HomeMy WebLinkAboutAppeal MaterialsAppeal Statement to the Eugene Planning Commission of the Hearings Official Decision dated
April 20, 2018, regarding the Capital Hill Tentative PUD application, File PDT 17-1.
Submitted by the Joint Response Committee of the Fairmount Neighbors Association
And the Laurel Hill Valley Citizens
May 7, 2018
The Joint Committee is alarmed by the number and magnitude of errors in the Hearings
Official's Decision to approve with conditions the Tentative PUD Application for the Capital
Hill PUD (PTD 17-01). These errors include: inaccurate interpretations of Eugene Codes,
uncritically accepting Applicant's flawed evidence and dismissing oppositional facts and
arguments, obviously omitting and ignoring relevant facts and arguments, and insufficiently
substantiating matters of judgment by selective use of evidence.
The following appeal issues are listed in the order in which they appear in the Decision of the
Hearings Official (April 20, 2018). All page numbers refer to that document unless otherwise
indicated. The document is also referred to by the abbreviation DHO. Page numbers for the
application for the Capital Hill PUD are indicated by the abbreviation CHPUD. Joint Committee
response document page numbers are indicated by the abbreviation JC.
As the remedy for the errors we identify in the DHO, we request that the Hearings Official's
approval with conditions be reversed and that the PDT 1~7-1 be denied because it fails to satisfy
one or more of the conditions for approval. Although some identified errors might be possible to
remedy by imposing additional conditions, and we welcome such remedies, we contend that not
all the errors we describe below can be resolved by more conditions. Therefore, we request that
if you find that at least one criterion for approval is not met, the application should be denied.
The Joint Committee members have worked for over a year to review the CHPUD application
for compliance with Eugene Planning Codes and to prepare our detailed report. We have paid for
professional expert consultants to evaluate technical issues: a geotechnical engineer, a traffic
engineer, and a forester. The latter two, however, were not allowed access to the development
site. We, not the Applicant, represent the true views of the neighborhood associations and
essentially all 112 households residing adjacent to and along the one and only primary roadway - _
from Fairmount Boulevard to Spring Boulevard to Capital Drive. These narr w, wi N E
are the only way in and out of the proposed CHPUD. Not one private individ al of ~I
testimony at the Hearing in favor of the development.
Assignments of Error, Criterion 1
MAY-72018
CITY OF EUGENE
LANNING DIVISION
Appeal Issue # 1: The Hearings Official erred regarding applicability of the Policies of the
Metro Plan (DHO, p. 14) by denying that seven individual Policy statements should be
considered as applicable in determining compliance with this Criterion 9.8320 (1). She
incorrectly interpreted the requirements of this approval criterion and failed to evaluate evidence
in the record that contradicts her findings.
According to the wording of Criterion 1, we contend that the policies discussed are "applicable
adopted Policies of the Metro Plan," and thus are relevant as they form the substantive basis for
the content of the Metro Plan. However, the Hearings Official asserts the primacy of the fact that
the City has zoned the subject property for low-density residential development and the applicant
does not propose a higher density (DHO, pp. 14-15). Upon citing this City zoning action, the
Hearings Official rejects any further relevance of Metro Plan Policies as applying to approval
criteria for determining compliance.
Thus the Hearings Official limits the scope and effect of the specific content of the Metro Plan.
The Metro Plan is not simply a zoning ordinance. Its content defines the basis for the approval
standard of Criterion 1: "The PUD is consistent with applicable adopted policies of the Metro
Plan." We reject the Hearings Official's claims that restrain the applicability of Metro Plan
policies. They are not limited by prior LUBA decisions regarding the efficacy of the language
"consistent with applicable adopted policies" and rejections of specific plan policies as
mandatory approval standards.
Careful examination of decisions in LUBA No. 92-287, McGowan v. Eugene, p. 9, lines 4-13
and p. 15, lines 12-18 reveals that prior opinions are narrower and focused on more vague
language, such as "encourage" compliance. This does not support the over-broad decision of the
Hearings Official to dismiss the following seven Policy statements of the Metro Plan.
The Hearings Official dismisses Policy A. 10, Policy A. 13, and Policy A. 17 in the Metro Plan
Residential Land Use and Housing Element with the unsupported claim: "none of these policies
constitute a mandatory approval criterion for the proposed development. By their terms, they are
directives to the City to guide the City in implementing the Metro Plan" (DHO, p. 14).
In a similar manner, the Hearings Official dismisses Policy A. 11 and Policy A. 20 with the same
unsupported claim: "these policies provide direction to the city, and are not mandatory approval
criteria for the proposed development" (DHO, p. 15).
For Policy E. 2, the Hearings Official limits it to be "primarily implemented through the specific
code provisions, addressed below, that provide direction as to how the site's natural features are
to be protected consistent with the property's zoning." Thus, the only relevant portion to the
Hearings Official is that "this policy directs preservation `to the maximum extent practical' "
(DHO, p. 15). However, how to interpret that phrase is not considered by the Hearings Official.
We note here that, relevant to this policy and issues of protecting the proposed preservation and
conservation areas of the site, we discuss the Hearings Official's error regarding imposing
Condition 8 (above, pp. 2-3).
Policy J. 8 is dismissed: "There is nothing in this policy language that establishes any approval
criterion applicable to the proposed development" (DHO, pp. 15-16).
Consequently, we hold that each one of the seven Policies of the Metro Plan included under
Criterion 1 must be regarded as a separate error by the Hearings Official: Policy A. 10, Policy A.
11, Policy A. 13, Policy A. 17, Policy A. 20, Policy E. 2, and Policy J. 9. The contents of the
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Metro Plan Policies are not irrelevant. Each Policy should be applicable to determine compliance
with Criterion 1 and should be discussed and evaluated on the substance of its particular
application. Because the Hearings Official made these seven errors, we contend that her decision
that the Application satisfies Criterion 1 should be rejected.
Assignments of Error, Criterion 2
Appeal Issue #2: The Hearings Official erred by incorrectly interpreting the requirements of the
South Hills Study, Ridgeline Park Section - Specific Recommendations.
According to Highland Condominium Association vs. City of Eugene (LUBA No. 98-082): "In
the South Hills Study, the city adopted seven purpose statements. The study also contains a
specific development recommendation that requires that all vacant property above an elevation
of 901 feet be preserved from an intensive level of development (hereafter 901- foot Preservation
Policy). The study recommends that planned unit development may be permitted as an exception
to the 901 foot Preservation Policy 'when it can be demonstrated that a proposed development is.
consistent with the purposes' of the South Hills Study. The South Hills Study also contains
development standards to ensure that new development address known natural factors, to ensure
maximum preservation of the natural character of the south hills, and to ensure adequate review
of the public consequences of development in the south hills. "
The Hearings Official incorrectly interpreted the Ridgeline Park section of the South Hills Study
to mean that the specific recommendations in EC 9.9630(1)(a)2 do not apply. She states (p. 16):
"The subject property has not been designated for preservation. Rather, as stated above, it is
designated for low-density residential development. A portion of the subject property is located
above 901 feet elevation. " Discussing the restrictions on development properties above 901'
within the boundary of the South Hills Study, she states that (p. 17): "The Staff Report evaluates
the proposed development as it relates to the Ridgeline Park section purposes; and the Response
Committee and neighbors have expressed numerous concerns regarding the compatibility of the
proposed residential development to ridgeline park system. However, based on the language of
the South Hills Study, these restrictions relate to and are encouraged only for areas
recommended for preservation or park usage. They do not expressly apply to properties
designated for residential development. "
The Hearings Official continues (p. 18): "the South Hills Study does not designate the subject,
propertyfor preservation or park use and does not prohibit residential development. The
proposed low density residential development is consistent with the property's zoning. The
recommendations described in the South Hills Study purposes must be construed in the context of
this residential zoning. " By this interpretation, no protection is afforded land above 901' within
the boundary of the South Hills Study other than that of R-1 zoning. All subject property above
901' must be developed according to the South Hills Study refinement zone, not simply R-1
zoning. The PUD process allows considerable latitude and flexibility outside of R-1 zoning to
create a development that is appropriate to the specific needs of the site as outlined in the South
Hills Study section of the Eugene Code.
Appeal Issue #3: The Hearings Official erred in the determination of whether the PUD served
the purposes outlined in the Ridgeline Park Section, South Hills Study.
EC 9.9630(1)(a)2. states:
Development under planned unit development procedures when it can be demonstrated that a
proposed development is consistent with the adopted South Hills Study Ridgeline Park purpose
statement which provides any areas recommended for preservation or park usage should serve at
least one of the following purposes:
a. To insure preservation of those areas most visibly a part of the entire community.
b. To protect areas of high biological value in order to provide for the continued health of
native wildlife and vegetation.
c. To insure provision of recreational areas in close proximity to major concentrations of
population.
d. To provide connective trails between major recreational areas.
e. To provide connective passageways for wildlife between important biological
preserves.
f. To contribute to Eugene's evergreen forest edge.
g. To provide an open space area as a buffer between the intensive level of urban
development occurring within the urban service area and the rural level of development
occurring outside the urban service area.
The city must expressly adopt findings addressing the purpose statements, according to Highland
Condominium Association vs. City of Eugene (LUBA No. 98-082).
The Hearing Official states (p. 17): "Nonetheless, even though it is not an area recommended
for preservation or park usage, the following analysis evaluates how the proposed development
furthers several of the purposes listed. " We contend that the Hearing Officer's analysis is in
error, by allowing the applicant to fulfill the purposes by setting aside property below 901'. The
Ridgeline Park section refers to land above 901', and its requirements cannot be met by setting
aside land for preservation or park usage below 901'.
Regarding each of the Policies included in the Hearing Official's Analysis:
Policy 1: To insure preservation of those areas most visibly a part of the entire community.
The Hearings Official states (p. 17): "In order to buffer the proposed residential development
from the Ribbon Trail, the proposed PUD designates 2.33 acres along the entire east property
line of the proposed PUD (Tract A) for preservation. Additionally, a portion of each individual
lot that borders Tract A, totaling approximately 2.08 acres, is also required to be preserved.
Combined, the proposed development preserves a total of 4.41 acres of along the eastern
property line as a buffer between the residential development and the Ribbon Trail. The
preserved areas will help to ensure the preservation of existing trees and vegetation while
providing a continuous visual buffer between the adjacent Ribbon Trail and the future home
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sites. Preservation of Tract A and the preserved areas of the individual lots bordering Tract A
are consistent with Policy 1. "
Examination of Site Plan L2.0 dated 1/19/18 shows that Tract A and the preserved portions of
individual lots are all below 901' elevation.
Policy 2: To protect areas of high biological value in order to provide for the continued health of
native wildlife and vegetation.
The Hearings Official (p.17) states: "In addition to the preservation areas in Tract A and on
adjacent individual lots, the proposed PUD designates several smaller areas of land throughout
the site (Tracts B, C and D) for preservation, bringing the total preservation area of the PUD
site to approximately 4.54 acres. As the staff notes, (and as depicted on the site plan, at sheets
L3.3, L3.4 and L4.0) a small area of Tract A will be initially disturbed in order to install a storm
drainage feature. As a result, and as further described in findings of compliance with EC
9.8320(4)(b) Tree Preservation, five trees will be removed in or adjacent to TractA and ten
replacement trees will be required in their place. These described preservations areas will be
protected from any future construction and removal of trees, therefore providing for the
continued health of the native wildlife and vegetation, consistent with Policy 2. "
Examination of Site Plan L2.0 dated 1/19/18 shows that slightly more than half the area of Tract
B lies above 901', or approximately 1100 sq ft. Tract B is a 20 foot wide rectangular section
between lots 29 and 30 that extends west from Cupola Drive to dead-end at the back of Lot 24.
Of the entire preserved area, just 0.5 % lies above 901'.
Policy 5: To provide connective passageways for wildlife between important biological
preserves.
The Hearings Official cites the combined preservation areas of Tract A and the preserved areas
of the eastern lots as an uninterrupted natural wildlife corridor. Again, these sections of the PUD
lie below 901'. Further, any wildlife corridor assertion is nullified by the "Proposed 6'see
through agricultural type fence at the property line" shown on Site Plan L2.0. This fence
extends along the full southern and eastern boundary of the PUD, terminating on the north at the
"neighbor's fence at Lot 4. " It appears that the presence of this fence was not considered by the
Hearings Official.
Appeal Issue # 4: The Hearings Official incorrectly interpreted the language and requirements
of the Development Standards [EC 9.9630(3)(b)].
She states (p.19): "the subject property is designated for residential development and because
some of the subject property is located above an elevation of 901 feet, the proposed residential
development must be reviewed in accordance with the PUD procedures and must be consistent
the purposes identified in the Ridgeline section. Specifically, the Development Standards for the
Ridgeline section of the South Hills Study require that any "intense level of development" of that
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portion of the property is permitted subject to planned unit development procedures "when it can
be demonstrated that a proposed development is consistent with the purposes of this section. "
She goes on to list the purposes of the Development Section, not the Ridgeline Park section.
The Development Standards are separate from the Ridgeline Park Section, which affords special
protection to property above 901'. The code has been misinterpreted.
EC 9.9630(3)(b):
That planned unit development procedures shall be utilized for the following purposes:
1. To encourage clustering of development in areas characterized by:
a. Shallowest slopes
b. Lowest elevations
c. Least amount of vegetation
d. Least amount of visual impact
2. To encourage preservation as open space those areas characterized by:
a. Intermediate and steep slopes
b. Higher elevations
c. Significant amounts of vegetation;
d. Significant visual impact.
The Hearings Official errs by stating (p. 19): "Consistent with the stated purpose, the hearings
official interprets these standards to encourage the applicant to propose a development that uses
procedures afforded through the PUD procedures to balance the clustering of development and
preserving of open space in a manner that would most effectively minimize overall impacts. " The
South Hills Study standards and purposes does not discuss "overall impacts." The phrase is not a
recognized policy or goal in the code.
The Hearings Official errs by stating (p. 20) that "This preservation area concentrates the open
space buffer in the area of the property with the steepest slopes, most significant amounts of
vegetation and most significant visual impact. " As the Response Committee demonstrated, the
high visual impact occurs on the ridgeline, where the cutting of trees will expose the ridgeline to
the entire city of Eugene.
The Hearings Official errs by stating (p. 20) that "Clustering of home sites in the mid to higher
elevations will limit the ground disturbance and allow for the preservation of more trees and
vegetation, which is consistent with the above policies to the extent possible, given the existing
site conditions and constraints. " Previous designs considered by the Applicant (see below)
represent less disturbance to the site than the current design. The PUD procedures provide wide
latitude and flexibility in order to avoid a clear cut on the ridgeline. Contrary to what the
Hearings Official claims, the proposed Capital Hill PUD does not offer a design that seeks to
meet the codes to "the extent possible. "
The Hearings Official errs by stating (p. 20): "The site's topography and the proposed site plan
do not reflect the neighbors' characterization. Based on the site plan layout, the clustering of
homes, the preservation of approximately one- third of the site as open space, the use of the
existing trail in which to locate the private road, the applicant has used the PUD procedures in a
manner to minimize overall impacts. It is clear that the Response Committee and neighbors do
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not believe the applicant has done enough; there are always ways that `more' could be
preserved. However, in `encouraging' the applicant to design a residential development the
respects the existing characteristics of the site and minimize the impacts, the South Hills Study
residential development standards do not require absolute preservation or the absence of any
impacts. In the context of the residential zoning of this property, the applicant has used the PUD
procedures to design a proposed development that minimizes impacts and respects and preserves
the site's natural characteristics. "
As stated above, the Hearings Official uses the phrase "overall impact" as an invented goal or
policy set out by the South Hills Study section 9.9630. However, 9.9630 does not refer to
"overall impact." Nor does the original South Hills Study refer to "overall impact." The Hearings
Official erroneously casts the argument in terms of more or less general effort on the part of the
Applicant with regard to "overall impacts." However, 9.9630 refers to specific "impacts" that a
PUD Applicant should minimize. In 9.9630, "impacts" are twice referenced with regard to the
need for the Applicant to minimize "visual" "impacts." In the case of the site in question, the
highest visual impact comes from cutting trees on the ridgeline above 901'.
