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HomeMy WebLinkAboutHearings Official DecisionDECISION OF THE HEARINGS OFFICIAL FOR THE CITY OF EUGENE, OREGON REQUEST FOR PUD APPROVAL Application File Name (Number): Capital Hill PUD (PDT 17-1) Application Summary: Request for approval of a tentative planned unit development (PUD) to create 34-lot residential subdivision with public and private streets and associated infrastructure, common open space areas and private preservation areas on 13 lots. Applicant/Owner: Cynthia and Tom Dryer Applicant's Representative: Carol Schirmer, Schirmer Satre Group Lead City Staff: Nicholas R. Gioello, Associate Planner The following findings and conclusions are based upon testimony presented at the public hearing held on March 7, 2018 and, except as clarified below, all documents in the Eugene City planning file for the requested Capital Hill PUD submitted before the close of the record on April 6, 2018, including documents submitted before and at the public hearing. Conclusion: The applicant's request for approval of a residential planned unit development (PUD) is approved, subject to the following conditions: 1. The final PUD plans shall note that each single-family structure within the PUD shall provide for a minimum of two off-street parking spaces. 2. The final PUD plans shall replace "Notes" 42 on sheet L3.0 of the site plans with the following: Protective fencing for trees identified to be preserved shall be installed under the direction of a certified arborist and inspected and approved by the City prior to beginning any construction related activities. All protective tree fencing shall remain in place until completion of all construction activities; any relocation or removal of the protective fencing shall also occur under the direction of a certified arborist, with approval by the City. The final PUD plans shall replace "Notes" 48 on sheet L3.0 of the site plans with the following: Hearings Official Decision (PDT 17-1) In the event a preservation tree must be removed, justification of the removal must be documented by a certified arborist. Documentation must be provided to the City for review prior to tree removal activity. Removal of a preservation tree will require the planting of 2 replacement trees for every tree removed. Replacement trees shall be a native species, with a minimum caliper of 1 ~/z inches for deciduous trees and a minimum height of 5 feet for coniferous trees. Any trees that must be replaced within private preservation areas are the responsibility of that lot owner. Any trees that must be replaced in Tracts A, B, C, and D will be the responsibility of the common owners or homeowners association. 4. The final PUD plans shall remove "Notes" 49 on sheet L3.0 of the site plans. 5. The final PUD plans shall replace "Notes" 411 on sheet L3.0 of the site plans with the following: Trees in the common areas of Tract A and within individual lot preservation areas that die naturally or are damaged naturally and become potentially hazardous will require no replacement trees. The removal of dead, diseased, or hazardous trees is allowed with prior approval by a certified arborist and documentation of that approval (including the need for removal) provided to the City. 6. The final PUD plans shall replace "Notes" 413 on sheet L3.0 of the site plans with the following: Any trees to be removed in Tract A, as a result of installation of the storm sewer system between and near Lots 13 and 14, shall be replaced with two trees for every tree removed, after the City's acceptance of the system. Replacement trees shall be a native species, with a minimum caliper of 1 ~/z inches for deciduous trees and a minimum height of 5 feet for coniferous trees and planted in the same general area. 7. For all lots that border Tracts A, B, C, and D or contain a preservation area, the final PUD plans shall include a temporary 10-foot construction setback area from all abutting preservation areas and Tracts A, B, C, and D. The following note shall be added to the final PUD plans: "For all lots that border Tracts A, B, C, and D or contain a preservation area, a temporary 10-foot construction area setback from all abutting preservation areas and Tracts A, B, C, and D shall be enforced during home construction, and shall include temporary construction fencing." 8. The final plans shall include a note that states: "Within the individual preservation areas of Lot 5 and Lots 8 through 19, and on Tracts A, B, C, and D, no above ground structure that requires a building permit; no impacts to preserved trees; and no grading activity shall be allowed. The only exception is within Tract A, where the storm drainage facility and associated grading and maintenance, as shown on the site plans, is allowed." Hearings Official Decision (PDT 17-1) 2 9. The final PUD plans shall note that street tree removals must meet the permit and replacement value requirements of EC 6.305. 