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HomeMy WebLinkAboutAPPLICANT ADDITIONAL EXHIBIT (1 of 2) LAW OFFICE OF BILL KLOOS PC OREGON LAND USE LAW TH AVENUE, SUITE 204 375 W. 4BILL KLOOS EUGENE, OR 97401BILLKLOOS@LANDUSEOREGON.COM TEL:541.343.8596 WEB:WWW.LANDUSEOREGON.COM March 5, 2018 Eugene Hearing Official c/o Eugene Planning and Development th 99 W. 10Ave. Eugene, OR 97401 Re:Capital Hill PUD; Applicant’s Hearing Statement on Legal Issues Dear Hearings Official: This lettersupplements my March 3, 2017 letter filed with the original application, and it responds to some issues in the Staff Report. The new “Hearing Exhibits” discussed herein are listed at the end of this letterand are attached. Part A below invokes the applicant’s right to be free of review standards that are not clear and objective, based on ORS 197.307(6)(a). The Staff Report disputes this entitlement, but it has not adequately explained why that is so. Part B explains that this review is not subject to the policies in the South Hills Study (1974) for the reason that the SHS applied to the city limits in 1974, and the City has never extended the footprint of that refinement plan to the area that was outside the city limits at that time, which includes the area of the subject property. The City has posed a number defenses to this theory, but none has sufficient legs. A.The applicant requested, and is entitled to, review under only clear and objective standards. ORS 197.307(4), (6). The City may not apply any standards that are not clear and objective. My March 3, 2017 letter, submitted with the original application, invoked the owner’s right to review under clear and objective standards. It explained that because development of this site requires a PUD, and because no development can be approved under the “Needed Housing” PUD track standards in the code, the City may not apply any discretionary standards, even though the application is filed under the “General” or discretionary track standards of EC 9.8320. Please refer to the March 3 letter and the associated graphic for anexplanation of why review of this development proposal under the PUD Needed Housing standards in the code would result in nodwellings being approved. The code standards individually are punishing; collectively they are preclude development. 1.The Needed Housing Statute applies directly to the city’s review of this application. Eugene Hearing Official March 5, 2018 Page 2 The Needed Housing statuteapplies directly to City review of this application, even though the plan and code areacknowledged by the state. See McKay Creek Valley Assoc. v. Washington County, 18 Or LUBA 71, 75 (1989) (acknowledgment of plan and code leaves statutes directly applicable).The Eugene Hearing Official has recognized this and honored direct application of the statute in multiple decisions. The most recent example we attach as Hearing Exhibit A, the decision forSite Review for Alder Springs (SR 17-2)(“The application is forneeded housing, needed housing must be subject to only clear and objective standards, the TIAstandards are not clear and objective. Therefore, I have no choice but to agree with the applicantthat it is not required to obtain TIA approval to proceed with the proposed development.” Page 6) 2. This application is entitled to the protection of the Needed Housing Statute. The Needed Housing Statute entitles this application to review under clear and objective standards for two reasons. First, the property is inventoried for Needed Housing on the acknowledged residential BLI.See Ordinance No. 20585 (July 17, 2017)Ex A-2,Residential Land Supply (2012-2032), Map2,tile 33 of 42. Second, the property is planned and zoned for residential use, and this application proposes housing. Both bases derive from the Needed Housing Statute. The relevant parts of the statute were amended most recently in 2017 by SB 1051, 2017 Or Laws, Ch 745, effective August 15, 2017. Those amendments to ORS 197.307, in legislative format, were: “(4) Except as provided in subsection (6) of this section, a local government may adopt and apply only clear and objective standards, conditions and procedures housing, including regulating the development of needed housing \[on buildable land described in subsection (3) of this section\]. The standards, conditions and : procedures (a) May include, but are not limited to, one or more provisions regulating the density or height of a development. (b) May not have the effect, either in themselves or cumulatively, of discouraging needed housing through unreasonable cost or delay. (5) The provisions of subsection (4) of this section do not apply to: (a) An application or permit for residential development in an area identified in a formally adopted central city plan, or a regional center as defined by Metro, in a city with a population of 500,000 or more. (b) An application or permit for residential development in historic areas designated for protection under a land use planning goal protecting historic areas. (6) In addition to an approval process for needed housing based on clear and objective standards, conditions and procedures as provided in subsection (4) of this section, a local government may adopt and apply an alternative approval process for applications and permits for residential development based on Eugene Hearing Official March 5, 2018 Page 3 approval criteria regulating, in whole or in part, appearance or aesthetics that are not clear and objective if: (a) The applicant retains the option of proceeding under the approval process that meets the requirements of subsection (4) of this section; (b) The approval criteria for the alternative approval process comply with applicable statewide land use planning goals and rules; and (c) The approval criteria for the alternative approval process authorize a density at or above the density level authorized in the zone under the approval process provided in subsection (4) of this section.” The 2017 amendments clarifiedan ambiguity identified by the LCDC, in the context of a Corvallis enforcement proceedings.Corvallis suggested to the LCDC that the statute only benefits land that is on the acknowledged Buildable Land Inventory (BLI), and itcontended that the subject property