Loading...
HomeMy WebLinkAboutPublic Testimony (Opposition)sf avA dhow "V -0 vr) -Vat "46\ 9!GW ~l h U t o~:e A-o b~uAk- N ~Iow~ 0 ca-to . (Okm dc i - ` ACC 4-V V\ ,J, f ; KO f)9 I K, C r U" 0 Utz 0-1N' ~c L' 044 ;--c) ~A, i-~ ~N , W'b it) 0, V) cl A)oq AnKMA o~w e~ucn, TO AN) lj~uc a ,"6 y 't I t illy ~u Ntv Ua 'yo Aovp -\Ao 6- )A[w Wi Oj \6 Ilk qT, p $°I1l , li t Will ou'W -0 , ac') /V :'MAYA O'cl - n ti Q tic Wm~. lOlt y GIOELLO Nick R From: Janne Underriner <janneu13@gmail,com> Sent: Wednesday, March 07, 2018 9:26 AM To: GIOELLO Nick R Subject: CHPUD application comment letter Attachments: PUD,john_3_6_18.docx Dear Nick, We would appreciate it if you would please enter the attached document into the CHPUD application record. Thank you, Janne Underriner and John Curtis Neighborhood Safety All of the streets on Capital Hill of the Fairmount Neighborhood are narrow and winding; many if not most have minimal to no sidewalks. These are the streets that are used by neighbors and visitors to access Hendricks Park. These are the streets that bicycles and pedestrians share with motor vehicles. These are the streets that school children walk in the early morning and afternoon. Our property is between Malabar Drive and Spring Boulevard. Not only do we use Spring Boulevard, we witness cars, pedestrians and bicycles using Spring Boulevard. We have been residents of the Fairmount neighborhood for over forty years and at this address for twenty-two years. Our written testimony that follows, focuses on our experience of living on Spring Boulevard.' Spring Boulevard is the route all neighbors take to get up and down Capital Hill. Pedestrians walk it at all times of the day and night. It is the major street for school children that walk to school and who, after school, enjoy bicycle riding and skateboarding. It has no sidewalks. Residential speed limit is 25 miles per hour. Oncoming cars come toward each other at a closing speed of 50 miles per hour. It has several `blind' turns. Lighting is minimal. As is, there are numerous safety factors on Spring Boulevard. What increased risks will occur if it becomes the main road for numerous construction vehicles that will provide the infrastructure and housing for the planned Capital Hill Planned Unit Development (CHPUD)? The experience of the neighbors who use Spring Boulevard is that there are regularly occurring dangerous situations. We personally have had two accidents - one with a cyclist at the intersection of Spring and Capital Hill and Madrona (the `5-way stop'). And the other, on Fairmount Boulevard just below the intersection of Spring Boulevard, was a head-on collision that resulted in a total loss of our car. Please note that each of these accidents occurred on the principle roads accessing the proposed CHPUD. So let's count the factors working against safety: 1) No sidewalks 2) Blind turns 3) Periods of frequent pedestrian and bike traffic - neighbors, walkers, University athletes training 4) Park users 5) Poor lighting I (John), unfortunately, witnessed a pedestrian who was killed while legally crossing on a Eugene street. Accidents happen. Spring Boulevard has all of the qualities of a dangerous 1 street. To quote the FED EX driver in this neighborhood, "There are close calls everyday!" To plan for more cars, trucks, pedestrians and cyclists using Spring Boulevard without sidewalks is irresponsible! Risking serious injury should not be required to fulfill housing demand. Please consider that this is a very stable neighborhood with long-term residents who understand the limitations of Spring Boulevard as an access. This helps to mitigate safety issues. We slow way down around blind curves. We know there could be pedestrians or bicyclists around aU curve. We plan for this every time we travel up or down the hill. Safety concerns increase when children, the elderly and the disabled are asked to share the roadway with cars. Whatever the law requires of motorists sharing the roadway with pedestrians and cyclists, the experience of Spring Boulevard neighbors and users is of many cars passing pedestrians and bikes at the 25 MPH statutory speed limit. There are the people who live in our neighborhood, and those who pass through it. The proposed CHPUD will substantially add to the latter. CHPUD neighbors might not consider the elements of `neighborhood awareness', as those we discuss here for Spring Boulevard. We bring this up because the impact CHPUD neighbors will have on the roads and neighborhoods, will be felt by people all the way down the hill, not just the 1/4 mile that is mandated to be studied by City code. The risks on Spring Boulevard increase with unaware or new users of the roadway. The bottom line for us is, cars sharing the roadway with pedestrians and bicyclists is fundamentally unsafe. Any person who thinks that more traffic with more pedestrians and cyclists is safe should experience walking or biking up or down Spring Boulevard in the dark around dinnertime in the winter. It can be very frightening for all! We know from experience that pedestrians are required to jump at a moment's notice into the bushes to avoid being hit in the roadway. On the uphill side of the street there is not even room to stand on the curb. Is this the street that you would allow your child or grandparent to share with construction vehicles and trucks? A new neighborhood will increase the potential for unsafe conditions. We should not sacrifice safety for housing. We recommend the City deny the CHPUD application. Respectfully, John Curtis and Janne Underriner, Associate Professor of Research, University of Oregon 2362 Malabar Drive Eugene, Oregon 97403 Please enter this document into the CHPUD application record. 2 GIOELLO Nick R From: Charlie Frazer <cfrazer@uoregon.edu> Sent: Wednesday, March 07, 2018 10:05 AM To: GIOELLO Nick R Subject: Capital Hill PUD Nick Gioello, Associate Planner City of Eugene Planning and Development 99 West 10th Ave, Eugene, OR 97401. March 7, 2018 Mr. Gioello: I'm writing to ask that the Capital Hill PUD application (PDT 17-01) be denied because it does not meet the standard of EC 9.8320 (4) Minimum Impact on the Natural Environment. The impact the project will have on Hendricks Park and the viewscape of the ridge both from the east and from the west sides is horrifying to contemplate. This impact affects those of us in Laurel Hill Valley but also the rest of the city who enjoy a view of the ridge. Cutting 500 trees at the top of the ridge will result in denuding a prominent and defining view of the South Hills of Eugene. It will also have disastrous effect on the trees that remain in Hendricks Park. Cutting the trees at the top of the ridge and adjacent to the park is an act that will have consequences for many other than the immediate neighbors and will have effects far into the future. Please confirm that these comments have been received and enter them into the record. Thank you. Charles Frazer 2521 Moon Mountain Drive Eugene, OR 97403 GIOELLO Nick R From: Thea Chroman <tchroman@gmail.com> Sent: Tuesday, March 06, 2018 1:20 PM To: GIOELLO Nick R Subject: Regarding Capital Hill PUD (PDT 17-01) Dear Nick Gioello, I am writing regarding the Capital Hill PUD (PDT 17-01). Please enter this letter in the record and that you confirm receipt of this letter. I live at 2480 Malabar Drive, directly above the five-way stop where Spring Blvd, Capital Dr, Madrona Dr, and Woodlawn Ave converge. I love this neighborhood; my family moved here because it is a bike-able and walkable distance to many of the place we need to go. We believe strongly in not being car-dependent (a value I believe the City of Eugene supports), but due to the already over-traveled narrow winding streets and the lack of sidewalks and bike lanes I rarely bike, and never with my children. I do, however, remain committed to walking and although the distance between my home and Fairmount Dr is less than half a mile, I have never walked that stretch of roadway without having one or more close calls. I hesitate to walk with my 8 year-old son or 2 year-old daughter; when I do I am on high alert. Drivers routinely speed, blast through the five-way intersection without even pausing at the stop signs, and fail to stay to the right as drive. This is already a huge problem. Increasing the size of the population served by these roadways by 34 families will inevitably exacerbate the issue far beyond a reasonable level of risk. It is rare to drive up Spring without finding one lane blocked. While most of us who live up there know to expect something (a parked truck in the roadway, construction, a cyclist, pedestrian, ETC.) along the way it does create a hazard for emergency vehicles a fact of which we are constantly aware. This population increase will create a dangerous circumstance not only for those of us who already live there, but also for the newcomers. I understand that Eugene is in need of housing, but at what cost? Surely there are other areas better served by existing infrastructure that can accommodate more density. If the City of Eugene is committed to safe streets, I urge you to please reconsider this proposal. Sincerely, Thea Chroman Thea Chroman Assistant Director Program for Democratic Engagement and Governance Wayne Morse Center for Law and Politics Phone: 415-385-9214 tchrom anna. uoregon. ed u www.wavnemorsecenter.uoreaon.edu GIOELLO Nick R From: Paul Conte <paul.t.conte@gmail.com> Sent: Tuesday, March 06, 2018 10:43 AM To: GIOELLO Nick R Cc: SOMMERS Lauren A Subject: PDT 17-1 Testimony Whitepaper "Conformance versus Exaction Attachments: Conformance versus Exaction May 6 2018.pdf Nick, Please acknowledge receipt and include the attached PDF document in the record for PDT 17-1. Conformance versus Exaction May 6 2018. pdf You and Lauren should read this closely so that y'all understand the proper way that legal and planning staff should be advising the HO and EPC regarding potential conditions of approval to ensure conformance with EC 9.8320(5)(b) in particular i.e., that there must be at least one sidewalk extending down Capital Lane for at least 1 /4 mile from the lower boundary of the proposed PUD to separate pedestrians from motorized vehicles. This would not require an exaction! Let me know if you have any questions. Paul Accredited Earth Advantage Sustainable Homes Professional THE DIFFERENCE BETWEEN CONFORMANCE & EXACTION Ensuring safe access to a proposed development does not require exaction from the applicant By Paul Conte Earth Advantage Accredited - Sustainable Homes Professional Version 1; May 6, 2018 Summary This paper attempts to dispel some apparent confusion among City of Eugene staff and officials regarding the legal distinction between requirements for "conformance" and imposition of "exactions." Specifically, this paper distinguishes between a condition of approval that requires that there be street improvements to ensure safe access to a Planned Unit Development (conformance) and a condition of approval that requires the developer to implement off-site street improvements that are necessary to provide safe access (exaction). I use a highly simplified example of the proposed Oakleigh Meadow Cohousing (OMC) Planned Unit' development review process to illustrate how City of Eugene legal and planning staff have a fundamental misunderstanding of conformance versus exaction, which they then impart to hearings officials and the Eugene Planning Commission (EPC) during the quasi- judicial approval process. As a result, some Planned Unit Development (PUD) approvals needlessly and improperly fail to adequately ensure safe access to the PUD. Background In past land use decisions, particularly for proposed Tentative PUDs, Eugene hearings officials and the EPC have incorrectly addressed certain mandatory approval criteria that require there to be safe access to and from a proposed PUD. The fundamental error has resulted from a mistaken belief, mostly originating with city staff, that constitutional constraints on exaction (specifically the "proportionality" standard established by Dolan v. City of Tigard, 512 U.S. 374) prohibit the imposition of necessary and appropriate conditions of approval to ensure safe access. The City's deliberations and findings on the proposed Oakleigh Meadow Co-housing (OMC) PUD illustrate this error.z Oakleigh Lane is a narrow, unimproved, dead-end road that would provide the proposed PUD its only means of access for motorized vehicles, bicyclists, pedestrians (including individuals with sight, hearing or other impairments, young children and elderly), and wheelchair users. The proposed PUD site is adjacent to about 50 feet of the very last section of Oakleigh Lane (i.e., at Oakleigh Lane's terminus, which is approximately 1,000 feet from the lane's See city file PDT 13-1. This document doesn't attempt to address numerous other contested issues related to the safety and capacity of Oakleigh Lane. As of March 2018, the OMC Tentative PUD application is under appeal to the Court of Appeals for the third time. THE DIFFERENCE BETWEEN CONFORMANCE & EXACTION intersection with River Road, a main thoroughfare). Among other deficiencies, Oakleigh Lane lacks any sidewalk, forcing pedestrians and wheelchair users moving between River Road and the PUD to share the narrow travel lane with motor vehicles, including emergency response vehicles. The EPC recognized that Oakleigh Lane presented a risk to future PUD residents (as well as current residents); and, based on Oakleigh Lane's deficiencies, the EPC found the following: a) For conformance with Eugene Code (EC) 9.8320(5)(a),3 "[i]t is in the public's interest to have Oakleigh Lane consist of 45 feet of right-of way [to allow improvements] through the development site's entry drive aisle and to consist of 33 feet beyond the drive aisle to the terminus of the street in order to ensure: safety for pedestrians, bicyclists and motorists traveling on Oakleigh Lane (a low-volume street) [and] the efficient provision of emergency services * * "Without the additional right-of-way, Oakleigh Lane cannot be improved to the City's minimum street design standards and the 164 new vehicle trips per day generated by the proposed development, along with the additional pedestrian and bicycle traffic generated by the proposed development, will not be assured of safe access's via Oakleigh Lane. * * b) For conformance with the EC 9.6505(3)(b) criteria,5 "[t]he applicant shall submit an Irrevocable Petition for public improvements in Oakleigh Lane to include paving, curbs and gutters, storm drainage, sidewalks,6 and street trees." [This applies only adjacent to the PUD site.] c) Oakleigh Lane would not, in its current condition, provide "safe and adequate pedestrian and bicyclist access" between River Road and the PUD, as required by EC 9.8320(5)(b).7 Without getting into contested details of these findings, the undisputed point is that the EPC found that Oakleigh Lane requires improvements to be safe for pedestrians. Opponents argued that, to safely separate pedestrians and motor vehicles, a sidewalk the entire length of Oakleigh 3 See Exhibit A. 4 Despite this explicit identification that "the additional pedestrian and bicycle traffic generated by the proposed development, will not be assured of safe access," city staff have made the ludicrous claim (and the Hearings Official and EPC went along) that this statement applied only to fitture needs for safety improvements. 5 See Exhibits A and B. Mandatory approval criterion EC 9.8320(10)(b) requires that the PUD complies with "EC 9.6500 through EC 9.6505 Public Improvement Standards. 6 Although this irrevocable petition for improvements was necessitated by the finding for "safe and adequate" access for "traffic generated by the proposed development," the staff proposed deferring the actual improvements to some future and unlikely petition for a local improvement district by residents of Oakleigh Lane. 7 See Exhibit A. Page 12 THE DIFFERENCE BETWEEN CONFORMANCE & EXACTION Lane is one of the improvements necessary for the application to conform to EC 9.8320(5)(a) and (b).s In their "staff report" and during deliberations, City staff presented Dolan limitations on "proportionality" as part of their advice to the hearings official and EPC to not require the applicant to provide necessary street improvements, including sidewalks, for the entirety of Oakleigh Lane. That advice led to the HO and EPC to not imposing any condition of approval to require a sidewalk.9 The city staff were correct that the City could not require the applicant to construct approximately 1,000 feet of sidewalk when only 50 feet would be along the portion of the street adjacent to the PUD. That scale of exaction would clearly be disproportional, even though the PUD would comprise more than fifty percent of the dwellings on Oakleigh Lane. The city staff erred, however, in making a non sequitur assumption that the HO and EPC shouldn't consider a full-length sidewalk as a necessary condition of approval for the proposed PUD to conform to the EC 9.8320(5)(a) and (b) and 9.6505(3)(b) criteria. The staff, and the HO and EPC following staff's advice, appeared to believe such a condition would run afoul of Dolan. Notably, neither the City Attorney nor Planning Division staff ever walked the HO or commissioners through the possibility of imposing a condition for a sidewalk without requiring the developer himself to fulfill the condition by obtaining the necessary right-of-way and constructing the sidewalk. Contrary to the staff (and HO and EPC) assumption, the Oregon Land Use Board of Appeals (LUBA) has found that requiring conformance doesn't require or imply exaction - a condition of approval requiring that street improvements be in place is allowed if there are adequate findings that the improvements are necessary to conform to a mandatory approval criteria. Critically, LUBA's findings allow such a condition of approval, even if the ultimate effect may be that the applicant won't be able, or won't choose, to fulfill the condition, and the PUD is never developed. The reasoning underlying LUBA's findings is very simple: an approval criterion regarding public safety must be satisfied; and, unless it is satisfied, the PUD shouldn't and can't be developed. The fact that it may turn out to be impossible or impractical for a particular application to meet a condition of approval doesn't alter that fact at all. Before getting into more details of relevant LUBA cases, it bears considering why this obvious principle seems to have eluded Eugene city staff, hearings officials and planning Opponents argued other improvements were also necessary, but I just use sidewalks as an example to simplify the discussion. This is a highly distilled version of all the issues and arguments, but it captures an essential element of the City's misapplication of Dolan. Much of what transpired during the OMC PUD proceedings occurred during discussions that were part of deliberations, but not explicitly documented in the HO and EPC final orders. Regardless how the HO and EPC came to their decisions not to require a sidewalk, the end result was the same - pedestrians would be at risk because they must share the travel lane with a significant increase in the number of moving vehicles on Oakleigh Lane. Page 13 THE DIFFERENCE BETWEEN CONFORMANCE & EXACTION commissioners. The apparent reason is that city staff seem to view imposing a condition, such as requiring a sidewalk along all of Oakleigh Lane, as nothing more than a backhanded, technical maneuver by opponents to "kill" the project despite the city's formal approval. Rather than rebut this misguided view on principal - there's nothing "backhanded" about ensuring the public's safety before approving a PUD - a closer look at LUBA's analysis will make it clear that the HO and EPC should follow LUBA's reasoning instead of city staff's direction. Two cases that shed light on this issue are Butte Conservancy v. City of Gresham, _ Or LUBA _ (LUBA No. 2005-150, January 26, 2006) (Butte I) and Butte Conservancy v. City of Gresham, 52 Or LUBA 550 (2006) (Btctte II). (See Exhibits C and D.) These cases involved successive appeals of a decision that approved a PUD on a parcel in the City of Gresham. In order to gain approval of a requested variance because the primary PUD access was via a cul-de- sac longer than 200 feet, the developer proposed, and Gresham approved as a condition of approval, a secondary access road that would extend through an adjoining subdivision not owned or controlled by the applicant. Opponents claimed in both appeals that the adjoining subdivision had CC&Rs that prohibited construction of the proposed access road. In Btctte I, LUBA remanded the decision because Gresham had not made findings that the proposed secondary access road was feasible. On remand, Gresham adopted findings, in relevant part, that the elected officials of Gresham have the legal authority to condemn the right-of-way to provide secondary access, notwithstanding any CC&Rs. In Btctte II, LUBA affirmed Gresham's decision and provided clarification relevant to cases where a condition may turn out to be impractical, but which can still be imposed if the condition is necessary for conformance to an approval criterion and the condition is not precluded as a matter of law. Gresham's land use code has the following approval criteria for PUDs relevant to Butte I and II: "Section 9.0710 Approval Criteria In reviewing a proposed circulation plan, the approving authority shall find compliance with the relevant portions of the Community Development Code and the following: A. A future street plan shall: 2. Provide for the logical extension, continuation, and interconnection of streets, to serve circulation and access needs within a district, sub-area, or neighborhood; 3. Provide multi-directional access and circulation to the street system and shall avoid maze-like and discontinuous street patterns; and, 4. Balance traffic distribution within an area, rather than concentrating traffic on a few streets." Page 14 THE DIFFERENCE BETWEEN CONFORMANCE & EXACTION "Appendix 5.404 Residential Lot Access to Major and Standard Arterials F. No land division shall be approved which accesses a permanent dead end street system when: 1. The street is in excess of 200 feet, or 2. More than 25 units would access the street, or 3. The street exceeds the allowable grade in the City of Gresham Public Works Standards." To find that the proposed PUD conformed to the applicable criteria, Gresham imposed the following condition: "Condition 7. In conjunction with the Phase 7 final plat submittal, the following shall be submitted: a. Documents for the dedication of the 20-foot wide right-of-way or easement needed for the emergency road connection between the Persimmon property and SE Yellowhammer Road, dedicated to Clackamas County by separate instrument. b. Construction plans showing that the emergency road construction will have an all-weather surface capable of supporting not less than12,500 pounds point load (wheel load) and 75,000 pounds live load (gross vehicle weight). c. A street construction and/or encroachment permit from Clackamas County Engineering in accordance with the standards listed by Clackamas County Condition 7a required an easement across the neighboring subdivision, but did not state that the applicant was responsible for obtaining the easement himself. Condition 7 was entirely silent on who would get the easement or how it would be gotten. Opponents again argued the required