EC 9.9630(3)(c): That adequate review of both on-site and off-site impact of any development
by a qualified engineering geologist occur under any of the following conditions:
1. All formations
Soil depth of 40 inches or above
Slopes of 30 percent and above
2. Basalt flows
Soil depth of 40 inches or above
Slopes of 20 percent to 30 percent
3. Eugene Formation
Soil depth of 40 inches and above
Slopes of 20 percent to 30 percent
4. Basalt flows
Soil depth of 20 to 40 inches
Slopes of 30 percent and above
5. Eugene Formation
Soil depth of 20 inches to 40 inches
Slopes of 30 percent and above
Appeal Issue #5: The Hearings Official's findings regarding the consistency of the application
with EC 9.8320(2) are based on two errors:
1. She failed to consider that, by their own admission, the investigation conducted by
Branch Engineering was "a preliminary study" rather than an 'in-depth, detailed
analysis."
2. She failed to consider evidence that Branch Engineering's areally limited work cannot
"adequately consider both on-site and off-site impacts" as required by the SHS.
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For discussion see Appendix A, Memorandum from Gunnar Schlieder, Ph.D., CEG, GeoScience
Inc. dated May 2, 2018.
EC 9.9630(3)(d): That developments be reviewed to encourage clustering of open space
elements of different developments in order to preserve the maximum amount of continuous
open space.
Appeal Issue #6: The Hearings Official errs by stating (p. 22):
"As described above, the proposed PUD includes a total of 4.54 acres of protected open space. It,
buffers the proposed residential development from the eastern property boundary with common
open space preservation area (Tract A) and individual preservation areas on Lot 5 and Lots 8
through 19. This clustering of open space both buffers the proposed development from the
Ribbon Trail and protects significant natural features and vegetation. The common area and
individual preservation areas of Lot 5 and Lots 8 through 19 will effectively act as one large
continuous open space. The proposed development also includes a preservation area along the
northeast boundary of the subject property which abuts the established public open space of
Hendricks Park consistent with the policy langua ewe. " (underlining added for emphasis)
There is no separate preservation area along the northeastern boundary of the PUD. The presence
of this additional "preservation area" is not mentioned in the Application, appearing for the first
time :in the Staff Report (p. 12): "Staff notes that the proposal also includes a preservation
area along the northeast boundary of the subject property which abuts the established public
open space of Hendricks Park, consistent with the policy language above. " The Hearings
Official relied on statements in the Staff Report that are not supported by evidence in the
Application or Site Plans.
EC 9.9630(3)(e): That developments be reviewed in terms of scale, bulk and height to ensure
that development blends with rather than dominates the natural characteristics of the south hills
area.
Appeal Issue #7: The Hearings Official incorrectly interpreted the requirement that
developments be reviewed in terms of scale, bulk and height to determine the Application is
compliant.
The Hearings Official states (p. 22): "The proposed PUD does not include specific building
areas or envelopes to accommodate development impacts on each lot. The Response Committee
and several neighbors argue that without details specifying the height and placement of homes
on the sites, and without a specific information regarding housing style and character, the
applicant has not satisfied this South Hills Study development standard. The Response
Committee relies on the applicant's statement that 'The Capital Hill CCR's will provide
guidelines for the bulb height and scale of the buildings. In addition, there will be a design
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review team that will review and approve proposed plans ensuring that the intent of the OCR's is
met.' (Application, page 35) The Response Committee argues that because the applicant is
relying on CCR's, which have not been provided as part of the application, to establish
compliance with this criterion, the applicant has not yet satisfied this criterion. The Response
Committee is correct that if the application relies on CCR's to establish compliance with this, or
any other, approval criterion, those CCR's must be included as part of the application. However,
this South Hills Study development standard addresses the proposed PUD as a whole and does
not require a review of individual buildings. Neither the PUD procedures applicable to this
proposed development nor this South Hills Study development standard require the applicant to
provide specific details about the buildings that may be developed in the future. At issue under
this development standard is whether the proposed development blends in with the natural
characteristics of the south hills areas. "
The code requires that the proposed PUD be evaluated in terms of scale, bulk and height. The
Applicant attempted to address this requirement by promising CCR's at an unspecified future
date. According to LUBA decision No. 2012-039 ("City cannot rely on non-binding expressions
of intent from an application to ensure that approval standards are met."), the Applicant is not
allowed to postpone the evaluation of the bulk and height of construction to a later time.
Instead of requiring the Applicant to provide the CCR's they rely on to establish compliance, the
Hearings Official proceeds to do the Applicant's work for them by stating that the approval
standard was met based on topography, tree preservation, and the presence of neighboring off-
site trees to obscure the view of the development.
1. The Hearings Official states (p. 23): "In reality, residential development of this property
may impact some views from the valley floor, as has the other residential development
that has occurred in this area over time. " The Hearings Official creates a false
equivalency between the clear cutting of a ridgeline above 901' that the current proposed
Capital Hill PUD proposes and other "development in the area." The development in the
surrounding area is not above 901' and thus not subject to the South Hills Study
restrictions and recommendations that guide development above 901'.
2. The Hearings Official states (p. 23): "As summarized in the Staff Report, the neighboring
off-site mature trees and existing homes significantly obscure the view of the top of the
ridge from lower elevations to the west. This will, in effect, limit the potential visual
impact of the proposed single-family residential development in the top of the ridge area.
Neighboring off-site mature trees and existing homes significantly obscure the view of the
top of the ridge from lower elevations to the west. Just as the existing development on the
property and on neighboring residential development has not dominated the views of the
South Hills, as proposed by the applicant, the proposed residential development will also
blend in with those views. " Rather, in order to meet the recommendations of the South
Hills Study the Applicant must create screening of the proposed PUD on the PUD itself
and not rely on screening from off-site trees.
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3. The Hearings Official states (p. 24): "With the additional protections provided through
private preservation areas on the eastern lots, common open space (Tract A), and the
clustering of the proposed homesites, the applicant has demonstrated that the proposed
development will blend with, rather than dominate, the natural characteristics of the
area. In combination with configuration of the proposed development and the clustered
open space, the applicable residential development standards for the R-1 zone will
ensure general compatibility with the surrounding residential area and consistency with
the policy language above. " EC 9.9630(3)(e) concerns the effect of the PUD on the
"natural characteristics" of the South Hills area and does not concern compatibility with
the residential area at lower elevations. With approximately 1100 sq ft and two large trees
preserved above 901', it is impossible to claim that a denuded and clear cut ridgeline will
blend in with the natural characteristics of the south hills area.
The Hearings Official (p. 24) states that the response committee's argument with regard to
building heights on steep slopes being permitted to reach as high as 47 feet "misconstrues the
height limitation" code. As she then admits, the current code allows building heights up to 47
feet based on slope and roof pitch. This is the measurement that matters, because hikers on the
Ribbon Trail will be looking up at the 47-foot side of the building, not one that blends with
rather than dominates the natural characteristics of the south hills area.
Therefore, the Hearings Official in incorrect in stating that the Applicant has provided adequate
review of the bulk and height of potential construction in the proposed Capital Hill PUD.
EC 9.9630(3)(g): That planned unit development review shall be based upon a recognition of
both public and private interest. In areas of significant conflict (e.g., locating development in a
highly visible area as opposed to a less visible area or in an area of significant vegetation as
opposed to a relatively open area) which could be resolved through the use of an alternative
development plan, primacy shall be given to the public interest in any determinations.
Appeal Issue #8: The Hearings Official erred in determining compliance with this standard,
failing to evaluate evidence in the record contradicting this finding.
She states (p. 27): "This South Hills Study development standard does not require (or permit) the
"public interest" in preservation of the undeveloped private property within its boundaries to
disregard the private property owner's interests. As the Response Committee recognizes, as it is
worded, this standard requires that in the areas where there is a significant conflict, and where
an alternative plan that would resolve those conflicts is available, the public interest - i. e., the
alternative plan that would resolve the conflict by reducing the impact - shall be given primacy.
The proposed site plan furthers this standard. The proposed site plan has considered alternatives
and locates residential development the less visible area as opposed to the highly visible areas,
and in areas of relatively open space rather than in areas of significant vegetation. It also
clusters both the open space and the residential development in a way that minimizes the impacts
of development and maximizes the preservation of site's vegetative cover. "
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The above statements are incorrect. The Response Committee has reviewed plans proposed in
2008 and 2014 by the applicant. In 2013 (and in a Register Guard article on 2/6/14), the
Applicant proposed to develop 20 large lots (instead of the current 34), which would have
preserved more vegetation at the highest elevations, lessened impact on the Ribbon Trail, and
reduced safety and traffic concerns. On 2/16/14 the Applicant used a Neighborhood/Applicant
meeting to announce that there would be 21 lots. A Register Guard article on 9/11/14
"Annexation Sought for Homes" proposed 20 lots. At the Neighborhood/Applicant Meeting on
5/6/15, the Applicant discussed a plan with 30 lots.
The point here is that all previous plans proposed by the Applicant did a better job of meeting the
public interest. Here the code states "In areas of significant conflict (e.g., locating development
in a highly visible area as opposed to a less visible area or in an area of significant vegetation as
opposed to a relatively open area) which could be resolved through use of an alternative
development plan, primacy shall be given to the public interest in any determinations." The
Hearings Official is giving primacy to the plan that poses more of a threat to the public interest.
Assignments of Error, Criterion 3
Appeal Issue #9:
EC 9.8320(3): The PUD will provide adequate screening from surrounding properties including,
but not limited to, anticipated building locations, bulk, and height.
The Hearings Official made multiple errors in regard to compliance with Criterion 3.
Specifically, in order of the errors, the Response Committee notes the following:
The Hearings Official erred on Page 31 in the initial paragraph of her Decision when she stated
(p.31) "The proposed site plan provides, for significant continuous preservation areas along the
eastern boundary, adjacent to the Ribbon Trail... " The preservation area along the eastern
boundary of the property is bordered by a 6 foot fence along the entire length of the eastern
property line. Neither the Applicant nor the Hearings Official acknowledge anywhere in their
narratives that this fence is proposed for construction, even though the Response Committee
raised the issue of this proposed fence at the 3/7/18 Public Hearing and on pp. 133-137 [Criterion
9.8320(10)] in the Committee's 3/7/18 written response. This 1870 foot (approx.) linear fence
(proposed running the full length of the eastern property boundary and perhaps along the entire
northern boundary of the project adjacent to Hendricks Park and a portion of the southern
boundary) directly counters the Hearings Official's statement (p. 18) that a beneficial
characteristic of the eastern lots is that they "act as an uninterrupted natural wildlife corridor."
The Hearings Official again uses similar erroneous language at the bottom of Page 18
("continuous buffer"), on Page 31 ("continuous preservation area"), and on page 78
("continuous wildlife habitat and corridor').
The Hearings Official erred on Page 31 of her Decision when, in discussing screening, she stated
that "The site is currently mostly obscured from view and difficult to observe from flatter
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elevations below and to the west. " The screening she is referring to includes both mature trees
onsite and offsite (in the yards of neighboring residences). This screening may exist today;
however, it will be severely negatively impacted by the planned removal of almost 60 mature
trees at the western edge of the development. (Two very large trees will be removed from
Preservation Area Tract C to make way for "ornamental planting" and an additional 55 or more
trees will be removed from lots bordering the project's western edge to make way for the
widening of Capital Drive and lot development.) The Hearings Official should have requested
from the Applicant an analysis of the visual impact of the removal of these trees. Further, the
Hearings Official did not consider the potential impact to existing major trees on neighbor's
properties over time... especially as it relates to each neighbors' right to remove trees, the
likelihood that some neighboring trees will become damaged or die over time or that they will be
removed because of further development of adjoining lots.
The Hearings Official erred in not recognizing that the planned removal of one large redwood
tree (split into 2 trunks) (Tree 41398 in good condition) located in Tract C is in direct violation
of the guidelines for Preservation Areas. This violation was specifically brought to the Hearings
Official's attention on Page 2 through 4 (including photographs) of the Committee's additional
testimony regarding EC 9.8320(8) submitted on 3/21/18. (The Committee's comments were
never addressed by the Hearings Official.) Approval Condition #8 as proposed by the Hearings
Official, states "The final plan shall include a note that states: "on Tracts A, B, C, and D no
impacts to preserved trees and no grading activity shall be allowed. "
The Hearings Official erred on both Page 23 (in her discussion of the South Hills Study) and on
Page 31 & 32 (in her discussion of screening for the project under Criterion 9.8320 (3)) because
she relied on both mature trees off-site and off-site neighboring residential structures to provide
screening for the development. The provisions of the South Hills Study and of Criterion 3 as
they relate to screening address the requirement that the proposed development provide the
screening, not that the surrounding neighborhood provide the screening. Criterion 3 specifically
states "The PUD will provide adequate screening..."
She states (p. 23): "The neighboring off-site mature trees and existing homes significantly
obscure the view of the top of the ridge from lower elevations to the west. The Applicant
indicates that of the 34 proposed lots, 8 lots have the potential to be viewed from beyond the
property to the west, but it is highly unlikely given the current condition of off-site mature trees.
She states (p. 31): "The adjacent residential neighborhood to the west also has steep
topography, significantly sloping away from the site. The site is currently mostly obscured from
view and difficult to observe from the flatter elevations below and to the west. "
The Hearings Official also erred on Page 22 regarding a similar "screening" topic when she
stated that "The proposed development also includes a preservation area along the northeast
boundary of the subject property which abuts the established public open space of Hendricks
Park..." This statement by.the Hearings Official is misleading. At the northeast corner of Lot 5,
there is a very small strip of so-called individual tax lot preservation area that is approximately
10-12 feet in width east to west. This 10-12 foot strip of land abuts Hendricks Park to the north.
Additionally, there is an approximate 50 foot wide (east to west) northern portion of Tract A that
12
abuts Hendricks Park to the north. However, these two preservation areas are not located where
the screening is needed ...along the buildable portions of Lots 5, 4 and 1. There is no screening
proposed for the buildable portion of these 3 lots. The project relies on Hendricks Park to
provide this screening. The Response Committee pointed out this discrepancy in its discussion
of Criterion 9.8320 (3) on Pages 44 & 45 of their Response Document. Again, the screening
should be located on the subject property. Screening should not be located on or dependent upon
adjacent properties, especially public lands (Hendricks Park) that is not under the control of the
project owner.
The Hearings Official further erred in logic on Page 23 (South Hills Study) when she stated that
based on topography, the proposed tree preservation and the proposed site plan, the scale,
bulk and height will create and maintain an impact consistent with the view scape created by of
[sic] the adjacent established residential neighborhoods. " In order to come to this conclusion, a
person has to use their imagination to mentally envision the to-be-built homes somewhere on the
lots and to "see" the community of homes (structures) as a whole, then compare that "vision" to
the optics of the surrounding neighborhood.
This is the type of analysis the Committee is asking for but in a tangible way. Rather than
imagine the future homes, provide concerned citizens with a best, worst and probable case of the
spatial envelopes that, at build out, the homes would occupy and how they will likely relate to
each other. These. capabilities are easily within the reach of the professionals representing the
Applicant in this project.
The Hearings Official erred in logic on Page 31 when discussing EC 9.8320 (3) The PUD will
provide adequate screening from surrounding properties, including but not limited to, anticipated
building locations, bulk and height. The Hearings Official stated the "While the proposed lot
locations and configurations must be evaluated for compliance with this criterion, future
buildings are not subject to this review and evaluation for compliance with this criterion does
not include consideration of those future buildings. " If compliance with this criterion does not
include consideration of.-future buildings, how else can one determine that proposed screening
is "adequate." This is a three dimensional issue. Unless the item being "screened" has an
approximate or generally agreed upon size, height and width, upon what basis does the screening
assessment begin? The code clearly references "anticipated building locations, bulk and height."
