HomeMy WebLinkAboutPUBLIC COMMENT – LLOYD HELICKSON (6-16-17)June 16, 2017
Lloyd Helikson
Eugene, OR 97405
541-357-0923 (cell)
lwhelikson@gmail.com
RE: Envision Eugene Planning Issues (Updated and Revised)
Mayor, City Council, Lane County Board of Commissioners and Staff:
1. Introduction
Page 1
The planning done by the City as part of Envision Eugene includes apparent errors which
impact the data and analysis used to support the City staff findings, recommendations and
proposed policies. Some of the issues raised in this letter have previously been presented to
staff and/or Council.' The City has asserted a multifamily MDR/HDR deficit of 1,617 dwelling
units (du). My studies appear to show that this deficit does not exist in this planning period
(2012-2032). My studies also appear to show that development built or planned within the
planning period has resulted or will result in significantly more than the 3,776 5+ multifamily
units claimed by the City to be needed by the end of the planning period. Page 16 contains a
summary of my findings.
Issues:
• Lack of Updated 2004 Metro Plan Diagram - The official Metro Plan is a small map not
digitized and not lot specific. There appear to be instances where City Zoning and/or
Refinement Plans have "higher" designations than the Metro Plan, which presumably was
used to create the Buildable Land Inventory.
• Buildable Land Inventory/Land Model Assumption Issues - The City's data
assumptions may be incorrect, including as to the planning period start date.
• Buildable Land Inventory Data Issues -Analyzing the data to create the Buildable Land
Inventory revealed apparent errors resulting in underestimating multifamily dwelling unit
du") capacity by up to 469 du, and potentially more.
• Potential Inappropriate Exclusion of Capacity - The City's exclusion of capacity for
residential land used for non-residential purposes may have resulted in underestimating
multifamily dwelling unit capacity by up to 934 du.
• Development Much Greater Than City Assumed - A substantial amount of development
has occurred in Eugene since the start of the planning period, exceeding the 20 year goal
of 3,776 multifamily 5+ units by about 1,577 du. Such actual development has not been
incorporated into the Envision Eugene analysis.
• Development Assumptions - The assumptions made by the City for development during
the plan period are too low, and appear to underestimate multifamily capacity from
redevelopment by up to 1,560 du, from development on LDR by up to 270 du, and from
increased development density by up to 585 du.
1 See Letter to Mayor and City Council dated January 10, 2015; Rebuttal Letter to Mayor and City
Council dated July 13, 2015; Meeting with planning staff October 3, 2016; Letter to Mayor and City
Council dated October 22, 2016. Staff has been very responsive to past requests, but more recently
responded to requests for information and clarification by telling me "right now [staff is] focusing on
finalizing all the draft technical documents and not digging into technical inquiries." Email 11 /10/16.
June 16, 2017 Page 2
The Buildable Land Inventory ("BLI") and the Eugene Land Model, which is based upon the
BLI, appear to have errors in data, assumptions, and analysis. The City's analysis is complex
and not transparent in some respects. Statewide Planning Goal 1 requires that the City
"develop a citizen involvement program that insures the opportunity for citizens to be involved
in all phases of the planning process." The program is required to "provide for continuity of
citizen participation and of information that enables citizens to identify and comprehend the
issues." Although the City should not be held to "an unreasonably high level of precision," the
20-year need determinations are estimates which are to be "based on the best available
information and methodologies." OAR 660-024-0040(1). The City's calculations and
estimates should be adjusted so as to be based upon the best available information and
methodologies.
II. Lack of an Updated 2004 Metro Plan Diagram
The planning problems start with the use of an outdated 2004 Metro Plan diagram. The
diagram is an 11" X 17" piece of paper containing the metropolitan Eugene-Springfield land
use designations. A memo from the City Attorney's office indicated that "the City does not
have an adopted digitized map. The 2004 Metro Plan Diagram was `derived' from a digital
database; however, the hard copy of the 11 x 17 map was the only diagram that was officially
adopted." 2
The Metro Plan diagram is the governing source of land use designations for land use
decisions in Eugene. 3 "[T]he `digital version' of the Metro Plan diagram is one or more maps
generated by a digital database maintained by the Lane County Council of Governments
(LCOG)." "[M]aps generated from the LCOG database are not officially adopted maps, and
* * * the paper 2004 Metro Plan diagram is the relevant Metro Plan diagram for purposes of
EC 9.8865(1)." Laurel Hill Valley Citizens v. City of Eugene (Or. LUBA 2016), at 40 n 1. The
diagram has been the source of planning issues. Id.
Under ORS 197.296(4)(c), "[e]xcept for land that may be used for residential infill or
redevelopment, a local government shall create a map or document that may be used to
verify and identify specific lots or parcels that have been determined to be buildable lands."
The 2004 Metro Plan Diagram presumably was used to create the 2012 Buildable Land
Inventory (BLI) dated 8/1/12.4 The inventory is required to include vacant or partially vacant
lands "planned or zoned for residential use." ORS 197.296(4)(a)(A) & (B). The City
presumably used the Metro Plan land designations for the BLI, even where an existing
refinement plan and/or zoning is "higher" than such designations.
2 Memorandum dated October 23, 2015 from Anne Davies to the Planning Commission related to
Laurel Ridge (Z 15-5), at 3 n 1. Exhibit 4
3 Id. Memorandum at 1-2. The Memo describes the diagram as "blobby" and indicates "city limits
and tax lots are not depicted on the 2004 Metro Plan diagram." Memo at 2, 3. Exhibit 4
4 The digital non-official version of the 2004 Metro Plan Diagram may have been used for creating
the BLI. The City may have used an updated digitized diagram, incorporating changes to the Metro
Plan since 2004. Such information may be reflected in the online "Lane County Easy Property
Information Lookup."
June 16, 2017 Page 3
A zoning change needs to be consistent with the Metro Plan designation. Presumably, this
normally happens when the owner seeks to raise the zoning to allow development of the land
at its highest and best use. Development during the 20 year period will occur pursuant to the
zoning except when the zoning is changed consistent with the Metro Plan. Thus, it is not
clear to me that it is appropriate to use the Metro Plan land use designations when they
conflict with the zoning and/or refinement plan in a manner that would reduce residential
density (from HDR to MDR, or MDR to LDR). Regulations preventing land from being used at
its highest and best use could result in Measure 49 claims. See ORS 195.310.
Resulting BLI data issues are discussed below in Section IV.
III. Buildable Land Inventory Assumption Issues
City staff previously indicated that the 8/1/12 BLI was used for the Eugene Land Model.
According to staff: "BLI is run on 8/1/13 lots w/ less than $1,000 of improvement value or a
vacant land use code are identified as `Vacant'; large developed lots with a vacant area are
[identified] as `Partially Vacant.' BLI updated to change Vacant lots with addresses (e.g.
building permits) on 5/20/13 to Developed." (7/8/15 Review). I assume staff meant to say
"8/1/12" rather than "8/1/13" above. More recently, staff advised that "our monitoring will
begin where our land inventory model left off (it was run at the end of August 2012)."