there wasnot on the BLI.The LCDC found that thesite wason the BLI; hence it did not have to resolve the ambiguity.The legislature then clarified the ambiguity identified by Corvallisand the LCDC. The amendment, quoted above,makes clearthat this statute now applies to decisions related to housing generally, not just to housing proposed on land that is in the BLI.The statute now applies to all housing proposals. The LCDC’s Corvallis Enforcement Order is attached as Hearing Exhibit B.In that matter the subject property was on the BLI and had a discretionary Planned Development overlay zone. The Commission determined that the owner was nevertheless entitled to clear and objective standards. “\[A\]n applicant for a land use approval for housing under ORS 197.296 and 197.307 may ask for and receive "clear and objective" approval criteria, notwithstanding use ofplanned development discretionary criteria used in approval of other residential developmentprojects in the vicinity, or even by previous property owners of the prope1ty in question.” \[LCDC Order at 15\]. The Commission elaborated on the owner’s right to proceed under clear and objective standards regardless of the presence of a discretionary overlay zone. “\[R\]equestors' propertyis part of the City'srequired inventory of land defined as "buildable" under statute and "needed land'' for fulfillinghousing needs for the 20 year planning period. Further, because the Commission concludes the governing statutes discussed above establish residentially designated lands as developable underclear and objective standards, at the applicant's preference, it does not matter whether or notRequestors' land is under a Planned Development overlay. The applicant may simply request andbe granted authority to proceed with his or her proposal under clear and objective developmentstandards. ORS 197.307(6). Quite simply, what counts in this regard is the fact the property is designated (zoned) for residential development.” Eugene Hearing Official March 5, 2018 Page 4 The LCDC Order was premised upon the status of the property as being on the BLI. The Commission expressly avoided determining whether the statute was triggered for all residential land, rather than just land on the BLI. See LCDC Order at 7 fn 6.The legislature resolved the question left open by the LCDC. With the amendment to ORS 197.307(4) quoted above, the entitlements under the Needed Housing Statute expressly apply to development of housing whether or not it is in the BLI. 3.The City may only apply discretionary standardsif the applicant has the right to proceed under clear and objective standards. ORS 197.307(6). The statute allows the City to apply discretionary standards only if “\[t\]he applicant retains the option of proceeding” under clear and objective standards. ORS 197.307(6)(a). Applied to this situation, the City may only apply discretionary standards in its review of this PUD application if the owner also has the right to proceed under clear and objective standards. 4. The application demonstrates that the applicant can’t get approval of a PUD under the city Needed Housing standards in EC 9.8325. My March 3 letter explainswhy no development can be approved on this site if it is reviewed under the clear and objective Needed Housing standards in EC 9.8325. The hilltopcharacter of the site means that the more level area on top of the site can’t be reached without violating the 20% slope grading limitation that comes with the Needed Housing standards.See Needed Housing PUD review standardsat EC 9.8325(5). (“There shall be no proposed grading on portions of the development site that meet or exceed 20% slope.”) 5.The defenses stated in the Staff Report to the applicant’s right to only clear and objective standards in this review are contrary to the law. This application was filed under the discretionary General standards track in EC 9.8320 because, as explained in the original application,noPUD housing development is allowed on this site under the clear and objective Needed Housing standards track in EC 9.8325. The applicant requests, in conjunction with this decision, a determination that no PUD can be approved for this site under the Needed Housing trackbecause the standardsin EC 9.8325 prohibit any housing development. That determination is necessary to support the relief the applicant requests here --the applicant’s entitlement under the Needed Housing Statute, which is its right to proceed to development under clear and objective standards. The only way to get an approval under clear and objective standards is to apply under the General standards and invoke ORS 197.307(6)(a), which prohibits the City from applying any standards that are not clear and objective. The City poses several defenses to this approach. Eugene Hearing Official March 5, 2018 Page 5 (a) The City claims the application shouldbe reviewed under the discretionary standards in EC 9.8320 because the applicant filed under that section and addressed those standards.Staff Report page 4 last para. The applicant filed under the discretionary standards but has explained why the City may not apply any discretionary standards. The applicant is entitled to that determination. It does not waive its statutory rights to be free of discretionary standards by filing under discretionary standards. That is the plain message from Recovery House VI v. City of Eugene, 150 Or App 382, 946 P2d 342 (1998), where the Court of Appeals held that the applicant was entitled to the determination of whether a permit was needed in the context of applying for that permit. (b) The Staff Report asserts that a PUD proposing two additional dwelling units could be approved under the Needed Housing approval criteria. Staff Report page 5 para 2. The Staff Report says: “Based on a review of the site plan submitted bythe applicant, staff believe that at least two additional units could be developed on the site ifthe applicant chose to proceed under the needed housing approval criteria.” The applicant has explained in great detail, with the aid of graphics from its landscape architect, how the 20% grading limitation in the EC 9.8325 standards prevents approval of a tentative PUD on this site. The Staff Report assertion to the contrary is