Order shall prevail.
Final Order- Deerbrook PUD (PDT 12-1) December 17, 2012 Page 7
10
APP-9
Applicant/HBA Appeal Issue #1: 20% Slope Grading Prohibition
"The HO erred in applying the 20% slope grading standard at all, and in finding that the application
did not comply with the standard."
1. "The HO erred in concluding the 20% slope grading standard must be applied.
(a) The method for measuring 20% slope is too ambiguous for the standard to be
applied at all. The argument over how to measure slope shows the standard can't
be applied in a clear and objective way. Hence, it may not be applied at all. ORS
197.307(4); OAR 660-0081-0015; Rudell v. City of Bandon, 62 Or LUBA 279 (LUBA No.
2010-037,. November 29, 2010).
PC Findings: The Applicant argued to the HO that the approval criterion at EC 9.8325(5) "There
shall be no proposed grading on portions of the development site that meet or
exceed 20% slope" violates state laws that require needed housing approval criteria
to be clear and objective. The Applicant argues that the City is prohibited from
applying the 20% slope criterion to the subject application for needed housing and
app -r
from applying it to any future applications for needed housing. The applicant asserts
that, because the criterion itself does not specify the method for determining slope,
it is not clear and objective.
The HO rejected the Applicant's argument, citing another LUBA case that rejected
this exact argument:
The applicant, in its written statement, hearing testimony, and post-hearing
testimony, also asserts that this criterion (EC 9.8325(5)) requires the city to
exercise discretion and cannot be applied as a clear and objective standard,
as required for a "needed housing" development, because it does not set out
the prescribed unit of measurement for determining slope. However, the
Land Use Board of Appeals rejected this exact argument, about this exact
criterion (EC 9.8325(5)) in Home Builders v. City of Eugene, 41 Or LUBA 370,
410-411 (2002). LUBA stated, "the slope of a property is an objective
determinable fact, and the absence of instructions on how to determine
slope does not offend [the needed housing statute]." (See page 12 of HO
Decision.)
PC Decision: The PC rejects this argument and finds no error in the HO's reliance on the direct
ruling from the Land Use Board of Appeals (LUBA) [Home Builders v. City of Eugene,
4101, LUBA 370, 410-411 (2002)] that rejected this exact argument. This ruling does
not alter the HO's decision.
(b) Absent code language on how to measure slope, the method to be used was not
initially specified until the HO decision. This is too late. It violates the applicant's
right to know at the front end of the process what it must show. ORS 227:173(1);
West Main Townhomes v City of Medford, 234 Or App 343, 346, 229 P3d 607
(2010).
Final Order- Deerbrook PUD (PDT 12-1) December 17, 2012 Page 8
APP-10
PC Findings: Contrary to the Applicant's statements made under sub-assignment (1)(b), the fact
that the City would utilize the Applicant's own contour map (which is required by
the City's application form to show 5' contours) to determine whether a portion of
the site meets or exceeds 20% slope is evidence that the method has been clearly
communicated to the Applicants since before they applied for the PUD. Staff
confirmed in writing that the five-foot increment shown on the site plan is the
correct contour interval following the pre-application conference, well before the
PUD application was submitted (see December 20, 2011 letter from Becky Taylor to
Carol Schirmer.)
The HO also addressed this issue:
The applicant argues that there are four methodologies for measuring slope
posited to date (Applicant's Testimony, Aug. 22, 2012). The hearings official
disagrees. Despite the staff informing the applicant to measure slope using
the five-foot contours on the application maps, the applicant chose to ignore
that advice and measure slope over the entire site. After the hearing, the
applicant then proposed to use yet a different map-the USGS topo map in
the refinement plan. USGS topos have 40-foot contours [20-foot (sic)]. Just
because the applicant disagrees with the instruction to use the five-foot
intervals (and tried to use other methods), does not mean that the 20% rule
here is not clear and objective, (See pages 12 and 13 of HO Decision.)
PC Decision: The PC rejects this argument and finds no error in the HO's determination that the
Applicant had notice of the 20% slope criterion and knew what it must show during
the application process ("at the front end of the process"). This ruling does not alter
the HO's decision.
(c) State law prohibits using the 20% slope grading limitation that would prevent
development of any part of this site that could be developed under the
discretionary standards of EC 9.8320. ORS 197.307(6). State law requires
development under clear and objective standards. ORS 197.307(4); OAR 660-008-
0015."
PC Findings: The Applicant's argument that the 20% slope grading limitation prevents
development of a part of the site that could be developed under the discretionary
standards of EC 9.8320 is unfounded. The record shows that the Applicant has been
unable to obtain PUD approval to date, with a series of prior applications being
denied at the local level without further appeal, under the City's discretionary
approval criteria. The Applicant/HBA also asserts that removal of this criterion would
make the original 75-lot proposal approvable; however, the record shows that the
75-lot proposal had other areas of non-compliance or was lacking evidence that
would'be needed to show.compliance with the approval criteria, such as with the
stormwater drainage standards.
Final Order- Deerbrook PUD (PDT 12-1) December 17, 2012 Page 9
12
PC Decision: The PC rejects this argument and finds no error in the HO's determinatioMP-174le
20% slope criterion is consistent with the State's needed housing requirements.
Even if the Applicant's understanding of the law is correct, the 20% grading
limitation does not prevent development of a part of the site that could be
developed under the discretionary standards of EC 9.8320. This ruling does not alter
the HO's decision.
2. The HO erred in finding that 20% slope must be determined based on 5 -foot contour
elevations.
(a) If the 20% slope grading limitation is to be applied at all, it must be interpreted
consistent with the rules in PGE, State law provides that land in the acknowledged
BLI is presumed to be developable, That state law is relevant context for
interpreting the 20% limitation in the current circumstance, Because this site is in
the acknowledged'BLI for housing, it is presumed to be developable for housing,
Measuring slope across the entire site, as done in the original application, is the
correct interpretation because it allows the entire site to be developed, consistent
with Its status in the BLI,
PC Findings: The record shows that the subject property is included in the City's currently
adopted Residential Land Study as buildable land. The HO correctly based
compliance on the subject application being Needed Housing because it is in the
buildable lands inventory (i.e. the Residential Lands Study).
The inclusion of a steep-sloped property on the City's buildable land inventory (BLI)
does not mean that the property is buildable at the same density that a comparably-
sized flat/unconstrained property. In determining whether a BLI has sufficient land
to satisfy a city's 20-year need for housing, density averages and estimates are used
that tal<e into account the constrained nature of some land on the inventory.
Maximum allowed densities will not necessarily be achieved, and are not assumed,
for every acre on a city's inventory.
PC Decision: The PC rejects this argument and affirms that the inclusion of a steep-sloped
property on the City's BLI does not mean that the property is buildable at the same
density that a comparably-sized flat/unconstrained property. Maximum allowed
densities will not necessarily be achieved, and are not assumed, for every acre on a
city's inventory. This ruling does not alter the HO's decision.
(b) If the 20% slope grading limitation is to be applied at all, it must be interpreted
consis'ten't with the rules in PGE v. Bureau of Labor and industries, 371 Or 60" , 859
P2d 1143 (1993). That means an interpretation of the 20% slope standard that is
consistent with the context provided by the refinement plan, the South Hills Study
(SHS), which the code implements. The SHS uses the 20% slope standard, and it .
bases that standard on the USGS topo map, which is reproduced in the SHS.
Measuring slopes based on the 20 foot contours of the USGS map in the SHS is
both consistent in the context of the refinement plan and allows the entire
proposed development.
Final Order - Deerbrook PUD (PDT 12-1) December 17, 2012 Page 10
13
APP-12
PC Findings: The Applicant/HBA argues that slope should be measured using 20-foot contour
intervals instead of five-foot increments. The argument of this sub-assignment
contradicts the argument under sub-assignment (2)(a) (arguing that slope should be
measured across the entire site). To support a 20-foot increment, they claim that the
slope standard must be read in context of the South Hills Study (SHS) and therefore
should be measured consistent with the USGS topographic map used for that study.
The South Hills Study is an area-specific plan that is not invoked by the PUD slope
criterion, which applies City-wide. A consistent measurement of 5-foot contours is
utilized for POD applications in steep slope areas across the City.
PC Decision: The PC rejects this argument,- but also finds that the HO erred because he did not
expressly state that the USGS topography maps and SHS are not the context for
determining the contour measurement required to demonstrate consistency with
the code criterion at EC 9.8325(5). The HO should have addressed this question. The
PC addresses this question by affirming that the approval criterion regarding slope
has no relationship to the SHS or the USGS maps; this approval criterion applies to
the entire City, not just the SHS area. This ruling modifies the HO's decision by
adding findings under EC 9.8325(5) to expressly state that the SHS and the USGS
maps have no relationship to this criterion.
(c) The HO erred in considering any measurement of slope based on a five foot
contour interval map, because the five-foot contour intervals reflect neither the
text nor the context Of 'the code, The five foot contour map requirement is just an
information requirement made up by staff; it could change tomorrow or even
during this proceeding; it is not ratified in any rule, order or code language,
acknowledged or otherwise. Importing 5 -foot contour maps into the standards is
contrary to law. Doumani v. City of Eugene, 35 Or LUBA 388 (1999).
PC Findings: Here, the Applicant/HBA argues that the HO erred in not addressing the argument
that the City cannot use a five-foot increment for determining slope based on the
application form's requirement for submittal of that information. The PC agrees with
the Applicant/HBA that the HO erred in not addressing this argument; however, the
PC disagrees with the Applicant/HBA's argument that the City cannot use a five-foot
increment for determining slope based on the application form.
Applicant/HBA relies on a case (Doumani) where the City refused to accept an
application submitted by a person that did not own the underlying property. The
City relied on the application form. requirement for the owner's signature. This case
is very different. There is a code criterion that clearly requires the applicant to
submit slope information for determining whether any portions of the site are 20%
or more. The official application form provides the level of detail the City requests,
for determining compliance with that criterion.
The PUD application form requires the information to be used to determine
Final Order- Deerbrook PUD (PDT 12-1) December 17, 2012 Page 11
14
consistency with applicable criteria for any PUD throughout the City; it cell
five-foot contour interval. The Applicant/HBA is suggesting that this particular
application should be treated differently by using the 20-foot contour map of the
SHS or the USGS maps. The PUD application form lists information needed from the
Applicant to ensure that staff has sufficient information to evaluate the application
under the relevant approval criteria. This ensures consistency - and the clear and
objective application of this standard. The SHS is a policy document, whereas this
code language is specifically clear and objective, as are the application form
requirements. This ensures that there is no subjectivity in the data source - and that
the data is correlated to the site in question. The application form requires the
Applicant to map the contours of the site, rather than relying on another published
form of contours and superimposing those on the site; the former is site-specific,
whereas the latter has greater subjectivity and room for error:
PC Decision: The PC rejects this assignment of error and finds that the HO was correct in
considering slope based on five-foot contour intervals. However, this determination
in and of itself does not sufficiently resolve which of the five-foot contour maps
showing the 20% slope areas is the most accurate. The various maps of record (i.e.
the "staff map," "Matthews Map," and the Applicant's "75-lot plan" and "47-lot
plan") all show five-foot contour intervals; the contours are consistent among the
various maps of record, as they are all based on the Applicant's plans.
Measuring slope at five-foot contour intervals to determine the portions of the
development site that meet or exceed 20% slope was the basis for identifying the
areas that cannot be graded, pursuant to the approval criterion at EC 9.8325(5). The
delineation of these 20% sloped areas is where the maps of record are inconsistent.
The staff map highlighted these areas in yellow, using the methodology described in
the July 2012 staff report to the HO. The Applicant shaded these areas on their 47-
lot plan, which resulted in the removal of the eastern portion of the site because it
was-dominated by slopes that met or exceeded 20%. The Applicant's delineation of
these areas is generally consistent with the staff map, with some subtle refinements
that staff acknowledged and concurred to in the July 2012 staff report to the HO.
The Matthews Map was also consistent with the staff map and the Applicant's 47-lot
plan mapping of 20% slope areas, except that it identified a few additional areas in
excess of 20% that were highlighted in red.
The HO relied on the Matthews Map (August 1, 2012 Hearings Official Public Hearing
Exhibit Q. As discussed below in sub-assignments of error #3 and #4 of this appeal
issue regarding slop-e, the PC finds that the HO erred in relying on the Matthews
Map and concludes that the Applicant's 20 % slope delineation (as shown on Sheet
L2.0 of the Applicant's site plans dated August 22, 2012) provides the most credible
depiction of 20% slope areas based on five-foot contour intervals. The HO's reliance
on the Matthews Map was the basis of his denial of the PUD, primarily because he
assumed that the development needed to be reconfigured to respond to the
Matthews Map and avoid the additional areas highlighted in red.
Final Order - Deerbrook PUD (PDT 12-1) December 17, 2012 Page 12
15
The HO's error in relying on the Matthews Map establishes a consistent A-Ai
further, subsequent errors in the HO's decision. Most notably is his failure to address
the Applicant's entire 75-lot plan against all of the approval criteria. This decision
corrects those errors by providing findings, making decisions, and imposing
conditions as necessary to address the relevant approval criteria. For example, as
discussed in greater detail under Appeal Issue #9, regarding stormwater, the HO
decision only addresses the western portion of the site. The record shows
deficiencies in stormwater and other service provisions to the eastern portion of the
site, which the HO's decision does not fully address. Instead, the HO relies on his
analysis of the slope approval criterion, as evaluated by Kevin Matthews and shown
on the Matthews Map, to assume particular outcomes relative to other approval
criteria.
To address this appeal issue regarding the use of five-foot contour intervals and to
implement PC's accepted method of measurement relative to the approval criterion
at EC 9.8325(5), the following condition of approval is imposed:
The final PUD plans shall be revised to show removal of proposed development
from the eastern portion of the site shown on the Applicant's original 75-lot
plans. Proposed development on the western portion of the site shall also be
revised to show compliance with the grading prohibition of EC 9.8325(5), by
utilizing the 20% slope delineation depicted on Sheet L2.0 of the Applicant's site
plans dated August 22, 2012. A note on the final PUD plans shall be included,
specifying the following restriction: "The shaded areas of 20 percent slopes shat
not be graded, pursuant to EC 9.8325(5). Construction site management shall
include protective fencing of these areas. Utilities in these locations will need to
be installed without grading, such as with boring or other construction
technique."
As a result of the above findings, the PC reverses the HO's decision. The above
condition of approval (also listed at the end of this Final Order as condition of
approval #3) ensures compliance with the relevant approval criterion at EC
9.8325(5). The required removal of proposed development from the "eastern
portion" of the site, as that term is used in condition of approval #3, means the
development shown on Tax Lot 101 of Assessor's Map 18-03-20-21, including
Canyon Drive, Starwood Loop, Lots 50 through 75, and all related utilities and
infrastructure.
2 The HO erred in chvvs:.y nn the nAntthevv, r n/Inn gMot tl,auy If he b~ a G.c wirC rifJ d e s i3 d it ' not, d i1cai to
u ,...a- rr
to
him that the Matthews Map resulted in more accurate information. The evidence in the
record shows the Matthews Map has methodological flaws that are not in the Staff Map.
The Commission should opt for the Staff Map.
4. The HO erred in faulting the applicant for failing to design around the Matthews Map. The
record shows that the Matthews Map placed in the record was documented late in the
Final Order - Deerbrook PUD (PDT 12-1) December 17, 2012
Page 13
16
process (three weeks after the hearing), has methodological shortcomings disrA 15 .
above, and is unsuitable for site planning by the applicant due to its size and lack of scale.
(a) Contrary to the HO's finding, the applicant did respond to the Matthews Map, to
the extent possible based on the sketchy documentation associated with the
Matthews Map.
(b) There is no'basis in law or in common sense for denying this application for failure
to conform the Site Plan to the Matthews Map of slopes, rather than the Staff Map
of slopes.
PC Findings: The Applicant/HBA faults the HO for relying on the Matthews Map to evaluate the
slope criterion and for expecting the applicant to design around that map. The
Applicant/HBA finds methodological flaws in the Matthews Map. Mr. Matthews
explained his methodology in an August 20, 2012 letter to the Tebbutt Law Office,
which the Applicant/HBA critiques as follows:
Mr. Matthews started with a PDF map, which he imported into Photoshop, then
measured the distance between the contour lines in Photoshop, using a circular
brush tip for the diameter of a 25-foot circle. The image resolution is stated as
3302 x 2282 pixels. Pixels are squares placed on a grid pattern to represent
shapes (straight and curved lines, circles, etc.). This creates room for error or
fudging in the measurement. The pixelated lines on the map have depth. That is,
each contour line becomes multiple pixels wide...
The Applicant/HBA note that the discrepancies between the two maps are likely a
result of computer monitor resolution, affecting pixel size, and by moving drawings
into and out of software, which generates inaccuracies in line weight. The Applicant
asserts that the Matth.ews Map cannot be reproduced to-scale to be used as a
reliable source for dictating or restricting areas of development.
The accuracy of Mr. Matthews' map was.even questioned by the HO:
It is not clear to the hearings official whether the software resulted in more
accurate information, but the hearings official believes that the circular shape of
the measuring tool did provide more accurate information. (See page 13 of the
HO Decision.)
The evidence of record shows that the areas of 20% slope submitted by Kevin
Matthews cannot be confirmed on the same area of the site plan produced by the.
Applicant, even when applying the circular measuring tool. The Applicant/HBA
shows that the five-foot contours in this area are greater than 25 feet apart -that
the circle fits between the contour lines. Hence, the circle measurement tool did not
provide different results that the square measurement tool initially used by staff;
the Matthews Photoshop map produced different results than the Applicant's
AutoCAD map.
Final Order - Deerbrook PUD (PDT 12-1) December 17, 2012 Page 14
17
Additionally, the PC finds no evidence in the record as to how the HO cot*IB46hat
using the square measuring tool could "miss areas that are 20 percent slope or
greater." The PC finds this to be an incorrect factual conclusion. Furthermore, while
the PC agrees with the HO to the extent that using the square measuring tool may
"capture areas that are less than 20 percent slope," this approach ensures
compliance with the applicable criterion. Therefore, the PC finds that using the
square measuring tool is appropriate for purposes of determining slope.
The PC believes the most convincing and credible evidence of map accuracy is Sheet
L2.0 of the Applicant's August 22, 2012 plans (the Applicant's illustrative 47-lot
plan), which was provided to-scale and stamped and signed by the Applicant's
design professional, Carol Schirmer.
PC Decision: The PC accepts these arguments and determines that the HO erred in relying on the
Matthews Map. The PC reverses the HO's decision by confirming that Sheet L2.0 of
the Applicant's plan dated August 22, 2012 is the correct map for determining
compliance with the approval criterion at EC 9.8325(5). Approval condition #3,
.which is listed at the end of this Final Order, ensures compliance with this criterion.
Applicant/HBA Appeal issue #2: Improvements in West Amazon Drive Right-of-Way
"The Ho erred in failing to find that West Amazon Blvd. improvements can be constructed within the
60 foot right-of-way in compliance with the 20% slope grading limitation of EC 9.8325(5)."
PC Findings: The source of this assignment of error cannot be specifically found in the HO
decision; it is not clear how this "failure to find" would have changed the HO
decision. With regard to West Amazon Drive, the HO correctly begins his evaluation
of EC 9.8325(5) as follows:
To start, the existing West Amazon Drive is not included in the "development
site," which is a term defined in EC 9.0500 as follows: "A tract of land under
common ownership or control, either undivided or consisting of two or more
contiguous lots of record. For the purpose of land use applications, development
site shall also include property under common ownership or control that is
bisected by a street or alley." As such, the existing West Amazon Drive right-of-
way is not subject to this approval criterion. (See page 12 of HO Decision.)
There is nothing in the HO's evaluation of EC 9.8325(5) that critiques West Amazon
Drive. It does not appear that the HO was concerned about the construction of
West Amazon Drive occurring outside of the existing right-of-way, and therefore
being subject to the 20% slope grading prohibition; conversely, the HO endorsed the
conditions of approval recommended by staff regarding the establishment of slope
easements and the delineation of 20% sloped areas that shall not be graded, as an
additional precautionary measure to ensure compliance.
Further, the Applicant/HBA does not appear to be contesting the related approval
conditions by offering the following, additional condition of approval:
Final Order - Deerbrook PUD (PDT 12-1) December 17, 2012 Page 15
18
APP-17
Final plans for West Amazon Drive will show retaining walls where necessary to
ensure that road improvements will not require grading of slopes 20% or greater
outside the right-of-way.
PC finds no harm in adding this condition of approval to further ensure compliance
with EC 9.8325(5), by providing for another construction technique to avoid grading
areas outside the right-of-way that have 20% slopes.
PC Decision: The PC finds no error, but modifies the HO's decision to add the Applicant's
recommended condition of approval for retaining walls, where necessary. (The
condition of approval is listed as #5 at the end of this Final Order.)
Applicant/HBA Appeal Issue #3 and SEN Appeal Issue #7a: Lot Standards
Applicant/HBA: "The HO erred in finding no compliance with the /WR 33% lot area limitation
because he erroneously denied the requested modification to allow some
undersized lots. He simply applied the wrong standard in denying the requested
modification."
SEN: "...the Hearings Official determined that neither Application complied with EC
9.8325(7)(a), which prohibits a new lot if more than 33% of that lot would occupy a
JWR conservation setback zone. The Official expressly found that "the application
does not comply with this criterion." Decision.at 21. Despite this finding, the Official
did not base his denial on this ground."
PC Findings: The standard at EC 9.8325(7) requires: "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.
Under EC 9.8325(11), a modification to applicable lot standards is allowed if
consistent with the purposes as set out in the PUD purpose statements at EC 9.8300.
EC 9.8300 Purpose of Planned Unit Development. The 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:
Final Order- Deerbrook PUD (PDT 12-1) December 17, 2012 Page 16
19
(a) Shared use of services and facilities .APP-18
(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 features 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 development 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.
The HO only evaluated the Applicant's illustrative 47-lot plan against the above
approval criterion, rather the original 75-lot plans. He appears to have limited his
review to the western portion of the site because the entire eastern portion of the
site could not be developed consistent with the slope criterion at EC 9.8325(5). The
PC finds error in this limited review and provides findings regarding the eastern
portion of the site as well.
With regard to the HO's analysis of the western portion of the site, the HO found
non-compliance with the lot standards approval criterion for two reasons; 1)
because he assumed the lots needed to be reconfigured to respond to the Matthews
Map, he could not ensure that the lots would meet the approval criterion; and 2)
because he did not evaluate the modification approval criteria for the lots with areas
below minimum requirements.
With regard to the uncertain compliance with the lot standards, the HO states:
"...when making the changes to comply with EC 9.8325(5) ...the hearings official
cannot determine which lots might need to be modified..." The reference to EC
9.8325(5) is the slope criterion, under which the HO evaluated the Matthews Map-to
determine non-compliance. The HO was also uncertain how this would affect the
33% lot coverage of the /WR setback, when he states "the applicant did not analyze
how any of the lots listed above, if sized in compliance with the dimensional
standards would have more than 33% of lot occupied by the area listed in subsection
EC 9.8325(7)(a)1 and 2. (See page 21 of HO Decision.) The PC finds that the HO erred
in relying on the Matthews Map to determine approval of the slope criterion at EC
9.8325; therefore, the PC finds that the HO also erred in assuming additional non-
compliance with the applicable lot standards.
Moreover, the PC finds that the HO applied the wrong test when evaluating the non-
compliant lots. The HO states:
Final Order - Deerbrook PUD (PDT 12-1)
December 17, 2012
Page 17
20
The applicant's alternative site plan shows lots 9, 10, 11, 26, 32, a19
would not comply with applicable R-1 lot standards at EC 9.2760, with regard
to the minimum lot size of 4,500 square feet. The applicant requests relief
from the applicable minimum standards under EC 9.8325(11), for these lots
because the purpose of the PUD provisions is to provide a high degree of
flexibility in the design of the site, clustering, and potential environmental
impacts. Applicants Testimony at 13 (Aug. 22, 2012). [See page 21 of HO
Decision.]