Is a two foot hedge adequate screening for a three story building? You have to start somewhere.
Depth and verticality matter. The Applicant should not be able to circumvent this all important
assessment merely because he is building lots without structures. The lots are being built
because they will have structures on them. The PUD overlay is intended to supplement the R-1
requirements to ensure a more acceptable, attractive community.
If, as the Hearings Official indicates on Page 32, "At the time residential dwellings are proposed
for any of the approved lots, they must be evaluated for compliance with the R-1 zone
development standards. " Let's start there. At least a rendering of the impact to the lots of
general R-1 design standards should be provided in a public setting prior to any project approval.
On Page 34 the Hearings Official erred in her interpretation that the Response Committee
misconstrued how the city will apply the height limitations to the to-be-built homes. The
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Committee did not indicate that a 47 ft. building height (in some cases on steep slopes) is not
allowed. Rather, it questioned the distasteful results of that allowance when discussing height,
scale and bulk in the interest of surfacing the proposed project's noxious results and, perhaps, in
reducing the proposed density.
Assignments of Error, Criterion 4
Appeal Issue #10: The hearing official erred by failure to ensure the applicant satisfied the
requirements Criterion 4 by waiving the requirement for a licensed arborist on the professional
design team, and by disregarding the evidence provided by Jim Mehrwein, Registered
Professional Forester.
This evidence is important because, simply put, a Forester will care for the forest as a whole
ecosystem while an Arborist will care for an individual tree. A forester receives their formal
education and training in college. The education and training of an Arborist may or may not
include formal training with a college degree. The International Society of Arboriculture offers
different certification opportunities that are recognized as the gold standard of arborist education
and training. Arboriculture involves the care of individual trees, while urban forestry deals with
forests as systems (groups of trees) in a developed setting. The science of arboriculture focuses
on proper tree planting, pruning, fertilizing, water and other maintenance issues. It also focuses
on overall individual tree health. Urban forestry is also a social science, as well as incorporating
arboriculture, and includes landscape level management such as urban forest inventory,
valuation, planning, policy, etc. The two fields certainly overlap, but the training and practice of
a forester is specific to evaluate the heath of a forest, root balls, impact of wind, and potential of
mud slide.
Appeal Issue #11; The Hearings Official erred by improperly evaluating evidence in support of
compliance with EC 9.8320(4)(a)(2).
The Hearings Official notes that the City planning staff has concluded that the subject property is
included on the City's acknowledged Goal 5 inventory, relying on the April 12, 1978 Scenic
Sites Working Paper which designates the subject property as Natural Sites of Visual
Prominence and Prominent and Plentiful Vegetation. This specific designation provides guidance
on how the property should be viewed.
The main natural feature of the site is the "evergreen forested" ridgeline defined in the South
Hills Study, and on this ridgeline above.901' the Applicant proposes to preserve approximately.
1100 sq ft and two trees of significant size. The code explicitly calls for avoiding "unnecessary
disruption or removal of attractive natural features and vegetation, topographic features, and
other unique and worthwhile natural features."
The Applicant also fails to provide details on "anticipated building locations, bulk and height".
This information is promised at a future date, or in CCR's, but as part of the PUD process the
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Applicant must provide this information for approval. The Applicant needs to outline the effect
of construction on the natural features, and the Hearings Official fails to stipulate that such
details be made a condition of approval.
The Hearings Official states (p. 34) that "the areas included in the Tract A common open space
and within individual lot preservation areas comprise the majority of significant trees,
vegetation, and other natural features that are suitable for preservation; while also
accommodating street extensions, utilities, and other infrastructure in a compact manner to
serve a reasonable level of low-density residential development. " On the contrary, the PUD does
not preserve the most significant trees that are suitable for preservation. Of the largest trees
above 901', important to slope stability and the prevention of soil erosion and windthrow in
adjacent Hendricks Park, only two are preserved.
Appeal Issue #12: The Hearings Official erred by stating (p. 35) that the evidence suggests there
is minimal threat of windthrow threatening trees on-site and within adjacent Hendricks Park.
The Hearings Official states (p. 34-35): "While Mr. Mehrwein and surrounding neighbors would
conclude that the applicant could do more to preserve trees and further reduce (or eliminate) the
potential for windthrow, the applicant's plan to remove trees necessary for the proposed
development demonstrates that is has satisfied its obligation to avoid unnecessary disruption or
removal of those trees " and quotes the comments of Kyle King during the first open record
period that "Prevailing winds are typically out of the west to southwest and will be deflected
over and above the preservation area. The remaining trees will be well protected on the north,
south and east * * "
The windthrow concerns raised by Mr. Mehrwein regard the trees on the ridgeline, and not, as
the Hearings Official indicates, the trees in the preservation area. In other words, as trees are cut
down above 901', surrounding trees on the site and in the adjacent park on the ridgeline will
become vulnerable to windthrow. Given the significant concerns raised by Mr. Mehrwein and
the inadequate analysis provided by the Hearings Official above, it is false to conclude that the
Applicant has "satisfied its obligation to avoid unnecessary disruption or removal of those trees"
because the Hearings Official cited incorrect evidence to support her finding and because she
fails to apply the danger of windthrow to the trees on the ridgeline. The Hearings Official fails in
this regard to enforce (4)(b)(5), (6), (7),.and (8). Because the Applicant's plan allows for a
clearcut along the ridgeline above 901', trees "along the perimeter of the lots and within setback
areas" (5), "trees and stands of trees located along ridgeline and within corridors" (6), "Trees
with significant habitat value" (large trees important to protecting the forest against windthrow)
(7), and "Trees adjacent to public parks, open space and streets" are all under threat of
destruction.
Appeal Issue #13: The Hearings Official has made errors regarding Condition 8 (DHO, p. 2 and
pp. 38-39) in approving that "the applicant's Tree Preservation Plan complies" with Criterion
E9.8320 (4)(b). This Condition would not satisfactorily protect the proposed preservation and
15
conservation areas in future development, eventual lot sales, and resulting home construction.
General promises are not sufficient to ensure that future actions conform to approval conditions.
A specific error is evident in the Hearings Official's assigning Condition 8. Although this
Condition recognizes the need for explicit protection of "the individual preservation areas of Lot
5 and Lots 8 through 19, and on Tracts A, B, C, and D" (DHO, p. 2), its scope and effectiveness
would be limited. Condition 8 is insufficient to actually protect such areas once the ap lip cant
sells the individual lots. Thus, the Hearings Official errs in accepting Applicant's putative
compliance with Condition 8 as satisfaction of Criterion EC 9.8320 (4) (b). This Criterion would
not be satisfied in this manner, and the application should be denied.
Specifically, we reject the claim that Condition 8 and others on tree preservation "provide
additional clarity and assurance." [See DHO, p. 34: "The applicant has proposed to include notes
on the plan set regarding tree preservation conditions. These notes, which are made conditions of
approval, provide additional clarity and assurance regarding the tree preservation requirements
and allowed development."]
[See DHO, p. 38: "Finally, planning staff have requested, and the applicant agrees, to the
following condition to ensure that the applicant's Tree Preservation Plan will clearly define what
activities are allowed within preservation areas: On the final plans, include a note that states:
`Within the individual preservation areas of Lot 5 and Lots 8 through 19, and on Tracts A, B, C,
and D, no above ground structure that requires a building permit; no impacts to preserved trees;
and no grading activity shall be allowed.'
Given that there is no dispute regarding the fact that over one-third of the site is not buildable,
the applicant's site plans assign adjacent non-buildable preservation areas to individual lots. Why
is it designed this way? Regardless of whether the applicant's intent is financial (i.e., more
income from selling larger lots), what results are site plans that resemble a traditional lot-by-lot
development.
The alternative would be retaining the unity of the preservation and conservation areas and
assigning them to the common ownership and protection of a Home Owners Association.
Without HOA ownership and regulations, who will police and enforce the conditions on
individual lot owners? Condition 8 has no permanent teeth. It reveals that the proposed CHPUD
would lead to development that would be inferior to a traditional lot-by-lot design on the
buildable areas of the available land. There is no conceptual design for unit development or
architectural integrity for the proposed CHPUD.
This Tentative CHPUD Application states repeatedly (at least 11 times) that there are no plans
are included for building units. Lots will be sold for buyers to construct individual dwellings.
Thus, the proposal ignores PUD design opportunities and reverts to lot-by-lot development,
because applicant negates the meaning of Planned Unit Development by not planning to develop
any units.
The Application also states (at least 8 times) that no specifications are proposed for Covenants,
Conditions, and Restrictions [CC&Rs] or Home Owners Association [HOA] requirements and
16
responsibilities. They are called "premature" (CHPUD, p. 30, p. 35). Thus there are no
guarantees that any claims and warrants anticipated in the Application would be implemented at
later stages in the approval process, The Application proposes "there will be a design review
team that will review and approve proposed plans ensuring that the intent of the CCRs is met. It
is premature to be preparing CCRs. These should implement final conditions imposed on the
approval, if any" (CHPUD, p. 35). The Application seems to consider the content of CC&Rs
regarding buildings and preservation of environment as merely "aspirations" (CHPUD, p. 30).
No long-term means are in place to protect the proposed preservation and conservation areas
once the applicant sells the individual lots. Such general promises at this stage in the
development process are not sufficient to ensure that proposed requirements will be met.
At the end of the buildout phase, when the individual lots with their intended protected areas are
sold for homesites, what's to prevent unscrupulous owners from illegally cutting some of these
protected trees in exchange for a small fine from the City if caught - just like the applicant did.
He clearcut trees on the lot in front of his house and paid a few thousand dollars for a better
view. On proposed individual CHPUD lots, there would not appear to be clear and enforceable
boundaries that would prevent encroachment between buildable and preserved areas of each lot
and among lots with staggered borders.
Appeal Issue #14: The Hearings Official failed to consider all the attributes of significant trees
in establishing compliance with EC 9.8320(4).
The Hearings Official bases her decision on compliance largely on the basis of tree preservation
along the eastern border of the property. This ignores:
1. Trees that provide a buffer between potentially incompatible land uses
2. Trees located along the perimeter of the lot(s) and within building setback areas
3. Trees and stands of trees located along ridgelines and within view corridors
4. Trees adjacent to public parks, open space, and streets
In his report (Response Document, Attachment H, p.2), the forester Mr. Mehrwein stated
"harvesting the designated trees would significantly increase the risk of wind damage to the
remaining trees. Trees not only on the CHPUD site, but also in adjacent private properties and
in Hendricks Park and the Ribbon Trail would be increasingly vulnerable to being blown down
or having tops broken. "
The same argument would apply to homes adjacent to the proposed PUD site near the ridgeline,
where cutting trees near lot lines endangers neighboring properties. The proposed PUD shares a
378 foot boundary with Hendricks Park, and the Applicant has failed to create a buffer between
the trees to be cut above 901' on the ridgeline and the trees in the Park.
Appeal Issue #15: The Hearings Official erred on pages 38 and 39 by stating that Applicant
satisfies section (4)(b) by agreeing to replace trees cut down in preservation areas for the
17
construction of the storm water system.
On pages 38 and 39 of the Capital Hill PUD Decision, the Hearings Official states: "To enhance
the mitigation, and further reduce impacts, staff has recommended that two replacement trees for
each tree removed. The applicant agrees to that recommendation. Therefore, this approval is
conditioned on the following changes to the tree preservation plan... " and "Subject to
compliance with the conditions identified above, the applicant's Tree Preservation Plan
complies with this criterion. "
The Hearings Official refers to the Applicant's plan to replant trees in the preservation areas
where the storm water system will be placed. However, the storm water system will require
maintenance over time-the trees will not be able to grow or will have to be removed when work
is done on the storm water system. It is therefore false to claim that replanted trees in the storm
water system area are in any way part of a tree preservation plan. It is also incorrect to claim that
an area that will be continuously disturbed for maintenance is in any way a "preservation area."
Appeal Issue #16: Restoration or Replacement: The Hearings Official asserted a claim
unsupported by evidence that prior impacts on trees from existing development have diminished,
thus implying that impacts from proposed CHPUD would have similar effect.
Discussing the subject property's inclusion in the city's acknowledged Goal 5 inventory, the
Hearings Official states (p. 39) that the acknowledged level of protection "requires that the
proposed PUD comply with applicable provisions of the Metro Plan and South Hills Study.
Compliance with those applicable provisions is addressed above. "
The Hearings Official states (p. 38): "Over time, as the designated and planned use of the
surrounding residential properties has occurred, the ridgeline has been slightly modified; as the
natural features, and particularly the tree canopy, has grown back in those residential areas, the
impacts have been mitigated. Based on the proposed development, including both the proposed
common and private preservation areas, and the applicant's proposed restoration plans, the
proposed development complies with the level of protection contemplated by the Metro Plan and
South Hills Study. "
The above statement is inaccurate and incorrect on a number of levels. What the Hearings
Official says could be true of a Planned Unit Development that sought to mitigate development
above 901' by complying with the Ridgeline Park purpose statement of the South Hills Study by
setting aside adequate land above 901'. It is not, however, true of this proposed Planned Unit
Development. As the Response Committee's forester, Mr. Mehrwein, pointed out, cutting down
a significant number of trees above 901' on. the ridgeline will likely cause other, surrounding
trees along the ridgeline to fall. Contrary to what the Hearings Official states, the South Hills
Study has prevented an intensive development above 901' throughout the Eugene area and that
has protected the ridgeline viewshed for the city. The proposed Capital Hill PUD is out of step
with a pattern of protecting viewshed ridgelines surrounding downtown Eugene. The current
proposed Capital Hill PUD blatantly fails to protect trees on the ridgeline above 901'.
The Hearings Official asserted a claim unsupported by evidence that prior impacts on trees from
18
existing development have diminished, thus implying that impacts from proposed CHPUD
would have similar effect. The Hearings Officer alleged that "the ridgeline has been slightly
modified," and that "Over time the impacts have been mitigated" (DHO, p. 39).
Assignments of Error, Criteria 5:
Appeal Issue #17: The Hearings Official erred in allowing the final 125 feet of Capital Drive to
remain unimproved, causing unsafe conditions.
In allowing the exception to EC 9.6820 Cut-de-Sacs and Turnarounds on page 43 of the
CHPUD decision, this created a situation where the final portion of Capital Drive remains
unimproved. The Hearings Official states (p. 42): "EC 9.6815(2)69 requires that barriers be
installed at the end of a required improved street when it terminates at an existing street that
is not improved to City standards. The applicant has proposed to end the full width
improvements of Capital Drive approximately 125 feet south of the property's northern edge.
This will leave the remaining 125 feet in its current, unimproved condition. The installation
of a street end barricade will be required north of any Capital Drive access points, south of
Hendricks Park, during the PEPI process, consistent with this standard. " By installing a
barrier at the end of the improved portion of Capital Drive, two existing homes beyond the
proposed barrier will lose their access to the road. This creates a patently unsafe and unjust
situation. These existing residents will no longer have emergency access and will no longer
be able to access their homes by car.
2. In addition, by allowing the section of Capital Drive to remain unimproved, the Hearings
Official erred in determining compliance with EC 9.8320(5)(b), concerning the provision of
safe and adequate transportation systems. The Hearings Official stated (p. 46): "As explained
in the Staff Report, the proposed PUD includes major street improvements to Capital Drive
adjacent to Lot 20 and northward to Lot 2...The improvements to Capital Drive, and the
addition of Cupola Drive, will facilitate the safe and adequate vehicular, pedestrian and
bicycle transit circulation within the development, and will allow drivers to navigate through
the development in a continuous manner... " Improvements to Capital Drive do extend
northward to Lot 2, but this does not include safe and adequate transportation to Lot 1, nor
does it allow for emergency access to Lot 1. As well, the PUD does not provide safe and
adequate pedestrian access to Lots 1 and 2, since there is no sidewalk on Capital Drive that
extends to Lots 1, 2, 18 and 19. Pedestrian access cannot be safe unless they are separated
from the traffic lane.