10/21/16 Email. I am assuming staff meant the beginning of August, 8/1/12, rather than the
end of August, 8/31/12. 1 had understood that only two BLIs had been run, which I
understood to be the 8/1/12 and 5/20/13 BLIs. However, I recently discovered that the City
produced a 2012 DRAFT Vacant (Undeveloped) Land Supply by Metro Plan Designation,
with a "Map based on June 19 2013 Buildable Lands Inventory (BLI)."
If the City actually updated the BLI to consider land vacant only if it did not have an address
as of 5/20/13 (or 6/19/13), then the BLI is not consistent with a 2012 planning start date or the
population forecast as of 7/1/12 being used by the City. The City would be excluding
residential land supply used up by roughly a year of development within the planning period.
The City may have used the 5/20/13 BLI to update the data as of 12/31/12. The City stated
on its website that "[t]he inventory of vacant and partially vacant land * * * is now current
through 2012 development." See www.eugene-or.gov/2463/Part-l-Existing-Capacity. Again,
a 12/31/12 BLI is not consistent with a population forecast start date of 7/1/12.
These dates which may have been used by the City are all inconsistent with the 7/1/12
population forecast start date. "The determination of 20-year residential land needs for an
urban area must be consistent with the appropriate 20-year coordinated population forecast
for the urban area determined under Rules in OAR 660, div 32 * * ` OAR 660-024-0040 (4).
Staff identified a lot as developed, as opposed to vacant, if it had an address when the BLI
was run. Staff told me that it is generally assumed that an address is issued when a permit is
issued. However, this leaves open the possibility that an address will be issued prior to the
issuance of a building permit, that an address will be issued for a non-building permit
(erosion, specialty, etc.), that an address will be attached to a lot with the building demolished
June 16, 2017
Page 4
but not immediately replaced, and perhaps other scenarios. Examples of these types of
issues are discussed in section IV.
The City appears to have used permit issue date as the end date for development prior to the
planning period and the start date for development within the planning period. However, the
permit issue date could be one or more years before a commercial apartment project
becomes available to meet the population forecast for multifamily units. A much better
indication of development at the start of the planning period would be the existence of an
address with a year built before 2012 or certificate of occupancy before 7/11/12. A certificate
of occupancy is the best date to use since it is the exact date when development is legally
able to be occupied and becomes available to meet the population forecast which starts
7/11/12.
IV. Buildable Land Inventory Data Issues
There may be problems with the City's BLI data, and some examples are set forth below.
The examples reveal up to 457 du multifamily residential unit capacity, or more, not included
in the BLI. These potential problems may apply to other land beyond these examples. The
BLI data is represented in 10 pdf maps available online. See link to "2012 Residential
Buildable Lands Inventory Maps" at www.eugene-or.gov/2453/Land-Supply-and-Capacity.
A. Potential error in considering land developed when address assigned by City prior
to 8/1/12, earlier than when permit or certificate of occupancy issued ( up to 149 du)
Tax Lot 17042410-01000: 17.30 HDR acres (created PUD lots: 02100, 02200, 02300,
02400): Riverwalk Apartments, Waterford Grand.
The lot shows on BLI map 5 as partially vacant HDR, but does not identify how much
was considered developed versus vacant.5 Land use documents indicate that the land was
vacant (e.g., PDT 9-001). The four PUD lots (02100, 02200, 02300, 02400) total 14.51 HDR
acres. This leaves 2.79 acres of the original lot which might have been considered
development (greenway and Eugene bike lane along the river), and which might not have
been part of the four PUD lots. All of the four created lots had permits issued after 8/1/12 and
should not have been considered developed.6 Lot 02400 (6.94 acres) had a permit applied
for prior to 8/11/12, but not issued until after that date (1/8/13). An address, later changed,
was assigned prior to the permit issue date. The Lot had zero RMV for structures as of the
2013-14 tax year, 1 /1 /13, based upon Lane County Tax Property Account Information. The
Metro Plan shows the 02400 lot as split designated HDR, MDR and POS. There could be an
error in removing up to 6.94 HDR vacant acres (149 du capacity) from the Eugene
residential land supply as of 8/1/12.7
5 It is not clear what portion of a partially vacant lot the City includes in the land supply.
6 Again, the certificate of occupancy date rather than permit issuance date should have been used
as the end date for development, but it does not appear to make a difference in this case.
7 LDR density @ 4.0 units/acre; MDR density @ 10.7 units/acre; HDR density @ 21.5 units/acre.
These are minimum densities for discussion purposes, and may be higher in specific cases.
June 16, 2017 Page 5
B. Potential Error in considering land partially vacant when development was included
in separate lot and initiated development did not proceed. (up to 74 du).
Tax Lot 17041333-04601: 6.94 MDR acres; 135 Hatton Ave
This lot shows on BLI map 5 as partially vacant MDR, and as LDR and MDR on the
Metro Plan. "The land targeted for the complex is at 1410 River Road, an abandoned
orchard that was cleared for a subdivision of town homes in 2008 that never materialized
during the recession." RG 10/1/12. The portion of the lot containing a house was partitioned
from lot 04600 and made a separate lot in 2009. PT 09-12, PF09-26. The City has not
identified what portion of lot 04601 it considered developed in 2012 and why. The
improvement RMV for tax purposes was $4,060 as of 1 /1 /12 (2012-13 tax year). This could
result in an error in removing a portion of 6.94 MDR acres (74 du capacity) from the
Eugene residential land supply.
C. Potential Errors in Considering Land Developed When it May Not Be (possibly 37
du)
1) Tax lot 17041144-01900 (1.31 acres) shows on BLI map 2 as "Developed
Residential Lands." However, property explorer shows the lot zoned as MDR, partly single
family housing and partly vacant. The property has a house. The Metro Plan designation is
split Commercial ("COM") and MDR. Should this lot be shown as partially vacant MDR, and
what would be the division between developed and vacant? If 1 acre is vacant MDR, this
would be 11 du additional capacity.
2) Tax lots 17041432-08700 (1.81 acres) and 03800 (0.04 acres) show on BLI map 5
as "Developed Residential Lands." However, property explorer shows the lots as Vacant and
zoned MDR, with no associated building permits. For tax lot 08700, the Metro Plan
designation is MDR and the Property Classification is Residential Potential Development
Vacant. For tax lot 03800, the Metro Plan shows a split designation of Gov't&Ed, MDR and
Parks&Open Space. Both properties had tax improvements RMV of zero. Should these lots
be treated as Vacant MDR? If 1 acre is vacant MDR, this would be 11 du additional capacity.
3) Tax lot 17041144-01900 shows on BLI map 2 as "Developed Residential Lands." It
has a split Metro Plan designation of MDR and Commercial, and is zoned R-2, MDR.
Property Explorer shows the lot as part Single Family and Part Vacant. The acreage of the
lot is 1.33 acres, while the house, garages, patio and driveway have a footprint of roughly
0.11 acres, leaving a balance of roughly 1.22 acres. Should this lot show as partially vacant
MDR? If 1 acre is vacant MDR, this would be 11 du additional capacity.
4) Tax lot 17041144-00101 shows on BLI map 2 as "Developed Residential Lands." It
has a Metro Plan designation of MDR, and is zoned R-2, MDR. Property Explorer shows the
lot as part Single Family. The acreage of the lot is 0.55 acres, while the house, garage, patio
and driveway has a footprint of roughly 0.14 acres, leaving a balance of roughly 0.41 acres.
