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HomeMy WebLinkAboutAppeal Materials (2)RECEIVED MAY-72018 LAW OFFICE OF BILL KLOOS PC OREGON LAND USE LAW 375 W. 4TH AVENUE, SUITE 204 EUGENE, OR 97401 TEL: 541.954-1260 WEB: W W W.LANDUSEOREGON.COM Eugene Planning Commission c/o Eugene Planning and Development Atrium Building 99 West 10th Ave. Eugene, OR 97401 CITY OF EUGENE PLANNING DIVISION BILL KLOOS BILLKLOOS @LANDUSEOREGON. COM May 7, 2018 Re: Capital Hill PUD (PDT 17-1) Applicant's Appeal of Hearing Official Approval Dear Commissioners: The Hearing Official (HO) approved this application in a 79-page decision. The applicant is pleased with the approval. Some legal issues were decided against the applicant. We anticipate an appeal to LUBA by opponents. Therefore, this is a precautionary appeal. We raise these issues here to request a correct application of the law that applies and, thus, to preserve these issues for defense of the approval at LUBA, if necessary. If no appeal is filed by opponents challenging the HO approval, the Applicant will withdraw this appeal. The Applicant requests that the Planning Commission affirm the approval but amend the reasoning based on a correct application of the law as it relates to several issues, as discussed below. For brevity, we attach and reference: the Applicant's March 3, 2017 Letter (Appendix A); March 5, 2018 Hearing Letter (Appendix B); and April 6 Final Argument (Appendix Q. This appeal statement is based on the record and contains no new evidence. Grounds for Appeal. 1. The HO erroneously concluded that the Applicant is not entitled to review under only the clear and objective standards in the General Track of EC 9.8320, and that evidence submitted in the second open record period related to this issue should be excluded. There are several erroneous rulings on the law that applies, exclusion of evidence, and burden of proof. These are addressed in parts (a), (b) and (c) below. RECEIVED Eugene Planning Commission May 7, 2018 Page 2 M AY - 7 2018 CITY OF EUGENE PLANNING DIVISION (a) The legal issue the Applicant is entitled to only clear and objective standards even under the General Track of EC 9.8320 because a PUD is required for development but no PUD is approvable on this site under the Needed Housing Track of EC 9.8325. The Applicant asserted throughout that the City may not apply any discretionary standards, even under the General Track of EC 9.8320, because the applicant could not get aM PUD approved on this site under the Needed Housing track in EC 9.8325. See Final Argument at 2-11. The Applicant invoked the Needed Housing Statute, which applies directly, and which says the City may not apply any non-clear and objective standards unless the Applicant "retains the option of proceeding" under clear and objective standards. This request was based on ORS 197.307(6): (6) In addition to an approval process for needed housing based on clear and objective standards, conditions and procedures as provided in subsection (4) of this section, a local government may adopt and apply an alternative approval process for applications and permits for residential development based on approval criteria regulating, in whole or in part, appearance or aesthetics that are not clear and objective if. (a) The applicant retains the option of proceeding under the approval process that meets the requirements of subsection (4) of this section; (b) The approval criteria for the alternative approval process comply with applicable statewide land use planning goals and rules; and (c) The approval criteria for the alternative approval process authorize a density at or above the density level authorized in the zone under the approval process provided in subsection (4) of this section." [Emphasis added] The Applicant explained why any development of this site requires a PUD approval, and why no PUD could be approved on this site under the clear and objective standards of the Needed Housing track in EC 9.8325. Hearing Letter at 4 item 4; Final Argument at 2; March 3, 2017 Letter at 3. The HO understood the Applicant's reading of the statute but concluded that the applicant is reading the statute incorrectly. HO at 10 para 2: "Specifically, the applicant argues that under ORS 197.307(6), "the City may only apply standards that are not clear and objective if the applicant also has the right to develop the property under clear and objective standards as provided for in ORS 197.307(4)." There is no support under the statute for the applicant's requested interpretation of it." The HO also understood the Applicant's theory about how the Needed Housing Statute directs what the City may do under the code. HO at 11 para 2: Eugene Planning Commission May 7, 2018 Page 3 "[I]t appears that the applicant argues that since development of the subject property cannot be approved under the city's clear and objective track, the city does not have a process under ORS 197.307(4) as it applies to this applicant. Based on that premise, the applicant argues it is somehow entitled to ask for and receive a review under a subset of the General track criteria - i.e., only the clear and objective approval criteria' within the General track." [Emphasis original] The Applicant's position is that some PUD site plan must be approvable under the Needed Housing standards of EC 9.8325, otherwise the statute prohibits the City from applying non- clear and objective standards under any review track. March 5 Hearing Lttr at 4 item 3; April 6 Final Argument at 2-3. The Applicant has never asserted that this site plan must be approvable under the Needed Housing standards in EC 9.8325. The HO may be saying that opponent's attorney Mr. Malone is correct that having the bare "right to proceed" to apply and get local review under a set of standards in the Needed Housing track that would prohibit approval of aM PUD site plan is all that the statute requires. HO at 11 para 4. If so, then the HO is suggesting that the rights created by the statute are illusory a nullity. That is nonsense. The HO also concludes that even if the Applicant is reading the statute correctly, and it does have an absolute right to get some kind of development approval under clear and objective standards, its application should have been filed under the Needed Housing standards of EC 9.8325. HO at 12 para 3. Now, exactly how would that work? We showed, with a site plan graphic, that no development is possible under Needed Housing standards of EC 9.8325, due to the 20% slopes on the site. See graphic attached to March 3, 2017, in Appendix A. Is the HO saying that if the applicant had applied under EC 9.8325 she would have excused compliance with the 20% grading limitation standard? Is that the position of the Planning Commission, too? Not likely. If the application had been filed under the EC 9.8325 standards, the Staff Report would have recommended denial, because of the 20% slope grading limitation. The HO would have followed through with a denial. Because no development could be approved under the Needed Housing standards of EC 9.8325, the Applicant was entitled to apply under the General Track standards of EC 9.8320 and ask the City to only apply clear and objective standards. That is the only approach that could result in an approval of the required PUD under clear and objective standards. Here the HO ignored the Court of Appeals' directive to the City in Recovery House VI v. City of Eugene, 150 Or App 382, 946 P2d 342 (1998). In Recovery House VI the Court told Eugene that even though an application is filed under a particular set of standards, the applicant is still entitled to a determination from the Hearing Official as to whether those standards may be applied in the first place. That is what the Applicant did here. The Applicant filed under the General Track standards but told the City that state law prohibits the City from applying some of those standards. Eugene Planning Commission May 7, 2018 Page 4 (b) The evidence issue The Applicant did not include new evidence with Final Argument; The HO rejected that portion of our April 6 Final Argument (HO labels the April 6 Final Argument as "rebuttal") that explains the site cannot get development approval under the clear and objective standards of EC 9.8325 because she said that the Final Argument included new evidence, and the record was closed to new evidence on that date. HO at 11 last para. "In its April 6, 2018 rebuttal, the applicant responded to the city staff's theoretical discussion of how this property could be development under the City's EC 9.8325 needed housing process by providing some testimony and evidence to dispute the city's analysis. Whether or not the applicant's analysis could be construed as evidence that perhaps no proposed development on the subject property could be approved under EC 9.8325, the hearings official rejects that analysis for two reasons: First, the applicant's April 6, 2018 submittal was for rebuttal testimony only and allowed no new evidence. To the extent the applicant April 6, 2018 submission includes new evidence regarding how this property could not satisfy the EC 9.8325 criteria, that new evidence is not properly part of this record." Initially, the HO does not identify what evidence she views as objectionable. That leaves the Applicant and the Commission guessing. However, there was no new evidence submitted with the April 6 Final Argument. Every aspect of the Applicant's Final Argument can be traced to and is supportable by evidence that was put in the record when allowed prior to or at the hearing, in the first open record period for any evidence, or in the second open record period for rebuttal evidence. (c) The Burden of Proof Issue The Applicant demonstrated that: (1) any development of this site requires PUD approval; and (2) no PUD approval is possible under the EC 9.8325 Needed Housing standards, due to the 20% slope grading limitations in EC 9.9325(5). The HO found that the Applicant has the burden of proof to show that no development of the subject property is possible under the Needed Housing standards of EC 9.8325, and that the Applicant did not carry that burden with evidence that was properly in the record. HO at 12 first para. "Secondly, even if the applicant's response to the city's theoretical discussion did not include new evidence, the applicant's analysis does not establish that the EC 9.8325 process was not available to them. At most, it establishes that the applicant disagrees with the staff's theoretical analysis as to how the property could be developed under that process. While the applicant disputes the city's analysis, it is the applicant, and not the city, that must bear the burden of proof." Eugene Planning Commission May 7, 2018 Page 5 The evidentiary issue is discussed in (b) above. No evidence was submitted after the record was closed. The Applicant carried its burden to show that no approval of development is possible on this site under a Needed Housing track in the code. The Applicant's initial submittal explained why the 20% grading limitation in Needed Housing track, EC 9.8325(5), prevents any development. One can't grade through the 20% slopes to get to the more level, developable ground on top of the hill. See graphic attached to March 3, 2017 Letter. See also March 5, 2018 Hearing Letter. With a cryptic allegation to the contrary in the Staff Report, and a fuller explanation in the staff's post-hearing memo, the city alleged that a 1.48-acre part of the site could be partitioned into several parcels under the Needed Housing Partition standards of EC 9.8220. See March 21 Staff Memo at 2. The Staff's proposal is summarized at page 4 of our Final Argument. The applicant then submitted rebuttal evidence to staff's theory in the second open record period. See March 30 Schirmer Satre Letter and accompanying Exhibits W and X. The Applicant's Final Argument explained, based on evidence in the record, why the code precludes partitioning of just part of the development site and requires, instead, a PUD for any development approval on the site. April 6 Final Argument at 4-9. In summary, the following errors are evident in the HO findings on the Needed Housing Statute issue and should be resolved by the Commission in favor of the Applicant: a. The HO erred in failing to find that, because this is an application for housing, the statute requires the City to provide a path for approval of housing under clear and objective standards. b. The HO erred in finding that the owner's entitlement under ORS 197.307(6), that the owner "retains the option of proceeding," is satisfied if the owner has the mere right to apply for approval under standards that do not allow some application to be approved. The statutory entitlement is for a path to approval under clear and objective standards, in this instance for a PUD approval because a PUD approval is required. c. The HO erred in finding that the owner's statutory entitlement to a path to approval under clear and objective standards requires an application under the Needed Housing code standards in EC 9.8325, which for this site preclude any approval. As the Court of Appeals explained to the City in Recovery House VI, an owner is allowed to apply under a set of standards and then argue that state law prohibits applying some of those standards. That is what the Applicant did here by applying under EC 9.8320. d. The HO erred in failing to find that as development of this site requires a PUD approval. Any development approval of this site does require a PUD. The Applicant made this showing. The Staff failed to rebut this showing. Eugene Planning Commission May 7, 2018 Page 6 e. The HO erred in failing to find that no PUD approval is possible on this site under the Needed Housing track of EC 9.8325 because the 20% grading limitation in EC 9.8325(5) precludes getting access to developable parts of the site that are less than 20% slope. f. The HO erred in finding that parts of the argument above must be rejected/denied because they are based on evidence submitted with Final Argument on April 6, after the record was closed. The HO did not identify the evidence she said was objectionable. No new evidence was submitted with Final Argument on April 6. g. The HO erred in finding that the Applicant failed to carry the burden of proof to show that no development is possible under the clear and objective standards. That burden was carried in the original application and in response to the staff's suggestions about what development was possible. h. The HO erred in applying any standards in EC 9.8320 that are not are clear and objective. The applicant identified the EC 9.8320 standards that are not clear and objective in the March 5, 2018 spreadsheet. 