Appeal Issue #18:
EC 9.8320(5)(b): The Hearings Official erred in finding that the CHPUD will provide safe and
adequate transportation systems for pedestrians ('/4 mile) and bikes (2 miles).
19
The Hearings Official states (p. 47): "Public Works Referral comments (page 12) recommend the
proposed sidewalk along Capital Drive be widened to 5 -feet in width in order provide safe and
adequate connection to the established neighborhood along Capital Drive. The hearing official
agrees that the 5 -foot sidewalk is necessary in order to ensure safe and adequate access both
within and adjacent to the proposed PUD. "
The Hearings Official states the 5ft sidewalk is necessary in order to ensure safe and adequate
access, but ignores the fact that the entire portion of Capital from Cresta de Ruta to the 5-way (1/4
mile) has either no sidewalk, or a 2-3 foot wide, below code, sidewalk. If a 5-foot sidewalk is
necessary in order to ensure safe and adequate access, as the Hearings Official says, then it is
clear that the entire portion of Capital Drive that has either no sidewalk or a below code 2-3 foot
sidewalk does not have the necessary requirements to ensure safe and adequate access. When the
2 mile distance for bikes is included, many more safety issues arise. Disabled access is a major
safety issue as well.
Appeal Issue #19:
The Hearings Official erred in determining compliance with EC 9.6870 Street Width. The street
width at the sharp curve of Capital where lots 18 and 19 have a driveway access will not be
improved to 21 feet in width, and there is no proposed or existing sidewalk at this part of the
CHPUD development. The statement by the Hearings Official in bold below is thus factually
incorrect because this portion of Capital Drive, clearly part of the proposed development, is not
being improved to 21 feet, nor will it include a sidewalk.
(p. 44-45): "Pursuant to EC 9.6870, the right-of-way and paving widths of streets shall conform
to those widths designated on the adopted Street Right-of-Way map. When a street segment
right-of-way width is not designated on ,the adopted Street Right-of-Way map, the required street
width must be the minimum width shown for its type in Table 9.6870 Right-of-Way and Paving
Widths. A greater width may be required based on adopted plans and policies, adopted Design
Standards and Guidelines for Eugene Streets, Sidewalks, Bikeways and Accessways or other
factors which in the judgment of the Planning and Public Works Director necessitate a greater
street width.
Capital Drive, which is not identified on the adopted Street Classification Map or the adopted
Right-of-Way Map (Fig. 60-61 of the Arterial and Collector Street Plan (ACSP)), is a local
street. Capital Drive is characterized as a low-volume street. Under EC Table 9.6870, low
volume local streets are required to have between 20 and 28 feet of paving width along with 45
to 55 feet of right-of-way width. The existing 50 foot right-of-way exceeds the minimum
required right-of-way width of 45 feet for local streets and is also sufficient to construct the
required improvements in Capital Drive, which includes a 21 foot wide paved street with curbs
and gutters on both sides and a 5 -foot wide curbside sidewalk on the east side of the street.
The proposed paving and right-of-way widths comply with the widths identified in Table 9.6870.
The proposed street design will be more precisely reviewed for compliance with applicable
20
standards during the subsequent Privately-Engineered Public Improvement (PEPI) permit
process. Public Works referral comments page 5-6) confirm that no additional dedication or
special setbacks for street right-of-way are required. "
Assignments of Error, Criterion 6:
Appeal #20: EC 9.8320(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.
The Hearings Official made the following errors regarding compliance with this criterion:
1. Given that 80% of the proposed PUD area was NOT ASSESSED during the applicant's
investigation, including all of the steep eastern portions of the PUD, the applicant cannot
demonstrate that the PUD as currently designed will not be a risk to public health and
safety, or prevent soil erosion. The HO is relying on "future work" by the applicant to
address the question. However, EC 9.8320(6) requires that this determination be made at
the Tentative PUD application stage, not at the PEPI or building permit stages.
2. Despite the HO's assurances to the contrary, the applicant's report does not contain
i "numerous specific recommendations to minimize the potential for slope failure" and one
of their recommendations appears to actually increase the potential by allowing overly
.
steep fill slopes with inadequate drainage.-
3. The HO erred in, accepting Branch Engineering's explanation of the tree deformation on
the site as having resulted from "soil creep" only. She ignored evidence presented by
GeoScience of tree deformation inconsistent with "soil, creep" present on the site in the
areas with geomorphic evidence of landslides.
4. In finding that the deformation exhibited by the pavement of Floral Hill Drive is
anthropogenic, the HO erred by failing to consider the totality of facts in evidence and
simply accepting statements and "opinions" by the applicant's consultant.
5. The PUD design includes at least one feature (the "level spreader" stormwater discharge)
which will significantly increase the risk of off-site impact from slope movements and
soil erosion.
21
For discussion see Appendix A, Memorandum from Gunnar Schlieder, Ph.D., CEG, GeoScience
Inc. dated May 2, 2018.
Appeal Issue #21: The Hearings Official erred in finding that the evidence in the record
indicates the proposed PUD will not be an impediment to emergency response.
The Hearings Official states (p. 54): "In response to the anticipated measures to alleviate access
issues, the Fire Marshals' office provided updated comments on February 20, 2018 that
concludes that providing the full unobstructed width on Capital Drive from Spring Boulevard to
Cresta De Ruta Street with "No Parking" signs on both sides of the roadway will improve
emergency access and evacuation capabilities along the route to the proposed
development... Based on the Fire Marshal's updated comments, and with the addition of a loop
street that allows greater maneuverability of emergency vehicles, the evidence in the record
indicates the proposed PUD will not be an impediment to emergency response. "
There are two issues with this statement. First, the Fire Marshal says that emergency access will
be improved, not that it will be adequate. Removal of on-street parking will just change it from
very bad to bad, as the access route will remain below code for width and without a 5-foot
sidewalk. Two 10 foot wide fire trucks will not be able to pass by each other on this 18 foot wide
access route.
Second, there are many other concerns in the record about emergency access, expressed by the
Deputy Fire Marshal on 3/27/17, but the Hearings Official has focused only on this one
improved, but still not code compliant, issue. This one improvement addresses just one of the
many "concern realities" that were raised, and the remainder remain unaddressed. The Fire
Department's letter makes it clear that the proposed CHPUD would in fact be an impediment to
emergency response. The Hearings Official ignored and/or did not reasonably evaluate and
weigh the substantial evidence in the record that demonstrated that emergency response vehicles
do not have unimpeded access to the site.
Appeal Issue #22: The Hearings Official erred in not requiring fire sprinklers in the proposed
development.
In the CHPUD application the applicant said that they were going to include fire sprinklers in the
proposed housing to help suppress fires, especially important because there is no secondary
emergency access to the property. This presents a threat to public health. There is absolutely no
requirement anywhere to actually include the fire suppressing sprinklers in this proposed
development that abuts wild land and is accessed by long windy narrow roads with bad choke
points. The Fire Department highlighted these dangers, which can cause severe delays, as
"Concern Realities", Referral Comments 3/27/17.
22
Assignments of Error, Criteria 7:
Appeal Issue #23: The Hearings Official erred on Pages 54 and 55 of the Decision of the
Hearings Official dated April 20, 2018 regarding the Applicant's current compliance with EC
9.8320(7)(c). At issue is the applicant's (i.e., the "owners") current compliance with the code as
it relates to the future availability of sufficient domestic and fire water flows to the proposed
PUD, including a new off-site pump station and associated piping. The applicant would be
responsible for cost sharing of the new system.
The Applicant's representative, Ms. Carol Schirmer, stated in a 3/21/2018 letter addressed to the
Hearing Official that: "The applicant approached EWEB to work out a form of commitment
acceptable to the utility. That form of commitment, signed by the property owners, is Hearing
Exhibit R. EWEB informed the planning department on March 20 that the form of commitment
by the property owners was acceptable to EWEB. See Hearing Exhibit S. "
Exhibit R noted above is a document signed by the owners entitled "Owner Commitment to
Contribute to Cost of Water Infrastructure."
The Hearings Official states on Page 55 of her Decision that she "finds that the [Owners')
written statement is sufficient to demonstrate compliance with EC 9.88320(7)(c). " The Hearings
Official erred in this conclusion, based on the following:
1) It is pre-mature at this juncture to produce any form of a signed guaranty or
commitment regarding water infrastructure.
2) This written statement" is insufficient to replace the EWEB requirement, as noted on
Page 64 of the Decision, that "EWEB currently accepts cash payment, bond or
irrevocable letter of credit as financial guarantees. "
3) The Hearings Official erred in her acceptance of this written statement as the owners'
documentation for current compliance with criteria 9.8320(7)(c) in that she is also relying
on the owners' successful completion of a separate future responsibility under the same
criterion. See Condition of Approval Item 13 on Page 3 of the Decision which states
"Prior to final plat approval, the applicant shall provide documentation that EWEB has
received a financial guarantee, inform [o] cash payment, bond or an irrevocable letter
of credit, ensuring water will be provided to each lot in the plat. "
4) The written commitment states at the top of page 2 that
"the document's purpose is to state the owners' current written commitment to
pay their proportionate share of capital costs required to upgrade EWEB off-site
facilities, as needed to adequately serve the proposed development of this
property, in order to support a current finding by the Hearing Official that the
code standard in 9.8320 (7) ( c ) - is met. "
23
The Hearing Official also erred in completely ignoring Response Committee concerns about this
document, even though this document contains several flaws that render uncertain the
satisfaction of the obligation it purports to create. Therefore, the Hearings Official erred on Page
55 of her Decision when she indicated that the [owners'] written statement is sufficient to.
demonstrate compliance with EC 9.8320 (7) ( c These document's flaws include, but are not
limited to, the following:
a) The statement is not "irrevocable." The owners apparently can withdraw from this
obligation for any reason and without ramifications.
b) The statement is not secured by any other tangible asset. Typically, a document that
purports to create a large financial obligation, would be secured in some manner,
optimally by cash deposit or the subject property.
c) The document provides no recourse for the city or EWEB to counter any possible future
attempt by the owners to invalidate or circumvent their so-called "commitment" to fund
their share of the: cost.
d) The document does not specify any time frame or completion date by which the owners
must fulfill their obligations under the document.
e) The document has no parameters for on-going validity or survivorship. Future owners of
the subject property, including heirs, should be bound by the requirements that the
document purports to create.
f) The code requirement states that the form be "acceptable to the city manager." Even
though the city may, not possess a "stock" form that it can provide to the applicant, the
lack of a prescribed document does not eliminate the applicant's burden of obtaining city
manager approval for the form it has created and signed. There is no indication that the
city manager has reviewed or approved this form.
g) The EWEB employee who "accepted" the form is a Water Engineering Supervisor;
however, there is no indication that he is authorized to "bind" EWEB in legal matters.
He does not appear to hold a corporate title. There is no evidence supporting his
authority to "accept" the owners' commitment on behalf of EWEB.
h) The financial commitment that the owners are stating that they are undertaking is not
defined. Apparently, EWEB will determine that amount at a later date. How can the
owners commit to meeting an obligation about which not even the basic facts are known?
i) The document provides no methodology to determine the amount EWEB will charge the
owners, which is the amount they are currently indicating that they committing to pay to
satisfy EC 9.8329 (7) ( c The document contains no arbitration clause and no recourse
for either parry if the required amount is disputed by either party.
24
j) We have no indication (such as an "Authorization to Guaranty") that Mr. and Mrs. Dreyer
are authorized by Maestown, LLC to "bind" the limited liability company and to enter the
LLC into this "commitment." This type of authorization is common in financial
transactions involving a limited liability company.
k) We have no indication that Maestown, LLC is a valid limited liability company currently
in good standing in the state of Oregon and in compliance with all state requirements for
such an entity.
1) The signatures of the owners on the document could be that of anyone. The document is
not notarized.
Appeal Issue #24: The Hearings Official erred in the determination that adequate public
facilities and services are available to the site, in regard to the existing street system serving the
PUD. The errors are listed below.
1. The Hearings Official relied on statements in the Staff report that are without support in the
document cited. She states (p. 56): "The city traffic analysis concludes that there are adequate
public facilities and services are available to the site. Specifically, the city traffic analysis relies
and explains that the volumes and speed along Capital Drive and Spring Boulevard were within
expected standards for local streets. "
The city traffic analysis discussed roadway conditions on Capital Drive and Spring Boulevard,
and reviewed the applicant's traffic safety and street connectivity study, as revised 8/8/17.
Appendix C of that study shows that speed data was collected at two locations only (#1 on
Capital Drive north of Cresta de Ruta and #2 on Capital Drive east and uphill toward the site
from the existing intersection at Alta Vista Court). The first is immediately abutting the
proposed PUD, close to the terminus of Capital Drive, and the second is just beyond a hair-pin
turn. A tube counter placed two years earlier "on Capital Drive south and uphill toward the site
from the existing intersection at Spring Boulevard" collected traffic volume data only. As such,
the speed data is insufficient to support the statement that "the volumes and speed along Capital
Drive and Spring Boulevard were within expected standards for local streets. "
Regarding the review of the Applicant's traffic study by Mr. Saberian (on behalf of the Response
Committee), the Hearing Official states (p.59): "the review does not provide engineering
evidence that the street system is not functioning adequately. " The Hearings Official disregarded
the evidence presented by the Response Committee demonstrating the inadequacy of the current
roadway system available to the site, as follows:
• Engineering evidence provided by Scott Gillespie, PE (December 8, 2017, Attachment F
Staff Report): Describing both Capital Drive and Spring Boulevard, he states "The paving
width was designed to 18 feet from curb face to curb face."
25
• Eugene Public Works Maintenance Memorandum dated February 26, 2018 (Submitted as
Attachment V, Neighborhood Response Document): "Fire apparatus are often
approximately 10-feet in width from mirror to mirror."
• Referral Comments 4J School District, November 16 2017: 4J School District
"discontinued bus service to Capital, Madrona and Cresta De Ruta due to unsafe passing
and operating conditions for our school buses." Buses were described as 40 feet in length
and 10 feet in width, mirror-to-minor.
• Photographic evidence that two vehicles of that size cannot pass each other on an 18 foot
wide street (Neighborhood Response to PDT 17-1, pp. 168-169), despite the assertion by
Scott Gillespie, PE (December 8 2017, Attachment F Staff Report) that "From an
Engineering operations and safety perspective, there is no appreciable difference between
an 18 foot wide road and a 20 foot wide road.
2. The Hearings Official erred in finding that "it appears that, while the streets are narrow and
not constructed to current city standards, the street system does function adequately. Based on.
the above analysis, public facilities and services are either presently available, or can be
available, and can be extended to serve the proposed development, in compliance with EC
9.8320(7)." p. 59.
On page 58 the Hearings Official says, "However, they also note that through vigilance and
caution, they and their neighbors are able to navigate and drive safely through this
neighborhood. " The Hearings Official is basing her conclusion that the below standard street
system does function adequately on the notable vigilance and caution of the current neighbors.
This in no way shows that the system is adequate to serve the proposed development. It is a
situation that would be undermined by the addition of over 31-35 new homes and the increased
probability of less than vigilant and cautious drivers.
3. The Hearings Official improperly relied on demonstrably erroneous and unreliable evidence
by Scott Gillespie, Eugene Public Works. One of several examples is that she erred in accepting
his assertion that "From an Engineering operations and safety perspective, there is no appreciable
difference between an 18-foot-wide road and a 20-foot-wide road." This was accepted at face
value with no evidence to back it up. An 18ft wide road clearly does not provide as much room
for cars, pedestrians, and bikes as a 20ft wide road. Less room provides for a higher likelihood of
conflict. The Hearings Official explicitly or implicitly relied upon the false claim that Capital
Drive could function as a "queuing" street.