10. A geotechnical analysis from a certified engineer, with specific recommendations for design and construction standards, shall be provided with any applications for Privately Engineered Public Improvement (PEPI) permits, as well as building permits and site development permits for the initial construction of infrastructure and residences on individual lots. The development proposed with each permit shall adhere to the recommended standards for design and construction as contained in the related geotechnical analysis. 11. The final PUD plans shall include the following note: Lots 16 and 17 shall have the option of constructing up to three attached single-family structures. If only one single-family structure is proposed, that lot shall have a maximum lot coverage of 50% of the buildable portion of the lot. If two or three single-family structures are proposed, that lot shall have a maximum lot coverage of 65% of the buildable portion of the lot. The buildable portion of the lot shall be the area identified as outside any preservation area and shall not exceed 13,500 square feet, regardless of how many dwellings are developed on the lot. 12. The final PUD plans shall show a buildable area on Lots 5, 16 and 22 not to exceed 13,500 square feet. 13. Prior to final plat approval, the applicant shall provide documentation that EWEB has received a financial guarantee, in the form cash payment, bond, or an irrevocable letter of credit, ensuring water will be provided to each lot in the plat. 14. The final PUD plans shall revise the site plan Sheet C1 - Wastewater and Water Plan to include 14-foot public utility or public wastewater easements, centered on the public wastewater mainlines, for all wastewater mainlines proposed on private property. In the event that a public mainline is proposed for location within 7 feet from the edge of a public right-of-way, a public utility or wastewater easement shall be dedicated on the adjacent private property at the width necessary to ensure 14 feet of operational and maintenance access to the wastewater mainline (7 feet on each side), when combined with the public right-of-way within that 14 feet. 15. The final PUD plans shall revise the site plan Sheet C1 - Wastewater and Water Plan to include wastewater services for Lots 18 - 19 that do not include private service lines within the public right-of-way. Private service lines may be relocated on private property, or public gravity service lines may be placed in the right of way. 16. The final PUD plans shall revise the site plans to include 5-foot sidewalks along the east side of Capital Drive. Hearings Official Decision (PDT 17-1) 17. The final PUD plans shall show that the stormwater runoff on the north and south ends of the additional Capital Drive road width will be treated through either filtration or mechanical treatment methods in compliance with the Public Improvement Design Standards manual. 18. The final PUD plans shall show that the stormwater runoff on the north and south ends of the proposed private street will be treated through a filtration facility in compliance with the Stormwater Management Manual. 19. Prior to final PUD approval, all requirements of EC 9.2750 Residential Zone Development Standards, including Table 9.2750 and EC 9.2751 Special Development Standards for Table 9.750, shall be met regarding the existing structure located on Lots 33 and 34. 20. The Written Owner Commitment to Fund Water Infrastructure executed by the applicant shall be re-executed to clarify that the Commitment applies to the entire subject property, including Tax Lot 201. A. Background The applicant, Cynthia and Tom Dryer (applicant) submitted the subject tentative Planned Unit Development (PDT) application on March 3, 2017. The applicant submitted supplemental application materials on or about June, 19, 2017, August 22, 2017, September 15, 2017, October 27, 2017, November 28, 2017, January 26, 2018, and March 7, 2018. The city deemed the application complete on August 29, 2017. Public hearings originally noticed and scheduled for November 1, 2017 and January 10, 2018 were cancelled and postponed. Following public notice, a public hearing was held on March 7, 2018. The public hearing began with the hearings official's explanation of the hearing process and the statutory and local procedural requirements for the hearing.' The hearings official noted that because of the anticipated volume of public testimony, individual public testimony would be limited to five minutes per individual. In addition to individual public testimony, the Joint Response Committee comprised of representatives from the Fairmount Neighbors Association and Laurel Hill Valley Citizens, was provided 30 minutes to provide its testimony. The hearings official denied a written request received before the hearing to allow Paul Conte to orally question Scott Gillespie, the City's Public Works Development Review Manager, or other staff, regarding the substance of Mr. Gillespie's written comments. iThe hearing official's explanation included a statement that she has had no ex parte contacts regarding the application and has no personal or financial interest