2. The HO erred in applying standards in the South Hills Study (1974) (SHS) to this application. The City has not shown that the SHS is a source of standards for this property and application. At no time since its adoption in 1974 has the regulatory footprint of the SHS been extended to the subject property by a governing body (the City Council or County Board) with planning authority over the subject property. The standards in the city plan and code are city law. The City has the burden to show what the standards are. If the City contends that the SHS applies to this site, then it must show that the SHS was applied to this property by a governing body with authority to apply it. Here the applicant explained why the SHS does not apply to the subject property because neither the County (up to 1987 while it had planning jurisdiction outside the City) nor the City (after 1987 when it contracted with the County to have planning authority in the UGB) enacted an ordinance or resolution applying the SHS to this property, which was outside the city limits when the SHS was initially adopted by the City in 1974. See March 5 Hearing Letter at 8-12; April 6 Final Argument at 11-12. No party in this proceeding has pointed to a decision by a governing body with planning authority over the subject property extending the SHS to this property. The city staff, city attorney, and opponents' attorney pitched various theories for why the SHS applies to this property anyway. Each of these theories was debunked in the briefing by the Applicant. See March 5 Hearing Letter at 9-12; April 6 Final Argument at 11-12. None of the alternative theories points to a decision by a governing body to apply the SHS to this site at a time when that governing body had planning authority over the site. Eugene Planning Commission May 7, 2018 Page 7 The HO just picked one of the range of theories offered by the City and opponents. It has no better legal legs than any of the others. More importantly, the HO offered no explanation for why her theory is legally correct; she just said it was so. The theory put forward by the City Attorney and adopted by the HO is that any land in the South Hills is automatically subject to the SHS at the time that it is annexed to the city. HO at 13 para 1, quoting City Attorney: "Consequently, as properties located south of 18th Avenue and above 500 feet annex into the City, they become subject to the SHS. The property that is the subject of this application is located within the City, south of 18th Avenue and above 500 feet; therefore, the property is now subject to the SHS, even if it would not have been subject to the SHS when the SHS was originally adopted." Why is that so? No one has offered an explanation, including the HO. There is no legal authority for that position offered or apparent.' The SHS does not say that property becomes subject to the SHS when it is annexed. Neither does the Metro Plan or the zoning code say that. Not only is this theory unsupported by any city law, this position is also contrary to state law. State law says that county plans and codes continue to apply to land even after the land is annexed to a city and until such time as the city changes those designations. ORS 215.130(2), The HO position conflicts with this statute. If the statute says that county plan and zone designations stay in place after annexation until the City changes then, then there can't be any automatic plan changes upon annexation. See April 6 Final Argument at 11. In summary, the HO decision reflects the following errors: a. There is no basis in law for the HO's conclusion that the SHS applies to properties automatically when they are annexed to the City no basis in the Metro Plan, the SHS, the code, or any other law. No basis is offered by the HO; none exists. b. The HO's theory that the.SHS sticks to South Hills properties automatically when they are annexed conflicts with state law that says county plan and zone designations remain in place after annexation until the City changes them. ORS 215.130(2). c. The HO erred in failing to find that changes to the plan designation require an affirmative act by a governing body with authority to take that action. Prior to 1987, the City only had planning authority to do this inside the city limits; the County did everything else. After 1987 the City had authority to plan and zone in the UGB. The HO references no decisions by the County or the City to apply the SHS to this site when either had planning authority for this site. ' If this theory is accurate, then it is also true that prior to annexation the SHS does not apply to a piece of property. Is the City OK with that position? Eugene Planning Commission May 7, 2018 Page 8 d. The HO erred in concluding that the SHS is a source of standards for this application; it is not a source of standards because there was no act by a governing body with authority to plan for the area that applied the SHS to the subject property. (This shortcoming is in addition to the fact that there are no clear and objective standards in the SHS.) Sincerely, 16/11 Oar Bill Kloos Appendices: App A - Applicant Letter, March 3, 2017 and attached Site Plan App B - Applicant's Hearing Letter (March 5, 2018) (without exhibits) App C - Applicant's Final Argument (April 6, 2018) LAW OFFICE OF BILL KLOOS PC OREGON LAND USE LAW 375 W. 4TH AVENUE, SUITE 204 EUGENE, OR 97401 TEL: 541.343.8596 WEB: WWW.LANDUSEOREGON.COM Robin Hostick, Planning Director Eugene Planning and Development 99 W. Broadway Eugene, OR 97401 March 3, 2017 Re: Capitol Hill PUD Tentative Plan Application Dear Robin: BILL KLOOS BILLKLOOS@LANDUSEOREGON. COM Please accept this letter as a supplement to the supporting narrative filed by the Schirmer Satre Group on this date. The purpose of this supplemental narrative is to request and explain statute rights that benefit the applicant as the developer of "needed housing" under ORS 197.303. Three rights are invoked: (1) The right to an approval path under only clear and objective standards, as guaranteed by ORS 197.307(6); (2) a right to offer conditions or amendments to the application that would make the application consistent with the plan and code, as guaranteed by ORS 197.522(3); and (3) the right to extend the 120 day time period for a final local decision in order to allow time for amendments that may be needed to ensure compliance. These points are discussed further below. (1) Because this site cannot be developed under the "Needed Housing" track in the code, the City is prohibited from applying any standards under the "General Track" that are not clear and objective. This application has been filed under the "General Track" in the code, EC 9.8320, which includes many discretionary standards. The General Track was chosen because the Eugene Code prevents development under the Needed Housing standards in EC 9.8325, as more fully explained below. Because the property is not developable under the code in the way that the Needed Housing Statute guarantees, the City is prohibited from applying any standards under the General Track that are not clear and objective. (a) What the Needed Housing Statute guarantees this developer. The Needed Housing Statute applies directly to city review of applications to develop this property. The relevant parts of the statute in ORS 197.307 are: 197.307 Effect of need for certain housing in urban growth areas; approval standards for certain residential development; placement standards for approval of manufactured dwellings. (1) The availability of affordable, decent, APP A- LTTR 3.3.2017 Eugene Planning Director March 3, 2017 Page 2 safe and sanitary housing opportunities for persons of lower, middle and fixed income, including housing for farmworkers, is a matter of statewide concern. (2) Many persons of lower, middle and fixed income depend on government assisted housing as a source of affordable, decent, safe and sanitary housing. (3) When a need has been shown for housing within an urban growth boundary at particular price ranges and rent levels, needed housing shall be permitted in one or more zoning districts or in zones described by some comprehensive plans as overlay zones with sufficient buildable land to satisfy that need. (4) Except as provided in subsection (6) of this section, a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of needed housing on buildable land described in subsection (3) of this section. The standards, conditions and procedures may not have the effect, either in themselves or cumulatively, of discouraging needed housing through unreasonable cost or delay. (6) In addition to an approval process for needed housing based on clear and objective standards, conditions and procedures as provided in subsection (4) of this section, a local government may adopt and apply an alternative approval process for applications and permits for residential development based on approval criteria regulating, in whole or in part, appearance or aesthetics that are not clear and objective if: (a) The applicant retains the option of proceeding under the approval process that meets the requirements of subsection (4) of this section; (b) The approval criteria for the alternative approval process comply with applicable statewide land use planning goals and rules; and (c) The approval criteria for the alternative approval process authorize a density at or above the density level authorized in the zone under the approval process provided in subsection (4) of this section. In Eugene, the "Needed'Housing" track standards, which are intended to be clear and objective, are in EC 9.8325. The "General" track standards, which are intended to include some that are not clear and objective, are in EC 9.8320. Note that under subsection (6) of the statute quoted above, the City may only apply standards that are not clear and objective if the applicant also has the right to develop the property under clear and objective standards as provided for in ORS 197.307(4). As we explain below, this site has no development potential under the clear and objective standards of the Needed Housing track in EC 9.8325. This is a 13-acre site, largely located above 900 feet, with steep slopes in various places, and a total 6 existing dwellings. Under the 5 du/acre density limit associated with the South Hills Study, the owner is entitled to a total maximum of 65 dwelling units on this site. Taking into consideration the existing 6 dwellings on the site, the APP A- LTTR 3.3.2017 Eugene Planning Director March 3, 2017 Page 3 owner should be able to add 59 units to the property, whether the development is done under the General track or the Needed Housing track. This application proposes a total of only 37-43 units on the property. (b) The applicant is prohibited by the code from proceeding with its development proposal or any development proposal under the General track standards. Here we describe how the Needed Housing track standards in the code would regulate development on this site. This discussion shows that no development would be allowed if the standards in the Needed Housing track in the code, EC 9.8325, are applied. Please see the attached graphic which shows for the site: property boundaries; presumed legal lots; the protected 30-foot landscape buffer on the perimeter; areas that have slopes that are 20% or steeper; existing contours including the contour at the 900 foot elevation; and existing dwellings. 30-foot landscape buffer: The code requires a 30-foot landscape buffer adjacent to the perimeter of the site. EC 9.8325(3). A 2004 code interpretation stated that the buffer is not required adjacent to streets. LUBA has upheld the validity of this buffer. Walter v. City of Eugene, - Or LUBA _ (LUBA No. 2016-024, June 30, 2016), aff'd without opinion 281 Or App 461 (2016). The graphic shows in green where the 30-foot buffer would be required on this site. No grading on 20% slopes: The code prohibits any grading on slopes of 20% or steeper. The city has interpreted that slope is measured based on 5-foot contour elevations, which are required to be shown on the application documents. See Southeast Neighbors' Neighborhood Assoc. v. City of Eugene, 68 Or LUBA 51, aff'd without opinion 259 Or App 139, 314 P3d 1004 (2013 On the graphic we show in purple the areas of the site that are 20% or steeper, as measured between 2-foot contours. In these areas there can be no development because grading is prohibited. 900-foot elevation development limitation: The code limits development above the 900-foot elevation to just one dwelling unit on any legal lot that existed on August 1, 2001. EC 9.8325(12)(a). This means that the area above the 900-foot contour may not be subdivided for housing. The presumed legal lots above the 900 foot elevation are shown. There are thought to be just 5 legal lots. Of these, 3 already contain one or more dwellings. That leaves the potential for only 2 more dwellings above the 900-foot elevation. However, these two legal lots can't be access for development because the land adjacent to the road that would provide the only access is prohibited from development by the 20% grading limitation. (c) The Needed Housing Statute, ORS 197.307(6), prohibits the City from applying any standards that are not clear and objective. APP A- LTTR 3.3.2017 Eugene Planning Director March 3, 2017 Page 4 The discussion above shows that the site cannot be developed if the clear and objective standards in the code are applied. As a result, the statute prohibits the City from applying any standards that are not clear and objective. ORS 197.307(6)(a). The applicant requests a determination from the Hearing Official that, by direct operation of the statute, the City is prohibited from applying any standards that are not clear and objective. This statutory prohibition applies to the full range of standards listed under the General standards track in EC 9.8320. 2. The applicant invokes its right to suggest conditions needed to ensure compliance with applicable standards. The Applicant intends to invoke ORS 197.522 to allow it to suggest conditions for this application to ensure compliance with the applicable standards. Recent statutory amendments afford this right. The new statute, adopted by 2015 Or Laws 374 (HB 3222), effective January 1, 2016, is codified at ORS 197.522, which now reads: "197.522 Local government to approve subdivision, partition or construction; conditions. (1) As used in this section: (a) "Needed housing" has the meaning given that term in ORS 197.303. (b) "Partition" has the meaning given that term in ORS 92.010. (c) "Permit" means a permit as defined in ORS 215.402 and a permit as defined in ORS 227.160. (d) "Subdivision" has the meaning given that term in ORS 92.010. (2) A local government shall approve an application for a permit, authorization or other approval necessary for the subdivision or partitioning of, or construction on, any land for needed housing that is consistent with the comprehensive plan and applicable land use regulations. (3) If an application is inconsistent with the comprehensive plan and applicable land use regulations, the local government, prior to making a final decision on the application, shall allow the applicant to offer an amendment or to propose conditions of approval that would make the application consistent with the plan and applicable regulations. If an applicant seeks to amend the application or propose conditions of approval: (a) A county may extend the time limitation under ORS 215.427 for final action by the governing body of a county on an application for needed housing and may set forth a new time limitation for final action on the consideration of future amendments or proposals. (b) A city may extend the time limitation under ORS 227.178 for final action by the governing, body of a city on an application for needed housing and may set forth a new time limitation for final action on the consideration of future amendments or proposals. (4) A local government shall deny an application that is inconsistent with the comprehensive plan and applicable land use regulations and that cannot be made APP A- LTTR 3.3.2017 Eugene Planning Director March 3, 2017 Page 5 consistent through amendments to the application or the imposition of reasonable conditions of approval. [1999 c.838 §4; 2015 c.374 §3]" [emphasis added] The 2016 amendment requires the City to approve the application if it is consistent with the plan and code. More importantly, it now affords the applicant the right to suggest conditions needed to make the proposal consistent with the plan and code. The applicant intends to invoke this right. 3. The applicant invokes its right to amend the application if that is needed to make the application consistent with the plan and code. The statute quoted above also guarantees the applicant the right to amend the application prior to a final decision in order to make the proposal consistent with the plan and code. And it allows extending the decision deadline in ORS 227.178 to accomplish this. This language would appear to allow the applicant to make the amendment even after the initial decision of the Hearing Official, if that amendment would resolve the bases for denial by the Hearing Official. Sincerely, Vi& i Bill Kloos Encl. APP A- LTTR 3.3.2017 M [ Kim Sbf101N0O /M Nb'ld 311S ` ~ anon,°3n.vs n3wn,w r LAW OFFICE OF BILL KLOOS PC OREGON LAND USE LAW 375 W. 4TH AVENUE, SUITE 204 EUGENE, OR 97401 TEL: 541.343.8596 WEB: WWW.LANDUSEOREGON.COM BILL KLOOS BILLKLOOS @LANDUSEOREGON.COM March 5, 2018 Eugene Hearing Official c/o Eugene Planning and Development 99 W. 10'h Ave. Eugene, OR 97401 Re: Capital Hill PUD; Applicant's Hearing Statement on Legal Issues Dear Hearings Official: This letter supplements my March 3, 2017 letter filed with the original application, and it responds to some issues in the Staff Report. The new "Hearing Exhibits" discussed herein are listed at the end of this letter and are attached. Part A below invokes the applicant's right to be free of review standards that are not clear and objective, based on ORS 197.307(6)(a). The Staff Report disputes this entitlement, but it has not adequately explained why that is so. Part B explains that this review is not subject to the policies in the South Hills Study (1974) for the reason that the SHS applied to the city limits in 1974, and the City has never extended the footprint of that refinement plan to the area that was outside the city limits at that time, which includes the area of the subject property. The City has posed a number defenses to this theory, but none has sufficient legs. A. The applicant requested, and is entitled to, review under only clear and objective standards. ORS 197.307(4), (6). The City may not apply any standards that are not clear and objective. My March 3, 2017 letter, submitted with the original application, invoked the owner's right to review under clear and objective standards. It explained that because development of this site requires a PUD, and because no development can be approved under the "Needed Housing" PUD track standards in the code, the City may not apply any discretionary standards, even though the application is filed under the "General" or discretionary track standards of EC 9.8320. Please refer to the March 3 letter and the associated graphic for an explanation of why review of this development proposal under the PUD Needed Housing standards in the code would result in no dwellings being approved. The code standards individually are punishing; collectively they are preclude development. 