4. The Hearings Official erred in citing the evidence that on street parking on Capital Drive acts
as a traffic calming device. "The utilization of on street parking is sparse and the portions that
are being used support traffic calming in the area. " (p.58) The Hearings Official has already
accepted that the no parking on Capital (which is actually under appeal) is necessary for
emergency access, so the presence of parking cannot be cited as a traffic calming measure if it
will not exist.
5. The Hearings Official Erred in disregarding the many enforcement issues on Capital Drive
and surrounding streets. Regarding the Traffic Study provided by the Response Committee, the
Hearings Official states (p. 58): "However, that review primarily emphasizes how the current
26
street system fails to conform to city standards and notes many enforcement-related issues. "
These enforcement-related issues directly affect safety and emergency access and must be
considered in order to ensure safe and adequate access.
6. The Hearings Official ,failed to properly consider and/or weigh the. Eugene Fire Code
Standards for fire apparatus access roads as authoritative reference standards, even if not explicit
approval criteria.
Assignments of Error, Criterion 10
EC 9.8320(10)(a): EC 9.2000 through 9.3915 regarding lot dimensions and density requirements
for the subject zone.
Appeal Issue #25: The Hearings Official erred on Page 61 of her Decision wherein she addressed
the proposed PUD's compliance with Criterion 10 (a) and she stated, in reference to the R-1
zoning code requirement at EC 9.2750 Lot Coverage limiting single family detached lot
coverage to 50% "As the applicant acknowledges, for purpose of this calculation, lot coverage
includes only the non preservation areas of each lot. " The language is meant as a clarification
of the calculation after the Response Committee questioned this calculation at the 3/7/18 Public
Hearing and in its Response Document on Pages 130-131.
The Committee's concern was (and still is) that for lots with individual tax lot preservation areas,
if the lot coverage calculation is based on the lot's entire square footage (including individual tax
lot preservation areas), allowable lot coverage per code would provide for actual coverage on the
buildable portion of the lot that far exceeds the code's 50% maximum. In fact, if this flawed
methodology is used to determine allowable lot coverage for Lot 5 and Lots 8-19, the Response
Committee calculates that the actual average allowable lot coverage will be almost 90%.
Undoubtedly, it is imperative that clarification of this issue is irrefutable and cannot be
challenged in the future by individual lot owners seeking to build large homes.
Applicant's consultant also sought to clarify this calculation in her 3/21/18 letter to the Hearings
Official in which she stated on Page 3 under Miscellaneous "Where we discuss lot coverage for
purposes of calculation, we intended it to mean the non preservation area of the lots. "
However, the Hearings Official erred in that she did not include the requirement that lot coverage
only be calculated as a percentage of the "buildable" portion of lots (which is a departure from
EC 9.2750 Lot Coverage) as a Condition of Approval or as a required note on the final plans.
Herein, the Hearings Official is relying on a future act to satisfy a current condition of approval.
EC 9.8320 (10) (f) Public Access Required
(1) Except as otherwise provided in this land use code, no building or structure shall be erected
or altered except on a lot fronting or abutting on a public street or having access to a public street
27
over a private street or easement of record approved in accordance with provisions contained in
this land use code.
Appeal Issue #26: The Hearings Official erred on Page 69 of her Decision when she stated that
"Access to Lots 5-10 and 16-19 will be provided via 20 foot wide shared access easements. "
(Emphasis added.)
The Hearings Official's error is an incorrect statement regarding the width of the easement
providing access to Lots 5-10. The 11/27/17 Site Plan L 2.0 clearly indicates that the access
easement for Lots 5-10 is 28 feet wide with a 20 foot wide paving surface. (This identical
language, including failure to identify the width error, was found on Page 45 of the 2/28/18 Staff
Report.) The access easements for Lots 16 & 17 and for Lots 18 & 19, are noted on the 11/27/17
Site Plan L2.0 to be 20 feet wide with 12 foot wide paving surfaces. These two access easements
are narrower.
The Hearings Official erred on Page 69 when she failed to recognize the proposed access
easement across Lot 16 to reach Lot 17 should be designed with a wider easement and paving
width, in the event that one or both of Lot 16 and Lot 17 are improved with single family
attached residences. As, mentioned above, the access easement serving Lots 6 through 10 is
shown as on site Plan L 2.0 as 28 feet wide with a 20 foot paving width. Presumably this larger
width is called out on the site plan because the easement is serving 6 units rather than the 2 units
to be served by the access easement for Lots 18 and 19 (which is narrower at 20 foot wide
easement and 12 foot wide paving).
If Lot 16 and Lot 17 are developed with 3 single family attached units each, the access easement
will serve 6 units, exactly the number to be served by. the wider access easement serving Lots 5
through 10. None -of the access easements are flanked with sidewalks; however, they are slated
to provide two-way vehicular access as well as all pedestrian, bicycle and service truck access to
the units. A 12 foot wide paved access for 6 units is unsafe. The adequacy of the width of
access easements based,on the number of units to be served by such easement should have been
a condition of approval.'
The Hearings Official also erred on Page 69 when she stated on the same page (also in identical
language to that of the Staff Report on Page 45) that "As noted previously, one of the future
subdivision application requirements will include the review and approval of a joint access
easement and maintenance agreement that will be recorded concurrent with the final plat. "
Herein, the Hearings Official is relying on a future act to satisfy a current condition of approval.
EC 9.8320(10)(k) Re: Fences
The PUD will comply with ...all other applicable development standards for features explicitly
included in the application except where the applicant has shown that a proposed noncompliance
is consistent with the purposes set out in EC 9.8300 Purpose of Planned Unit Development.
28
Appeal Issue #27: The Hearings Official erred on Page 76 of her Decision because under EC
9.8320(10)(k) she did not address the issue of the prohibition of individual lot fencing within the
proposed PUD. The Applicant indicates, on Page 56 of the 8/22/17 Application, the code
requirements for interio' and front yard fencing height and setbacks. The Application then
indicates "None [i.e., nofencing] proposed at this time."
However, as the Response Committee pointed out on Pages 133 through 137 of its Response
Document, the Applicant failed to mention anywhere throughout its Application or post-Public
Hearing communications, except in a one line sentence on Page 26 of the 8/22/17 Application,
that "In addition, the CC&Rs for the project will prohibit the construction of fences between
individual lots."
However, this prohibitive statement by the Applicant on Page 26 of the 8/22/17 Application,
should be prohibit future lot owners from constructing fences between individual lots. The
Response Committee expressed at length its concerns on this issue (and the issue of the 6 foot
perimeter fence also not", mentioned in any narrative written communication by the Applicant) on
Pages 133 through 137 of its Response Document. (Note that the Response Committee also
raised the issue of the perimeter fencing at the 3/7/18 Public Hearing.)
The Hearings Official erred in that she did not address the prohibition of individual lot fencing
(which is a departure from EC 9.3820 Fences in future CC&Rs as a Condition of Approval or as
a required notation on the final plans.
The omission by the Hearings Official to neither include this requirement as a Condition of
Approval or as a required notation on the PUD's final plans is reliance on a future act to satisfy a
current condition.
Assignments of Appeal, Criterion 11
Appeal Issue #28: The Hearings Official erred in dismissing 9.8320 (11) in five lines by
referring to her previous discussions of Criterion (5), (6), and (7) and alleging that these
discussions "establish that the proposed PUD will have minimal off-site impacts" (DHO, p. 77).
The Hearings Official failed to evaluate the evidence in the record that contradicts her finding.
This cursory dismissal is a serious error in judgment and ignores our careful analysis of detailed
evidence of the off-site impacts on road, traffic, and emergency response conditions. There are a
number of crucial errors, inaccuracies, and omissions in the evidence and analysis presented in
both the application and the staff materials, as well as in the Hearings Official's discussions. See
above, our discussion atend of Criterion 7 summarizing evidence on the inadequacy of the
existing street system.
Because the Hearings Official assumes that any and all matters regarding Criterion 11 are
adequately considered and limited to discussion of previous criteria; we must strongly emphasize
that the range and extent of off-site impacts generated by this particular proposed development
must be fully considered. They apply to the mandatory approval standard of Criterion 11, which
29
is especially applicable to the particular conditions that would be caused by the proposed
CHPUD.
The Joint Committee maintains that direct, pertinent evidence and analysis are necessary and
must be evaluated under Criterion 11 to determine whether the Application satisfies the standard
that "The proposed development shall have minimal off-site impacts [emphasis added]. We
do not find that any of the testimony from the applicant, applicant's representatives, City staff, or
Hearings Official is sufficient to prove that the off-site impacts of the development would be
minimal. Thus Criterion' 11 cannot be met.
If the proposed CHPUD were approved, the two most serious and irreversible off-site impacts
that would result would render conditions inadequate for: (1) traffic and emergency response and
(2) environmental quality.
(1) Traffic and emergencyre_sponse. This proposed CHPUD would be located at an isolated site
on and around the top of a hill along the South Hills Ridgeline at over 900 feet in elevation. For
more than three quarters of a mile, there is only one primary travelway - from Fairmount
Boulevard to Spring Boulevard to Capital Drive - for the overwhelming majority of personal
vehicles and all large, heavy truck and emergency vehicle traffic to get in and out of the
proposed development site, as well as to access all the houses along the way served by these
roads. This traffic limitation applies to pedestrians, bicyclists, personal vehicles, and large
vehicles alike. It would only be exacerbated to greater levels of danger by the additional traffic if
the proposed CHPUD were developed.
With the addition of a minimum of 31 and up to a maximum of 35 proposed new dwellings,
there would be the permanent increase of traffic - ranging from 28% to 31 % for all kinds of
traffic on the only primary travelway now serving 112 current households adjacent to and along
this only route to,the development site. Thus, safety and emergency response would be
increasingly jeopardized for pedestrians, bicyclists, motor traffic, and emergency services that
must use the only primary travelway to get in and out of the neighborhood of 112 households, as
well as in and out of the new private road proposed to serve the development. Emergency
services would find their response time delayed, and they would probably be blocked in an
extreme disaster evacuation.
The extent of off-site impacts must be considered in the particular context and situation of the
development site. For this development, the off-site impacts go beyond an arbitrary or
conventional distance from the site. There are already impediments to the ability to navigate,
throughout the existing primary travelway and the even steeper, narrower neighborhood
roadways. Therefore, off site traffic impacts extend further down the hill from the proposed site,
at least to the Fairmount Boulevard/Spring Boulevard intersection.
At Fire Station #13, about one and one-quarter miles from the development site, the elevation is
about 450 feet. At the Fairmount Boulevard/Spring Boulevard intersection it is about 570 feet; at
Spring Boulevard/Capital Drive it is about 700 feet. Thus the gain to the development site is
about 430 feet for about one-half mile from the beginning of Spring Boulevard. Consequently, it
is not simply the distance to the site, but rather the elevation differential, added to the narrow
30
roadways, and the congestion, and the ten blind curves that must be experienced in order to be
understood.
Similarly, it is not simply the traffic counts (as the Hearings Official acknowledges, expert
opinions may differ), but rather the related issue is the congestion produced on the existing, old,
non-standard roadways,"which is mostly without sidewalks. There is congestion for all the
different users of the pri mary travelway: pedestrians, bicyclists, personal vehicles, service and
delivery trucks, and emergency responders. There are people walking dogs, or pushing baby
carriages; children walking to and from school; people walking on the wrong side of the road -
and becoming a hazard since they are not visible to drivers coming around blind curves.
Some Eugene Public Works staff dismiss evidence of impacts of roadway restrictions and
elevations from valley floor to the proposed site. Instead they rely on "queuing" traffic, or
passive traffic calming, or "self-regulating conditions," which Hearings Official accepts (DHO,
pp. 49-50). The Hearings Official quotes (apparently without irony) the statement of a City
engineer (Gillespie) who stated: "From an Engineering operations and safety perspective, there is
no difference between an 18-foot-wide road and a 20-foot-wide road" (DHO, p. 58). But
Hearings Official concludes: "the review does not provide engineering evidence that the street
system is not functioning adequately" (DHO, p. 59).
However, residents, and anyone who can subtract, should know the difference. Spring Boulevard
and Capital Drive are from 18 to 19 feet wide. Residents and visitors alike face the frequent
situation on Spring Boulevard and Capital Drive where two vehicles are approaching blind
curves from opposite directions. Additionally, there may be an adult or child, walking or biking.
It's a death-defying moment, especially if the vehicle going up hill attempts to pass that walker
or biker without knowing that the downhill vehicle, approaching out of view, is exceeding the 15
mph posted limit, or even at that limit. Or consider how, on an 18-foot roadway, a walker or
biker could easily be hit by extended 1 foot mirrors on a 10-foot-wide oversized vehicle which is
passing a five- or six-foot vehicle.
It is not just the numerical data, such as volume of traffic or number of peak hour trips, that is
important here; rather, it is the actual encounters of vehicle traffic with other users of the
roadway - motorized or not - where there are no sidewalks, where one lane may be blocked by
parked cars, delivery vehicles, or service vehicles. Service vehicles, especially landscapers and
construction workers, must continue to park along Spring Boulevard. and Capital Drive where
there is no space to pull off- regardless of whether the roads are posted for no parking - because
they have no alternative for conducting their business at those locations.
Crucially, the Hearings Official ignores discussion and evidence from Eugene Springfield Fire
that describe significant, dangerous conditions existing in the area and leading to the
development site. In a Response letter from the Fire Marshal's Office (March 27, 2017), Deputy
Fire Marshal Mark Dahl detailed a number of concerns, such as: "significant delays" including
"opposing traffic," "collisions," "construction vehicles related to residential housing," (Item 2, p.
2); inability to turn around and "need to back up long distances (greater than 150 ft)" (Item 4, p.
2). He concluded: "Given the severely restricted access to the area, in all likelihood the truck
company would not be able to physically drive to the scene" (p. 4) of an emergency above the
31
intersection of Spring Boulevard and Capital Drive, which is a choke-point of a five-way posted
stop all ways.
Also, the Hearings Official ignores a subsequent document regarding the limited and potentially
impossible conditions for emergency vehicles to navigate within the existing primary travelway
to the development site. A joint letter from Traffic Engineer Matt Rodrigues (Eugene Public
Works Maintenance) and AIC Fire Marshal Amy Linder (February 26, 2018) announced
issuance of Administrative Order 58-18-01 (February 23, 2018) to remove parking along Capital
Drive from Spring Boulevard to Crests De Ruta, effective April 30, 2018. Regardless of whether
this Order is carried out, this letter further attests to the significant and dangerous conditions
already existing on Capital Drive - and also Spring Boulevard, which has posted no parking for
its length up to Capital Drive.
"Currently, Eugene Springfield Fire has difficulty navigating Capital Drive when vehicles are
parked on the street due to the curvature of the street and sub-standard street width of 18-feet.
Fire apparatus are often approximately 10-feet in width from mirror to mirror. When a vehicle
is parked on that section of Capital Drive it requires the fire apparatus to slow to avoid
striking a parked vehicle and, in some cases, the fire apparatus may not be able to pass around
the parked vehicle. In addition, Eugene Springfield Fire has stated that removal of on-street .
parking would help to facilitate a large scale evacuation, such as might take place during a
wildfire event. Eugene Springfield Fire has identified Capital Drive between Spring
Boulevard and Cresta De Ruta Street as a primary escape route in case of a nearby wildfire"
(p• 1)•
The Hearings Official errs in not finding that evidence regarding emergency response is
sufficient to determine that the proposed CHPUD would cause off-site impacts to be greater than
"minimal." Criterion 11 is not satisfied and the Application should be denied.
2. Environmental quality. Development of the proposed CHPUD would permanent damage and
deplete the environmental quality of the wooded hillsides not just within the site but certainly off
site in the adjacent neighborhood areas and beyond in the city view-shed wherever visible to
anyone looking at the impacted areas. The proposed CHPUD would impact the ridgeline area of
the South Hills, Ribbon Trail, Hendricks Park, and the integral view-shed that is a defining
quality and heritage of Eugene's environment.