conclusory. If the City believes that the owner could reworkthe site plan toget any PUD application approved for this site under the Needed Housing standards in EC 9.8325, then now would be a good time to explain that.The applicant stated its theory to city staff over a year ago, but staff has yet to give the applicant an explanation of how the standards in EC 9.8325 could be applied to approve a PUD on this site. (c) The Staff Report misstates the operation of the statute. Page 5 para 3. The staff suggestion is that the applicant has two choices: (1) rework the site plan so that it complies with the clear and objective PUD standards; or (2) be processed under all of the discretionary standards. The correct order of the analysis should go like this: 1. Does the applicantfor this PUD “retain\[s\]the option of proceeding under the approval process” stated in EC 9.8325?The answer is ‘No.” 2. If the answer is “no,” because the standards in EC 9.8325 do not allow approving a project on this site, then the City may not apply any discretionary standards under the approval track in EC 9.8320, which does allow approval of a PUD. Eugene Hearing Official March 5, 2018 Page 6 In summary, the City has not explained a lawful basis for applying any discretionary standards in its review of this PUD over the objection of the applicant. 6. The bulk of the standards the City seeks to apply are not clear and objective in the meaning of the statute. Included with this letter is a spreadsheet that lists standards in EC 9.8320 that are not clear and objective in the meaning of the statute. Note that the spreadsheet also lists some plan policies, which are addressed in the narrative statement, but that are not themselves mandatory standards for one reason or another. The spreadsheet lists at the top fivealternative reasons why a standard might not be sufficiently clear and objective to be applicable. We elaborate on those six categories here. Standards are not clear and objective if they involve subjective judgments or the (a) exercise of discretion. Generally, standards for approval of housing are clear and objective within the meaning of ORS 197.307(6) if the local government demonstrates that they do not impose “subjective, value- laden analyses that are designed to balance or mitigate impacts of the development.” Rogue Valley Association of Realtors v. City of Ashland,35 Or LUBA 139, 158 (1998), aff’d, 158 Or App 1 (1999). Provisions generally granting a city discretion to impose conditions “if it is deemed necessary to mitigate any potential negative impact caused by the development” violate the “clear and objective” requirement in ORS 197.307(6). Rogue Valley,35 Or LUBA 139, 159 (1998). (internal quotation omitted); Home Builders Association of Lane County v. City of Eugene,41 Or LUBA 370, 388-389 (2002) (quoting Rogue Valley). A requirement that replacement trees be “similar in resource value” as the trees to be removed is not clear and objective. Rogue Valley,35 Or LUBA at 160. Code language calling for developments to “minimize” possible conflicts between pedestrians and vehicles, “where necessary for traffic circulation,” impermissible posed “vague requirements” granting the city “considerable discretion in approving or denying needed housing.” Home Builders Association,41 Or LUBA at 399-400. A provision allowing the city to require, as a condition of approval, dedication of public ways “to facilitate community needs,” impermissibly afforded the right to determine community needs. Home Builders Association, 41 Or LUBA at 403-404. Language allowing the city “to require additional right-of-way or other improvements to develop transit facilities ‘where a need’ for such facilities ‘has been identified’” flunks the test. Home Builders Association, 41 Or LUBA at 409. Eugene Hearing Official March 5, 2018 Page 7 Similarly objectionable is a requirement that an applicant provide “adequate” drainage for the proposed housing by constructing facilities “‘adequate for the drainage of the area.’” Home Builders Association,41 Or LUBA at 410. Also objectionable is language requiring local streets be designed to discourage nonlocal traffic where, in the city’s discretion it was “‘necessary to insure safety,’” and “‘promote the welfare of the general public, pedestrians, bicyclists and residents of the subject area.” Home Builders Association,41 Or LUBAat 388 n 16. (b) Ambiguous standards that can be interpreted to find compliance or noncompliance. Ambiguous standards are those thatare subject to different interpretations. When an ambiguous standard can be interpreted to either support or defeat a finding of compliance then the City may not apply it at all. Arecentexample from Eugene is Walter v. City of Eugene, __ Or LUBA __ (LUBA No. 2016- 024, June 30, 2016), aff’d without opinion281 Or App 461, 383 P3d 1009 (2016). There the ambiguous phrase in the standard was “disperse traffic.” In the context of the code, that phrase could be interpreted to show compliance or noncompliance. Hence, the standard could not be applied at all.Because that ambiguous standard was the sole basis for denial, LUBA reversed the denial, ordered the City to approve the South Hills PUD, and awarded attorneys fees. Corvallis had a similar experience in Group B, LLC v. City of Corvallis, __ Or LUBA __ aff’d without opinion (LUBA No. 2015-019, Aug. 25, 2015), 275 Or App 577, 366 P3d 847 rev den (2015), 359 Or 667 (2016).Group B involved a Planned Development standard for approval, specifically a condition from an earlier PD approval, that could be interpreted to allow development in a part of the site or prohibit development in that part of a site. Because the City could interpret the standard to either approve or deny the use, the City was not allowed to apply the standard at all.LLUBA reversed the City denial. (c) Lack of a benchmark to apply a numerical standard. Numerical standards are, generally, quintessential clear and objective standards. However, even a numerical standard can fail to meet the statute if it is unclear how to apply the numbers. See Rogue Valley, 35 Or LUBA at 154 n 20. The Home Builderscase provides several examples. (1) A requirement for a 100-foot buffer around rare plant or animal populations is unclear