1. The Needed Housing Statute applies directly to the city's review of this application. APP B - HEARING LTTR 3.5.2018 Eugene Hearing Official March 5, 2018 Page 2 The Needed Housing statute applies directly to City review of this application, even though the plan and code are acknowledged by the state. See McKay Creek Valley Assoc. v. Washington County, 18 Or LUBA 71, 75 (1989) (acknowledgment of plan and code leaves statutes directly applicable). The Eugene Hearing Official has recognized this and honored direct application of the statute in multiple decisions. The most recent example we attach as Hearing Exhibit A, the decision for Site Review for Alder Springs (SR 17-2)("The application is for needed housing, needed housing must be subject to only clear and objective standards, the TIA standards are not clear and objective. Therefore, I have no choice but to agree with the applicant that it is not required to obtain TIA approval to proceed with the proposed development." Page 6) 2. This application is entitled to the protection of the Needed Housing Statute. The Needed Housing Statute entitles this application to review under clear and objective standards for two reasons. First, the property is inventoried for Needed Housing on the acknowledged residential BLI. See Ordinance No. 20585 (July 17, 2017) Ex A-2, Residential Land Supply (2012-2032), Map 2, tile 33 of 42. Second, the property is planned and zoned for residential use, and this application proposes housing. Both bases derive from the Needed Housing Statute. The relevant parts of the statute were amended most recently in 2017 by SB 1051, 2017 Or Laws, Ch 745, effective August 15, 2017. Those amendments to ORS 197.307, in legislative format, were: "(4) Except as provided in subsection (6) of this section, a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of housing, including needed housing [on buildable land described in subsection (3) of this section]. The standards, conditions and procedures: (a) May include, but are not limited to, one or more provisions regulating the density or height of a development. (b) May not have the effect, either in themselves or cumulatively, of discouraging needed housing through unreasonable cost or delay. (5) The provisions of subsection (4) of this section do not apply to: (a) An application or permit for residential development in an area identified in a formally adopted central city plan, or a regional center as defined by Metro, in a city with a population of 500,000 or more. (b) An application or permit for residential development in historic areas designated for protection under a land use planning goal protecting historic areas. (6) In addition to an approval process for needed housing based on clear and objective standards, conditions and procedures as provided in subsection (4) of this section, a local government may adopt and apply an alternative approval process for applications and permits for residential development based on APP B - HEARING LTTR 3.5.2018 Eugene Hearing Official March 5, 2018 Page 3 approval criteria regulating, in whole or in part, appearance or aesthetics that are not clear and objective if: (a) The applicant retains the option of proceeding under the approval process that meets the requirements of subsection (4) of this section; (b) The approval criteria for the alternative approval process comply with applicable statewide land use planning goals and rules; and (c) The approval criteria for the alternative approval process authorize a density at or above the density level authorized in the zone under the approval process provided in subsection (4) of this section." The 2017 amendments clarified an ambiguity identified by the LCDC, in the context of a Corvallis enforcement proceedings. Corvallis suggested to the LCDC that the statute only benefits land that is on the acknowledged Buildable Land Inventory (BLI), and it contended that the subject property there was not on the BLI. The LCDC found that the site was on the BLI; hence it did not have to resolve the ambiguity. The legislature then clarified the ambiguity identified by Corvallis and the LCDC. The amendment, quoted above, makes clear that this statute now applies to decisions related to housing generally, not just to housing proposed on land that is in the BLI. The statute now applies to all housing proposals. The LCDC's Corvallis Enforcement Order is attached as Hearing Exhibit B. In that matter the subject property was on the BLI and had a discretionary Planned Development overlay zone. The Commission determined that the owner was nevertheless entitled to clear and objective standards. "[A]n applicant for a land use approval for housing under ORS 197.296 and 197.307 may ask for and receive "clear and objective" approval criteria, notwithstanding use of planned development discretionary criteria used in approval of other residential development projects in the vicinity, or even by previous property owners of the property in question." [LCDC Order at 15]. The Commission elaborated on the owner's right to proceed under clear and objective standards regardless of the presence of a discretionary overlay zone. "[R]equestors' property is part of the City's required inventory of land defined as "buildable" under statute and "needed land" for fulfilling housing needs for the 20 year planning period. Further, because the Commission concludes the governing statutes discussed above establish residentially designated lands as developable under clear and objective standards, at the applicant's preference, it does not matter whether or not Requestors' land is under a Planned Development overlay. The applicant may simply request and be granted authority to proceed with his or her proposal under clear and objective development standards. ORS 197.307(6). Quite simply, what counts in this regard is the fact the property is designated (zoned) for residential development." APP B - HEARING LTTR 3.5.2018 Eugene Hearing Official March 5, 2018 Page 4 The LCDC Order was premised upon the status of the property as being on the BLI. The Commission expressly avoided determining whether the statute was triggered for all residential land, rather than just land on the BLI. See LCDC Order at 7 fn 6. The legislature resolved the question left open by the LCDC. With the amendment to ORS 197.307(4) quoted above, the entitlements under the Needed Housing Statute expressly apply to development of housing whether or not it is in the BLI. 3. The City may only apply discretionary standards if the applicant has the right to proceed under clear and objective standards. ORS 197.307(6). The statute allows the City to apply discretionary standards only if "[t]he applicant retains the option of proceeding" under clear and objective standards. ORS 197.307(6)(a). Applied to this situation, the City may only apply discretionary standards in its review of this PUD application if the owner also has the right to proceed under clear and objective standards. 4. The application demonstrates that the applicant can't get approval of a PUD under the city Needed Housing standards in EC 9.8325. My March 3 letter explains why no development can be approved on this site if it is reviewed under the clear and objective Needed Housing standards in EC 9.8325. The hilltop character of the site means that the more level area on top of the site can't be reached without violating the 20% slope grading limitation that comes with the Needed Housing standards. See Needed Housing PUD review standards at EC 9.8325(5). ("There shall be no proposed grading on portions of the development site that meet or exceed 20% slope.") 5. The defenses stated in the Staff Report to the applicant's right to only clear and objective standards in this review are contrary to the law. This application was filed under the discretionary General standards track in EC 9.8320 because, as explained in the original application, no PUD housing development is allowed on this site under the clear and objective Needed Housing standards track in EC 9.8325. The applicant requests, in conjunction with this decision, a determination that no PUD can be approved for this site under the Needed Housing track because the standards in EC 9.8325 prohibit any housing development. That determination is necessary to support the relief the applicant requests here the applicant's entitlement under the Needed Housing Statute, which is its right to proceed to development under clear and objective standards. The only way to get an approval under clear and objective standards is to apply under the General standards and invoke ORS 197.307(6)(a), which prohibits the City from applying any standards that are not clear and objective. The City poses several defenses to this approach APP B - HEARING LTTR 3.5.2018 Eugene Hearing Official March 5, 2018 Page 5 (a) The City claims the application should be reviewed under the discretionary standards in EC 9.8320 because the applicant filed under that section and addressed those standards. Staff Report page 4 last para. The applicant filed under the discretionary standards but has explained why the City may not apply any discretionary standards. The applicant is entitled to that determination. It does not waive its statutory rights to be free of discretionary standards by filing under discretionary standards. That is the plain message from Recovery House VI v. City of Eugene, 150 Or App 382, 946 P2d 342 (1998), where the Court of Appeals held that the applicant was entitled to the determination of whether a permit was needed in the context of applying for that permit. (b) The Staff Report asserts that a PUD proposing two additional dwelling units could be approved under the Needed Housing approval criteria. Staff Report page 5 para 2. The Staff Report says: "Based on a review of the site plan submitted by the applicant, staff believe that at least two additional units could be developed on the site if the applicant chose to proceed under the needed housing approval criteria." The applicant has explained in great detail, with the aid of graphics from its landscape architect, how the 20% grading limitation in the EC 9.8325 standards prevents approval of a tentative PUD on this site. The Staff Report assertion to the contrary is conclusory. If the City believes that the owner could rework the site plan to get any PUD application approved for this site under the Needed Housing standards in EC 9.8325, then now would be a good time to explain that. The applicant stated its theory to city staff over a year ago, but staff has yet to give the applicant an explanation of how the standards in EC 9.8325 could be applied to approve a PUD on this site. (c) The Staff Report misstates the operation of the statute. Page 5 para 3. The staff suggestion is that the applicant has two choices: (1) rework the site plan so that it complies with the clear and objective PUD standards; or (2) be processed under all of the discretionary standards. The correct order of the analysis should go like this: 1. Does the applicant for this PUD "retain[s] the option of proceeding under the approval process" stated in EC 9.8325? The answer is `No." 2. If the answer is "no," because the standards in EC 9.8325 do not allow approving a project on this site, then the City may not apply any discretionary standards under the approval track in EC 9.8320, which does allow approval of a PUD. APP B - HEARING LTTR 3.5.2018 Eugene Hearing Official March 5, 2018 Page 6 In summary, the City has not explained a lawful basis for applying any discretionary standards in its review of this PUD over the objection of the applicant. 6. The bulk of the standards the City seeks to apply are not clear and objective in the meaning of the statute. Included with this letter is a spreadsheet that lists standards in EC 9.8320 that are not clear and objective in the meaning of the statute. Note that the spreadsheet also lists some plan policies, which are addressed in the narrative statement, but that are not themselves mandatory standards for one reason or another. The spreadsheet lists at the top five alternative reasons why a standard might not be sufficiently clear and objective to be applicable. We elaborate on those six categories here. (a) Standards are not clear and objective if they involve subjective judgments or the exercise of discretion. Generally, standards for approval of housing are clear and objective within the meaning of ORS 197.307(6) if the local government demonstrates that they do not impose "subjective, value- laden analyses that are designed to balance or mitigate impacts of the development." Rogue Valley Association of Realtors v. City of Ashland, 35 Or LUBA 139, 158 (1998), aff'd, 158 Or App 1 (1999). Provisions generally granting a city discretion to impose conditions "if it is deemed necessary to mitigate any potential negative impact caused by the development" violate the "clear and objective" requirement in ORS 197.307(6). Rogue Valley, 35 Or LUBA 139, 159 (1998). (internal quotation omitted); Home Builders Association of Lane County v. City of Eugene, 41 Or LUBA 370, 388-389 (2002) (quoting Rogue Valley). A requirement that replacement trees be "similar in resource value" as the trees to be removed is not clear and objective. Rogue Valley, 35 Or LUBA at 160. Code language calling for developments to "minimize" possible conflicts between pedestrians and vehicles, "where necessary for traffic circulation," impermissible posed "vague requirements" granting the city "considerable discretion in approving or denying needed housing." Home Builders Association, 41 Or LUBA at 399-400. A provision allowing the city to require, as a condition of approval, dedication of public ways "to facilitate community needs," impermissibly afforded the right to determine community needs. Home Builders Association, 41 Or LUBA at 403-404. Language allowing the city "to require additional right-of-way or other improvements to develop transit facilities `where a need' for such facilities `has been identified"' flunks the test. Home Builders Association, 41 Or LUBA at 409. APP B - HEARING LTTR 3.5.2018 Eugene Hearing Official March 5, 2018 Page 7 Similarly objectionable is a requirement that an applicant provide "adequate" drainage for the proposed housing by constructing facilities "`adequate for the drainage of the area."' Home Builders Association, 41 Or LUBA at 410. Also objectionable is language requiring local streets be designed to discourage nonlocal traffic where, in the city's discretion it was "`necessary to insure safety,"' and "`promote the welfare of the general public, pedestrians, bicyclists and residents of the subject area." Home Builders Association, 41 Or LUBA at 388 n 16. (b) Ambiguous standards that can be interpreted to find compliance or noncompliance. Ambiguous standards are those that are subject to different interpretations. When an ambiguous standard can be interpreted to either support or defeat a finding of compliance then the City may not apply it at all. A recent example from Eugene is Walter v. City of Eugene, _ Or LUBA _ (LUBA No. 2016- 024, June 30, 2016), aff'd without opinion 281 Or App 461, 383 P3d 1009 (2016). There the ambiguous phrase in the standard was "disperse traffic." In the context of the code, that phrase could be interpreted to show compliance or noncompliance. Hence, the standard could not be applied at all. Because that ambiguous standard was the sole basis for denial, LUBA reversed the denial, ordered the City to approve the South Hills PUD, and awarded attorneys fees. Corvallis had a similar experience in Group B, LLC v. City of Corvallis, _ Or LUBA _ (LUBA No. 2015-019, Aug. 25, 2015), aff d without opinion 275 Or App 577, 366 P3d 847 (2015), rev den 359 Or 667 (2016). Group B involved a Planned Development standard for approval, specifically a condition from an earlier PD approval, that could be interpreted to allow development in a part of the site or prohibit development in that part of a site. Because the City could interpret the standard to either approve or deny the use, the City was not allowed to apply the standard at all. LLUBA reversed the City denial. (c) Lack of a benchmark to apply a numerical standard. Numerical standards are, generally, quintessential clear and objective standards. However, even a numerical standard can fail to meet the statute if it is unclear how to apply the numbers. See Rogue Valley, 35 Or LUBA at 154 n 20. The Home Builders case provides several examples. (1) A requirement for a 100-foot buffer around rare plant or animal populations is unclear and subjective based on how the "area occupied" is determined. (2) A 50-foot buffer protecting "waterways" from the "top of the bank" was unclear because the code did not define those terms, the terms had multiple meanings, and they could lead to divergent or discretionary conclusions with different geographic consequences. (3) A requirement that all dwellings in a planned unit development be within one-quarter mile of a recreation area or open space was flawed for failing to state whether