HomeMy WebLinkAboutApplicant Revised Final Argument (3-20-17)LAW OFFICE OF BILL KLOOS PC
OREGON LAND USE LAW
375 W. 4T" AVENUE, SUITE 204
EUGENE, OR 97401
TEL: 541.343.8596
WEB: WWW.LANDUSEOREGON.COM
March 17, 2017
Mr. Fred Wilson
Eugene Hearing Official
c/o Eugene Planning and Development
Atrium Building
99 West 10th Ave.
Eugene, OR 97401
Re: Amazon Corner TIA Appeal (City File TIA 16-7)
Applicant Final Argument
Dear Mr. Wilson:
BILL KLOOS
B I LLKLOOS@LANDUSEOREGON.COM
Please accept this letter into the record as the applicant's Final Argument.
This letter is intended to include argument only, and, if the Hearing Official determines that any
contents of this letter constitutes new evidence, the applicant requests that such evidence not be
considered.
To summarize: This appeal is about compliance with a Rule that should not be applied at all,
because the code states this use is a permitted use, not a.use that might be permitted depending
on how someone might subjectively evaluate the mitigation of traffic impacts from the bit of
traffic this will produce. Furthermore, the Rule can't be applied because the City has chosen not
to make it a land use regulation, and it does not become a land use regulation just because it gets
an honorable mention in the TIA section of the code. It is also not a land use regulation because
it only involves information requirements; it is not listed as a substantive standard. Finally,
when a TIA is done, the City traffic professionals have broad discretion, based on their technical
expertise, to tailor the information requirements to the site and the task at hand. They did that
and reduced the needed information to a homework assignment. The applicant turned that
homework assignment in to the City experts and got and "A" grade. This is a highly technical
process and product. The opponents should have a very, very high burden to discredit either the
scope of the homework assignment or what was turned in.
This argument is organized around the applicants' documents submitted at the hearing and
during the seven and 14 day post-hearing submittal periods. We will use this letter as more of an
outline that addresses issues, with reference made to parts of the documents we have already
submitted.
The hearing and post-hearing documents we have submitted are:
Hearing documents:
Mr. Fred Wilson
March 17, 2017
Page 2
Sandow Engineering Technical Memorandum, 2.28, 2017 (responding to the
information items included in Administrative Rule R-9.8650 (TIA Rule) and also
attaching the Scope of Work agreement reached with the City of Eugene, Public
Works Engineering)
Lttr from Bill Kloos 2.27.2017 (regarding the pedigree of the TIA Rule)
Seven day documents:
Sandow Engineering Response to Transportation Issues 3.8.2017 (Record PDF
page 2)
Sandow Engineering Response to Lttr from Access Engineering 3.8.2017 (Record
PDF page 9)
Sandow Engineering Response to Items/Issues Raised at Hearing 3.8.2017
(Record PDF page 14)
Lttr from Bill Kloos 3.8.2017 (relationship of TIA to "permitted use") (Record
PDF page 22)
14 day documents:
Jon Lauch Lttr responding to March 8 Staff Report, 3.10.2017 (Record PDF page
2)
Jon Lauch email on bus "Bump-out" issue, 3.15.2017 (Record PDF page 15)
Sandow Engineering Response to March 8 Attorney Mittge Lttr 3.15.2017
(Record PDF page 21)
Sandow Engineering Response to March 7 Collinge Letter 3.15.2017 (Record
PDF page 41)
A. Procedural Issues
The applicant requests that some of the opposing testimony submitted during the 14-day open
record period should be stricken because it is outside the scope of what is allowed at that time.