and subjective based on how the “area occupied” is determined. (2) A 50-foot buffer protecting “waterways” from the “top of the bank” was unclear because the code did not define those terms, the terms had multiple meanings, and they could lead to divergent or discretionary conclusions with different geographic consequences. (3) A requirement that all dwellings in a planned unit development be within one-quarter mile of a recreation area or open space was flawed for failing to state whether the distance was to be measured along streets or as the crow flies. (4) A Eugene Hearing Official March 5, 2018 Page 8 standard that “new dwellings . . . be within a 4-minute response time for emergency medical services” was deficient for failure to explain how the time is measured, that is, what assumptions to make about traffic, time of day, and other variables. (d) Conflicting standards may not be applied. Sometimes standards conflict. In that event it is up to the decision maker to sort out the conflict and make the ultimate policy choice. Making that choice frequently involves the exercise of discretion --the choosing between them, or balancing them in some fashion to arrive at a decision. That exercise of discretion is the kind of action that is contrary to the statute. When two standards conflict, neither can be applied in making the decision. (e) Standards must allow a path to approval. The statute anticipates that local clear and regulations will allow a path to approval. Standards that are so stringent that they can’t be met is a standard that may not be applied consistent with ORS 197.307(6). LUBA explained this common sense principle in the Home Builders case, where a storm water standard prohibited “negative impacts on natural drainage courses,” which LUBA agreed was clear and objective. However, it did not allow development. As LUBA explained, “We agree with petitioners, at least in the abstract, that imposing a clear and objective standard that is impossible or virtually impossible to meet is a prohibition in the guise of a standard ORS 197.307(3)(d) allows the city to offer a discretionary approval track, “provided the applicant retains the option of proceeding under the clear and objective standards\[.\]” That option is illusory if the clear and objective standards are impossible to satisfy. It may not be the case that LUCU 9.8325(10) is impossible to satisfy.” The statute anticipates that an applicant will be able to proceed to approval under clear and objective standards, not be denied under clear and objective standards. B. The City has not carried its burden to show that the South Hills Study refinement plan was ever extended beyond the footprint of the city limits in 1974 when the SHS was adopted by the City Council. At pages 22-24 of our March 3, 2107 supporting narrative, we allege that the City may not apply the South Hills Study (SHS) to this decision because the City has not shown that the SHS was ever applied to the area that was outside the city limits when the SHS was adopted by the City Council in 1974. Pleasesee that discussion. To summarize the applicant’s theory: The City has the burden of proving what standards apply to any land use application.The Eugene Hearing Official has explained that ORS 227.173 places this burden on the City. See Eugene Hearing Official March 5, 2018 Page 9 Alder Woods PUD HO Decision, PDT 07-5 (Sept. 10, 2008) at page 11, amended and affirmed by Commission (Nov. 5, 2008)(“The hearings official interprets this standard to require the city to identify the applicable standards and criteria, and review the application against those standards. It does not require the applicant to discern the applicability of the standards in the first instance.”) Both Alder Woods decisions are Exhibits E and F hereto. A local government may only apply comprehensive plan provisions to land that it has legal authority to plan for. The key dates for South Hills Planning are: June 10, 1974, Eugene Resolution No. 2295: City Council adopts the SHS . 1981: Subject property Tax Lot 300 annexed to the City. 1982: Subject property Tax Lots 200 and 400 annexed to the City. August 23, 1982: 1982Metro Plan acknowledged, establishing the first UGB. A full copy of the acknowledged 1980 Metro Plan appears as Hearing Exhibit C. May 7, 1987: City/County Agreement Transferring UGB planning jurisdictionto City. A full copy of the Transfer Agreement appears as Hearing Exhibit D hereto. 2014: Subject property Tax Lots 100 and 201 annexed to the City. The chronology of events that has left the subject propertyoutside the effective footprint of the SHS can be summarized as follows: The SHS was adopted by the City in 1974 and applied to the area in the city limits. At no time between 1974 and 1987, when the city took land use control of the UGB area, did the County apply the SHS to the area outside the city limits. At no time after 1987 did the City apply the SHS to the UGB area. That means that the SHS does not presently apply to the current UGB area that was outside the city limits in 1974. The Staff Report responds to this issue at pages 5-6 of theStaff Report. The simplestresponse for the City would be to identify a city or a county plan amendment or post-acknowledgment plan amendment, extending the footprint beyond the 1974 city limits. This Staff Report does not point to any such amendment. Instead, the City poses several lesser theories. None holds water. 