Should this lot show as partially vacant MDR, or up to 4 du additional capacity?
June 16, 2017
Page 6
5) Tax Lot 17042800-00101 (2 acres) shows as Developed Residential Lands on BLI
Map 4. Property Explorer shows the lot as zoned LDR, and as Vacant with an accessory
building permitted in 2004. The Metro Plan designation is LDR/MDR. The land has an
improvement RMV of $10,260, with a permit description of new metal roofed shelter with
concrete slab and new informal gravel parking area. Should some portion of this lot show as
vacant or partially vacant MDR?
D. Potential Errors in Considering Land "Committed or Protected Lands" (up to 103
du)
1) Tax lot 18040412-00200 (2.77 acres) shows on BLI map 7 as "Committed or
Protected Lands," and not part of the vacant or partially vacant residential land supply.
However, property explorer and the Eugene Zoning Map for the lot shows it as R-4, HDR,
with a Site Review Overlay, and with no associated addresses. The Land Use Code is listed
as Parks and the Land Use Description is listed as Open Space, Natural Area, Wetland. The
zone is not shown as PRO (Parks, Recreation & Open Space). The property is listed as
privately owned. The property does not show any development or building permits. Tax
records show an improvement RMV of zero. It is listed as HDR in the Metro Plan. Should
the lot be listed as Vacant HDR rather than "Committed or Protected Lands"?
2) A portion of tax lot 18040412-00100 (12.07 acres) shows on BLI map 7 as Vacant
HDR. However, the rest of the lot, to the East of the portion shown on the map, is not
included, and is shown as "Committed or Protected Lands." Property Explorer shows the lot
as both R-4, HDR and R-2, MDR, with no associated addresses. The entire lot is listed in
property explorer as vacant and privately owned. Tax records show an improvement RMV of
zero. Land use records (Z 07-11) show the zoning was changed in 2008 from R-1 LDR to
split zone of R-4 HDR (west 8 acres) and R-2 MDR (east 4 acres). The Metro Plan shows a
split designation of HDR and MDR. Should the east 4 acres of the lot be shown in the BLI as
R-2 MDR, rather than "Committed or Protected Lands"?
E. Potential Error Where Metro Plan Designation Lower than Zoning (up to 78 du)
I found 11 instances where lots appeared to have a lower designation in the Metro Plan than
the zoning. Four involved property zoned MDR, but designated LDR or split LDR/MDR in the
Metro Plan, five involved property zoned HDR, but designated MDR in the Metro Plan and
two involved property zoned HDR but designated LDR in the Metro Plan. Although any
zoning changes would need to be consistent with the Metro Plan, development presumably
could take place consistent with current zoning. Any reduction in zoning would require due
process and would involve potential reduction of land value. It is not clear that the City can
simply downzone property by changing the designation in the Metro Plan, and presumably
that was not the intent of the Metro Plan. Thus, it seems that the BLI should use the Metro
Plan designation unless it is "lower" than the existing zoning or refinement plan designation.
1) Tax lots 17042614-05501 (1.01 acres) and 17042614-05900 (0.31 acres) are shown
on BLI map 5 as vacant MDR, and are MDR in the Metro Plan. However, the building permit
data base and property explorer all show the properties as being zoned HDR, R3. Should
they be listed in the BLI as vacant HDR?
June 16, 2017
Page 7
2) Tax lots 17042614-06000 (0.64 acres) and 06100 (1.05 acres) are shown on BLI
map 5 as partially vacant MDR, and are MDR in the Metro Plan. However, the building
permit data base and property explorer all show the properties as being zoned HDR, R3.
Should they be listed in the BLI as partially vacant HDR?
3) Tax lot 17042614-05500 (1.73 acres) is shown on BLI map 5 as developed when
property explorer says it is partially vacant zoned HDR (vacant and single family housing). It
is shown as MDR in the Metro Plan. Tax records show an improvement RMV of $971.
Should it be listed as vacant or partially vacant HDR, rather than developed MDR?
4) Tax lot 17043533-04700 (0.85 acres) shows on BLI map 7 as vacant LDR. Property
explorer and the Eugene Zoning Map show it as zoned R-2, MDR, with no associated
addresses, and as "Vacant, Unused, Undeveloped Land." The Metro Plan designation is
LDR and MDR. Should this lot be listed as vacant MDR rather than vacant LDR?
5) Tax lots 18030633-07100 (0.17 acres) and 07200 (0.17 acres) show as vacant LDR
on BLI map 8, and are LDR in the Metro Plan; property explorer shows them as vacant,
zoned MDR, R2. Should these lots be listed as vacant MDR, R2?
6) Tax lots 18030641-01100 (0.21 acres) and 01200 (0.21 acres) show as developed
on BLI map 8, and are LDR in the Metro Plan; property explorer and the zoning map shows
the property as zoned HDR, R3. Should this be listed as developed HDR (but still is
developed and does not add capacity)?
7) Tax lot 17031800-01100 (0.12 acres) shows as developed on BLI map 8, and is
LDR in the Metro Plan. The zoning is MDR, R-2, and the property has a land use description
of Automobile Parking (Non-Structure/Retail). The county tax records show "0.00" RMV for
structures, and show a property classification of Residential Vacant. Should this be listed as
vacant MDR rather than developed LDR?
F. Potential Error Where Metro Plan Designation Lower than Refinement Plan
Classification (up to 28 du)
A group of lots along River Road are zoned LDR and designated LDR in the Metro Plan,
whereas the Refinement Plan (River Road Santa Clara Urban Facilities Plan (1987)) calls for
the lots to be MDR. Two of the lots are owned by the City (acquisition approved November
2015) which intends to build low income MDR multifamily housing on the lots (land bank for
"50-60 affordable housing units"). The City's intention was shown in a November 22, 2016
annexation request, since one of the lots was not within the City (A-16-0011). Property
Explorer shows:
Lot 1 - 17041333-00100 (0.92 acres) Vacant (developed in BLI map 5)
Lot 2 - 17041333-00200 (0.86 acres) Vacant (developed in BLI map 5)
Lot 3 - 17041333-00300 (0.84 acres) Vacant, owned by City, (vacant in BLI map 5)
Lot 4 - 17041333-00400 (0.29 acres) Dev-Single Family, owned by City
June 16, 2017 Page 8
The City presumably will seek to change the zoning and Metro plan to designate Lots 3 and 4
as MDR, to allow intended development. Logically, and under the refinement plan, the other
lots should be designated MDR. Lots 1 and 2 show as vacant in property explorer so it is
unclear why they show as developed in the BLI. Lot 2 had a house demolished in 2006.
Where the BLI showed combined vacant 0.84 acres LDR for Lots 1-3, should it instead show
vacant 2.62 acres MDR. This would add 28 multifamily du for these three lots.
G. Potential Error Where Partially Vacant MDR Should Be Vacant MDR (up to 41 du)
Tax lot 17041534-00202 (3.83 acres) shows on BLI map 4 as partially vacant MDR, and is
shown as MDR in the Metro Plan. Property explorer for the lot shows no development other
than streets, no associated addresses and there are no building permits in online records for
the tax lot. The Property Classification is Multifamily Vacant, and the tax improvement RMV
is zero. Should this lot be listed as vacant MDR?