The six lots the HO references (9, 10, 11, 26, 32, and 42 on the Applicant's August
22, 2012 plan) have lot areas between 3,777 and 4,460 square feet, which are all
below the 4,500 square feet required for R-1-zone lots. The applicant requests relief
from the applicable minimum standards under EC 9.8325(11), for up to 50% of the
proposed lots. Of the 47 lots proposed on the western portion of the site, the six
non-compliant lots equate to only 12% of the proposed lots, well below the 50%
allowed.
Instead of evaluating the purpose statements at EC 9.8300, the HO stated that he
"believes that the applicant has sufficient opportunity on site to comply in full with
the dimensional standards." (See page 21 of HO Decision.) The PC agrees with the
Applicant that this is not the test for modifying the applicable lot standards. The
June 21, 2012 staff report responded to the Applicant's request, as follows:
Staff generally agrees with the applicant that PUD process can provide an
opportunity for flexibility under applicable standards, subject to a
demonstration of compliance with the PUD purposes at EC 9.8300, and that
such flexibility is desirable on a site such as this to allow for example,
clustering of dwelling units. Under EC 9.8325(11), the applicant relies on one
of the PUD purposes set out at EC 9.8300(1)(e), by stating: "Clustering means
having lots with smaller dimensions. Clustering conserves energy and
resources. For this reason alone the requested relief meets the code
standard."
While staff views this as a minimal showing under the applicable criteria for
granting flexibility, and the applicant's analysis of applicable lot standards
remains incomplete as noted above, the request to allow flexibility for only
up to 50% of the lots does provide some quantifiable measure that can be
verified at a later stage. Staff would also note that the term "clustering" is
not defined in code, and the applicant does not offer any clear basis for their
interpretation of the term in this case, beyond the statement quoted above.
The PC finds that the western portion of the development plan (as represented by
the Applicant's illustrative 47-lot plan) meets the applicable approval criteria for
granting a modification to the lot standards for the following reasons:
Final Order - Deerbrook PUD (PDT 12-1) December 17, 2012 Page 18
21
1. With regard to EC 9.8300(1)(a), some of the affected lots (i.e. Lot ,olnd
42) would have "shared use of services and facilities" with regard to the
private street and stormwater infrastructure provided by "West Morning
Drive."
2. With regard to "preservation of existing natural features..." udder the
needed housing approval criteria, the PUD is not afforded the same review of
natural resource protection; however, subject sub-standards lots are located
to avoid existing natural features, namely the open waterways and the areas
of 20% slope.
3. With regard to EC 9.8300(1)(e), "clustering of residential dwellings to achieve
energy and resource conservation while also achieving the planned density
for the site," the non-compliant lots are "clustered" to the extent the smaller
lot sizes enable future residential dwellings to be located closer together and
utilizing energy and resources more efficiently with regard to urban services
and utilities. With regard to density, the substandard lot areas are offset by
larger tracts of open space; the overall density is only one-unit per acre (47
lots on 26 acres), which is well below the maximum density of five-units per
acre (required by the property's location being east of Friendly Street.)
4. With regard to EC 9.8300(2), the site plan is "at least equal in quality to those
that are achieved through the traditional lot by lot development" to the _
extent the development consists of individual lots for the future residences.
This "lot by lot" development layout is "reasonably compatible with the
surrounding area."
However, the PC finds that the eastern portion of the development plan (as
represented by the Applicant's original 75-lot plan), does not contain the same
elements described above to warrant a modification to the lot standards. The
Applicant's plan for the eastern portion of the site identifies nine non-compliant lots:
Lots 50 through 54 have lot sizes that range between 4,254 and 4,294 square feet;
and Lots 63 through 68 have lot sizes that range between 3,301 and 4,468 square
feet. These lots are located between two streets, which appears to be the primary
constraint; whereas the compliant lots abutting the /WR resource associated with
the site's most easterly waterway, are larger- ranging between 7,098 and 10,000
square feet. Therefore, the PC finds no sufficient basis to grant a modification to the
lot standards for the eastern portion of the site. It is noted that the PC's decision
otherwise requires the eastern portion of the site to be removed from the
development plan for other areas of non-compliance, namely with the provision of
key urban services and with the restriction from grading 20% slopes. However, the
lack of justification for a modification to lot standards on the eastern portion of the
site is a further basis for the PC's finding of non-compliance under EC 9.8325(7)(a),
and thus to require elimination of the proposed development on the eastern portion
of the site.
PC Decision: The PC reverses the HO's basis for denial under the approval criterion EC
9.8325(7)(a) and, instead, approves a modification to the lot standards only on the
western portion of the site as shown on the Applicant's illustrative 47-lot plans
Final order - Deerbrook PUD (PDT 12-1) December 17, 2012 Page 19
22
dated August 22, 2012. The PC also modifies the HO's decision to add tAlRo
findings regarding the eastern portion of the site. With elimination of development
on the eastern portion of the site, and modification approval for only those lots on
the western portion of the site, the PC finds compliance with the applicable lot
standards.
Applicant/HBA Appeal Issue #4 and SEN Appeal Issue #7b; Solar Lot Standards
Applicant/HBA: "The HO erred in findina no compliance with the solar lot standards."
SEN: "Similarly, the Hearings Official found that the Applications did not comply with EC
9.8325(10), which requires compliance with Solar Lot Standards found at EC
9.2790. Nonetheless, the Official also failed to base his denial on this issue."
PC Findings: The standard at EC 9.8325(10) requires that "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)."
The HO did not find evidence in the record to determine solar lot standard
compliance, as required by EC 9.8325(10), as follows:
The alternative site plan, sheet L9.0 explains how the PUD complies with the
solar lots standards. However, the percentage of lots complying with this
standard for a site plan that complies with EC 9.8325(5) has not been
determined, so the hearings official cannot conclude that the PUD complies with
the solar lots standards, and the applicant has not requested a modification. The
hearings official does not believe the applicant would be unable to comply with
the solar lot standards; the hearings official only notes that the current record
does not support a finding of compliance. (See page 31 of HO Decision.)
The PC finds that the HO erred for two reasons: 1) he only evaluated the western
portion of the site (the Applicant's illustrative 47-lot plan), rather the entire 75-lot
plan; and 2) he relied on the Matthews Map to find ambiguity about compliance,
assuming that the development layout needed to be realigned to respond to the
Matthews Map.
With regard to the western portion of the site as shown on the Applicant's
illustrative 47-lot plan, compliance with the solar lot standards is found as follows:
Lot 1: This lot is located at the northwest property corner and complies with
the solar lot standards by having a north-south dimension of at least 75 feet,
and by having a front lot line on West Amazon Drive that is within 30 degrees
of the true east-west axis.
Final Order - Deerbrook PUD (PDT 12-1) December 17, 2012 Page 20
23
APP-22
Lots 2 through 25: This cluster of lots is located southwest of the West
Amazon Drive right-of-way, west of the westerly waterway. Lots 4, 5, 13, 19,
20, 23, and 24 comply by having a 75-foot north-south dimension and a front
lot line within 30 degrees of the true east-west axis. The other lots do not
comply; however these lots are eligible for an exception per EC 9.2790(3)(b)
because of the existing alignment of West Amazon Drive and the planned
alignment of Senger Lane. Consistency with the street connectivity
standards prevents the lots from being in a north-south alignment.
Lots 26 through 36: This cluster of lots is located on the north side of the
existing West Amazon. Drive right-of-way, between the west and middle
waterways. Of these, Lots 29 through 32 comply, whereas the others do not.
The north-south alignment of the waterways coupled with areas of 20%
slope makes these lots eligible for an exception, pursuant to EC 9.2790(3)(b),
which states that exceptions can be granted if natural features prevent the
lots from being oriented for solar access. As such, as exception is granted.
Lots 37 through 47: This cluster of lots is located on the east side of the
middle waterway, between West Morning Drive and Canyon Drive (i.e. Lots
37 through 47). Only one lot (Lot 43) meets the solar standards outright
because it has a front line on an east-west street (West Morning Drive) and
has a lot depth that exceeds 75 feet. This portion of the site has about 200
feet of width between the middle waterway and the west property
boundary, preventing additional east-west streets that would otherwise
provide the balance of those lots with front lot line orientation within 30
degrees of the true east-west axis. EC 9.2790(3)(b) allows an exception from
lots being oriented for solar access in these situations; as such, an exception
is granted.
Twelve of the 47 lots (25 percent) shown on the Applicant's illustrative 47-lot plan
comply outright with the solar standards. Although.this.does not meet the 70
percent minimum of EC 9.2790(2), EC 9.2790(3)(b) allows an exception if compliance
with street standards or natural features prevent the lot configuration from being
oriented for solar access. The HO found compliance with the solar access standards
for these lots based on the exception provisions; however, he then ruled that he
could not ensure compliance following a reconfiguration of the lots as a result of
relying on the Matthews Map,
The HO did not err in finding compliance with the solar standards with the exception
provision for the lots shown on the Applicant's illustrative 47-lot plan; however, he
did err in presuming those lots needed to be reconfigured. As confirmed in the
appeal issues above, the PC has reversed the HO's decision on EC 9.8325(5),
regarding slope, and has confirmed that the Matthews Map is not the correct map
to use in the evaluation of this PUD application. As such, there is no ambiguity
about solar lot compliance for the western portion of the site.
Final Order- Deerbrook PUD (PDT 12-1) December 17, 2012 Page 21
24
APP-23
The HO also erred in not evaluating the eastern portion of the site, as represented
on the Applicant's original 75-lot plan. Instead, the HO stopped evaluating this
portion of the site against the remaining approval criteria when he found that this
portion of the site could not meet approval criterion EC 9.8325(5). With regard to
the eastern portion of the site, only three of the lots (Lots 58 through 60) comply
with the solar lots standards. Although the west boundary of this portion of the site
is bordered by a north-south running street (Canyon Drive), which is a fixed
alignment given the existing street stub to the south, and the east boundary of this
portion of the site is bordered by a north-south running Goal 5 protected waterway,
there is sufficient area in-between to reorient these lots. As confirmed previously,
regarding lot standards, there is insufficient evidence to grant an exception. Here,
similarly, the PC does not grant an exception to the solar lot standards for the
eastern portion of the site.
PC Decision: The PC reverses the HO's decision regarding the western portion of the site under EC
9.8325(10); the ambiguity of compliance with the solar lot standards and the
applicable exception thereto has been removed by the PC's ruling on the Matthews
Map in the appeal issues above. The PC also modifies the HO's decision to add the
above findings regarding the eastern portion of the site, specifically noting that this
portion of the site does not comply with the solar lot standards or its exception
provisions.
Applicant/HBA Appeal Issue #S; Standards Review for Goal 5 Crossing
"The Ho erred in denying this application far failure to demonstrate, in this record, that the applicant
will be able to get Standards Review approval for Goal 5 road crossings. There is no basis in the code
for denying this application for failure to aet Standards Review approval now, rather than in a
separate application that will be subject to public notice and an opportunity for a full public
hearing."
PC Findings: EC 9,8325(11) requires the PUD to comply with applicable development standards
explicitly addressed in the application. The HO denied the PUD under this criterion
based on the applicable development standards at EC 9.4930 /WR Water Resources
Conservation Overlay Zone - Permitted and Prohibited'Uses and Exceptions. The
record shows that the proposed public improvement crossings of the /WR resource
areas will require Standards Review approval, pursuant to EC 9.4930(3)(b).
The HO did not deny the PUD application because the Applicant did not apply for a
Standards Review application concurrent with the PUD; rather, the HO denied the
PUD application under approval criterion EC 9.8325(11) because he assumed the lots
and streets needed to be reconfigured to avoid the additional areas of 20% slope
identified by the Matthews Map. The HO states:
Because the applicant will need to adjust the locations of roads (and thus
possibly crossings within the resource area, the hearings official cannot
conclude that the PUD complies with this.criterion. The hearings official
Final Order - Deerbrook PUD (PDT 12-1) December 17, 2012 Page 22
25
does not believe the applicant would be unable to show complia Rit24
Standards Review; the hearings official only notes that the current record
does not support a finding of compliance. (See page 32 of HO decision.)
This uncertainty has been removed by the PC's determination, under the appeal.
issues above, that the HO erred in relying on the Matthews Map. The PC finds that it
is appropriate to defer Standards Review approval as a condition of final PUD
approval.
PC Decision: The PC reverses the HO's basis for denial under EC 9.8325(11) by relying on the
Applicant's maps, rather than the Matthews Map, for evaluating the applicable
approval criteria. The PC affirms that Standards Review approval should be required
as a condition prior to final PUD approval. (The condition of approval is listed as #6
at the end of this Final Order).
SEIU Appeal Issue #6: Geotechnical Requirements
"The site is not exempt from the cgeotechnical requirements of EC 9.6710(6).
PC Findings: The approval criterion at EC 9.8325(7)(d) requires the PUD to comply with the
geotechnical analysis standards at EC 9.6710. EC 9.6710(6) specific to Needed
Housing applications, which states:
Unless exempt under 9.6710(3)(a)-(f J, in lieu of compliance with subsections (2),
(4), and (5) of this section, applications proposing needed housing shall include a
certification from an Oregon licensed Engineering Geologist or an Oregon
licensed Civil Engineer with geological experience stating
The referenced exemptions at EC 9.6710(3) state:
The following activities are exempt from the requirements of this section:.. .
(f) activities on land included on the city's acknowledged Goal 5 inventory.
The HO concluded that the PUD is exempt from the geotechnical requirements at EC
9.6710 because the subject property is included on the City's acknowledged Goal 5
inventory. The HO determination is based on the Goal 5 Inventory shown on Figure
H-2 of the Scenic Sites Working Paper. The SEN assert that the HO finding is
incorrect and should be reversed by the PC, because they believe the adopted Scenic
Area"map is too ambiguous.
The PC finds that it is not necessary to evaluate the Scenic Area map because the
Applicant does not rely on an exemption to fulfill the relevant approval criterion at
EC 9.8325(7)(d). The Applicant initially sought compliance with EC 9.6710(6)(b),
without the exception provision, by providing "...certification from an Oregon
licensed Engineering Geologist or an Oregon licensed Civil Engineer with geological
experience stating:
Final Order- Deerbrook PUD (PDT 12-1) December 17, 2012 Page 23
26
(a) That the proposed development activity will not be impacted by &Pr
potential stability problems or any of the following site.conditions: springs or
seeps, depth of soil bedrock, variations in soil types, or a combination of these
conditions; or
(b) If proposed development activity will be impacted by any of the conditions
listed above the methods for safely addressing the impact of the conditions. This
subsection also requires the applicant to state that the development will occur in
accordance with the Engineer's statement."
The applicant submitted the above certification, prepared by Gunnar Schlieder,
Ph.D., CEG, GeoScience, Inc. Dr. Schlieder, an Oregon certified engineering geologist,
is a local expert in geology; the City has employed his services numerous times,
including the development of local standards for geotechnical analysis applicability
and report contact requirements. In his August 22, 2012 letter, Dr. Schlieder
responds to the concerns raised by opponents and certifies the following:
However, the fact that slope movements are present in the vicinity of the site
does not automatically indicate that the site itself is underlain with such
features. GeoScience's test pits prove that it is not. The geological/geotechnical
information developed by GeoScience does indicate the presence of variable
thickness of expansive soil over portions of the site. The 2/4/2007 report
addresses this issue both for infrastructure and foundations, with
recommendations tailored to the specific conditions found in nine different
design areas which were distinguished on the site.
The presence of expansive soil on the site does not represent a. threat to public
health and safety, as the shrink-swell related movement is very slow and limited
in magnitude. If appropriate construction practices are employed, which have
been listed for each design area in the February 4, 2007 GeoScience report,
there is no risk to public welfare from the presence of these soils on the PUD,
Dr. Schlieder provides specific recommendations for road construction, underground
utilities, general grading, erosion control, slope stability, use of native materials,
foundations, drainage, and supervision of construction and road grading on pages 11
through 15 of the February 4, 2007 report. The PC confirms that this meets the test
of EC 9.6710(6) and the related approval criterion at EC 9.8325(7)(d).
PC Decision: Rather than finding error with the HO's decision regarding compliance with EC
9.8325(7)(d) based on the Goal 5 inventory exception provision provided at EC
9.6710(3), the PC modifies the HO's decision to affirm that Applicant has met the
requirements of EC 9.6710(6) with Dr. Schlieder's certification, dated August 22,
2012, and the geotechnical analysis and recommendations provided in Dr.
Schlieder's February 4, 2007 report, To ensure compliance, the following condition
of approval is warranted:
Final Order - Deerbrook PUD (PDT 12-1) December 17, 2012 Page 24
27
® The final PUD plans shall state that the development will occur in accMVffJ6
with the geotechnical recommendations provided in the GeoScience, Inc. report
dated February 4, 2007.
With the addition of this condition and the revised findings above, the PC finds that
the requirements of EC 9.8325(7)(d) and the related standards at EC 9.6710(6) have
been met. (The condition of approval is listed as #18 at the end of this Final Order.)
SEN Appeal Issue #7• Lot Standards (See Applicant/HBA Appeal Issues #3 and #4 above)
This issue has two parts: a) lot dimension standards; and b) solar lot standards, both of which are
addressed above, under Appeal -Issue #3 and #4.
SEN Appeal Issue #S: Compliance with EC 9.7007 Neighborhood /Applicant Meeting
SEN asserts that there are two plans being evaluated as part of the subject request: the initial 75-lot
plan; and the 47 lot alternate plan, addressing the staff recommendations. The SEN claims
procedural error because only the 75-lot plan was presented at the pre-application
Neighborhood/Applicant Meeting, required by EC 9.7007.
PC Findings: The Applicant held two neighborhood meetings with SEN (December 8, 2011 and
January 10, 2012). At these meetings, the Applicant presented its original 75-lot
plan. Then, the Applicant submitted the 75-lot plan with its application. The
Applicant. later submitted a 47-lot plan that the HO Official regarded "as simply
illustrative of how the applicant could comply with the conditions of approval
-recommended in the original (June 2012) staff report" and not as a revised
application. At page 7 of its appeal statement, SEN argues that the "[c]ode required
the Applicant to share its actual proposed site plan with Southeast Neighbors prior
to submitting an application. EC 9.7007(8). The Applicant has never completed this
requirement for its 47-lot Application. Its failure to do so requires the- PC to deny
the 47-lot Application in total."
The PC finds this the issue is beyond the scope its review. Under the Eugene Code,
the neighborhood meeting is an application requirement that is considered by the
City as part of completeness review under EC 9.7015. The code provides that a PUD
application will not be deemed complete for City consideration unless it includes
specific documentation of the neighborhood meeting; EC 9.7007(11); EC 9.7010.
The code also provides that "[i]f the site plan submitted with the application does
not substantially conform to the site plan provided at the [neighborhood] meeting,
the applicant shall be required to hold a new neighborhood/a.pplicant meeting." EC
9,7007(12). In this case, when the application was submitted, staff determined that
the Applicant submitted the required documentation and that the site plan
submitted with the application substantially conformed to the one provided at the
neighborhood meeting. The application was deemed complete, and the HO's
evaluation process began.
Final Order -Deerbrook PUD (PDT 12-1) December 17, 2012 Page 25
28
Even if staff had been incorrect in their determinations, once an applica h-27
deemed complete, there is no basis for the HO or the PC to reconsider compliance
with the neighborhood meeting requirement. The HO noted, under the introductory
heading "Application, referrals and Public Notice" on page 7 of his decision, that the
application materials confirm compliance with EC 9.7007. The HO does not revisit
the requirement under any criteria. EC does not include a PUD approval criterion
under which the HO or the PC may'consider compliance with neighborhood meeting
requirement.
Further, the HO's decision actually evaluated the 75-lot plan -the one presented at
the neighborhood meetings -as the application (see page 2 of HO Decision). The
HO's denial is based on shortcomings in the 75-lot proposal. As noted above, the HO
regarded the 47-lot plan as additional evidence, but not as a revised application.
PC Decision: The PC denies this assignment of error. This issue is beyond the scope of the PC's
review.
SEN Appeal Issue #9; Stormwater
"The Hearings Official ruled that the Applicant complied with EC 9.8325(13) because "the condition of
approval required to comply with EC 9.8325(7)(j) that addresses flow-control ensures that the
application complies with this approval criteria." Decision at 34. This determination was in error, as
the Applicant must make an independent showing that it can comply with this criterion."
PC Findings: The approval criteria at EC 9.8325(7)(j) and EC 9.8325(13) both relate to stormwater.
SEN argues that, because these are different criteria, compliance with the first
criterion does not equate to compliance with the second. The HO determined that
compliance with criterion (13) was ensured through the condition for flow control
established under criterion (7)(j). When evaluating criterion (13), however, the HO
did more than refer to criterion (7)(j); the record shows that he made an
independent evaluation of the approval criteria.
EC 9.8325(13) states "Stormwater runoff from the PUD will not damage natural
drainage courses either on-site or downstream by eroding or scouring the natural
drainage courses or by causing turbidity, or the transport of sediment due to
increased peals flows or velocity." The HO states:
The applicant responds to this approval criterion as follows: "Stormwater is not
being added to any natural drainage course onsite. The plans show that
stormwater from this site, after treatment in onsite facilities, will enter the city's
piped system at the north end of the site. These facilities eventually discharge to
the Amazon Canal, an engineered drainageway and part of the city's stormwater
system. In terms of impacts on the waterway offsite, the owners understand this
standard to mean that no damage will result if onsite stormwater detention
facilities are constructed to city standards to accommodate the 10-year design
storm. The stormwater facilities are designed to meet this city standard; hence a
positive finding can be made." (See page 33 of the HO Decision.)
Final Order- Deerbrook PUD (PDT 12-1) December 17, 2012 Page 26
29
APP-28
The key finding above is that the development will provide onsite detention, so that
the development is not adding stormwater runoff to open waterways. With regard
to the onsite waterways, the HO's conclusion that the development does not impact
on-site waterways is based on the assumption that the previous criterion at EC
9.8325(5), regarding slope, has removed the eastern portion of the site from
development. The HO did not evaluate the applicant's.initial 75-lot site plan against
the stormwater approval criteria at EC 9.8325(7)0) or EC 9.8325(13); however, the
June 21, 2012 staff report provided an analysis and found that the eastern portion of
the site did not meet either approval criterion.
The topography of the site creates two distinct drainage basins, which coincides with
the analysis of the western portion of the site, separate from the eastern portion.
The staff analysis of the stormwater development standards at EC 9.6791 through EC
9.6797, invoked by criterion EC 9.8325(7)(j) is as follows:
Western Drainage Basin
The western portion of the site shows a piped stormwater system extended
from Martin Street within the proposed streets, with an interconnecting
piped system between the streets at the northwest portion of the site,
corresponding to gravity drainage and site topography, and involving a piped
crossing of the westerly waterway. The proposed stormwater pipes located
outside the streets are proposed within public utility easements (PUE). If the
Hearings Official ultimately approves the application, the staff
recommendations regarding acceptance and determination of the final PUE
locations at EC 9.8325(7)(b), as well as waterway crossings and grading
restrictions are applicable here, as are staff's proposed conditions regarding
compliance with other public improvement standards.
The available information indicates that the receiving system has the
capacity to accommodate addition runoff from the proposed development..
Staff concurs that the proposed development complies with the stormwater
destination standards of EC 9.6791. As noted in the Hydrology Report, a
downstream deficiency for the future 10-year storm previously existed at
segment 65344 - 66656 in Martin. Street. The completion of Capital Projects
AM06A and AM06B under City Project Number 3951 (i.e., City Contract No.
2007-09) has corrected these deficiencies. No other downstream deficiencies
in the Amazon Channel, which is the receiving system for the proposed
development, have been identified for the 10-year design storm, per
modeling in the 2002 City of Eugene Stormwater Basin Master Plan, Volume
II of VI for the Amazon Basin.