1.The City asserts that the SHS was effective for the 2018 UGB area when it was adopted in 1974 because it described the study area of the SHS as including land outside the City, and it did not expressly limit its effect to the city limits area.Not so. The SHS explained that 65% of its “study area” was outside the city limits, including land south of the ridgeline. However, having a study area that was bigger than the city limits areawhere the Eugene Hearing Official March 5, 2018 Page 10 City had planning authority in 1974 does not make the plan effective in areas where the City did not have planning and zoning authority at that time. That assertion really begs the legal theory posed here --when did a governing body act to extend the plan to the area at a time when that governing body had authority to plan for that area? 2.The City asserts that EC 9.9630 extended the SHS policies to the current city limits. Not so. EC 9.9630 is a portion of the code section that incorporates specific refinement plan policies into the zoning code in response to the statutory mandate in ORS 197.195, whichrequires a city to explicitly incorporate into the zoning code any plan policies it wishes to apply to limited land use decisions. “Withintwo years of September 29, 1991, cities and counties shall incorporate all comprehensive plan standards applicable to limited land use decisions into their land use regulations.” ORS 917.195(1). Eugene did this in 2001 as part of its code makeover. This intention is express in the introductory language in EC 9.9500 that explains that the sections that follow, including EC 9.9630 for the SHS, list the plan policies that will apply to limited land use decisions. That introductory language in EC 9.9500 says: Adopted Plan Policies. “The adopted plan policies set forth in the sections beginning at EC 9.9500 shall be used when applicable for purposes of evaluating applicable adopted plan policies pertaining to subdivisions, partitions, and site review.” More importantly, language in the code stating thatrefinement plan policies will be applied to any land use decision or limited land use decision begs the question of the extent of the regulatory footprint of any refinement plan. Even if the language in EC9.9630 stated explicitly that the policies of the SHS were to be applied to anydecision, such language would not be effective to make the SHS or its policies apply to any land that the governing body with authority had not made subject to the SHS. The City needs to point to a PAPA by the governing body with authority that extends the SHS to the subject property. 3.The City asserts that the SHS became applicable to the UGB area when the county in 2003 adopted the EC 9.9630 language as part of the new zoning code for the Urban Transition Area --the UTA code. Not so. This theory suffers the very same limitation at the city’s theory stated above. For the same reason that the city’s adoption of refinement plan policies for purposes of limited land use decisions, the county’s adoption of the same new zoning code provisions for the UGB did not have the effect of extending the jurisdictional footprint of the SHS to any land where it did not already apply. Eugene Hearing Official March 5, 2018 Page 11 If it was the intention of the City to extend theSHS with the adoption of the new zoning code in 2001 (city adoption for city limits) and 2003 (county adoption for the UGB), thenthe City should have included language at that time to the effect that: “We hereby decide to extent the footprint of the SHSto all land that is inside the UGB now but that was outside the city limits in 1974.” That would have done the job. That City has not pointed to equivalent language; it does not exist. 4.The City asserts that the 1982 Metro Plan ratified the South Hills Study. The Metro Plan did not extend the SHS to any land; it explicitly recognized the authority of the City to plan inside the city limits and the county outside the city limits. Finally, the Staff Report twists the applicant’s narrative argument and says: “the applicant’s materials acknowledge that the Metro Plan ratified the SouthHills Study.” The applicant said no such thing. Our narrative said that the 1982 Metro Plan “ratified the continued existence of area refinement plans, including the SHS, but the plan did not extend the footprint of the plan to land that was outside the City but inside the UGB.” March 3 narrative at 23. There is nothing in the 1982 Metro Plan that extended the footprint of the SHS to any area outside of the city limits. Indeed, our narrative quoted from the 1982 Metro Plan language that verified that the city’s planning and zoning authority was being limited to the city limits.The 1982Metro Plan explained at page IV-3:“The Cities of Eugene and Springfield have responsibility for all areas within their city limits.” 5.The city’s final “legislative history interpretation” argument grasps at straws but misses even the straws. The City concludes with this fuzzy argument at page 6 para 2 of the Staff Report: “Staff believes that it is reasonable to interpret the footprint of the South Hills Study as encompassing all properties south of 18th Avenue and over 500 feet elevationwithin the City limits (and the UGB), based on the legislative history discussed above.” TheCity has not cited any legislative history. It has just cited the language of the SHS and the enactment of the new zoning code in 2001 (for the City) and 2003 (for the UGBvia the County) which included language that incorporated plan policies as standards for limited land use decisions. In none of the city’s defensesis there a whiff of any enactment by a governing body having authority to apply the SHS as a play to the area that was outside the city limits in 1974 when the SHS was adopted. State statutes confirm what is apparent here --the SHS can’t be applied to any area that was in the county when the City adopted the SHS in 1974, unless the City can point to an ordinance affirmatively extending the plan to land within its jurisdiction. See ORS 215.130(2): Eugene Hearing Official March 5, 2018 Page 12 “An ordinance designed to carry out a county comprehensive plan and a county comprehensive plan shall apply to: (a) The area within the county also within the boundaries of a city as a result of extending the boundaries of the city or creating a new city unless, or until the city has by ordinance or other provision provided otherwise; and” That current language was in effect in 1982 when the Metro Plan was acknowledged and in 1987 when the City assumed land use jurisdiction in the UGB. SeeMultnomah County v. City of Fairview, 96 Or App 14, 771 P2d 289 (1989). The only conclusion thattheHearing Official can reach, based on this record, is that the SHS has not been shown by the City to be a standard that applies to this land use decision because the SHS has never been adopted to apply to the subject property. Sincerely, Bill Kloos Bill Kloos Encl. Spreadsheet of standards Hearing Exhibits Ex A -Site Review for Alder Springs (SR 17-2) Ex B -LCDC