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HomeMy WebLinkAboutApplicant's Final ArgumentLAW OFFICE OF BILL KLOOS PC OREGON LAND USE LAW 375 W. 4TH AVENUE, SUITE 204 EUGENE, OR 97401 TEL: 541.343.8596 WEB: WWW.LANDUSEOREGON.COM October 12, 2016 Mr. Fred Wilson Eugene Hearings Official c/o Eugene Planning and Development 99 W. Broadway Eugene, OR 97401 Re: LaurelRidge Zone Change (City File Z 15-5) Applicant's Final Argument Dear Mr. Wilson: BILL KLOOS BILLKLOOS@LANDUSEOREGON.COM This is the final argument in this local proceeding, which is the city's third attempt to give the applicant the zoning designations it is entitled to under the Metro Plan. We start with the listing of the basics relating to: (1) the responsibilities of the parties; (2) the scope of the remand; (3) the data that Hearings Official has to work with. We conclude with a short argument in part (4). 1. The responsibilities of the parties. As the Hearings Official pointed out in Round 2, the applicant is entitled to the zoning it is requesting, which is R-1 zoning for that part of the subject property that has an LDR Metro Plan designation. Affording the applicant the R-1 zoning it is entitled to requires the Ci to identify a line separating the LDR and POS plan designations on the subject property. The "line" must be a metes and bounds line, not a pencil or pen line that has a greater or lesser width on the ground based upon the type of pen and the scale of the map. The location of the boundary line is a question of law, because it is on the Metro Plan, and the Metro Plan itself is city law. As an issue of law, the location of the line is not something to be determined by consensus, or as a matter of policy, or by majority of votes at a hearing. Knutson Family LLC v. City ofEugene, 200 Or App 292, 300 n5, 114 P3d 1150 (2005). There is only one right answer. The applicant proposed a boundary line, reduced to a metes and bounds line. The applicant went first with a proposal, not because the applicant has the burden of proof as to where the line is, but because the applicant had to file the application, and the application had to ask for something. Eugene Hearings Official October 12, 2016 Page 2 In Round 2 the City staff supported the metes and bounds line proposed by the applicant. This support continued through the hearing in Round 3. Then, after the close of the hearing, the staff shifted gears a bit, based on its belief that LUBA requires the City to use multiple referents. Staff does not have any special insight into what LUBA required. Neither does the staff have any insight or is due any deference to how the Metro Plan should be read, because the three governing bodies adopted the Diagram and the rules for interpreting the Metro Plan Diagram (most notably that the Diagram is not parcel specific at this location). 2. The Scope of LUBA's remand. The Hearings Official was required to show that he "considered" LHVC Sheet 9/2/15-04. "Consider" means to consider, not to be bound by. Decision at 22: In sum, we agree with LHVC that remand is necessary for the planning commission or hearings official to consider Sheet 9/2/15-04 free of the mistaken assumption that it is based on the digital Metro Plan diagram, and adopt any necessary findings based on that consideration. We do not mean to suggest that the city may not choose to consider or to rely on Sheet 9/2/15-04 for other reasons that are explained in its findings on remand. However, the city erred in declining to consider Sheet 9/2/15-04 for the reason cited. As explained below, consideration of Sheet 9/2/15-04 on remand will likely be shaped by our resolution of the third sub-assignment of error, which concerns whether the city must consider additional referents, and which ones, in determining whether the proposed zoning is consistent with the 2004 Metro Plan diagram. The Hearings Official should consider using multiple referents, but he is not required to use multiple referents if it will not result in a more accurate determination of the boundary line. Decision at 28: While Environ-Metal is correct that there is no legal requirement to use multiple referents to answer the question posed by EC 9.8865(1), we generally agree with LHVC that, unless there is some reason to question the accuracy of referents, a multi-referent approach is likely to produce a more accurate and reliable result, compared to the single-referent approach advocated by Environ Metal and accepted by the hearings official. Decision at 30: Eugene Hearings Official October 12, 2016 Page 3 Accordingly, we agree with LHVC, at least in the abstract, that a multi-referent, multi-axis approach is likely to produce a more accurate and reliable result than a single-referent, single-axis approach. In our view, if multiple referents are available, a reasonable decision maker would at least consider the "fit" provided by multiple referents, and would not limit consideration to the fit provided by a single-referent, single-axis approach. As discussed below, the parties dispute whether other referents are available or reliable. There appear to be two main disputes: whether the hearings official should have considered (1) the fit provided by matching the survey map and enlarged Metro Plan diagram depictions of the portion of East-30th Avenue that curves to the west near its intersection with Spring Boulevard, and (2) matching the city limits line from the survey map with the east boundary of Spring Boulevard and the "green finger" shown on enlarged Metro Plan diagram. We turn to those arguments. Once the Hearings Official has determined the relevant referents to use, how he matches up the survey information with those referents is an evidentiary call. Decision at 33: Environ-Metal argues that choosing the "fit" of the East 30th Avenue centerline with the black line representing