The degradation of the natural environment and the quality of life for existing residents in the
neighborhoods, as well as in the city at large, has been one of our primary concerns argued
throughout our review of the Application. Regarding claims of preservation and conservation,
the application does not present evidence that impacts on the environment and natural habitat
would be less than minimal if existing forested slopes were cleared for residential housing lots
and fencing were allowed between lots and at lot boundaries adjacent to the Ribbon Trail.
The Forester Mehrwein's Report details the impacts on the environment from harvesting the
trees proposed to be cut: a discernable void in the forest canopy, an increase in the likelihood of
slope failure, and a vulnerability for windthrow and damage for remaining trees adjacent to and
on the site. There is no feasible estimate of how many trees would be cut for initial site
32
development and then as individual lots were built out. It could range from 43% to 51% of more
than 926 trees identified as larger than eight inches diameter. Harvesting these trees as proposed
would jeopardize trees adjacent to the established Ribbon Trail, on neighboring property, and
within the boundaries of Hendricks Park, making them more vulnerable to windthrow and other
damage.
3. Stormwater Runoff. Off-site impacts from stormwater runoff has not been adequately
accounted for by applicant's plans to direct flows down slope toward the Ribbon Trail. They
would discharge in ways that would further affect drainage and increase soil instability on steep
slopes. A significant area of the proposed site lies within and adjacent to high and very high
landslide hazard zones.
The proposed Stormwater Plan and Drainage Study intends to collect flow from the top of the
east side of the development and redirect that flow to the bottom of the development site adjacent
to and uphill of the Ribbon Trail. However, Application fails to adequately demonstrate that the
Ribbon Trail will not be impacted by higher post-development runoff from the eastern side of the
top of the development, `including the proposed private street.
Assignments of Error,, Criterion 12
Appeal Issue #29: The Hearings Official erred in approving Criterion 9.8320 (12) by finding
that the proposed development "shall be reasonably compatible and harmonious with adjacent
and nearby land uses." The Hearings Official failed to evaluate the evidence in the record that
contradicts her finding and improperly applied limited-evidence of zoning to support her
findings.
The Hearings Official agrees that "the applicant correctly recognizes, the words `compatible' and
`harmonious' are not defined in the city's code" (DHO, p. 78). But this does not entail that the
claims of the Applicant 'or the Hearings Official are well reasoned and good judgments. The
Hearings Official states that the proposed development "will be compatible and harmonious"
because it is "a low-density residential development within a similar low density residential
neighborhood" (DHO, p. 78). However, the specific facts of the two areas are not the same.
There is no other similar, large-scale PUD existing in the immediate neighborhood or along the
eastern area of the Eugene ridgeline. This development is unique, unprecedented, and beyond the
scale of the existing residential neighborhood. The Hearings Official erroneously relies on
comparing the proposed CHPUD with existing residential use, but it is not accurate or
meaningful to compare a PUD as a whole with individual R-1 density homes. The implication of
such a comparison is that the CHPUD is reduced to a lot-by-lot development and, thus, should
not be designated as a PUD.
On the major issue raised for satisfying this Criterion 12, the Hearings Official describes the
proposed preservation areas as "providing a significant buffer with the existing forested area on
the Ribbon Trail property. This preserved area provides a visual screen of the development for
33
those who use the Ribbon Trail for recreation purposes and a significant wildlife habitat and
corridor, helping to ensure a more harmonious environment" (DHO, p. 78). However, the Joint
Committee Report has presented evidence that the buffering and screening are not sufficient to
provide "minimal off-site impacts" from the Ribbon Trail. For example, although no housing is
proposed, building heights of up to 47 feet could be allowed under Eugene Codes. Thus
buildings would be intrusively visible.
The proposed CHPUD would permanently change and deplete the environmental quality and
natural urban resource of the forested landscape within the development and certainly off site.
This is an impact at a greater scale than any one or a grouping of multiple existing R-1 housing
has done in the area. The Application requested "flexibility for the lot coverage, frontage, and
area criteria" in order to maximize the large number of lots proposed, otherwise, "many units and
valuable natural area would be lost" (CHPUD, p. 60). The resulting proximity to the Ribbon
Trail and Hendricks Park was rationalized by a variation of the we-did-the-best-we-could
argument: ,
"Even though the subject property line is fairly close to the Ribbon Trail, the applicant has
chosen to rely on the flexibility of the PUD process to arrange and design lots in such a way
that this important community resource is visually protected and buffered from as much
development as feasible" (CHPUD, p. 60).
Yet the Application makes excessive, unsupportable generalizations:
"inclusion of the conversation [sic "conservation"] areas within the individual lots preserves
natural areas and provides a multitude of opportunities to enhance habitat areas....
conservation areas will also provide wildlife corridors for species such as deer, birds, grey
squirrels, and more" (CHPUD, p. 60).
However, the application does not present convincing evidence of effectiveness -that visual
screening would be suf'cient and that habitat would be enhanced by extensively clearing
existing forested slopes and by allowing fencing between lots and at lot boundaries adjacent to
the Ribbon Trail. Moreover, there is no guarantee that the designated preservation and
conservation areas would be not be compromised as the individual lots are built out.
Serious and irreversible impacts would result from clearing the site and increasing the potential
for slope instability and landslide hazard. The environmental quality would be adversely
impacted from harvesting a majority of the trees, and the result would hardly be "harmonious
with adjacent and nearby land uses" which on the east and north boundaries are public park
property.
The proposed CHPUD would be intruding into one of the sensitive environmental border areas
of Eugene's defining urban greenway landscape and view-scape. We contend that the city's
iconic urban landscape resources should be inviolable.
However, the Hearings Official simply repeats the unsupported generalizations of the
Application and dismisses the testimony of the opponents as "somehow" vagueness.
34
"This preserved area provides a visual screen of the development for those who use the
Ribbon Trail for recreation purposes and a significant wildlife habitat and corridor, helping to
ensure a more harmonious environment....
"Neighbors also argue that the residential development is somehow incompatible or
inharmonious with the adjacent public park and trail. However, as is evident in the existing
neighborhood, residential uses are generally compatible and harmonious with natural,
preserved vegetated areas. When, as in this instance, the low-density residential use retains a
significant vegetative' buffer between the residences and adjacent public spaces, that
compatibility and harmony is enhanced" (DHO, 78). -
The Hearings Officer makes an erroneous decision to approve Criterion 12.
Appeal Issue #30: The Hearings Official postponed determining whether several approval
criteria had been met until a future process, and that process lacks public notice or a public
hearing. These are listed in order below.
1. Criterion 2
a. Page 30, Condition 1: The final PUD plans shall note that each single-family
structure within the PUD shall provide for a minimum of two off-street parking
spaces.
2. Criterion 3
a. Page 31: The PUD will provide adequate screening from surrounding properties
including, but not limited to, anticipated building locations, bulk and height: At
the time residential dwellings are proposed for any of the approved lots, they must
be evaluated for compliance with the R-1 zone development standards, and the
bulk and height must be consistent with those development standards. To the
extent the developer requests any deviations or modifications to those standards,
those requests would be subject to the city's review process. Thus, compliance
with this criterion does not rely on any specifications that may be included in
future CC&R's.
3. Criterion 4
a. Page 37, Tree Preservation, Condition 2: On the final plans, replace "Notes" #2
on sheet L3.0 with the following: Protective fencing for trees identified to be
preserved shall be installed under the direction of a certified arborist and
inspected and approved by the City prior to beginning any construction related
activities All protective tree fencing shall remain in place until completion of all
construction activities; any relocation or removal of the protective fencing shall
also occur under the direction of a certified arborist, with approval by the City.
b. Page 37, Tree Preservation, Condition 3: On the final plans, replace "Notes" #8
on sheet L3.0 with the following: In the event a preservation tree must be
removed, justification of the removal must be documented by a certified arborist.
Documentation must be provided to the City for review prior to tree removal
35
activity. Removal of a preservation tree will require the planting of 2 replacement
trees for every tree removed. Replacement trees shall be a native species, with a
minimum caliper of 1 1/2 inches for deciduous trees and a minimum height of 5
feet for coniferous trees. Any trees that must be replaced within private
preservation areas are the responsibility of that lot owner. Any trees that must be
replaced in Tracts A, B, C, and D will be the responsibility of the common owners
or homeowners association.
c. Page 37, Tree Preservation, Condition 4: On the final site plans, remove "Note"
#9 on sheet L3.0.
d. Page 38,``Tree Preservation, Condition 5: On the final plans, replace "Notes" #11
on sheet L3.0 with the following: Trees in the common areas of Tract A and
individual lot preservation areas that die naturally or are damaged naturally and
become potentially hazardous will require no replacement trees. The removal of
dead, diseased, or hazardous trees is allowed with prior approval by a certified
arborist and documentation of that approval (including the need for removal)
provided' to the City.
e. Page 38,'Tree Preservation, Condition 6: On the final plans, replace "Notes" #13
on sheet L3.0 with the following: Any trees to be removed in Tract A, as a result
of installation of the storm sewer system between and near Lots 13 and 14, shall
be replaced with two trees for every tree removed, after the City's acceptance of
the system. Replacement trees shall be a native species, with a minimum caliper
of 1 1/2 inches for deciduous trees and a minimum height of 5 feet for coniferous
trees and planted in the same general area-
f. Page 38, Tree Preservation, Condition 7: On the final plans for all lots that border
Tracts A; B, C, and D or contain a preservation area, a temporary 10-foot
construction setback area from all abutting preservation areas and Tracts A, B, C,
and D shall be shown. The following note shall be added to the plans: "For all lots
that border Tracts A, B, C, and D or contain a preservation area, a temporary 10-
foot construction area setback from all abutting preservation areas and Tracts A,
B, C, and D shall be enforced during home construction, and shall include
temporary construction fencing."
g. Page 38,: Tree Preservation, Condition 8: On the final plans, include a note that
states: "Within the individual preservation areas of Lot 5 and Lots 8 through 19;
and on Tracts A, B, C, and D, no above ground structure that requires a building
permit; no impacts to preserved trees; and no grading activity shall be allowed.
The only exception is within Tract A, the storm drainage facility and associated
grading and maintenance, as shown on the plans."
h. Page 40,, Street Trees, Condition 9: The final PUD plans shall note that street tree
removals must meet the permit and replacement value requirements of EC 6.305.
4. Criterion 5
a. Page 45, EC 9.6870 Street Width: The proposed paving and right-of-way widths
comply with the widths identified in Table 9.6870. The proposed street design
will be more precisely reviewed for compliance with applicable standards during
the subsequent Privately-Engineered Public Improvement (PEPI) permit process.
b. Page 45,', EC 9.6873 Slope Easements: Because the extent of slope easements will
not be known for certain until the PEPI permitting process, the exact requirement
36
for slope easements will be determined at the time of the subsequent subdivision
application and required to be shown on the final plat.
c. Page 45, EC 9.6875 Private Street Design Standards: Public Works referral
comments (page 6-7) confirm that the proposed private street conceptually
complies with the applicable standards. Under the private street typical section on
the applicant's site plans (Sheet C4 Private Roadway Plan & Profile) Cupola
Drive will consist of 21-foot paving, curbs on both sides of the street, and a 3.5-
foot-wide sidewalk on the westerly side of the street in a 25-foot wide right-of-
way (i.e. joint access easement), At the time of the subsequent subdivision
review, and prior to final plat approval, the private street must be formally created
by a separate document (i.e., Private Joint Use Access and Utility Easement and
Maintenance Agreement (JAM), or similar document). As the Staff Report
summarizes, the JAM will include a description defining the area of the private
street and will also identify permitted improvements, construction expectations,
rights of usage and maintenance responsibilities for the facilities in the private
street, asill well as responsibilities for the public sidewalk adjacent to the private
street. The JAM will be recorded concurrent with and cross-referenced on the
final plat. At the time of the subdivision review, provisions ensuring emergency
access over the private street must also be addressed. These may be included in
the JA.ML or alternatively may be dedicated as a Public Emergency Access
Easement on a standard City form. The access connection to the private street
must be constructed as a standard driveway apron. The structural design and
construction inspection for the private street shall remain the developer's
responsibility. Certification by a licensed engineer that a structural design meeting
the applicable public standards has been completed, will be required at the time of
the site development permit for the private street.
5. Criterion 6
a. Page 51:, Slope Failure: The Hearings Official stated "By its terms, the applicant's
geotechnical report is a preliminary investigation and also includes numerous
specific recommendations to minimize any potential for slope failure." Ronald
Derrick 3/20/18: "I feel it should be stated that the report was intended to be a
preliminary investigation for planning purposes with a concentration on the
proposed roadway layout; as stated in Sections 4.0 and 5.1 of the report additional
site evaluation at the time of more extensive design work and possible
construction may be required."
b. Page 53, Condition 10: A geotechnical analysis from a certified engineer, with
specific recommendations for design and construction standards, shall be
provided with any applications for Privately Engineered Public Improvement
(PEPI) permits, as well as building permits and site development permits for the
initial construction of infrastructure, and residences on individual lots. The
development proposed with each permit shall adhere to the recommended
standards for design and construction as contained in the related geotechnical
analysis.
6. Criterion 10
a. Page 61, Condition 11: The following note shall be included on the final plans:
For lots 16 and 17, each lot shall have the option of constructing up to three
37
attached single-family structures. If only one single-family structure is proposed
on either'of those lots, that lot shall have a maximum lot coverage of 50% of the
buildable portion of the lot. If two or three single-family structures are proposed,
that lot shall have a maximum lot coverage of 65% of the buildable portion of the
lot. The buildable portion of the lot shall be the area identified as outside any
preservation area and shall not exceed 13,500 square feet, regardless of how many
dwellings are developed on the lots.
b. Page 63, 'Condition 12: The final site plan shall be revised to show a buildable
area on Lots 5, 16 and 22 not to exceed 13,500 square feet.
c. Page 63, Improvements-Specifications : EC 9.6506 requires all public
improvements to be designed and constructed in accordance with adopted plans
and policies, the procedures specified in EC Chapter 7, and standards and
specifications adopted pursuant to EC Chapter 7. Additionally, all developments
are required to be served by and implement infrastructure improvements including
water, sewage, streets, street trees, street lights, sidewalks, accessways, and
stormwater drainage. The applicant proposes all public improvements to be
privately!, engineered and constructed. To ensure compliance with EC 9.6505, an
Engineering and Construction agreement is required for the private construction
of public improvements, which must be submitted when the construction plans are
submitted for review and approval. The configuration and size of the public
improvements will be subject to approval by the City Engineer upon review of the
design and supporting analysis prepared by the applicant's engineer. If the
improvements are not permitted prior to plat approval, a bond for the construction
of public; improvements will be required prior to final plat approval. These
requirements will be further addressed through the subsequent subdivision
application process.
d. Page 64,' Water Supply, Condition 13: Prior to final plat approval, the applicant
shall provide documentation that EWEB has received a financial guarantee,
ensuringj,water will be provided to each lot in the plat. It is noted that EWEB
currently" accepts cash payment, bond, or an irrevocable letter of credit as
financiat guarantees.
e. Page 65,'Sewage:
i. Condition 14: Prior to final PUD approval, the applicant shall revise Sheet
C 1- Wastewater and Water Plan to include 14-foot public utility or public
wastewater easements, centered on the public: wastewater mainlines, for
all wastewater mainlines proposed on private property. In the event that a
public mainline is proposed for location within 7 feet from the edge of a
public right-of-way, a public utility or wastewater easement shall be
dedicated on the adjacent private property at the width necessary to. ensure
14 feet of operational and maintenance access to the wastewater mainline
(7 feet on each side), when combined with the public right-of-way within
that 14 feet.
ii. Condition 15: Prior to final PUD approval, the applicant shall revise Sheet
C1- Wastewater and Water Plan to include wastewater services for Lots
18 -19 that do not include private service lines within the public right-of-
38
way. Private service lines may be relocated on private property, or public
gravity service lines may be placed in the right of way.