easement was infeasible because of the subdivision's existing CC&Rs. LUBA rejected that argument, and agreed with Gresham that the required easement was not prohibited by law, regardless whether it was certain or even practical for the easement to be obtained. In Btttte II, LUBA went on to state: "[I]n a line of cases based on Meijer v. City of Portland, 67 Or App 274, 678 P2d 741 (1984) and Rhyne v. Mitltnomah County, 23 Or LUBA 442 (1992), the Court and LUBA have held that, in a two-stage approval process such as subdivision approval, where a problem is identified that raises concerns whether proposed development can comply with applicable approval criteria, the local government may, among other options, adopt findings demonstrating that solutions to the identified problem are 'feasible"' i.e., 'possible, likely and reasonably certain to succeed. Meijer, 67 Or App at 280, n 5. In Rhyne, we explained that: 'Assuming a local government finds compliance, or feasibility of compliance, with all approval criteria during a first stage (where statutory notice and public hearing requirements are observed), it is entirely appropriate to impose Page 15 THE DIFFERENCE BETWEEN CONFORMANCE & EXACTION conditions of approval to assure those criteria are met and defer responsibility for assuring compliance with those conditions to planning and engineering staff as part of a second stage. * * * 'Where the evidence presented during the first stage approval proceedings raises questions concerning whether a particular approval criterion is satisfied, a local government essentially has three options potentially available. First, it may find that although the evidence is conflicting, the evidence nevertheless is sufficient to support a finding that the standard is satisfied or that feasible solutions to identified problems exist, and impose conditions if necessary. Second, if the local government determines there is insufficient evidence to determine the feasibility of compliance with the standard, it could on that basis deny the application. Third, * * * instead of finding that the standard is not met, it may defer a determination concerning compliance with the standard to the second stage. In selecting this third option, the local government is not finding all applicable approval standards are complied with, or that it is feasible to do so, as part of the first stage approval (as it does under the first option described above). Therefore, the local government must assure that the second stage approval process to which the decision making is deferred provides the statutorily required notice and hearing * * 23 Or LUBA at 447-48 (footnotes omitted)." Eugene's PUD approval process is just such a "two-stage approval process" as covered above, and thus LUBA's findings are directly applicable. Note the first standard for "feasible" that was established in Meijer - the solution imposed by conditions of approval must be "possible." Applying this to the Oakleigh Lane example, sidewalks for the entire length are physically possible because the land is flat, level and has no insurmountable impediments. Further, the City of Eugene has the legal authority to potentially obtain any additional right-of-way, where necessary.',, If the required right-of-way were dedicated and a new sidewalk were constructed beside Oakleigh Lane, the resulting street configuration would be "reasonably likely to succeed" in making the street safe for pedestrians." (In other cases, the Meijer requirement "to succeed" has been expressed as the condition needing to be "sufficient" to achieve conformance with the approval criterion.) Further on in Butte IT, LUBA used clearer language to express the Meyer requirement for a condition to be "likely," as follows: "it is sufficient for the local government [to] * * * ensure, in imposing the condition of approval, that the condition will be fulfilled prior to final development approvals or actual development."12 to Of course, such an attempt could be opposed and potentially blocked by residents' legal actions. But the criterion is that fulfillment of a condition of approval be "possible," not "certain." Again, keep in mind that I am simplifying the case; and simply adding one sidewalk might not be an adequate solution. 12 It's apparent that the use of "likely" in Meyer has some meaning other than "highly probable that the condition will be fulfilled" because in the same sentence, Meyer sets the much lower threshold of Page 16 THE DIFFERENCE BETWEEN CONFORMANCE & EXACTION In Butte II, the City of Gresham argued that the question of "feasibility" involved primarily a "legal impediment" (i.e., objection to condemnation by the property owner). Gresham then argued that determination of whether such condemnation proceedings would be lawful (and thus, gaining the necessary right-of-way was "possible") was a legal matter that could be resolved only by the owner contesting the condemnation in circuit court proceedings. In other words, Gresham argued that while Gresham couldn't prove the solution was feasible, the opponents couldn't prove the solution was infeasible. LUBA agreed with Gresham with respect to a "legal impediment": "We generally agree with the city that the Meyer and Rhyne feasibility analysis must be applied somewhat differently when the "problem" identified at the first stage of a two- step approval process is an alleged legal impediment to fulfilling a condition of approval requiring facilities necessary for the proposed development, rather than a technical, engineering or similar issue." LUBA also set a very low bar for the City to meet the "feasibility" requirement with respect both to future right-of-way and road improvements: "Certainly, petitioners [opponents] have not demonstrated that any uncertainty with respect to the city's condemnation authority is such that it can be said that fulfillment of the condition of approval requiring dedication and construction of the access road is precluded as a matter of law." In the simplified Oakleigh Lane example that I use here, I'm assuming no insurmountable physical obstacles would prevent adding a sidewalk to Oakleigh Lane. Therefore, the "solution" in this example would require getting the necessary dedication(s) of right-of-way and improving the road to add a sidewalk. It's important to understand that all three conditions imposed by Gresham applied to a future street across property that was not controlled by the applicant. The Oakleigh Lane example similarly would require right-of-way or easements for a future sidewalk across properties that are not controlled by the applicant. LUBA was aware in Butte II that such a situation might ultimately preclude development of the proposed PUD because the required right-of-way might not be obtained. LUBA concluded on this issue: "The city appropriately drafted that condition in a manner that is sufficient to ensure that fulfillment of the condition will occur prior to final development approval. If for one reason or another the condition is unsatisfied, intervenor will not be able to obtain final subdivision approval." LUBA was not concerned that the PUD project might be "killed" by the imposed requirement for a right-of-way that, from appearances, would be difficult or impossible to obtain. "possible" that the condition can be fulfilled. Further, as LUBA elaborates on their analysis, following the citation to Meyer in Butte II, LUBA explains "possible" as "(1) not precluded by law" and the text that immediately follows appears to explain "likely" as " (2) ensure * * the condition will be fulfilled Page 17 THE DIFFERENCE BETWEEN CONFORMANCE & EXACTION In Butte II, then, LUBA provided guidance and framework which the Eugene hearings official and EPC could (and should) have used with respect to pedestrian safety on Oakleigh Lane; i.e., adopting a condition of approval similar to the following: "The applicant must submit as part of final PUD plat documents: (1) A sufficient right-of-way or easement along the entire length of Oakleigh Lane from the development to River Road, dedicated to the City, and adequate for the sidewalk in (2) to be constructed, (2) Construction plans, consistent with applicable City of Eugene standards, for a sidewalk from River Road to Oakleigh Lane's terminus, and (3) The necessary construction permits to implement the construction plans in (2)." Note that this condition wouldn't have stated who or how to obtain the necessary right-or-way or easements. Accordingly, this condition would be perfectly acceptable with respect to Dolan. At the same time, the condition would ensure that the PUD wasn't developed unless Oakleigh Lane were improved so that it had a sidewalk to provide for safe pedestrian access to and from the PUD. As a final consideration, multiple sections of Eugene Code include the proviso "provided the city makes findings to demonstrate consistency with constitutional requirements" (e.g., EC 9.8320(5)(b) and EC 9.6505(3)(b)). This proviso doesn't alter any of the discussion above, since a condition that doesn't require an exaction of the applicant (or other specific party) is inherently consistent with Dolan because "proportionality" is not an issue when there is no exaction to apportion. Thus far, Eugene staff, hearings officials and planning commissioners have missed this point; and have instead viewed a condition of approval requiring an improvement (such as a sidewalk), which they (incorrectly) believe is "infeasible," as just a "clever" ruse to kill a project. Their inappropriate (and unlawful) approach has been to rely on their flawed understanding of Dolan to justify not imposing a condition of approval that is sufficient to ensure safe access to the PUD, thus putting the public at risk. In the future, Eugene hearing officials and planning commissioners must insist that the City Attorney and Planning staff provide to hearings officials and the EPC one or more potential conditions of approval in the form shown above for the decision makers to consider. Exhibits A. Excerpts from EC 9.8320 B. Excerpts from EC 9.6505 C. Butte Conservancy v. City of Gresham, _ Or LUBA _ (LUBA No. 2005-150, January 26, 2006) (Butte I) D. Butte Conservancy v. City of Gresham, 52 Or LUBA 550 (2006) (Butte II) Page 18 EXHIBIT A Eugene Code (c) Cumulative Density. When final plans are to be approved in phases, at no time shall the cumulative residential density exceed the overall density per acre established at the time of tentative plan approval. (5) Needed Housing. If the proposal includes needed housing, as defined by State statutes, the written statement submitted with the PUD application shall clearly state whether the applicant is electing to use the general approval criteria in EC 9.8320 Tentative Planned Unit Development Approval Criteria- General instead of the approval criteria found in EC 9.8325 Tentative Planned Unit Development Approval Criteria- Needed Housing. (Section 9.83 10, see chart at front of Chapter 9 for legislative history from 2126101 through 611102; amended by Ordinance No. 20353, enacted November 28, 2005, effective January 1, 2006.) 9.8320 Tentative Planned Unit Development Approval Criteria- General. The hearings official shall approve, approve with conditions, or deny a tentative PUD application with findings and conclusions. Decisions approving an application, or approving with conditions shall be based on compliance with the following criteria: (1) The PUD is consistent with applicable adopted policies of the Metro Plan. (2) The PUD is consistent with applicable adopted refinement plan policies. (3) The PUD will provide adequate screening from surrounding properties including, but not limited to, anticipated building locations, bulk, and height. (4) The PUD is designed and sited to minimize impacts to the natural environment by addressing the following: (a) Protection of Natural Features. 1. For areas not included on the City's acknowledged Goal 5 inventory, the preservation of significant natural features to the greatest degree attainable or feasible, including: a. Significant on-site vegetation, including rare plants (those that are proposed for listing or are listed under State or Federal law), and native plant communities. b. All documented habitat for all rare animal species (those that are proposed for listing or are listed under State or Federal law). C. Prominent topographic features, such as ridgelines and rock outcrops. d. Wetlands, intermittent and perennial stream corridors, and riparian areas. e. Natural resource areas designated in the Metro Plan diagram as "Natural Resource" and areas identified in any city-adopted natural resource inventory. 2. For areas included on the City's acknowledged Goal 5 inventory: a. The proposed development's general design and character, including but not limited to anticipated building locations, bulk and height, location and distribution of recreation space, parking, roads, access and other uses, will: (1) Avoid unnecessary disruption or removal of attractive natural features and vegetation, and (2) Avoid conversion of natural resource areas designated in the Metropolitan Area General Plan to urban uses when alternative locations on the property are suitable for development as otherwise permitted. 9.8-52 9/16/2014 Eugene Code b. Proposed buildings, road, and other uses are designed and sited to assure preservation of significant on-site vegetation, topographic features, and other unique and worthwhile natural features, and to prevent soil erosion or flood hazard. (b) Tree Preservation. The proposed project shall be designed and sited to preserve significant trees to the greatest degree attainable or feasible, with trees having the following characteristics given the highest priority for preservation: 1. Healthy trees that have a reasonable chance of survival considering the base zone or special area zone designation and other applicable approval criteria; 2. Trees located within vegetated corridors and stands rather than individual isolated trees subject to windthrow; 3. Trees that fulfill a screening function, provide relief from glare, or shade expansive areas of pavement; 4. Trees that provide a buffer between potentially incompatible land uses; 5. Trees located along the perimeter of the lot(s) and within building setback areas; 6. Trees and stands of trees located along ridgelines and within view corridors; 7. Trees with significant habitat value; 8. Trees adjacent to public parks, open space and streets; 9. Trees located along a water feature; 10. Heritage trees. (c) Restoration or Replacement. 1. For areas not included on the city's acknowledged Goal 5 inventory, the proposal mitigates, to the greatest degree attainable or feasible, the loss of significant natural features described in criteria (a) and (b) above, through the restoration or replacement of natural features such as: a. Planting of replacement trees within common areas; or b. Re-vegetation of slopes, ridgelines, and stream corridors; or c. Restoration of fish and wildlife habitat, native plant habitat, wetland areas, and riparian vegetation. To the extent applicable, restoration or replacement shall be in compliance with the planting and replacement standards of EC 6.320. 2. For areas included on the city's acknowledged Goal 5 inventory, any loss of significant natural features described in criteria (a) and (b) above shall be consistent with the acknowledged level of protection for the features. (d) Street Trees. If the proposal includes removal of any street tree(s), removal of those street tree(s) has been approved, or approved with conditions according to the process at EC 6.305. (5) The PUD provides safe and adequate transportation systems through compliance with the following: (a) EC 9.6800 through EC 9.6875 Standards for Streets, Alleys, and Other Public Ways (not subject to modifications set forth in subsection (10) below). 9.8-53 9/16/2014 Eugene Code (b) Pedestrian, bicycle and transit circulation, including related facilities, as needed among buildings and related uses on the development site, as well as to adjacent and nearby residential areas, transit stops, neighborhood activity centers, office parks, and industrial parks, provided the city makes findings to demonstrate consistency with constitutional requirements. "Nearby" means uses within 1/4 mile that can reasonably be expected to be used by pedestrians, and uses within 2 miles that can reasonably be expected to be used by bicyclists. (c) The provisions of the Traffic Impact Analysis Review of EC 9.8650 through 9.8680 where applicable. (6) The PUD will not be a significant risk to public health and safety, including but not limited to soil erosion, slope failure, stormwater or flood hazard, or an impediment to emergency response. (7) Adequate public facilities and services are available to the site, or if public services and facilities are not presently available, the applicant demonstrates that the services and facilities will be available prior to need. Demonstration of future availability requires evidence of at least one of the following: (a) Prior written commitment of public funds by the appropriate public agencies. (b) Prior acceptance by the appropriate public agency of a written commitment by the applicant or other party to provide private services and facilities. (c) A written commitment by the applicant or other party to provide for offsetting all added public costs or early commitment of public funds made necessary by development, submitted on a form acceptable to the city manager. (8) Residents of the PUD will have sufficient usable recreation area and open space that is convenient and safely accessible. (9) Lots proposed for development with one-family detached dwellings shall comply with EC 9.2790 Solar Lot Standards or as modified according to subsection (10) below. (10) The PUD complies with all of the following: (a) EC 9.2000 through 9.3915 regarding lot dimensions and density requirements for the subject zone. Within the /AIR Water Resources Conservation Overlay Zone or /WQ Water Quality Overlay Zone, no new lot may be created if more than 33% of the lot, as created, would be occupied by either: 1. The combined area of the /WR conservation setback and any portion of the Goal 5 Water Resource Site that extends landward beyond the conservation setback; or 2. The /WQ Management Area. (b) EC 9.6500 through EC 9.6505 Public Improvement Standards. (c) EC 9.6706 Development in Flood Plains through EC 9.6709 Special Flood Hazard Areas - Standards. (d) EC 9.6710 Geological and Geotechnical Analysis. (e) EC 9.6730 Pedestrian Circulation On-Site. (f) EC 9.6735 Public Access Reguired. (g) EC 9.6750 Special Setback Standards. (h) EC 9.6775 Underground Utilities. (i) EC 9.6780 Vision Clearance Area. 9.8-54 9/16/2014 EXHIBIT B Eugene Code Public Improvement Standards 9.6500 Easements. (1) The city may require the dedication of easements for wastewater sewers and other public utilities, and for access thereto for maintenance, of a sufficient width to meet the intended use, provided the city makes findings to demonstrate consistency with constitutional requirements. (2) Easements may be required along lot or parcel rear lines or side lines, or elsewhere as necessary to provide needed facilities for present or future development of the area. (3) No building, structure, tree, or other obstruction shall be placed or located on or in a public utility easement. Prior to approval of a final PUD, final site review plans, or final plats, there shall appear thereon a restriction showing compliance with this subsection. (Section 9.6500, see chart at front of Chapter 9 for legislative history from 2126101 through 611102.) 9.6505 Improvements - Specifications. All public improvements shall be designed and constructed in accordance with adopted plans and policies, the procedures specified in Chapter 7 of this code, and standards and specifications adopted pursuant to Chapter 7 of this code. Additionally, all developments shall make and be served by the following infrastructure improvements: (1) Water Supply. All developments shall be served by the water system of the Eugene Water & Electric Board. (2) Sewage. All developments shall be served by the wastewater sewage system of the city, complying with provisions in Chapter 6 of this code. (3) Streets and Alleys. (a) The developer shall grade and pave all streets and alleys in the development site. All paving shall be to the width specified in EC 9.6870 Street Width and provide for drainage of all such streets and alleys, and construct curbs and gutters, sidewalks, street trees and street lights within the development site according to the Design Standards and Guidelines for Eugene Streets, Sidewalks, Bikeways and Accessways and standards and specifications adopted pursuant to Chapter 7 of this code and other adopted plans and policies. (b) The developer shall pave streets and alleys adjacent to the development site to the width specified in EC 9.6870 Street Width, unless such streets and alleys are already paved to that width, provided the City makes findings to demonstrate consistency with constitutional requirements. All paving shall provide for drainage of all such streets and alleys, and construct curbs and gutters, sidewalks, street trees and street lights adjacent to the development site according to the Design Standards and Guidelines for Eugene Streets, Sidewalks, Bikeways and Accessways and standards and specifications adopted pursuant to Chapter 7 of this code and other adopted plans and policies. (c) The standard at (3)(b) may be adjusted if consistent with the criteria of EC 9.8030(19). (4) Sidewalks. Sidewalks shall be located, designed and constructed according to the provisions of this land use code, the Design Standards and Guidelines for Eugene Streets, Sidewalks, Bikeways and Accessways, construction and design standards adopted pursuant to Chapter 7 of this code, and other 9.6-37 9/16/2014 EXHIBIT C. Butte I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON BUTTE CONSERVANCY and ERIK NIELSEN, Petitioners, VS. CITY OF GRESHAM, Respondent, and PERSIMMON DEVELOPMENT, Intervenor-Respondent. LUBA No. 2005-150 FINAL OPINION AND ORDER Appeal from City of Gresham. Gary P. Shepherd, Portland, filed the petition for review and argued on behalf of petitioners. David R. Ris, Senior Assistant City Attorney, Gresham, filed a joint response brief and argued on behalf of respondent. With him on the brief were John M. Junl in and Bullivant Houser Bailey, PC. John M. Junkin, Portland, filed a joint response brief and argued on behalf of intervenor- respondent. With him on the brief were David R. Ris and Bullivant Houser Bailey, PC. BASSHAM, Board Member; DAVIES, Board Chair; HOLSTUN, Board Member, participated in the decision. REMANDED 01/26/2005 You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850. Page 1 1 Opinion by Bassham. 2 NATURE OF THE DECISION 3 Petitioners appeal a city decision approving a planned unit development. 4 MOTION TO INTERVENE 5 Persimmon Development (intervenor), the applicant below, moves to intervene on the side 6 of respondent. There is no opposition to the motion, and it is granted. 7 MOTION TO FILE REPLY BRIEF 8 Petitioners move to file a reply brief to address new matters raised in the response brief. 9 The reply brief responds to a waiver argument in the response brief, which is a proper subject of a 10 reply brief. The motion is granted. 