East 30th Avenue on the 2004 Metro Plan diagram has a fact-finding quality to it to which LUBA should defer, if that judgment is supported by substantial evidence. However, in our view, choosing the alignment that is consistent with the Metro Plan diagram is a mixed question of law and fact. Choosing which referents to rely upon is fundamentally an interpretation of the 2004 Metro Plan diagram, and thus a matter of construing the law. We agree with Environ-Metal that, once the relevant referents have been determined, the hearings official's choice between competing diagrams showing different alignments of surveyed lines with the same set of referents would be an evidentiary call, which LUBA must affirm if based on substantial evidence, i.e. evidence that a reasonable person would rely on in reaching a decision. Younger v. Portland, 305 Or 346, 358-60, 752 P2d 18 262 (1988). However, the hearings official never had the opportunity to make such a choice with respect to East 30th Avenue, in part because he had eliminated from consideration all maps he believed were not based on the 2004 Metro Plan diagram, including Sheet 9/2/15/-04. He believed, erroneously, that only the two final overlaid diagrams Environ-Metal submitted, Exhibits L and M, were based on enlargements of the paper Metro Plan diagram. The Hearings Official can affirm his original decision if he makes adequate findings explaining his decision. Eugene Hearings Official October 12, 2016 Page 4 Decision at 34: For the reasons stated in the first sub-assignment of error, remand is necessary for the hearings official to consider Sheet 9/2/15-04 free of the erroneous impression that it is based on an enlargement of the digital Metro Plan diagram. Unless there is some other reason not to consider Sheet 9/2/15 04, for the reasons stated above the hearings official on remand should make an evidentiary choice between Exhibit L and Sheet 9/2/15-04 with respect to the matchup between the surveyed centerline and the black line representing East 30th Avenue. We do not mean to suggest that the hearings official cannot ultimately conclude, as an evidentiary matter, that the matchup between the centerline and the black line that is depicted on Exhibit L is more consistent with the 2004 Metro Plan diagram than matchup depicted on Sheet 9/2/15-04, based on findings that explain the basis for that conclusion. However, the hearings officer must resolve that question in the first instance. The Hearings Official needs to "consider" at least the city limits line, Spring Blvd., and the green finger. Decision at 38: In sum, we agree with LHVC that on remand the hearings official should give appropriate evidentiary consideration to referents provided by the matchup between the city limits line, and the depicted boundaries of Spring Boulevard and the green finger, in determining whether the proposed zoning is consistent with the 2004 Metro Plan diagram. 3. The data that the Hearings Official has to work with now. When it comes to what is where, there are just three kinds of data in the Record to work with. (a) There is the Metro Plan Diagram; (b) there is survey data; and (c) there is everything else, which is GIS data from one source or another, which is not on the Metro Plan Diagram. (a) Metro Plan Diagram is scanned and enlarged and comes from two competing sources. The Applicant started with a first generation copy of the adopted Diagram that is part of the original ordinance, obtained from the City Recorder as a public record, as documented in the Record. That was then scanned at Fedex Office at the highest resolution available. The opponents started with a copy provided by city staff, taken from a published copy of the Metro Plan. It is not a first generation copy of the original; we don't know its full pedigree. We know from the text of the Plan that the Diagram is "generalized," and, more importantly, that at this location it is not parcel-specific. It has qualities of a cartoon. Eugene Hearings Official October 12, 2016 Page 5 (b) The survey data are precise in the real world. Only the applicant has submitted survey data. Survey data are now available for the boundaries of the subject property and the following real world features tied to the subject property: Centerline of E. 301h Ave.; the centerline of Spring Blvd.; the boundaries of TL 301 - the green finger; the east boundary of TL 500; and the west, north and east boundaries of TL 800 - Bloomberg Park. All these data are shown on a single survey map by Branch Engineering, submitted at the hearing. The Applicant's September 21 hearing submittal also included four large sheets, each fitting the survey of the subject property to one of four surveyed referents - the center line of 301h Ave., the green finger, Spring Blvd, and Bloomberg Park. Survey data are available for only one proposed location of the plan boundary line. That is the line proposed by the applicant and approved in the previous decision. (c) The GIS data, notably county tax lot data and the city limits line, are not precise in the real world. By definition these data sets are all approximations. Every source of GIS data that was used by the City or the opponents is a database that comes with substantially the same disclaimer about limitations on its accuracy and use. See verbatim disclaimers, quoted in the Schirmer Satre October 5 letter, from the City, the County, LCOG, and RLID. LCOG says: "The relative accuracy and absolute accuracy of this product are not guaranteed * * * The County says about its tax lot maps: "Current configurations and/or designations for specific parcels should always be confirmed with the appropriate jurisdiction(s)." The City says: "the maps and data are dynamic and in a constant state of maintenance, correction and revision. Any maps and associated data for access do not represent a survey." The inherent limitations of the GIS data and shortcomings in the opponents' and staff's use of GIS data are now well documented in the Record. See especially the Schirmer Satre September 28 open record submittal, and the Schirmer Satre October 5 rebuttal evidence. 