Enforcement Final Order 17-ENF-001881 3.21.2017 Ex C -Metro Plan 1982, as acknowledged August 23, 1982. Ex D -“Agreement Regarding the Transfer of Building and Land Use Responsibilities within the Urbanizable Portion of the Eugene Urban Growth Boundary.” May 7, 1987. Ex E-Alder Woods PUD HO Decision, PDT 07-5 (Sept. 10, 2008) Ex F -Alder Woods PUD PC Decision, PDT 07-5 (Nov. 5, 2008) DECISION OF THE HEARINGS OFFICIAL FOR THE CITY OF EUGENE, OREGON APPEAL OF A DECISION OF THE PLANNING DIRECTOR APPROVING SITE REVIEW Application Summary : Appeal of planning director approval of site review for 106 multi-family apartment units. Applicant: Brenelaine Investments, LLC. Appellant: Steve Norris/River Road Community Organization Lead City Staff: Erik Berg-Johansen, Associate Planner. Subject Property/Zoning/Location: The subject pro-04-14-32; located adjacent to Howard Avenue and North Park Avenue. The property is zoned GO General Office, SR Site Review Overlay, WR Water Resources Conservation Overlay, and R-2 Medium-Density Residential. Relevant Dates: Application submitted on January 9, 2017 and deemed complete on July 3, 2017; planning director decision issued on August 17, 2017; Appeal of planning director decision filed August 30, 2017. Public hearing held September 27, 2017. Summary of the Public Hearing ed approval of the site review applicationsentatives testified in favor of the application. The appellant testified in opposition to the application. A number of citizens testified in opposition to the application. At the conclusion of the public hearing, the record was closed. Documents Considered by the Hearings Official Application Materials Planning Director Decision Hearings Official Decision (SR 17-2) 1 Appeal statement Public comments prior to the hearing Public comments during public hearing Referral comments Hearings Agenda and Staff Report FACTS The Planning subject site is located near the northwest corner of the intersection of Howard Avenue and North Park Avenue. The site is currently undeveloped. The site is a portion of Lot 41 of Pennington Acres Subdivision. The applicant is proposing to construct 106 apartment units in 14 two-story buildings, configured as a mixture of 4, 6, 8, and 12- unit. The site is split zoned, with GO General Office and R-2 Medium Density Residential. The area to be developed is located entirely in the GO zoned portion of the site. The R-2 zoned portion of the site is almost entirely a Goal 5 protected wetland and riparian area. This portion of the site will be left undeveloped. Another portion of the site, adjacent to North Park is an unprotected wetland and riparian area. Most of this area is also left undeveloped. Decision 1-2. The site review was submitted along with an adjustment review application for the proposed development. The Planning Director approved both the site review and the adjustment 1 review. This appeal followed. ANALYSIS The appellant raises only one assignment of error: Analysis\] apartment complex * * *. The Planning Director erred by failing to require the applicant to co complex, the Planning Director and applicant must also take into consideration Phase I of the development (the 40 single-family homes) as well as the likely development of the three undeveloped residential lots (42, 43, and 44) and the 1 The adjustment review was not appealed. Hearings Official Decision (SR 17-2) 2 The appellant argues that the City should have required the applicant to obtain approval of a Traffic Impact Analysis (TIA) permit as part of the application. The City has a somewhat unusual TIA provision. Rather than being required to demonstrate compliance with applicable approval criteria under some development standard, the City has a stand-alone TIA provision that requires an additional permit for any developments even otherwise permitted outright developments that trigger applicability under the TIA provisions. Eugene Code (EC) 9.8670 sets out when TIA review is required: Applicability. Traffic Impact Analysis Review is required when one of the following conditions exist: The development will generate 100 or more vehicle trips during any peak hour as determined by using the most recent edition of the Institute of involving a land division, the peak hour trips shall be based on the likely development that will occur on all lots resulting from the land division. 2 The states that a TIA is not required because the development would not generate more than 100 peak hour vehicle trips: trips during any peak hour will be below the 100 trip threshold that would trigger a Traffic Impact Analysis (TIA). Lacking a TIA, there is nothing further in the approval criteria for this application that Director Decision 2-3. The Planning Director only considered the number of vehicle trips that would be generated by the development proposed in the current site review application the 106 apartments in 3 determining that the TIA provisions were not triggered. The appellant argues that the Planning Director also should have considered developments on other lots that were created when the 4 subject property was created. According to the appellant, the City must add in the vehicle trips from other development and determine whether a TIA is required. 2 The other triggers for a TIA are not at issue in this appeal. 3 There is no dispute that the traffic expected to be generated by the 106 apartments would not, by itself, generate 100 or more peak hour vehicle trips and trigger the TIA provisions. 