11 FACTS 12 The challenged decision approves an 86-lot planned unit development on 69.5 acres in the 13 City of Gresham near unincorporated areas of Clackamas and Multnomah Counties. The 14 proposed development is phases 6, 7 and 9 of a larger development that includes adjoining 15 property. Much of the subject property is steeply sloped and heavily wooded. The property's 16 zoning is Low Density Residential District (LDR) with a Hillside Physical Constraint Overlay District 17 (HPCD). 18 Among other things, the approval includes a major variance to allow two cul-de-sacs of 19 over 200 feet in length, a tree removal permit to log approximately 1800 regulated trees, and the 20 relocation of a future street connection through an existing residential lot. Petitioners opposed the 21 development before the planning commission, which approved the application. Petitioners appealed 22 the planning commission's &cision to the city council, which denied the appeal and approved the 23 application. This appeal followed. 24 FIRST ASSIGNMENT OF ERROR 25 The decision grants a major variance for two cul-de-sacs that exceed the city's maximum 26 length. The proposed Street A cul-de-sac is 390 feet in length. The proposed Street C cul-de-sac Page 2 I is 620 feet in length. To obtain a major variance, City of Gresham Community Development Code 2 (CDC) requires a demonstration that all four criteria of CDC 10.150 be satisfied and one of the two 3 criteria of CDC 10.1530 be satisfied. Petitioners challenge the city's findings of compliance for 4 each of the five approval criteria. 5 A. CDC 10.1530(A) 6 The city approved the variance under CDC 10.1530(A), which provides: 7 "The circumstances that apply to the site or to the present or permitted use of the 8 site do not typically apply to other properties in the same vicinity or land use district 9 and are unique or unusual[.]" 10 The city's findings state: 11 "The circumstance that applies to the site, namely topographic constraints that do 12 not permit better connectivity of the local street system, do not typically apply to 13 other properties in the same land use district." Record 54. 14 Petitioners argue that this finding is conclusory and fails to My address both elements of 15 CDC 10.1530(A). According to petitioners, CDC 10.1530(A) requires a finding that the 16 circumstances justifying the variance are both (1) atypical and (2) unique or unusual. We agree with 17 respondents that the two alleged elements are essentially two ways of saying the same thing: the 18 circumstances must be unique or unusual rather than typical. 19 Petitioners next argue that there are no findings addressing other properties in the HPCD. 20 According to petitioners, the HPCD includes all areas of the city with slopes 15 percent or greater, 21 and the subject property is bordered by property to the north and west subject to the district. 22 Steep slopes are a common topographical limitation n the area, petitioners argue, and thus steep 23 slopes cannot justify a variance under CDC 10.1530(A). 24 As we understand the city's findings, the "topographic constraint" that constitutes the unique 25 or unusual circumstance is not steep slopes per se, but the fact that the flatter, buildable (<15%) 26 portions of the property are scattered along a ridge, and those buildable portions can be accessed 27 only by cul-de-sacs that exceed the maximum length normally allowed. Without the variance, the 28 city found, "development of significant portions of the property with slopes less than 15% would not Page 3 1 be possible." Record 54. Petitioners cite to nothing in the record indicating that that circumstance 2 is typical on other lands in the vicinity or subject to the HPCD. However, respondents cite us to 3 nothing in the record establishing the contrary. We agree with petitioners that the city's finding 4 under CDC 10.1530(A) is conclusory and inadequate. CDC 10.1530(A) requires at least a 5 general description of the "other properties in the same vicinity or land use district" and some 6 explanation for why the particular circumstances that apply to the subject site are atypical, unique or 7 unusual, compared to other properties in the same vicinity or district. That description and 8 explanation are missing. 9 This subassignment of error is sustained, in part. 10 B. CDC 10.1510(A) 11 CDC 10.1510(A) requires a showing that: 12 "The need for the variance does not result from prior actions of the applicant or 13 owner, or from personal circumstances of the applicant or owner, such as financial 14 circumstances." 15 The city's findings state: 16 "The proposed variance does not result from any prior actions of the applicant, nor 17 does it result from financial or other personal circumstances of the applicant. * * * 18 Due to the steep topography of the development site, connecting these cul-de-sacs 19 to other streets (thus eliminating the `dead end' nature of the streets) is impractical. 20 * * * these dead-end streets are the only means to access land that is less than 15% 21 slope." Record 53. 22 Petitioners argue that the city's findings fail to address the prior actions of the applicant in 23 developing earlier phases of the larger subdivision, which dictated the hnd use pattern for the 24 subject property. In addition, petitioners argue that the applicant was well aware of the 25 topographical constraints when it purchased the subject property, and that knowledge should be a 26 basis to deny a variance under CDC 10.1510(A). With respect to personal and financial 27 circumstances, petitioners contend that the variances essentially allow the applicant to develop 11 Page 4 1 lots more than could be developed without a variance, and thus the purpose of the variance is 2 simply to increase the applicant's profits.' 3 Respondents argue, and we agree, that the topographic constraints-the inaccessibility of 4 some of the flatter, buildable portions of the property without cul-de-sacs-is not a function of the 5 applicant's prior development. We also agree that the applicant's prior awareness of the property's 6 topography is not a basis to deny a variance under CDC 10.1510(A). In any case, as respondents 7 point out, when the applicant purchased the property the maximum length of a cul-de-sac under the 8 city code was 600 feet, later changed to 200 feet. Finally, we agree with respondents that the 9 topographic constraints that limit development of the subject property are not "personal 10 circumstances of the applicant or owner, such as financial circumstances," within the meaning of 11 CDC 101510(A). The cited topographic constraints would apply to any developer or landowner, 12 regardless of personal or financial circumstances. 13 This subassignment of error is denied. 14 C. CDC 10.1510(B) 15 CDC 10.1510(B) requires a showing that: 16 `To meet the need, the request is the minimum necessary variation from the [CDC] 17 requirement." 18 The city's findings state: 19 "The proposed dead-end streets extend only as far as necessary to access 20 developable portions of the property, including significant sections of the property 21 that are under 15% slope." Record 53 Petitioners also argue that the city's findings are inconsistent with respect to topographic constraints, citing to a finding that "topographic constraints are not a reason to allow a variance" with respect to SE Yellowhammer Road. Record 50 (quoted more fully at n 2, below). We do not understand the argument. As far as we can tell, the cited finding simply states that SE Yellowhammer Road is necessary to meet the connectivity requirements of CDC 9.0710(A), there is no request for a variance to avoid constructing SE Yellowhammer Road and, in any case, topographic constraints would not be a basis to allow such a variance, if one were requested, apparently because the grade is only eight percent where the road connects with the existing public street. We do not see the findings with respect to SE Yellowhammer Road and the two disputed cul-de-sacs are inconsistent. Page 5 1 Petitioners argue that in a prior variance decision a city hearings officer interpreted 2 CDC 10.1510(B) to require a demonstration that a variance is needed to meet the minimum 3 residential requirements. According to petitioners, the minimum residential density for the subject 4 property is 75 lots. Petitioners cite to evidence that the applicant could develop 75 lots without 5 either of the two requested variances. Therefore, petitioners argue, the city cannot find that the 6 variance to the cul-de-sac length requirement is the "minimum necessary variation." 7 Respondents argue that cited hearings officer's decision involved a city policy that is no 8 longer in place and does not apply to the subject development. In any case, respondents contend, a 9 hearings officer's interpretation in an unrelated decision does not control the present decision. We 10 agree with respondents. The findings adopted by the city council in the present case treat 11 compliance with CDC 10.1510(B) as a matter of whether the variance-here, the length of the cul- 12 de-sac-is the minimum necessary to access the developable areas of the property, not whether the 13 variance is the minimum necessary to meet residential density requirements. Petitioners do not 14 dispute the city council's finding that the proposed "streets extend only as far as necessary to access 15 developable portions of the property[.]" That finding is sufficient to establish compliance with 16 CDC 10.1510(B). 17 This subassignment of error is denied. 18 D. CDC 10.1510(C) 19 CDC 10.1510(C) requires a showing that: 20 'There are development constraints associated with the property, or the present use 21 or permitted use of the property, which make development of a permitted use 22 impractical; or the variance is needed to allow the applicant to enjoy a substantial 23 property right possessed by a majority of property owners in the same vicinity." 24 The city's findings state: 25 " * * * there are severe topographic constraints associated with the property that 26 do not allow connection of the proposed dead-end streets with another street. 27 Thus, without the variance for the dead-end street lengths, development of 28 significant portions of the property with slopes less than 15% would not be 29 possible." Record 53-54. Page 6 I Again, the city's findings state that development of the flatter portions of the property would 2 not be possible without the variance for longer cul-de-sacs because of topographical circumstances. 3 Those circumstances are "constraints associated with the property" that make "development of a 4 permitted use impractical[.]" Petitioners repeat their argument that 75 lots could be developed 5 without a variance, and argue that "development of the permitted use" is thus not impractical. 6 However, the city council obviously views CDC 10.1510(C) as allowing a variance where the 7 variance is necessary to develop a "significant portion" of the property. Petitioners have not 8 established that that view of CDC 10.1510(C) is inconsistent with the language, purpose or 9 underlying policy of that code provision. 10 This subassignment of error is denied. 11 E. CDC 10.1510(D) 12 CDC 10.1510(D) requires a showing that: 13 "the purposes of the [CDC] and the applicable policies of the Community 14 Development Plan would be equally met or advanced by a variation from the 15 development requirement." 16 The city's findings state: 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 "[CDC] 2.002 sets forth broad purpose statements addressing issues such as the general public welfare, the character and stability of the City, adequate public facilities, orderly future growth and development, etc. There is also policy language advocating the compatibility of new development with existing patterns of development. Purpose statement (G) is the most pertinent to the standard in question: "`To provide the most beneficial relationship between the uses of land and buildings and the circulation of traffic throughout the City by promoting a variety of transportation choices including walking, bicycling, transit and automobile and be reducing parking space requirements, with particular regard to the avoidance of congestion in the streets and highways as well as pedestrian traffic movements appropriate to the various uses of land and buildings, and to provide for the proper location and width of streets and building lines.' "This provides some of the background for the maximum permanent dead-end street standard of 200 feet. However, the standard did not expressly take into Page 7 1 consideration physical constraints such as steep topography. The findings of this 2 staff report indicate that the development, with dead-end streets in excess of 200 3 feet, will have adequate public facilities service. Further the allowance of the 4 variance will permit the remainder of the development to meet the required minimum 5 density while providing lots that are comparable in size to the approved lots to the 6 north. 7 "Taken as a whole, the purposes of the [CDC] and the applicable policies of the 8 Community Development Plan are equally met or advanced by the variation from 9 the development requirement restricting land division to permanent dead-end streets 10 200 feet or less in length." Record 54. 11 As the above-quoted findings indicate, CDC 10.1510(D) is an inherently nebulous 12 standard, which may require balancing what could be a number of broad policy or purpose 13 statements. The gist of the city's finding of compliance with CDC 10.1510(D) is that the main 14 purpose of the 200-foot cul-de-sac length requirement is to ensure adequate public services, and 15 according to the staff report that purpose is equally met with the variance. Petitioners cite to 16 testimony from opponents that cul-de-sacs slow emergency response times, and that long, steep 17 road grades are dangerous. The challenged variances do not involve road grades, and there is 18 substantial evidence supporting the city's finding with respect to public services, including 19 emergency response times. Petitioners have not demonstrated that the 'city erred in finding 20 compliance with CDC 10.1510(D). 21 This subassignment of error is denied. 22 The first assignment of error is sustained, in part. 23 SECOND ASSIGNMENT OF ERROR 24 The city required secondary access to the subdivision, as necessary to approve the planned 25 unit development, and the applicant proposed SE Yellowhammer Road as secondary access.' As 2 The city's findings explain the necessity of the SE Yellowhammer Road access: "Preclusion of the future connection to SE Yellowhammer Road will result in criteria 9.0710(A)(2)-(4) not being met. Further, the lack of connectivity to SE Yellowhammer Road will result in a permanent dead-end street system in excess of 200 feet in length, thereby also not complying with the standards of Section A5.402(F). A Major Variance has not been applied Page 8 1 proposed, SE Yellowhammer Road extends south of the subject property through an existing 2 undeveloped residential lot in adjoining Kingswood Heights subdivision. Accordingly, the city 3 imposed Condition of Approval 7 requiring that the applicant submit as part of final plat documents: 4 (1) a 20-foot wide right of way or easement for SE Yellowhammer Road, (2) construction plans for 5 the road, and (3) a street construction permit from Clackamas County, which has jurisdiction over 6 the public street SE Yellowhammer Road would connect to. 7 Petitioners contend, however, that use of lots within Kingswood Heights for secondary 8 access is prohibited by the subdivision restrictions controlling that subdivision, and therefore the 9 city's decision that SE Yellowhammer Road can provide necessary access is not supported by 10 substantial evidence. According to petitioners, the Kingswood Heights subdivision restrictions 11 recorded with Clackamas County prohibit the use of land within the subdivision for anything but 12 single-family dwellings and further restrict tree cutting without prior written consent of the 13 homeowners association.' Petitioners argue that there is no basis in the record to believe that the 14 homeowners association would approve the tree cutting necessary to construct an access road that 15 is not permitted within the subdivision. 16 Respondents first argue that alleged violations of private covenants, conditions, and 17 restrictions (CC&Rs) cannot serve as a basis for reversal or remand. Respondents are correct that 18 the fact that proposed development may be inconsistent with CC&Rs, in and of itself, provides no 19 basis for reversal or remand. Long v. Marion County, 26 Or LUBA 132, 136 (1993). That is for the full Persimmon Phases 79 development in regards to the standards of Section A5.402(F), which would allow the preclusion of a public road connection to SE Yellowhammer Road. As shown * * topographic constraints are not a reason to allow a variance to this standard. Therefore, the future connection to SE Yellowhammer Road is needed to comply with the criteria of Section 9.0710(A)(2)-(4) and Section A5.402(F)." Record 50. 3 The cited restrictions state: "3. No building or structure or land shall be used and no building or structure shall hereafter be erected, altered or enlarged in the subdivision except for single-family dwellings and accessory buildings * * Record 432. "15. No trees shall be cut without the written consent of the Board of Directors of the Kingswood Homeowners Association * * Record 434. Page 9 I because CC&Rs generally are not approval criteria. Respondents, however, misunderstand the 2 nature of petitioners' challenge. Petitioners' assignment of error is not that the proposed 3 development violates the CC&Rs; petitioners argue that the proposed development violates CDC 4 9.0710(A)(2)-(4) and A5.402(F). There is no dispute that secondary access by way of SE 5 Yellowhammer Road is required to satisfy the CDC approval criteria. The city conditioned 6 approval upon obtaining secondary access by way of SE Yellowhammer Road. Petitioners argue 7 that, given the Kingswood Heights CC&Rs, there is no finding or evidence that it is feasible to 8 satisfy that condition of approval 9 Respondents argue next that Condition of Approval 7 acts as a performance standard that 10 ensures that secondary access will be provided prior to final plat approval. According to 11 respondents, if for any reason secondary access is not provided, and the condition is not satisfied, 12 the city will not approve the final plat or allow the subdivision to be developed. 13 It is well established that a local government may find compliance with applicable criteria by 14 either (1) finding that an applicable approval criterion is satisfied, or (2) finding that it is feasible to 15 satisfy an applicable approval criterion and imposing conditions necessary to ensure that the 16 criterion will be satisfied. Rhyne v. Multnomah Coufity, 23 Or LUBA 442, 447 (1992). The city 17 attempted to find compliance with CDC 9.0710(A)(2)-(4) and A5.402(F) by imposing Condition 18 7, which states: 19 "In conjunction with the Phase 7 final plat submittal, the following shall be submitted: 20 "a. Documents for the dedication of the 20-foot wide right-of-way or easement 21 needed for the emergency road connection between the Persimmon 22 property and SE Yellowhammer Road, dedicated to Clackamas County by 23 separate instrument. 24 "b. Construction plans showing that the emergency road construction will have 25 an all-weather surface capable of supporting not less that 12,500 pounds 26 point load (wheel load) and 75,000 pounds live load (gross vehicle weight). 27 "c. A street construction and/or encroachment permit from Clackamas County 28 Engineering in accordance with the standards listed by Clackamas County 29 * Record 131. Page 10 1 Neither Condition 7 nor any of the city findings cited to us discuss whether it is feasible to 2 obtain the required access. Petitioners raised the issue of the feasibility of providing secondary 3 access below, and presented evidence suggesting that such access may not feasible. The city made 4 no effort to address those arguments. When an issue is raised regarding the feasibility of conditions 5 of approval to ensure compliance with approval criteria, the local government cannot simply ignore 6 the issue. Nor can the local government simply impose the disputed condition as a performance 7 standard and rely on a later staff review that does not provide notice and opportunity for hearing to 8 ensure compliance with approval criteria. Hodge Oregon Properties, LCC v. Lincoln Cty., 194 9 Or App 50, 55-56 (2004) (county erred in imposing conditions requiring fire breaks and water 10 supply for a dwelling without finding those conditions feasible or providing notice and opportunity 11 for hearing where the issue of feasibility can be addressed); Thomas v. Wasco County, 30 Or 12 LUBA 302, 311 (1996) (imposition of conditions does not excuse the local government from first 13 establishing that the approval criterion can be satisfied). Remand is necessary for the city to address 14 the issue and either establish that providing secondary access is feasible or ensure that a forum with 15 notice and opportunity for hearing is provided to address that issue. 16 The second assignment of error is sustained. 17 THIRD ASSIGNMENT OF ERROR 18 CDC 5.0232 provides "[a]ny removal of trees which would result in clear cutting is 19 prohibited on land within the [WO]."' CDC 3.0010 defines "clear cutting" as: 20 "Any tree removal which leaves fewer than an average of one tree per 1,000 square 21 feet of lot area, well distributed throughout the entirety of the site. * * 22 In order to determine whether a proposed development meets the requirements of CDC 23 5.0232, the city requires an applicant to submit data regarding its tree removal plan. CDC 9.1011 24 provides: a CDC 9.1010(F) also provides that "[a]ll tree removal that would result in clear cutting on slopes in excess of 15% is prohibited." Page 11 I "An applicant for a development permit for tree removal shall provide a detailed 2 tree removal/tree protection plan. * * * The plan shall include the following basic 3 information: 4 "(A) A tree survey of regulated and/or significant trees on site * * 5 CDC 3.0010 defines "tree survey" as: 6 "A drawing that provides the location of all trees having an eight inch or greater 7 DBH plotted by accurate techniques and designates the common or botanical name 8 of those trees, and their DBH." (Emphasis added.) 9 As discussed earlier, the subject property is almost 70 acres. While the city required a tree 10 survey, it accepted a tree survey based on a one-acre sample of the property. Record 548. That 11 sample found 65 regulated trees on one acre, and extrapolated from that number to conclude that 12 there are 4,093 regulated trees on the 70-acre property. The county found, based on that sample, 13 that the proposal would remove 1,802 regulated trees on 20.77 acres, which petitioner asserts 14 leaves barely enough trees to avoid "clear-cutting" as the CDC defines that term. 15 Petitioners argue that the plain language of the CDC requires that the applicant survey all 16 trees on the property, and does not permit extrapolation from a sample of 1/70th of the property. 17 Respondents argue that the city's routine practice is to allow sample surveys for larger properties, 18 and not require applicants to survey the entire property. In any case, respondents argue, removal of 19 trees necessary to accomplish a "public purpose," including installation of public facilities and utilities 20 in a right-of-way, is permitted under CDC 9.1012(3). 