the distance was to be measured along streets or as the crow flies. (4) A APP B - HEARING LTTR 3.5.2018 Eugene Hearing Official March 5, 2018 Page 8 standard that "new dwellings be within a 4-minute response time for emergency medical services" was deficient for failure to explain how the time is measured, that is, what assumptions to make about traffic, time of day, and other variables. (d) Conflicting standards may not be applied. Sometimes standards conflict. In that event it is up to the decision maker to sort out the conflict and make the ultimate policy choice. Making that choice frequently involves the exercise of discretion the choosing between them, or balancing them in some fashion to arrive at a decision. That exercise of discretion is the kind of action that is contrary to the statute. When two standards conflict, neither can be applied in making the decision. (e) Standards must allow a path to approval. The statute anticipates that local clear and regulations will allow a path to approval. Standards that are so stringent that they can't be met is a standard that may not be applied consistent with ORS 197.307(6). LUBA explained this common sense principle in the Home Builders case, where a storm water standard prohibited "negative impacts on natural drainage courses," which LUBA agreed was clear and objective. However, it did not allow development. As LUBA explained, "We agree with petitioners, at least in the abstract, that imposing a clear and objective standard that is impossible or virtually impossible to meet is a prohibition in the guise of a standard ORS 197.307(3)(d) allows the city to offer a discretionary approval track, "provided the applicant retains the option of proceeding under the clear and objective standards[.]" That option is illusory if the clear and objective standards are impossible to satisfy. It may not be the case that LUCU 9.8325(10) is impossible to satisfy." The statute anticipates that an applicant will be able to proceed to approval under clear and objective standards, not be denied under clear and objective standards. B. The City has not carried its burden to show that the South Hills Study refinement plan was ever extended beyond the footprint of the city limits in 1974 when the SHS was adopted by the City Council. At pages 22-24 of our March 3, 2107 supporting narrative, we allege that the City may not apply the South Hills Study (SHS) to this decision because the City has not shown that the SHS was ever applied to the area that was outside the city limits when the SHS was adopted by the City Council in 1974. Please see that discussion. To summarize the applicant's theory: The City has the burden of proving what standards apply to any land use application. The Eugene Hearing Official has explained that ORS 227.173 places this burden on the City. See APP B - HEARING LTTR 3.5.2018 Eugene Hearing Official March 5, 2018 Page 9 Alder Woods PUD HO Decision, PDT 07-5 (Sept. 10, 2008) at page 11, amended and affirmed by Commission (Nov. 5, 2008)("The hearings official interprets this standard to require the city to identify the applicable standards and criteria, and review the application against those standards. It does not require the applicant to discern the applicability of the standards in the first instance.") Both Alder Woods decisions are Exhibits E and F hereto. A local government may only apply comprehensive plan provisions to land that it has legal authority to plan for. The key dates for South Hills Planning are: June 10, 1974, Eugene Resolution No. 2295: City Council adopts the SHS. 1981: Subject property Tax Lot 300 annexed to the City. 1982: Subject property Tax Lots 200 and 400 annexed to the City. August 23,1982: 1982 Metro Plan acknowledged, establishing the first UGB. A full copy of the acknowledged 1980 Metro Plan appears as Hearing Exhibit C. May 7, 1987: City/County Agreement Transferring UGB planning jurisdiction to City. A full copy of the Transfer Agreement appears as Hearing Exhibit D hereto. 2014: Subject property Tax Lots 100 and 201 annexed to the City. The chronology of events that has left the subject property outside the effective footprint of the SHS can be summarized as follows: The SHS was adopted by the City in 1974 and applied to the area in the city limits. At no time between 1974 and 1987, when the city took land use control of the UGB area, did the County apply the SHS to the area outside the city limits. At no time after 1987 did the City apply the SHS to the UGB area. That means that the SHS does not presently apply to the current UGB area that was outside the city limits in 1974. The Staff Report responds to this issue at pages 5-6 of the Staff Report. The simplest response for the City would be to identify a city or a county plan amendment or post-acknowledgment plan amendment, extending the footprint beyond the 1974 city limits. This Staff Report does not point to any such amendment. Instead, the City poses several lesser theories. None holds water. 1. The City asserts that the SHS was effective for the 2018 UGB area when it was adopted in 1974 because it described the study area of the SHS as including land outside the City, and it did not expressly limit its effect to the city limits area. Not so. The SHS explained that 65% of its "study area" was outside the city limits, including land south of the ridgeline. However, having a study area that was bigger than the city limits area where the APP B - HEARING LTTR 3.5.2018 Eugene Hearing Official March 5, 2018 Page 10 City had planning authority in 1974 does not make the plan effective in areas where the City did not have planning and zoning authority at that time. That assertion really begs the legal theory posed here when did a governing body act to extend the plan to the area at a time when that governing body had authority to plan for that area? 2. The City asserts that EC 9.9630 extended the SHS policies to the current city limits. Not SO. EC 9.9630 is a portion of the code section that incorporates specific refinement plan policies into the zoning code in response to the statutory mandate in ORS 197.195, which requires a city to explicitly incorporate into the zoning code any plan policies it wishes to apply to limited land use decisions. "Within two years of September 29, 1991, cities and counties shall incorporate all comprehensive plan standards applicable to limited land use decisions into their land use regulations." ORS 917.195(1). Eugene did this in 2001 as part of its code makeover. This intention is express in the introductory language in EC 9.9500 that explains that the sections that follow, including EC 9.9630 for the SHS, list the plan policies that will apply to limited land use decisions. That introductory language in EC 9.9500 says: "Adopted Plan Policies. The adopted plan policies set forth in the sections beginning at EC 9.9500 shall be used when applicable for purposes of evaluating applicable adopted plan policies pertaining to subdivisions, partitions, and site review." More importantly, language in the code stating that refinement plan policies will be applied to any land use decision or limited land use decision begs the question of the extent of the regulatory footprint of any refinement plan. Even if the language in EC 9.9630 stated explicitly that the policies of the SHS were to be applied to aM decision, such language would not be effective to make the SHS or its policies apply to any land that the governing body with authority had not made subject to the SHS. The City needs to point to a PAPA by the governing body with authority that extends the SHS to the subject property. 3. The City asserts that the SHS became applicable to the UGB area when the county in 2003 adopted the EC 9.9630 language as part of the new zoning code for the Urban Transition Area the UTA code. Not so. This theory suffers the very same limitation at the city's theory stated above. For the same reason that the city's adoption of refinement plan policies for purposes of limited land use decisions, the county's adoption of the same new zoning code provisions for the UGB did not have the effect of extending the jurisdictional footprint of the SHS to any land where it did not already apply. APP B - HEARING LTTR 3.5.2018 Eugene Hearing Official March 5, 2018 Page 11 If it was the intention of the City to extend the SHS with the adoption of the new zoning code in 2001 (city adoption for city limits) and 2003 (county adoption for the UGB), then the City should have included language at that time to the effect that: "We hereby decide to extent the footprint of the SHS to all land that is inside the UGB now but that was outside the city limits in 1974." That would have done the job. That City has not pointed to equivalent language; it does not exist. 4. The City asserts that the 1982 Metro Plan ratified the South Hills Study. The Metro Plan did not extend the SHS to any land; it explicitly recognized the authority of the City to plan inside the city limits and the county outside the city limits. Finally, the Staff Report twists the applicant's narrative argument and says: "the applicant's materials acknowledge that the Metro Plan ratified the South Hills Study." The applicant said no such thing. Our narrative said that the 1982 Metro Plan "ratified the continued existence of area refinement plans, including the SHS, but the plan did not extend the footprint of the plan to land that was outside the City but inside the UGB." March 3 narrative at 23. There is nothing in the 1982 Metro Plan that extended the footprint of the SHS to any area outside of the city limits. Indeed, our narrative quoted from the 1982 Metro Plan language that verified that the city's planning and zoning authority was being limited to the city limits. The 1982 Metro Plan explained at page IV-3: "The Cities of Eugene and Springfield have responsibility for all areas within their city limits." 5. The city's final "legislative history interpretation" argument grasps at straws but misses even the straws. The City concludes with this fuzzy argument at page 6 para 2 of the Staff Report: "Staff believes that it is reasonable to interpret the footprint of the South Hills Study as encompassing all properties south of 18th Avenue and over 500 feet elevation within the City limits (and the UGB), based on the legislative history discussed above." The City has not cited any legislative history. It has just cited the language of the SHS and the enactment of the new zoning code in 2001 (for the City) and 2003 (for the UGB via the County) which included language that incorporated plan policies as standards for limited land use decisions. In none of the city's defenses is there a whiff of any enactment by a governing body having authority to apply the SHS as a play to the area that was outside the city limits in 1974 when the SHS was adopted. State statutes confirm what is apparent here the SHS can't be applied to any area that was in the county when the City adopted the SHS in 1974, unless the City can point to an ordinance affirmatively extending the plan to land within its jurisdiction. See ORS 215.130(2): APP B - HEARING LTTR 3.5.2018 Eugene Hearing Official March 5, 2018 Page 12 "An ordinance designed to carry out a county comprehensive plan and a county comprehensive plan shall apply to: '(a) The area within the county also within the boundaries of a city as a result of extending the boundaries of the city or creating a new city unless, or until the city has by ordinance or other provision provided otherwise; and" That current language was in effect in 1982 when the Metro Plan was acknowledged and in 1987 when the City assumed land use jurisdiction in the UGB. See Multnomah County v. City of Fairview, 96 Or App 14, 771 P2d 289 (1989). The only conclusion that the Hearing Official can reach, based on this record, is that the SHS has not been shown by the City to be a standard that applies to this land use decision because the SHS has never been adopted to apply to the subject property. Sincerely, ogee no" Bill Kloos Encl. Spreadsheet of standards Hearing Exhibits Ex A - Site Review for Alder Springs (SR 17-2) Ex B - LCDC Enforcement Final Order 17-ENF-001881 3.21.2017 Ex C - Metro Plan 1982, as acknowledged August 23, 1982. Ex D - "Agreement Regarding the Transfer of Building and Land Use Responsibilities within the Urbanizable Portion of the Eugene Urban Growth Boundary." May 7, 1987. Ex E- Alder Woods PUD HO Decision, PDT 07-5 (Sept. 10, 2008) Ex F - Alder Woods PUD PC Decision, PDT 07-5 (Nov. 5, 2008) APP B - HEARING LTTR 3.5.2018 LAW OFFICE OF BILL KLOOS PC OREGON LAND USE LAW 375 W. 4TH AVENUE, SUITE 204 EUGENE, OR 97401 TEL: 541.343.8596 WEB: WWW.LANDUSEOREGON.COM April 6, 2018 Eugene Hearing Official c/o Eugene Planning and Development 99 W. 10`x' Ave. Eugene, OR 97401 Re: Capital Hill PUD; Applicant's Final Argument Dear Hearings Official: BILL KLOOS BILLKLOOS @LANDU SEOREGON. COM Please accept this letter as the applicant's final argument. No new evidence is intended to be included here. We organize this letter using the positive Staff Report as an outline. We reference our March 5 Spreadsheet of Standards which addresses and critiques standards in summary fashion. We ask that the HO keep a few Big Picture points in mind when working her way through the details of this final argument. This is a proposal to infill on R-1 land that is surrounded by land developed with similar uses and at similar densities. This is where the City, as a matter of policy, has determined that development should happen. The density proposed here is well below what is allowed by the plan and the zone, and it is at about the density the City assumes in its Buildable Land Inventory will be put on land in this part of town. South Hills PUDs trigger a raft of discretionary standards, which offer opponents a long list of things to complain about and a long list of avenues opponents can take to argue we just didn't get it quite right. No South Hills PUD applicant for a PUD can get it right on all issues in the eyes of all neighbors. Getting a proposal together that attracts a positive staff report is a major accomplishment. We have a recommendation for approval from staff, subject to conditions. The applicant can live with all the conditions. With those points as an introduction, we offer the following argument. DESCRIPTION OF PLANNED UNIT DEVELOPMENT REQUEST This development proposal is accurately described in the Staff Report at page 4. APP C - Final Argument 4.6.2018 OTHER PRELIMINARY MATTERS NEEDED HOUSING STATUTE The Staff Report at pages 4-5 discusses the applicant's invocation of the Needed Housing Statute in the original 2017 application materials. We responded to the Staff Report in our March 5 Hearing Letter. Staff and the City Attorney provided more evidence and argument in the first open record period. We respond to that here. Please see our Hearing Letter dated March 5 for our basic pitch on how the state law and city code apply to the facts of this site. Our March 5 hearing letter summarizes the law as follows: The Needed Housing Statute applies directly to the City's review of this application. That statute establishes certain rights for any applicant proposing to develop housing. An applicant is entitled to review under only clear and objective standards. ORS 197.307(4). That right has been in place since 1981. A city may apply an alternative review track with standards that are not clear and objective only if "the applicant retains the option of proceeding under the approval process" with clear and objective standards. ORS 197.307(6). That option has been in place only since 1997. These basic rules reflect the plain language of the statute, and they are not contested by the City or any party. This applicant explained from the start that it is invoking its statutory right to review under clear and objective standards. The applicant explained that it needs a PUD approval to develop this site, but no PUD approval is possible under the Needed Housing track in the code (EC 9.8325). The applicant has fully explained how the standards in the code's Needed Housing track preclude any development approval when applied to this site. See March 3, 2017, application letter; March 5, 2018, hearing letter at page 4; and March 5, 2018, supporting Spreadsheet of Standards. Considering no PUD can be approved on this site under the Needed Housing standards in EC 9.8325, the applicant necessarily applied under the General Track in the code that contains discretionary standards (EC 9.8320). The applicant explained in its hearing letter that in the context of applying under the General Track, as the Court of Appeals has instructed in its Recovery House VI decision, the applicant is entitled to a determination from the Hearing Official whether discretionary standards may be applied at all. Put differently, the applicant has shown that the General Track is the only route through the code to get a PUD approval for any kind of development on this site. It applied under that route. Since there is not a route available with only clear and objective standards, the