4 Although the appellant does not argue that considering other development would necessarily require a TIA, merely that the other development must be analyzed together with the current application, the result of such an analysis would almost certainly trigger the TIA provisions. Hearings Official Decision (SR 17-2) 3 A.Threshold Issue The applicant argues that the City may not require TIA approval in order to proceed with the proposed development because the proposed development is needed housing. There is no dispute that the proposed development qualifies as needed housing. ORS 197.307(4) provides: government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of needed housing on buildable lands described in subsection (3) of this section. The standards, conditions and procedures may not have the effect, either in themselves or cumulatively, of discouraging needed The TIA standards are certainly not clear and objective. EC 9.8680 provides the approval criteria for TIA review: or deny an application for Traffic Impact Analysis Review following a Type II process, or as part of a Type III process when in conjunction with a CUP or PUD. Approval or conditional approval shall be based upon compliance with the following criteria: Traffic control devices and public or private improvements as necessary to achieve the purposes listed in this section will be implemented. These improvements may include, but are not limited to, street and intersection improvements, sidewalks, bike lanes, traffic control signs and signals, parking regulations, parking regulations, driveway location, and street lighting. Public improvements shall be designed and constructed to the standards specified in EC 9.6505 Improvements Specifications. The requirement of improvements based on traffic impact analysis does not negate the ability of the city traffic engineer to require improvements by other means specified in this code or rules or regulations adopted thereunder. In addition to the above criteria, if the Traffic Impact Analysis Review was required based on EC 9.8670(4), the improvements shall also address the structural capacity of the street in the deficiencies, or reduction in the useful life of existing street structures related to the proposed development. Improvements may be needed to eliminate the identified structural deficiencies and to accommodate vehicle impacts to structures. Hearings Official Decision (SR 17-2) 4 In addition to the above criteria, if the development is located within the S-WS Walnut Station Special Area Zone, and increased traffic the development would generate on streets within the Fairmount neighborhood to the south of the Walnut Station Special Area Zone shall be mitigated through the use of traffic calming strategies or other mechanisms designed to discourage such The key portion of control devices and public or private improvements as necessary to achieve the purposes listed in Analysis Review is to ensure that developments which generate a significant amount of traffic, cause an increase in traffic that will contribute to traffic problems in the area, or result in levels of service of the roadway system in the vicinity of the development that do not meet adopted level of service standards provide the facilities necessary to accommodate the traffic of the proposed development. In addition, any Traffic Impact Analysis Review addressing streets in the jurisdiction of Lane County is also designed to ensure that cross sectional elements of streets, such as the wearing coarse or pavement, base material, soils, or storm water structures (bridges or culverts) have the adequate capacity to accommodate developments that utilize vehicles or heavy weight and associated .) In a recent decision (Amazon Corner LLC TIA 16-7) involving a TIA application, I stated, In addition, the standards for determining the scope of the TIA are not clear and objective either, as evidenced by the arguments in Amazon Corner LLC about the scoping of the TIA. Therefore, we apparently have a situation where we have needed housing, needed housing cannot be subject to standards that are not clear and objective, and the TIA standards are not clear and objective. The applicant argues that under this analysis the City cannot require a TIA permit to proceed with the proposed development. The applicant has a strong argument. Unfortunately, neither the City nor the appellant have responding is in the September 20, 2017 staff report, which states: Hearings Official Decision (SR 17-2) 5 approval criteria. Compliance with the TIA requirements at EC 9.8650 through 9.8680 is not an approval criterion under the Needed Housing Site Review provisions at EC 9.8845. In other words, even if a TIA was required, that land Housing Site Review approval The staff report d 5 cannot be applied to needed housing. e suggesting that the site review application can be approved without considering the TIA standards, and that the TIA standards may or may not be applied in the future. Even if this is theoretically possible, the as 6 required. Unfortunately, I only have one side of the argument. There is no response from the appellant or the City (other than the question can be decided at some other unspecified time). As I stated, the applicant has a strong argument. As a Hearings Official, I am an impartial decision maker. I cannot make up legal arguments for the City on my own. Perhaps if there were an obvious there is an obvious rebuttal to needed housing, needed housing must be subject to only clear and objective standards, the TIA standards are not clear and objective. Therefore, I have no choice but to agree with the applicant that it is not required to obtain TIA approval to proceed with the proposed development. B.TIA ISSUE In the event a reviewing body concludes that the applicant is required to comply with the TIA provisions if those provisions are applicable, I adopt the following alternative findings. To review, the applicable trigger for whether a TIA is required is EC 9.8670(1), which provides: development will generate 100 or more vehicle trips during any peak hour as determined by using the most recent edition of the Institute of Transportation developments involving a land division, 5 Although to be fair, at least in this case the issue was not raised until after the staff report had been completed. 