21 We agree with petitioner that the plain language of the CDC requires a survey of all trees 22 exceeding a certain diameter on the property, not a sample representing 1/70th of the property. 23 That the city's practice is not in accord with the CDC is not a basis to ignore the code requirements. 24 The city's desire to avoid what may be in some cases an unnecessary expense to the applicant is 25 understandable. Even if that desire were a basis to vary the code requirement in some cases, 26 however, the present case would not seem an appropriate one. As petitioners point out, the 27 extrapolated sample indicates that, at best, the proposal will barely avoid the prohibition on clear- 28 cutting. There is no evidence in the record, however, as to how that sample was selected, whether Page 12 1 it is representative of the property as a whole, or whether the trees that are "eight-inch or greater 2 DBH" are uniformly distributed on the property. Under these circumstances, the city's confidence 3 in the accuracy of a one-acre sample of a 70-acre parcel seems misplaced. 4 With respect to CDC 9.1012(3), the city did not adopt findings regarding that provision, at 5 least none cited to us, or otherwise adopt the position respondents take on appeal. We understand 6 respondents to argue that CDC 9.1012(3) acts as a limited exception to he CDC 5.0232 7 prohibition on clear-cutting. While that seems an unlikely reading of the code, the city may wish to 8 address that issue on remand. 9 The third assignment of error is sustained. 10 FOURTH ASSIGNMENT OF ERROR 11 Petitioners argue that the decision fails to show compliance with CDC 6.0323(B), which 12 requires that: 13 "The following topographic feature, natural resource and other features shall be 14 mapped and identified: 15 16 "(2) Other natural features. 17 "(a) Trees with a circumference of 25 inches or greater measured at a 18 point 4.5 feet above ground on the upslope side of the tree." 19 Respondents respond that petitioners waived the issue because they failed to raise it below. 20 ORS 197.763(1); 197.835(3).5 As discussed in the third assignment of error, petitioners argue s ORS 197.763(1) provides: "An issue which may be the basis for an appeal to [LUBA] shall be raised not later than the close of the record at or following the final evidentiary hearing on the proposal before the local government. Such issues shall be raised and accompanied by statements or evidence sufficient to afford the governing body, planning commission, hearings body or hearings officer, and the parties an adequate opportunity to respond to each issue." ORS 197.835(3) provides: Page 13 I that the tree sample survey used by the city was inadequate under CDC 9.1011. Petitioners raised 2 specific issues under CDC 9.1011; however, we are not cited to any place in the record where 3 issues were raised under CDC 6.0323(B)(2)(a). 4 Petitioners argue that because the staff report addressed CDC 6.0323(B)(2)(a), that is 5 sufficient to avoid waiver under ORS 197.763(3) and 197.835(3). We disagree. The staff report 6 did not raise any cognizable "issue" under CDC 6.0323(B)(2)(a), and certainly not the issue that 7 petitioners raise under this assignment of error. To avoid waiver, the issue must be "raised and 8 accompanied by statements or evidence sufficient to afford the governing body, planning 9 commission, hearings body or hearings officer, and the parties an adequate opportunity to respond" 10 to the issue. ORS 197.763(1). A finding in a staff report that a criterion is satisfied is insufficient to 11 "raise" an "issue" with respect to that criterion, for purposes of ORS 197.763(1) and 197.835(3). 12 No party to the proceedings below would understand from the staff report that an issue has been 13 raised regarding compliance with CDC 6.0323(13)(2)(a). 14 We also understand petitioners to argue that raising an issue under CDC 9.1011 is sufficient 15 to raise the same issue under CDC 6.0323(B)(2)(a). Again, we disagree. While CDC 9.1011 and 16 CDC 6.0323(B)(2)(a) impose nearly identical requirements, raising an issue under one code 17 provision does nothing to apprise the decision maker and other parties that petitioners wish to raise 18 the same issue under a separate, unidentified code provision.6 19 The fourth assignment of error is denied. 20 The city's decision is remanded. "Issues shall be limited to those raised by any participant before the local hearings body as provided by ORS 197.195 or 197.763, whichever is applicable." 6 As a practical matter, however, the survey that the city must require on remand under CDC 9.1011 will almost certainly include the information required by CDC 6.0323(B)(2)(a). Page 14 EXHIBIT D. Butte// 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON BUTTE CONSERVANCY and ERIK NIELSEN, Petitioners, VS. CITY OF GRESHAM, Respondent, and PERSIMMON DEVELOPMENT, Intervenor-Respondent. LUBA No. 2006-084 FINAL OPINION AND ORDER Appeal from City of Gresham. Gary P. Shepherd, Portland, filed the petition for review and argued on behalf of petitioners. David R. Ris, Senior Assistant City Attorney, Gresham, filed a response brief and argued on behalf of respondent. John M. Junkin, Portland, filed a response brief and argued on behalf of intervenor- respondent. With him on the brief were Krista N. Hardwick and Bullivant Houser Bailey, PC. BASSHAM, Board Chair; HOLSTUN, Board Member, participated in the decision. AFFIRMED 09/15/2006 You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850. Page 1 I Opinion by Bassham. 2 NATURE OF THE DECISION 3 Petitioners appeal a city council decision on remand from LUBA approving an 86-lot 4 planned unit development (PUD) 5 MOTION TO INTERVENE 6 Persimmon Development (intervenor), the applicant below, moves to intervene on the 7 side of respondent. There is no opposition to the motion, and it is allowed. 8 FACTS 9 The challenged decision approves an 86-lot PUD on a 69.5-acre parcel in the City of 10 Gresham near unincorporated areas of Clackamas County. The subject property is steeply 11 sloped and wooded, and within the city's Hillside Physical Constraint Overlay District 12 (HPCD). The proposed development required a variance to allow two cul-de-sacs over 200 13 feet in length, a tree removal permit to log approximately 1800 trees in areas where streets 14 and utilities are proposed, and construction of a secondary road access for emergency 15 vehicles through an existing residential lot in an adjoining subdivision within unincorporated 16 Clackamas County. 17 The city's initial approval was appealed to this Board, which sustained three 18 assignments of error, and remanded the decision to the city to address, among other things, 19 whether (1) providing the emergency vehicle access is feasible, and (2) removing 1800 trees 20 constitutes "clear cutting" that is prohibited under city code. 21 On remand, the city conducted a public hearing and adopted additional findings 22 concluding in relevant part that it is feasible to obtain the required emergency access and that 23 the proposed tree removal did not constitute "clear-cutting" that is prohibited under city 24 code. This appeal followed. Page 2 1 FIRST ASSIGNMENT OF ERROR 2 In order to gain approval of the requested variance for culs-de-sac longer than 200 3 feet, intervenor proposed and the city approved a secondary access point that would extend 4 south of the PUD through a residential lot in the adjoining Kingswood Heights subdivision, 5 which is within unincorporated Clackamas County, and connect to SE Yellowhammer Road. 6 Accordingly, the city imposed Condition of Approval 7 requiring that the applicant submit as 7 part of final plat documents: (1) a 20-foot wide right of way or easement across the 8 residential lot within the Kingswood Heights subdivision, dedicated to the county, (2) 9 construction plans for the access, and (3) a county street construction permit. 10 Before LUBA, petitioners argued that there was no evidence in the record that it was 11 "feasible" to construct the proposed secondary access, given that Covenants, Conditions, and 12 Restrictions (CC&Rs) governing the Kingswood Heights subdivision restrict all use of 13 residential lots to single-family dwellings and accessory buildings.I According to 14 petitioners, it is clear under the Kingswood Heights CC&Rs that use of a residential lot to 15 construct a street or other access for a neighboring subdivision is prohibited. We remanded 16 the city's initial decision to address this issue. 17 On remand, the city adopted findings concluding in relevant part that it is "feasible" 18 to construct the access road either because (1) the CC&Rs can be reasonably interpreted to 19 allow roads that provide access to residential uses and (2) in any case, the city has the legal 20 authority to condemn the right-of-way to provide secondary access notwithstanding the 21 CC&Rs. Petitioners challenge those conclusions, arguing that the CC&Rs are unambiguous 1 The Kingswood Heights subdivision restrictions include the following: "No building or structure or land shall be used and no building or structure shall hereafter be erected, altered or enlarged in the subdivision except for single-family dwellings and accessory buildings consisting of garages, carports, private green houses, swimming pools or other type of home recreational facilities and temporary structures for uses incidental to construction work which shall be removed upon completion or abandonment of the construction." Petition for Review App. 30. Page 3 1 and clearly would prohibit the proposed access road, and that the city lacks the legal 2 authority to condemn the right-of-way necessary to construct the road. 3 A. Feasibility 4 As an initial matter, the city argues that the legal requirement that local governments 5 address the feasibility of compliance with approval criteria should be applied differently 6 where, as here, the issue raised regarding the feasibility of compliance largely involves a 7 legal question and the courts, not the city, have jurisdiction in the final analysis to resolve 8 that question. The city recognizes that, in a line of cases based on Meyer v. City of Portland, 9 67 Or App 274, 678 P2d 741 (1984) and Rhyne v. Multnomah County, 23 Or LUBA 442 10 (1992), the Court and LUBA have held that, in a two-stage approval process such as 11 subdivision approval, where a problem is identified that raises concerns whether proposed 12 development can comply with applicable approval criteria, the local government may, among 13 other options, adopt findings demonstrating that solutions to the identified problem are 14 "feasible," i.e., "possible, likely and reasonably certain to succeed." Meyer, 67 Or App at 15 280, n 5. In Rhyne, we explained that: 16 "Assuming a local government finds compliance, or feasibility of compliance, 17 with all approval criteria during a first stage (where statutory notice and 18 public hearing requirements are observed), it is entirely appropriate to impose 19 conditions of approval to assure those criteria are met and defer responsibility 20 for assuring compliance with those conditions to planning and engineering 21 staff as part of a second stage. * * * 22 "Where the evidence presented during the first stage approval proceedings 23 raises questions concerning whether a particular approval criterion is satisfied, 24 a local government essentially has three options potentially available. First, it 25 may find that although the evidence is conflicting, the evidence nevertheless 26 is sufficient to support a finding that the standard is satisfied or that feasible 27 solutions to identified problems exist, and impose conditions if necessary. 28 Second, if the local government determines there is insufficient evidence to 29 determine the feasibility of compliance with the standard, it could on that 30 basis deny the application. Third, * * * instead of finding that the standard is 31 not met, it may defer a determination concerning compliance with the 32 standard to the second stage. In selecting this third option, the local 33 government is not finding all applicable approval standards are complied Page 4 I with, or that it is feasible to do so, as part of the first stage approval (as it does 2 under the first option described above). Therefore, the local government must 3 assure that the second stage approval process to which the decision making is 4 deferred provides the statutorily required notice and hearing * * 23 Or 5 LUBA at 447-48 (footnotes omitted). 6 Where the local government takes the first approach-finding that the approval 7 criterion is met or that feasible solutions to identified problems exist, and imposing necessary 8 conditions-those findings and conditions may be challenged as inadequate or not supported 9 by substantial evidence. Salo v. City of Oregon City, 36 Or LUBA 415, 428-29 (1999). 10 The city argues that the above framework is typically applied when the identified 11 "problem" involves a fact-specific technical or physical issue posed by the development, 12 such as the ability to construct public facilities or avoid hazardous conditions. According to 13 the city, that framework is more problematic when the identified "problem" involves an 14 alleged legal impediment that is beyond the local government's jurisdiction or authority to 15 resolve. The city argues that the meaning of the Kingswood Heights CC&Rs, specifically 16 whether the CC&Rs prohibit the proposed secondary access, is a question of law or a mixed 17 question of law and fact that is within the jurisdiction of the circuit court, and will be 18 definitively resolved only if residents of the Kingswood subdivision invoke the circuit 19 court's jurisdiction seeking to stop the proposed secondary access.2 The city argues that its 20 interpretation of the CC&Rs will have no binding legal effect in any circuit court action, and 21 that it makes little sense to require the city to interpret the CC&Rs in the first instance. 22 Rather than require the local government to engage in a non-binding legal analysis to 23 resolve a question of law that the city has no authority to determine, the city recommends 24 that the obligation to evaluate "feasibility" should proceed differently than when the city is 25 evaluating technical or physical feasibility. According to the city, the local government 2 The city notes that petitioners are not residents of Kingswood Heights subdivision, and do not have the ability to enforce the terms of the CC&Rs. Page 5 I should only be required to "determine that the legal position is warranted by existing law or 2 is a nonfrivolous argument based on existing law." City of Gresham's Response Brief 10-11. 3 The city argues that such a test would be similar to the test that LUBA has applied when 4 local land use standards expressly require compliance with state agency requirements or that 5 the applicant secure a state agency permit. In those cases, the city argues, LU13A has held 6 that the local government is not required to establish that the state agency requirements can 7 in fact be satisfied. Instead, the local government need only determine that the necessary 8 agency permit is "available" and that the applicant is not precluded from obtaining such 9 agency permits as a matter of law. Wetherell v. Douglas County, 44 Or LUBA 745, 755-56 10 (2003); Sam Miller v. City of Joseph, 31 Or LUBA 472, 478 (1996); Bouman v. Jackson 11 County, 23 Or LUBA 628, 646-47 (1992). 12 We generally agree with the city that the Meyer and Rhyne feasibility analysis must 13 be applied somewhat differently when the "problem" identified at t$e first stage of a two-step 14 approval process is an alleged legal impediment to fulfilling a condition of approval 15 requiring facilities necessary for the proposed development, rather than a technical, 16 engineering or similar issue. In such circumstances, where neither the local government nor 17 LUBA have jurisdiction to resolve the legal question, and that legal question must be 18 resolved in a particular way to allow the condition to be fulfilled so that an applicable 19 approval standard will be satisfied, neither the local government nor LUBA need engage in a 20 detailed or definitive legal analysis. In our view, it is sufficient for the local government in 21 such circumstances to (1) adopt findings that establish that fulfillment of the condition of 22 approval is not precluded as a matter of law, and (2) ensure, in imposing the condition of 23 approval, that the condition will be fulfilled prior to final development approvals or actual 24 development. 25 Although we did not couch it in those terms, we applied a similar approach in a 26 recent case with very similar facts. In Stoloff v. City of Portland, 51 Or LUBA 560 (2006), Page 6 1 the city approved a residential subdivision based in relevant part on a finding that sanitary 2 sewer facilities were "available." The petitioner argued that the proposed sewer facilities 3 required access to a sewer line on his property, and that the service provider did not own an 4 easement over petitioner's property for that purpose. The hearings officer disagreed, finding 5 that the service provider's easement over petitioner's property allowed service to the 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 proposed development. In the alternative, the hearings officer found that the service provider had the legal authority and ability to condemn easements necessary to serve the subject property. On appeal to LUBA, the petitioner disputed both findings, arguing in relevant part that the outcome of any condemnation proceeding was doubtful, because the petitioner intended to challenge any such proceeding. We declined to review the merits of the parties' dispute over the meaning and extent of the existing easement, because we affirmed the hearings officer's alternative disposition that even if the existing easement did not authorize service, the service provider had the authority to condemn an easement: "The parties argue at great length whether the existing easements and applicable property law establish that the district has an easement over petitioner's property; however, that is not the issue before us. The issue is whether PZC [Portland Zoning Code] 33.652.020A.1 is satisfied. It is well established that, where there is conflicting evidence over whether an approval criterion is satisfied or can be satisfied, a local government may either (1) find that the approval criterion is satisfied, or (2) find that it is feasible to satisfy the approval criterion and impose conditions necessary to ensure that the criterion will be satisfied. Rhyne v. Multnomah County, 23 Or LUBA 442, 447 (1992). In this case, the hearings officer apparently did both-he found that the district had an easement over petitioner's property and also imposed a condition that the district obtain an easement to provide sanitary service to the subdivision. Thus, even if petitioner is correct that the existing easements do not grant the district the ability to connect the proposed subdivision to the existing line on petitioner's property, the finding that the district will condemn the easement if necessary is sufficient to demonstrate that it is feasible to satisfy PZC 33.652.020A.1. If intervenors ultimately cannot satisfy the condition of approval then they will not be able to develop the subdivision." 50 Or LUBA at 565-66 33 We then distinguished our initial decision in the present appeal: Page 7 1 "It is true that, in [Butte Conservancy], we held that a condition of approval to 2 construct necessary access through an adjoining subdivision lot in itself did 3 not establish that such access was feasible when the legal right to construct 4 such access was disputed. However, unlike Butte Conservancy, the hearings 5 officer in the present case adopted findings and conditions of approval 6 sufficient to demonstrate that sanitary sewer service is feasible. Although 7 petitioner argues that he will challenge any condemnation proceeding, Rhyne 8 does not require absolute certainty, only a finding that compliance with 9 applicable criteria is feasible, and imposition of conditions necessary to 10 ensure compliance. The decision properly finds that PZC 33.652.020A.1 is 11 satisfied or can feasibly be satisfied through the imposition of conditions." Id. 12 at 566. 13 Turning back to the present case, the city on remand took essentially the same 14 approach as the hearings officer in Stoloff. As in that case, we see no point in addressing the 15 parties' arguments regarding the meaning of the Kingswood Heights CC&Rs, because for the 16 reasons set out below the city's findings adequately demonstrate that it is feasible for the city 17 to condemn the disputed right-of-way, even if it is ultimately determined that the CC&Rs 18 prohibit use of the residential lot for that purpose.3 In other words, couched in the analysis 19 set out above, the city's findings adequately establish that fulfillment of the condition of 20 approval is not precluded as a matter of law, and the city adequately ensured that the 21 condition will be fulfilled prior to final development approval. 3 Petitioners do not dispute the city's finding that following a lawful condemnation the use of the property for an access road would not be subject to the CC&R restrictions. At oral argument, petitioners questioned whether condemnation is even theoretically possible, since intervenor owns the lot and presumably would dedicate (in fact is required to dedicate) the right-of-way to the local government with jurisdiction, in this case the county. We understand petitioners to suggest that condemnation is a last resort that is reached only if voluntary dedication or conveyance is not possible, and here, it is clear that intervenor is willing and indeed is required to dedicate or convey the right-of-way. We further understand petitioners to argue that if the right-of- way is dedicated or conveyed in some manner rather than via eminent domain, then the CC&R restrictions would continue to apply to dedicated property. Because condemnation will likely never occur, we understand petitioners to argue, the theoretical possibility of employing eminent domain to avoid the CC&R restriction fails to establish that it is "feasible" to fulfill the condition of approval. Petitioners are probably correct that the city's exercise of eminent domain is unlikely. However, the city has adequately demonstrated that it has the legal authority to condemn the disputed right-of-way and thus avoid the legal impediment identified by petitioners. That demonstration is sufficient to satisfy the feasibility requirement of Meyer and Rhyne, as construed here, even if the city is unlikely in fact to ever exercise that condemnation authority. Page 8 1 B. Condemnation Authority 2 Petitioners concede that ORS 223.930 grants the city the authority to condemn 3 property outside city limits to acquire a street right-of-way. 4 However, petitioners argue that 4 the city's authority under ORS 223.930 is subject to two express limitations. First, 5 petitioners argue that ORS 223.930(1) requires that the city, and not the land use applicant, 6 must construct the street. The city cannot rely on ORS 223.930 in the present case, 7 petitioners contend, because it is clear that intervenor and not the city will construct the 8 "roadway." 