in the subject property. The hearings official notes that is possible that during the open record period, an individual unknown to the hearings official attempted to make an ex parte contact with hearings official through a communication on the hearings official's Linkedln account. Upon noticing that the communication was from an individual in Eugene and referenced Henricks park, the hearings official closed the communication without reading it. That attempted communication is not part of the record and the hearings official did not read or otherwise consider it as part of the evaluation of this application. Hearings Official Decision (PDT 17-1) 4 Following the introductory explanation, Associate Planner Nicholas Gioello and Senior Planner Gabe Flock presented the planning staff's summary of the application. Following the staff presentation, the applicant's representative, Carol Schirmer, and the applicant's attorney, Bill Kloss, presented testimony on behalf of the applicants. Two individuals presented oral testimony in favor of the application. Four individuals then presented `neutral' testimony that was neither in support of or in opposition to the application.' Following the Joint Response Committee (Response Committee) consolidated testimony, which included evidence and testimony from five representatives of that committee. Because of the volume of evidence and testimony committee members wished to present, the hearings official granted the Response Committee additional time beyond the allowed 30-minutes. Following the Response Committee presentation, 22 individuals testified in opposition to the proposed PUD.3 An additional `neutral' comment was then also permitted. The applicant then presented rebuttal testimony. At the close of the public testimony, the record was left open for a period of 14 days, until 5:00 pm on March 21, 2018, for additional testimony and evidence; until 5:00 pm March 30, 2018 for evidence and testimony responding to the additional testimony and evidence submitted during the initial open record period; and until 5:00 pm April 6, 2018 for the applicant's rebuttal argument related to the new testimony and evidence. B. Site Characteristics The subject property includes 13.63 acres located at the end of Capital Hill Drive, in both the Laurel Hill Valley and Fairmount neighborhoods. The surrounding residential neighborhoods are developed with primarily single-family homes, primarily to the west and south, many located on steep slopes. Hendricks Park, an 80+ acre public park abuts the subject property to the northeast. The publicly-owned Ribbon Trail abuts the property to the east. Portions of the subject property are steeply sloped, with slopes exceeding 40% of the eastern portion of the property abutting the Ribbon Trail. The site currently consists of five tax lots, which are developed with six residential units (three single family dwellings and one three-unit dwelling.) The site characteristics are more fully described below within the context of the applicable approval criteria. C. Description of Request The applicant requests approval for a tentative residential Planned Unit Development (PUD). The applicant requests review of the proposed development based on the city's general approval criteria (EC 9.8320 et seq) rather than the needed housing approval criteria (EC 9.8325). The proposed PUD includes the existing five tax lots, three of which are developed with existing z The hearing official notes that one of the individuals who stated she was presenting neutral testimony was actually presenting a single issue on which she considered her position neutral, and also later testified in opposition to the proposed PUD itself. 3 The names of the individuals who presented oral testimony and who presented written testimony, before, during or after the public hearing are on file in the City's planning records for this application. Hearings Official Decision (PDT 17-1) residential structures, as well as proposed lots for single family detached and single family attached units. In total, the requested PUD proposes the addition of 28-32 units, for a total of 34- 38 units on the subject property. The proposed PUD consists primarily of single family detached housing, with two of the 34 lots proposed for single-family attached units, on which the applicant proposes to include a maximum of three units. Currently, one tax lot is developed with an unpermitted multi-family structure, which is subject to a city enforcement order. Compliance with that enforcement order requires removal of the multi-family units. To address the enforcement order, the applicant proposes to divide that tax lot into two lots by adding a lot line through the existing building. The proposed PUD also includes improvement of an existing public street and the addition of a private street, with associated infrastructure. The proposed site plan includes designation of common open space areas, tree preservation areas on some individual lots, and several shared access driveways. D. Requests to Withdraw or