City is prohibited from applying any discretionary standards in this application. Finally, in conjunction with its March 5 hearing letter, the applicant provided a Spreadsheet of Standards and explained whether each standard is sufficiently clear and objective that it may be applied. Furthermore, pages 6-8 of the hearing letter include a summary of the law addressing which kinds of standards are clear and objective and which are not. The applicant's legal theory is pretty simple. It invokes the plain language of ORS 197.307(6). The applicant needs a PUD approval for this development site. The Needed Housing standards in APP C - Final Argument 4.6.2018 EC 9.8325 preclude any development approval on this site. The statute prohibits the City from applying any standards that are not clear and objective. In sum, ORS 197.307(6) prohibits the City from applying any discretionary standards under the General Track because no PUD approval is possible for this site under the Needed Housing track. The City Attorney (in her March 21 memo to the Hearing Official), the Planning Staff (in its March 21 memo to the Hearing Official), and the opponents' attorney (March 21 Sean Malone Lttr to Hearing Official) all pitch slightly different defenses to the applicant's theory that ORS 197.307(6) shields the applicant from discretionary standards. We address those defenses separately below. Response to City Attorney: The City Attorney misstates the applicant's legal theory and then debunks the misstated legal theory. The memo from City Attorney Sommers at page 1 para 1 summarizes the applicant's theory as asserting a right to approval of the applicant's "chosen development" under clear and objective standards. The City Attorney repeats this mischaracterization at page 2 para 3: "At bottom, applicant's arguments boil down to the assertion that ORS 197.307(4) requires clear and objective standards that also allow a path to approval of the applicant's chosen development. " That is not the applicant's position. Both our March 3, 2017 letter and our March 5 hearing letter explain that no PUD can be approved under the Needed Housing standards at EC 9.8325. "The application demonstrates that the applicant can't get approval of a PUD under the city Needed Housing standards in EC 9.8325." Hearing letter at 4 item 4. Here we say it again. No PUD can be approved on this site under the code's Needed Housing track in EC 9.8325 - not just the one proposed here. The City Attorney memo actually concurs with our reading of the law. "ORS 197.307(4) simply requires that the City [sic] provide the path for review under prescriptive clear and objective standards." March 21 memo at 1 para 2. This is the correct reading of the statute. The applicant's point is that no PUD, regardless of how it is designed, can be approved on this site under the code in the Needed Housing Track with clear and objective standards. The City Attorney memo assumes throughout that some PUD can be approved on the site under the clear and objective standards of EC 9.8325. However, the memo: (1) never explains what PUD design might be approvable under clear and objective standards; and more significantly, the memo (2) never takes issue with the applicant's statement that no PUD can be approved under EC 9.8325 or its explanation of why that is so. To be more specific, the City attorney memo never explains how development could proceed consistent with the limitation on grading 20% slopes when the only land on the site that is less than 20% slopes must be accessed by grading land on the site with 20% or steeper slopes. APP C - Final Argument 4.6.2018 Response to Staff. The staff suggestion that the applicant can develop two or three lots by a simple partition under clear and objective standards is not a substitute for the applicant's right to a PUD proposal that is approvable under clear and objective standards. Furthermore, no partition is possible under clear and objective standards. Our March 5 hearing letter and our remarks at the hearing took extreme umbrage-with the single sentence in the Staff Report the suggested the applicant could get several lots approved on the development site under clear and objective standards as an alternative to PUD review under discretionary standards. See hearing letter at 5 item (b), which critiques the Staff Report assertion that: "Based on a review of the site plan submitted by the applicant, staff believe that at least two additional units could be developed on the site if the applicant chose to proceed under the needed housing approval criteria." The staff pledged at the hearing to flesh out this conclusory statement. Staff did that in their March 21 memo. We respond to that here. As an initial matter, and in contrast to the City Attorney memo, the March 21 Staff memo correctly states the position of the applicant throughout. The PUD Needed Housing standards contain a limitation on grading 20% slopes at EC 9.8325(5) that precludes an approval of any PUD on this site under the clear and objective standards in that track. The standards collectively are too stringent. Consequently, the guarantee of ORS 197.307(6) allows the applicant to apply under the General Track in EC 9.8320 but does not permit the City to apply the discretionary standards in that track. The Staff s explanation of how two additional units could be developed appears at the bottom of page 2 of the March 21 staff memo. To summarize the staff position: 1. The southernmost part of the site is a discrete, vacant legal lot with more than 100 feet of frontage on Capital Drive. 2. The southernmost legal lot could be partitioned into two or three additional parcels. 3. Because that legal lot is below 900 feet elevation, the partition could be done without a PUD and under the Needed Housing partition standards of EC 9.8220. 4. The partition would include one front lot and two flag lots. 5. Staff assumes that no street would be required. There are fatal legal shortcomings with this staff position, which we discuss below, following a brief, fuller factual description of the site. APP C - Final Argument 4.6.2018 The unit of land staff refers to is shown on the Schirmer Satre graphic attached to the March 21, 2018 Staff memo, which also is attached to the March 3, 2017 application letter from this office. That unit of land is one of a number of tracts shown on the Schirmer Satre graphic as being within "Presumed Legal Lot Lines." In rebuttal of this staff theory, the applicant provided more information about this unit of land (the "Staff Partition Tract") in the Schirmer Satre letter of March 30 and Hearing Exhibit X (Dreyer Legal Lot Research 2015 Table and Graphic) that was submitted with that letter. That information shows that: the Staff Partition Tract is 1.48 acres in size; it is entirely below the 900- foot elevation; and it extends from Capital Drive on the west to the Ribbon Trail on the east. The Schirmer Satre letter of March 30 explains that the average slope along the southern boundary of the tract is 37.39 percent. Hearing Exhibit X explains the basis for the "Presumed Legal Lot Lines" information appearing on the graphic. It is "legacy" information from initial site planning. Early site planning efforts investigated the possibility of developing the site using existing Legal Lots, which would be moved about with property line adjustments. Based on deed research, a Table was prepared showing possible legal lots based on subdivision and deed history. A copy of that Table and associated mapping is included with Hearing Exhibit X. The Staff Partition Tract is shown on the Table and related graphic. As explained in the Schirmer Satre March 30 letter, planning for site development by adjusting the lines of existing legal lots was abandoned in 2015 after the City Council adopted Ordinance No. 20526, which limits any property line adjustments in this particular neighborhood to just 5 feet per year. See Ordinance No. 20526 (March 12, 2014), codified at EC 9.8415(6). "Within the R-1 zone in the city-recognized boundaries of * * * Fairmount Neighbors * * * property lines may only be adjusted up to 5 feet, measured perpendicularly from the current location of the property line." By restricting property line adjustments to a mere 5 feet per year, the City Council effectively forced the owners into the PUD process for any appreciable residential development. The early planning for the site never got to verifying the legal lots. However, all of the basic information about potential legal lots got carried forward to this application. Thus, the "Presumed Legal Lot Lines" information is shown on the Site Plan. See Schirmer Satre March 30 letter for details. Hearing Exhibit X shows that the Staff Partition Tract is just a portion of Lot 5 in the "Plat of Capital Hill," recorded January 12, 1912. There is no evidence of a subdivision or partition that created the Staff Partition Tract as a discrete, lawful unit of land. The Staff Partition Tract has no record of being conveyed as a discrete unit of land. It is a part of Tax Lot 201. Tax Lots 100 and 201 were annexed in 2014. See Hearing Exhibit W, Annexation Res. No. 5122 (Oct. 27, 2014), submitted with the Schirmer Satre March 30 letter. Staff have not shown that the Staff Partition Tract has any record of having been reviewed by the City and verified as a Legal Lot in the meaning of the code definition of "Legal Lot" in EC 9.0500, which is: "Legal Lot. A lot of record that has boundary lines that were established: APP C - Final Argument 4.6.2018 (A) Through a partition or subdivision procedure, (B) By a deed that was signed before April 2, 1962, or (C) Through approval of an application to validate a unit of land consistent with ORS 92.176." See generally, Schirmer Satre March 30 letter. Based on all of the above, the Table showing legal lot status of all the units of land on this site notes the Staff Partition Tract as a "Possible" legal lot. The Staff Partition Tract has not previously been found to be a legal lot by the City. It is not shown to be a legal lot by the City staff here. The applicant has not vouched that it is a legal lot. The "possible" legal lot status is an interim label the applicant applied to that unit of land in connection with a development strategy that had to be abandoned when the City changed the rules for property line adjustments, as explained in the Schirmer Satre March 30 letter. With that as background, we discuss separately below the legal shortcomings in the staff's position that the potential to divide the 1.48-acre Staff Partition Tract into three parcels is an adequate legal basis to deny the applicant the benefit of a PUD application reviewed under only clear and objective standards. 1. Partitioning the 1.48-acre Staff Partition Tract into three parcels under clear and objective partition standards in EC 9.8220 is not the ORS 197.307(6) guaranteed "option of proceeding" to dividing the 13.5 acres under the discretionary PUD track of EC 9.8320. Staff is suggesting partitioning the property into three parcels instead of dividing the property into 34. This is not an apples-to-apples analysis. It is an oranges-to-kumquats analysis. The Hearing Official needs to honor the correct order of analysis under the applicant's legal theory. That starts by standing in the thicket of the discretionary PUD standards of EC 9.8320 and then looking across the fence to the clear and objective PUD standards in EC 9.8325. The application is for a PUD. If the City wants to apply gLny discretionary PUD standards and the applicant has invoked its statutory rights to clear and objective standards, then the staff must show that the site can be developed with a PUD under clear and objective standards; not that some small part of the site could be partitioned under clear and objective standards. The HO should look at the Needed Housing PUD standards and ask whether they would allow approval of any PUD on this site. If the answer is "no," then the statute prohibits the HO from applying any discretionary standards in the General track of EC 9.8320. The HO should not entertain any questions about partition possibilities. Below we examine the partitioning option anyway, and we show why the code prohibits the partition advocated by the staff. APP C - Final Argument 4.6.2018 2. The 1.48-acre Staff Partition Tract cannot be partitioned alone in order to avoid the PUD process because the code prohibits developing that 1.48-acre tract standing alone; the adjacent property in the same ownership must be included, and that triggers a PUD. EC 9.8210(2) governs applications for partitions and requires that "Applications include all contiguous property under the same ownership as the subject property, and are signed by the owner of the property." Thus, the "Staff Partition Tract," as a discrete 1.48-acre chunk of the larger ownership, cannot, as a matter of law, be partitioned separately from the balance of the property in the same ownership. The staff's proposal to circumvent the applicant's demand for clear and objective standards is a nonstarter. "That dog won't hunt."' As the balance of the adjacent property must be included in any partition application, it is plainly clear that a PUD approval is needed when the relevant dots in the code are connected. The applicability standards for the PUD process appear at EC 9.8305 and capture this site when the code language in 9.8210(2), quoted above, is honored and the all of the property in the same ownership is considered together. EC 9.8305 provides, in relevant part: "Applicability. PUD provisions shall be applied when any of the following conditions exist: (1) The proposal is subject to review and approval through the PUD process according to an adopted refinement plan, including but not limited to, property within the boundary of the South Hills Study where all or a portion of a development site is: (a) Between an elevation of 500 feet and 701 feet, and the development site is at least 4 acres with areas of the development site containing slopes that exceed 20%. (b) On property above 701 feet in elevation, except partitions that do not include the creation of a public street, unless an alternate review procedure is approved pursuant to EC 9.9630(3)(a). (c) Above an elevation of 900 feet, except for a land division undertaken by or on behalf of a governmental entity in order to preserve, manage, or expand park, open space, or natural resource areas." The bold italic in (c) above is triggered here. The bold italic language in (b) above is potentially triggered if a new street is required in connection with the partition. In summary, if the owner of the Staff Partition Tract were to apply tomorrow for a simple partition of just that 1.48 acres under the clear and objective standards of EC 9.8220, the City staff response to that application in the completeness review process would be: ' Walter Matthau (as Sen. Russell Long) to Kevin Costner (as D.A. Jim Garrison) in J.F.K. (1991). APP C - Final Argument 4.6.2018 "Thank you for your application for a three-parcel partition of the Staff Partition Tract under the clear and objective partition standards of EC 9.8220. However, under EC 9.8210(2), your application must include adjacent property in the same ownership, which includes the balance of the property owned by Tom and Cynthia Dreyer. When the adjacent land in the same ownership is included, the total acreage is over four acres, it includes land above the 900 feet elevation, and it also includes land that exceeds 20% slope. Therefore, if you want land use approval to divide this property for development, the provisions of the Planned Unit Development overlay zone at EC 9.8305(1) require that you do so through the Planned Unit Development process of EC 9.8300 et seq. You have the option of applying for review under the General standards of EC 9.8320, which allow the City Hearing Official to approve or deny the application largely in her discretion. Or you may apply for review under the Needed Housing standards of EC 9.8325, which are clear and objective, but under which no PUD on this site can be approved due to the slopes exceeding 20%. The part of your development site that is 20% slope or less can't be reached without grading slopes that may not be graded under EC 9.8325(5). We look forward to reviewing your PUD application." 