9 Second, petitioners argue, that ORS 223.930(1) limits the city's right to condemn 10 under that statute to "roadways" as defined by the Oregon Vehicle Code. According to 11 petitioners, the Oregon Vehicle Code definition of "roadway" and related definitions specify 12 that the right-of-way must be used or intended for use by the "general public." See 13 ORS 801.450 (defining "roadway" as the "portion of a highway that is improved, designed or 14 ordinarily used for vehicular traffic"; and ORS 801.305 (defining "highway" in turn as a 15 public way, road, street, etc. that is "used or intended for use of the general public for 16 vehicles or vehicular traffic"). Because the emergency vehicle access can be accessed only 17 by emergency vehicles, petitioners argue, it is not open for "use of the general public" and 18 thus not a "highway" or "roadway." 19 The city responds that it is common to require developers to construct public roads 20 necessary to serve the proposed development, and that ORS 223.930(1) does not limit the 21 city's condemnation powers to public streets that the city directly constructs, improves, 4 ORS 223.930(1) provides, in relevant part: "Any city may construct, improve, maintain and repair any street the roadway of which, as defined in the Oregon Vehicle Code, is along or along and partly without, or partly within and partly without the boundaries of the city and may acquire, within and without the boundaries of such city, such rights of way as may be required for such street by donation or purchase or by condemnation in the same manner as provided in ORS 223.005 to 223.105 * I, Page 9 1 maintains or repairs. We agree. ORS 223.930(1) does not explicitly require that the city 2 itself construct, improve, maintain or repair the roadway, in order to exercise the 3 condemnation authority. 4 With respect to public use of the proposed access road, the city explains that the 5 city's Future Street Plan contemplates a public local street between the subject property and 6 SE Yellowhammer, constructed to local street standards. The city chose not to require that 7 the access street be constructed to local street standards in this decision and opened to 8 general traffic, because it determined that streets within the Kingswood Heights subdivision 9 cannot handle the additional traffic from development on the subject property, and the 10 number of trips generated from the subject development could not justify requiring 11 intervenor to upgrade the Kingswood Heights streets. Consequently, the city argues, the city 12 required dedication of right-of-way necessary to construct code-required access for 13 emergency vehicles, with a condition requiring dedication of additional right-of-way upon 14 improvement to the streets within the Kingswood Heights subdivision. 15 According to the city, requiring such limited access does not mean that the access 16 street is not a "roadway" or "highway" as those terms are defined in the Oregon Vehicle 17 Code. The city contends that nothing in the relevant statutes or the Oregon Vehicle Code 18 requires unrestricted public access in order for the street to constitute a "roadway" as that 19 term is used in ORS 223.930(1). Once a right-of-way is acquired by a public entity with 20 road jurisdiction, the city argues, that entity has the broad authority to impose restrictions on 21 its use to protect the interests and safety of general public, including closing a public street to 22 travel except as needed for emergency access. The city argues that such a restricted public 23 street is as much a "roadway" for purposes of the relevant statues as are unrestricted public 24 streets. 25 Finally, the city argues that even if ORS 223.930(1) does not authorize condemnation 26 in the present case, other statutes may. The city first cites to ORS 225.320 and 225.330, Page 10 1 which authorize condemnation of property within or without the city for "fire protection" 2 facilities. According to the city, the access road is intended to provide access for fire trucks 3 and alternative public evacuation routes in case of wildland fires, and thus would qualify as a 4 "fire protection" facility. Finally, the city cites to ORS 223.005, which grants the city broad 5 authority to appropriate any private real estate within or without city limits for "any public or 6 municipal use or for the general benefit and use of the people of the city[.]" 7 We agree with the city that under one statute or another the city likely has the 8 authority to condemn the disputed right-of-way, if that becomes necessary. Certainly, 9 petitioners have not demonstrated that any uncertainty with respect to the city's 10 condemnation authority is such that it can be said that fulfillment of the condition of 11 approval requiring dedication and construction of the access road is precluded as a matter of 12 law. The city appropriately drafted that condition in a manner that is sufficient to ensure that 13 fulfillment of the condition will occur prior to final development approval. If for one reason 14 or another the condition is unsatisfied, intervenor will not be able to obtain final subdivision 15 approval. We do not understand Meyer, Rhyne or Stoloff to require more, under the present 16 circumstances. 17 The first assignment of error is denied. 18 SECOND ASSIGNMENT OF ERROR 19 City of Gresham Community Development Code (CDC) 5.0232 provides that "[a]ny 20 removal of trees which would result in clear cutting is prohibited on land within the 21 [HPCD]."5 Similarly, CDC 9.1010(F) provides that "[a]ll tree removal that would result in 22 clear cutting on slopes in excess of 15% is prohibited." CDC 3.0010 defines "clear cutting" 23 as: 24 "Any tree removal which leaves fewer than an average of one tree per 1,000 square 25 feet of lot area, well-distributed throughout the entirety of the site. * * 5 CDC 5.0232 has since been amended or deleted. Page 11 1 CDC 9.1011 requires the applicant for tree removal to submit a tree survey of regulated 2 and/or significant trees on site. Further, the code defines "tree survey" as a "drawing that 3 provides the location of all trees" of a prescribed diameter. Intervenor initially presented a 4 tree survey based on a one-acre sample of the subject property, and the city accepted that 5 survey. We remanded the city's initial decision, however, concluding that under the above 6 code definitions and provisions the county erred in determining that proposed development 7 did not involve "clear-cutting" based on a one-acre sample rather than a survey of all trees on 8 the property. 9 On remand, intervenor submitted a survey depicting all trees on the subject property, 10 and an analysis indicating that removal of the proposed 1800 trees for roads and utilities 11 would leave approximately 1.07 trees per 1,000 square feet of gross site area. The city 12 accepted that survey and analysis. Petitioners argued below, and argue on appeal, that 13 intervenor's analysis erroneously considers only trees removed for roads and utilities, and 14 fails to consider trees that will be removed in the buildable area of individual lots for 15 dwellings. The city adopted findings responding that (1) petitioners could have but failed to 16 raise this issue in the previous appeal, and therefore the issue is waived, and (2), in any case, 17 the CDC requires consideration only of trees that must be removed for the development 18 proposed, not subsequent development authorized under individual building permits, which 19 are separately governed by CDC 9.1010(B).6 Petitioners challenge both findings. 6 The city's findings state, in relevant part: * * The removal of any trees for purposes of building specific homes within the proposed subdivision is not to be included in determining whether the Applicant's development will result in a `clear cutting.' The removal of any trees for a home is not authorized by approval of this Application and is subject to CDC 9.1010(B) when a building permit is sought. * * * * * The Appellants did not raise the issue of including tree removal from individual homes sites at LUBA. The LUBA remand required a tree survey of the entire site. The tree survey of the entire site establishes that more trees will remain after the tree removal than was estimated by the original sample tree survey. The tree survey of the entire site supports the original decision that approval of this Application does not result in clear cutting. Not having Page 12 I We need not resolve the issue of waiver, because we agree with the city and 2 intervenor that the CDC does not require intervenor to consider trees that will not be 3 removed under the proposed development-the PUD--but may be removed under 4 subsequent individual building permits for lots created by that PUD. 5 As the city and intervenor point out, nothing in the CDC requires a PUD applicant to 6 identify specific building pads or envelopes for lots created by the PUD approval. Under 7 petitioners' reading of the code, the PUD applicant and city would be required to guess 8 where building pads and envelopes would be proposed on individual lots, in order to 9 determine which and how many trees are likely to be removed pursuant to future, individual 10 building permits. Instead, CDC 9.1010(B)(2) appears to contemplate that such tree removals 11 are evaluated at or following the time when individual building permits are applied for. 7 12 Petitioners argue that the city misconstrues CDC 9.1010(B)(2) to allow tree removal 13 for individual building sites to be evaluated at the time a building permit is sought. While 14 that construction of CDC 9.1010(B)(2) may be the rule outside the HPCD, petitioners argue 15 that CDC 9.1010(E) clarifies that where the HPCD applies, removal of regulated trees 16 requires a Type II development permit, and cannot be approved as part of a mere building raised the issue of tree removal from individual home sites at LUBA, Appellants have waived any opportunity to raise the issue now." Record 15 (underline in original; footnote omitted). 7 CDC 9.1010(B) provides, in relevant part: "Removal of Regulated Trees: Removal of Regulated Trees as defined in Section 3.0010 shall be reviewed under Type II procedures for compliance with the standards of Sections 9.1010- 9.1012, "(2) Regulated trees located within 10 feet of the outer edge of the outline of a proposed single family residence or related site improvements may be removed without a separate or additional development permit after issuance of the building permit for the proposed residence. When additional trees are to be protected on the site outside the building envelope, a tree protection plan as approved by the City shall accompany the building plans and shall be enforced during all construction activities on the site. Mitigation in accordance with an approved mitigation plan for lost perimeter trees shall be completed or guaranteed prior to Final Inspection." Page 13 I permit.8 Thus, petitioners argue, outside HPCD zones tree removal may be authorized under 2 CDC 9.1010(B)(2) at the time of building permit approval, without obtaining a Type II 3 development permit, but within HPCD zones such tree removal requires a Type II 4 development permit.9 5 Petitioners may be correct that CDC 9.1010(E) would require a Type II development 6 permit for tree removal to site dwellings on individual lots within the HPCD zone, but 7 petitioners do not explain why CDC 9.1010(E) or any other code provision compels that such 8 future tree removals be evaluated as part of a PUD application seeking a tree removal permit 9 that does not propose removing any trees to site dwellings on individual lots. Petitioners 10 may also be correct that the city's interpretation of CDC 9.1010 to effectively allow 11 piecemeal cutting of regulated trees over a series of applications may undercut the 12 prohibition on "clear cutting.".10 However, that there may be loopholes that undercut the 13 "clear-cutting" prohibition does not mean that the city's interpretation is subject to reversal 8 CDC 9.1010(E) provides: "Tree Removal in Overlay Districts: Except as provided below, no removal of regulated trees shall be permitted within a Hillside Physical Constraint, Flood Plain, or Natural Resource Overlay District, without a Type II Development Permit." 9 The city points out that CDC 9.1010(E) has since been amended to provide an exception for removal of regulated trees within 10 feet of the outer edge of the outline of a proposed single family residence or related site improvements, so that such tree removals no longer require a Type II Development Permit. The city argues that any building permit/tree removal applications for individual lots within the subdivision will be governed by the amended CDC 9.1010(E), and therefore petitioners' arguments under former CDC 9.1010(E) are essentially moot. It seems unlikely to us that if the CDC in effect at the time of the challenged PUD/tree removal permit required evaluation of trees to be removed for dwellings, subsequent amendments to the CDC would moot a challenge that the city failed to conduct that required evaluation. However, we need not address that argument, because we agree with the city that nothing in CDC 9.1010 or elsewhere cited to us requires that the city determine in this decision which and how many trees will be removed for dwellings. 10 The city also points out that Condition of Approval 6(c), a condition imposed in the city's initial decision and not challenged by petitioners, requires that the CC&Rs for the subdivision include a restriction against removing regulated trees on individual lots where the result would leave fewer than one tree per 1,000 square foot of lot area. We understand the city to argue that that condition effectively ensures that development of individual lots will not run afoul the prohibition on "clear-cutting," as that prohibition is applied to applications to develop individual residential lots in the PUD. Page 14 1 under the deferential scope of review we must apply to a governing body's code 2 interpretation under ORS 197.829(1). 11 3 The fact remains that nothing in CDC 9.1010 compels the applicant for a tree removal 4 permit necessary to site roads and utilities for a proposed PUD or subdivision to take into 5 account trees that may have to be removed in subsequent development applications to site 6 and build houses on individual lots on that same property. Because it is difficult if not 7 impossible in the context of PUD approval to determine which trees and how many trees will 8 be removed when individual PUD lots are developed, such a requirement would be 9 unworkable, even if there were a basis in the code for an implicit requirement to that effect. 10 The city's code interpretation declining to infer such a code requirement is well within the 11 city's interpretative discretion under ORS 197.829(1). 12 The second assignment of error is denied. 13 The city's decision is affirmed. " ORS 197.829(1) provides, in relevant part: "[LUBA] shall affirm a local government's interpretation of its comprehensive plan and land use regulations, unless the board determines that the local government's interpretation: "(a) Is inconsistent with the express language of the comprehensive plan or land use regulation; "(b) Is inconsistent with the purpose for the comprehensive plan or land use regulation; "(c) Is inconsistent with the underlying policy that provides the basis for the comprehensive plan or land use regulation[.]" Page 15 Received We will be out of town the date of the March 7 public hearing regarding the above listed PUD. As we are unable to attend the meeting, we are sending you this letter to be entered into the public record prior to the hearing. Please send us confirmation that you have received and entered it. We live in the neighborhood that would be affected by the above PUD, strongly oppose it for many reasons, and cannot think of any positive reason for its approval. We live in this neighborhood because of the parks and natural areas, and approval of this development will have a permanent negative impact on it and our reasons for living here. The ridgeline south of Henricks Park is steep, and much of the proposed development area is unstable and unsafe for development. Removing the majority of trees, which hold soil in place, will increase erosion, creating additional instability and increasing the risk of landslides. And, building new houses in an area that is already unstable puts existing homes at risk of damage from landslides. Capital Drive is very narrow, with extremely limited space for parking and little leeway for, among other situations, emergency and construction vehicles, garbage collection, cars passing while traveling up or down the street, bicyclists, and people walking dogs. We enjoy walking to Hendricks Park on Capital, but with increased traffic caused by additional homes, and hugely disruptive construction traffic, walking this route would be unsafe and unpleasant. The possibility of a natural disaster occuring in the proposed development area, with emergency vehicles unable to access it with Capital Drive as the only access is very real. It is irresponsible for the city to approve this proposed development, knowing that disasters such as earthquakes, fire, and landslides, among others, are real possibilities. The Eugene Code protects our ridgeline land above 900 feet from overdevelopment and the South Hills Study expressly protects the city's evergreen view shed as a public asset. The developers plan to remove 80% of the large trees, directly going against both rulings, destroying the "protected" view shed of this iconic area of Eugene. Removing the large trees in the proposed development will also adversely affect Hendricks Park and the recently constructed Ribbon Trail by causing blow-down of adjacent trees, ruining the hiking experience (which the Parks and Recreation Department has so positively promoted and so many people enjoy), and negatively impacting the reasons so many Eugeneans and visitors use the trail. The proposed PUD is directly opposed to the recommendations of Eugene's South Hills Study and would destroy the beautiful view of the ridgeline and hills, which the Study advises protecting for the benefit of all Eugene. The PUD would have an adverse effect on Eugene's iconic Hendricks Park, a treasure for the entire city, by increasing traffic and noise in the surrounding area, reducing wildlife, and negatively impacting hikes on the Ribbon Trail. Please seriously consider the negative impacts on our neighborhood, Hendricks Park, and the Ribbon Trail and the reasoning behind the Eugene Code and The South Hills Study and do not approve this proposed PUD. Th you, ll1xx r Diane Bolte-Silverman and Jay Silverman 2555 Central Blvd. Eugene, OR 97403 541-255-6815 GIOELLO Nick R From: JOHN AND AMANDA TERHES <JATERHES@msn.com> Sent: Monday, March 05, 2018 8:12 PM To: GIOELLO Nick R Subject: Concerns with Capital Hill PUD (PDT 17 - 01) Nick, I am writing to express my concerns about the potential Capital Hill PUD. My husband and I have lived at 2465 Oak Grove Dr. (off of Spring Blvd.) for over 14 years so I base my concerns on experience over time. I have several concerns: SAFETY This is not new news ...there are nearly no sidewalks! Between kids, work, more kid stuff, and errands, I drive up and down Spring/Fairmount/E 22nd multiple times a day. I call it "the slalom." EVERYDAY I weave my way up and back around walkers, runner, bikers, baby strollers, dogs, cars, mail delivery, garbage trucks, delivery and service trucks, squirrels and at certain times of the year, deer. 1.1 am worried about hitting someone or something! The road is very narrow, during mid-morning hours the shadows make it nearly impossible to see someone in the dark patches, and there are several blind corners. Mailboxes are very close to the road and cars in driveways are often just on the edge of the street so there is no "wiggle room." 2.1 am worried my kids and 1 will be hitl►► This comes from first hand experience. There is little room to get out of the way of cars. After nearly (literally) being run over by a dump truck it has changed how much we walk. My kids (at the time were 6 & 8) and we were walking to school (Edison) when a dump truck rounded the corner from Fairmount onto Spring. We got up into the bushes but I could see the driver didn't see us because they were looking at the blind corner up ahead. The driver had his tires so they were rubbing the curb on the right. The horrifying problem with this was that we were standing on that curb. By the time the truck was about six feet from us the kids were dangling off the hill from the laurel bushes with me between them. My feet were on the curb. If that dump truck's front, right tire had gone over the curb, I would have been crushed and likely my kids. The part of this story that is most haunting to me is that I was looking the driver directly in the eyes when he saw us. And as much as this experience is burned in my brain, I can guarantee you it is burned in his as well. The look of surprise and then sheer horror was time-bending. As much as I don't want to hit someone, or be hit, definitely don't want to wish that on anyone else. Sadly, this is just one experience. Yes, the most dramatic but definitely not the only ...but I will spare you. DRAINAGE Our neighbor literally has sand bags in front of their garage in the winter to keep water out. When we put an addition on our house (only 200 sq ft!) we had professionals come out to look at the drainage issues it would cause for the house below us. With multiple contractors and sub-contractors for the PUD who is going to oversee this and make sure drainage is done properly for the entire development? Can it be done properly? TRAFFIC JAMS This seems like a ridiculous thing to say about a quiet street near campus but we see it all of the time now. I have a great video of a UPS driver having to back down our road to let an empty lumber truck go up the road. Last week a crew cab truck blocked four cars from coming down the street while they were taking cans out of a recycle bin on the street, Wednesday is Sanipac day around here and in many places on the street you can't pass because it is too narrow and where you can it is often dangerous because you can't see if someone is coming. Then in spring/summer time the area is littered with yard and tree maintenance trucks that have no place to park except the street. These are everyday occurrences! I cannot fathom how a fleet of contractors and material trucks are going to navigate an already congested area. it has taken me so long to write this letter because (again) I cannot fathom how this project is moving forward at this scale. As a mother and college instructor I spend my days helping my children and others to learn to make good decisions. How is the Capital Hill PUD a good decision for Eugene? Thank you for your consideration of my concerns and questions. I would like my letter to be entered into the record and I would like a confirmation receipt. Sincerely, Amanda Terhes 2465 Oak Grove Dr. Eugene, OR 97403 2 GIOELLO Nick R From: BARBARA BERGERSEN <bbergersen@comcast.net> Sent: Monday, March 05, 2018 3;32 PM To: GIOELLO Nick R Subject: Capital Hill (PDT 17-3) Dear Mr Gioello, I am writing this letter to describe my great concern for the potential development of Capital Hill PUD. I am certain that, if the Capital Hill development commences, the increased traffic of both cars and large vehicles on Spring Blvd, will greatly increase road danger to all the residents. My husband and I own a home at 2323 