Eastern Drainage Basin
The applicant has not provided sufficient information regarding the capacity
of this drainage basin to accommodate the proposed stormwater runoff from
the contributing development along Canyon Drive. The applicant's plans
Final Order - Deerbrook PUD (PDT 12-1) December 17, 2012 Page 27
30
show a "potential location for stormwater detention" on eastern oaf
the site, on the portion of Tract A located north of Lot 69. North of this area,
on City park land, the applicant's plans also show a "potential location for
stormwater detention." Referral comments from Parks and Open Space
(POS) staff raise concerns about proposed construction of stormwater
facilities in a City-owned and managed natural area park. The POS comments
indicate that approval of such facilities on City-owned park land would be
dependent upon a demonstration that, at a minimum, no feasible alternative
exists, negative impacts to streams, vegetation and public access facilities are
minimized, and all other permits and approvals are obtained. Based on the
lack of evidence to support compliance with the applicable stormwater
development standards for the eastern portion of the development, staff
cannot craft reasonable conditions of approval to support development in
this area. (See pages 25 and 26 of the June 21, 2012 staff report.)
The staff analysis above concludes that the western portion of the site has
conveyance capacity, but establishes uncertainty about the eastern portion of the.
site. (Note: The above analysis did not include impacts from increased flows, but is
addressed below.) The HO erred by not including an analysis of the eastern portion
of the site in his decision. The PC corrects this error by establishing a condition
(condition of approval #3, provided at the end.of this Final Order) that removes the
eastern portion of the site from the development. The HO did not err in his analysis
of the western portion of the site -for either criterion (7)(j) or (13) - but his findings
have some technical inaccuracies.
Under approval criterion EC 9.8325(7)(j), the HO found compliance with the
stormwater development standards at EC 9.6791 through EC 9.6797, as follows:
The applicant responded to testimony about stormwater drainage in its
August 22, 2012 post-hearing testimony. Specifically, the applicant noted EC
9.6790(2) requires. that post-development flows will not exceed existing pre-
development flows and that the 2007 study explains how this will be
accomplished.
The applicant has not proposed any pre-treatment or detention for this
portion of the development site, as required by current stormwater
development standards. However, given the available data regarding the
downstream system, and given the clear and objective nature of the balance
of the stormwater development standards, the western portion of the
development site can meet these requirements with the following conditions
of approval:
The final PUD plans and final subdivision plat shall note the following
requirement: "At the time of development, each lot shall have its own
filtration stormwater management system (e.g. flow-through planter)
that is sized to meet the requirements of EC 9.6792 Stormwater Pollution
Final Order- Deerbrook PUD (PDT 12-1) December 17, 2012 Page 28
31
Reduction and EC 9.6793 Stormwater Flow Control (Headwat ~IEA
lot owner will be responsible for maintaining its stormwater
management system consistent with EC 9.6797 Stormwater Operation
and Maintenance."
® During the PEPI permit process, the public stormwater system shall
include City-approved proprietary stormwater treatment technology that
meets the requirements of EC 9.6792 Stormwater Pollution Reduction
and EC 9.6793 Stormwater Flow Control (Headwaters).
The applicant's August 22, 2012 testimony accepts these conditions of
approval and states that the applicant will comply with them (the conditions
are listed as #16 and 17 at the end of this Final Order).
The above statement that "EC 9.6790(2) requires that post-development peak flows
will not exceed existing pre-development flow" is inaccurate. The stormwater
development standards at EC 9.6791 through EC 9.6797 do not require this
detention - of the western portion of the site. The reference here is actually EC
9.6793 Stormwater Flow Control (Headwaters), but this code provision would not
apply to the development proposed on the western portion of the site because the
outfall to an open conveyance system occurs below an elevation of 500 feet. In
other words, the criterion at EC 9.8325(7)(j) does not require the Applicant to
provide on-site detention of stormwater runoff from the development proposed on
the western portion of the site. The eastern portion of the site, however, would
require detention under EC 9.8325(7)(j). As noted above, the Applicant's proposed
detention ponds that overflowed to open drainage systems on City parklands did not
meet this criterion. The PC addresses this with the imposition of condition of
approval #3. Further, even though the flow control standards at EC 9.6793 do not
apply, the PC endorses the HO's condition for compliance because it provides the
detention necessary to address the approval criterion at EC 9.8325(13).
The key to compliance with EC 9.8325(13) is that the development will provide
onsite detention, so that stormwater runoff will not increase peak flows or velocity
in such a manner as to cause damage to the open drainage system. The HO
addressed this criterion as follows:
The above approval criterion is specific to "stormwater runoff from the
PUD," rather than street and utility crossings of the onsite natural drainage
courses. As addressed previously at EC 9.83251710), regarding the
stormwater development standards at EC 9.6791 through EC 9.6797, the
western portion of the development site does not direct stormwater runoff
from the PUD to an on-site waterway, although the proposed piped system
does outfall to an open drainage system farther to the north. The condition
of approval required to comply with EC 9.8325(7)(j) that addresses flow-
control ensures that the application complies this approval criterion. (See
page 34 of HO Decision.)
Final Order- Deerbrook PUD (PDT 12-1) December 17, 2012 Page 29
32
APP-31
The HO imposed flow control standards at EC 9.8325(7)0), even though they were
not required for the western portion of the site, to ensure that the development
would provide the detention necessary to comply with the requirement of EC
9.8325(13).
As conditioned, each lot within the proposed development will be required to detain
post-development peak flows to pre-development levels. The pollution-reduction
medium on each lot, required for compliance with EC 9.6792 Stormwater Pollution
Reduction, such as a flow-through planter at the roof downspout, will be required to
have a larger sizing factor to provide detention and reduce the overflow during peak
flow events. The flow control standards were specifically designed to address
erosion of Headwater Streams. The use of City standards provides greater certainty
at the time of implementation, during building permit review. Further, as a public
improvement, the outfall will be required to meet public design standards, which
requires stability and velocity measures at outfalls in every case.
PC Decision: The PC rejects SEN's arguments and finds that the HO did make an independent
evaluation of the criteria at EC 9.8325(7)(j) and EC 9.8325(13), which both relate to
stormwater runoff from the proposed development. Although EC 9.8325(7)0) does
not require the development to meet EC 9.6793 Stormwater Flow Control -
(Headwaters), the PC endorses the HO's imposition of this standard to ensure that
the development provides onsite stormwater management facilities that detain
post-development peak flows to pre-development levels, which is necessary to
ensure compliance with EC 9.8325(13). The flow control standards at EC 9.6793
provide this detention and are standards that City staff can readily implement during
the building permit process. The PC finds that the HO did not error by correlating the
detention requirements of EC 9.8325(7)(j) to address the "...increased peak flow or
velocity" test of criterion EC 9.8325(13).
The PC finds, however, that the HO did err in not addressing the eastern drainage
basin. The PC modifies the HO's decision by adding the above findings that the
applicant did not demonstrate compliance for the eastern drainage basin and
establishing the condition that the eastern portion of the site be removed from the
development, stated as condition of approval #3, below.
SEN Appeal Issue #10: Fence in 30' buffer
"The Hearings Official determined that a fence located at the outside edge of the PUD property is
permiss,"Ale because the code re quireS a buJJfCeI LoIIC U-1101-1 1-4 tf ie perimetcr1 bUt Hill v%1 the Perini eter.
This interpretation is inconsistent with the plain meaning of the term perimeter and along."
PC Findings: The approval criterion at EC 9.8325(3) requires that "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)." The SEN object to the allowance of a perimeter fence of the requisite 30
foot wide buffer between the proposed development and surrounding properties.
Final Order- Deerbrook PUD (PDT 12-1) December 17, 2012 Page 30
33
The SEN disagree with the HO findings of compliance, stating that "a fenvj
negate that perimeter buffer and cause that property to become included in the
PUD property." The PC does not agree that a fence would negate the required
buffer or cause property to become part of the PUD that is not already, but finds
that a fence is not expressly allowed under the provisions of EC 9.6210(7), and
therefore is not allowed as proposed.
PC Decision: The PC finds that the HO erred in allowing the applicant's proposed fence in
violation EC 9.8325(3), but this is not a sufficient basis for denial. To ensure
compliance, the following condition is imposed:
The final PUD plans shall be revised to note that fencing is not allowed on the
perimeter of the PUD or within the required 30' landscape buffer under the
provisions of EC 9.8325(3) and EC 9.6210(7). "
The PC therefore modifies the HO's decision to find that the applicant's proposed
fence does not comply with EC 9.8325(3), and adds the condition of approval noted
above to ensure compliance. (The condition is added as #19 at the end of this Final
Order).
SEN Appeal Issue #11; 19-Lot Rule
"Because both the 75-lot and 47-lot Applications propose to use West Amazon Drive as the only
public road, the Hearings Official erred in his interpretation of the Lode requirement."
PC Findings: The code requirement in question is under approval criterion EC 9.8325(6), "The
PUD provides safe and adequate transportation systems through compliance with all
of the following..." Subsection (c) of this criterion is known as the "19-lot rule,"
which requires the following:
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 existing lots utilizing a local street as the single
means of ingress and egress exceeds 19.
HO found compliance with this standard based on the interconnectivity of West
Amazon Drive, as follows:
The street layout disperses motor vehicle traffic onto more than one public
local street, as all streets proposed within the development connect with
West Amazon Drive, which extends beyond the development site to the
north (connecting with Martin Street) and south (connecting with Fox Hollow
Road). The applicant proposes to improve West Amazon Drive to provide this
traffic dispersal; the PUD proposes no phasing of the development, which
means that the street improvements will be in place prior to development of
the lots, rather than on an incremental basis that would bring the 19-lot rule
above into question.
Final Order - Deerbrook PUD (PDT 12-1) December 17, 2012 Page 31
34
APP-33
The applicant additionally notes that there are two dispersion points-one to
the north, which sends traffic onto the portion of the Eugene street network
leading to the 30th Ave./Hilyard grid, and one to the south connecting the
portion of the Eugene street network comprised of Fox Hollow/Donald/
Willamette Street. The applicant states that the two street networks are
sufficiently separated that if a blockage occurred on one, the other would
not be affected. The hearings official concurs. (See page 20 of HO Decision.)
This standard stems from Fire Code about isolated access. The concern would be if
West Amazon Drive dead-ended at the site. Instead, the Applicant proposes to
improve West Amazon Drive between the existing street improvements at the north
and south ends of the site. South of the site, West Amazon Drive has a paved driving
surface that eventually connects with Fox Hollow Road. Fire staff has confirmed that
this meets their requirements for providing two points of access.
The HO's finding of compliance is specific to the western portion of the site (the-'7
-lot plan). With respect to the eastern portion of the site (as shown on the 75-lot
plan) the HO found that removal of the eastern portion of the proposed
development would seem to resolve the Fire Marshal's access concerns, but his
determination was not conclusive with respect to the approval criteria at EC
9.8325(6)(c). The PC finds that even if the eastern portion of the proposed
development were to remain, it would not cause a violation of the "19-lot rule"
because the traffic from Canyon Drive would connect with West Amazon Drive and
use the same two points of dispersion to the north and south.
The PC agrees with the HO's determination that the internal street design,
connected with the proposed improvements to West Amazon Drive, will serve to
disperse traffic onto more than one public local street as required. The PUD also
provides street stubs to the south and west for additional street connections. 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.
PC Decision: The PC agrees that the HO did not err in finding compliance with the above approval
criterion at EC 9.8325(6)(c), but modifies the HO's decision to add a finding that even
if the eastern portion of the proposed development were to remain, it would not
cause a violation of the "19-lot rule" because the traffic from Canyon Drive would
connect with West Amazon Drive and use the same two points of dispersion to the
north and south.
V. CONCLUSION
Final Order - Deerbrook PUD (PDT 12-1) December 17, 2012 Page 32
35
After consideration of the applicable law and all argument and evidence in the record, the gprj~4
Planning Commission finds that the subject application for Deerbrook PUD (PDT 12-1) meets all
applicable PUD approval criteria from EC 9.8325, with additional findings and conditions of approval as
described above. The HO's initial decision to deny the application is therefore reversed.
As a result of the PC's determinations on the appeal issues above, tentative PUD approval is only
granted for development of the western portion of the subject site. As required under condition of
approval #3, this approval excludes proposed development on the eastern portion of the site shown on
the applicant's original 75-lot plans (i.e. the proposed development shown on Tax Lot 101 of Assessor's
Map 18-03-20-21, including Canyon Drive, Starwood Loop, Lots 50 through 75, and all related utilities
and infrastructure). As stated previously, in the event of any conflict between the HO's decision and
this Final Order, this Final Order shall prevail.
For ease of reference, a comprehensive list of approval conditions is provided below. This list is
comprised of conditions as modified or added in the Final Order above, as well as those recommended
by the Hearings Official in the event that his a decision is reversed and the Planning Commission
approves the application (as is the case here).
VI. CONDITIONS OF APPROVAL
1. 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
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.
The final PUD plans shall note the following: "The 30-foot perimeter buffer shall comply
with EC 9.6210(7)(a)(1) through (5). The applicant may use existing vegetation to meet
these requirements. The applicant shall show on its landscaping plan existing vegetation
that it intends to reply on to comply with these requirements and proposed new
landscaping that it intends to add to comply with these requirements."
The final PUD plans shall be revised to show removal of proposed development from the
eastern portion of the site shown on the Applicant's original 75-lot plans. Proposed
development on the western portion of the site shall also be revised to show compliance
with the grading prohibition of EC 9.8325(5), by utilizing the 20% slope delineation depicted
on Sheet L2.0 of the Applicant's site plans dated August 22, 2012. A note on the final PUD
plans shall-be included, specifying the following restriction: "The shaded areas of 20
percent slopes shall not be graded, pursuant to EC 9.8325(5). Construction site
management shall include protective fencing of these areas. Utilities in these locations will
need to be installed without grading, such as with boring or other construction technique."
Final order- Deerbrook PUD (PDT 12-1) December 17, 2012 Page 33
36
4. The final PUD site plans shall show cut and fill slopes associated with the street APP-35
improvements and shall delineate public slope easements for those slopes that fall outside
of the right-of-way. Slope easements will be more precisely determined during the PEN
permit process and on the plat.
Final plans for West Amazon Drive will show retaining walls where necessary to ensure that
road improvements will not require grading of slopes 20% or greater outside the right-of-way.
6. Prior to final PUD approval, the applicant shall obtain /WR Standards Review approval for
all public improvements, utility and access crossings proposed in the conservation areas.
7. The applicant shall dedicate the right-of-way necessary to connect Senger Lane and St. Clair
Lane to adjoining properties. The applicant shall show the dedication on the final PUD
plans.
8. The final PUD site plans shall show Canyon Drive as: having 20 feet of pavement width with
curbside sidewalks, within 45 feet.of right-of-way, The public improvements shall be
constructed as part of the Privately-Engineered Public Improvement (PEPI) permit process.
9. The final PUD site plans shall show Senger Lane as: having 20 feet of pavement width with
curbside sidewalks on the east side of the street only, within 45 feet of right-of-way; and
terminating in.a hammerhead turnaround, as proposed, within a temporary public
easement. The public improvements shall be constructed as part of the Privately-
Engineered Public Improvement (PEPI) permit process.
10. The final PUD plans shall note the following: "The structural design and construction
inspection for private streets and alleys shall remain the developer's responsibility." Prior to
final subdivision approval, the applicant shall submit certification by a licensed engineer
that the structural design of the proposed private streets meets the applicable. public
design standards.
11. The final PUD plans shall provide a table identifying the lots that do not meet minimum lot
standards, up to a maximum of 50% of the lots shown on final plans.
12. Acceptance of PUE is conditioned upon the applicant obtaining Standards Review approval
for the proposed /WR resource area impacts and upon the infrastructure location being
more precisely determined during the PEPI permit process. Approved PUE locations will be
considered as part of the subdivision process.
13. The final PUD plans shall show the Exclusive Easement of the September 3, 1999 Purchase
and Sale Agreement, including the Bridal Trail Easement.
14. Public improvements shall be constructed pursuant to EC 9.6505, subject to the design
being approved by the City Engineer as part of the Privately Engineered Public
Improvement (PEPI) permit process.
Final Order- Deerbrook PUD (PDT 12-1) December 17, 2012 Page 34
37
15. Prior to final subdivision approval, the applicant will be required to obtain a "LetterAPP-36
Water Availability" from EWEB, which typically involves the design approval and
improvement bonding with EWEB.
16. The final PUD plans and final subdivision plat shall note the following requirement: "At the
time of development, each lot shall have its own filtration stormwater management system
(e.g. flow-through planter) that is sized to meet the applicable stormwater development
standards beginning at EC 9.6791, including Flow Control. Each lot owner will be
responsible for maintaining its stormwater management system consistent with EC 9.6797
Stormwater Operation and Maintenance."
17. During the PEPI permit process, the public stormwater system shall include City-approved
proprietary stormwater treatment technology that meets the requirements of EC 9.6792
Stormwater Pollution Reduction.
18. The final PUD plans shall state that the development will occur in accordance with the
geotechnical recommendations provided in the GeoScience, Inc. report dated February 4, 2007.
19. The final PUD plans shall be revised to note that fencing is not allowed on the perimeter of the
PUD or within the required 30' landscape buffer under the provisions of EC 9.8325(3) and EC
9.6210(7).
The foregoing findings and conclusions are adopted as the Final Order of the Eugene Planning
Commission f r Deerbrook PUD (PDT 12-1), on this 17th day of December, 2012.
Randall S. Hledik, Chair
Eugene Planning Commission
Final Order - Deerbrook PUD (PDT 12-1) December 17, 2012 Page 35
38
APP-37
DECISION OF THE HEARING OFFICIAL
FOR THE CITY OF EUGENE, OREGON
PLANNED UNIT DEVELOPMENT AND CONDITIONAL USE PERMIT
PDT 12-1
Application File Name (Number):
Deerbrook PUD. (PDT 12-01)
Applicant's Request:
Tentative Planned Unit Development approval for 75 single-family residential lots
Applicant/Owner:
Martin and Leslie Beverly, West Creek LLC and South Park Associates LLC
Applicant's Representative:
Carol Schirmer, Schirmer Satre Group, Phone: (541)-686-4540
Lead City Staff:
Becky Taylor, Associate Planner, Eugene Planning Division, Phone: (S41) 682-5437
Subject Property/Location:
Tax Lots 101, 300, and 302 of Assessor's Map 18-03-20-21, 26.22 acres located on West
Amazon Drive and zoned R-1/PD/WR Low-Density Residential with Planned Unit.
Development and Water Resources overlay zones.
Relevant Dates: application submitted on March 19, 2012; revised application materials
submitted and forced complete on May 11, 2012; public hearing held on August 1, 2012.
Summary of the Public Hearing:
The hearings official held a public hearing on this application on August 1, 2012. The hearings
official stated he had no conflicts of interests and no ex parte communications. The hearings
official noted that there were numerous people who wanted to testify and thus would limit oral
testimony to three minutes each. The hearings official stated that there would be an open
record period so interested people could submit written comment, The hearings official also
encouraged those who wished to speak in oppostion to the application to consider
consolidating their time to one or two people who would speak for a, longer period of time. No
person raised concern about the hearings official having ex parte communications or conflicts,
and no person objected to the hearings official conducting the hearing in the manner explained.
Becky Taylor, Associate Planner, Steve Ochs, Associate Planner, and Gabe Flock, Senior Planner,
were present and spoke for the city. Initially, city staff recommended the application complied
Hearing Official Decision (PDT 10-2, CU 11-1)
454
APP-38
with the approval criteria for a planned unit development/needed housing application based on
the applicant's alternative site plan and other supplemental materials for the hearing. The
hearings official asked a few questions about the site plan, but suggested that the applicant,
staff, and others might answer then during their presentations rather than at the moment.
Rick Satre, Schirmer Satre Group, presented the application for the applicant. Mr. Satre stated
that the applicant accepted the supplemental staff report but clarified that the applicant
intended the alternative site plan as an alternative, not a revised site plan. The applicant
requested the hearings official evaluate the original site plan, but that if the hearings official
could not approve the original site plan, then the hearings official should consider the
alternative site plan. The hearings official does not understand the applicant's message.
Regardless of whether the alternative site plan is an alterantive or a revision, it is very different
than the original site plan. The hearings official better understands the alternative site plan as
simply illustrative of how the applicant could comply with the conditions of approval
recommended in the original (June 2012) staff report. Ed McMahon, Executive Director of the
Homebuilders Association of Lane County also spoke in favor of the application.
Sandra Bond had a general question about whether the record would be left open for
submission of evidence and comments after the hearing. The hearings official stated that it
would and he would. discuss the open record periods after the oral testimony.
Theresa O'Caer, Tom Halferty, Joy Gall, Georganne Pasnick, Niki Harris, and Madrona Holden
testified in opposition to the application. Thirteen other people, Louise Hayes, Elizabeth Smith,
Lora Byxbe, Xochitl Hernande, Kathy Ging, Emily Fox, Sandra Bond, Alicia McGraw, Marcus
Lanskey, Lori Singels, Heather Sielick, Kent Anderson, and Elaine Weiss, consolidated their time
with Dan Snyder, Law Office of Charles M. Tebbitt, PC and Kevin Matthews, President of SE
Neighborhood Association, both representing the neighborhood association. The hearings
official allowed Messrs Sndyer and Matthews a total of 45 minutes to speak; they completed
their presentations within that period of time.
Emily Fox also asked whether the hearings official intended to visit the subject property. The
hearings official stated that he has not visited the site and would not visit the site. The hearings
official explained some of the procedural requirements and difficulties and appeal issues
common to matters where there has been a site visits and stated that he would not conduct a .
site visit The Eugene Code does not require the hearings official to conduct a site visit, and the
hearings official invited interested persons to submit photos (with explanation about the
photos).
Becky Taylor answered some questions in response to the hearings official's questions and
testimony, stated that based on the testimony, staff had new concerns about the application
and its compliance with the needed housing criteria, and asked the applicant to provide specific
information during the open record period.
Hearing Official Decision (PDT 10-2, CU 11-1)
455
DECISION OF THE HEARING OFFICIAL
FOR THE CITY OF EUGENE, OREGON
PLANNED UNIT DEVELOPMENT AND CONDITIONAL USE PERMIT
PDT 12-1
Application File Name (Number):
Deerbrook PUD (PDT 12-01)
Applicant's Request:
Tentative Planned Unit Development approval for 75 single-family residential lots
Applicant/Owner:
Martin and Leslie Beverly, West Creek LLC and South Park Associates LLC
Applicant's Representative:
Carol Schirmer, Schirmer Satre Group, Phone: (541) 686-4540
Lead City Staff:
Becky Taylor, Associate Planner, Eugene Planning Division, Phone: (541) 682-5437
Subject Property/Location:
Tax Lots 101, 300, and 302 of Assessor's Map 18-03-20-21, 26.22 acres located on West
Amazon Drive and zoned R-1/PD/WR Low-Density Residential with Planned Unit
Development and Water Resources overlay zones.
Relevant Dates: application submitted on March 19, 2012; revised application materials
submitted and forced complete on May 11, 2012; public hearing held on August 1, 2012.
Summary of the Public Hearing:
The hearings official held a public hearing on this application on August 1, 2012. The hearings
official stated he had no conflicts of interests and no ex parte communications. The hearings
official noted that there were numerous people who wanted to testify and thus would limit oral
testimony to three minutes each. The hearings official stated that there would be an open
record period so interested people could submit written comment. The hearings official also
encouraged those who wished to speak in oppostion to the application to consider
consolidating their time to one or two people who would speak for a longer period of time. No
person raised concern about the hearings official having ex parte communications or conflicts,
and no person objected to the hearings official conducting the hearing in the manner explained.
Becky Taylor, Associate Planner, Steve Ochs, Associate Planner, and Gabe Flock, Senior Planner,
were present and spoke for the city. Initially, city staff recommended the application complied
Hearing Official Decision (PDT 10-2, CU 11-1)
with the approval criteria for a planned unit development/needed housing application based on
the applicant's alternative site plan and other supplemental materials for the hearing. The
hearings official asked a few questions about the site plan, but suggested that the applicant,
staff, and others might answer then during their presentations rather than at the moment.