3. Even if the 1.48-acre Staff Partition Parcel could be considered ala carte, a partition application cannot meet the clear and objective standards stated in EC 9.8220. If the Hearing Official entertains the Staff Partition Parcel strategy as an avenue for the City to comply with the statute despite the discussion in item 2 above, then the staff has the burden of showing that a partition of the 1.48-acre site under EC 9.8220 can be done with a certainty. Staff has not done that and it can't be done - the required dots in the code can't be connected. (a) A partition must be on a "legal lot," and staff has not shown this tract is a legal lot. EC 9.8210(3) requires: "The lot proposed to be divided in the partition application is a legal lot." Staff assumes that the 1.48 acres is a legal lot. They have not proven that. The applicant has explained the dubious legal lot pedigree of this tract standing alone in the discussion above. (b) A partition can't prove up on the maximum lot size of 13,500 sq. ft. absent discretionary relief. EC 9.8220(2) invokes the lot standards of EC 9.2760, and the standards in EC 9.2760 Table set a 13,500 sq ft maximum lot size in the R-1 zone. At 1.48 acres, one or more of the partition lots cannot meet this standard and would require discretionary relief to approve. (c) A partition can't meet the street connectivity standards in EC 9.6880(2) absent discretionary relief. APP C - Final Argument 4.6.2018 EC 9.8220(2) invokes the street connectivity standards in EC 9.6815, which apply to "all development" per the introductory language of EC 9.6000. EC 9.6815(2) requires: "(b) The proposed development shall include street connections in the direction of all existing or planned streets within 1/4 mile of the development site. The proposed development shall also include street connections to any streets that abut, are adjacent to, or terminate at the development site. (c) The proposed development shall include streets that extend to undeveloped or partially developed land that is adjacent to the development site or that is separated from the development site by a drainage channel, transmission easement, survey gap, or similar property condition. The streets shall be in locations that will enable adjoining properties to connect to the proposed development's street system." These sections require extending a street through the Staff Partition Tract to the east property line, to provide a connection to the vacant property to the east and to the existing Floral Hill Drive. The City may grant exceptions to this connectivity requirement if the applicant proves up on certain facts. See EC 9.6815(2)(g). However, proving up for an exception is based on non- clear and objective standards, as reflected in EC 9.6815(2)(g). The staff memo suggests that the circumstances would justify not requiring street connectivity. However, that is guesswork about how discretionary standards might be applied to the connectivity standards. The staff can't point to a partition track with discretionary standards and say that it provides a clear and objective alternative to review of a PUD. In summary, partitioning the 1.48-acre tract of land identified by the staff into two or three lots to allow dwellings to be built on those lots cannot be accomplished under the code, even if houses could be built on the 37% slope of those lots. Response to Opponents: Attorney Malone seems to argue that is OK for a site that is entitled to the benefit of the Needed Housing Statute to not be developable at all under clear and objective standards. The statute is plain; if the applicant can't proceed to some PUD approval under clear and objective standards then the statute prohibits applying any discretionary standards. Mr. Malone endorses the opinion of the City Attorney and then adds a gloss. He understands that a situation may arise where no PUD is approvable under clear and objective standards. According to Mr. Malone, the statute only requires the opportunity to apply under clear and objective standards; it does not guarantee that something must be approvable under clear and objective standards. Mr. Malone does not address explicitly the language in the statute that the applicant relies upon to take discretionary standards off the table. That is the language in ORS 197.307(6): APP C - Final Argument 4.6.2018 "(6) In addition to an approval process for needed housing based on clear and objective standards, conditions and procedures as provided in subsection (4) of this section, a local government may adopt and apply an alternative approval process for applications and permits for residential development based on approval criteria regulating, in whole or in part, appearance or aesthetics that are not clear and objective i£ (a) The applicant retains the option of proceeding under the approval process that meets the requirements of subsection (4) of this section;" The applicant has invoked its right to clear and objective standards. The applicant has shown that no PUD can be approved on this site under the Needed Housing track standards in EC 9.8325. Neither the city staff nor the opponents has shown that some PUD can be approved on this site under EC 9.8325. As a result, the statute prohibits the City from applying any discretionary standards. The applicant applied under the General Track; the statute prohibits the City from applying any discretionary standards in the General Track. After the discretionary standards in EC 9.8320 are removed from the table by operation of ORS 197.307(6), the City simply needs to apply the remaining standards in EC 9.8320 General Standards track that are clear and objective. Mr. Malone has failed to offer an explanation of how ORS 197.307(6)(a) operates in this situation, as have the City Attorney and City staff. Dropping back to a higher elevation on this, the applicant appreciates there is no reported case applying the Needed Housing Statute exactly as the applicant requests here. Using a mountain bike metaphor here, Eugene is the only "Multi-Track" City that we are aware of - one that has discrete tracks for PUDs with discretionary versus clear and objective standards. Our March 5 Hearing Memorandum discusses a few of the cases in which LUBA has prohibited "Single- Track" cities from applying discretionary standards when an applicant invokes the statute. See the recent Group B decision in Corvallis. Furthermore, there are situations in Eugene where LUBA has pruned the Needed Housing track to eliminate standards that are not actually clear and objective. See the recent Walter decision. All those cases just apply the plain language of the statute; that is what the applicant requests here. To editorialize just a smidge, this dilemma for the City is of its own making. When the City adopted the Multi-Track model in 2001, it failed to adequately test ride the Needed Housing track standards to ensure that any landowner with South Hills property who invoked her statutory rights would actually be able to get some kind of a PUD approval. The City adopted Needed Housing standards that are simply too stringent to allow development on each site in the City that requires a PUD approval. As LUBA pointed out in the Home Builders' challenge to the 2001 code update, sometimes compliance with the statute needs to be tested in the context of a site- specific application rather than in a facial challenge to the ordinance. See Home Builders Assn. of Lane County v. City of Eugene, 41 Or LUBA 370, 423 (2002). This is one of those situations. The zoning regulations that apply here show that the applicant does not have an avenue in the code to get a PUD approval on this site under clear and objective standards. Hence, the statute APP C - Final Argument 4.6.2018 requires the Hearing Official to conclude that the City may not apply any discretionary standards - even to an application filed under EC 9.8320. As the Court of Appeals explained in the Recovery House VI matter, this is true even in the context of an application under standards that the applicant asserts the City may not apply. OTHER PRELIMINARY MATTERS SOUTH HILLS STUDY APPLICABILITY The Staff Report at pages 5-6 discusses the applicant's assertion that the South Hills Study (1974) refinement plan does not contain standards that apply to this application. We responded to the Staff Report in our March 5 Hearing Letter. Staff and the City Attorney provided more evidence and argument in the first open record period. We respond to that here. The City has failed to show that the South Hills Study, as a refinement plan of the Metro Plan, was ever extended to the subject property by a governing body with authority to adopt plans for the subject property. Hence, the Hearing Official may not apply the South Hills Study to this application. Please see our March 5 Hearing Letter at page 9 and following, which documents the chronology of planning authority for land outside the city limits with reference to the relevant legal documents. The City Attorney and opponents' attorney both respond to the applicant's assertion that the City has failed to carry its burden to show that the South Hills Study (1974) refinement plan does not apply the subject property for the reason that the SHS was never extended to this property. (Nor other land outside the City limits in 1974.) The City needs to show that the plan was applied to this site by a governing body that had planning authority for the site at the time it acted. That would have been a decision by Lane County from 1974 to 1987 or a decision by the City of Eugene after the date in 1987, when the County delegated planning jurisdiction for the UGB area to the City. The challenge from the HO to the City should be: "Show me the Post- Acknowledgment Plan Amendment" that did this. It does not happen by osmosis, default, civic assumptions, many decades of past practice, or a present day wave of a Harry Potter magic wand. Either the plan was extended by the act of a governing body with authority to plan for the site at the time of the act, or it was not. It is important to note here that no party has taken issue with the chronology of the "key dates for South Hills planning" set out at page 9 of our Hearing Letter or with the public documents supporting that chronology. That is a good starting point for the Hearing Official's analysis. Response the City Attorney: There is no legal basis for the city's new theory that the refinement plan automatically attaches to properties as they are annexed to the City of Eugene. APP C - Final Argument 4.6.2018 The City's new theory in its March 21 submittal is that the SHS was not adopted with a map, but was intended to cover land outside the city limits as of 1974; thus, the SHS applies to properties when they are annexed to the City. City Attorney March 21 memo at 3. The trouble with this theory is two-fold. First, there is no basis in the SHS supporting this theory insomuch as there is no language in the SHS that says the plan (which is a body of law) applies to property at the time the property is annexed. It is just not there. Second, and more importantly, the City's theory is contrary to the statute that says county plans and codes continue to apply to land even after the land is annexed to a city and until such time as the city changes those designations. ORS 215.130(2). The City may only plan and zone land over which it has statutory authority to do so. The City did not acquire authority to plan and zone land outside the City until it was delegated that authority by the County in 1987. Response to Opponents' Attorney: Mr. Malone simply agrees with staff - it must be the case that the South Hills Study applies to property when it is annexed. The memo from the opponents' attorney really adds nothing new to the discussion of the law. The assertion is that it simply must be the case that the SHS sticks at the time of annexation. There is nothing in any statute, comprehensive plan, refinement plan, or City ordinance that expressly says that or implies it. This site is subject to the Metro Plan, which was extended to the UGB with the acknowledgment of the first Metro Plan in 1982; it is not subject to the SHS. In their search for a Post-Acknowledgment Plan Amendment that applies the SHS to this property, the parties should be looking for a city or county enactment that applied the SHS to the urban growth boundary. That would be a county enactment between 1980 and 1987 (when we had a UGB and the county was in charge of it), or a city enactment after the city got planning authority for the UGB in 1987. As best as the applicant can determine, that never happened. The City has the burden to prove that it did happen to show that the SHS is a standard that may be applied under ORS 227.173. The City has not done that. EVALUATION OF SUBSTANTIVE STANDARDS EC 9.8320(1) The PUD is consistent with applicable adopted policies of the Metro Plan. Staff Report page 6. The applicant concurs that with the conclusion in the Staff Report that: "none of the relevant Metro Plan policies appear to directly apply as mandatory approval criteria for the PUD." Please also see our discussion of Metro Plan policies in our March 5 Spreadsheet of Standards. The policies either do not contain mandatory language; they are implemented through the code; or they are directive to the city, not to applicants. APP C - Final Argument 4.6.2018 Opponents also referenced two other Metro Plan policies in addition to those addressed by the staff and the applicant Policies E.2 and J.8. Environmental Design Policy E.2 says: Natural vegetation, natural water features, and drainage-ways shall be protected and retained to the maximum extent practical. Landscaping shall be utilized to enhance those natural features. This policy does not preclude increasing their conveyance capacity in an environmentally responsible manner. Energy Policy J.8 says: Commercial, residential, and recreational land uses shall be integrated to the greatest extent possible, balanced with all planning policies to reduce travel distances, optimize reuse of waste heat, and optimize potential on-site energy generation. Neither of these policies is clear and objective; furthermore, each is implemented through more detailed code language. EC 9.8320(2) The PUD is consistent with applicable adopted refinement plan policies. Staff Report at 7. South Hills Study (1974) 1. The SHS is not a source of standards for this property because the City has not shown that the plan was ever applied to the property by a governing body having planning authority for the site at the time. See discussion above of OTHER PRELIMINARY MATTERS SOUTH HILLS STUDY APPLICABILITY. 2. The SHS does not contain policies that are clear and objective, and therefore they may not be applied. See discussion above of OTHER PRELIMINARY MATTERS NEEDED HOUSING STATUTE. For a discussion of specific SHS policies and why they are not clear and objective, see our March 5 Spreadsheet of Standards submitted herewith. Please also see our summary of the law relating to clear and objective standards in our March 5 Hearing Letter. 3. The SHS also contains policies that are not directly applicable as standards because they are not stated in mandatory terms, or they are correctly viewed as directives to the City to adopt policy rather than directed at applications, or they are implemented through the existing code standards rather than being directly applicable in quasi-judicial contexts. Please see our March 5 Spreadsheet of Standards that addresses each policy. APP C - Final Argument 4.6.2018 4. Finally, to the extent that any of the SHS policies do apply, the Staff Report at 8-15 has gotten it right in its review of each policy and its finding of compliance. We offer the following additional comments with respect to the specific SHS policies addressed in the Staff Report: The policies related to "Development Standards" are prefaces with the directive to "encourage." That limitation makes the policies non-mandatory standards for this decision. The policy to "encourage clustering of open space elements of different developments" is also written in non-mandatory terms. The policy requiring that balancing of "public and private interests" is more subtle than is usually recognized. The City has a keen public interest, as stated in the Goal 10 provisions of the comprehensive plan, in providing housing for the city's growing population. Laurel Hill Plan 1. Our March 5 Spreadsheet of Standards identifies three policies that are relevant, but explains why they may not be applied because they are not clear and objective or they do not state a mandatory standard. 2. The Staff Report at pages 16-18 addresses the same three Laurel Hill Plan policies and explains why this proposal complies. The Staff Report also address several additional policies - Transportation Policies 1, 2 and 4, and East Laurel Hill Area Policy 6. None of these appear directly applicable to this proposal. To the extent that any of the policies addressed in the Staff Report can be applied, the applicant supports the staff's findings of compliance. 3. Opponent Jason Brown quoted Laurel Hill Plan Land Use Policy 1 in support of his complaint that future dwellings would be visible from the Ribbon Trail. The referenced policy relates to residential density and discouraging large apartment complexes. These policies do not relate to views from the Ribbon Trail. EC 9.8320(3) The PUD will provide adequate screening from surrounding properties including, but not limited to, anticipated building locations, bulk, and height. 1. Our March 5 Spreadsheet of Standards and Hearing Letter explains the "adequate" standard makes this standard less than clear and objective and therefore not applicable. 