Spring Blvd. Our driveway is located on the east side of Spring Blvd. ( very close to the Chancellor's House). The road has many areas of limited visibility, as it curves past the trees and bushes. If someone is driving fast down Spring Blvd, I have almost been hit numerous times, while exiting our driveway. As you know, the road is also very narrow and has no sidewalk. I walk my dog on the west side of the road frequently. It is frightening when cars are coming from both directions, and we are walking on the curb. Many drivers not familiar with the road, drive in the middle of the road. There are numerous children walking to school along the road, and bike riders traveling slowly up the hill. It is dangerous each time cars travel around a pedestrian or cyclist. Spring Blvd cannot be altered to improve these problems. The driving skill of drivers cannot be altered either. Spring Blvd is the primary route that most drivers coming down Capital use to get get to town. If the amount of vehicles on Spring Blvd increases, we are all affected by increased danger. This would be a mistake, and it could cause injury. This increased danger is unfair to all the current residents of this neighborhood. I hope that the Capital Hill land could possibly be part of Hendricks Park. I greatly appreciate your work on this issue. Please enter this letter in the record for Capital Hill (PDT 17-3). Please confirm receipt. Thank you! regards, Barbara Bergersen GIOELLO Nick R From: Paul Conte <paul.t.conte@gmail.com> Sent: Monday, March 05, 2018 3:06 PM To: GIOELLO Nick R Subject: PW and staff reports improperly neglect various standards Nick, Please add to the record for PDT 17-1 and consider the issue below raised for future appeal. There are multiple occasions in the PW Referral Response and the Staff Report, where compliance with a mandatory standard is not evaluated; and, instead, there is a comment such as: "Compliance with this standard will be determined at the time of the building permit * * This is not adequate for the HO to approve the Tentative PUD. Here's what the City has to do: In Butte II, LUBA went on to state: "'[I]n a line of cases based on Meyer v. City of Portland, 67 Or App 274, 678 P2d 741 (1984) and Rhyne v. Multnomah County, 23 Or LUBA 442 (1992), the Court and LUBA have held that, in a two-stage approval process such as subdivision approval, where a problem is identified that raises concerns whether proposed development can comply with applicable approval criteria, the local government may, among other options, adopt findings demonstrating that solutions to the identified problem are 'feasible"' i.e., 'possible, likely and reasonably certain to succeed. Meyer, 67 Or App at 280, n 5. In Rhyne, we explained that: 'Assuming a local government finds compliance, or feasibility of compliance, with all approval criteria during a first stage (where statutory notice and public hearing requirements are observed), it is entirely appropriate to impose conditions of approval to assure those criteria are met and defer responsibility for assuring compliance with those conditions to planning and engineering staff as part of a second stage. * * * 'Where the evidence presented during the first stage approval proceedings raises questions concerning whether a particular approval criterion is satisfied, a local government essentially has three options potentially available. First, it may find that although the evidence is conflicting, the evidence nevertheless is sufficient to support a finding that the standard is satisfied or that feasible solutions to identified problems exist, and impose conditions if necessary. Second, if the local government determines there is insufficient evidence to determine the feasibility of compliance with the standard, it could on that basis deny the application. Third, * * * instead of finding that the standard is not met, it may defer a determination concerning compliance with the standard to the second stage. In selecting this third option, the local government is not finding all applicable approval standards are complied with, or that it is feasible to do so, as part of the first stage approval (as it does under the first option described above). Therefore, the local government must assure that the second stage approval process to which the decision making is deferred provides the statutorily required notice and hearing * * ` 23 Or LUBA at 447-48 (footnotes omitted)." Eugene's PUD approval process is just such a "two-stage approval process" as covered above, and thus LUBA's findings are directly applicable. Accredited Earth Advantage Sustainable Homes Professional GIOELLO Nick R From: Paul Conte <paul.t.conte@gmail.com> Sent: Monday, March 05, 2018 2:38 PM To: GIOELLO Nick R Cc: SOMMERS Lauren A Subject: Re: Please identify the specific document that comprises "referral comments from Public Works Engineering staff " for PDT 17-1 Please add this e-mail thread to the record for PDT 17-1. OK. You need to add and post an addendum to the staff report to cite the specific document and which portions you are incorporating at each specific criterion and sub-criterion. LUBA case law requires that the HO decision cite to specific evidence; and, for that purpose, she very likely to say "the staff comments re EC 9.8320(x) are incorporated herein by reference." If the track-back to staff's section doesn't include specific references, the there's an appealable error (unless the HO herself corrects the omission). If you need case law citations, Lauren Sommers should be able to provide them. Consider this a-mail to raise the issue so that it's preserved for appeal, if necessary. Paul Conte 1461 W. 10th Ave. Eugene, OR 97402 Accredited Earth Advantage Sustainable Homes Professional On Mon, Mar 5, 2018 at 2:24 PM, GIOELLO Nick R <Nick.R.Gioello@ci.eugene.or.us> wrote: Paul, There are referral comments by PW staff (dated Revised February 12, 2018), that for the most part were put in to the staff report in their entirety. There may be some words rearranged, a line added or deleted here and there, and typos fixed. This document is not the one referred to as an attachment. That document will be loaded onto the our land use database on the website before the end of day. I just learned that it's not on there, but a previous version is. Thanks, N" G Nicholas R. Gioello, M. Adm. Associate Planner I Planning Division City of Eugene Planning & Development 99 West 101" Avenue Eugene Oregon 97401 p 541.682.5453 f 541.682.5572 nick r.gioello@ci.eugene.or.us From: Paul Conte [mailto:paul.t.conte@gmail.coml Sent: Friday, March 02, 2018 1:55 PM To: GIOELLO Nick R <Nick.R.Gioello ci.eugene.or.us> Subject: Please identify the specific document that comprises "referral comments from Public Works Engineering staff " for PDT 17-1 Nick, On page 25, the staff report states: "With regard to street design and public right-of-way dedication requirements, referral comments from Public Works Engineering staff are incorporated within this staff report Please identify all documents that provide the "referral comments" that are incorporated in the report. I assume from what Gillespie stated and the staff report attachments that the only document being "incorporated" is Attachment F. 2 Please confirm or identify other documents incorporated through this statement. Thank you. Paul Conte 1461 W 10th Ave Eugene, OR 97402 Accredited Earth Advantage Sustainable Homes Professional GIOELLO Nick R From: pfisher <pfisher@continet.com> Sent: Monday, March 05, 2018 2:28 PM To: GIOELLO Nick R Subject: CHPUD Letter DATE: March 5, 2018 TO: Hearing Officials, Capital Hill PUD From: Peggy Fisher 2808 Capital Drive Eugene, OR 97403 RE: CHPUD Hendricks Park is a destination park in the heart of the city of Eugene frequented by locals and visitors alike. It's one of the Pioneer Parks still left in America where one can get a sense of bygone days. It's a place where families, hikers, etc. can go to rejuvenate themselves from the hectic pace of city life under a historic canopy of towering Douglas Fir Trees. Although The White Oak Tree is also a special feature of Hendricks Park, it's the historically clad aspect of Hendricks Park, the 'Douglas Fir' Trees, which truly are the heart of Hendricks Park. These towering giants are reminders of the vast, great forest beyond the city which makes this park unique as it gives one a sense of experiencing the great outdoors in the middle of the city. Along with the towering 'Douglas Fir' Trees that provides shelter for numerous wildlife, birds, plant species, etc. and that filters noise and pollution from our area, has wildflowers, streams, etc. that make the journey through Hendricks Park so remarkable. Frederick Law Olmsted, the great landscape architect of Central Park in New York City, spoke frequently about the need for modern man to have a change of scenery from the hectic paces of life. How parks were the essential backdrop for restoration of man's soul as they provided solace, refreshment under the complex canopy of nature, etc. He talked about the importance of having a gradual transition of nature from a city that gradually led up to the full experience of nature in a park in all of its natural glory. recently took a look at the entrance to Hendricks Park from our neighborhood, and I could see how the transition to Hendricks Park worked along the Ribbon Trail (which is a breathtaking trail in the Spring with giant swaths of wildflowers flowing and moving. in the wind on the gentle slopes of the Laurel Ridgeline that borders the Ribbon Trail). A significant aspect of this transition from city to parkland along the Ribbon Trail, is the 8 acres bordering my house on Capital Drive all the way to Hendricks Park. This 1/811 mile trail is a buffer zone for Hendricks Park and should remain intact to ensure longevity of Hendricks Park specialized, and now, compromised (with the development of Moon Mountain & building of the Ribbon Trail) delicate eco- system. Nature can restore itself, but it needs the time & untrammeled conditions to do so. The Army of Corp Engineer Report in 1987 states that the longevity of Hendricks Park was in jeopardy at that time due to surrounding development around the park and the consequential impact of being cut off from the mainland forest surrounding this area. This report was conducted decades before the large development of the Moon Mountain area southwest of Hendricks Park which further cut the Park off from the mainland forest. The Hendricks Park Forest Management Plan echoes the Corp Engineer Report on the importance of restoration for the survival of this historic park. It also notes that the intention of the founders of Hendricks Park, Thomas and Martha Hendricks was (p.18): ...that such park should be procured at the present time when the same is available in its natural state, to be reserved for the future generations of the city of Eugene as a Public Park open to all inhabitants thereof.... Although building of the Ribbon Trail is an addition to our neighborhood, it has impacted the nature area surrounding it significantly since it was built. Cutting of the copse of woods at the entrance on Floral Hill left a wind tunnel that has directly impacted and still impacts my property. (This was verified by the Urban Forester who visited my house shortly after a storm a few years back.) To date, I have lost 57 trees in and around my property since the building of the Ribbon Trail; and that is a significant amount of tree loss! Plus, the 8 acres is studded with extensive tree loss since the building of the Ribbon Trail. It used to be I could navigate the small trail at the base of the 8 acres & hike uphill towards my house with not much of a problem. But not today, there are so many downed trees that it's close to impossible to navigate. Also, since the building of the Ribbon Trail, Hendricks Park has had an unusual amount of downed trees. I have lived up here since 1988 and have never seen such on-going damage as I do now every year after to storms, cold spells, etc.. There was never any impact at all on my property until 2 the building of the Ribbon Trail. This leads me to believe that this land next to the Ridgeline is still in recovery today, and that its delicate eco- system has been significantly compromised by the small clear-cut at the entrance to Floral Hill now several years later. Based upon the 1987 Report of the Army Corp of Engineers and my own actual experience, can't imagine the windfall damage that will be done to my property and to Hendricks Park when an additional 50% of the natural tree barrier is cut down over the entire expanse of the 8 acre parcel in question of development in CHPUD. I believe that such a wide cutting of trees in a short expanse of time could irrevocably destroy the delicate eco-system of the Laurel Ridgeline as well as endanger the ability of Hendricks Park to survive in a suburban oasis fully cut- off from the mainland forest, and also, its protective canopy on its southwest side. My question to the Hearing Officials and the City Planning Department is: To what degree is the city willing to marginalize the well-being and future of Hendricks Park in order to fit it into a cookie cutter box of city expansion codes that has no reference for protection for a one of a kind, significant historical, city feature as that of Hendricks Park? Unfortunately, once Hendricks Park is destroyed by disrespect for its habitation and its specialized needs for survival, it's gone forever. It is my wish that any decisions made regarding the CHPUD have the survival of Hendricks Park in the foremost consideration of the decision making process. This is no ordinary park. It's the heart and soul of Eugene. No matter what, the City of Eugene must always be the long time protector of Hendricks Park for all future generations. DATE: March 5, 2018 TO: Hearing Officials, Capital Hill PUD From: Peggy Fisher 2808 Capital Drive Eugene, OR 97403 RE: CHPUD Hendricks Park is a destination park in the heart of the city of Eugene frequented by locals and visitors alike. It's one of the Pioneer Parks still left in America where one can get a sense of bygone days. It's a place where families, hikers, etc. can go to rejuvenate themselves from the hectic pace of city life under a historic canopy of towering Douglas Fir Trees. Although The White Oak Tree is also a special feature of Hendricks Park, it's the historically clad aspect of Hendricks Park, the 'Douglas Fir' Trees, which truly are the heart of Hendricks Park. These towering giants are reminders of the vast, great forest beyond the city which makes this park unique as it gives one a sense of experiencing the great outdoors in the middle of the city. Along with the towering 'Douglas Fir' Trees that provides shelter for numerous wildlife, birds, plant species, etc. and that filters noise and pollution from our area, has wildflowers, streams, etc. that make the journey through Hendricks Park so remarkable. Frederick Law Olmsted, the great landscape architect of Central Park in New York City, spoke frequently about the need for modern man to have a change of scenery from the hectic paces of life. How parks were the essential backdrop for restoration of man's soul as they provided solace, refreshment under the complex canopy of nature, etc. He talked about the importance of having a gradual transition of nature from a city that gradually led up to the full experience of nature in a park in all of its natural glory. recently took a look at the entrance to Hendricks Park from our neighborhood, and I could see how the transition to Hendricks Park worked along the Ribbon Trail (which is a breathtaking trail in the Spring with giant swaths of wildflowers flowing and moving in the wind on the gentle slopes of the Laurel Ridgeline that borders the Ribbon Trail). A significant aspect of this transition from city to parkland along the Ribbon Trail, is the 8 acres bordering my house on Capital Drive all the way to Hendricks Park. This 1/8t" mile trail is a buffer zone for Hendricks Park and should remain intact to ensure longevity of Hendricks Park specialized, and now, compromised (with the development of Moon Mountain & building of the Ribbon Trail) delicate eco- system. Nature can restore itself; but it needs the time & untrammeled conditions to do so. The Army of Corp Engineer Report in 1987 states that the longevity of Hendricks Park was in jeopardy at that time due to surrounding development around the park and the consequential impact of being cut off from the mainland forest surrounding this area. This report was conducted decades before the large development of the Moon Mountain area southwest of Hendricks Park which further cut the Park off from the mainland forest. The Hendricks Park Forest Management Plan echoes the Corp Engineer Report on the importance of restoration for the survival of this historic park. It also notes that the intention of the founders of Hendricks Park, Thomas and Martha Hendricks was (p.18): that such park should be procured at the present time when the same is available in its natural state, to be 4 reserved for the future generations of the city of Eugene as a Public Park open to all inhabitants thereof.... Although building of the Ribbon Trail is an addition to our neighborhood, it has impacted the nature area surrounding it significantly since it was built. Cutting of the copse of woods at the entrance on Floral Hill left a wind tunnel that has directly impacted and still impacts my property. (This was verified by the Urban Forester who visited my house shortly after a storm a few years back.) To date, I have lost 57 trees in and around my property since the building of the Ribbon Trail. and that is a significant amount of tree loss! Plus, the 8 acres is studded with extensive tree loss since the building of the Ribbon Trail. It used to be I could navigate the small trail at the base of the 8 acres & hike uphill towards my house with not much of a problem. But not today, there are so many downed trees that it's close to impossible to navigate. Also, since the building of the Ribbon Trail, Hendricks Park has had an unusual amount of downed trees. I have lived up here since 1988 and have never seen such on-going damage as I do now every year after to storms, cold spells, etc.. There was never any impact at all on my property until the building of the Ribbon Trail. This leads me to believe that this land next to the Ridgeline is still in recovery today, and that its delicate eco- system has been significantly compromised by the small clear-cut at the entrance to Floral Hill now several years later. Based upon the 1987 Report of the Army Corp of Engineers and my own actual experience, I can't imagine the windfall damage that will be done to my property and to Hendricks Park when an additional 50% of the natural tree barrier is cut down over the entire expanse of the 8 acre parcel in question of development in CHPUD. I believe that such a wide cutting of trees in a short expanse of time could irrevocably destroy the delicate eco-system of the Laurel Ridgeline as well as endanger the ability of Hendricks Park to survive in a suburban oasis fully cut- off from the mainland forest, and also, its protective canopy on its southwest side. My question to the Hearing Officials and the City Planning Department is: To what degree is the city willing to marginalize the well-being and future of Hendricks Park in order to fit it into a cookie cutter box of city expansion codes that has no reference for protection for a one of a kind, significant historical, city feature as that of Hendricks Park? Unfortunately, once Hendricks Park is destroyed by disrespect for its habitation and its specialized needs for survival, it's gone forever. 5 it is my wish that any decisions made regarding the CHPUD have the survival of Hendricks Park in the foremost consideration of the decision making process. This is no ordinary park. It's the heart and soul of Eugene. No matter what, the City of Eugene must always be the long time protector of Hendricks Park for all future generations. GIOELLO Nick R From: Paul Conte <paul.t.conte@gmail.com> Sent: Monday, March 05, 2018 2:07 PM To: GIOELLO Nick R Subject: Fwd: * Time-sensitive * clarification on Capital Drive improvements PDT 17-1 Attachments: SUPPLEMENTAL MATERIALS (1-26-18) Public Streets.pdf Please add the attached document to the record for PDT 17-1. Paul Conte 1461 W 10th Ave Eugene, OR 97402 Forwarded message From: Paul Conte <paul.t.conte@ naail.com> Date: Mon, Mar 5, 2018, 10:53 AM Subject: * Time-sensitive * clarification on Capital Drive improvements PDT 17-1 To: GIOELLO Nick R <nick.r. iog ellogci.eugene.or.us> Nick, Could you clarify precisely which segment(s) of Capital Drive are in the Tentatie PUD plan to be evaluated. I've attached what I believe is the drawing that is intended (from "Supplemental Materials." There does not appear to be a "key" that depicts the extent. There is a notation "END OF PAVING IMPROVEMENTS." I don't see any notation(s) for beginning point(s). I'm guessing that the point I've marked with a BLUE arrow is the beginning and the improvements, including pavement and sidewalk are continuous until the point I've marked with a RED arrow. Would you please confirm or provide the correct specs. Thank you. Paul Accredited Earth Advantage Sustainable Homes Professional Z W O> Nw ~z fA w z (3 vQ ~O Ov F- w Om Z= B a 6 ~I t _Fi /faa EppE py00; g Rif a ~ 4 -1 O 0 0 ~M i W O e a O n d T~ E ~f If 8s~l:~da; P, cv t 7 o 1, I ` o + 0 aNn aM 0 e o ~X w 'o Z U s s o w_ LL w a ad z g a a 0 O V J m CL A+ r+ N S j N o g F IL J Oro na3 U2 a 1 B ?!fill l '611 i, etc ~~~~@'a~~ rWV~ e GIOELLO Nick R From: Paul Conte <paul.t.conte@gmail.com> Sent: Monday, March 05, 2018 1:55 PM To: GIOELLO Nick R Subject: Re: * Time-sensitive * clarification on Capital Drive improvements PDT 17-1 Thank you. Please add this thread to the record for PDT 17-1. Paul 1461 W 10th Ave Eugene, OR 97402 On Mon, Mar 5, 2018,1:14 PM GIOELLO Nick R <Nick R Gioello@ci.euRene.or.us> wrote: Paul, I got this from Eric Favreau in Public Works: "Mr. Conte is correct in his estimate of the proposed Capital Drive improvement extents." Thanks, N~e4 qti' ~ Nicholas R. Gioelo, M. Adm. Associate Planner ( Planning Division City of Eugene Planning & Development 99 West 101" Avenue Eugene Oregon 97401 p 541.682.5453 f 541.682.5572 nick rgioello@ci.eugene.or.us From: Paul Conte [mailto:paul.t.conte@gmail.com] Sent: Monday, March 05, 2018 10:54 AM To: GIOELLO Nick R <Nick.R.Gioello@ci.eugene.or.us> Subject: * Time-sensitive * clarification on Capital Drive improvements PDT 17-1 Nick, Could you clarify precisely which segment(s) of Capital Drive are in the Tentatie PUD plan to be evaluated. I've attached what I believe is the drawing that is intended (from "Supplemental Materials." There does not appear to be a "key" that depicts the extent. There is a notation "END OF PAVING IMPROVEMENTS." I don't see any notation(s) for beginning point(s). I'm guessing that the point I've marked with a BLUE arrow is the beginning and the improvements, including pavement and sidewalk are continuous until the point I've marked with a RED arrow. Would you please confirm or provide the correct specs. Thank you. Paul z Accredited Earth Advantage Sustainable Homes Professional GIOELLO Nick R From: Brent Lorscheider <lorsch2728@pacbell.net> Sent: Monday, March 05, 2018 12:14 PM To: GIOELLO Nick R; RODRIGUES Matt J Cc: Brent Lorscheider; Gyl Elliott; Faris Cassell; Tom Bruno; CW Murchison; Nathaniel Teich Subject: Withdrawing Capital Hill Parking Petitions Attention: Matt Rodriguez and Nick Gioello, March 3, 2108 As the chief petitioner for the Capital Drive Parking petitions (July 2017 and Dec 2017), I witnessed and attest that each signature indicated support for Parking Services to investigate parking issues in the 2600 block of Capital Drive. The City is now misrepresenting the petitions as "Capital Hill PUD Public Comments" and using the petitions to justify the City's decision to eliminate parking on Capital Drive. By eliminating parking the city can claim to address and remove fire department concerns, which help justify approval of thePUD application. Therefore, as the chief petitioner I withdraw the petitions and demand the petitions be removed from the official Public Comments of the Capital Hill Planned Unit Development application. I submitted the petitions to the Parking Enforcement Office hoping to raise concerns about parking issues from Airbnbs and rental guests in the 2600 block of Capital Drive--the petitions did not request the elimination of any parking. The City's misrepresentation of the petitions as public comments on the proposed Capital Hill PUD, is INCORRECT, and does a disservice to everyone that signed the petitions. The petitions do not mention the Cap Hill PUD, nor were the petitions submitted to the Planning Department as "public comments" on the PUD . Sincerely, Brent Lorscheider 2625 Capital Drive. March 5, 2018 Mr. Nick Gioello Assistant Planner City of Eugene Planning and Development 99 West 10th Ave. Eugene, OR 97401 This letter is regarding the application for the Capital Hill PUD (PDT 17-01). 