£ Page 66, Sidewalks, Condition 16: Prior to final PUD approval, the applicant shall
revise the PUD plans to include 5-foot sidewalks along the east side of Capital
Drive.
g. Page 73, Stormwater Flood Control: Staff confirms that the proposed detention
system demonstrates conceptual compliance with this standard and EC
9.6791(3)(b)(2), subject to a more detailed review for compliance with applicable
standards during subsequent permit reviews.
h. Page 73, `Stormwater Quality:
i. Condition 17: The final plans shall be modified so that the stormwater
runoff on the north and south ends of the additional Capital Drive road
width will be treated through either filtration or mechanical treatment
methods in compliance with the Public Improvement Design Standards
manual.
ii. Condition 18: The final plans shall be modified so that the stormwater
runoff on the north and south ends of the proposed private street will be
treated through a filtration facility in compliance with the Stormwater
Management Manual.
iii. Individual Lots: The applicant has stated that individual lots will address
flow control and water quality standards when applying for building
permits on a case by case basis. The applicant also suggests that possible
water quality mechanisms for the lots include: mechanical treatment, lined
planters, rain gardens, sand filters, or swales. The water quality standards
for the individual lots will be addressed on a case by case basis at the time
that each lot applies for a building permit.
i. Page 75,;Stormwater Flow Control (Headwaters): Individual Lots The applicant
has stated that individual lots will address flow control and water quality
standards when applying for building permits on a case by case basis. The flow
control standards for the individual lots will be addressed on a case by case basis
at the time that each lot applies for a building permit. Based on these findings, this
standard Js met and will be further reviewed at the time of development.
j. Page 76,,Stormwater Operation and Maintenance:
i. As required by EC 9.6797(3)(d), applications: proposing City operation
and maintenance of all or part of the stormwater facility must include an
Operations and Maintenance Agreement in accordance with the facility
agreements adopted as part of the Stormwater Management Manual. An
agreement for the public stormwater treatment manhole will be required as
part of the PEPI permit process and prior to final subdivision approval. As
depicted on Sheet C2 - Stormwater Plan, the proposed storm drainage
system will include a variety of public and private systems. Conditions
related to Maintenance of the individual systems will be imposed at the
time of the tentative subdivision review. Based on these findings and
future permit requirements, this standard will be met.
ii. Condition 19: Prior to final PUD approval, all requirements of EC 9.2750
Residential Zone Development Standards, including Table 9.2750 and EC
39
9.2751 Special Development Standards for Table 9.750, shall be met
regarding the existing structure located on Lots 33 and 34.
k. Condition 20: The Written Owner Commitment to Fund Water Infrastructure
executed by the applicant shall be re-executed to clarify that the Commitment
applies to the entire subject property, including Tax Lot 201.
Appeal IssiRf #31: The Hearings Official stated (I)HO p. 4): "The city deemed the application
complete on August 29, 2017. " This is an error because the applicant forced completion at that
date, while there were issues remaining that Eugene Planning considered unsatisfied
40
Appeal Statement to the Eugene Planning Commission of the Hearings Official
Decision dated April 20, 2018, regarding the Capital Hill Tentative PUD
application, File PDT 17-1.
Appendix A
May 2, 2018
Planning Commission
City of Eugene
c/o Nick Gioello
Senior Planner
via email: nick.r.gioellopci.eugene.or.us
RE: APPEAL OF HO DECISION, PDT 17-01, CAPITAL HILL PUD
Dear Members of the Planning Commission:
I am writing this memorandum in support of the appeal of the Hearings Official's decision to
conditionally approve the Capital Hill PUD (PDT 17-01). The Hearings Official's decision is fraught
with several errors regarding the geotechnical portions of the PUD application. The code sections
that apply to these errors are:
EC 9.8320 (2) South Hills Study
EC 9.8320 (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.
In addition, although staff proposes that the site is part of the City's Acknowledged Goal 5 Inventory,
the lack of the site on maps depicting the City's Goal 5 areas indicates that this may not be correct,
the adoption of the 1978 Scenic Sites Working Paper notwithstanding. There is no indication that
the City undertook any of the requirements from LCDC to address how development of the sites
included in the "Working Paper" could occur while at the same time preserving their natural scenic
values. In this context it appears that the provisions of EC 9.6710 may yet be applicable. Otherwise,
there is no guidance on how to implement EC 9.8320 (6).
It should not be necessary to remind all involved that in the case of a land use application, the burden
of proof to show that the application meets applicable code sections is on the applicant. It is
apparent from the wording of the HO's Decision that this standard was turned upside down, as she
places the burden of proof on the opposition, accepting the applicant's statements without
questioning. The pertinent portions of the decision will be presented in the following section, with
seemingly erroneous statements highlighted in red and addressed in the following paragraphs.
Eugene Planning Commission
May 2, 2018
Page 2
LEC 9.8320 (2) PUD consistent with applicable adopted refinement plan (South Hills Study)
The HO's decision states on page 21 (emphasis added in red):
For purposes of compliance with the South Hills Study, the applicant has recognized the existence
of conditions #1 and #S listed above and, accordingly, has provided an in-depth, detailed analysis
that includes an "adequate review of both on-site and off-site impact" of the proposed PUD as
required by the South Hills Study. While critical of the applicant's methods and analysis, Dr.
Gunnar [sic] does not dispute the scope of the study or provide evidence that it does not adequately
consider both on-and off-site impacts.
La. "In-depth, detailed analysis"
The applicant's geotechnical study does not, as the HO's decision states, rise to the level of an "in-
depth, detailed analysis", a fact that was readily admitted by the applicant's geotechnical engineer:
"I feel it should be stated that the report was intended to be a preliminary investigation for
planning purposes with a concentration on the proposed road layout..."'
A "preliminary investigation with concentration on the proposed road layout" is afar cry from an
in-depth, detailed analysis of the entire parcel for determination of the suitability of the property for
the proposed use and an assessment of potential on- and off-site impacts. The applicant's more
detailed investigation was conducted over less than 20% of the total area of the PUD and completely
ignored significant on- and off-site indications of slope instability, including the landslide scarps
mapped by their own engineering geologist. It does not constitute an "adequate review of both
on-site and off-site impacts", as required by the South Hills study.
Lb. "Dr. Schlieder does not dispute the scope of the study or provide evidence..."
The fact that the HO states that GeoScience testimony "does not dispute the scope of the study or
provides evidence that it does not adequately consider both on-and off site impacts" demonstrates
that the HO failed to read or comprehend the materials submitted by GeoScience at the hearing and
during the open record period. Had Ms. Gustafson-Lucker read the GeoScience report, on page 4
she would have seen, in bold-face, underlined, capital letters the heading:
"INADEQUATE AND BIASED ASSESSMENT AREA "Z
'Branch Engineering letter dated March 20, 2018, second paragraph)
2GeoScience Technical Review, GeotechnicaUGeologic Assessment and Addendum Capital Hill PUD,
March 7, p. 4
Eugene Planning Commission
May 2, 2018
Page 3
It is difficult to conceive how this heading could not indicate our opinion that the scope of the
applicant's assessment is in dispute. On the following page, the GeoScience report states:
" All test pits were located in the more gently sloping area at the top of the ridge. None of
them were excavated on the steeper slopes or in the immediate vicinity of the landslide
mapped by the applicant's Engineering Geologist. The easternmost test pit (TP-5) was
located on Lot 13 directly in the area between the two apparent slope movements affecting
the PUD. Even TP-8, which easily could have been placed at the mapped scarp on Lot 16,
was placed around 100 feet from there at the far (northern) boundary of Lot 15. No test pits
at all were installed on the southernmost two lots despite significant geomorphic evidence
of slope movement being present.
No test pits at all were installed in the area later slated for installation of the storm-water
discharge for much of the eastern half of the PUD.
The 10 test pits describe an area that is on the order of 2.7 acres, which represents around
20% of the entire PUD's area. Had these test pits all been located in the much steeper
eastern portion of the site, they might have provided valuable information to address EC
9.6710 and EC 9.8320. However, as it is, the test pits were installed in the most gently
sloping portion of the PUD and provide no information whatever regarding the issue of
stability of the east-facing slope.
This is clearly insufficient to satisfy both EC 9.6710 and EC 9.8320."3
It is difficult to understand how these statements by Dr. Schlieder fail to "dispute the scope of the
study or provide evidence that it does not adequately address on- and off-site impacts", or how this
could be more clearly and plainly stated. How does "Inadequate... Area" not dispute the scope of the
applicant's study? How does the description of the lack of test pits in key areas of the proposed PUD
not constitute evidence of a lack of adequacy?
In summary, Ms. Gustafson-Lucker's findings regarding the consistency of the application
with EC 9.8320(2) are based on two errors:
1. She failed to note that, by their own admission, the investigation conducted by Branch
Engineering was "a preliminary study" rather than and "in-depth, detailed analysis.
2. She failed to consider evidence that Branch Engineering's areally limited work cannot
"adequately consider both on-site and off-site impacts" as required by the SITS.
3GeoScience Technical Review, Geotechnical/Geologic Assessment and Addendum Capital Hill PUD,
March 7, p. 5, V paragraph
Eugene Planning Commission
May 2, 2018
Page 4
2.EC 9.8320(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.
Finding:
Slope Failure: The applicant's evaluation of risk due to `slope failure' is included in the applicant's
geotechnical investigation. That investigation concludes that the proposed development is feasible
from a geologic and geotechnical perspective, and that the proposed development will not adversely
impact the proposed site or adjacent properties. As it relates specifically to slope failure, the
applicant's investigation states: No indications of significant active or recent slope instability (such
as tension cracks, sunken grades, springs, bare soil head scarps or incised erosional channels) were
observed during reconnaissance. Soil creep indicated by fir trees with curved trunks is common, and
quite extreme in places. Slopes below the proposed loop road are slightly hummocky due in part to
logging activities, but there were no indications of recent or extensive slope failures observed. The
Ribbon Trail is buttressed by low wooden cribbing in places, but no culverts or indications of high
runoff were observed. The steeper slopes are generally vegetated with middle-age to relatively
mature trees up to 3 feet or more in diameter and in our opinion appear to be relatively stable. Ferns
are common on the steeper slopes, but other wetland type species are not.
Branch Engineering Geotechnical Investigation, February 6, 2017.
By its terms, the applicant's geotechnical report is a preliminary investigation and also includes
numerous specific recommendations to minimize any potential for slope failure.
As noted above, the Response Committee presented its own Geotechnical assessment, which
disputes nearly every finding of the applicant's report. As it relates to slope stability, the
GeoSciences analysis relies on Dr. Schlieder's interpretation of LIDAR data and extensive
discussion to suggest that the subject property may be geologically unstable. Following his initial
investigation, Dr. Schlieder provided an addendum to support his interpretation, based on the
presence of `lobes' in the pavement of Floral Hill Drive, located "at or near the toe of the eastfacing
slope below the proposed PUD." (Addendum to Geotechnical Review of Capital Hill PUD, March
21, 2018.)
The Response Committee's forester, James Mehrwein, also disagrees with the applicant's analysis
regarding the potential for slope failure. He concludes that "there is current evidence in the project
area of slope instability. After viewing the site and reviewing published studies regarding tree
removal and slope instability, it is my opinion that the proposed plan to harvest the trees designated
for removal would increase the likelihood of slope failure in the future." He further explains that type
of slope instability he observed would be considered "soil creep." The applicant's geotechnical
engineer responded to Mr. Mehrwein's assertion that the property may be subject to soil creep as
follows:
Eugene Planning Commission
May 2, 2018
Page 5
"Soil creep is the downhill movement of near surface soil (usually the upper 2- to 3-feet) due to
gravity, freeze/thaw, and shrink/swell effects. The slow creep may cause a pistolbutting of tree trunks
during their early growth phase until substantial root mass and trunk strength is developed. Creep
is common on most hillsides and does not indicate gross landslide movement. Creep movement is
generally mitigated by modem foundation systems and control of soil moisture and temperature
under and around the residence to where the slow movement is unnoticeable over the typical lifespan
of a residence."
(Branch Engineering Geotechnical/Geological Investigation Rebuttal, March 20, 2018.)
The applicant's geotechnical engineer responded to the GeoSciences assessment by reiterating the
finding in the applicant's analysis that "[t]here are areas of gross land instability on the east side and
those were field mapped to the best of our ability for the planning level report. Mr. Schlieder's
interpretation of the LIDAR is simply that, an interpretation with no ground reconnaissance of the
site. The supposed landslide features that appear to encroach onto the northeast portion of the site
are just as likely to be erosional in nature if they exist at all." To respond to Dr. Schlieder's analysis
related to Floral Hill Drive, the applicant's engineer provides a detailed factual analysis to support
its conclusion that there is no indication of landslide movement in that area.
Neither the GeoSciences assessment nor the forester's assessment consider or respond to the
numerous, specific recommendations in the applicant's geotechnical investigation to minimize the
potential for slope failure.
2.a. Applicant's initial report and recommendations.
This portion of the code requires the applicant to present evidence that the proposed development
will not be a risk to public health and safety. The proposed PUD is located at the top of and in the
upper parts of a ridge in Eugene's South Hills, with residential development already present on three
sides below the proposed PUD. This means that inappropriate decisions made during development
within the PUD property have a disproportionate potential to affect nearby, already developed
properties.
In this context it must be considered that there are essentially no locations in the world for which a
case can be made that they are eminently "undevelopable" due to some geologic constraint. In every
case, it is theoretically possible to develop an engineering solution which would allow development
of the site without an increased risk to public health and safety. However, such development has
three requirements:
1. A thorough understanding of the geologic conditions at the site;
2. Development of appropriately engineered mitigation measures; and
3. Willingness to implement those mitigation measures at whatever cost.
Eugene Planning Commission
May 2, 2018
Page 6
In this case, the main arguments raised by GeoScience were the following:
1. There is ample evidence, both in mapping by DOGAMI and in a geomorphic review by
GeoScience of the immediate vicinity using LiDAR hillshade maps, that slope movements
are present, which affect both the PUD property itself, and the properties located at the
eastern base of the ridge, in the vicinity of Floral Hill Drive!
2. The applicant's engineering geologist indicated the presence of two landslide scarps on
the PUD property itself, in the vicinity of (then) Lot 16.5
3. The applicant's geotechnical consultants (Branch Engineering) conducted subsurface
exploration on the 20% of the PUD property.' The investigation was deemed preliminary.'
4. The subsurface investigation was conducted only in the areas with the least likelihood of
producing evidence of previous slope movements. Areas previously identified as having
evidence of slides were not assessed as part of the test pit program.'
5. Even this limited "preliminary" investigation was conducted in a shoddy manner, using
non-standard engineering methods, and drawing wrong conclusions regarding even the most
basic geologic data at the site (bedrock type).'
6. Given the preliminary nature of the geotechnical investigation conducted by the applicant,
both the PUD's design and the boiler-plate recommendations contained in the report (see also
Item 2.b., below) are based on too little information to permit the conclusion that the
development does not pose a risk to public health and safety.10
4GeoScience Technical Review, Geotechnical/Geologic Assessment and Addendum Capital Hill PUD,
March 7, pp. 2&3 and associated Figures.
5Branch Engineering Geotechnical/Geologic Investigation Capital Hill PUD, 2/6/17, pp 6, 7, and Fig. 1
'Branch Engineering Geotechnical/Geologic Investigation Capital Hill PUD, 2/6/17, p 5, Fig. 1, and logs.
'Branch Engineering Rebuttal, 3/20/18 p.1, second paragraph.
GGeoScience Technical Review, Geotechnical/Geologic Assessment and Addendum Capital Hill PUD,
March 7, p. 4
9GeoScience Technical Review, Geotechnical/Geologic Assessment and Addendum Capital Hill PUD,
March 7,pp5&6.