2. The Staff Report at 18-19 addresses this standard in a competent fashion; we recommend those findings to the HO. APP C - Final Argument 4.6.2018 3. This standard was a focus of opposition. Opposition points to potential lot coverage - stressing the amount of area on individual lots that could still be developed despite the areas of the site that will be preserved under the site plan. The HO should rely on the Staff Report analysis, which emphasizes the areas that will provide screening and preserve trees and vegetation instead of the potentially developable area on each lot. Opposition states its concerns about building heights. All residential construction in this project will meet code standards for the R-1 zone. In this respect, the structures will be similar to the other nearby structures in the R-1 zone. The HO should find that structures in a neighborhood that are all subject to the same height limitations will be compatible with each other in terms of height. Any screening to be preserved on the site will enhance compatibility. Opposition states its concern about the efficacy of unstated future CC&Rs to contribute to screening. The HO should base her findings about the adequacy of screening on the proposed binding aspects of the site plan under consideration, the applicable residential development standards, and recommended conditions - not the potential contribution of future, unarticulated CC&Rs. Opposition generally critiques the screening proposal, stating that it is not enough: the houses could be huge, too many trees will be cut, and future trails in the park to the north may expose future park users to a view of the houses. The applicant understands that when neighbors oppose the potential for new neighbors, the mitigation proposals will never be enough. The applicant hopes that the HO keeps in mind that the standard here is "adequate" screening - not "complete screening." To what extent should existing single family neighbors be entitled to screening from more single family neighbors, when the ultimate policy choice in the plan and the code is to develop vacant residential land at planned densities? Existing neighbors are not entitled to be completely screened from future neighbors living in houses just like theirs. The standard is "adequate". The HO should find, based on the record, that the proposed screening will be adequate, as recommended by staff. EC 9.8320(4) The PUD is designed and sited to minimize impacts to the natural environment by addressing the following: (a) Protection of Natural Features. 2. For areas included on the City's acknowledged Goal 5 inventory: a. The proposed development's general design and character, including but not limited to anticipated building locations, bulk and height, location and distribution of recreation space, parking, roads, access and other uses, will: (1) Avoid unnecessary disruption or removal of attractive natural features and vegetation, and APP C - Final Argument 4.6.2018 (2) Avoid conversion of natural resource areas designated in the Metropolitan Area General Plan to urban uses when alternative locations on the property are suitable for development as otherwise permitted. b. Proposed buildings, road, and other uses are designed and sited to assure preservation of significant on-site vegetation, topographic features, and other unique and worthwhile natural features, and to prevent soil erosion or flood hazard. 1. Our March 5 Spreadsheet of Standards and Hearing Letter explains why the elements of this standard are not clear and objective and therefore make it inapplicable. 2. The Staff Report at 20 addresses this standard in a competent fashion; we recommend those findings to the HO. 3. This standard was a focus of opposition. The opposition assumes, without any evidence related to this site, that there are rare, sensitive and vulnerable animal species on this site that would be impacted by this development. There is no expert evidence to support this; it is a working assumption by opposition. In addition, opposition is assuming that the code reference to "natural features" encompasses animals. That term is not defined. in the code, as noted in our March 5 Spreadsheet of Standards. That assumption is not consistent with the ordinary meaning of the term "natural features." (b) Tree Preservation. The proposed project shall be designed and sited to preserve significant trees to the greatest degree attainable or feasible, with trees having the following characteristics given the highest priority for preservation: 1. Healthy trees that have a reasonable chance of survival considering the base zone or special area zone designation and other applicable approval criteria; 2. Trees located within vegetated corridors and stands rather than individual isolated trees subject to windthrow; 3. Trees that fulfill a screening function, provide relief from glare, or shade expansive areas of pavement; 4. Trees that provide a buffer between potentially incompatible land uses; 5. Trees located along the perimeter of the lot(s) and within building setback areas; 6. Trees and stands of trees located along ridgelines and within view corridors; 7. Trees with significant habitat value; 8. Trees adjacent to public parks, open space and streets; 9. Trees located along a water feature; 10. Heritage trees. 1. Our March 5 Spreadsheet of Standards and Hearing Letter explains why the elements of this standard are not clear and objective and therefore make it inapplicable. The standard calls for a APP C - Final Argument 4.6.2018 subjective judgment when evaluating tree removal in conjunction with the density allowed by the code. In addition, many terms in the list of 10 priorities are undefined and ambiguous. 2. The Staff Report at 21-22 addresses this standard in a competent fashion; we recommend those findings to the HO, including the conditions of approval recommended by the staff. 3. Compliance with this standard was a major target for opposition. Opposition critiqued many aspects of the tree preservation evidence and proposal, including with a report by a forester certified in California. In response to the opposition testimony, the applicant submitted a report by Kyle King, licensed Oregon arborist, in the March 21 open record period. See Hearing Exhibit K submitted with Schirmer Satre Letter dated March 21. The Schirmer Satre letter explains that the opposition report from California forester Mehrwein needs to be weighed with a grain of salt. He is not a certified Oregon arborist, and the Eugene code does not recognize an out-of-state professional forester as an acceptable design professional for a tentative PUD process. Schirmer Satre Lttr at 2. The report of applicant's arborist Kyle King makes several points in response to the broad pattern attack by opponents. See Hearing Exhibit K. His assessment is based on a site visit, in contrast to the report of Mr. Mehrwein. With a notable exception, the deciduous trees on site are in "fair to poor condition." The deciduous trees located in the buildable areas are in no better condition than are those in the thicker forested areas. Their removal will not create a significant loss to the tree canopy or general health of the environment. The tree canopy health will improve with the planting of new, healthy and more appropriate trees. He explains why removal of trees from some areas and leaving trees in groupings in other areas is not likely to create a windthrow problem in the future. He explains why the proposal to leave a large area of trees adjacent to the Ribbon Trail on the steepest slopes on the site is the most responsible way to approach tree protection on this site, including for preserving habitat value. Finally, as evidence that the tree canopy on'this site will fare well under the development proposal and provide good screening and fit with the neighborhood, he explained that the canopy in the surrounding neighborhood has this quality, and it was developed in much APP C - Final Argument 4.6.2018 the same manner as the proposal here. The best evidence that this will work out is in the neighbors' own forested. Tree preservation standards are a perennial hotspot in all reviews of PUDs in the South Hills. The standards above are inherently subjective and call for the most basic value judgments. There are many ways to get trees "right" and just as many ways to get trees "wrong." The applicant's approach has been to preserve trees in large groupings and to require replanting of trees that may be removed at a 2:1 ratio. The approach to tree preservation is the combined effort of Oregon licensed professionals - a landscape architect and an arborist. The staff has given the proposal a good shaking out, and the applicant has incorporated staff recommendations along the way; thus, we have a positive staff recommendation. The HO should approve this approach as well with the conditions recommended by staff. EC 9.8320(4) The PUD is designed and sited to minimize impacts to the natural environment by addressing the following: (c) Restoration or Replacement. 2. For areas included on the city's acknowledged Goal 5 inventory, any loss of significant natural features described in criteria (a) and (b) above shall be consistent with the acknowledged level of protection for the features. 1. "Natural Features" is not defined in the code; we question whether it can be applied as a clear and objective standard if a definition must be found for it. 2. We recommend the finding of compliance as stated in the Staff Report at 24. EC 9.8320(4) The PUD is designed and sited to minimize impacts to the natural environment by addressing the following: (d) Street Trees. If the proposal includes removal of any street tree(s), removal of those street tree(s) has been approved, or approved with conditions according to the process at EC 6.305. The Staff Report at 25 recommends a finding of compliance with a condition. The applicant supports that approach. EC 9.8320(5) The PUD provides safe and adequate transportation systems through compliance with the following: There are three parts to this standard - (a), (b), and (c). They are addressed separately in the staff report, so we take that approach here. APP C - Final Argument 4.6.2018 Initially, all three parts of this standard are prefaced by the phrase "safe and adequate" in the opening sentence. If the "safe and adequate" phrase is a part of the standard that is independent of the standards in the subparts, then the standard as a whole is not clear and objective and may not be applied. If, in contrast, the standard is correctly read as being implemented only through the more particular standards listed in (a), (b) and (c), then the focus should be on the substandards in those sections. Furthermore, if it is not clear whether a separate "safe and adequate" determination, is needed, and the standard could be read either way, then the standard as a whole is not clear enough to be applied. The applicant believes that the standard as a whole is sufficiently ambiguous that it should not be applied at all. Looking to the individual subparts of this standard: EC 9.8320(5)(a): EC 9.6800 through EC 9.6875 Standards for Streets, Alleys, and Other Public Ways (not subject to modifications set forth in subsection (10) below). 1. The Staff Report, at pages 25 through 30, slogs through about 14 different standards for streets, alleys and other public ways, based on the comments incorporated by Public Works, and it finds compliance without the need for any further right of way dedication or special setback standards. The HO should endorse the findings of compliance in the Staff Report. The Staff relies heavily on the December 8 Memorandum from City Engineer Scott Gillespie, PE, which is Attachment F to the Staff Report. That memo reviews the development proposal for compliance with city road standards, in particular the adequacy of Capital Drive and Spring Blvd., with respect to "capacity, operations and safety." It also reviewed the traffic engineering study submitted by the applicant's engineer. The Gillespie memo concluded: "The applicant's engineer provided a robust traffic study and concluded the existing roadway system is safe and adequate to serve. I have also reviewed the roadway system and conclude there is no evidence to suggest the existing roadways are unsafe or incapable of serving the development site. Therefore, City staff concurs with the applicant's engineer and recommends the existing transportation system is adequate to serve the proposed development and no offsite mitigation is required." 2. Opponents take issue with the Staff Report and City Engineer supporting analysis. The thrust of the opposition evidence and argument, however, is that the road situation is neither "safe" nor "adequate." The applicant believes that opponents misunderstand the nature of the standard. It does not invite a new, subjective determination of safety or adequacy. Instead, the "safe and adequate" test has been operationalized in the code to inquire into compliance with the myriad of code standards that are referenced in EC 9.8320(5)(a). That is the analysis conducted by the applicant and the City Engineer and summarized in the Staff Report. The development proposal will have a "safe and adequate transportation system" with respect to streets because it will APP C - Final Argument 4.6.2018 comply with the standards incorporated into EC 9.8320(5)(a). That conclusion is supported by the Staff Report and should be affirmed by the HO. (5) The PUD provides safe and adequate transportation systems through compliance with the following: (b) Pedestrian, bicycle and transit circulation, including related facilities, as needed among buildings and related uses on the development site, as well as to adjacent and nearby residential areas, transit stops, neighborhood activity centers, office parks, and industrial parks, provided the city makes findings to demonstrate consistency with constitutional requirements. "Nearby" means uses within 1/4 mile that can reasonably be expected to be used by pedestrians, and uses within 2 miles that can reasonably be expected to be used by bicyclists. 1. The Staff Report at 29 and 30 explain why the application complies with this standard. The HO should endorse the findings in the Staff Report. 2. Opponents question whether enough facilities are being provided for pedestrians and cyclists. However, this is a subjective standard. It comes with the "as needed" qualifier, which invites argument. Here the HO should endorse the Staff Report finings. (5) The PUD provides safe and adequate transportation systems through compliance with the following: (c) The provisions of the Traffic Impact Analysis Review of EC 9.8650 through 9.8680 where applicable. 1. The HO has previously determined that the TIA provisions of the code do not apply when the applicant invokes the Needed Housing Statute because the trigger and the standards for a TIA in the code are not clear and objective. See our March 5 Hearing Letter at 2 and supporting Hearing Exhibit A. Therefore, this standard does not apply. 2. The Staff Report at 30 concludes that the triggers in the code for a TIA are not met and explains why. The HO should adopt the findings of the staff on this issue. 3. Opponents take great issue with the city conclusion that no TIA is needed. They also stress that the TIA that was done and submitted by the applicant's engineer is not competent. This is the opinion of the opponents' engineer Mr. Massoud Saberian P.E. We refer the HO to the March 21 Technical Memorandum from Damien Gilbert P.E., which is Hearing Exhibit B attached to the Schirmer Satre letter of March 21. He addresses the criticisms of the opponents' engineer in detail. He notes, in summary: APP C - Final Argument 4.6.2018 Mr. Saberian is a full-time supervising engineer for the City of Santa Rosa, California. He does not state that he ever visited the site. Mr. Saberian did not submit any calculations to demonstrate that the TIA standards are not met. Mr. Saberian concedes that the "existing conditions" are that the existing conditions meet the city roadway width standards. The "narrow street with no sidewalk" situation is ubiquitous in the South Hills generally; it is an effective method, as the City Engineer notes, to calm traffic. Some new streets in the South Hills have purposely been constructed this way as a way to implement traffic calming policy. Neighbor concerns about speeding and illegal parking raise city enforcement issues, not grounds for denying new development. The Gilbert response concludes with responses to specific criticism in Saberian report The neighborhood response committee submitted evidence at the second open record period. This evidence should not be considered because it responds to hearing evidence, not evidence in the first open record period. In summary, the HO should endorse the conclusion in the staff report, as supported by the expert testimony of the applicant's and the city's engineer. 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. 1. As explained in our March 5 Standards Spreadsheet and Hearing Letter, the operative phase "significant risk" makes this a subjective standard that can't be applied consistent with the Needed Housing Statute. 