V. City Exclusion of Certain Capacity for Other Purposes May Not Be Appropriate
A. Exclusion of 30 acres HDR Capacity Related to UO Non-Housing Needs (645 du)
The City deducted from the land supply 30 acres of HDR land, which was indicated to be for
UO non-housing needs over the 20 years. This deduction is significant since it represents
645 du capacity, 40% of the 1,617 du MDR/HDR multifamily housing deficit claimed by the
City.
City staff indicated they had been advised by the UO that it would need 30 acres HDR and 15
acres Commercial during the 20 year planning period for non-housing needs. I requested but
have not yet received from City staff a copy of the earlier communication from UO staff
indicating and/or discussing that need. The Campus Physical Framework Vision Project
Report indicates that the UO has enough land within the boundaries specified in the
document to accommodate a variety of potential growth scenarios. My understanding from
UO Planning staff was that there was no plan to acquire additional HDR land for the main UO
Campus.
A review of HDR land in the vicinity of the University shows that such land is located in the
West and South University neighborhoods. The University, directly or indirectly, appears to
own about two acres of such HDR land in those neighborhoods, with 0.6 acres already in
multifamily housings There has been a significant amount of private multifamily residential
construction in those neighborhoods on HDR land, close to the University, since 2012,
significantly increasing property values. It seems unlikely that the University would purchase
those expensive newly developed properties for non-housing redevelopment or that it would
purchase properties further away from the University, beyond that new development and not
adjacent to the campus.
a See Tax lots 17033234-00800 (0.3 acres, 818 E. 15th); 17033231-02900 (1.2 acres, split Metro
plan designation of HDR and COM); 18030511-08600 (0.2 acres); 18030511-08500 (0.1 acres);
18030511-08200 (0.1 acres); 18030511-08300 (0.2 acres).
June 16, 2017
Page 9
UO staff recently indicated "that a portion of the UO's expected need for HDR lands was to
accommodate potential expansion associated with the Autzen Stadium Complex. The
Campus Physical Framework Project did not address this area. Therefore, nothing has
changed regarding possible need for expansion north of the river. I will defer to Heather to
confirm the specific acreage - I believe it is about 15-20 acres of HDR land?" 15 acres is
only half of the 30 acres HDR deducted by the City in its analysis. Campus staff stated "it is
impossible to determine which specific properties would (or wouldn't) be suitable at this time.
However, one can use prior development trends and anticipated growth to determine that
there is a likely need for additional lands."
Envision Eugene planning should not be based upon an undefined need for land. There is no
adopted UO planning document I am aware of which sets forth a plan to acquire HDR land in
the current planning period (next 15 years), associated with the Autzen Stadium complex. It
does not appear the UO has acquired any lots North of Martin Luther King Jr. Blvd (MLK), let
alone any HDR lots, so as to establish a pattern or trend of such acquisition. In fact, the UO
relies on several HDR lots to meet City requirements for parking for Autzen Stadium Complex
events.
There is a specific cluster of R-3 and R-4 HDR lots in the vicinity of the Autzen Stadium
Complex, and those are the only HDR lots in the vicinity. See zoning map below. They are
all North of MLK. Any UO need for HDR land related to the Autzen Stadium Complex would
be expected to be taken from that cluster, and would presumably mostly be redevelopment.
GO
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June 16, 2017
Page 10
The first HDR lot on the West side is identified on BLI map 9 as "Committed or Protected
Lands," and not "Developed Residential Lands." The lot is owned by Lane County and
contains significant development, including the Serbu Youth Campus and Juvenile Justice
Center. Presumably, it is not being counted as part of redevelopment land supply.
The second HDR lot on the West side is Lot 17032830-01101 (9.64 acres). This property
includes 2775 MLK (Verizon Building completed 11/9/15) and 2777 MLK (Masonic Lodge with
addition completed 5/20/2009). (RMV $4.5 million). The UO has an agreement with Masonic
Lodge for 521 parking spaces to provide required Autzen Stadium parking (1 /26/2008).
(WG-08-003).9 The lot thus provides needed parking for the UO without need for the UO to
purchase the property, at least for the 521 parking spaces. Such purchase would not happen
until the owner decided to sell the property and the UO chose to purchase some or all of the
lot to preserve the required parking spaces that might otherwise be lost. Such a sale is
speculative and could well be outside of the current Eugene planning period, if at all.
The rest of the HDR lots appear to be developed with apartments, with the exception of the
vacant 0.33 acres (17032840-01412) and the vacant 1.14 acres, zoned AG and split HDR/
COM in the Metro Plan (Lot 17032840-01407), and with the exception of certain private
residences (17032840-01401: 1.55 acres; 17032840-01402: 0.87 acres; 17032843-00200:
0.28 acres; and 17032843-00300: 0.25 acres). These lots are generally scattered. It seems
unlikely that the UO would purchase scattered smaller lots or land currently developed with
apartments.
Even if the City could speculate that the UO would purchase 30 acres HDR land in the
remaining 15 years of the planning period, such purchase would primarily be of developed
land. Possible use of developed residential land should not be deducted from the vacant or
partially vacant residential land supply. The City responds that "in any scenario they are
displacing housing (or jobs) capacity." Apparently the City is saying that, assuming the
University use of 30 acres HDR would occur as redevelopment, such redevelopment
displaces residential redevelopment that otherwise might have occurred on that land.
However, this is speculation. It is not correct for the City to deduct, from the vacant or
partially vacant land supply, potential need for land which will not come from the vacant or
partially vacant land supply.
9 The UO is operating under an exemption from parking standards for Autzen Stadium. See EC
9.4610(3)(c). The UO needs to provide 4,749 car parking spaces at the stadium or within 1,000 feet
of the site either owned by the State or owned by another party if committed to stadium parking. As
part of the land use process for PK Park, the UO submitted agreements with owners of neighboring
properties agreeing to make parking spots available for football games, pursuant to an IGA
(WG-08-003).
June 16, 2017 Page 11
The City's belief that the University HDR redevelopment need will displace residential
redevelopment is also inconsistent with the City assumption of only 240 units baseline
residential redevelopment on HDR over the 20 years (12 units/year). The City soon will
exceed HDR and overall redevelopment expectations for the 20 years (233 units of current or
planned development), so any theoretical housing redevelopment displacement would occur
in a subsequent planning period, even if the City's redevelopment assumptions are correct.
Ex. 1 & 2. The City indicated that the University projected zero student growth over the 20
years, meaning that there would be no assumed baseline demand for student housing in the
University area which could consume the claimed displaced HDR redevelopment land.
(November 15, 2013 Memo).
Even if one assumed such use would consume all HDR redevelopment land such that none
of the 240 units of assumed HDR redevelopment could be built, there still would remain 405
unit capacity from the asserted University HDR land need which would be beyond the 240
unit HDR redevelopment goal set by the City for the planning period.
The 30 HDR acres deducted by the City from the land supply reflects a deduction of HDR
land capacity of 645 units (30 acres X 21.5 units/acre) This amount should not have been
deducted, and the perceived 1,617 unit deficit should be reduced by 645 du.