The scope of the post-hearing submission at the 14-day mark is limited by statute. The statute is
ORS 197.763(6)(c), which says:
"If the hearings authority leaves the record open for additional written evidence,
arguments or testimony, the record shall be left open for at least seven days. Any
participant may file a written request with the local government for an opportunity
Mr. Fred Wilson
March 17, 2017
Page 3
to respond to new evidence submitted during the period the record was left
open. If such a request is filed, the hearings authority shall reopen the record
pursuant to subsection (7) of this section." (emphasis added)
Thus, between the seven day period and the 14 day period, a person may submit evidence
responding to evidence submitted during the first seven day period. That is not a time to submit
evidence responding anything submitted prior to or at the hearing. It is also not a time to submit
evidence responding to anything that was submitted early during the second seven day period.
All or part of three submissions by opponents on the 14a' day violate this limitation and should
be stricken or disregarded.
The 14 day submission by James Brock should be stricken, with the exception of the third
paragraph on page one. That single paragraph responds to the seven day submission of
Sandow Engineering; hence it is in the scope of what is allowed in the second seven day
period. The balance is all material that could have been submitted at the hearing or in the
first seven day submittal, or includes new evidence that is not allowed.
The 14-day submittal by Mr. Fodor, dated March 15, also contains material that should
be stricken. Section 5 on page 6 of this document contains material that should been
submitted at the hearing. It is not responsive to any seven day submittal.
The 14 day submittal of Mr. Collinge dated March 15 should be stricken because it is
responsive to the 14 day submittal of Jon Lauch, which was dated March 15. A 14-day
submittal filed early cannot be the target of another party's 14-day submittal.
B. Substantive Issues
There should be an order to this decision that starts at a pretty high level and then, in answering a
series of questions, eventually moves down into the detailed nuances of traffic engineering. The
applicant believes the inquiry should end at a fairly high level, with the Hearing Official
affirming the Director's decision.
The logical order of the questions should be:
1. Is a TIA requirement relevant to allowing this use, which is permitted outright by the
code?
2. If the TIA approval is required to allow this use:
(a) Is the City prohibited from applying the TIA Rule it because it is not an
acknowledged land use regulation?
(b) Is the TIA Rule a source of substantive standards for this decision, or is it just
an information requirement that is not relevant at this juncture?
Mr. Fred Wilson
March 17, 2017
Page 4
3. If the TIA Rule information requirements can be applied at this juncture in the
decision process, are the items of information alleged to be missing in the TIA report
necessary to approve the report?
4. Is the TIA Report otherwise adequate on the merits?
1. The TIA requirement in the code is not relevant to allowing the proposed use, which is
permitted outright by the code.
This issue is the subject of the seven day submittal (March 8) from this office.
Our March 8 memorandum explains that the uses proposed for this site are permitted outright or
permitted subject to development standards, which have been met in the proposal. No party has
argued otherwise. We summarize this point at page 2 of our March 8 letter:
"To summarize, there is no explicit linkage in the code that makes this permitted
use contingent upon complying with any substantive standard in the TIA process.
If the TIA were intended to be a standard that limits the initiation of the use, state
law requires that to be explicit in the code. ORS 227.173(1). We start with the
premise that the zoning code lists the proposed uses as permitted uses, with the
residential being subject to identified special development standards in EC
9.5000. The TIA requirement is not a "Special Development Standard" in EC
9.5000. Neither is it a "General Development Standard" in EC 9.6000. It is,
instead, grouped with "Application Requirements and Criteria" in EC 9.8000."
The TIA requirement in the code is inherently a discretionary review process; it involves
judgments; it is processed as a statutory permit - hence the opportunity for appeal and a hearing.
If the TIA process is viewed as a process that can potentially limit or block the proposed uses,
that would transform a permitted use into a discretionary use, say a "conditional use," and that
would be flatly contrary to what the code allows on this site as "permitted."
2(a) If the TIA review process is required to allow this use, then the City is
prohibited from applying the TIA Rule because the Rule is not an acknowledged
land use regulation.
The entirety of opponents' objections to this application relate to compliance with the details of
the TIA Rule. If the Rule is not a source of standards that may be applied by the City, then the
objections of the opponents do not provide a basis for overturning the Director's approval of the
TIA.