2. The Staff Report at 32-34 examines the application under each of the five elements of this standard, finds compliance, and recommends approval. The Staff Report recommends a condition requiring further geotechnical analysis in conjunction with any development. The applicant concurs with that recommendation. The HO should endorse the Staff Report findings and condition. 3. Opponents' consultant, Gunnar Schlieder, Ph.D., CEG, provided a half-hour PowerPoint lecture at the hearing and a written report critiquing the applicant's geotechnical study. He also made two post-hearing submittals. The applicant's original report was authored by Ronald Derrick P.E., G.E., Principal Geotechnical Engineer at Branch Engineering, and Gary Sandstrom APP C - Final Argument 4.6.2018 C.E.G., Certified Engineering Geologist. Their original report was supplemented by post- hearing submittals responding to the Schlieder report and his post-hearing submittals. It is important to keep in mind that the Branch Engineering report was an initial report on the site done for site planning purposes. The ultimate conclusion of the report, stated in the Executive Summary, was: "Our findings are that the proposed development is feasible from a geologic and geotechnical standpoint provided the recommendations within this report are incorporated into the design and construction of the project." And the report concluded at page 7: "In our opinion there are no significant geologic hazards that would impede or otherwise restrict the planned development as proposed. The proposed development will not adversely impact the proposed site or adjacent properties." The Schlieder lecture and report picked at details in the Branch Engineering Study. His report concludes at page 10 that "[t]he PUD's design also fails to satisfy the requirements of EC 9.8320(6)." This conclusion does not target the ultimate conclusion of the Branch Engineering Report that the development is feasible from a geotechnical standpoint, that there are no significant geologic hazards that would impede the proposed development, and that further geotechnical study is appropriate at each stage of the physical development process. The post-hearing submittals of Branch Engineering and Schlieder get into a back and forth on geotechnical issues. See especially the Branch Engineering March 20 response to the Schlieder hearing presentation/report, which appears at Hearing Exhibit J to the Schirmer Satre March 21 letter. The city's take on the adequacy of the applicant's geotechnical work, as related to the relevant questions at this stage of the review process, is stated at Staff Report 45: Public Works staff confirms that the applicant's analysis, prepared by Ronald J. Derrick, P.E., G.E. of Branch Engineering, Inc., which is dated February 6, 2017, meets the Level One and Level Two Analysis requirements of EC 9.6710(4)(a) and (4)(b), which consists of a compilation of record geological data, site conditions, sub-surface investigation and testing and a report discussing site and soil characteristics in relation to the proposed development and other applicable standards. The report concludes that the site is geologically and geotechnically suitable for the proposed development. The report also includes a number of construction recommendations including the design and construction of the proposed residential building pads and foundations and public infrastructure improvements. Public Works staff concurs with this initial geotechnical assessment. Adherence to the report recommendations will be required during the subsequent PEPI permit, and building and site development processes, based on the condition of approval recommended previously under EC 9.8320(6). APP C - Final Argument 4.6.2018 In summary, the applicant's geotechnical information supports a finding of no "significant risk" if the development proceeds as proposed to be conditioned. Mr. Schlieder has not demonstrated otherwise. EC 9.8320(7) Adequate public facilities and services are available to the site, or if public services and facilities are not presently available, the applicant demonstrates that the services and facilities will be available prior to need. Demonstration of future availability requires evidence of at least one of the following: (a) Prior written commitment of public funds by the appropriate public agencies. (b) Prior acceptance by the appropriate public agency of a written commitment by the applicant or other party to provide private services and facilities. (c) A written commitment by the applicant or other party to provide for offsetting all added public costs or early commitment of public funds made necessary by development, submitted on a form acceptable to the city manager. 1. As explained in our March 5 Standards Spreadsheet, the touchstone standard here, "adequate," is inherently subjective. So, too, are terms in each of the subsections that operationalize the term "adequate." This standard may not be applied consistent with the Needed Housing Statute. 2. The Staff Report at 34-36 "finds that adequate public facilities and services are either presently available, or can be available, and can be extended to serve the proposed development, as shown on the applicant's plans and consistent with the above standard." The Hearing Official should reach the same conclusion, too. The two most contentious substantive issues here are adequacy of the water supply and roads. This part of the Staff Report reviews the transportation analysis in summary fashion, with reference to the detailed December 8 analysis of the applicant's traffic safety and connectivity study. It reaffirms the conclusion that transportation facilities are adequate for this project. The Staff Report also finds compliance with adequacy standard for water supply. The staff analysis, summarizing referral comments from EWEB, explain that water is available but that a new pump station is needed in the adjacent Hendricks Park to serve this site. The applicant concurs with the recommended condition of approval requiring a financial guarantee in conjunction with final platting. Looking more closely at the standards for proving up on public facilities for water in EC 9.8320(7), the applicant looked at three options stated in the standard. Option (a), a "prior written commitment of public funds," is not in the control of the applicant. Option (b), a APP C - Final Argument 4.6.2018 commitment to "provide private services and facilities," is not a tenable option when the plan and code require "public facilities." The applicant sought to comply with option (c), providing a "written commitment by the applicant or other party to provide for offsetting all added public costs or early commitment of public funds made necessary by development, submitted on a form acceptable to the city manager." The operative requirement in EC 9.8320(7)(c) is a form of financial commitment "acceptable to the city manager." The applicant requested a copy of the form that would be used by the City Manager as a public record; the city responded that it did not have such a form. See the public record request and response, which is Exhibit Q to the Schirmer Satre Letter of March 21 the first open record period. The applicant then approached EWEB and made a financial commitment to pay its proportionate share of the capital costs of off-site improvements needed to supply adequate water to the site. That commitment, signed by the owners, is Exhibit R to the Schirmer Satre Letter of March 21. The operative language in that commitment is: 1. The language of Condition 12 proposed by the City is acceptable to the Owners and Owners commit to providing financial guarantee ensuring water service to each lot of the approved PUD in a form acceptable to EWEB. 2. The Owners hereby commit to pay their proportionate share of EWEB's capital costs for off-site improvements needed to provide adequate water service to the proposed development. 3. The Owners commit to make that payment required by #2 for off-site improvements when requested by EWEB. 4. The Owners agree that EWEB may, if necessary, include the amount of the payment due under 2. above in the bond or other financial guarantee that is anticipated in Condition 12 above and is also required by ORS 92.090(4)(b) in conjunction with final platting. The applicant also solicited from EWEB an affirmative concurrence that the owner's commitment was in a form acceptable to EWEB. That concurrence, signed by EWEB's Water Engineering Supervisor, is Exhibit S to the Schirmer Satre Letter of March 21. The applicant believes it has strictly complied with the showing of adequacy of the water supply required by EC 9.8320(7)(c). The applicant could not make the commitment of funds on a form "acceptable to the city manager" because the city manager could not provide one. The applicant then went to another branch of the City the city arm that actually provides water infrastructure and supply and made the commitment in a form acceptable to it. In the second open record' period the opposition took issue with the form of commitment used with EWEB. See March 30 email from Susan Hoffman. Hoffman points out that the owner commitment does not cover the whole site because it does not list Tax Lot 201. This is seizing APP C - Final Argument 4.6.2018 on a typo. The scope of the commitment is for "the proposed development." Term 2 of the commitment says: "The Owners hereby commit to pay their proportionate share of EWEB's capital costs for off-site improvements needed to provide adequate water service to the proposed development." That covers the field; and the field includes all tax lots. Hoffman also takes issue with the contents of the Owner Commitment, questioning what it does contain, what it does not contain, the scope of EWEB authority, and so on. The key point is that the code requests that the commitment be in a form acceptable to the city. The City Manager did not have a form. EWEB found the form acceptable. That should tighten up the pipes and end the inquiry. In summary, the HO should find that, with the condition recommended by staff, and subject to the terms of the "owner commitment" approved by EWEB, the applicant has demonstrated that facilities will be adequate. EC 9.8320(8) Residents of the PUD will have sufficient usable recreation area and open space that is convenient and safely accessible. 1. As noted in our March, 5 Spreadsheet of Standards, "sufficient," "convenient," and "safely" are all terms that trigger discretion and subjective judgment. They should not be applied. 2. The Staff Report at 36 notes there is ample recreation area, and the HO should concur with the Staff Report. EC 9.8320(9): Lots proposed for development with one-family detached dwellings shall comply with EC 9.2790 Solar Lot Standards or as modified according to subsection (10) below. The Staff Report at 36-37 demonstrates compliance with the solar standards. The HO should endorse the findings of the staff. EC 9.8320(10): The PUD complies with all of the following (An approved adjustment to a standard pursuant to the provisions beginning at EC 9.8015 of this land use code constitutes compliance with the standard.) This standard incorporates a long list of prescriptive code sections about how development is to be done on the property. These standards were the template for the project design and the original application. The Staff Report explains at 37-53 how this proposal complies with the standards or can comply with conditions. The applicant recommends the Staff Report analysis to the HO as appropriate findings. APP C - Final Argument 4.6.2018 The applicant concurs in all the recommended conditions. The applicant also concurs with the Staff Report conclusion, stated at page 44, that this development proposal is exempt from Geological and Geotechnical Analysis requirements of EC 9.6710 for the reason that the site as a whole is on the acknowledged Goal 5 inventory. EC 9.8320(11): The proposed development shall have minimal off-site impacts, including such impacts as traffic, noise, stormwater runoff and environmental quality. 1. The operative standard here is "minimal," which is an inherently subjective standard; hence this standard should not be applied under the Needed Housing Statute. 2. The Staff Report at 55-56 provides a competent summary of the evidence in the record that supports a finding of "minimal off-site impacts" on the relevant dimensions. The HO should concur with the staff and incorporate those findings. EC 9.8320(12): The proposed development shall be reasonably compatible and harmonious with adjacent and nearby land uses. 1. As is the case with the standard above, "reasonably compatible" requires the most subjective value judgment, which is beyond the scope of the Needed Housing Statute allows. 2. The Staff Report at 57-58 summarizes the evidence that support a "reasonably compatible" finding by the HO. We recommend that analysis. Conclusion As is evident from the scale and intensity of the opposition, this neighborhood does not want this infill project at this site, even though the City has determined that this site is intended for just this kind of use at about this proposed density. Perhaps the best recommendation we have for approval is the positive and detailed review by the city staff. We hope the HO concurs with the applicant and the city staff and approves the use as proposed to be conditioned. Sincerely, ow x&" Bill Kloos Client Schirmer Satre Group APP C - Final Argument 4.6.2018 RECEIVED AM • - -Planning MAY 7 2018 PPEAL OF INITIAL HEARINGS OFFICIAL OR CITY OF EUGENE HISTORIC REVIEW BOARD DECISION LANNING DIVISION 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 Historic Review Board decision may be affirmed, reversed, modified, or remanded by the Planning Commission. Please check one of the following: ❑ Adjustment Review, Major ® Planned Unit Development, Tentative Plan ❑ Conditional Use Permit ❑ Willamette Greenway Permit ❑ Historic Landmark Designation ❑ zone Change* *This appeal form is not applicable forzone changes processed concurrently with a Metro Plan amendment the adoption or amendment of a refinement plan, a Land Use Code amendment, or the application of the /ND Nodal Development overlay zone. City File Name: Capital Hill PUD Tentative City File Number: PDT 17-1 Date of Hearings Official or Historic Review Board Decision: April 20, 2018 Date Appeal Filed: May 7, 2018 (This date must be within 12 days of the date of the mailing of the Planning Director's decision.) [ Attach a written appeal statement. The appeal statement shall include a written statement of issues on appeal, be based on the record, and be limited to the issues raised in the record that are set out in the filed statement of issues. The appeal statement shall explain specifically how the Hearings Official or Historic Review Board failed to properly evaluate the application or make a decision consistent with the original application. Please contact Planning staff at the Permit and Information center, 99 West 10th avenue, 541-682-5377, for further information on the appeal process. A filing fee must accompany all Hearing's Official and Historic Review Board appeals. The fee varies depending upon the type of application and is adjusted periodically by the City Manager. Check with Planning staff at the Permit and Information Center to determine the required fee or check on the web at: www.eugeneplanning.org www.eugene-or.gov/planning Planning & Development Planning Division 99 W. 10T" Avenue, Eugene, OR 97401 P 541.682.5377 * F 541.685.5572 Updated: October, 2012 Page 1 of 2 RECEIVED M AY - 7 2018 A k 1 d CITY OF EUGENE PLANNING DIVISION c now a gment 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): Tom & Cynthia Dreyer Phone: c/o Bill Kloos 541-954-1260 Company/Organization: Owners Address: 2955 Capital Drive APPELLANT'S REPRESENTATIVE: Name (print): Bill Kloos Company/Organization: Law Office of Bill Kloos PC Address: 375 W. 4th Ave., Suite 204 City/state/zip: Eugene OR 974Mail (if applicable): billkloos@landuseoregon.com Phone: 541-954-1260 Fax: Signature: IF this apy(eal is being filed by the affected recognized neighborhood association, complete the following: Name of Association: www. e ugene-or.gou/planning Planning & Development Updated: October, 2012 Planning Division 99 W. 10TH Avenue, Eugene, OR 97401 P 541.682.5377 * F 541.685.5572 Page 2 of 2 _ Method of Payment FCustorner Information ❑ Cash Name Bill Kloos Check Address ❑ Visa/MC Pr1 oject Appeal of PDT 17-1 Amount Received $8,845.35 - ❑ City/Government Agency Staff Receiving Application MHD i 99 West 10th Avenue • Eugene, Oregon • 97401 ® 541-682-5377 • eugeneplan DUPLICATE RECEIPT DUPLICATE RECEIPT CITY OF EUGENE BUILDING & PERMIT SERVICE 99 WEST 10TH AVE 682-5086 REG-RECEIPT:1-0001914 May 07 2018 CASHIER: CMS Appeal of Planning App De ---$8,845.35 Appeal of PDT 17-1 TOTAL DUE: $8,845.35 RECEIVED FROM: WILLIAM JOSEPH KLOOS / BECKY Check: $8,845.35 Total tendered: $8,845.35 Change due: t nn www.eugene-or.gov/bldgpermittracking- Please take our customer survey at: - www.surveymonkey.com/s/COEPermitSurvey DUPLICATE RECEIPT DUPLICATE RECEIPT rµ~J~,t,l