6 by which an applicant may apply at one time for all permits or zone changes needed for a an applicant can apply for all the necessary permits for a proposed development, including, as in this case, whether a TIA permit is required. Hearings Official Decision (SR 17-2) 6 the peak hour trips shall be based on the likely development that will occur on all lots resulting from the land divisionadded.) The Planning Director only considered the development proposed in the site review application the 106 apartment units 100 or more peak hour vehicle trips. Furthermore, as explained by the staff report, the development at issue in the site review application does not involve a land division. Therefore, according to the Planning Director, the second sentence of EC 9.8670(1) is not applicable. The appellant and other opponents argue that the development that has occurred and will occur in the future on land originally part of the parent parcel that included the subject property must be considered in determining whether 100 or more peak hour vehicle trips will be generated. The subject property was annexed into the City in 2013 as part of a larger 17.52-acre parcel. In 2014, the parcel that was annexed into the City was subdivided into 42 lots. Those 42 lots consisted of a 40-lot subdivision named Pennington Acres and two additional lots (including the subject property) consisting of approximately 10 acres. In 2015, one of the remaining lots was subdivided 7 into 5 lots named Pennington Acres Phase 2. The current application is to develop what remains of the land that was annexed into the City in 2013 as the Alder Apartments. Again, the current application does not involve any additional land divisions. The appellant and other opponents argue, for slightly different reasons, that the development that has already occurred in Pennington Acres and that will occur in the future in Pennington Acres Phase 2 must be included in determining whether 100 or more peak hour trips would be generated and therefore trigger the requirement for a TIA. The appellant argues that under the first sentence of EC 9.8670(1) that 100 or more vehicle trips Phase 2. Another opponent, Jon Belcher (Belcher) argues that under the second sentence in EC parent parcel that was originally annexed into the City. Under either interpretation, the development in Pennington Acres and Pennington Acres Phase 2 would have to be included in determining whether 100 or more vehicle trips would be generated by the current application. argument EC 9.8670(1) includes all of Pennington Acres and Pennington Acres Phase 2 as well as the 7 Phase 2 of Pennington Acres has not been built out yet. Hearings Official Decision (SR 17-2) 7 proposed Alder Apartments. While at first blush it might make sense to combine various phases of the same subdivision Pennington Acres Phase 1 and Pennington Acres Phase 2 in determining the traffic impact on the area, as staff pointed out that does not seem to make as much sense if a larger parcel was split up into numerous different lots with numerous different owners be required to obtain TIA approval, which does not seem to make sense. The plain language of EC h staff and the applicant that the plain meaning 8 seem to add language to the code provision that is not there. s argument provides a more defined way to determine what development must be included, I believe it suffers from the argument in that it adds language to the code provision that is not a land divis I believe this clearly refers to the application at issue and whether that application involves a land division for the proposed development. Essentially all property was subject to a land division at annexation may make some sense, there is certainly nothing in the code provision that suggests the time of annexation has anything to do with the analysis. Furthermore, EC 9.8670(1) refers to language. The code provision is contemplating future development that will occur on additional lots being created by the application at issue that do not yet exist. Such prospective language would be out of place if previous development should also be considered. I agree with staff and the division in the application at issue - not property that was involved in a land division since it was annexed into the City. Although not necessary to resolve the issue in this appeal, in response to opponent arguments that applicants could avoid the requirements of a TIA, even for enormous developments, by developing a series of smaller subdivisions that fall just under the triggers for 8 As discussed later, the way to analyze multiple phases would be to require the TIA during the first phase. Hearings Official Decision (SR 17-2) 8 TIA review, staff suggested that the time to require a TIA would be during the initial development stage. In the present situation, staff suggested that the subdivision that created Pennington Acres in 2004 would have been the time to require a TIA because that application involved a land division and the likely development that would occur on the current subject property should have been included. I tend to agree with staff that if an application seeks to subdivide a larger parcel, gain approval of development on a portion of the property, and leave some of the property for future development that the portion left for future development should also be included in determining whether the 100 or more peak hour vehicle trips trigger is reached. Even if that is correct, however, that does not mean that the City may impose TIA requirements in the present case where it is not 9 applicable to make up for an earlier mistake. Therefore, I agree with the Planning Direct 10 the proposed development. CONCLUSION AFFIRMS For all the reasons set forth above, the Hearings Official the Planning decision in SR 17-2 to approve the site review application, with the following conditions of approval. CONDITIONS OF APPROVAL 1.Prior to final site plan approval, the portion of the Public Strom Drainage Easement platted with Pennington Acres Subdivision shall be vacated through the appropriate Easement Vacation process and rededicated as necessary. 2.All existing and proposed easements on the site shall be noted on the final site plan and obstruction shall be placed or located on or in a P 3.Prior to final site plan approval, a PEPI permit shall be issued for the construction of public improvements. In lieu of a PEPI permit, a bond or other financial instrument 9 Belcher also argues that a developer could avoid the TIA requirements even under this scenario by merely subdividing the property without proposing any actual development at the time. According to Belcher, the definition While I need not address that issue, I note that the definition of 10 The potential need for a TIA was the only basis for appeal. I have reviewed the other findings in the Planning incorporate those findings in this decision. Hearings Official Decision (SR 17-2) 9