B. Exclusion of Land for Gilham Road System Water Quality Facility (32 du)
The City may have incorrectly removed 3 MDR acres, 32 du (for the Gilham Road system
water quality facility). BLI Maps 8, 9. See Ex. 3. The Gilham Road system water quality
facility was apparently identified as capital project WK08B in the Willakenzie Basin. An
August 2002 City of Eugene Stormwater document shows the project apparently being
located in Tax Lot 17030832-08600, which, as I understand, was the Gilham Road property
the City re-designated from MDR to LDR as a Metro Plan amendment. If the land is now
LDR, then its use for a public water facility should not result in a reduction of the MDR or
HDR vacant or partially vacant land supply (to avoid double deduction of land).
C. Exclusion of Land for Adding to Amazon Park and S-M-J House (15 du)
The City may have also incorrectly removed from the land supply 1.1 acre MDR to acquire
Amazon Park inholdings along Hilyard Street, and .3 MDR acres to acquire land in front of
the Shelton-McMurphey-Johnson House, since this land was designated Developed
Residential Lands, Committed or Protected Lands or Commercial, and does not appear to be
part of the vacant or partially vacant land supply. BLI Map 8,9. This 1.4 MDR acres is 15
units capacity which should be deducted from the asserted 1,617 du deficit.
D. Other Questionable Exclusions From the Land Supply
The City made other questionable deductions from the land supply. The City removed 6
acres MDR and 6 acres HDR needed for group quarters other than dorms. However, it
seems that some of the group quarters would be redevelopment which would not use up the
land supply. The City removed 11 acres MDR and 8 acres HDR for employment in residential
land designations. Such employment apparently includes that provided by neighborhood
June 16, 2017
Page 12
markets, day care centers, doctor's offices, etc., located in residential areas. I do not know
what assumptions the City used to make this determination. 10 From my observations,
construction of these types of facilities are not common these days, and most of those being
built are on developed land which does not use up vacant or partially vacant MDR or HDR
land supply.
Again, the City should not deduct from the vacant or partially vacant land supply need for
land which will not use up such supply. If half of these land needs came from redevelopment
as opposed to using the vacant or partially vacant land supply, 242 units capacity, or 15% of
the perceived deficit, should be deducted from that deficit."
VI. Failure to Consider Development Since 7/1/12 or 8/1/12
The City insists that the four and 1/2 years of actual and planned development since 8/1/12,
the date of the BLI upon which the City presumably relies, should not be considered in its
planning analysis for the 2012-2032 planning period. The statutes and rules contemplate
future planning prior to the start of the planning period, when there is no knowledge of actual
development within the planning period. All of the development within the planning period
must be based upon assumptions if the planning occurs prior to the start of the planning
period.
However, there is no logical reason why actual development since 7/1/12 or 8/1/12 should not
be considered, over four and 1/2 years into the planning period. Information as to actual
development is much better information than assumptions as to future development. The
City states that if those 4.5 years of development are considered, then the City must consider
a new population forecast. However, actual development is known information completely
within the current planning period. A new population forecast is only an assumption for a
different planning period, such as 2015-2035.
Oregon statutes and rules contemplate planning in advance of the planning period, but do not
appear to preclude use of actual development information within the planning period if the
planning occurs within that period. ORS 197.296( 2) provides that "a local government shall
demonstrate that its comprehensive plan or regional framework plan provides sufficient
buildable lands within the urban growth boundary established pursuant to statewide planning
goals to accommodate estimated housing needs for 20 years." If the City has actual
development information within the 20 year planning period due to delays in the planning
process, it should use that information, which is the "best available information" required by
LCDC rules. OAR 660-024-0040(1).
10 The City indicated that employment on residential land assumptions are based on analysis of
employment located in residential plan designations using Quarterly Census of Employment and
Wages data from the Oregon Employment Department. It is unclear how this data was translated into
the assumptions.
11 17 acres MDR/2 = 8.5 acres X 10.7 du/acre = 91 unit capacity; 14 acres HDR/2 = 7 acres X 21.5
du/acre = 151 unit capacity; 91 units + 151 units = 242 unit capacity
June 16, 2017 Page 13
The City does not want to consider development to date within the planning period, but
nevertheless considered changes to Metro Plan land designations within the planning period.
The City amended the Metro Plan to re-designate 1,833 du MDR to LDR land. Eugene
Ordinances 20535, 20536 (8/10/14), MA-13-002. These changes removed an asserted LDR
land deficit and create an asserted MDR/HDR land deficit. The full amount of the asserted
MDR/HDR land deficit can be accounted for by this Metro Plan amendment. If the City insists
on not including actual development/redevelopment within the planning period, then it also
needs to exclude land use changes such as Metro Plan amendments, within the period.
The City has stated that it needs 3,776 5+ multifamily units within the 20 year period to meet
the population forecast. My studies show that the City will have met that goal within the next
several years from units built or planned since 7/1/12, based upon certificate of occupancy.12
My studies show that there have been or will be 5,353 5+ units built with a certificate of
occupancy on or after 7/1/12, or planned since that date.13 The quantity of built or planned
units exceeds the 3,776 5+ multifamily unit goal by 1,577 5+ units. The City's goal will
have been met well within the first half of the twenty year period. Although this analysis does
not rely on the land supply, it must mean that the multifamily MDR/HDR land supply is
adequate.
VII. Development Within the Planning Period is at a Higher Density than Assumed by
the City
My studies show that multifamily development on vacant or partially vacant land has occurred
at a higher density than assumed by the City in its land model. Multifamily development on
MDR or HDR, planned or built with a certificate of occupancy on or after 7/1/12, has or will
occur at a higher density than assumed, resulting in an additional 585 du capacity. See
Exhibit 2.
VIII. Development Within the Planning Period is Higher on LDR Than Assumed
The City assumed that multifamily development on LDR would be 446 units (6,797 MF du
less 6,351 du MDR/HDR housing demand). See Exhibit 3. My studies show that built or
planned multifamily units within the planning period are currently at 716 units. Thus, an
additional 270 multifamily units are built or planned on LDR beyond that assumed by the City.
IX. Redevelopment Within the Planning Period Is Much Greater than City Assumptions
The City significantly underestimated the redevelopment which would occur for multifamily
housing during the planning period.
12 See attached studies, Exhibits 1, 2 & 3.
13 The certificate of occupancy date is the appropriate start date for purposes of assessing
development within the planning period. As previously discussed, the issuance of the certificate of
occupancy makes the development legally able to be occupied for purposes of meeting new
population growth reflected in the population forecast, which started July 1, 2012. Development with
a permit issued may not be legally able to be occupied for another year or two depending on the
complexity of the project, and thus a permit issue date is not appropriate to use as a start date.
June 16, 2017 Page 14
For baseline redevelopment over the twenty years, the City assumed there would be 220
units on MDR, 240 units on HDR, and 256 units on COM (Commercial and Commercial MU),
for a total of 716 units of baseline multifamily housing redevelopment on MDR/HDR and
COM. The MDR/HDR redevelopment was based upon an assumed 11 units per year on MDR
and 12 units per year on HDR, for 20 years, based upon the average annual redevelopment
between 2001 and 2012, as I understand.
For Commercial redevelopment, the City used a redevelopment tool to assume there would
be 21 units built downtown, 235 units built along Franklin Boulevard, and none built
elsewhere, over the 20 years. Thus, other than the 235 du student housing committed to be
built on COM as of 10/18/13, the City assumed 21 units of housing would be built on COM
throughout the City over the entire 20 year Envision Eugene period (actually 21 units
downtown and zero units throughout the rest of the City). This assumption was way too low.