4. Discussion. The Hearings Official must choose a methodology to locate the boundary line, and then he must actually locate the line. Choosing a methodology: The applicant's methodology uses all survey data for referents on the Diagram. The opponents use only imprecise GIS data for referents on the Diagram and other stuff not on the Diagram. Neither methodology allows simultaneous matching of multiple referents on the Metro Plan Diagram to the subject property. The Applicant showed this for the surveyed referents in its Eugene Hearings Official October 12, 2016 Page 6 September 21 hearing submittals, including the four maps. This is plainly obvious, too, for the GIS data used by the opponents. Whether the Hearings Official uses the applicant's precise survey data or the opponents' imprecise GIS data, he must choose whether to (a) fit the property to less than all the referents or (b) to use all the referents and fit the property in a way that matches none of them. This approach has been referred to as the Ouija Board method. The Applicant suggests that the more sound approach would be to start with the survey data rather than the GIS data. The reason is simple. The survey data are accurate in the real world. The GIS data are not accurate. The Applicant also believes it is more sound to locate the property with respect to less than all the referents on the Diagram. The alternative - the Ouija Board method - requires picking a final location on the Board with nothing to go on other than how it feels. The final location will float among the referents. The Hearings Official will have nothing to justify the final location fitting the survey data to the Diagram other than how it feels. Put differently, it will be hard to explain in the decision why the final location is any better than a slightly different final location. If less than all the surveyed referents are used, then the Applicant believes that the Hearings Official should affirm his initial decision, using the surveyed centerline of 301h Avenue. That decision is fully defensible on remand, provided additional findings are made about what data sources have been considered. That approach was explained by the Hearings Official in the first decision as relying on the surveyed referent that is closest to the surveyed property. That rationale is fully intact in the remand. Describing the line: The Applicant believes that the Hearings Official needs to reduce the boundary line to a metes and bounds description. The City staff is fully capable of drawing a metes and bounds description for the boundary line they believe is correct. Indeed, the City staff was charged by the Hearings Official in Round I to verify the applicant's proposed metes and bounds description after the decision. However, the staff has not suggested a metes and bounds line of its own. It is just a matter of time, interest, and will power. There is now only one metes and bounds description of a boundary. That is the Applicant's description approved in the first decision. It would not be good enough for the Hearings Official to pick a line on a hard copy map and say that is where the boundary is. Any line on a hard copy map has a width on the ground. The width on the ground, of course, depends on the scale of the map and the thickness of the pen used to draw the line. How is a pencil line on a map, approved by the Hearing Official, going to be transformed into a metes and bounds line? The pencil line itself could be acres on the ground for a site of this size. Put differently, turning an approved pencil line on a map into a metes and bounds line after this decision is made really would be a new fact-finding mission. That is something that needs to be done in the context of the decision being made now, because that is Eugene Hearings Official October 12, 2016 Page 7 the basic question of this application - where is the boundary line? A question of fact may not be deferred to a post-decision process. In summary, at this juncture, the Hearings Official needs to set a metes and bounds line as the boundary, and he has only one such line described in the Record. That line is the line he previously approved. That line is fully defensible, with supplemental findings conforming to the LUBA remand. Summary: GIS data are not accurate; the much-cited city limits lines west of the subject property are not surveyed lines. The city has not submitted any surveyed data of its own. LHVC has not submitted any surveyed data of their own. Only the applicant has submitted surveyed data; data which accurately locates multiple referents in relation to the subject property. The city and LHVC have relied on tax lot maps and city limits lines, neither of which are on the Metro Plan diagram and neither of which is surveyed information. The only reliable data on the record which locates the subject property on the Metro Plan diagram is the applicant's data, the applicant's Exhibit L, which was previously approved by the Hearings Official, and upheld by the Planning Commission. As the applicant stated last week, the applicant believes that the Hearings Official got it right the first time, that the applicant's Exhibit L, "Adopted 2004 Metro Plan Map: Rotated, dated 5-15-2015, revised 9-2-15," is the most defensible representation of the subject property's location on the Metro Plan diagram. The applicant believes that, with the additional documentation provided during this remand hearing process, that the Hearings Official can reach the same conclusion again. Sincerely, ow 511~&" Bill Kloos