This issue was discussed in depth in the hearing letter from this office dated February 27. Part
3(b) of our hearing letter documents the status of the Rule as not being acknowledged. It
summarizes the Davenport and Von Lubken line of cases that explain that the City may only
apply "land use regulations," and a local enactment only achieves the status of a land use
regulation when it is acknowledged. Here we do not have a "land use regulation" because the
Rule was not acknowledged. The City knows how to pursue acknowledgment of administrative
Mr. Fred Wilson
March 17, 2017
Page 5
rules. Our hearing memorandum documents the city's experience with its storm water rule,
which it has taken through the acknowledgment process twice.
Our hearing letter also explains that the TIA Rule does not acquire "land use regulation" status
merely be being referenced in the text of the zoning code that was adopted before the Rule was
adopted.
The City has elected not to have the TIA Rule acknowledged. The City may shift gears and
pursue acknowledgment in the future. However, at this juncture the City may not apply the Rule
as a substantive standard in this proceeding because it is not a "land use regulation" in the
meaning of ORS Chapter 197.
2(b). If the TIA process is required to allow this use, then the TIA Rule is not a
source of substantive standards for this decision; it is just an information
requirement that is not relevant at this juncture.
Allegations of missing information are not a basis for a finding of noncompliance with the
substantive standards. Information requirements are not approval standards.
It is important to distinguish between information requirements and substantive standards for
review. The former are needed to get an application in the door at the City and in the review
process. The latter are applied to approve or deny the application. The TIA Rule has utility in
helping the city professional staff to exercise their professional judgment in setting the scope of
work for the TIA. The rule is not a basis for non-experts to second guess the judgment of the
city professionals. This point is elaborated upon in item 2 of our February 27 hearing letter.
Generally, allegations of missing information in an application are not a basis for remanding a
decision or denying an application under the substantive standards that apply. Our hearing letter
tracks the case law on this point, including a case involving the appellant Southeast Neighbors.
The Hearing Official should find, categorically, that the TIA Rule is all about information
requirements for the TIA; it is not a source of substantive standards that may be invoked to reject
a TIA as inadequate.
3. The scope of the TIA was adequate under the code and the TIA Rule. Items of
information alleged to be needed by the Rule but missing in the scope of work are not
needed because they are "excepted" under EC 9.8675 and R-9.8650-E.
The code and the TIA Rule recognize that setting the scope of work for a TIA is not a "one size
fits all" exercise. The Rule states a very long list of information is potentially needed to be
collected in a TIA. But the code and the Rule also allow the professional city staff to shrink the
list a bit, based on the circumstances. This is what the City staff did here, and they were fully
authorized to do so. This is more fully explained in item 1 of our February 27 hearing letter.
Opponents took issue with the smallest details of what was and was not included in the TIA,
disregarding the professional expertise and judgement of the technical experts City Engineers
Mr. Fred Wilson
March 17, 2017
Page 6
and Applicant Engineers. The applicant's traffic engineer walked through all the fine points of
the information requirements stated in the TIA Rule, and explained, in much greater detail, why
information that was not gathered for submission was not needed for the TIA. See Sandow
Engineering's Technical Memorandum, February 28, 2017.
As we mentioned at the hearing, with the aid of the small, medium and large "bucket" metaphor,
this entire proceeding is about highly technical engineering information. The persons with large
buckets of relevant technical information can be counted on just a couple of fingers, and they do
not include the Hearing Official. Unlike the vast majority of land use decisions that hit the
public hearing docket, this is the kind of inquiry in which the Hearing Official should be most
deferential to the professional opinions of the City staff.
Opponents had a long list of information critiques of the scope of work. Without getting too
deep into the weeds, we would make the following several points about why the scope of work
approved by the City and executed faithfully by Sandow Engineering was adequate:
Intersections studied: Study area intersections are determined based upon 3
criteria; direct access, contiguous to the development, and development adds 50 new
trips. The site driveways, Hilyard/32"a, Hilyard/31 St, and Hilyard/3 0 th ~ meet the above for
warranting an analysis. All other intersections within the neighborhood do not meet the
criteria for warranting an evaluation, therefore, they are not required to be included.