The City accounted for 325 units of HDR and 853 units of COM student housing
redevelopment near the University committed since December 31, 2012 ("pipeline
redevelopment"). Committed was defined as having applied for a building permit or attended
a predevelopment consultation conference after 12/31/12 and before 10/18/13. Even though
the planning period was 2012-2032 and the population forecast was as of 7/1/12, the City
said "projects constructed prior to this date were accounted for through a separate analysis
updating the Buildable Lands Inventory and related assumptions." November 15, 2013
Memo. The City decided to subtract the 235 units on COM assumed to be built along
Franklin Boulevard from the pipeline redevelopment, resulting in a net pipeline development
of 325 units HDR and 618 units COM, or a total of 943 du. See Ex. 3
My studies, using certificate of occupancy as of 7/1/12, show that there has been or is
planned multifamily redevelopment of 638 units MDR, 558 units HDR and 2,023 units
"Other" (COM, GO, Committed or Protected Lands, but not LDR) as of now, 4.5 years into the
20 year planning period.14 When the City's net pipeline redevelopment is subtracted, there
remains actual or planned redevelopment of 638 units MDR, 233 units HDR, and 1,405 units
Other. This compares to the 20 year City assumptions of baseline redevelopment of 220
units MDR, 240 units HDR and 256 units COM only 4.5 years into the planning period. The
City thus significantly underestimated baseline redevelopment. This adds 418 units MDR, -7
units HDR and 1,149 units "Other" of redevelopment (1,560 units total) not considered by the
City in its assertion of a multifamily MDR/HDR deficit of 1,617 du capacity. Actual
redevelopment beyond that assumed by the City thus accounts for 96% of the asserted
multifamily land deficit, only 4.5 years into the planning period. Those projects planned but
not yet built may not be completed for another several years, but this would still be in the first
half of the twenty year planning period.
14 8 units MDR, 550 units HDR and 1,224 units Other for student housing; 630 units MDR, 8 units
HDR and 799 units Other for non-student housing. It is necessary to include COM, GO, Committed or
Protected Lands, but not LDR, in "Other" redevelopment so as to account for all multifamily residential
redevelopment, and not just that occurring on COM (or MDR/HDR).
June 16, 2017
X. Vision for Future Development
Page 15
Each of the above issues are important, but in the aggregate they are profound, and raise
doubts about the validity of the data, assumptions and policies in Envision Eugene.
The City's end game strategy for Envision Eugene appears to be an attempt to meet the
technical requirements for 20 year planning without fully addressing the fundamental future
needs of Eugene. The City asserts that it will run out of vacant and partially vacant MDR and
HDR land supply during the 20 year period, and claims that there will be a deficit of such land
in the amount of 1,617 unit capacity. Yet there does not seem to be any significant concrete
element in Envision Eugene which "creates" MDR and HDR land for the future. The City also
asserts that there is a "deficit of commercial land" in the City, 15 without an apparent
comprehensive plan to "obtain" more commercial land.
The City plans to meet the perceived multifamily land deficit through redevelopment
downtown and through increasing MDR/R2 density requirements. However, at the end of the
20 year period, Eugene still will be without any vacant or partially vacant MDR or HDR
residential land supply, if the City's analysis is to be believed. I have not seen any plans to
re-designate lands in the Metro Plan in order to create more MDR and HDR land supply.
Eventually, the City needs to re-designate LDR or MDR, and other land, as MDR or HDR
along major corridors and in areas where other MDR or HDR land is located. In order to do
this, the City may need to modestly expand the UGB to include more LDR land to make up
for the lost LDR land. Instead, the City did the opposite by re-designating 1,833 du MDR land
to LDR land (primarily in the Crow and Gilham areas).
The City also needs to more fully consider future development beyond the 20 years (only
15.5 years remaining) in order to guide its 20 year planning. The Eugene and Springfield
metro areas are divided by 1-5. Presumably, both UGBs eventually will reach 1-5, with
Eugene's UGB extending East to 1-5 where it does not currently meet 1-5. The City should be
planning expansion of the UGB towards 1-5. These areas, and others, outside of the Eugene
and Springfield UGBs, are included in the Metro Plan.
If such expansion is not planned, with some expansion occurring during this planning period,
then the area may be developed, without City control, in a manner not ideal for Eugene's
overall needs. Residential development in those areas may occur, outside of Eugene's UGB,
at a much lower density than Eugene will need to meet future planning goals. The City has
already purchased land for parks in this area, outside of the UGB (e.g., Susan Arlie Park-516
acres). Planning for City parks outside of the UGB should be accompanied by planning for
other development within the area.
15 April 20, 2016 Memo from Anne Davies to the Planning Commission (MA 15-3) at 3; Exhibit 5
June 16, 2017
XI. Summary
Page 16
It appears there is no multifamily land deficit for this planning period. First, the multifamily
dwelling units ("du") built or planned since 7/1 /12 (5,353 5+ units) exceed the stated 20 year
3,776 unit goal for multifamily 5+ units by roughly 1,577 units. Second, the City's
analysis resulting in an asserted multifamily MDR/HDR deficit of 1,617 du appears to have
significant errors which more than account for the deficit, with an excess of 2,201 units.
The potential errors are summarized below (up to cited amount, based upon certificate of
occupancy on or after 7/11/12):
1. Potential BLI Data Errors:
Acres
LDR MDR
HDR COM/
OTHER
Apparently not developed by 8/1/12:
6.94
149 du
Development in Separate Lot:
6.94
74 du
Considering Land Developed:
37 du
"Committed or Protected Lands":
6.77
43 du
60 du
Zoning Lower than Metro Plan:
9 du
69 du
Refinement Designation Lower than Metro:
28 du
Total Potential BLI Data Errors
191 du
278 du
II. Potential Incorrect Exclusion of Land
Exclusion-UO NonHousing Needs: 30.00
645 du
Exclusion-Water Quality Facility: 3.00
32 du
Exclusion-Amazon Park,SMJ House: 1.10
15 du
Exclusion-Groups/Employment: 15.50
91 du
151 du
Total Potentially Incorrect Land Exclusions
138 du
796 du
III. Multifamily Development at Density
383 du
202 du
Beyond City Assumption
IV. Multifamily Development on LDR 270 du
Beyond City Assumption
V. Multifamily Redevelopment Beyond
418 du
-7 du 1,149 du
City Assumption
Potential Data/BLI/Land Model Errors 270 du
1,130 du
1,269 du 1,149 du
Total Potential Data/BLVLand Model Errors
3,818 du
Less City Asserted MDR/HDR Multi-Family Deficit
-1,617 du
Potential Excess Capacity if All Errors Exist 2,201 du
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Exhibit 3
V
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City staff: 235 du student housing on Com
taken from Pipeline redevelopment
3,776 5+ Units
1,813 2-4 Units
1,208 Single Family Attached Units
City staff: 943 du student housing
325 du HDR; 618 Com (853 du - 235 du)
3,021 SFA-4 Units
less 386 since 7/1 /12
= 2,635 Remaining SFA-4 Units
77 77 777
3776 5+ Units 20 Year Need Under Envision Eugene
-
- 1685 5+ Units (Student Housing since 7/1/12)
3668 5+ Units (Non-Student Housing since 7/1/12)
(sub-total existing capacity 4,807 du)
= 5353 5+ Total Multi-Family Units Since 7/1/12
Remaining MDR/HDR deficit
1577 5+ Multi-Family Units Surplus Above 3,776 unit 20 Year Need
1,544 du
Redevelopment since 7/1 /12
Non-student Housing:
1437 units
Student Housing:
1782 units
Total:
3219 units
Less Pipeline/Baseline Redevelopme
nt: 1659 units
Add'I Redevelopment since 7/1/12:
1560 units
i
11
K - - - - - - - - - - - - -
I
TRG Meeting 5.22.14
Black Text by Lloyd Helikson, Rev06/15/17
Deficit now stated by City to be 1,617 du
Exhibit 4
AM
• Attorney's Office
Date: October 23, 2015
To: Planning Commission
From: Anne C. Davies
Memorandum
Subject: Planning Commission Deliberations-Laurel Ridge Zone Change (Z 15-5)
This memorandum is intended to assist the Planning Commission with its deliberations
on the appeal of the Laurel Ridge zone change this coming Monday, October 26, 2015. During
deliberations on Tuesday evening, it became apparent that appellants' first assignment of error is
the pivotal issue in this case. Appellants' first assignment alleges that the Hearings Official erred
in not taking into consideration the city limits line.