Rick Satre, Schirmer Satre Group, presented the application for the applicant. Mr. Satre stated
that the applicant accepted the supplemental staff report but clarified that the applicant
intended the alternative site plan as an alternative, not a revised site plan. The applicant
requested the hearings official evaluate the original site plan, but that if the hearings official
could not approve the original site plan, then the hearings official should consider the
alternative site plan. The hearings official does not understand the applicant's message.
Regardless of whether the alternative site plan is an alterantive or a revision, it is very different
than the original site plan. The hearings official better understands the alternative site plan as
simply illustrative of how the applicant could comply with the conditions of approval
recommended in the original (June 2012) staff report. Ed McMahon, Executive Director of the
Homebuilders Association of Lane County also spoke in favor of the application.
Sandra Bond had a general question about whether the record would be left open for
submission of evidence and comments after the hearing. The hearings official stated that it
would and he would discuss the open record periods after the oral testimony.
Theresa O'Caer, Tom Halferty, Joy Gall, Georganne Pasnick, Niki Harris, and Madrona Holden
testified in opposition to the application. Thirteen other people, Louise Hayes, Elizabeth Smith,
Lora Byxbe, Xochitl Hernande, Kathy Ging, Emily Fox, Sandra Bond, Alicia McGraw, Marcus
Lanskey, Lori Singels, Heather Sielick, Kent Anderson, and Elaine Weiss, consolidated their time
with Dan Snyder, Law Office of Charles M. Tebbitt, PC and Kevin Matthews, President of SE
Neighborhood Association, both representing the neighborhood association. The hearings
official allowed Messrs Sndyer and Matthews a total of 45 minutes to speak; they completed
their presentations within that period of time.
Emily Fox also asked whether the hearings official intended to visit the subject property. The
hearings official stated that he has not visited the site and would not visit the site. The hearings
official explained some of the procedural requirements and difficulties and appeal issues
common to matters where there has been a site visits and stated that he would not conduct a
site visit. The Eugene Code does not require the hearings official to conduct a site visit, and the
hearings official invited interested persons to submit photos (with explanation about the
photos).
Becky Taylor answered some questions in response to the hearings official's questions and
testimony, stated that based on the testimony, staff had new concerns about the application
and its compliance with the needed housing criteria, and asked the applicant to provide specific
information during the open record period.
Hearing Official Decision (PDT 10-2, CU 11-1) 2
In rebuttal, the applicant addressed a few points raised in the testimony and noted that it had a
lot of work to do and would prepare complete responses and new evidence during the open
record period.
There were several requests to hold the record open to allow time for submission of additional
evidence. The hearing official consulted with the applicant, Messrs Snyder and Matthews, and
staff about the amount of time needed to address the testimony and new information
expected. The applicant stated that it would provide a five-week extension of the 120-Day Rule
to allow sufficient time to do its work. The hearings official thus established the following
deadlines: August 22, 2012 for submission of new evidence, September 5, 2012 for submission
of rebuttal, and September 12, 2012 for the applicant's final argument.
On September 6, 2012, Southeast Neighbors submitted an email requesting an extension to the
rebuttal period in order to rebut the evidence the applicant provided during the rebuttal period
provided above. The hearings official issued an order denying the extension of time.
Subsequently, on September 7, 2012, the applicant filed a response to Southeast Neighbor's
request, and on September 11, 2012, Mr. Snyder, representing Southeast Neighbors, submitted
a supplemental response. The applicant then timely submitted its final argument on
September 12.
The hearings official accepts the applicant's September 7, 2012 response into the record
because the applicant submitted that material within the time allowed for the applicant to
submit final argument after all other parties have filed whatever they want to put into the
record. Hence, the hearings official is treating that document as part of the applicant's final
argument. However, Southeast Neighbors clearly filed its September 11, 2012 document after
any time allowed for its to submit new evidence or response to the new evidence (i.e., after the
record had closed to Southeast Neighbors), and specifically in violation of the hearings official's
order denying its request for time to file a supplemental rebuttal.' The hearings official did not
consider Southeast Neighbors' September 11, 2012 submittal.
Except for Southeast Neighbors' September 11, 2012 submittal, the hearings official accepts all
documents and testimony as part of the record.
Documents in the Record Considered by the Hearings Official:
Applicant's Final Argument (Sept. 12, 2012)
Hearings Official's Order Denying South east Neighbor's Request to Reopen the Record (Sept. 7,
2012)
I The hearings official cautions Mr. Snyder to review Oregon RPC 3.1 (and perhaps others)
before filing documents in violation of order prohibiting such a filing. Here, the right to file the
September 11, 2012 had no basis in law. If Southeast Neighbors believed the hearings official's
order was erroneous, an appropriate response would be been a brief follow up letter stating so
and preserving the matter for appeal to the extent the original request for additional time had
not already fully preserved the issue.
Hearing Official Decision (PDT 10-2, CU 11-1) 3
Applicant's Rebuttal Testimony with Exhibits FF through LL (labeled consecutively with the
exhibits attached to application and additional evidence submitted Aug. 22, 2012)
Letter from Dan Snyder (Sept. 5, 2012), representing Southeast Neighborhood Association
Letter from Deborah Noble with Attachments A through D (Aug. 22, 2012)
Letter from Dennis Casady (Aug. 17, 2012)
Letter from Eben Fodor with attached photographs (Aug. 22, 2012)
Letter from Charles Hapner (Aug. 15, 2012)
Email from Ken Neubeck (Aug. 16, 2012)
Email from Kent McIntosh (Aug. 16, 2012)
Email from Elizabeth and Edward Lake (Aug. 14, 2012)
Email from Madronna Holden (Aug. 3, 2012)
Email from Michael Dreiling (Aug., 9, 2012)
Email from Michael Dreiling (Aug., 21, 2012)
Email from John Pfeffer and Brandon Russell (Aug. 14, 2012)
Photo of Amazon Creek, submitted by Kevin Matthews (undated)
Email from Shirley St. Clair (Aug. 22, 2012)
Letter from Lori Singels with Attachments 1 through 7 (Aug. 17, 2012)
Email from Tim Duy (Aug. 21, 2012)
Letter from Tom Halferty (Aug. 22, 2012)
Email from Elaine Weiss, Emily Fox, and Lora Byxbe (Aug. 21, 2012)
Letter from Dan Snyder (Aug. 22, 2012), representing Southeast Neighborhood Association,
with Attachments A through C.
Staff Aug. 22, 2012 Memorandum and Evidence with Attachments 1 through 5 (there are 3
documents labeled Attachment 5)
Applicant's Aug. 22, 2012 Testimony and Evidence with Exhibits S through EE (labeled
consecutively with the exhibits attached to application), and Alternative Site Plans L1.0-
L13.0
Hearing Exhibit A - Package of public testimony received between July 25, 2012 Supplemental
Staff Report and Aug. 1, 2012 hearing (letters from David Saul, Marcus Lanskey, email
thread between Becky Taylor and Kent McIntosh, Rita Miller, Teresa O'Caer, Keith
Fuselier, Josh Barbour, Ross Williamson (Aug. 1, 2012, supplementing June 11
comments), and Shirley St. Clair)
Hearing Exhibit B Letter from Richard M. Satre, representing the applicant
Hearing Exhibit C Letter from Dan Snyder (Aug. 1, 2012), representing Southeast Neighborhood
Association, with Attachments A and B
Supplemental Staff Report with.Alternative Maps (July 2012)
Staff Report with Attachments A through D (June 2012)
Attachment A: Vicinity Map
Attachment B:
Reduced Site Plan
Attachment C:
Staff's slope maps
Attachment D:
Excerpt of Southeast Area Land Capacity Map
June 20, 2012 Letter from Shirley St. Clair
June 18, 2012 Referral comments from Neil Bjorklund, Parks and Open Space Division
June 17, 2012 Email from Keith Sheldon
Hearing Official Decision (PDT 10-2, CU 11-1) 4
June 15, 2012 Referral comments from Ed Haney, Public Works
June 14, 2012 Referral comments from Doug Perry, Fire Marshal
June 11, 2012 Letter from Ross Williamson
June 11, 2012 Letter from Mark Barbour
June 11, 2012 Referral comments from Kristie Brown, Land Use Management
June 4, 2012 Letter from Lisa Gardner, Planning Director
June 4, 2012 Referral comments from Lane Transit District
June 4, 2012 Email from Sarah Kate Istra Winter
May 26, 2012 Email from Judith Shapiro
May 25, 2012 Referral comments from Eugene Water and Electric Board
May 23, 2012 Public Notice of June 28, 2012 public hearing with attached mailing list
May 17, 2012 Email from Carol Schirmer, "forced" completeness confirmation
May 11, 2012 Cover letter from Carol Schirmer with attached Written Statement, Exhibits A
through Q (duplicates of same exhibits listed below), Exhibit R (Rivendell PUD Decision,
Planning Commission PDT 10-1, Oct. 25, 2010), and Site Plans 1-1.0-1-13.0
April 18, 2012 Staff completeness review
March 19, 2012 Cover letter from Carol Schirmer with the following attachments:
Exhibit A ALTA-ACSM Land Title Survey Map
Exhibit B Hearing Official Decision PDT 00-2
Exhibit C Planning Commission Decision PDT 00-2
Exhibit D Staff Report PDT 06-2
Exhibit E City Council Minutes April 18, 2007
Exhibit F Table South Hills Subdivision Platted under new Code October 14, 2011
Exhibit G Email from J. Dedrick to B. Kloos November 21, 2011
Exhibit H Purchase and Sale Agreement September 1999
Exhibit I Agenda Item Summary Council Hearing on Condemnation May 21, 2007
Exhibit J Final Report Amazon Headwaters Acquisition June 12, 2008
Exhibit K Documentation related to Neighborhood Meeting January 10, 2012
Exhibit L Hearing Official Code Interpretation Cl 04-4
Exhibit M DLCD Staff Report Metro Plan Area August 14, 2981
Exhibit N Illustrations of Alternative Methods for Measuring Slope
Exhibit O Letter from GeoScience Inc. February 15, 2012 and Geotechnical
Feasibility Study
Exhibit P Letter from Weber Engineering February 16, 2012 and Stormwater Study
Exhibit Q Excerpt LUBA Record Land Use Code Update LUBA No. 2011-059
March 19, 2012 PUD Application Form
February 3, 2012 Authorization to file land use applications (West Creek /South Park LLC)
February 23, 2012 Letter from Ed McMahon, Home Builders Association
December 20, 2011 Staff response to December 9, 2011 Limited Consultation (LC 11-78)
August 10, 20112 nd Supplemental Title Report
Summary Description of Planned Unit Development Request:
The applicant requests tentative PUD approval for a 75-lot subdivision intended for single-
family housing on 26.22 acres of land located on West Amazon Drive, south of Martin Street.
Hearing Official Decision (PDT 10-2, CU 11-1)
At this point south of Martin Street, West Amazon Drive is an existing unimproved right-of-way
that bisects the site from north to south. The applicant seeks tentative PUD approval via the
Needed Housing criteria, rather than the General criteria. As noted in the following history of
land use applications, the applicant has previously applied for PUD approval for the subject
property, but not under the Needed Housing criteria. The applicant also submitted an
alternative set of Site Plan documents that it requested the hearings official consider if the
hearings official could not approve the original site plan.
Prior Related Land Use Decisions:
(AZ 79-8): Annexation and rezoning. The subject property was annexed to the City of Eugene in
1979, with a concurrent rezoning from AGT Agricultural, Grazing and Timber-Raising District, to
R-1/PD Low-Density Residential with Planned Unit Development overlay.
(PD 98-12): West Creek PUD. This proposal, made under the City's previous land use code, was
for tentative planned unit development approval of a 20-lot, single-family residential
subdivision on Tax Lot 300 of the subject property. The initial staff recommendation was for
denial of the proposal due to a lack of compliance with the PUD approval criteria, particularly
those related to natural resource preservation. The application was withdrawn by the
applicants the day of the scheduled public hearing, on April 7, 1999.
(LA 99-46 and 47): Property line adjustments. These property line adjustments were performed
in conjunction with the city's acquisition of a portion (approximately 13 acres) of Tax Lot 101 of
the subject property for park purposes. The resulting boundary of the subject property is
reflected on site plans for the current PUD application.
(PD 00-2): South Park PUD. This proposal, made under the City's previous land use code, was
for tentative planned unit development of a 57-lot single-family residential subdivision. The
Hearings Official denied this application due to lack of compliance with several PUD criteria.
Issues included the need for additional clustering of development, a reduction of development
impacts to natural resources, commitment to limit impacts of grading, design parameters for
proposed dwellings, and lack of accurate details regarding vegetation preservation and
removal.
(Z_05_-8) City of Eugene: Goal 5 Natural Resources Conservation Project. The City added the /WR
Water Resources Overlay Zone to the subject property on November 4, 2005, as part of a
Statewide Planning Goal 5 implementation project.
(PDT 06-2): Deerbrook PUD. This proposal was for tentative planned unit development of an 81-
lot single-family residential subdivision under the current land use code, but under the General
(not Needed Housing) criteria. The initial staff report recommended denial for lack of evidence
of compliance with the applicable approval criteria. The applicant withdrew the application
prior to the public hearing.
Application Requirements:
Hearing Official Decision (PDT 10-2, CU 11-1)
EC 9.8305 Applicability. PUD approval is required for the proposed development because the
property is zoned with a /PD overlay and because the property has site slopes that exceed 20
percent, between an elevation range of 500 and 701 feet, within the boundary of the South
Hills Study. With regard to the /WR Water Resources overlay zone, the applicant states that
Standards Review approval will be sought at a later date.
EC 9.8310 General Application Requirements. With regard to the ownership requirements of EC
9.8310(1), the applicant states that the property west of the West Amazon Drive right-of-way is
owned by South Park Associates, LLC and the property east of the right-of-way is owned by
West Creek LLC. The applicants, Martin and Leslie Beverly, manage both LLC's. With regard to
the project coordinator and professional design team requirements of EC 9.8310(2), the
applicant's written statement requests a waiver of the professional design team requirements.
EC 9.8310(2)(b) enables the Planning Director to waive any of the professionals listed in this
section. Since the relevant approval criteria do not include an evaluation of vegetation, the
Planning Director waived the requirement for an arborist. The applicant has not provided, and
is not required to provide, conceptual building designs; therefore, the Planning Director also
waived the requirement for an architect. The applicant's plans have not been certified by a civil
engineer; however, the applicant has submitted a letter regarding the proposed development
from Doug Weber, a registered civil engineer. The project team does not appear to include a
land surveyor, although survey information has been submitted (as Exhibit A of the application
materials). The project coordinator is a landscape architect, Carol Schirmer. Although not
required by EC 9.8310(2), the applicant's professional team also includes Bill Kloos, Land Use
Attorney. With regard to the phasing requirements at EC 9.8310(3), the application materials
indicate that the proposed development will occur as a single phase. The density requirements
of EC 9.8310(4) are addressed under the relevant approval criteria later in this report. Finally,
with regard to the Needed Housing provision at EC 9.8310(5), the applicant is seeking approval
under the Needed Housing criteria, rather than the General criteria.
Application Referrals and Public Notice:
The application materials confirm compliance with the requirements of EC 9.7005 Pre-
application Conference and EC 9.7007 Neighborhood/Applicant Meetings, which were held on
December 8, 2011 and January 10, 2012, respectively. Staff clarified the applicant's meeting
notes of the pre-application conference in a letter dated December 20, 2011, which is included
in the record.
The applicant filed the application on March 19, 2012, consistent with EC 9.7010 Application
Filing and staff conducted a completeness review of the application materials in accordance
with EC 9.7015 Application Completeness Review. The staff completeness review comments,
dated April 18, 2012, are included in the record. The applicant submitted revised application
materials and exercised its statutory right to require the City to deem the application complete
on May 11, 2012.
The Eugene Planning Division provided information concerning this tentative PUD application to
other appropriate City departments, public agencies, and service providers. Relevant referral
Hearing Official Decision (PDT 10-2, CU 11-1) 7
comments are incorporated into the following evaluation. The Eugene Planning Division mailed
and posted written notice for the June 28, 2012 public hearing, on May 23, 2012, in accordance
with the applicable code requirements at EC 9.7315.
The staff report discussed comments received prior to the staff report. The hearings official
considered that evidence, but does not reprint that discussion here.
Evaluation of the Planned Unit Development/Needed Housing Criteria:
EC 9.8325(11: The applicant has demonstrated that the proposed housing is needed housing
as defined by State statutes.
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 197475 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 Draft Supply and Demand
Technical Analysis (February 1999) and Eugene-Springfield Metropolitan Area Residential Lands
and Housing Study Draft Site Inventory Document (1999). 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 first page of the applicant's written statement confirms that
their request is for "tentative PUD approval for an intended 75-lot subdivision for single family
housing," which is identified as needed housing within the ESRLS and at ORS 197.303(1)(a),
Hearing Official Decision (PDT 10-2, CU 11-1)
consistent with this criterion. Staff recommended that no further analysis of the proposed
housing type is necessary to demonstrate that the proposed housing falls within a needed
housing category and therefore the proposal is allowable for the proposed application to be
reviewed under the needed housing criteria rather than the general criteria.
Ross Williamson's written comment (June 11, 2012) and Southeast Neighbors' written
testimony submitted at the hearing (August 1, 2012) both noted that the definition of "Needed
Housing" in ORS 197.303(1) includes the phrase "at particular price ranges and rent levels," and
because the Residential Land Study document cited above do not distinguish between price
ranges and rent levels, there is no "needed housing" as defined by state law.
The hearings official notes that the City Attorney's Office explained in a memorandum to the
Mayor and City Council that Springfield and Eugene met their obligations under the needed
housing statutes by adopting the Residential Lands Study documents cited above, and that the
studies are acknowledged. The hearings official notes that the studies do not distinguish
between price ranges and rent levels. No person explained the reason for this to the hearings
official, but the reason is not important because they are acknowledged and the hearings
official must apply them in the form in which they were acknowledged. Here, this means that
the applicant may properly apply for single-family dwellings as "needed housing."
The applicant also noted that the subject property is in the buildable lands inventory; it is
inventoried as Site 8 in subarea 6.
To ensure compliance with EC 9.8325(1), the staff recommended the following condition of
approval:
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
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.
The hearings official concurs that this condition of approval is appropriate. With this condition
of approval, the application complies with EC 9.8325(1).
EC 9.3325(21: 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
Hearing Official Decision (PDT 10-2, CU 11-1) 9
South Hills Study is the applicable refinement plan, which refines the density to a maximum of 5
units per gross acre for the subject area. The applicant's proposal for 75 lots for single-family
development on 26.22 acres of land would result in a density of 2.86 units per acre, which is
well within the parameters of the above approval criterion.
The applicant's "Alternative Site Plan" shows 47 lots on 23.37 acres, which is slightly more than
2 units per acre.
Both the originally proposed and the alternative site plans comply with EC 9.8325(2).
EC 9.8325131: 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).
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. The hearings official concurs that the applicant may rely on existing
landscaping provided that the existing landscaping meets the requirements of EC
9.6710(7)(a)(1) through (5). To ensure that the existing vegetation (and any added landscaping)
meets the 70 percent rule noted above, staff recommended the following condition of
approval:
The final PUD plans shall note the following: "At least 70 percent of the 30-foot
perimeter buffer shall be covered by living plant material in accordance with EC
9.6210(7)(a)(5)."
This recommended condition addresses only one of the five criteria. The hearings official will
modify this condition of approval to be clear that the buffer must meet all of the requirements
of EC 9.6710(7)(a)(1) through (5):
The final PUD plans shall note the following: "The 30-foot perimeter buffer shall comply
with EC 9.6210(7)(a)(1) through (5). The applicant may use existing vegetation to meet
these requirements. The applicant shall show on its landscaping plan existing
vegetation that it intends to reply on to comply with these requirements and proposed
new landscaping that it intends to add to comply with these requirements."
Mr. Williamson and Southeast Neighbors both argue that EC 9.6710(7) does not permit a fence
along the perimeter of the subject property. Essentially, they argue that this criterion required
a buffer area between the proposed development and surrounding properties, and that a
perimeter fence, which is not one of the required materials listed in EC 9.6710(7)(a), would by
its very nature, not allow the buffer zone to exist between the development and surrounding
properties because the fence would exist between the buffer area and the surrounding
Hearing Official Decision (PDT 10-2, CU 11-1) 10
properties, and the fence (not the landscaping) would be along the perimeter. The staff report
noted that the fence is not clearly inconsistent with the approval criteria, so long as it does not
interfere with the applicant's provision of the required vegetative cover. The applicant agreed
to remove the perimeter fence if the hearings official concluded that the fence would not be
permissible.
The hearings official believes that the text of this criterion does not require Messrs. Williamson
and Snyder's proposed interpretation. This provision specifies a landscaped area between the
proposed PUD and surrounding properties, and along, but not "on" the perimeter. Here, where
the applicant is proposing a 30-foot landscaped buffer up to the fence and the fence is on the
perimeter, the landscaped buffer is "between the proposed development and surrounding
properties" and is "along the perimeter." Further, EC 9.6210(7)(a) lists, "Required Materials"
for the landscaped area, but does not purport to exclude all other materials. For example, EC
9.6210(7)(a) does not use the phrase, "Allowable Materials," which would suggest a list of only
those materials allowed.
With regard to uses allowed in the buffer, the applicant proposes to install underground
utilities within the buffer area and fencing along the outer edge of the buffer, on the subject
property boundary. Staff recommended that underground utilities would not interfere with the
required buffer between the development and surrounding properties; with the approval
condition recommended above, vegetation disturbed by underground utility installation will
require replanting as necessary to meet the above approval criterion.
In a decision on a Code Interpretation application (CI 04-4), the Hearings Official confirmed that
a street may not be placed within the 30-foot buffer area. For this reason, the applicant's plan
shows street extensions in the direction of adjacent lands and in alignment with planned streets
(i.e., Senger Lane and St. Clair Lane). Because these will be public streets, the applicant will
need to dedicate right-of-way for these streets to be extended to the edge of the site, within
the buffer. Dedication of right-of-way will not disrupt the required buffer area.
A condition of approval is appropriate to ensure the dedication:
The applicant shall dedicate the right-of-way necessary to connect Senger Lane and St.
Clair Lane to adjoining properties. The applicant shall show the dedication on the final
PUD plans.
Additional findings and recommended conditions of approval regarding street connectivity are
provided below at EC 9.8325(6)(a).
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...
The site is traversed by three segments of Amazon Creek, as shown on the applicant's plans,
which are protected Goal 5 water resources (Site E37). Therefore, the site is subject to the /WR
Hearing Official Decision (PDT 10-2, CU 11-1) 11
Water Resources overlay zone. These streams cross under Martin Street, to the north, where
they merge into a single stream (Amazon Creek), which is the receiving drainage channel for the
Amazon basin that flows as an open system through the City's urban core to Fern Ridge
Reservoir, west of the City's urban growth boundary. In addition, as discussed below in the
findings for EC 9.8325(7) and EC 9.6710(6), an earlier Goal 5 Natural Resources adopted
inventory (1978) designates the entire site as a Scenic Area. Therefore, the entire site is an area
included on the City's acknowledged Goal 5 inventory. As such, this approval criterion does not
apply.
EC 9.8325(5): There shall be no proposed grading on portions of the development site that
meet or exceed 20% slope.
To start, the existing West Amazon Drive is not included in the "development site," which is a
term defined in EC 9.0500 as follows: "A tract of land under common ownership or control,
either undivided or consisting of two or more contiguous lots of record. For the purpose of land
use applications, development site shall also include property under common ownership or
control that is bisected by a street or alley." As such, the existing West Amazon Drive right-of-
way is not subject to this approval criterion.
The applicant's original plan (Sheet L6.0) provided slope calculations based on the difference in
elevation between two points located on the opposite boundaries of the subject property, and
for each side of West Amazon Drive. These calculations indicate that the property slopes range
between .5 and 15.2 percent because they do not account for any hills or valleys within the site.