1 ask that this letter be entered into the official record to be considered by the City and Hearings Official, and would appreciate confirmation that you have received it. The trees on Capital Hill are part of a forest that absorbs rainfall and snow melt, slows storm runoff, recharges aquifers, filters pollutants, provides critical habitat, acts as a windbreak, prevents flooding, provides oxygen, helps our climate and reduces residential energy use. It provides abundant recreational opportunities, helps support our local economy, and improves the quality of our lives. In order for these benefits to continue, this forest must be preserved and managed as a whole, not clear cut, not fragmented. The City of Eugene is having trouble meeting its goal of carbon neutrality. The most important factor influencing the carbon cycle is deforestation. One mature tree absorbs carbon dioxide at a rate of 48 pounds per year; one acre of forest as much as 8 metric tons. The loss of these forests will only intensify the "heat island" effect of our urban community. Research done by PSU in August of 2016 shows the forested area to which I am referring being as much as 14 degrees cooler than the rest of the city. Cut trees down as part of the Capital Hill PUD, and blue area goes away. Cut trees down as part of the Laurel Ridge PUD, and there goes more blue area, and so on and so on. One tree alone can take 11,000 gallons of water from the soil in a single growing season. Removing forest canopy and replacing it with homes, driveways, and grass will result in increased volumes of water traveling downhill faster, leading to more soil erosion, flooding, and the dumping of more pollutants and sediment into our streams and rivers. We who live below Capital Hill already experience year-long problems with run-off from the development that has already occurred. With the drought, heat, smog, and forest fire smoke that already plague us, we cannot afford to lose trees. Do not approve this Capital Hill development project or any like it. The health and future of Eugene depends on it! Sincerely, Jim and Elizabeth Langston 1957 E. 28th Ave. Eugene, OR 97403 UNIVERSITY OF OREGON March 5, 2018 Dear Nick Gioello: I'm writing a follow-up letter to express my opposition to the Capital Hill PUD. I previously submitted a letter dated December 26, 2017. I'm requesting to have this letter also entered into record for the Capital Hill PUD (PDT 17-01). As I expressed before, there are numerous reasons why the PUD is a major concern, including its negative environmental impact and the lack of access for emergency vehicles to enter the area in the event of a fire. The recent mudslides in California also point to the dangers of clearing land of trees, as the Capital Hill PUD developer plans to do. As with my previous letter, I also want to highlight an additional safety concern of this development. I live at 1985 Woodlawn Ave, near the five street intersection of Capital Hill, Spring Blvd, Woodlawn Ave, and Madrona Dr. At this intersection, I regularly see cars and service vehicles failing to stop at the stop sign when driving down from Capital Hill, which endangers the lives of walking children and adults, bicyclists, and other vehicles. Now, on the face of it, this issue may seem to have little to do with the Capital Hill PUD, but the increase of traffic along this route and especially large trucks coming down the hills will only contribute to this hazard. This is one more issue on top of many other problems that this PUD will contribute to. I respectfully ask the Eugene City Planning Department to put an end to the Capital Hill PUD and listen to the many residents in the neighborhood who best understand the dangers that this development poses. Thank you for your time and consideration. Sincerely, Daniel Steinhart Assistant Professor of Cinema Studies, University of Oregon 1985 Woodlawn Ave. Eugene, OR 97403 DEPARTMENT OF CINEMA STUDIES 1275 University of Oregon, Eugene OR 97403-0000 T 541-346-0000 F 541-346-0000 uoregon.edu AN EQUAL-OPPORTUNITY, AFFIRMATIVE-ACTION INSTITUTION COMMITTED To CULTURAL DIVERSITY AND COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT GIOELLO Nick R From: Cathy Johnson <cdjohnson617@msn.com> Sent: Thursday, March 01, 2018 8:11 PM To: GIOELLO Nick R Cc: WOSTMANN Jan (SMTP); Susan Hoffman Subject: Re: PDT 17-1 Staff Report Attachments: EW - Protecting the Park 030118.pdf; RG - Capital conflict 032717.pdf; RG - Annexation sought for homes 091114.pdf; RG - Hilltop housing plan 010314.pdf. Hi Nick, I think that we were all able to download successfully, thanks. Could you please enter these newspaper articles into the record ? I'd appreciate it. Cathy On Mar 1, 2018, at 4:38 PM, GIOELLO Nick R <Nick.R.Gioellogei.eugene.or.us> wrote: Just checking to see if you were able to download successfully from my Dropbox link? Here is another document with additional testimony: https•//www dropbox com/s/ddm11«rcni92zi7/Public%20comment%202-28%20to%203-1-18.pdf?dl=O Thanks, N~ G Nicholas R. Gioello, M. Adm. Associate Planner I Planning Division City of Eugene Planning & Development 99 West 1011 Avenue Eugene Oregon 97401 p 541.682.5453 f 541.682.5572 nick.r.gioello@ci.euqene.or.us -----Original Message----- From: GIOELLO Nick R Sent: Wednesday, February 28, 2018 4:51 PM To: 'Jan Wostmann' <iw@efn.org> Cc: Cathy Johnson <cdiohnson617@msn.com>; Susan Hoffman <shortgamesue@yahoo.com> Subject: RE: PDT 17-1 Staff Report Hi Jan, You can download it off of our web site or try my Dropbox link. The file is too large to share via email. https://www.d ropbox.com/sh/bu jxwwi6v5sj27y/AAAZuEXgAXIQm LrQ7 pXm rt_ba?d l=0 Thanks, Nick Gioello Nicholas R. Gioello, M. Adm. Associate Planner I Planning Division City of Eugene Planning & Development 99 West 10th Avenue Eugene Oregon 97401 p 541.682.5453 f 541.682.5572 nick.r.gioello@ci.eugene.or.us -----Original Message----- From: Jan Wostmann [mailto:jw@efn.org] Sent: Wednesday, February 28, 201811:09 AM To: GIOELLO Nick R <Nick.R.Gioello@ci.eugene.or.us> Cc: Cathy Johnson <cdjohnson617@msn.com>; Susan Hoffman <shortgamesue@yahoo.com> Subject: RE: PDT 17-1 Staff Report Hi Nick, This is a reminder that the CHPUD Response Committee requests that an electronic copy of the PDT 17- 1 Staff Report be emailed to me and the two people on the CC: line above as soon as it is publicly available. Thanks as always, Jan Wostmann Laurel Hill Valley Citizens Protecting the Park Fairmount neighbors a together to stop PUD and protect Eugene's 'crown jewel' Max Thornberry_ 03/01/2o18 Jason Brown I~5 J Hendricks Park is Eugene's first and oldest city park - 78 acres of hiking trails, flower gardens and open space provide a wooded escape from the hustle of the urban center. A steep drive separates the Fairmount and Laurel Hill Valley neighborhoods from the rest of Eugene, but the historic homes interspersed with modern designs offer a picturesque view of the city. Coveted land around the park has been sparsely developed, and a proposed Planned Unit Development (PUD) in the Capital Hill neighborhood behind Hendricks Park could have ramifications such as increased traffic, noise and landslides. Facts are being called into question on a Trumpian scale as opponents and supporters of the project have spent years hiring professionals to establish the credibility of their arguments. Opponents assert that safety for the neighborhood and the crown jewel of Eugene's park system hang in the balance. PUDs allow developers to meet density and land-use goals without having to adhere to strict zoning rules, affording flexibility and opening the door for setting new precedents. A hearing is scheduled for Wednesday, March 7, to determine the future of the Capital Hill PUD. Meet the Neighbors When he started planning his development in 2013, Tom Dreyer, a retired plastic surgeon living in the neighborhood, dreamed of a small project that had wide-reaching impact - a "viable neighborhood." Dreyer says he bought the property to prevent someone else from developing, it at maximum density. Only one of Dreyer's plans has been submitted to the city as a formal proposal. He says he wanted input from his neighbors, but they have resisted his plans. The Capital Hill neighborhood and proposed PUD is nested in the East Hills of Eugene. Signs decrying the safety of the Capital Hill PUD dot the winding road leading to the top of Capital Drive and the "Pink House" where Dreyer lives. Neighbors are concerned about traffic safety: Capital Drive is a steep, winding road with sharp curves and blind corners. Residents and visitors are allowed to park on the road, creating safety hazards. Jason Brown, a leader of the Fairmount Neighborhood response committee combatting Dreyer's proposal, says the original plan for five large units was generally accepted. The final plan - the one officially submitted for review - includes 34 lots. "Almost everyone was okay with five lots," Brown says, but as the number continued to grow, concerns about safety and the health of Hendricks Park and the neighborhood interfered with Dreyer's plan. The response committee, Brown says, isn't interested in restricting Dreyer's property rights or his right to develop. "The Oregon way is not to be confrontational," Brown says. "People see this vote against it as confrontational with the applicant, but I'm trying to explain that this is how the process works. You have to just reject what's on the table. That's not rejecting his right to develop, just the version he is proposing." Dreyer contends that he has been "very generous" in terms of the size of the conservation easement - land where trees will be preserved - and the density at which he is building, which is somewhere between 2.6 and 2.9 units per acre. Dreyer says he is allowed to develop five units per acre; instead, he is choosing to develop at nearly half that. Understand the Laws Brown says Dreyer is using some "Donald Trump facts" - meaning they're only half-true. Brown explains that while R1 zoning (residential zoning) allows for the development of five units per acre, the private land Dreyer has purchased is only partly in the R1 zone. The situation is complicated by a 19705 study that has been adopted into city code that protects the land. The South Hills Study recognized the hills surrounding Eugene as an important feature of the city. "That `evergreen edge' is actually protected by the zoning," Brown says. "So one of our objections is that if the PUD is passed, the entire hilltop will be open to a clearcut." The study addresses characteristics of trees that should be preserved by developers. Dreyer's assessment fails the requirements of the code because he hired a landscape architect instead of a certified arborist to evaluate the trees, Brown says. The response committee hired its own arborist, James Mehrwein, who said the trees the PUD proposal classified as "fair or poor" condition actually "appear to be healthy, quite normal," according to Brown. Clearcutting and toothless agreements are concerns for opponents of the PUD. Dreyer has placed a third of the trees on the PUD land in a "do not touch" area, he says. Opponents say these are non-binding words and sentiments. Any binding covenant would have to be established by the revamped homeowners association for the neighborhood Dreyer is hoping to build. Brown says only the covenants and restrictions written by such associations are enforceable when it comes to protecting designated land. The covenants and restrictions, however, haven't been submitted - they will be submitted after the application is approved. "At which point they can do whatever they want," Brown says. In April 2017 the city fined Dreyer $4,320 for removing a small stand of trees without a permit in the vacant lot he owned across from his home, documents show. "This is the kind of person we are dealing with," Brown says. "This isn't just character sniping. The PUD application is asking the community to trust that he will do certain things, because it's not in fact proposing to build them into the application in any kind of legal way." Dreyer says that Brown and other neighbors are producing "Donald Trump facts" of their own. He explained that his development is small enough not to require a traffic study, but he conducted studies anyway, "showing the roads are perfectly adequate" to handle more traffic. Branch Engineering conducted two traffic surveys for Dreyer. The first report was "built on the premise of more units," Carol Schirmer, Dreyer's landscape architect, said in an email to EW. "The revision [the one received by EM was based on less units which, of course, concluded that there were no safety issues created by the development because there were less units than report 1. The study evaluated three different sections of Capital Drive in order to determine current traffic levels and speeds. Tube counters - industry standard cameras used to measure traffic - were set up on Capital Drive in strategic areas. Collected data showed that the development would add "roughly 141 daily trips, assuming full occupancy of the 31 new dwelling units." Engineers requested crash data from the Oregon Department of Transportation for the section of Capital Drive between Spring Boulevard and Hendricks Park. The most recent five-year period data they received - Jan. 1, 2010 to Dec. 31, 2014 - did not include any crashes. A reporting form only has to be filed with the DMV if damage in a crash exceeds $1,500 or there is an injury or fatality. Encroaching on the Park Noise and traffic in the neighborhood may affect visitors in the park as well. Dreyer has established a buffer zone between his development and the ribbon trail, but hikers value the solace the forest provides. "The forest offers trails, hiking in the middle of the city, hiking through the woods," says Sandra Austin, a founding member of Friends of Hendricks Park. Austin was asked by PUD opponents to have the board write a letter opposing Dreyer's project. She said she would take the idea to the board, but Friends wasn't ready to take a side. "We aren't opposed to taking a stand, but we are waiting," says Jim Beyer, another longtime member of Friends. Beyer says the continued expanding of the development doesn't sit well with Friends, and the potential visual impact is even more concerning. "The ribbon trail that goes from Hendricks Park to 3oth Avenue is a sweet little trail. And for the most part, you have no idea that there's anyone around," he says. "If you had a whole hillside up there, that would take some of the sweetness of that particular thing away." If the proposed PUD is approved, the park is at risk of more than just being an eyesore. When trees grow in stands they protect one another from windthrow. As stands are thinned, large trees left behind - such as those in the buffer zone - are more susceptible to being toppled, as their roots haven't developed the strength to stand on their own in high winds. "Harvesting the designated trees will significantly increase the risk of wind damage to the remaining trees," Mehrwein said in the letter from Brown to the city. "Trees not only on the CHPUD site, but also in adjacent private properties and in Hendricks Park would be vulnerable to being blown down or having tops broken." Trees on private land contained in the PUD are vital to the stability of the eastern ridge of the park. Brown cites Mehrwein in his letter, writing that those potentially toppled trees in the PUD "significantly contribute to the risk of catastrophic landslide." Whether it's trees above the park falling down and sliding into trails, or trees in the park that are no longer protected, critics argue that miscalculations by planners could have far reaching effects on the cherished land. On one hand, Dreyer says he is looking to improve his own neighborhood. On the other, he says he is looking out for the best interests of the city. "Eugene has a real and desperate need for housing," Dreyer says. "I'm a big advocate of the urban growth boundary. It prevents sprawl and keeps neighborhoods more compact." The trouble with the boundary, however, is that once filled in, there aren't enough places to build, unless in-fill projects such as Dreyer's are allowed, he says. State law requires cities to keep a 2o-year inventory of developable residential land. For years, Eugene has classified the in-fill pockets in the south hills as such, Dreyer says. "But people have had trouble developing it," he adds. "If the city doesn't allow development in those areas, then they don't have their 20-year inventory and at some point the state will say, `You've got to do something."' Dreyer says he fears that "something" will mean expanding the urban growth boundary and contributing to sprawl along riparian areas and the rivers. Opponents to the development acknowledge the difficulties of their position. They don't want to propose what happens to the land, but they don't want to see it developed according to this proposal. Brown would like to see the land donated to the park but worries about crossing the line between being a neighbor concerned about the legality of the proposal and an activist converting private property into public land. As a group however, opponents have made a concerted effort to raise money and buy the land from Dreyer rather than see it developed and harm the park. "If it weren't for the park system, I just wouldn't care," Brown says. "I'm certain that 30 years from now, people will say, `Why was that allowed to happen. ■ The public hearing will take place on Wednesday, March 7 at 5:30 p.m. at ,125 E. 8th Ave. Both the developer and response committee will Harris Hall offer final arguments for their cases. The meeting is open to the public. To: Nick Gioello Associate Planner City of Eugene Planning and Development From: Josh and Nancy Reckord 1575 Fairmount Blvd Eugene, Oregon 97403 In regards to: Capital Hill PUD (PDT 17-01) We are very concerned about this proposal for the following reasons: • The impact to the Ridgeline and an unstable slope • The impact and demands on the only approach to Capital Drive which is currently an unsafe roadway. For the above reasons we oppose the PUD as it is currently proposed. Thank you for your consideration. Josh and Nancy Reckord GIOELLO Nick R From: Paul Conte <paul,t,conte@gmail.com> Sent: Monday, March 05, 2018 2:47 PM To: GIOELLO Nick R Subject: Inconsistent versions of code in PWD referral and Staff report Please add this to the record for PDT 17-1. You've got a problem. The PW Referral Report and the Staff Report appear to have review the application using different versions of Eugene Code. That, of course, makes on or the other unreliable as a credible review. This raises the issue to preserve for future appeal. Good luck! Paul Conte 1461 W. 10th Ave Eugene, OR 97402 Page 9 of "Public Works Referral Response" dated November 30, 2017 - revised 2-1-18 (11) The PUD complies with all of the following (An approved adjustment to a standard pursuant to the provision beginning at EC 9,8015 of this land use code constitutes compliance with the standard.): Page 37 of February 2018 "Staff Report" EC 9.83201101: The PUD complies with all of the following (An approved adjustment to a standard pursuant to the provisions beginning at EC 9.8015 of this sand use code constitutes compliance with the standard.): Accredited Earth Advantage Sustainable Homes Professional GIOELLO Nick R From: Ocean Howell <ohowell@uoregon.edu> Sent: Monday, March 05, 2018 8:13 PM To: GIOELLO Nick R Subject: public comment on Capital Hill PUD (PDT 17 - 01) Dear Nick Gioello, I am writing about the Capital Hill PUD (PDT 17 - 01). I ask that you enter this letter into the record and that you confirm receipt of this letter. I am stunned to see that the Planning Staff Report of 2/28/18 recommends approval of this project. I am concerned about the impact on Hendricks Park and the Ribbon Trail, as well as on property values for the entire neighborhood, but I am particularly worried about safety along Capital and Spring. I live at 2480 Malabar Dr., near the 5-way intersection of Madrona, Spring, Capital and Woodlawn. From my kitchen window I watch multiple cars a day speed through this intersection without even braking, mostly coming down Capital. I am a professor--an historian of urban history and urban planning--at the University of Oregon, and I commute by bicycle. The ride is threatening. The roadway is narrow, with multiple blind curves. I have had countless close calls with cars, particularly when returning up the hill, and a car passes me on a blind curve, only to encounter opposing traffic. If I'm at the office after dark, I will not bike home because reflective clothing and bike lights are not enough to make a rider visible. I do not feel safe. I commuted by bike, during rush hour, on Market Street into downtown San Francisco for five years, and I had nowhere near the number of close calls that I have had in just two years on Spring. I'd like to add that I am an avid road biker and a retired professional skateboarder. I am no alarmist when it comes to traffic (in fact I made a living out of playing in traffic in my late teens and early twenties). The blind curves and the condition of the shoulders makes these roads truly dangerous. The walk is not much better, particularly at night. I have often found myself pushed into shrubs on the side of the road in order to avoid cars. I have a two-year-old daughter, an eight-year-old son, and a puppy. I am already incredibly nervous about walking with them through the neighborhood, and I cannot imagine what it will be like if this project is permitted. Are there 34 houses on Capital and Alta Vista now? This PUD will essentially double the traffic on these narrow, winding, non- conforming streets. I'd also like to add that I am a big supporter of infill. This project, however, is not in keeping with the spirit of the movement towards infill development. The definition offered by the Maryland Sustainable Growth Commission is typical: "Infill refers to the development of vacant parcels within previously built areas. These areas are already served by public infrastructure, such as transportation, water, wastewater, and other utilities." By contrast, the Capital Hill PUD is poorly served by literally every category of infrastructure, perched at the very edge of the urban area, abutting protected parkland. It would be irresponsible to approve this project under the rubric of infill. Most importantly: it's not safe. I strongly urge you to reject the proposal. 