The issue presented to the Commission, and the issue that the Commission was already
grappling with on Tuesday, was whether the Commission is legally permitted to use referents or
other sources outside the Metro Plan Diagram itself, in locating the subject property on the Metro
Plan Diagram and, thus, determining the location of the split between Parks and Open Space and
Low Density Residential designations. The Hearings Official concluded that he could not use
the city limits line to assist in his decision. HO Decision at 6; PC Record at 44:
"In fact, if the question were where the boundary is most likely located using any
available information, I would likely agree with LHVC. In determining the
boundary, however, we are all bound by the 2004 Metro Plan diagram. As staff's
September 2, 2015 memorandum explains, LHVC used maps generated by LCOG
from a digital version that is different from the 2004 Metro Plan. Even though
that digitized version is likely more accurate than the 2004 Metro Plan, even
LCOG acknowledges that only the 2004 Metro Plan is the official version of the
diagram. Furthermore, city limits and tax lots are not depicted on the 2004 Metro
Plan diagram. So even though LHVC's maps may be theoretically more accurate,
they are not more accurate for determining the boundary by using the 2004 Metro
Plan diagram."'
The applicant has also taken that position.
i The parties and Hearings Official recognize that LUBA misunderstood the status of the Metro Plan Diagram, i.e.,
the City does not have an adopted digitized map. The 2004 Metro Plan Diagram was "derived" from a digital
database; however, the hard copy of the 11 x 17 map was the only diagram that was officially adopted.
City o Fuyeiie • 175 F. Sth Ave.. . FL.iyerie. OR 97,101 • 541 6~7 S'}47 • 541-6852-5414 Fax.
~ti+ti^d^:r.e rJ~ ne nr.gav
100183489;1 } PC Agenda - Page 3
Exhibit 4
Planning Commission
October 23, 2015
Page 2
This case presents an issue that has not previously been before the Planning Commission.
I.e., given that the blobby Metro Plan Diagram controls the designations, where exactly, on the
ground, is the dividing line between two designations on a property that is split-designated? In
making that call, the parties take differing positions about what information can be used in
locating that line. Because the Planning Commission has not had to resolve this issue anywhere
else in the City, LUBA has not had occasion to address this issue either. Accordingly, there is no
legal guidance from LUBA directly informing your decision whether to allow information that is
not on the Metro Plan Diagram to assist in locating the property, or the line separating
designations, on the Diagram.
The issue is not well briefed by either of the parties: the applicant merely claims that the
Commission can't use non-Diagram sources, and the appellants merely claim that the
Commission can.
The applicant asserts, without much in the way of legal analysis, that the Planning
Commission is stuck with the Metro Plan Diagram. The Hearings Official agreed with the
applicant. The hard copy of the 2004 adopted Metro Plan Diagram must be the underlying basis
for the Commission's decision; nobody asserts otherwise. Applicant's position appears to be
that, once the subject property is superimposed onto the Metro Plan Diagram, no further
reference to anything non-Diagram related is allowed.
There is support for applicant's position. The 11 x 17 version of the 2004 Metro Plan
Diagram is the only officially adopted version of the Diagram. Enlarging the Diagram, as
suggested by LUBA, and superimposing the subject property on that enlarged map, is necessary
to determine where the line is. However, resort to outside sources must be limited because the
HO's charge was to interpret the diagram itself and thus determine the appropriate location for
the line between two designations, as that line is depicted on the Diagram. The Planning
Commission can only adopt a different line than the one approved by the HO if it first
determines that the HO erred.
That said, there is also support for appellants' position. As appellants point out, LUBA
suggested on more than one occasion that reference to information outside the Metro Plan
Diagram might be appropriate in some situations. Indeed, because the Metro Plan Diagram is
not parcel-specific, and does not indicate property boundary lines, both parties have
superimposed a land survey drawing of the subject property on a blown up version of the 2004
' "Because none of the city's comprehensive maps in this area are property specific, references to
other maps in the record are necessary to locate the boundaries of the subject property." LUBA
opinion at page 16; PC Record at 1242.
"It may be possible to scale up the digital version of the map, overlay it with property lines from a
digital database, and determine the precise plan designation boundaries on the subject property
with reasonable accuracy. If for some reason that is not possible, the city and petitioner will have
to do the best they can with the tools at their disposal." LUBA opinion at page 21; PC Record at
1247.
City of Eugene ■ 125 E. 8th Ave. . Eugene, OR 97461 . 541-682-8447 . 541-682-5414 Fax
www.eugene•oi-.gov
100183489A} Exhibit 4 PC Agenda - Page 4
Planning Commission
October 23, 2015
Page 3
Metro Plan Diagram. That land survey drawing is itself information that is not shown on the
Metro Plan Diagram. However, it is necessary to use this drawing to at least begin to locate the
property on the Diagram.
In conclusion, if the Commission believes the HO erred by limiting his review to
referents on the Metro Plan Diagram, the question presented to the Planning Commission is
"what other information or referents, which do not appear on the Metro Plan Diagram, should be
used to help determine the location of the line?" In making that determination, there likely is
more risk of a remand from LUBA the further afield the Planning Commission goes from relying
on the Metro Plan Diagram. However, there is no clear legal precedent that allows or disallows
the Planning Commission's use of information that does not appear in the Metro Plan diagram in
the context of this zoning change application.
ACD:abm
City of Eugene ■ 125 E. 8th Ave. . Eugene, OR 97401 . 541-682-8447 . 541-682-5414 Fax
www.eugene•oi-.gov
100183489A} Exhibit 4 PC Agenda - Page 5
Exhibit 5
A
WCity Attorney's Office
Date: April 20, 2016
To: Planning Commission
From: Anne C. Davies
Subject: Brenelaine Investments LLC (MA 15-3)
Back rg ound
Attachment A
Memorandum
This memorandum addresses the proposal by Brenelaine Investments, LLC to amend the
Metro Plan designation for approximately 7 acres from Commercial to Medium Density
Residential (MDR). One of the applicable criteria that must be addressed in a Metro Plan
amendment of this kind is EC 9.7735(1): "The proposed amendment is consistent with the relevant
Statewide Planning Goals."