This manner of calculating slope (spanning of the development site) does not give full meaning
to language of the approval criterion regarding the reference to "portions of the development
site." The staff report noted that staff informed the applicant prior to and in a letter to
applicant dated December 12, 2011 that the correct way to determine slope is prescribed by
the City's application form, which requires contours to be delineated at five-foot intervals.
The applicant, in its written statement, hearing testimony, and post-hearing testimony, also
asserts that this criterion (EC 9.8325(5)) requires the city to exercise discretion and cannot be
applied as a clear and objective standard, as required for a "needed housing" development,
because it does not set out the prescribed unit of measurement for determining slope.
However, the Land Use Board of Appeals rejected this exact argument, about this exact
criterion (EC 9.8325(5)) in Home Builders v. City of Eugene, 41 Or LUBA 370, 410-411 (2002).
LUBA stated, "the slope of a property is an objective determinable fact, and the absence of
instructions on how to determine slope does not offend [the needed housing statute]."
The applicant argues that there are four methodologies for measuring slope posited to date
(Applicant's Testimony, Aug. 22, 2012). The hearings official disagrees. Despite the staff
informing the applicant to measure slope using the five-foot contours on the application maps,
the applicant chose to ignore that advice and measure slope over the entire site. After the
hearing, the applicant then proposed to use yet a different map-the USGS topo map in the
refinement plan. USGS topos have 40-foot contours. Just because the applicant disagrees with
Hearing Official Decision (PDT 10-2, CU 11-1) 12
the instruction to use the five-foot intervals (and tried to use other methods), does not mean
that the 20% rule here is not clear and objective. Similarly, there is no methodological
difference between how staff measured slope and how Mr. Matthews (for Southeast
Neighbors) measured slope-As explained below, both used the five-foot contour maps and
both used a 25-foot measuring tool. Where the measuring tool touched two contour lines, the
slope equals or exceeds 20 percent.
Staff evaluated the slope between the five-foot contour intervals, as shown on sheets L2.0 and
L3.0 of the applicant's plans, and concluded that site slopes exceed 20 percent in several
locations. Staff highlighted those areas on Attachment C to the original staff report. The
original staff report described the lots and portions of the subject property that staff evaluated
as unbuildable due to this criterion. The supplemental staff report noted that the applicant's
alternative site plan addressed the concerns raised in the original staff report, including
evaluating the slope in 5-foot increments. The site plan and other PUD drawings that the
applicant submitted on August 22, 2012 are consistent with the alternative site plan that the
staff evaluated in the supplemental staff report.
Southeast Neighbors provided testimony and evidence about the areas on the development
site that exceeded 20 percent slopes. Southeast Neighbors' expert, Kevin Matthews, Artifice,
Inc., testified that staff's approach to measuring slope was a good approach, but that a slight
change would result in a more accurate measurement. Mr. Matthews demonstrated how using
a 25-foot diameter circle (at scale, of course) rather than a 25-foot square (again, at scale)
would ensure the most accurate measurement. In short, this is because if the square become
skewed (such that it measures in a diamond shape rather than a square shape), it could capture
areas that are less than 20 percent slope, or miss areas that are 20 percent slope or greater.
Using a 25-foot diameter circle eliminates the problem of skewing the measuring tool because
it is not possible to skew a circle.
Mr. Matthews also did his analysis using computer software, but not mapping or design
software such as GIS or CAD, rather than by hand. See Letter from Kevin Matthews to Charlie
Tebbut (Aug. 20, 2012). It is not clear to the hearings official whether the software resulted in
more accurate information, but the hearings official believes that the circular shape of the
measuring tool did provide more accurate information.
Mr. Matthews' map shows that staff's approach was remarkably accurate. Mr. Matthews' map
shows only a few large areas not included on staff's map, but all of those are outside of the
specific spots shown for development. Additionally, Mr. Matthews's map shows slight
increases in the size of areas that staff had marked as slopes of 20 percent or greater. The
hearings official believes that substantial evidence in whole record shows that staff's and Mr.
Matthews' maps accurately measured slope, but that Mr. Matthews' map provides slightly
most accurate information of slopes equal to or greater than 20 percent. His approach is
essentially identical to the staff's approach, except for the shape of the measure tool, so the
hearings official concludes that Mr. Matthews' map shows the areas that the applicant must
avoid pursuant to this criterion.
Hearing Official Decision (PDT 10-2, CU 11-1) 13
Mr. Matthews' map shows areas of the proposed PUD affected by this 20 percent restriction
that, curiously, the applicant did not discuss in its rebuttal evidence. Instead, the applicant
focused solely upon the methodology. Thus, the applicant had the opportunity, but did not
take advantage of that opportunity, to explain how the PUD could be approved in its current
form or modified to still be approvable in response to Mr. Matthews' map. There are several
particular problem spots. First, the Senger Lane/West Amazon Drive intersection would need
to be moved north or south to avoid the mapped area. Moving Senger Lane does not appear to
conflict with the development potential of any lot, but the original staff report noted that the
applicant placed Senger Lane within the Public utility easement, so moving Senger Lane might
affect the buildability of lots taking access from Senger Lane. Additionally, West Morning Drive
must not be offset from Senger Lane (this is one of the conditions of approval that staff
recommended in its original staff report); correspondingly moving West Morning Drive to the
south might make lots 32 and 33 undevelopable, and moving West Morning Drive to the north
might make lots 26 and 27 undevelopable. Second, the entirety of the driveway to lots 14 and
15 is mapped as having a slope of 20% or greater. This driveway cannot reasonably be moved
south because of slope. It would need to be moved north, but doing so might makes lots 15
and 16 undevelopable. Third, lots 17 and 18 have much more area mapped as 20 percent or
greater slope, and may not be developable. Finally, the St. Clair Lane/West Amazon Drive
intersection would need to be moved.
Given all of these moving parts and how one seemingly minor change could resulting in several
downstream changes to the site plan, the hearings official is uncomfortable concluding that this
application could comply with this criterion with a condition of approval requiring the applicant
to make necessary modifications. There are too many design decisions that the applicant must
make for the hearings official to envision what the PUD would look like. For example the
hearings official cannot determine the implications of moving Senger Lane out of the existing
public utility easement, and what the lot configuration would be at the west end of Daylight
Drive and at the east end of West Morning Drive.
Considering all of the evidence in the record, the applicant's original 75-lot proposal does not
comply with this criterion. The hearings official adopts the findings and conclusions in the staff
report as the findings and conclusions to support this conclusion.
Considering all of the evidence in the record, the applicant's alternative 47-lot proposal also
does not comply with this criterion. The apparent problem areas are small areas, but because
the applicant did not respond to Mr. Matthews evidence, the hearings official has no evidence
to evaluate whether these problem areas are be fatal to the overall PUD. The site plan may
very well be able to comply with this criterion with some minor changes; the current record just
does not support that conclusion.
There is not evidence in the record demonstrating that the application complies with this
criterion.
Hearing Official Decision (PDT 10-2, CU 11-1) 14
EC 9.8325(6): The PUD provides safe and adequate transportation systems through
compliance with all of the following:
The hearings official adopts the findings and conclusions in the staff report for the applicant's
75-lot proposal. Except where specifically noted, this section evaluates the applicant's
alternative 47-lot proposal.
(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).
The proposed development includes the improvement of West Amazon Drive and Canyon Drive
through the subject property to connect to existing rights-of-way. With regard to other streets
to be extended through the development site to adjacent lands, the applicant proposes a street
stub to the northwest, St. Clair Lane, to the southwest, Senger Lane, and to the south, Canyon
Drive. Within the development site, the applicant proposes three private streets, Daylight
Drive, West Morning Drive, and East Morning Drive, designed to give private access to adjacent
lots and terminate in hammerhead turnarounds.
Based on the previous findings at EC 9.8325(5), regarding the approval criterion that "there
shall be no proposed grading on portions of the development site that meet or exceed 20
percent slope," None of the proposed streets, except Canyon Drive, can be constructed in the
locations proposed by the applicant in compliance with EC 9.8325(5). Based on the previous
findings and conditions at EC 9.8325(3), regarding the required "buffer area between the
proposed development and surrounding properties," the critical street connections of St. Clair
Lane and Senger Lane stop short of the property boundary, but can be extended in the future,
as discussed in the following evaluation. The hearings official presumes that these buffer areas
can be provided even if those streets are relocated to comply with the 20 percent standard.
The buffer requirements and grading restrictions of EC 9.8325(3) and (5) present physical
conditions that warrant exceptions to the block length standards at EC 9.6810(1) and the street
connectivity standards at EC 9.6815(2)(g)(2). An evaluation of these streets against the
applicable standards at EC 9.6800 through EC 9.6785 is provided below.
West Amazon Drive
The applicant proposes to improve the existing West Amazon Drive right-of-way, which bisects
the development site, to public street standards, from the south boundary of the development
site to its intersection with Martin Street. West Amazon Drive south of the southern property
boundary is not developed to current design standards, with respect to paving and sidewalks,
but it does have a drivable surface. Since traffic to and from the proposed development is
primarily expected to travel north of the development site, toward the urban core,
improvement of West Amazon Drive south of the subject property is not required. Sheet L8 of
the applicant's plans show the West Amazon design as having a 20-foot paved travel lane, with
setback sidewalks on both sides of the street, within the existing 60 feet of right-of-way. The
applicant's plans show a proposed 50 feet of right-of-way within the existing 60 feet of right-of-
way, although there is no information about the intent for the balance of the additional 10 feet
Hearing Official Decision (PDT 10-2, CU 11-1) 15
of right-of-way. Staff noted in the staff report that this area would likely be needed to
accommodate the construction of 2:1 side slopes for the transition of cuts and fills with existing
grades, as discussed in greater detail below.
EC 9.6805 Dedication of Public Ways and EC 9.6870 Street Width prescribe a pavement width
between 20 and 34 feet within 50 to 60 feet of right-of-way for Medium Volume Residential
streets, which is the anticipated street classification; this segment of West Amazon Drive is not
identified on the adopted EC 9.6850 Street Classification Map. The applicant's plans show the
narrowest pavement width, which the city's code supports, in order to minimize grading. Staff
recommended the street improvements be constructed offset from the existing right-of-way
centerline at the northwest property corner, away from and to reduce impacts to the adjacent
waterway. The adopted street design standards also allow an exception to providing sidewalks
on both sides of the street to minimize impacts to the natural environment and to respond to
topographical constraints. Physical conditions warranting an exception exist in this case, as
West Amazon Drive includes segments with 15 percent grades, the City's maximum street
grade, and would involve two crossings of the Goal 5 Amazon Headwater stream. With regard
to EC 9.6873 Slope Easements, the applicant's plans note that a 2:1 shoulder will be provided
within the existing right-of-way to match existing grade at the outer edges of the sidewalk,
however no grading profiles are provided to determine whether slope easements are needed
beyond the right-of-way. Further, these improvements within the regulated resource area
require Standards Review approval, pursuant to EC 9.4930(3), which the applicant intends to
obtain at a later date. The staff recommended that that applicant has demonstrated that the
application can feasibly comply with Standards Review criteria with the following conditions of
approval:
The final PUD plans shall note the following restrictions regarding areas with slopes that
meet or exceed 20 percent: "Areas identified as having 20 percent slopes shall not be
graded, pursuant to EC 9.8325(5). Construction site management shall include
protective fencing of these areas. Utilities in these locations will need to be installed
without grading, such as with boring or other construction technique."
The final PUD site plans shall show cut and fill slopes associated with the street
improvements and shall delineate public slope easements for those slopes that fall
outside of the right-of-way. Slope easements will be more precisely determined during
the PEPI permit process and on the plat.
Prior to final PUD approval, the applicant shall obtain /WR Standards Review approval
for all public improvements, utility and access crossings proposed in the conservation
areas.
For the purpose of this provision, if the applicant can successfully adjust the proposed streets to
address EC 9.8325(5), then the hearings official concurs with the staff's recommendation;
however, the applicant has not yet demonstrated that can adjust the proposed streets to
comply with EC 9.8325(5).
Hearing Official Decision (PDT 10-2, CU 11-1) 16
Canyon Drive
The applicant proposes to extend Canyon Drive, where the existing right-of-way terminates at
the south property boundary, for a connection with West Amazon Drive. Canyon Drive complies
with the slope restrictions in EC 9.8325(5); and the applicant's alternative site plan shows a
hammerhead turnaround as required by EC 9.6820 Cul-de-Sacs or Emergency Vehicle
Turnaround, and the applicant shows a proposed future street connection pursuant to EC
9.6815(2)(b) Street Connectivity Standards.
The applicant notes that Canyon Drive would be a low volume residential street, which is
required by EC 9.6870 Street Width to have between 20 and 28 feet of pavement width
between 45 and 55 feet of right-of-way width. Sheet L8 of the applicant's plans show the
Canyon Drive design as having a 21-foot paved travel lane, with setback sidewalks on one side
of the street, within 25 feet of right-of-way. Consistent with the recommendation for Senger
Lane below, the applicant should reduce the paved travel Lane to 20 feet to minimize cut and
fill slope and impacts to the adjacent waterway. The proposed intersection of Canyon Drive
and West Amazon Drive occurs over the middle stream, which is a Goal 5 protected water
resource that requires Standards Review approval for public improvement crossings. The
following condition of approval in addition to the ones about would address these issues:
The final PUD site plans shall show Canyon Drive as: having 20 feet of pavement width
with curbside sidewalks, within 45 feet of right-of-way. The public improvements shall
be constructed as part of the Privately-Engineered Public Improvement (PEPI) permit
process.
Senger Lane
The applicant proposes to extend Senger Lane, from West Amazon Drive to the southwest
property corner. The applicant has aligned Senger Lane to overlap the existing public utility
easement that runs through the property and contains underground public wastewater
infrastructure; however, as noted above, this location will need to change to comply with EC
9.8325(5). Senger Lane is also located outside the /WR protected resource area. The street
improvements stop short of the property boundary, so as to not interrupt the perimeter buffer
area required by EC 9.8325(3). Senger Lane, in the configuration currently shown, can be
extended to adjacent lands consistent with the Street Connectivity Standards at EC 9.6815(2).
The terminus of Senger Lane shows a 30-foot wide reserve strip within the buffer area as
provided by EC 9.6840 Reserve Strip. When adjacent lands need the street connection to
further develop and dedicate their portion of Senger Lane, the reserve strip area would no
longer be required to buffer adjacent properties. As a street that terminates, but is expected to
be extended in the future, the applicant proposes a temporary turnaround, consistent with EC
9.6820 Cul-de-Sacs or Emergency Vehicle Turnarounds.
Senger Lane is ultimately expected to function as a Low-Volume Residential street, which is
required by EC 9.6870 Street Width to have between 20 and 28 feet of pavement width within
45 to 55 feet of right-of-way. Sheet L8 of the applicant's plans show the Senger Lane design as
Hearing Official Decision (PDT 10-2, CU 11-1) 17
having a 21-foot paved travel lane, with setback sidewalks on one side of the street, within 45
feet of right-of-way. Staff recommended the minimum paving (20 feet); right-of-way (45 feet)
width; and curbside sidewalks on only one side of the street (the east side of the street,
adjacent to the residential lots and away from the westerly waterway), in order to minimize cut
and fill slope and impacts to the adjacent waterway. The following condition of approval in
addition to the ones about would address these issues:
® The final PUD site plans shall show Senger Lane as: having 20 feet of pavement width
with curbside sidewalks on the east side of the street only, within 45 feet of right-of-
way; and terminating in a hammerhead turnaround, as proposed, within a temporary
public easement. The public improvements shall be constructed as part of the Privately-
Engineered Public Improvement (PEPI) permit process.
St. Clair Lane
The applicant's plans show a "planned connection" of St. Clair Lane between West Amazon
Drive and the northwest property corner. The adjacent landowner, Ms. St. Clair, has made
several inquiries to staff, to ensure that this street connection is provided to her property. The
applicant does not explicitly propose right-of-way dedication or street improvements. It is also
noted that the street extension cannot be provided through the 30-foot perimeter vegetated
buffer, required by EC 9.8325(3) at this point. When St. Clair Lane is extended in the future, it is
anticipated to function as a Low-Volume Residential street, which is required by EC 9.6870
Street Width to have between 20 and 28 feet of pavement width within 45 to 55 feet of right-
of-way.
To ensure that St. Clair Lane can be extended to adjacent lands consistent with the Street
Connectivity Standards at EC 9.6815(2), the following would be needed: a 45 feet of right-of-
way between West Amazon Drive and the 30-foot perimeter buffer; and a 30- by 45-foot
reserve strip within the buffer area at the terminus of St. Clair Lane. As provided by EC 9.6840
Reserve Strip, dedication of a reserve strip would enable the City to control access to a street
until it is necessary to provide access to adjacent lands. When adjacent lands need the street
connection to further develop and dedicate their portion of St. Clair Lane, the reserve strip area
would no longer be required to buffer adjacent properties. The applicant's alternative site plan
shows St. Clair Lane in compliance with these requirements.
Daylight Drive, West Morning Drive, and East Morning Drive
These are private streets proposed within the development that terminate in hammerhead
turnarounds. Based on the previous findings and recommended conditions at EC 9.8325(5),
regarding the approval criterion the locations of these streets will need to be adjusted to
comply with the 20 percent restriction. Assuming they can be adjusted in compliance with EC
9.8325(5), then EC 9.6875 Private Street Design Standards requires that when private streets
are permitted under EC 9.6815(2), they shall be designed and constructed in accordance with
applicable requirements contained in the adopted "Design Standards and Guidelines for Eugene
Streets, Sidewalks, Bikeways and Accessways."
Hearing Official Decision (PDT 10-2, CU 11-1) 18
EC 9.6815(2) Street Connectivity Standards requires all streets to be public unless the developer
demonstrates that a public street is not necessary for compliance with this land use or the
street connectivity standards of subparagraphs (b) through (f). The street connectivity
standards have been addressed above, including conditions of approval to enable the future
extension of streets through the perimeter vegetated buffer, and an exception to these
standards based on topographical constraints established by the "needed housing" approval
criterion EC 9.8325(5), which prohibits grading on portions of the development site that meet
or exceed 20% slope. Staff recommended that the street connectivity standards are met. The
application is not clear as to whether the applicant proposes to dedicate some of the rights-of-
way addressed above.
There appears to be no other adjacent lands that necessitate a street extension through the
subject property. Mr. Chilton's property, abutting the west boundary of the subject property,
south of Ms. St. Clair's property, received tentative partition approval (PT 05-21 and PF 05-47)
that relied on a local street connection study that showed the topography between his property
and the subject property as being too steep for a street connection. Therefore, the private
streets proposed are acceptable in the context of EC 9.6815(2).
The applicant noted that EC 9.6815(2)(e) is specific to "needed housing" applications as follows:
"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." Two other requirements applicable to Needed
Housing effectively accomplish the same end. EC 9.8325(5) prohibits grading on portions of the
development site that meet or exceed 20% slope, which minimizes excavation, and the /WR
Water Resources overlay zoning of the subject property requires Standards Review approval for
the street crossings of the Goal 5 protected water resources.
With regard to the applicable requirements contained in the adopted "Design Standards and
Guidelines for Eugene Streets, Sidewalks, Bikeways and Accessways," available information
indicates that the proposed private streets meet the intersection configuration, centerline
radius, grade, width, alignment, and sidewalk standards. The remaining applicable standards
can be met with the following recommended condition of approval:
The final PUD plans shall note the following: "The structural design and construction
inspection for private streets and alleys shall remain the developer's responsibility."
Prior to final subdivision approval, the applicant shall submit certification by a licensed
engineer that the structural design of the proposed private streets meets the applicable
public design standards.
Finally, the proposed street names are required to comply with EC 9.6855 Street Names. Staff
confirms that this requirement will be met during the final subdivision process.
With the above conditions of approval, the application complies with EC 9.8325(6)(a).
Hearing Official Decision (PDT 10-2, CU 11-1) 19
(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.
The proposed street improvements will provide pedestrian and bicycle circulation consistent
with the above approval criterion. Referral comments from staff at Lane Transit District (LTD)
require no additional transit improvements. The application complies with EC 9.8325(6)(b).
(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.
The street layout disperses motor vehicle traffic onto more than one public local street, as all
streets proposed within the development connect with West Amazon Drive, which extends
beyond the development site to the north (connecting with Martin Street) and south
(connecting with Fox Hollow Road). The applicant proposes to improve West Amazon Drive to
provide this traffic dispersal; the PUD proposes no phasing of the development, which means
that the street improvements will be in place prior to development of the lots, rather than on
an incremental basis that would bring the 19-lot rule above into question.
The applicant additionally notes that there are two dispersion points-one to the north, which
sends traffic onto the portion of the Eugene street network leading to the 30th Ave./Hilyard
grid, and one to the south connecting the portion of the Eugene street network comprised of
Fox Hollow/Donald/Willamette Street. The applicant states that the two street networks are
sufficiently separated that if a blockage occurred on one, the other would not be affected. The
hearings official concurs.
Referral comments from Fire & Emergency/Medical Services staff raised concern with Canyon
Drive, but the original staff report noted that removal of this eastern portion of the
development proposal would seem to resolve the Fire Marshal's access concerns.
The application complies with this EC 9.8325(6)(c).
EC 9.8325(71: 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
Hearing Official Decision (PDT 10-2, CU 11-1) 20
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.
The applicant's alternative site plan shows lots 9, 10, 11, 26, 32, and 42 would not comply with
applicable R-1 lot standards at EC 9.2760, with regard to the minimum lot size of 4,500 square
feet. The applicant requests relief from the applicable minimum standards under EC
9.8325(11), for these lots because the purpose of the PUD provisions is to provide a high degree
of flexibility in the design of the site, clustering, and potential environmental impacts.
Applicants Testimony at 13 (Aug. 22, 2012).
A modification is not a clear and objective standard; however, this is not fatal to the
applicability of the modification standards to this needed housing application because in the
Home Builders decision, LUBA concluded that "[t]he city may provide a needed housing
applicant with a choice between meeting a clear and objective standard by complying with its
terms or by obtaining a discretionary variance or adjustment to that standard without
offending ORS 197.307(6)."
The hearings official believes that the applicant has sufficient opportunity on site to comply in
full with the dimensional standards. Here, with the alternative site plan, the applicant
addressed only the purpose of the PUD provision, but not the standards in this criterion For
example, the applicant did not analyze how any the lots listed above, if sized in compliance with
the dimensional standards would have more than 33% of lot occupied by the areas listed in
subsection EC 9.8325(7)(a)1 and 2. Because the applicant must modify the site plan to comply
with EC 9.8325(5), which will require changes to the streets adjacent to the lots listed above,
the hearings official cannot conclude that the lots listed above would ultimately need a
modification. Because development on this site requires careful design to avoid the 20 percent
or greater slopes, the applicant may need to modify fewer or none of these lots, or other lots
not yet listed.
As proposed, the application does not comply with this criterion. The hearings official believes
the applicant can design the PUD without need to modify lot dimensions when making the
changes to comply with EC 9.8325(5) (which may mean fewer lots), but without knowing those
changes, the hearings official cannot determine which lots might need to be modified and
whether a modification is appropriate for each lot.
(b) EC 9.6500 through 9.6505 Public Improvement Standards.
EC 9.6500 Easements
Existing easements on the subject property are illustrated on Exhibit A of the application
materials and are discussed in greater detail below. Public easements are proposed over the
Hearing Official Decision (PDT 10-2, CU 11-1) 21
public wastewater and stormwater extensions that are located outside the street rights-of-way,
as shown on the revised Sheets L11 and L12 of the applicant's plans; these easements and
infrastructure extensions are proposed through the protected /WR resource areas and through
the adjacent City park land. The public infrastructure proposed within the /WR resource areas
requires Standards Review approval, which the applicant did not address as part of the subject
PUD application. The applicant indicated that it intends to seek Standards Review approval at a
later date.
City park staff had stated concerns with the proposed public easement and public infrastructure
through the park land. The alternative site plan resolves any concerns about easements and
infrastructure through park land by eliminating the development on the eastern portion of the
property.