1 NOVEMBER 15, 2017 the Axegister-05uA ` r 0_° tea' BUSINESS ® -..v$ LOGIN t 4 ! -.e BY ELON GLUCKLICH The Register-Guard APPEARED IN PRINT: THURSDAY, SEPT. 11, 2014,PAGE 134 ] ~ I I A couple planning to build 20 homes on hillside land bordering Hendricks Park have filed an application to annex a little over seven acres of the land into the city of Eugene. Thomas and Cynthia Dreyer have kicked around the idea of a residential community on land just south of Hendricks Park for several years. In 2003, the couple paid $1.4 million for about 11 acres of land in the wooded area just east of a low-density neighborhood off Capi- tal Drive, where they already own a home, Lane County property records show. But the Dreyers got serious last year, hiring a local land use planner who filed documents with the city in December that broadly outlined the Dreyers' plan. They recently took the next big step. Late last month, they filed an application to annex roughly seven acres of their land into the city of Eugene. The land is already in the city's growth boundary, but doesn't have city zoning, so no development can take place there without annexation. The plan could drastically alter the physical landscape south of the park. News of the project earlier this year spurred a pair of nearby neighborhood associations to form a joint committee, though neither group has spoken publicly against the plan. Despite the annexation application, Thomas Dryer says there's no timeline to build any homes. Some neighbors in the Fairmount neighborhood west of the planned development and the Laurel Hill neighborhood on the east side of Hendricks Park have said they are worried that new development could create traffic problems and infringe on the scenic area and their lifestyle. The only access to the property currently is off narrow, winding Capital Drive. In response, Dreyer said he plans to space the homes farther apart than he first envisioned, going from an initial plan of four or five homes per acre to just one or two homes per acre. Changes to the access roads are also a possibility. Many details, including the size of the homes he plans to build and their estimated values, still haven't been decided. "We started with a `We'd like to get this done' attitude," Dreyer said. "But there were neigh- bors who had questions, and we've talked with city planners and kind of slowed things down." But Dreyer said he has every intention of building the homes. The property, which has simi- lar physical characteristics to Hendricks Park but sits just south of the park's actual border, is bound to be developed eventually, he said. Thomas Dreyer is a surgeon, and Cynthia is a dermatologist. They're the best people to move ahead with the development, he said, because they're longtime Eugene residents and committed to preserving open spaces and scenic views. "I think people realize it's better to have a neighbor who plans to live up there developing it as opposed to somebody from out of the area," he said. "We want to protect Hendricks Park." Residents in the Laurel Hill and Fairmount neighborhoods have been paying close atten- tion. Residents from each area's neighborhood association were scheduled to meet with Dreyer in February to talk about the plan, but a massive snowstorm that week meant only a handful of people attended. Still, Laurel Hill Valley Citizens Co-Chair Gunnar Schlieder said in an email, the meeting prompted his group and the Fairmount Neighbors Association to form a joint committee. About 50 people from the neighborhoods met with Dreyer again last month. Schlieder said Dreyer told them he would reveal new plans for the development within the next few months. But Schlieder declined to go into detail about his or other neighbors' feelings or concerns about the plan. "Until a new proposal is presented, there are no specific comments we can provide," he said. A message left with the Fairmount Neighbors Association wasn't immediately returned. In a Laurel Hill Valley Citizens newsletter earlier this year, Schlieder wrote that "substan- tive discussion regarding the potential impacts of this (proposal) will not be possible until actual plans become available." The annexation proposal is the only active document on file with city, and doesn't go into detail about the proposal. Carol Schirmer, the Dreyers' land use planner, said it's unusual for a developer not to have a timeline for a project. She's worked on several student housing projects, where developers essentially had building plans before even finalizing sites to build on. Though none of the project's specifics are set in stone, the annexation request shows the couple is serious about moving forward, she said. "Most people don't annex property unless they're going to develop," she said. "The Dreyers have a real solid vision." Follow Elon on Twitter @EGlucklich. Email elon.glucklich@t-egisterguard corn . Q COMMENTS (0) L I Post your cornment.., PRIVACY TERMS Submit Choose... Y _.m „ . Choose... r_ . Connect Choose... Choose... Marketplace Choose... v Choose... Subscriber Services Choose... Choose... H I C:.. THE REGISTER-GUARD 3500 CHAD DRIVE m EUGENE, OR ® 97408 (541) 4£35-1234 FEEDBACK COPYRIGHT C~7 1996-2017 TERMS PRIVACY COPYRIGHT Capital conflict Residents it Drive push back against housing project Monday, March 27, 2017, For Tom and Cynthia Dreyer, the reason to build houses on their 14-acre property atop Capital Drive in east Eugene is simple: give others the chance to enjoy the hilltop scenery and picturesque valley views they've enjoyed for 33 years. "It's one of the best views in town," Tom Dreyer, a retired plastic surgeon, said on a recent afternoon from the deck of a century-old house that the* Dreyers recently moved into at the top of the hill. But for many of the roughly 30 other homeowners who live along Capital Drive, which twists and turns toward the Dreyers' land at the southern edge of Hendricks Park, the planned 35-house development feels like a disaster in waiting. It's the latest iteration of a project that Dreyer has been working on since at least 2014. With Eugene's growing population and city leaders' emphasis on dense, infill development over urban sprawl, this kind of dispute has become more common across the city, as residents push back against building plans that could change the face of their neighborhoods. "We plan to oppose this every step of the way, as much as we can," said Brent Lorscheider, a retired engineer from Los Angeles who settled into a house lower on Capital Drive two years ago. "The only thing we're asking Tom is to afford us the same wonderful lives that he has enjoyed up there during his lifetime, not destroy the environment for the rest of us." The Dreyers moved into a single-story house on Capital Drive in the early 198os. But as they and their neighbors aged, the couple started buying up undeveloped land - spending about $1.4 million to buy about 11 acres between 2003 and 2013, Lane County property records show, in addition to several acres they already owned there. The land is zoned low-density residential, and in theory the Dreyers could put in 14 housing units per acre, although terrain and other factors would reduce that. "At first our thought was to keep it from being developed, but eventually we said it was time to do something to bring back the neighborhood," Dreyer said. "It's better if we develop it. We live here." In 2014, the Dreyers submitted a tentative planned unit development application to the city of Eugene, with plans to build 28 "McMansion"-style houses on their property. That plan, Dryer said, met opposition from residents in two neighborhood associations who complained the large houses would be out of character with the rest of the area: Fairmount Neighbors, which includes Capital Drive residents; and Laurel Hill Valley Citizens, with a boundary bordering Hendricks Park to the east. "There was a lot of pushback," Dreyer said. "We could do almost two times the number of houses and maximize our returns. But politically that's not a good idea. We have to live here with the neighbors." So earlier this month, Dreyer filed plans for what he calls a compromise with neighbors: a planned unit development application that would split the land into 35 lots with slightly smaller houses, improve Capital Drive with new asphalt and sidewalks and build a new street looping east of Capital Drive. The easternmost lots, those closest to Hendricks Park, would be smaller to preserve the Ribbon Trail that winds nearby. Dreyer said he hasn't come up with the exact sizes and price ranges of the houses, and he declined to estimate how much he's spent so far or how much the project would cost. Resistance remains But the new plan has been little relief to many of the Capital Drive residents who were alarmed by the first one. Peggy Fisher has lived in a Capital Drive house abutting the southern end of the Dreyers' property for 25 years. In that time, Fisher said, she's watched cars speed down Capital and its roughly half-dozen blind curves, with too many narrowly avoided crashes to count. "Capital Drive doesn't have any other intersecting streets," Fisher said. "Everyone has to go out of Capital, so if you're going to do a giant development with 35 houses, that's going to have a huge impact. If there was another major intersecting street and two ways to exit, maybe that would be a possibility. But not here up on the hill." Lorscheider, the retiree from L.A., worries about the constant movement of construction vehicles up and down Capital Drive, possibly for years. And he wonders how the project would affect the value of his own house. "I've gone up and down the street and talked personally to over 20 neighbors," he said. "None of them supported it." In a planned unit development, Eugene planners determine if a project meets a wide range of conditions before approving it. Conditions include protecting natural features such as trees and other vegetation, preserving open space, maintaining streets, sidewalks and bike paths, and managing off-site impacts such as noise, traffic and water, among other criteria. Also, PUDs must be "reasonably compatible and harmonious with adjacent and nearby land uses," under the code. Planners can approve an application with conditions, spelling out steps a developer must take for a project to conform with city code. In a PUD, a developer can densely cluster units on one part of a property in return for setting aside other parts as undeveloped open space. Defending the project Dreyer considers many of the neighbors' fears overblown. He said a traffic study he paid for didn't show a significant increase in traffic on Capital Drive from the development. If he gets approval from the city, Dreyer said two or three years would pass before any houses are built; and the timeline for a complete buildout would depend on the housing market. He defends the project as needed as long as the city of Eugene encourages dense housing development and refuses to expand its urban growth boundary to include new residential land. "We can't have an urban growth boundary if we don't do infill," Dreyer said. "Home prices will go up too much; lots will get too expensive." The entire property is zoned for low-density residential use. Under city code, builders can construct up to 14 housing units per acre on such land. If Dreyer packed in the maximum number, he theoretically could put in 196 housing units, though the property's uneven terrain and Dreyer's preservation of some of the land would make the actual number lower. Public hearings Neighbors will have a chance to weigh in because city code also requires a public hearing for planned unit developments. No hearings have been scheduled yet. But opponents likely will be ready. The Fairmount Neighbors group lists Dreyer's project as one of two large housing projects the neighborhood association is tracking, though it hasn't weighed in on Dreyer's new proposal. Lorscheider said he's talking with neighbors in hopes of raising money to appeal the project if the city approves it. "Tom has a lot of resources, and we don't in terms of money," he said. "I think we'll try to appeal it as far as we can. But you can only go so far." Follow Elon on Twitter @EGlucklich. Email elon.glucklich@registerguard.com . Hilltop housing plan Eugene couple seeks to build2o homes on about 12 acres abutting Hendricks Park Friday, Jan. 3, 2014, Two Eugene doctors are proposing to develop a residential subdivision at the top of the Eugene hill that is home to Hendricks Park. The 20-home planned unit development would go on about a dozen acres immediately to the south of the park. The land is owned by doctors Cynthia and Thomas Dreyer, who live next to the site. Their land use planner, Carol Schirmer of Eugene's Schirmer Satre Group, predicts that some residents of the hill will object, mainly because of the traffic the development would put onto the hill's winding, narrow roads. But Thomas Dreyer, a plastic surgeon, said he is eager to develop his property in a low-impact way and wants to continue living there after the development. "This is Shangri-La here, above the clouds," Dreyer said, gesturing to his property's sweeping views over Eugene. The crest of the hill tops out at just over goo feet. Rather than leave the land as is, "I guess I think other people deserve a chance to live up here," he said. Aside from its views, the site includes a 1916 three-story, pink stucco Prairie- Mission style mansion that Dreyer said he wants to restore. Dreyer said he and his wife, who is a dermatologist, have bought property on the hilltop over the years in order to prevent others from developing it. Their latest acquisition was the 4,ooo-square-foot mansion, plus about 11 acres, which they bought in 2003 for $1.4 million, according to deeds filed with Lane County. Dreyer said he thought about developing the site a number of years ago, but that idea was quashed by the Great Recession. Now, Dreyer said, it's time for him to move forward with his plans. "We get a lot of offers" for the property, he said. At least once a month someone contacts him to inquire about the land's availability, he said. "At some point someone's going to develop it. It seems best to have it done by a developer who lives here," he said. Schirmer has told city officials she expects some residents to criticize the project, mainly because access to the site is via Capital Drive, a narrow and steep road that twists and turns past homes perched on the west side of the hill and ends at the top, at the Dreyers' home, the pink mansion and Hendricks Park. Traffic and the existing road "will be one of the most prevalent comments (by neighbors) in an effort to prevent development on the last remaining property on top of the hill, Schirmer predicted in a letter to the city staff last month. "The subject next for discussion will be about safety: bikers, joggers, existing residents, guests, mailboxes etc." Schirmer wrote. Capital Drive draws a fair amount of pedestrians because people use it to walk to the top of the hill and into Hendricks Park. "All users of this street (currently) must proceed with caution," Schirmer wrote to the city. One option to address the increased traffic from development might be to widen parts of Capital Drive, to remove trees, parts of driveways, retaining walls and other features, Schirmer wrote. Dreyer said much of the drive's problems stem from the fact that residents park in the street, blocking half of the roadway and hindering visibility. Banning parking on the street would solve that worry, he said. But the narrow road also is an asset, Schirmer wrote. "The nature of this road is what gives this place its unique character," she wrote. Dreyer said he has talked with some neighbors about his development idea and none has raised major objections. At any rate, Schirmer argued, the hilltop site should be developed, despite the difficulties. The land is designated for low-density residential development in the city's land use documents, according to Schirmer. The property "is simply the last one to develop in a fully developed neighborhood. This presents an increased level of anxiety about change," she wrote to the city. Under tentative plans Dreyer and Schirmer have submitted to the city, the planned unit development would encompass the three existing homes - including the mansion - that the Dreyers own on the hilltop, plus it would create an additional 17 or so lots that new homes would be built on. Parts of the property are very steep, but homes would be built on the flatter parts at the top of the hill, Dreyer said. Under a planned unit development, a developer can override some city planning requirements in return for clustering buildings and leaving open space or natural areas. Schirmer has scheduled a meeting Jan. 14 with the city staff to talk through aspects of the project. Part of the site is within the Fairmount neighborhood, and the other part is within the Laurel Hill Valley area. February 27, 2018 To: Nick Giollo, Assistant Planner, City of Eugene Re: Application for the Capital Hill PUD (PDT-17-10) Please enter this letter into the public record. My husband and I live at 2840 Alta Vista Ct., here in Eugene, in the neighborhood of the proposed PUD. To leave home and return each day and sometimes several times during a day, we travel the length of Capital Drive and Spring Boulevard. It is a common occurrence already, for me to catch my breath and feel my heart race as a result of some near miss that happens on this road. As anyone knows, who travels this road, there are no shoulders or sidewalk on much of this narrow road. There is no place for parking so cars, increasing numbers of them, just park in the right hand lane. This would be acceptable in ordinary conditions but on this hill there are many blind curves. A blind curve means that you cannot see what is coming down the hill towards you from the opposite direction. Because many people do not understand blind curves they don't get why cars creep along behind them as they are trying as an innocent pedestrians (sometimes whole families with small children, to leisurely walking up this steep hill.... or a biker huffing at a slow pace to get up there. They naively wave you on to go on around them. They seem not to get that you can't see what is coming. Parked cars are also in the way. So one is often forced to pass on the left without knowing what is coming down towards you around the curve, too often at a surprisingly rapid speed. Imagine trying to get around a series of parked cars. You have to get over in the left lane to do it only to be met by a biker coming head on towards you at a racing speed down the hill. He is unaware you were over in "his" lane because the curve is blind on both sides. This is the situation already on Capital Hill Drive. Now imagine that instead of a bicyclist or a speeding pick-up, you have an enormous dump truck too wide to let you through or a some other heavy duty vehicle filled with building materials being driven by someone who is overly confident and unwilling to even slow down as you face wondering whether there is room for you to squeeze through. We have already lived through many months of a house under construction right on Capital Drive. So we have had a taste in smaller degree of how this development could change our lives and well being. The proposed PUD, without some other access road for construction vehicles to get in to and out of the area would pose an unbearable burden on our neighborhood. My understanding is that so many units are planned that we would be facing this scenario for years to come. But this is not just a matter of inconvenience. This is a situation that would be completely unsafe. Without another access road this development plan would be putting lives at risk. There are many other reasons environmentally to oppose this development. They are more complicated. But our main concern is the danger and risk of bodily injury that would threaten us, our neighbors, our neighborhood children and the frequent naive visitors who seem to compound the problems. On the grounds of safety alone we ask you to deny this application. I ask that this letter be entered into the public record. Thank you for your consideration, Susan Hopkins 2840 Alta Vista Ct., Eugene 97403 March 3, 2018 City of Eugene, Planning Division c/o Nick Gioello, Associate Planner Regarding; Capital Hill PUD, PDT 17-1 To Whom it may Concern; The proposal to allow the development of 34 residential lots within the Capital Hill PUD should be not be approved. Construction of this development will dramatically increase the volume of traffic to the narrow streets in this neighborhood. The resulting traffic congestion presents a clear and present danger to the local residents, their children and pets, pedestrians and bicyclists. have been a builder/remodeler in the Eugene area for more than 25 years. In that time, I have worked on residential properties and homes in most of the neighborhoods throughout the city. Including decades of experience working specifically in the Capital Hill / Laural Hill neighborhoods. As a General Contractor, our projects often include land and systems development on private properties and within the public right-of-way. In my experience and without a doubt, the streets of this neighborhood are the most dangerous and difficult areas in which to build in Eugene. (And that is when we are working on only one property at a time!) The fact that the development would occur over such a large area, involving at least 34 separate properties and built out over such a long period of time would greatly increase the risks to everyone traveling in or out of the area. The danger is further exacerbated by the shear size and quantity of heavy equipment and trucks required for development within the proposed area. The narrow streets, the steep terrain, the blind corners, and the lack of sidewalks or pull-out opportunities make vehicular travel very unsafe, especially in the area north of Alta Vista St. These streets are particularly dangerous for pedestrians, school children and bicyclists attempting to navigate while sharing the street with passing cars and trucks. The large number of planned building lots being proposed increases the risk of a serious, or fatal collision simply by the exponential increase in the number of trips up and down these dangerous streets. Made worse by the large size of most construction vehicles required for the size of this development. would ask the proposed Capital Hill PUD be denied as a danger to public health and safety. While I do not oppose development in this area in total, in my opinion, a smaller and more modest development with fewer building lots, while not without risk, could be less dangerous to the public. Sincerely, Nicholas Russo Renaissance Remodeling & Restoration