Statewide Planning Goal 9 (Economic Development) is intended to ensure that there is an
adequate supply of sites of suitable size, type, and location for anticipated industrial and
commercial development. The proposed findings address Goal 9 and conclude that the proposed
Brenelaine amendment is consistent with Goal 9. That conclusion is based on the adopted
Commercial Lands Study (CLS), which is the City's acknowledged "economic opportunities
analysis" with regard to the supply of commercial lands.
Ed Moore, with the Department of Land Conservation and Development, asserts that the
City cannot rely on the CLS because the planning horizon for the study ended in 2010,
approximately six years ago. He warns that an approval based on the existing CLS could be subject
to appeal on that basis and recommends that any action on this application be delayed until the
City's new economic opportunity analysis is adopted as part of the Envision Eugene package.
Analysis
Mr. Moore bases his comment on the administrative rule that implements Goal 9, OAR
660-009-0010(4). It provides:
"For a post-acknowledgement plan amendment under OAR chapter 660, division
18, that changes the plan designation of land in excess of two acres within an
existing urban growth boundary from an industrial use designation to a non-
industrial use designation, or another employment use designation to any other use
designation, a city or county must address all applicable planning requirements,
and:
City of Eugene • 125 E. 8th Ave.. Eugene, OR 97401 • 541-682-8447 • 541-682-5414 Fax
www.eugene-or.gov
(00201461;11
Exhibit 5 PC Agenda - Page 6
Attachment A
Planning Commission
April 20, 2016
Page 2
(a) Demonstrate that the proposed amendment is consistent with its most recent
economic opportunities analysis and the parts of its acknowledged
comprehensive plan which address the requirements of this division; or
(b) Amend its comprehensive plan to incorporate the proposed amendment,
consistent with the requirements of this division; or
(c) Adopt a combination of the above, consistent with the requirements of this
division."
For purposes of subsection (a), the City's "most recent economic opportunities analysis" refers to
the commercial lands analysis that has been formally adopted and acknowledged as part of the
Metro Plan - the CLS. The caselaw is clear that a city must make its land use decisions based on
the acknowledged comprehensive plan. This means that when a city makes a decision that requires
findings demonstrating compliance with Goal 9, such as the proposed plan amendment in this case,
the Goal 9 findings must be based on a commercial lands inventory that is formally adopted and
part of the acknowledged comprehensive plan.
There are no Court of Appeals cases that deal with the situation where an adopted,
acknowledged buildable lands inventory has expired (i. e., the planning horizon used for
determining future need for commercial lands has passed). There is a LUBA case, however, that
holds that "any local government that has a housing inventory with a housing needs projection that
uses a planning period that has already passed is essentially operating without a useable housing
needs analysis." Lengkeek v. City of Tangent (Lengkeek II). (The Lengkeek cases dealt with
Statewide Planning Goal 10, which requires an adequate supply of land for residential, not
commercial, needs. That said, the analysis in Lengkeek would apply equally to Goal 9 and
commercial and industrial land inventories.) LUBA does suggest that, in certain circumstances
(i. e., where the acknowledged inventory itself anticipates and provides a methodology for updating
the land inventory beyond the planning horizon), a city could potentially continue business as usual
beyond the expiration of a lands inventory. The City of Tangent did not have that type of
inventory, however. And the CLS is not that type of inventory, either.
Accordingly, under Lengkeek, DLCD is correct that "where a comprehensive plan is
amended in a way that relies on an updated [Buildable Lands Inventory] BLI, that updated BLI
must be incorporated into the city's comprehensive plan." Lengkeek III. In short, the City and
applicant cannot rely on the expired Commercial Lands Study.
Before reviewing the -options available to the Commission, it is worth discussing
Commissioner Nicolello's question regarding a possible de facto moratorium. Commissioner
Nicolello asked whether a recommendation to deny the application based on the expired CLS
would violate ORS 197.524(1)(b). The statute provides that if a city has a "pattern or practice of
delaying or stopping the issuance of permits" for division of land or construction, it must adopt a
moratorium following the required procedures for doing so. In addressing the moratorium issue
in Lengkeek, LUBA acknowledged that a city is caught between a rock and a hard place in
City of Eugene • 125 E. 8th Ave. • Eugene, OR 97401 • 541-682-8447 • 541.682-5414 Fax
www.eugene-or.gov
{00201461;1 }
Exhibit 5 PC Agenda - Page 7
Planning Commission
April 20, 2016
Page 3
Attachment A
situations like this. On the one hand, a city risks violation of Goal 9 if it approves a comprehensive
plan amendment based on an expired commercial lands inventory. On the other hand, it risks
violating the moratorium statute if it denies the application because there is no useable
acknowledged inventory. The solution provided by LUBA was to allow the applicant to apply
concurrently to have the inventory updated. That solution is an option for the applicant in this
case; however, as explained below, the current Envision Eugene information would not support
approval of this request. That is, if the applicant were to attempt to seek to update the commercial
lands inventory concurrently with its application, removal of the 7 acres of commercially
designated land would likely violate Goal 9 because there is a deficit of commercial land.
Possible Actions
In reviewing a Metro Plan amendment, the Planning Commission only makes a
recommendation to the City Council. The recommendation must contain "findings and
conclusions on whether the proposal or a modified proposal meets the approval criteria." It is the
City Council that then must approve, modify and approve, or deny the proposed amendment based
on the Planning Commission's recommendation. A recommendation of approval would require
findings that the proposal is consistent with Statewide Planning Goal 9, and a recommendation of
denial would require findings that the proposal is not consistent with Goal 9.
OPTION #1: Recommend approval of the application. Under the expired Commercial
Lands Study, there is a surplus of commercial land, and removal of the 7+ acres of commercially
designated land would not leave the City with a deficit. The risk in recommending approval on
this basis is that DLCD could appeal the approval as a violation of Goal 9 under the reasoning in
Lengkeek.
OPTION #2: Recommend denial of the application. The information provided by the
applicant is based on the Commercial Lands Study, which is expired. The studies conducted as
part of Envision Eugene demonstrate a deficit of both MDR and commercial lands. Accordingly,
if the studies were adopted as the acknowledged commercial lands inventory, the applicant would
not likely be able to demonstrate compliance with Goal 9; i. e., an applicant cannot remove 7 acres
of commercially designated land from an inventory that already has a deficit of such lands.
Further, the denial of this one application based on the expiration of the Commercial Lands Study
would not constitute a de facto moratorium.
OPTION #3: Delay action until the Envision Eugene inventory studies are adopted and
acknowledged. Mr. Moore proposes that the City delay action on the application. The City,
however, is not authorized to delay action against the applicant's wishes. That said, the applicant
could choose to put the application on hold pending the Envision Eugene adoption process.
ACD:abm
Attachments: Lengkeek cases
City of Eugene • 125 E. 8th Ave. • Eugene, OR 97401 • 541-682-8447 • 541-682-5414 Fax
www.eugene-or.gov
(00201461;11
Exhibit 5 PC Agenda - Page 8