Easements are typically more precisely determined when the public improvement design
details are approved through the PEPI permit process, and then dedicated accordingly as part
of the final subdivision plat process. The location of public infrastructure in this case is
dependent upon approval of a subsequent Standards Review application, in advance of the PEPI
permit and subdivision process.
Acceptance of PUE is conditioned upon the applicant obtaining Standards Review
approval for the proposed /WR resource area impacts and upon the infrastructure
location being more precisely determined during the PEPI permit process. Approved
PUE locations will be considered as part of the final subdivision process.
Staff noted that the "Purchase and Sale Agreement" between South Park Associates, LLC, West
Creek, LLC, Lane County Audubon Society, and the City of Eugene, dated September 3, 1999,
establishes agreements between the parties associated with the City's acquisition of the 44
acres of park land east of the subject property, which were formerly owned by the Beverly's. (A
copy of this agreement is provided as Exhibit H of the applicant's materials.) This agreement
resulted in the following easements:
1.3 Trail Easements. Grant to City an easement over a portion of the area shown on the Site
Drawings as "Parcel H," which easement was reserved to the Seller in that certain Warranty
Deed-Statutory From, Recorded January 13, 1999, Reel 2504R, Instrument No. 99002816, Lane
County Official Records, by which Parcel H was conveyed to Theresa I. Harter subject to an
express reservation of the easement to the Seller for the purpose of conveyance of the
reserved easement to the City.
Parcel H referenced above is outside the bounds of the subject property, abutting the east
boundary of Lots 48 and 49 of the applicant's 74-lot proposal (lots 46 and 47 of the alternative
site plan).
1.4 Exclusive Easement. Grant to City an easement ("Exclusive Use Easement") for the exclusive
possession and use of the portion of the South Park/West Creek Property that is identified on
Hearing Official Decision (PDT 10-2, CU 11-1) 22
the Site Drawings as Parcel E-2, until such time as Seller is prepared to subdivide or otherwise
provide legal access to the portion of the South Park/West Creek Property that is identified on
the Site Drawings as Parcel I. City agrees that, to the extent necessary, it will subordinate its
exclusive easement pursuant to this Section 1.4 to any proposed dedication by Seller of a public
right-of-way or to the installation by Seller of any private right-of-way from West Amazon (a
public street) to Parcel I, provided: (i) that the dedication or installation is made by Seller
pursuant to the City's requirements or conditions of approval with respect to Seller's planned
unit development application or other proposed development for that portion of the South
Park/West Creek Property (and otherwise is in accordance with applicable subdivision or
planned unit development requirements), and (ii) further, that Seller immediately grants and
conveys to the City the fee interest in Parcel E-2 upon completion of the dedication or
installation of the street providing access to Parcel I, subject only to the street right-of-way, the
lien of then current, not delinquent real property taxes, and the permitted Exceptions
described in clause (b) of Section 5 of this Agreement. Until the conditions in the foregoing
clauses (i) and (ii) are met, Seller may not occupy, possess or otherwise use Parcel E-2 other
than in connection with the dedication or installation of access pursuant to the forgoing clause
(i) (and then only with an indemnity of City from any loss, cost, damage or claim arising out of.
Seller's use thereof and only if Seller first provides proof of adequate liability insurance naming
City as an additional insured, if required by City), and City shall otherwise be entitled to the
exclusive occupancy, possession, use and enjoyment of Parcel E-2.
Parcel E-2 referenced above encompasses the triangular portion of Tract A located north of the
proposed intersection of Canyon Drive and Starwood Loop on the applicant's 74-lot PUD plans,
and the adjacent segment of the 60-foot wide "Bridal Trail Easement," to the west. (The Bridal
Trail Easement, which is delineated on the applicant's PUD plans, encumbers the northernmost
boundary of the property, between West Amazon Drive and the west property boundary, and
then continues southward along the west property boundary to the existing Canyon Drive right-
of-way.) Parcel I referenced in the terms of the agreement, above, is the southeast portion of
the development, east of Canyon Drive.
Although the Bridal Trail Easement is identified on the applicant's PUD plans, the Exclusive
Easement described above is not shown. Instead, the applicant's PUD plans identify this
Exclusive Easement area as consisting of: a portion of Tract A, which the applicant designates as
common open space for the PUD; a portion of the Bridal Trail Easement; and a portion of the
Canyon Drive street extension. Per the terms of the agreement, above, this Exclusive Easement
is to be conveyed to the City in fee interest upon the dedication or installation of the street
providing access to Parcel I. However, this section of Canyon Drive cannot be built to the
applicable approval criterion at EC 9.8325(5), which prohibits grading on portions of the
development site that meet or exceed 20% slope. As such, the terms of the agreement above
preserve the Exclusive Easement; therefore, the following condition of approval is
recommended:
The final PUD plans shall show the Exclusive Easement of the September 3, 1999
Purchase and Sale Agreement, including the Bridal Trail Easement.
Hearing Official Decision (PDT 10-2, CU 11-1) 23
Bridal Trail Easement. As described above and shown on the applicant's plan a "Bridal Trail
Easement" encumbers the northernmost boundary of the property, between West Amazon
Drive and the west property boundary, and then continues southward along the west property
boundary to the existing Canyon Drive right-of-way. The terms of the September 3, 1999
Purchase and Sale Agreement ("Agreement") indicate that the Bridal Trail Easement, which is
identified as "Parcel E-4" in the Agreement, will be exchanged for an area identified in the
Agreement as "Parcel E-3," which coincides with the area shown as the portion of Tract A on
the applicant's PUD plans that is south of Senger Lane and Daywood Drive, west of Amazon
Drive, and the area bordered by the proposed Canyon Drive extension, east of Amazon Drive.
The Agreement stipulates that Parcel E-3 must be conveyed free of certain encumbrances and
that, upon conveyance, the City will process (including initiation and payment of related fees)
the easement vacation necessary to release the Bridal Trail Easement on Parcel E-4. The
applicant's plans do not address the terms of this agreement, yet several lots (Lots 45 through
49) intended for residential development are proposed within the Bridal Trail. The above
condition of approval addresses the Bridal Trail Easement.
EC 9.6505 Improvements -Specifications
These standards require all public improvements to be designed and constructed in accordance
with adopted plans and policies, the procedures specified in EC Chapter 7, and the standards
and specifications adopted pursuant to EC Chapter 7. The applicant proposes public
improvements to be privately engineered and constructed. If the application is approved, to
ensure compliance with these standards, the following condition of approval is recommended:
Public improvements shall be constructed pursuant to EC 9.6505, subject to the design
being approved by the City Engineer as part of the Privately Engineered Public
Improvement (PEPI) permit process.
An Engineering and Construction agreement would be required for the private construction of
public improvements, which would need to be submitted when the construction plans are
submitted for review and approval. The configuration and size of the public improvements
would need to be subject to further approval by the City Engineer upon review of the design
and supporting analysis prepared by the applicant's engineer. If the improvements are not
permitted prior to plat approval, a bond for the construction of public improvements would
need to be provided prior to final plat. In addition, these specifications require all
developments to be served by the following infrastructure improvements:
(1) Water
The applicant's written statement responds to this approval criterion as follows: "See plans for
documentation of proposed water service." The applicant's plans show the proposed water
system layout on Sheets L11 and L12. The alignment of the water system roughly coincides with
the proposed wastewater layout, which is described in greater detail below. Many of the same
Hearing Official Decision (PDT 10-2, CU 11-1) 24
issues identified in the wastewater system layout apply to water service, with regard to
crossings of the /WR water resource area and City parkland. Referral comments from Parks and
Open Space (POS) staff object to the proposed utility impacts through the City park land. The
alternative site plan resolves any concerns about utility impacts through park land by
eliminating the development on the eastern portion of the property.
The applicant's August 22, 2012 testimony notes that EWEB submitted a letter dated August 8,
2012 stating that it had no objections provided the applicant met 4 conditions. The applicant
stated that it would meet those conditions. The hearings official, however, found nothing
about water availability, which was a factor that the staff report considered. Therefore, the
following condition of approval is appropriate.
Prior to final subdivision approval, the applicant will be required to obtain a "Letter of
Water Availability" from EWER, which typically involves the design approval and
improvement bonding with EWER.
(2) Sewage
Staff confirms that an eight-inch public wastewater line runs through the western portion of
the site, within an existing public utility easement and within the northerly portion of the
existing West Amazon Drive right-of-way.
The applicant's written statement responds to this approval criterion as follows: "See plans for
documentation of proposed sewer service." Sheet L11 of the applicant's plans shows the
western portion of the site being served from the existing public wastewater system, with
extensions proposed primarily within the streets (West Amazon Drive, Senger Lane, West
Morning Drive, Daylight Drive, and East Morning Drive). The applicant's plans also show
wastewater service being extended within proposed public utility easements (PUE) outside the
rights-of-way, as needed to achieve gravity service (i.e. the back side of Lots 27 through 32 of
the 74-lot site plan). This segment of wastewater pipe cannot be omitted in preference for
those lots to include individual private pumps to the adjacent street, however, because this
same section of the system is also needed to provide wastewater service to the lots on East
Morning Drive (Lots 39 through 49 of the 74-lot site plan). As discussed previously, with regard
to easements, this portion of the public wastewater system proposed outside the streets, south
of West Amazon Drive, also involves crossings of the /WR water resource area. The conditions
recommended above specific to easements would also address these wastewater service
concerns.
(3) Streets and
(4) Sidewalks
The applicant's written statement confirms their intent to comply with these standards: "As
shown on the plans, the applicant proposes to develop West Amazon Drive on the city owned
Hearing Official Decision (PDT 10-2, CU 11-1) 25
right-of-way to the specifications requested by the City" (page 20); and "The applicant proposes
to meet city design standards and paving widths for all streets.
The applicant's plans provide street typical designs on Sheet L8. There are discrepancies
between some of the dimensions provided (e.g. 21 feet of paving with only two travel lanes of
20 feet.) The cross sections also show 2:1 side slopes transitioning with existing grades as
happening outside the right-of-way; such constructed slopes are typically necessary to ensure
the long-term stability of the roadway, which are normally required to be within public slope
easements. These issues and the improvement specifications required above are addressed in
the findings and conditions provided at EC 9.8325(6)(a).
(c) EC 9.6706 Development in Flood Plains through EC 9.6709 Special Flood Hazard Areas -
Standards.
These standards do not apply because the property is not located within either of these
designations.
(d) EC 9.6710(6) Geological and Geotechnical Analysis.
EC 9.6710(6) states, "Needed Housing. Unless exempt under 9.6710(3)(a)-(f), in lieu of
compliance with subsections (2), (4), and (5) of this section, applications proposing needed
housing shall include a certification from an Oregon licensed Engineering Geologist or an
Oregon licensed Civil Engineer with geological experience stating " (emphasis supplied).
EC 9.6710(3) states, "The following activities are exempt from the requirements of this section:
(f) activities on land included on the city's acknowledged Goal 5 inventory.
The Goal 5 Inventory includes the areas shown on Figure H-2 of the Scenic Sites Working Paper.
See LCDC Acknowledgment of Compliance Goal 5 Addendum report at 4, para. 1 (attached as
Exhibit M to applicant's May 11, 2012 PUD Narrative). Staff submitted Figure H-2 as
Attachment 5 to its August 22, 2012 Memorandum.
Figure H-2 is not particularly clear. It is a map of the Metro Area shown on an 11 x 17 sheet,
and none of the street names are included for the streets in the vicinity of the subject property.
The hearings official compared Figure H-2 to the city's current zoning map and identified the
streets (or the most likely candidates). The hearings official includes an excerpt of Figure H-2
below with the streets labeled and with two short arrows labeled "1" and "2." The tip of the
arrow at point 1 appears to be the location where the southern section of West Amazon
connects to Fox Hollow Rd on the city's zoning map. The tip of point 2 points to the northern
terminus of West Amazon. The problem is that these points are in different positions relative
to each other than they appear to be on the zoning map. If Figure H-2 accurately depicts West
Amazon in the vicinity of point 2, then the subject property would seem to be included in the
Goal 5 resource mapped area. If, however, it is was erroneously drawn too far south relative to
Hearing Official Decision (PDT 10-2, CU 11-1) 26
point 1, then the subject property would be outside or possibly split by the goal 5 resource
mapped area.
Unsurprisingly, the applicant argues that the subject property is within the goal 5 mapped
resource area and Southeast Neighbors states that Figure H-2 is too vague to rely on. The Staff
Report initially stated that the property was within the Goal 5 resource mapped area, but
Staff's Aug. 22 memo stated that further review of Figure H-2 does not clearly show the subject
property within the Goal 5 mapped resource area. The hearings official concludes that the
subject property is included on the city's acknowledged Goal 5 inventory for Scenic Areas for
two reasons. First, Figure H-2 shows the northern terminus of West Amazon within the
mapped resource area. In 1978, the date of the working paper and Figure H-2, the technology
to precisely map roads and other features did not exist in the way we expect precision in 2012.
The northern terminus of West Amazon is shown within the Goal 5 mapped resource area and
the subject property is south and west of this terminus point; thus Figure H-2 intends to show
the subject property within the mapped resource area. Second, the subject property contains
features corresponding to two of the standards that the city developed to identify specific
scenic sites in the Scenic Sites Working Paper at G-3-G-4 (attached as Exhibit 5 to Staff Memo
(Aug. 22, 2012). The subject property is a natural site of visual prominence (standard 1), and it
contains moving water (standard 3). For these reasons, the hearings official concludes the
subject property is within the Goal 5 mapped resource area.
if
L
Thus, despite a disagreement between the applicant's registered engineering geologist and
Southeast Neighbors' registered professional geologist about the stability of the subject
property, the proposal is exempt from the geotechnical analysis at this land use application
phase. The hearings official, however, notes that this exception does not exempt the applicant
Hearing Official Decision (PDT 10-2, CU 11-1) 27
from building permit or other post-land use approval requirements relating to soil and
geological stability.
(e) EC 9.6730 Pedestrian Circulation On-Site.
These standards more directly apply to buildings associated with multiple-family, commercial,
and industrial developments, for providing on-site pedestrian facilities between building
entrances. While these standards do not appear to directly apply to the proposed single-family
residential development, the lots are proposed adjacent to streets with sidewalk systems that
would serve this function.
(f) EC 9.6735 Public Access Required.
The development complies with these standards by having access to West Amazon Drive, via
direct lot frontage or through private streets that connect to West Amazon Drive. All streets
within the development are classified as local streets, rather than as collector or arterial streets
that have more stringent access connection location requirements. Individual driveways have
not been determined at this time.
(g) EC 9.6750 Special Setback Standards.
Right-of-way needs are addressed previously at EC 9.8325(6)(a). No special setbacks for future
right-of-way or public easements are necessary.
(h) EC 9.6775 Underground Utilities.
All utilities will be underground consistent with this standard.
(i) EC 9.6780 Vision Clearance Area.
These standards apply at street intersections. Development of the corner lots will be evaluated
during the building permit process for compliance with these standards, which regulate visual
obstructions.
(j) EC 9.6791 through 9.6797 regarding stormwater destination, pollution reduction, flow
control for headwaters area, oil control, source control, easements, and operation and
maintenance.
Existing Conditions
As noted above, the site is traversed by three segments of Amazon Creek, as shown on the
applicant's plans, which are regulated Goal S water resources (Site E37) and subject to the /WR
Water Resources overlay zone. These streams cross under Martin Street, to the north, and then
merge into a single stream, Amazon Creek, which is the receiving drainage channel for the
Amazon basin that flows as an open system through the City's urban core to Fern Ridge
Hearing Official Decision (PDT 10-2, CU 11-1) 28
Reservoir, west of the City's urban growth boundary. The western portion of the subject
property (west of the proposed intersection of West Amazon Drive and Canyon Drive) currently
sheet-drains to the westerly and middle onsite waterways. The nearest piped stormwater
system is within Martin Street.
Applicant's Proposal
The applicant responds to above approval criterion in its written statement as follows:
This proposal will comply with the city's stormwater ordinance. See the plan sheet for
stormwater. See Stormwater Study by Weber Engineering, Exhibit P hereto. In summary, all
standards in the stormwater ordinance will be met by this development, proposal.
The applicant's plans (Sheets L11 and L12) show the western portion of the site being served by
a proposed extension of the piped stormwater system from Martin Street and the eastern
portion of the site draining to the easterly waterway. Exhibit P of the application materials
include a letter dated February 17, 2012 from Doug Weber, Principal Engineer, Weber
Engineers & Associates, PC and a "Hydrology Study for Deerbrook PUD," dated February 27,
2007, also prepared by Weber Elliot Engineers, PC. The February 17, 2012 letter states:
I am writing this letter in support of the planned application for the Deerbrook PUD
under the Needed Housing standards in the zoning code. On June 30, 2008, Weber
Elliott Engineers, PC submitted a report titled "Hydrology Study for Deerbrook PUD" as
part of an earlier application for the PUD. This letter is to support compliance for the
stormwater criteria of the land use code. The current existing site conditions have not
been altered and the site hydrology remains the same as when the report was created
in 2008. The proposed site plan is substantially the same as previously submitted
therefore the report is still valid for this submittal.
The applicant submitted a report.with a different date than cited by the design professional. In
this instance, Mr. Weber refers to a study dated June 30, 2008, which was not submitted by the
applicant. Instead, the applicant submitted a study dated February 27, 2007. Although the
applicant submitted an older report, it is for the same property with a virtually identical
development plan. The 2007 hydrology study showed the western portion of the development
being served by a piped stormwater system to be extended from the existing system in Martin
Street. The 2007 proposal also showed an outfall to the middle waterway, from offsite
drainage to the south. The current proposal is nearly identical to the 2007 proposal, except the
outfall to the middle waterway appears to be eliminated.
The applicant's Exhibit KK is a letter from Mr. Weber explained that the 2007 hydrology study is
the most current study.
Western Drainage Basin
The western portion of the site shows a piped stormwater system extended from Martin Street
within the proposed streets, with an interconnecting piped system between the streets at the
Hearing Official Decision (PDT 10-2, CU 11-1) 29
northwest portion of the site, corresponding to gravity drainage and site topography, and
involving a piped crossing of the westerly waterway. The proposed stormwater pipes located
outside the streets are proposed within public utility easements (PUE). The discussion and
condition of approval necessary to comply with EC 9.6500 relating to the need for Standards
Review in advance of the PEPI permit and subdivision process acceptance of the final PUE
locations is applicable here for the proposed waterway crossings.
The available information indicates that the receiving system has the capacity to accommodate
addition runoff from the proposed development. The proposed development complies with the
stormwater destination standards of EC 9.6791. As noted in the Hydrology Report, a
downstream deficiency for the future 10-year storm previously existed at segment 65344 -
66656 in Martin Street. The completion of Capital Projects AM06A and AM06B under City
Project Number 3951 (City Contract No. 2007-09) has corrected these deficiencies. No other
downstream deficiencies in the Amazon Channel, which is the receiving system for the
proposed development, have been identified for the 10-year design storm, per modeling in the
2002 City of Eugene Stormwater Basin Master Plan, Volume II of VI for the Amazon Basin.
The applicant responded to testimony about stormwater drainage in its August 22, 2012 post-
hearing testimony. Specifically, the applicant noted the EC 9.6790(2) requires that post-
development flows will not exceed existing pre-development flows and that the 2007 study
explains how this will be accomplished.
The applicant has not proposed any pre-treatment or detention for this portion of the
development site, as required by current stormwater development standards. However, given
the available data regarding the downstream system, and given the clear and objective nature
of the balance of the stormwater development standards, the western portion of the
development site can meet these requirements with the following conditions of approval:
The final PUD plans and final subdivision plat shall note the following requirement: "At
the time of development, each lot shall have its own filtration stormwater management
system (e.g. flow-through planter) that is sized to meet the requirements of EC 9.6792
Stormwater Pollution Reduction and EC 9.6793 Stormwater Flow Control (Headwaters).
Each lot owner will be responsible for maintaining its stormwater management system
consistent with EC 9.6797 Stormwater Operation and Maintenance."
During the PEPI permit process, the public stormwater system shall include City-
approved proprietary stormwater treatment technology that meets the requirements of
EC 9.6792 Stormwater Pollution Reduction and EC 9.6793 Stormwater Flow Control
(Headwaters).
The applicant's August 22, 2012 testimony accepts these conditions of approval and states that
the applicant will comply with them. The applicant also responded to testimony about
additional downstream flooding.
Hearing Official Decision (PDT 10-2, CU 11-1) 30
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.
The applicant has demonstrated that these services can be provided to the western portion of
the site, subject to the previous findings and conditions regarding infrastructure improvements.
EC 9.8325(91: 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
(depicted as Tract A) and by the adjacent parkland, to the east.
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).
The alternative site plan, sheet L9.0 explains how the PUD complies with the solar lots
standards. However, the percentage of lots complying with this standard for a site plan that
complies with EC 9.8325(5) has not been determined, so the hearings official cannot conclude
that the PUD complies with the solar lots standards, and the applicant has not requested a
modification. The hearings official does not believe the applicant would be unable to comply
with the solar lot standards; the hearings official only notes that the current record does not
support a finding of compliance.
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 subject property is zoned with the /WR Water Resources overlay for the three waterways
that traverse the site as shown on the applicant's plans. Each of these streams has a protected
conservation area being 40 feet from the top of bank, as described at EC 9.4920 /WR Water
Resources Conservation Overlay Zone - Components of /WR Conservation Area. The applicant's
Hearing Official Decision (PDT 10-2, CU 11-1) 31
plans delineate these conservation areas. Uses within the resource area are subject to EC
9.4930 /WR Water Resources Conservation Overlay Zone - Permitted and Prohibited Uses and
Exceptions. The applicant's plans show the following uses within the resource area:
West Waterway
Public improvements (street, wastewater, stormwater, and other utilities) within the existing
West Amazon Drive right-of-way, which involves a perpendicular crossing of the stream
(between Senger Lane and Stonewood Lane) and a parallel impact within the resource area
adjacent to the stream (at the northwest corner of the site). Public improvements
(underground utilities) are also shown as crossing the water resource boundary in the same
location as the parallel impact for the roadway.
Middle Waterwa
Public improvements (street, wastewater, stormwater, and other utilities) within the existing
West Amazon Drive right-of-way and the extension of Canyon Drive; the intersection of these
two streets encompasses the entire resource area at that location. Public improvements
(underground utilities) are also show as crossing the resource boundary between the termini of
Morningwood Drive and Eveningwood Drive.
East Waterway
Public improvements (underground utilities) within the resource area and crossing the
waterway.
These public improvements require Standards Review approval pursuant to EC 9.4930(3)(b).
The applicant has not applied for Standards Review approval, but the written statement
indicates that the applicant will seek Standards Review approval at a later date. The applicant
has not submitted any evidence to demonstrate the feasibility of complying with the applicable
EC 9.4980 /WR Water Resources Conservation Overlay Zone Development Standards (1)
through (11), which are required for Standards Review approval.
Because the applicant will need to adjust the locations of roads (and thus possibly crossings
within the resource area, the hearings official cannot conclude that the PUD complies with this
criterion. The hearings official does not believe the applicant would be unable to show
compliance with Standards Review; the hearings official only notes that the current record does
not support a finding of compliance.
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.
Hearing Official Decision (PDT 10-2, CU 11-1) 32
(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.
(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, identified as Tract A on the
applicant's plans, which is configured consistent with the above approval criterion. The
applicant notes that the common open space constitutes 12.51 acres, which is about 47 percent
of subject property. The applicant's written statement provides definitions of "buildings and
structures" to demonstrate compliance with the above approval criterion as well.
(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 PUD complies with the density limitations above. The development proposed by the
applicant (75 lots on 26 acres) would result in a residential density of about 3 units per acre,
which is below the limitation of five units per acre required by the property's location being
east of Friendly Street.
EC 9.8325(131: Stormwater runoff from the PUD will not damage natural drainage courses
either on-site or downstream by eroding or scouring the natural drainage courses or by
causing turbidity, or the transport of sediment due to increased peak flows or velocity.