10GeoScience Technical Review, Geotechnical/Geologic Assessment and Addendum Capital Hill PUD,
March 7, p. 8
Eugene Planning Commission
May 2, 2018
Page 7
7. Stormwater from approximately half of the PUD property will be discharged to two "level
spreaders" located on a 50% slope near the center of the east side of the PUD, approximately
100 feet from the Ribbon Trail. The design discharge for this system is the equivalent of 29
garden hoses running at full capacity. This will nearly inevitably result in soil erosion in the
vicinity of the Ribbon Trail. It may also result in increased pore pressures in the slide deposit
mapped by DOGAMI and GeoScience downslope from there." The applicant's geotechnical
engineer agrees that this is "not the best idea in my opinion"."
In their findings, both City staff and the HO relied entirely on statements by the applicant's
geotechnical consultant regarding the suitability of the site, without ever checking whether the work
and evidence presented actually supports these statements. The main reason the work conducted to
date fails to do so is the fact that the verification conducted via subsurface exploration is limited to
the area least likely to "unearth" evidence of more substantial issues than 2.5 feet of slide debris.
The applicant admits to having "mapped to the best of their ability" "areas of gross land instability
on the east side", but neither the actual extent and configuration of these features, nor their import
for the design of the PUD are discussed.
Given that 80% of the proposed PUD area was NOT ASSESSED during the applicant's
investigation, including all of the steep eastern portions of the PUD, the applicant cannot
demonstrate that the PUD as currently designed will not be a risk to public health and safety,
or prevent soil erosion. The HO is relying on "future work" by the applicant to address the
question. However, EC 9.8320(6) requires that this determination be made at the Tentative
PUD application stage, not at the PEPI or building permit stages.
Rather than requiring the applicant to provide further evidence of the innocuousness of the proposal,
the HO would rather ask for evidence from the opposition that the proposal does not adequately
address the issue. Where presented (such as the percentage of area assessed, the errors made, the
inappropriate stormwater design), the HO dismisses such evidence (e.g. remote sensing mapping of
geomorphic features, verified by lateral offsets and distress in the pavement of Floral Hill Drive),
or ignores it (the level spreader design).
11GeoScience Technical Review, Geotechnical/Geologic Assessment and Addendum Capital Hill PUD,
March 7, pp 8&9.
12 Branch Engineering Rebuttal, 3/20/18 p.2, 4th paragraph.
Eugene Planning Commission
May 2, 2018
Page 8
2.b. "Numerous, specific recommendations to minimize the potential for slope failure"
Branch Engineering's geotechnical investigation report contains recommendations on pages 8, 9, 10,
and 11. The recommendations that come closest to addressing some portion of the known landslide
risk are:
"Prior to construction of roadways, driveways, or residential foundations within the area
delineated on Figure 1 as "Area of recommended exclusion for proposed construction of
public or private streets and zone of special consideration for design and construction of
residential foundations" specific plans should be reviewed by a qualified professional to
ensure that the proposed work is feasible given the topographic constraints of the site""
"We anticipate that as structures are built on the lots within or adjacent to the area delineated
as the "Area of recommended exclusion for proposed construction of public or private streets
and zone of special consideration for design and construction of residential foundations" as
shown on Figure-1 that hillside foundation systems such as piers or pilings will be required.
Specific foundation plans within this are should be reviewed on a case by case basis by
qualified professionals prior to design and constructioni14
"...Fill slopes constructed of compacted earth shall not exceed a steepness of 1.5:1 (H:V).
If steeper slopes are required, we recommend that structures such as retaining walls are
considered. Cut slopes shall not exceed 1.5: 1(H:V) in steepness for excavation into the clay
and weathered sandstone material. If tough sandstone is encountered in cuts requiring rock
hammers for removal the geotechnical engineer may visit the site and approve steeper cuts
to be constructed based on subsurface conditions. Surface water shall be directed away from
the top of slopes and slope faces protected from erosion."15
Other recommendations on the 3.5 pages devoted to recommendations have little or no bearing on
slope stability. Similarly, the "Geotechnical Specifications, General Earthwork" in Appendix B of
the Branch document contain no recommendations with any bearing on slope stability.
Of the three recommendations that peripherally address the slope stability of the site, the first and
second are essentially identical. Please note that the recommendation is to "review" the plans (to
ensure that the work is feasible due to topography). No direct mention of slope stability is made.
13 Branch Engineering Geotechnical/Geologic Investigation Capital Hill PUD, 2/6/17, p 8, 3rd paragraph
14 Branch Engineering Geotechnical/Geologic Investigation Capital Hill PUD, 2/6/17, p 9, 3rd paragraph
15 Branch Engineering Geotechnical/Geologic Investigation Capital Hill PUD, 2/6/17, p 10, 2nd paragraph
Eugene Planning Commission
May 2, 2018
Page 9
The last recommendation, regarding fill- and cut-slopes, is most problematic. - Rather than decrease
the risk of slope failure; the recommendation for installing fill slopes at angles up to 1.5H : 1V is
likely to increase the risk of slope failure. In general, installing fill slopes at angles steeper than 2H
: IV is reserved for fills constructed of material with high angle of internal friction such as rock. In
this case, it is being made for fills constructed of "compacted earth". Moreover, the fill slope typical
drawing contains provisions for a sub-drain only on the lowermost key-way. On this slope, underlain
in part by rock, this may allow buildup of excess pore pressure higher in the fill section, resulting
in reduced effective stress at the base of the fill and an increased potential for failure of the
embankment.
As a result, the applicant's report does not contain "numerous specific recommendations to
mize the potential for slope failure" and one of their recommendations appears to actually
increase the potential by allowing overly steep fill slopes with inadequate drainage. It is
difficult to determine where the HO received the impression that the issue was addressed in the
application materials.
2.c. "Soil Creep"
Branch Engineering ascribes the tree deformation noted on the steep eastern slopes of the site
entirely to "soil creep"." 6 The HO twice seizes upon this statement in her findings. However,
whereas "soil creep" is clearly occurring on the steeper slopes of the PUD property (as acknowledged
by GeoScience in our March 7, 2018 report), the tree deformation found in several portions of
the site is not consistent with having been caused by soil creep alone. As discussed by
GeoScience", deformation by soil creep always tilts the base of the trunk in a downslope direction,
due to the direction and mechanics of the soil movement.
However, on this site, and especially in the areas where there are geomorphic indications of
sliding failure, the deformation of the tree trunks is haphazard, with many tree trunk bent in
different directions at different levels, in some cases in an upslope direction (see also
GeoScience site photos"). This is consistent with back-rotation of the tree during rotational
sliding movement and cannot have been caused by soil creep. The HO erred in accepting
Branch Engineering's explanation of the tree deformation on the site.
16 Branch Engineering Rebuttal, 3/20/18 p.2, last paragraph.
17GeoScience Technical Review, Geotechnical/Geologic Assessment and Addendum Capital Hill PUD,
March 7, p 4, 2' paragraph and following.
18GeoScience Technical Review, Geotechnical/Geologic Assessment and Addendum Capital Hill PUD,
March 7, attached site photos and GeoScience PowerPoint presentation.
Eugene Planning Commission
May 2, 2018
Page 10
2.e. "LiDAR geomorphology and Floral Hill Drive Pavement Deformation"
GeoScience presented several figures showing geomorphic maps identifying likely slope movements
on and in the vicinity of the proposed PUD. These map were prepared on'the basis of LiDAR "hill-
shade" images which are generated from a LiDAR digital elevation model (DEM). This is currently
the most advanced technology available for generating topographic maps of larger areas.
Aware of the limitations of "remote sensing", GeoScience determined that the presence of these
inferred slope movements could probably most reliably be supported by field observations of
deformations in anthropogenic features such as roads. GeoScience consciously determined not to
use 'residences for this purpose, as the resulting testimony is public record and could have
repercussions in the property values of affected existing residences.
If the LiDAR interpretation was correct, Floral Hill Drive should have been offset to the east mainly
in the areas of the landslide lobes mapped on the LiDAR hillshade. This was indeed found to be the
case and was shown on both aerial and site photos using straight lines to emphasize the lateral offset
in the pavement at the landslide lobes, which are present correspondingly on both sides of the street.
In addition, whereas the pavement is mostly relatively flat (both in portions of the road with overlay
and in the portions with just the original pavement), significant vertical deformation ("wrinkling")
of the pavement is present at the junction of two of these landslide lobes.
In their rebuttal on March 28, 2018, Branch Engineering attempts to disprove the conclusion that the
lateral and vertical deformation of the pavement of Floral Hill Drive is due to active slope
movement. Instead they propose that the lateral shifts are due to "mailbox locations and
driveways"". This is incorrect. At the location of the northern of the two mail boxes in this section,
the actual pavement is a couple of feet west of the area with the maximum eastward pavement
deflection, which is located about 120' north of the mailbox. Similarly, the southern of the two
mailboxes is located approximately 30' north of the area of maximum deflection of the southern of
the two lobes crossed by the road. In addition, as mentioned above, in these areas, the pavement
does not change appreciably, and the eastward shift is notable along both the eastern and western
edge of the pavement.
Nonetheless, although the Branch rebuttal document contains only statements and three photographs
which are not annotated to prove their point, the HO finds that:
"the applicant's engineerprovides a detailed factual analysis to support its conclusion that
there is no indication of landslide movement in that area. "
In other words, the annotated air photos and site photos presented by GeoScience as evidence are
19 Branch Engineering GeoScience Inc Addendum Rebuttal 3/28/18, p. 1, para. 2 & 3.
Eugene Planning Commission
May 2, 2018
Page 11
simply dismissed, and the statements by Branch Engineering are incorporated into the findings
without any attempt at discussing why Branch's statements are "detailed factual" and GeoScience's
apparently "made up". Similarly, whereas the pavement of Floral Hill Drive is flat, both in areas
with an overlay and in those areas where original pavement forms the driving surface (see site
photos in both GeoScience Addendum, 3/21/18 and Branch Rebuttal 3/28/18), the exception is
located where the road crosses the boundary of two of the landslide lobes mapped by GeoScience.
The road experiences essentially the same traffic loading along all of its path, and yet shows
deformation only in this critical area. Nonetheless, Branch Engineering attributes this to "in my
opinion rutting of an old roadway that likely has an inadequate structural section..."
In finding that the deformation exhibited by the pavement of Floral Hill Drive is
anthropogenic, the HO erred in failing to consider the totality of facts in evidence.
CONCLUSION
The evidence in the record indicates that the applicant's consultants conducted a half-hearted study
of the site designed to find as few problems as possible. Despite not completely succeeding in this
quest (finding some evidence of slope stability issues), they presented the foregone conclusion that
the proposed development is feasible without an increased risk of slope stability and stormwater
impact to the PUD itself and to surrounding areas.
Our analysis shows that although development is not impossible, the applicant's work to date is
inadequate to ensure that the development will occur without adverse impacts mostly to the Laurel
Hill Valley below the site to the east. The geologic constraints of the site have not been sufficiently
defined to allow an appropriate engineering design. All other factors aside, this is most pointedly
demonstrated by the proposed stormwater disposal system consisting of two 38-foot, side-by-side
"level spreaders" on a 50% slope in fine-grained soil with a design discharge of the equivalent of 29
garden hoses.
However, the Hearings Official decided to accept statements and opinions from the applicant's
consultants apparently without conducting much checking of the underlying evidence or lack thereof.
As a result, in her decision and findings regarding the application for Tentative PUD for the Capital
Hill PUD, the Hearings Official erred in several regards:
For EC 9.8320(2) (South Hills Study) the errors are:
1. The HO failed to note that, by their own admission, the investigation conducted by Branch
Engineering was "a preliminary study" rather than an "in-depth, detailed analysis".
2. The HO failed to consider evidence that Branch Engineering's areally limited work cannot
"adequately consider both on-site and off-site impacts" as required by the SHS.
Eugene Planning Commission
May 2, 2018
Page 12
For EC 9.8320(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.) the errors are:
3. Given that 80% of the proposed PUD area was NOT ASSESSED during the applicant's
subsurface exploration, including all of the steep eastern portions of the PUD, the applicant cannot
demonstrate that the PUD as currently designed will not be a risk to public health and safety, or
prevent soil erosion. The HO is relying on "future work" by the applicant to address the question.
However, EC 9.8320(6) requires that this determination be made at the Tentative PUD application
stage, not at the PEPI or building permit stages.
4. Despite the HO's assurances to the contrary, the applicant's report does not contain "numerous
specific recommendations to minimize the potential for slope failure" and one of their
recommendations appears to actually increase the potential by allowing overly steep fill slopes with
inadequate drainage.
5. The HO erred in accepting Branch Engineering's explanation of the tree deformation on the site
as having resulted from "soil creep" only. She ignored evidence presented by GeoScience of tree
deformation inconsistent with "soil creep" present on the site in the areas with evidence of slides.
6. In finding that the deformation exhibited by the pavement of Floral Hill Drive is anthropogenic,
the HO erred by failing to consider the totality of facts in evidence and simply accepting statements
and "opinions" by the applicant's consultant.
7. The PUD design includes at least one feature (the "level spreader" stormwater discharge) which
will significantly increase the risk of off-site impact from slope movements and soil erosion.
In this case, the applicant has failed to provide sufficient evidence to support the statements
made in their reports and testimony regarding compliance with two provisions of the Eugene
Code (EC 9.8320(2) and 9.8320(6)). GeoScience has presented evidence of active landslides
located both on- and off-site to the east of the PUD. This evidence consists of LiDAR
geomorphic mapping, which has been corroborated by evidence in the field of both deformed
trees on the site itself, and deformed pavement in a road that crosses several of these landslide
features below the PUD. For these reasons, from a geotechnical viewpoint only, it would be
a mistake to accept this PUD, the current design of which fails to consider these issueswo^
Respectfully submitted,
GeoScience, Inc.
Gunnar Schlieder, Ph.D., CEG
Expires 12/31/18
RECEIVED
AM
WPIanning
MAY-72018
APPEAL OF INITIAL HEARINGS OFFICIAL OR
CITY OF EUGENE
PLANNING DIVISION
HISTORIC REVIEW BOARD DECISION
The appeal of an initial Hearings Official or Historic Review Board decision provides for a review of a quasi-judicial decision by a
higher review authority specified in the Land Use Code. In general, the appeal procedures allow for a review of the original .
application, the Hearings Official or Historic Review Board decision, the appeal application, and any facts or testimony relating to
issues and materials that were submitted before or during the initial quasi-judicial public hearing process. The Hearings Official or
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Please check one of the following:
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amendment of a refinement plan, a Land Use Code amendment, or the application of the /ND Nodal Development overlay zone.
City File Name: L2~/T rL
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Date of Hearings Official or Historic Review Board Decision: 0D
Date Appeal Filed: Zola
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ttach a written appeal statement. The appeal statement shall include a written statement of issues on appeal, be based on the
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A filing fee must accompany all Hearing's Official and Historic Review Board appeals. The fee varies depending upon the type of
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determine the required fee or check on the web at: www.eugeneplanning.org
www.eugene-or.gov/planning
Planning & Development Updated: ,October, 2012
Planning Division
99 W. 10TH Avenue, Eugene, OR 97401
P 541.682.5377 * F 541.685.5572 Page 1 of 2
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Acknowledgment
I (we), the undersigned, hereby acknowledge that I (we) have read the above appeal form, understand the requirements for filing an
appeal of a hearings official or historic review board decision, and state that the information supplied is as complete and detailed as
is currently possible, to the best of my (our) knowledge.
APPELLANT:
Name (print): i~/~F} C2~L ~E~ Y -7 l _
~
/~~2SORJS Phone: '777,
All"
L~l C>/ !L2i J"/ EELS'
Company/Organization: D if iiljw JT' .~1~/6H~Z><IS SSaG~.4-r/
Address: a ,SIG % E S 7-
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Name (print): 47-, Q1C/lJ,,-r-r AT
Company/Organization:
Address: /4- 7-Z ZC,~
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IF this appeal is being filed by the affected recognized neighborhood association, complete the following:
Name of Association: ~LJ~LnL ~il_L Vf1
www.eugene-or.gov/planning
Planning & Development
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P 541.682.5377' F 541.685.5572
Updated: October, 2012
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Y,
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