Sandow Engineering's engineers and the City of Eugene's engineers used their technical
expertise and professional industry standards to define how the study area meets the
requirements. The arbitrary assertion that other intersections need to be studied based on
proximity are well beyond the requirements of the code and in misalignment with the
professional expertise and judgement of the engineers.
Time periods studied: The site driveways are the only direct access to the
development; therefore, they were analyzed for the AM and PM peak hours. Hilyard/
32"d is the only contiguous (along the development frontage) intersection to the
development; therefore, was analyzed for the AM and PM peak hours. Hilyard/3I" and
Hilyard/300' had 50 trips added during the PM only, therefore they were included in the
PM analysis. All other intersections within the neighborhood do not meet the criteria for
warranting an evaluation.
Intersection Performance and Mitigation: Sandow Engineering provided
intersection LOS analysis for the PM and the AM conditions as required, contrary to
assertion of Appellant's statements made up to and including the March 15th submittals.
The LOS analysis as provided by the Applicant's engineer and approved by the City's
engineer demonstrates that the mitigation, as described in the TIA and conditioned by the
City, is sufficient to mitigate the impact of the development to City of Eugene's
standards, and no other mitigation is necessary to meet the standards.
Mr. Fred Wilson
March 17, 2017
Page 7
The Hearing Official should find that the Director did not error in setting the scope of work for
the TIA to include what was requested of the applicant, and to except the balance of the potential
information requirements that were deemed unnecessary or irrelevant to inform the results of the
analysis.
4. The TIA report was adequate to the task, and the Director's approval should be
affirmed.
We recommend to the Hearing Official, the Staff Report for the hearing, and the supplemental
staff reports at the seven and 14 day periods. These reports address the major issues in good
fashion. We note that the Staff has not addressed our arguments in points 1 and 2 above. That is
understandable, as to do so would mean that the staff would be questioning the applicability of
their own code language, which on the face of things would seem to apply. The applicant
believes, however, that the points in 1 and 2 above are really threshold legal issues that should be
in a first and second step, before getting to challenges to the adequacy of the TIA report.
Here we address, in summary fashion, a handful of the more contentious issues that arose in the
hearing and post-hearing periods. Each of these issues is addressed in detail in the applicant's
documents listed above.
(a) The appellant asserts that the TIA did not sufficiently address intersections beyond
those that are contiguous to the site, that provide direct access to the site, and that are impacted
by an additional 50 trips or more. The evidence in the record clearly demonstrates compliance in
this regard. Two driveways provide the only direct access to/from the site to/from the adjacent
streets; the intersection of 32nd & Hilyard is the only contiguous intersection; and only the
intersections at 31" and Hilyard and 30°i & Hilyard are impacted by 50 trips or more. Analysis
of all has been included in TIA. Broadening the study to analyze additional intersections in the
wider neighborhood is not required, and it would not change the conclusions of the analysis.
(b) The appellant has repeatedly claimed that an AM peak hour analysis has not been
done. Actually, the Applicant has done this twice, using different approaches to the trip
generation for the commercial retail space. See Sandow Engineering Letter to Scott Gillespie,
December 26, 2017, and Sandow Engineering Response to Transportation Issues, March 8, 2017.
(c) Lastly, the Appellant has alleged that the parking issue was not fully addressed. This
has been addressed in detail in the Sandow Engineering's Response to Additional Testimony,
March 15, 2017.
Mr. Fred Wilson
March 17, 2017
Page 8
In summary, the Applicant has provided a Traffic Impact Analysis that meets or exceed all City
of Eugene standards and requirements, and we believe you should find in favor of Planning
Director's original approval of the TIA for this development.
Sincerely,
Bill Kloos
Bill Kloos
Cc: Zach Mittge