The applicant responds to this approval criterion as follows: "Stormwater is not being added to
any natural drainage course onsite. The plans show that Stormwater from this site, after
treatment in onsite facilities, will enter the city's piped system at the north end of the site.
These facilities eventually discharge to the Amazon Canal, an engineered drainageway and part
of the city's stormwater system. In terms of impacts on the waterway offsite, the owners
understand this standard to mean that no damage will result if onsite stormwater detention
facilities are constructed to city standards to accommodate the 10-year design storm. The
Hearing Official Decision (PDT 10-2, CU 11-1) 33
stormwater facilities are designed to meet this city standard; hence a positive finding can be
made."
The above approval criterion is specific to "stormwater runoff from the PUD," rather than
street and utility crossings of the onsite natural drainage courses. As addressed previously at EC
9.8325(7)(j), regarding the stormwater development standards at EC 9.6791 through EC 9.6797,
the western portion of the development site does not direct stormwater runoff from the PUD
to an on-site waterway, although the proposed piped system does outfall to an open drainage
system farther to the north. The condition of approval required to comply with EC 9.8325(7)(j)
that addresses flow-control ensures that the application complies this approval criterion.
Decision
For the reasons stated above, the hearings official DENIES the application for PUD for the
subject property. Nevertheless, in anticipation of an appeal, the hearings official has crafted
the following conditions of approval if the Planning Commission's review of the record
demonstrates to the Planning Commission that the application should be approved. However,
the hearings official notes that he has not recommended conditions of approval to respond to
EC 9.8325(5).
Recommended Conditions of Approval (if the Planning Commission would approve the
application):
1. 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
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.
The final PUD plans shall note the following: "The 30-foot perimeter buffer shall comply
with EC 9.6210(7)(a)(1) through (5). The applicant may use existing vegetation to meet
these requirements. The applicant shall show on its landscaping plan existing
vegetation that it intends to reply on to comply with these requirements and proposed
new landscaping that it intends to add to comply with these requirements."
The applicant shall dedicate the right-of-way necessary to connect Senger Lane and St.
Clair Lane to adjoining properties. The applicant shall show the dedication on the final
PUD plans.
The final PUD plans shall note the following restrictions regarding areas with slopes that
meet or exceed 20 percent: "Areas identified as having 20 percent slopes shall not be
Hearing Official Decision (PDT 10-2, CU 11-1) 34
graded, pursuant to EC 9.8325(5). Construction site management shall include
protective fencing of these areas. Utilities in these locations will need to be installed
without grading, such as with boring or other construction technique."
5. The final PUD site plans shall show Canyon Drive as: having 20 feet of pavement width
with curbside sidewalks, within 45 feet of right-of-way. The public improvements shall
be constructed as part of the Privately-Engineered Public Improvement (PEPI) permit
process.
6. The final PUD site plans shall show Senger Lane as: having 20 feet of pavement width
with curbside sidewalks on the east side of the street only, within 45 feet of right-of-
way; and terminating in a hammerhead turnaround, as proposed, within a temporary
public easement. The public improvements shall be constructed as part of the Privately-
Engineered Public Improvement (PEPI) permit process.
7. The final PUD site plans shall show cut and fill slopes associated with the street
improvements and shall delineate public slope easements for those slopes that fall
outside of the right-of-way. Slope easements will be more precisely determined during
the PEPI permit process and on the plat.
Prior to final PUD approval, the applicant shall obtain /WR Standards Review approval
for all public improvements, utility and access crossings proposed in the conservation
areas.
9. The final PUD plans shall note the following: "The structural design and construction
inspection for private streets and alleys shall remain the developer's responsibility."
Prior to final subdivision approval, the applicant shall submit certification by a licensed
engineer that the structural design of the proposed private streets meets the applicable
public design standards.
10. Acceptance of PUE is conditioned upon the applicant obtaining Standards Review
approval for the proposed /WR resource area impacts and upon the infrastructure
location being more precisely determined during the PEPI permit process. Approved
PUE locations will be considered as part of the subdivision process.
11. The final PUD plans shall show the Exclusive Easement of the September 3, 1999
Purchase and Sale Agreement, including the Bridal Trail Easement.
12. Public improvements shall be constructed pursuant to EC 9.6505, subject to the design
being approved by the City Engineer as part of the Privately Engineered Public
Improvement (PEPI) permit process.
Hearing Official Decision (PDT 10-2, CU 11-1) 35
13, Prior to final subdivision approval, the applicant will be required to obtain a "Letter of
Water Availability" from EWER, which typically involves the design approval and
improvement bonding with EWER.
14. The final PUD plans and final subdivision plat shall note the following requirement; "At
the time of development, each lot shall have its own filtration stormwater management
system (e.g. flow-through planter) that is sized to meet the applicable stormwater
development standards beginning at EC 9.6791. Each lot owner will be responsible for
maintaining its stormwater management system consistent with EC 9.6797 Stormwater
Operation and Maintenance."
15. During the PEPI permit process, the public stormwater system shall include City-
approved proprietary stormwater treatment technology that meets the requirements
of EC 9.6792 Stormwater Pollution Reduction.
Dated this , - day of September 2012.
Mailed this day of September 2012.
Jeffr . Litwak
Hearing Official
SEE NOTICE OF HEARINGS OFFICIAL DECISION FOR STATEMENT OF APPEAL RIGHTS
Hearing Official Decision (PDT 10-2, CU 11-1) 36
Exhibit B.
Excerpts from LUBA record: Home Builders Assn. of Lane County v. City of
Eugene, 41 Or LUBA 370 (2002).
(http://Iuba.state.or.us/pdf/2002/febO2/01059.htm.)
Planned Unit Development, Tentative Plan
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.
9.8305 Applicability. PUD provisions shall be applied when any of the following conditions
exist:
(1) The proposal is subj ect to review and approval through the PUD process according
to an adopted refinement plan, including but not limited to, property within the
boundary of the South Hills Study where all or a portion of a development site is
either:
(a) Above 701 feet and the proposed development will result in the creation of
one or more lots or will include multiple-family housing, or
(b) Between 500 feet and 701 feet, and the development site is at least 4 acres
with areas of the development site containing slopes that exceed 20%.
(2) The property is zoned with a /PD overlay zone.
(3) One or more land uses proposed for the site are subject to review and approval
through the PUD process according to the zoning.
(4) When requested by the property owner.
No development permit shall be issued by the city prior to approval of the final PUD.
[Comment: The last sentence has been added in response to Council motion #62 (10116100).]
9.8310 Tentative Planned Unit Development General Application Requirements.
(1) Ownership. The area included in a proposed PUD shall either be under single
ownership or common development control. The application shall include all
contiguous property under the same ownership or development control, shall be
signed by the owner of the property, and include such related information as
prescribed by the planning director. Otherwise contiguous parcels that are
separated only by a public right-of-way, shall be included in the PUD application
unless the public right-of-way is designated an arterial or collector on the street
classification map. If otherwise contiguous parcels are separated by an arterial or
collector street, the applicant may, at the applicant's discretion, include those
parcels in the PUD application.
February 2001 Draft Land Use Code (legislative version) - 368 0 0 0 L 0 8 8 t
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(2) Project Coordinator and Professional Design Team. The tentative PUD
application shall identify the PUD project coordinator and the professional design
team and certify compliance with the following:
(a) Project coordinator. The project coordinator shall:
1. Be the liaison between the applicant and the city.
2. Ensure that the required plans are prepared and executed according to
any required conditions.
3. Either be a member of the American Institute of Certified Planners or
licensed in the state of Oregon to practice architecture, civil
engineering, or landscape architecture.
The project coordinator, or at least one design team member, shall attend all
public meetings at which the proposal is discussed.
(b) Professional design team designation. Unless waived by the planning
director, the professional design team shall consist of at least the following
professionals:
1. Certified A.rborist.
2. Oregon licensed [A]Architect.
3. Oregon licensed [E]civil [E]engineer.
4. Oregon licensed [E]landscape [A]architect.
5. Oregon licensed [L-]land [s]surveyor.
6. A member of the American Institute of Certified Planners.
(c) Plan certification. Certification of the services of the professionals
responsible for particular drawings shall appear on those drawings. To
ensure comprehensive review of all plans for compliance with the PUD
provisions by the professional design team, the cover sheet shall contain a
statement of review endorsed with the signatures of all designated members
of the professional design team stating that the portion of the project in which
he or she was involved complies with the following:
1. Meets the standards of his or her profession.
2. Complies with the tentative PUD criteria.
(3) Phasing. The tentative PUD application shall include a phasing plan that indicates
any proposed phases for development, including the boundaries and sequencing of
each phase. Phasing shall progress in a sequence that promotes street connectivity
between the various phases of the development and accommodates other required
public improvements.
(4) Density. Dwelling unit densities for PUDs shall be consistent with EC 9.2750(2)
Residential Density Per Net Acre. The calculation of the number of dwelling units
allowed shall be determined based on the following:
(a) Easement Calculations. If it is demonstrated that easements will benefit
residents of the proposed PUD, residential density calculations may include
areas in easements, with the exception of private streets or ingress/egress
easements.
(b) Dedications. If it is demonstrated that lands dedicated to the city will benefit
residents of the proposed PUD, residential density calculations may include
areas dedicated to the public for recreation or open space.
(c) Cumulative Density. When final plans are to be approved in phases, at no
time shall the cumulative residential density exceed the overall density per
February 2001 Draft Land Use Code (legislative version) - 369 0 0 0 L J 8 U 115
02/08/01
acre established at the time of tentative plan approval.
(5) Needed Housing. If the proposal includes needed housing, as defined by State
statutes, the written statement submitted with the PUD application shall clearly
state whether the applicant is electing to use the general approval criteria in EC
9.8320 Tentative Planned Unit Development Approval Criteria- General instead
of the approval criteria found in EC 9.8325 Tentative Planned Unit Development
Approval Criteria- Needed Housing.
9.8320 Tentative Planned Unit Development Approval Criteria- General. The hearings
official shall approve, approve with conditions, or deny a tentative PUD application with
findings and conclusions. Decisions approving an application, or approving with
conditions shall be based on compliance with the following criteria:
(1) The PUD is consistent with applicable [pravisimzs] adopted policies of the Metro
Plan.
(2) The PUD is consistent with applicable adopted refinement plan[s] policies.
(3) The PUD will provide adequate screening from surrounding properties including,
but not limited to, anticipated building locations, bulk, and height.
(4) The PLD is designed and sited to minimize impacts to the natural environment by
addressing the following:
(a) Protection ofnatural features. The preservation of significant natural features
to the greatest degree attainable or feasible, including:
1. 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.
2. All documented habitat for all rare animal species (those that are
proposed for listing or are listed under State or Federal law).
3. Prominent topographic features, such as ridgelines and rock outcrops.
4. Wetlands, intermittent and perennial stream corridors, and riparian
areas.
5. Natural resource areas designated in the Metro Plan diagram as
"Natural Resource" and areas identified in any city-adopted natural
resource inventory.
(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
[erg] 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;
4. 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;
February 2001 Draft Land Use Code (legislative version) - 370 0 0 v 0 8 8 6
02/08/01
8. . Trees adjacent to public parks, open space and streets.
9. Trees located along a water feature.
10. Heritage trees.
[Comment: Subsections 9 and 10 added in response to Council motion 937 a (10102100).]
(c) Restoration or replacement. The proposal mitigates, to the greatest degree
attainable or feasible, the loss of significant natural features described in
criteria (a) and (b) above, through the restoration or replacement of natural
features such as:
1. Planting of replacement trees within common areas; or
2. Re-vegetation of slopes, ridgelines, and stream corridors; or
3. Restoration of fish 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 6.335 Tree Removal and
Replacement - Rules, and rules adopted thereunder.
(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 6.320 Tree Removal and Replacement -
Permit Decision.
(5) The PUD provides safe and adequate transportation systems through compliance
with the following:
(a) EC 9.6800 through EC 9.6870 Streets, Alleys, and Other Public Ways
Standards (not subject to modifications set forth in subsection (11) below).
(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 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.
(c) The provisions of the Traffic Impact Analysis Review of EC 9.8650
through 9.8680 where applicable.
(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.
(7) 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 ofpublic 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.
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02/08/01 01,1100038 i4
(8) Residents of the PUD will have sufficient usable recreation area and open space
that is convenient and safely accessible.
(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.
(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.
(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.
(b) EC 9.6500 through EC 9.6510 Public Improvement Standards.
(c) EC 9.6705 Development in Flood Plains.
(d) EC 9.6710 [ 1
Geotechnical Analysis.
(e) EC 9.6730 Pedestrian Circulation On-Site.
(f) EC 9.6735 Public Access Required.
(g) EC 9.6750 Special Setback Standards.
(h) EC 9.6775 Underiround Utilities.
(i) EC 9.6780 Vision Clearance Area.
(j) [mod-a]All other applicable development standards for features explicitly
[addressed] included in the application except where the applicant has shown
that a [modification] proposed noncompliance is consistent with the
purposes [as] set out in EC 9.8300 Purpose of Planned Unit Development.
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.
(12) The proposed development shall have minimal off-site impacts, including such
impacts as traffic, noise, stormwater runoff and environmental quality.
(13) Theproposed development shall be reasonably compatible and harmonious with
adjacent and nearby land uses.
(14) 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.
[Comment: Additional standards that must be complied with have been added in Subsection (11)
with the subsection reformatted consistent with other similarprovisions, Subsections (12) and (13)
have been added in response to Council motion #58 i (10116100), and Subsection (14) added for
clarification.]
9.8325 Tentative Planned Unit Development Annroval Criteria - Needed HousinL,.
The hearings official shall approve, conditionally approve, or deny the PUD application
with findings and conclusions. Unless the applicant elects to use the general criteria
contained in EC 9.8320 Tentative Planned Unit Development Approval Criteria-
General, where the applicant proposes needed housing, as defined by the State statutes,
the hearings official shall approve or approve with conditions a PUD based on
compliance with the following criteria:
[Comment: Revised for consistency.]
February 2001 Draft Land Use Code (legislative version 372 0 J '0 S '
02/08/01
(1) The applicant has demonstrated that the proposed housing is needed housing as
defined by State statutes.
(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.
(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).
(4) The PUD preserves existing natural resources by compliance with all of the
following:
(a) All rare plant populations (those that are proposed for listing or are listed
under State or Federal law) are preserved. The protected area shall include
the area occupied by the plant population(s), plus a minimum 100 foot buffer
around the perimeter of the plant population(s).
(b) All documented habitat for all rare animal species (those that are proposed for
listing or are listed under State or Federal law) is preserved. The protected
area shall include the area occupied by the animal population(s), plus a
minimum 100 foot buffer around the perimeter of the animal population(s).
(c) All waterways are protected. Protected areas shall include the area between
the banks and a minimum 50 foot buffer on each side of the top of the bank.
(d) [ The provisions of EC -11 1 /0 U1 Ulk, ,AIZ)Llllr, 9.6880 to EC 9.6885 Tree Preservation and Removal Standards, (not
subject to modifications set forth in subsection (12) below.
[Comment: As previously drafted, this subsection (d) conflicted with subsection (7) 6), which has
been incorporated in lieu of the deleted language.]
(e) Natural resource areas designated on the Metro Plan diagram as "Natural
Resource" and areas identified in any city-adopted natural resource inventory
are protected. Protection shall include the area of the resource and a
minimum 50 foot buffer around the perimeter of the natural resource area.
(5) There shall be no proposed grading on portions of the development site that meet
or exceed 20% slope.
(6) The PUD provides safe and adequate transportation systems through compliance
with all of the following:
(a) EC 9.6800 through EC 9.6870 Streets, Alleys, and Other Public Ways
Standards (not subject to modifications set forth in subsection (12) below).
(b) Provision of 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 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.
(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.
February 2001 Draft Land Use Code (legislative version) - 373 `
02/08/01 G 0 J
(7) 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.
(b) EC 9.6500 through 9.6510 Public Improvement Standards.
(c) EC 9.6705 Development in Flood Plains.
(d) EC 9.6710 [ ]
Geotechnical Analysis.
(e) EC 9.6730 Pedestrian Circulation On-Site.
(f) EC 9.6735 Public Access Required
(g) EC 9.6750 Special Setback Standards.
(h) EC 9.6775 Underground Utilities.
(i) EC 9.6780 Vision Clearance Area.
[
modifications set forth nr-suulbection ~(12) belovv).
(k)] New dwellings shall be within a [r] 4 minute response time for emergency
medical services.
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
[Comment. New subsections (a) and (b) were added, and remaining subsections relettered.
Subsection (j) was deleted as it was incorporated in (4)(d). Newly relettered 0) revised in response
to Council motion #64 (10116100). The last sentence was added for consistency with other similar
provisions.]
(8) 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 ofpublic 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.
(9) All proposed dwellings within the PUD are within 1/4 mile of an accessible
recreation area or open space that is at least one acre in size and will be available
to residents.
(10) Stormwater runoff from the PUD will not create 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.
(11) 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 (12) below).
(12) 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.
February 2001 Draft Land Use Code (legislative version) - 374 0 8",
_J
02/08/01 4) i:1 J
(13) 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
(insert effective date of new code).
(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.
(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.
(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.
9.8330 Site Alteration. Unless specifically permitted by the hearings official, vegetation,
topography, and other natural features of areas proposed for a PUD shall not be
substantially altered until final PUD approval, and then only as authorized by the final
PUD approval. "Substantially altered" includes, but is not limited to, site grading and
removal of trees or other vegetation. If a subdivision is required, site alteration shall not
be permitted until after tentative subdivision approval is granted.
[Comment: Grammatical correction.]
Planned Unit Development, Final Plan
9.8350 Purpose of Planned Unit Developments, Final Plan. The PUD process includes both
a tentative and final plan. Final plan approval is required primarily to ensure that
tentative plan approval conditions have been met.
9.8355 Applicability. A final PUD plan is required for every approved tentative PUD, and
every phase of a tentative PUD.
9.8360 Planned Unit Development, Final Plan Application Requirements. In addition to the
provisions in EC 9.7010 Application Filing, the following specific requirements apply
to PUD final plan applications:
(1) Applications shall contain final maps and supplemental materials required to
demonstrate compliance with tentative plan conditions of approval.
February 2001 Draft Land Use Code (legislative version) - 375
02/08/01
(2) Final PUD plans may be submitted in phases, if such phases were approved as part
of the tentative PUD consideration. The boundaries of each phase of the final PUD
plans shall coincide with the boundaries of the phasing areas approved at the
tentative plan stage. Requests to extend the time frame for a specific phase shall be
subject to EC 9.7340 Expiration.
(3) Individual phases of a PUD may not be submitted for final PUD review until the
boundaries of the phases are legal lots as defined in this land use code, and
documents necessary to assure permanent maintenance, at no expense to the city,
of buildings, common use facilities, landscaping, open space, and outdoor living
areas have been executed and recorded.
(4) When a PUD or any phase thereof is submitted for final approval, each design team
member shall provide written certification that the portion of the project in which
he or she was involved continues to comply with the approved tentative plan
conditions of approval.
(5) Public improvements as required by this land use code or as a condition of tentative
plan approval have been completed, or:
(a) A performance [agreement f ]bond[)] or suitable substitute as agreed upon by
the city has been filed with the city finance officer in an amount sufficient to
assure the completion of all required public improvements; or
[Comment: Revised consistent with other similar provisions to avoid confusion with required
general performance agreements.]
(b) A petition for public improvements and for the assessment of the real
property for the improvements has been signed by the property owner
seeking the subdivision, and the petition has been accepted by the city
engineer.
9.8365 Final Planned Unit Development Approval Criteria. The planning director shall
approve, approve with conditions, or deny a final PUD application. Approval shall
include a finding that the final PUD plan conforms with the approved tentative PUD plan
and all conditions attached thereto[,
[Comment: Revised to require compliance with all conditions, as well as the approved plan.
Deleted language is unnecessary, as that determination would be made during tentative review.]
9.8370 Modifications to Approved Planned Unit Development. The applicant for the original
PUD may apply for a modification of the final PUD approval following the Type II
process. The planning director shall approve the request only if it complies with the
following criteria:
(1) The proposed modification is consistent with the conditions of the original
approval.
(2) The proposed modification will result in insignificant changes in the physical
appearance of the development, the use of the site, and impact on the surrounding
properties.
If the planning director determines that the proposed modification is not consistent with
the above criteria, the proposed modification may not occur unless a new tentative PUD
application is submitted based on the Type III procedural requirements. Nothing in this
section shall preclude the applicant from initially submitting the requested modification
February 2001 Draft Land Use Code (legislative version) - 376 o 0 0 r.)
02/08/01 .i C
as a new tentative PUD application.
9.8375 Final Planned Unit Development - Landscaping. If required landscaping cannot be
completed prior to occupancy, or as otherwise required as a condition of approval, the
planning director may require the applicant to post a performance bond in an amount and
for a time period determined by the planning director to be sufficient to assure timely
completion.
Property Line Adjustment
9.8400 Purpose of Property Line Adjustment. Sections 9.8400 through 9.8420 provide an
expedited process for the review of property line adjustments. A property line
adjustment is the relocation of a single boundary line or the removal of non-platted lines
between two legal lots. Property line adjustments shall be considered in accordance with
the Type I application procedures contained in EC 9.7100 General Overview of Type I
Application Procedures.
9.8405 Applicability of Property Line Adjustment Applications.
(1) A property line adjustment application is applicable to changes to the property
lines of adjoining properties when all of the following exist:
(a) A property line proposed for removal is not platted in a partition or
subdivision plat.
(b) A property line proposed for adjustment will not result in an increase in the
number of parcels or lots.
(c) A property line proposed for adjustment will not create more than 2 property
line adjustments to any of the boundaries of an individual lot or parcel within
a calendar year.
(d) The adjustment will result in less than a 200% change in the size of the lot or
parcel.
(2) A property line adjustment application may not be utilized to effect the
reconfiguration of lots or parcels which must be approved through the partition or
subdivision procedure.
(3) A property line adjustment application may not be utilized to create flag lots.
[Comment: Addition ofsubsection (3) avoids possible interpretation questions.]
9.8410 Property Line Adjustment Application Requirements. In addition to the provisions
in EC 9.7010 Application Filing, the following specific requirements shall apply to
property line adjustment applications.
(1) Except for parallel property line adjustments, all applications shall be prepared by
an Oregon licensed Land Surveyor.
(2) Applications shall be signed by at least one of the owners of each parcel involved,
and shall include a preliminary title report for each parcel.
9.8415 Property Line Adjustment Approval Criteria. The planning director shall approve,
approve with conditions, or deny the property line adjustment application. Approval or
approval with conditions shall be based on compliance with the following criteria:
(1) Any buildings to be retained on the properties comply with the minimum front and
February 2001 Draft Land Use Code (legislative version) - 377 0 0 0 L 0 8
02/08/01
DRAFT
April 2000
(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 6.320
Tree Removal and Replacement - Permit Decision.
11. Page 9.8-17, revise 9.8320(11) as follows:
9.8320
(11) The PUD complies with EC 9.6705 Development in Flood Plains; EC
9.6710 Development in Areas with Unstable Soil Conditions; EC 9.6730
Pedestrian Circulation On-Site; EC 9.6735 Public Access Required; EC
9.6750S
pecial Setback Standards; EC 9.6775 Underground Utilities; EC
9.6780 Vision Clearance Area, and all other 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.
12. Pages 9.8-18 and 9.8-19, revise 9.8325(4)(c), 9.8325(7)(a), and add a new subsection
9.8325(13), and correct 9.8330 as follows:
9.8325 Tentative Planned Unit Development Approval Criteria - Needed
Housing.
The hearings official shall approve, conditionally approve, or deny the PUD
application. Unless the applicant elects to use the general criteria contained
in EC 9.8320 Tentative Planned Unit Development Approval Criteria-
General, where the applicant proposes needed housing, as defined by the
State statutes, the hearings official shall approve or approve with conditions
a PUD based on compliance with the following criteria:
(4) The PUD preserves existing natural resources by compliance with all
of the following:
(c) All waterways [ ] are
protected. Protected areas shall include the area between the
banks and a minimum 50 foot buffer on each side of the top of the
bank.
(7) The PUD complies with all of the following:
(a) EC 9.6705 Development in Flood Plains. EC 9.6710
Errata/Revisions/Corrections - 109
04/20/00
rAchapter9\LUCU\erratarev4.wp d
DRAFT
April 2000
Development in Areas with Unstable Soil Conditions. EC 9.6730
Pedestrian Circulation Ora-Site, EC 9.6735 Public Access
Required, EC 9.6750 Special Setback Standards. EC 9.6775
Underground Utilities, EC 9.6780 Vision Clearance Area, and
EC 9.6885 Tree Preservation and Removal Standards (not
subject to modifications set forth in subsection (12) below).
(13) 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 January 1, 2001.
(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.
(c) Development shall cluster buildings in an arrangement that
results in at least 40% of the development site being retained in
3 orfewer contiguous common open space areas. Forpurposes
of this section, the term contiguous open space means open
space that is uninterrupted by buildings, structures, streets, or
other improvements.
(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.
9.8330 Site Alteration. Unless specifically permitted by the hearings official,
vegetation, topography, and other natural features of areas proposed for a
PUD shall not be substantially altered until final PUD approval, and,then[;]
only as authorized by the final PUD approval. Substantially altered includes,
Errata/Revisions/Corrections - 110
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rAchapter9ALUCUAe rratarev4.wpd
0 0 0 0 4 ;='7
Commentary
Planned Unit Development, Tentative Plan
9.8300 Purpose of Planned Unit Development.
Based on existing EC 9.508 Purpose. Draft changed to clarify that PUD process is designed to
provide a high degree of flexibility to achieve resource protection, mix of uses, shared use of
facilities and other objectives.
9.8305 Applicability.
Based on existing EC 9.509 Applicability. Draft code deletes existing reference to uses which
were approved prior to the adoption of PUD provisions in 1968, but not yet developed. This
statement no longer appears necessary. Draft code clarifies that property owner may choose to
have proposed development reviewed through the PUD process even if the property is not
specifically zoned with the /PD overlay or required to go through the PUD process due to a
refinement plan policy.
9.8310 Tentative Planned Unit Development General Application Requirements.
(1) Ownership
Based on existing EC 9.510(1) Ownership. This section is modified to require that PUD's
include all contiguous property under the same ownership consistent with partition and
subdivision applications. Also provides clarification regarding "contiguous" parcels to allow
parcels separated by a public right-of-way to be included in the same PUD application.
(2) Project Coordinator and Design Team
Based on existing EC 9.510(8) Professional Coordinator and Design Team. Section changed to
focus on key issues. Revised language no longer requires project coordinator to maintain a Lane
County address. Added requirement that an arborist participate on the Design Team.
1118199 Commentary Page 9,8-14 0 0 O 0 Zj2
Eugene Code -DRAFT- Application Requirements and Criteria
Planned Unit Development, Tentative Plan
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, 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.
9.8305 Anplicability. PUD provisions shall be applied when any of the following conditions
exist:
(1) The proposal is subject to review and approval through the PUD process
according to an adopted refinement plan.
(2) The property is zoned with a /PD overlay zone.
(3) One or more land uses proposed for the site are subject to review and approval
through the PUD process according to the zoning.
(4) When requested by the property owner.
9.8310 Tentative Planned Unit Development General Application Requirements.
(1) Ownership. The area included in a proposed PUD shall either be under single
ownership or development control. The application shall include all contiguous
property under the same ownership or development control, shall be signed by
the owner of the property, and include such related information as prescribed by
the planning director. Otherwise contiguous parcels that are separated only by a
public right-of-way, shall be included in the PUD application unless the public
right-of-way is designated an arterial or collector on the street classification
map. If otherwise contiguous parcels are separated by an arterial or collector
street, the applicant may, at the applicant's discretion, include those parcels in
the PUD application.
(2) Project Coordinator and Professional Design Team. The tentative PUD
application shall identify the PUD project coordinator and the professional
design team and certify compliance with the following:
(a) Project coordinator. The project coordinator shall:
1. Be the liaison between the applicant and the city.
000074,2 ?7
DRAFT 9.8-14 11/8/99
Commentary
(3) Phasing
Based on existing EC 9.510(3) Phasing. Draft changed to clarify that any phasing plan submitted
with the tentative PUD application shall clearly show the boundaries and sequencing of each
phase.
(4) Density
Based on existing EC 9.510(6) Densi
0000'7428
1118199 Commentary Page 9.8-15
Eugene Code -DRAFT= Application Requirements and Criteria
2. Ensure that the required plans are prepared and executed according
to any required conditions.
3. Either be a member of the American Institute of.Certified Planners or
licensed in the state of Oregon to practice architecture, civil
engineering, or landscape architecture.
The project coordinator, or at least one design team member, shall attend
all public meetings at which the proposal is discussed.
(b) Professional design team designation. Unless waived by the planning
director, the professional design team shall consist of at least the following
professionals:
1. Arborist.
2. Architect.
3. Civil Engineer.
4. Landscape Architect.
5. Land Surveyor.
6. Planner.
Each team member must be licensed to practice his or her profession in
Oregon, and shall prepare the approprlffte application materials.
(c) Plan certification. Certification of the services of the professionals
responsible for particular drawings shall appear on those drawings. To*
ensure comprehensive review of all plans for compliance with the PUD
provisions by the professional design team, the cover sheet shall contain a
statement of review endorsed with the signatures of all designated
members of the professional design team stating that the portion of the
project in which he or she was involved complies with the following:
1. Meets the standards of his or her profession.
2. Complies with the tentative PUD criteria.
(3) Phasing. The tentative PUD application shall include a phasing plan that
indicates any proposed phases for development, including the boundaries and
sequencing of each phase. Phasing shall progress in a sequence that promotes
street connectivity between the various phases of the development and
accommodates other required public improvements.
(4) Density. Dwelling unit densities for PUDs shall be consistent with EC
9.2750(2) Residential Density Per Net Acre. The calculation of the number of
dwelling units allowed shall be determined based on the following:
(a) Easement Calculations. If it is demonstrated that easements will benefit
residents of the proposed PUD, residential density calculations may
include areas in easements, with the exception of private streets or
ingress/egress easements.
(b) Dedications. If it is demonstrated that lands dedicated to the city will
benefit residents of the proposed PUD, residential density calculations
may include areas dedicated to the public for recreation or open space.
(c) Cumulative Density. When final plans are to be approved in phases, at no
time shall the cumulative residential density exceed the overall density per
acre established at the time of tentative plan approval.
DRAFT 9.8-159
Commentary
(5) Needed Housing
New section based on State statutes related to needed housing.
• Existing EC 9.510(13) Underground Utilities is deleted. Proposed EC 9.6500 through EC
9.6510 address public improvement standards for all development applications.
• Existing EC 9.510(14) Usable Outdoor Living Area is deleted. Proposed code addresses this
elsewhere. In addition, current requirement is vague and difficult to apply for each PUD.
Criteria regarding open space preservation and clustering have been further emphasized in EC
9.8320 Tentative Planned Unit Development Approval Criteria allowing for case by case
evaluation of common space provisions.
• Existing EC 9.510(7) Buildings and Uses Permitted is deleted since land use and permit
requirements specified in 9.2000s Core Zoning will now indicate what types of uses can be
included in a PUD.
• Existing EC 9.510(12) Public Use Areas is deleted since it is unclear and appears unnecessary.
Other provisions in this section, including PUD criteria, address the issues discussed in this
section.
• EC 9.510(17) Landscaping. Draft code deletes reference to protection of solar access to solar
protected building unless the vegetation is solar friendly.
9.8320 Tentative Planned Unit Development Approval Criteria- General
Based on existing EC 9.512(6) Decision. Most of the concepts and general language are
maintained in this section. However, a substantial amount of reorganization has occurred so that
each criterion focuses on a specific issue and is distinct from other criterion. In some cases, the
existing criteria have overlapping issues, while in other cases multiple issues are discussed within
one criterion.
The existing code has several provisions for natural resource protection. The draft updates and
expands the types of resources to protect, and clarifies the general statements in the existing
code. Rare native animal protection has been added to reflect the need for developments to
address federally listed salmon and other species early in the design process. These natural
resource provisions contribute to protecting water quality, protecting suitable habitat for
threatened and endangered plants and animals, and protecting other aspects of Eugene's unique
heritage.
1118199 Commentary Page 9.8-16 00007430
Eugene Code -DRAFT- Application Requirements and Criteria
(5) Needed Housing. If the proposal includes needed housing, as defined by State
statutes, the written statement submitted with the PUD application shall clearly
state whether the applicant is electing to use the general approval criteria in EC
9.8320 Tentative Planned Unit Development Approval Criteria- General instead
of the approval criteria found in EC 9.8325 Tentative Planned Unit
Development Approval Criteria- Needed Housing.
9.8320 Tentative Planned Unit Development Approval Criteria- General. The hearings
official shall approve, approve with conditions, or deny a tentative PUD application
with findings and conclusions. Decisions approving an application, or approving with
conditions shall be based on compliance with the following criteria:
(1) The PUD is consistent with applicable provisions of the Metro Plan.
(2) The PUD is consistent with applicable refinement plans.
(3) The PUD will provide adequate screening from surrounding properties
including, but not limited to, anticipated building locations, bulk, and height.
(4) The PUD is designed to preserve the following significant natural features to the
maximum extent practical:
(a) Significant on-site vegetation, including rare plants (those that are
proposed for listing or are listed under State or Federal law), native plant
communities and prominent individual trees, or stands of trees.
(b) All documented habitat for all rare animal species (those that are proposed
for listing or are listed under State or Federal law).
(c) Prominent topographic features.
(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.
Site design techniques that concentrate development, minimize grading, soil
erosion and water quality impacts, or otherwise preserve significant natural
features shall be incorporated unless the applicant demonstrates that other site
design techniques will accomplish a similar level of preservation.
(5) The PUD provides safe and adequate transportation systems through compliance
with the following:
(a) EC 9.6800 through EC 9.6870 Streets Alleys, and Other Public Ways
Standards (not subject to modifications set forth in subsection (11) below).
(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 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.
(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.
DRAFT 9.8-16 O 7 4089
Commentary
9.8325 - Tentative Planned Unit Development Approval Criteria - Needed Housing.
New section designed to address State statutes related to needed housing.
Clear standards are suggested for protection of natural resources that include protecting water
quality, protecting suitable habitat for threatened and endangered plants and animals, and
protecting other aspects of Eugene's unique heritage.
1118199 Commentary Page 9.8-17 0 00 0 7 4 3.' ?
Eugene Code -DRAFT- Application Requirements and Criteria
(7) 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 fluids 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 parry 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.
(8) Residents of the PUD will have sufficient usable recreation area and open space
that is convenient and safely accessible.
(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.
(10) Lots proposed for development with one-family detached dwellings shall
comply with EC 9.2780 Solar Lot Standards or as modified according to
subsection (11) below.
(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.
9.8325 Tentative Planned Unit Development Approval Criteria - Needed Housing.
The hearings official shall approve, conditionally approve, or deny the PUD
application. Unless the applicant elects to use the general criteria contained in EC
9.8320 Tentative Planned Unit Development Approval Criteria- General, where the
applicant proposes needed housing, as defined by the State statutes, the hearings
official shall approve or approve with conditions a PUD based on compliance with
the following criteria:
(1) The applicant has demonstrated that the proposed housing is needed housing as
defined by State statutes.
(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.
(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).
(4) The PUD preserves existing natural resources by compliance with all of the
following:
(a) All rare plant populations (those that are proposed for listing or are listed
under State or Federal law) are preserved. The protected area shall include
DRAFT 9.8-17 1~"
Eugene Code -DRAFT- Application Requirements and Criteria
the area occupied by the plant population(s), plus a minimum 100 foot
buffer around the perimeter of the plant population(s).
(b) All documented habitat for all rare animal species (those that are proposed
for listing or are listed under State or Federal law) is preserved. The
protected area shall include the area occupied by the animal population(s),
plus a minimum 100 foot buffer around the perimeter of the animal
population(s).
(c) All waterways designated for protection by the city are protected.
Protected areas shall include the area between the banks and a minimum
50 foot buffer on each side of the top of the bank.
(d) At least 60% of the existing trees are preserved.
(e) Natural resource areas designated on the Metro Plan diagram as "Natural
Resource" and areas identified in any city-adopted natural resource
inventory are protected. Protection shall include the area of the resource
and a minimum 50 foot buffer around the perimeter of the natural resource
area.
(5) There shall be no proposed grading on portions of the development site that
meet or exceed 20% slope.
(6) The PUD provides safe and adequate transportation systems through compliance
with all of the following:
(a) EC 9.6800 through EC 9.6870 Streets. Alleys, and Other Public Ways
Standards (not subject to modifications set forth in subsection (12) below).
(b) Provision of 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 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.
(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.
(7) The PUD complies with all of the following:
(a) EC 9.6710 Development in Areas with Unstable Soil Conditions (not
subject to modifications set forth in subsection (12) below).
(b) New dwellings shall be within a 5 minute response time for emergency
medical services.
(8) 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.
DRAFT 9.8-18 0H 0 7 4 3 511/8/99
Commentary
9.8330 Site Alteration
Based on EC 9.510(16) Site Modification. Existing code section enables the Hearings Official to
approve some alterations to natural features prior to final plan approval. Historically, this work
has been restricted to public improvements only. Proposed language would eliminate this ability
and require that all land use applications, including related subdivisions, be approved before any
site work could commence. If existing code section is retained, staff recommends that the
language specify that such work be restricted to public improvements.
1118199 Commentary Page 9.8-19 0 0 0 0 7 4 3 5
Eugene Code -DRAFT- Application Requirements and Criteria
(b) Prior acceptance by the appropriate public agency of a written
commitment by the applicant or other parry 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.
(9) All proposed dwellings within the PUD are within 1/4 mile of an accessible
recreation area or open space that is at least one acre in size and will be
available to residents.
(10) Stormwater runoff from the PUD will not create 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.
(11) Lots proposed for development with one-family detached dwellings shall
comply with EC 9.2780 Solar Lot Standards (these standards may be modified
as set forth in subsection (12) below).
(12) 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.
9.8330 Site Alteration. Unless specifically permitted by the hearings official, vegetation,
topography, and other natural features of areas proposed for a PUD shall not be
substantially altered until final PUD approval, and then, only as authorized by the
final PUD approval. Substantially altered includes, but is not limited to, site grading
and removal of trees or other vegetation. If a subdivision is required, site alteration
shall not be permitted until after tentative subdivision approval is granted.
Planned Unit Development, Final Plan
9.8350 Purpose of Planned Unit Developments, Final Plan. The PUD process includes
both a tentative and final plan. Final plan approval is required primarily to ensure that
tentative plan approval conditions have been met.
9.8355 Applicability. A final PUD plan is required for every approved tentative PUD, and
every phase of a tentative PUD.
9.8360 Planned Unit Development, Final Plan Application Requirements. In addition to
the provisions in EC 9.7010 Application Filing, the following specific requirements
apply to PUD final plan applications:
(1) Applications shall contain final maps and supplemental materials required to
demonstrate compliance with tentative plan conditions of approval.
(2) Final PUD plans may be submitted in phases, if such phases were approved as
part of the tentative PUD consideration. The boundaries of each phase of the
DRAFT 9.8-19 0 0 0 0 7 4S 99
FINDINGS OF THE HEARINGS OFFICIAL
.ON APPEAL OF
PLANNING DIRECTOR'S
INTERPRETATION
Code Inte retation of EC 9.8325 3 CI 044
Request: The appellant challenges the Planning Director's interpretation of
EC 9.8325(3)
Applicant/Appellant: Bill Kloos, on behalf of Walter Custom Homes
The following findings of fact and conclusions of law are based upon testimony
presented at the public hearing of July 14, 2004, and all materials and documents
submitted and made part of the planning department file through the close of the
record on that date.
CONCLUSION: The Planning Director's interpretation is affirmed,
DISCUSSION AND FINDINGS:
A. Background
On behalf of Walter Custom Homes, the applicant requested an interpretation from
the City Planning Director of EC 9,8325(3). Specifically, the applicant requested
"confirmation that the standard [EC 9,8325(3)] allows streets, as defined by the code,
and fences to be located within the required 30-foot wide landscape buffer area along
the perimeter of the PUD."
EC 9.8325(3) requires that
"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),"
The Planning Director determined:
"The criterion of EC 9.8325(3) requires a 30 foot wide landscape buffer
between the proposed development and surrounding properties, The required
landscape buffer must comply with EC 9,6210(7), Massed Landscape
Standard (L77), EC 9.8325(3) does not provide for any exceptions or
deviations from this requirement and EC 9.6210(7) does not allow streets or
fences. As such, for a PUD proposed under the City's needed housing track,
no streets or fences are allowed within the 30 foot wide landscape area that
DECISION OF HEARINGS OFFICIAL July 29, 2004 (CI 04-4) Page I of 3 EXHIBIT L
buffers the proposed development from surrounding properties. It should be
noted, however, that pursuant to EC 9.8325(3), the 30 foot wide landscape
area is required to buffer the proposed development form surrounding
properties, The landscape area need not buffer the proposed development
from surrounding streets."
The applicant appeals the Planning Director's interpretation.
B, Issues on Appeal
In its appeal statement, the applicant/appellant asserts three bases of appeal of the
planning director's interpretation:
I . The Planning Director's interpretation is inconsistent with the plain language of
the Eugene Code, which does not expressly prohibit other features from being
located within the 30 foot wide buffer area.
2. The Planning Director's interpretation fails to adequately explain why adjacent
streets are not considered surrounding properties or to explain why, under its
interpretation, surrounding streets should be treated differently than streets located
within the proposed "needed housing" PUD,
3. The Planning Director's interpretation is inconsistent with the requirements of
ORS 197.307 due to the fact that the application of that interpretation may have
the effect of discouraging or adversely impacting proposals for needed housing.
C. Evaluation and Findings
The clear and plain language of EC 9.8325(3) states that a PUD must provide a 30
foot buffer between the proposed developing and surrounding properties. It allows
nothing else. It provides no exceptions. It does not indicate in any way that there
may be some "discretion" to allow anything else. The appellant's argument that,
because the code language does not specifically exclude fences and streets, it
somehow must be interpreted to include those features is not well taken. Under the
needed housing clear and objective track, criteria must be clear and objective. No
discretion to allow streets, fences or other features could be considered.
For the further reasons well explained in the City's July 6, 2004 appeal memorandum,
which is incorporated here, each of the appellant's bases for appeal is denied.
D. Decision
The appeal is denied and the Planning Director's interpretation is affirmed.
Dated this 29th day of July, 2004,
DECISION OF HEARINGS OFFICIAL July 29, 2004 (CI 04-4) Page 2 of 3
Respectfully submitted,
Virginia L. Gustafson
HEARINGS OFFICIAL
NOTICE OF APPEAL RIGHTS: This decision may be appealed to the Land Use
Board of Appeals, within 21 days of the mailing of this decision, in accordance with
the appeal procedures set forth in ORS Ch. 197 and OAR Ch. 661, Div. 10.
DECISION OF HEARINGS OFFICIAL July 29, 2004 (CI 04-4) Page 3 of 3
Planning & Development
Planning
City of Eugene
99 West 101h Avenue
Eugene, Oregon 97401
(541) 682-5377
(541) 682-5572 FAX
www.ci.eugene.or.us
May 27, 2004
Bill Kloos
Law Office of Bill Kloos, PC
PO Box 11906
Eugene, Oregon 97440
RE: Code Interpretation regarding EC 9.8325(3)
City Fite CI 04-4
Summary of Request:
In accordance with Section 9.0040, Land Use Code and Decision Interpretation, you submitted a request
for a Planning Director interpretation concerning whether the Tentative Planned Unit Development
Approval Criteria - Needed Housing, EC 9.8325(3), allows for streets (as defined by the code) and fences
to be located within the required 30 foot wide landscape buffer area along the perimeter of a planned unit
development (PUD).
The criterion of EC 9.8325(3) is as.follows;
The PUB 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)
Findings and Conclusion:
The criterion of EC 9.8325(3) requires a 30 foot wide landscape buffer between the proposed
development and surrounding properties. The required landscape buffer must comply with EC 9.6210(7),
Massed Landscape Standard (L-7). EC 9.8325(3) does not provide for any exceptions or deviations from
this requirement and EC 9.6210(7) does not allow streets or fences. As such, for a PUD proposed under
the City's needed housing track, no streets or fences are allowed within the 30 foot wide landscape area
that buffers the proposed development from surrounding properties. It should be noted, however, that
pursuant to EC 9.8325(3), the 30 foot wide landscape area is required to buffer the proposed development
from surrounding properties. The landscape area need not buffer the proposed development from
surrounding streets.
Appeal:
According to Eugene Code Section 9.0040, appeals of a Planning Director interpretation o the Land Use
code shall be heard by hearings official in the manner set out in EC 9.7600 - 9.7635. The decision may
be appealed within 12 days of the date the interpretation was mailed and shall be submitted on a form
approved by the city manager and accompanied by a fee.
Steve N strom, Pri ipal Planner date
For Susan Muir, Eugene Planning Director
For more information contact: Alissa Hansen, Associate Planner, 541/682-5508
LAW OFFICE OF BILL KLOOS, PC
OREGON LAND USE LAW
May 17, 2004
Ms. Susan Muir, Planning Director
Eugene Planning and Development
Atrium Building
99 West 10th Ave.
Eugene, OR 97401
Re: Request for Interpretation of EC 9.8325(3)
Dear Ms. Muir:
576 OLIVE STREET, SUITE 300
EUGENE, OR 97401
PO BOX 11906
EUGENE, OR 97440
TEL (541) 343-8596
FAX (541) 343-8702
E-MAIL BILLXLOOS@LANDUSEOREGON.COM
Please accept this letter and accompanying fee as a request for a Director's Interpretation under
EC 9.0040. This request if filed on behalf of Walter Custom Homes. The code section in
question is 9.8325(3).
EC 9.8325(3) is a Tentative Planned Unit Development Approval Criteria for applications being
processed under "Needed Housing" track. The approval standards requires:
"The PUD provides a buffer area between the proposed development and
surroundingproperties by providing at least a 30 foot wide landscape area along
the perimeter of the PUD according to EC 9.6210(7), "
The reference to EC 9,6210(7) is the "Massed Landscape Standard (L-7)" in the code's list of
"Description of Landscape Standards,"
The interpretive question is as follows: My client would like to confirm that the standard above
allows streets, as defined in the code, and fences to be located in 30-foot wide landscape area
along the perimeter of the PUD.
Our expectation is that the answer to the question above will be affirmative. Initially, any
standard that is to be applied to a Needed Housing application must be clear and objective. ORS
197.307(6). Furthermore, it must be clear and objective on the face of the ordinance, ORS
227.173(2). Whether a standard is clear and objective, and thus able to be applied, is something
that can be determined in the context of a specific application. See Home Builders Assn. of Zane
County v. City of Eugene, 41 Or LUBA 370, 422-23 (2002), Generally, if determining the
meaning of the provision or whether it applies requires the exercise of judgment, then the term is
not clear and objective and, we believe, may not be applied.
Ms. Susan Muir
May 17, 2004
Page 2 of 2
With that as background, my client would suggest that the provision must allow streets within the
30-foot landscape along the perimeter. This is so because any development site needs to be
accessed by a street or streets. To say that the criteria above does not allow streets in the 30 foot
wide landscape area would be to say that the site can't be developed.
Similarly, the allowance of streets in the landscape area should not be subject to any limitations
on how much of the 30-foot perimeter area may be occupied by streets. To do so would require
the exercise of judgment, which would make the criteria discretionary in nature, not clear and
objective.
Similarly, the criteria should not be read as prohibiting the placement of fences in the 30-foot
area, as there is no prohibition against fencing in connection with the criteria.
Sincer ,
I
Klo
cc: Client