Exclude Evidence 1. Requests to withdraw evidence Two individuals have requested that evidence submitted into the record be withdrawn from the record. Through an email dated March 14, 2018, Ms. Tiffany Edwards requested to withdraw testimony submitted on March 7, 2018 on behalf of the Eugene Area Chamber of Commerce. According to the withdrawal request, a letter from the Chamber of Commerce "was inadvertently submitted by email that included a series of forwarded entails unrelated to the statements that the Chamber CEO * * * had intended to submit." Through an email dated March 21, 2018, Mr. Paul Conte requests that two entails he submitted to the city be excluded, one dated March 1, 2018 and the second dated March 7,2018. According to Mr. Conte he instructed the city staff that these entails were not to be included in the record. Both requests are granted and those documents will be withdrawn from the record of this application. 2. Requests to Exclude or Ignore Evidence a. Request to Limit S'taffReport based on violation of ORS 197.763 In correspondence dated March 21, 2018 and March 28, 2018, Mr. Paul Conte alleges the Staff Report for this application violates ORS 197.763. He asserts either that the final Staff Report for the proposed PUD was not available seven days before the public hearing, or that the version of the Staff Report that was available seven days before the public hearing was not the same version as presented to the hearings official at the public hearing. Mr. Conte states that edits were, or may have been, made between the Staff Report issued February 28th and the Staff Report available at the hearing. Mr. Conte also challenges the Staff Report's "incorporation" of public Hearings Official Decision (PDT 17-1) 6 works referral comments in relation to criteria discussed throughout the report because it is unclear which version of the comments the staff intended to incorporate; and because it is possible that the final version of the comments may not have been available seven days before the public hearing. In his March 21, 2018 correspondence, Mr. Conte appears to argue that under ORS 197.763 the hearings official can consider, and that the record can include, only a version of the Staff Report that was available seven days before the hearing. In the March 28, 2018 correspondence he seems to acknowledge that evidence submitted during the open record period can but considered, but argues: "PW referral comments that the staff report "incorporated" and relied upon have not yet been posted by the city, nor has staff made the documents known and available to the public for review and response. Consequently, staff are implicitly asking the Hearings Official to rely upon evidence that the staff claims they placed into the record, but to which parties in these proceedings have been denied any reasonable opportunity to respond. The Hearings Official cannot accede to staff's request without prejudicing the substantial rights of all parties in these proceedings." The Public Works referral comments to which Mr. Conte refers includes several versions of comments submitted by the Public Works staff to Planning staff between November 30, 2017 and February 28, 2018. Specifically, as recited in the City's response to Mr. Conte's public records requests (dated March 11, 2018 and March 14, 2018) the initial Public Works referral comments were dated November 30, 2017 and attached to an email to City Planner Nick Gioello on December 8, 2018. Public Works submitted revised comments on February 12, 2018. Mr. Gioello questioned Public Works staff about one section of those comments (EC 9.6815(2)(f)) "and received an email on 2-13-18 * * * with a minor revision altering one sentence which Nick pasted into the revised 2-12-18 referral comments." (City response to Paul Conte public requests request, March 22, 2018.) On February 28, 2018, Mr. Gioello received an additional email from Public Works with additional language for inclusion into the referral comments. Mr. Gioello combined the text from the earlier comments with the language provided on February 28, 2018 to create the final Public Works referral comments document, which is dated "November 30, 2017 - Revised February 28, 2018." Copies of each of the versions, and the emails between Mr. Gioello and Public Work Staff are attached to Mr. Conte's correspondence. Mr. Conte is correct that ORS 197.763(4)(b) requires that any staff report used at the public hearing be available at least seven days before the hearing. The city complied with that requirement. However, regardless of whether the City staff may have made changes to that Staff Report, to the extent Mr. Conte continues to argue that either the city cannot provide any additional information, or the hearings official cannot consider evidence from the city that was provided less than seven days before the hearing, nothing in ORS 197.763 supports that assertion. Under ORS 197.763 and the city's code requirements, the record includes all testimony and evidence submitted and accepted into the record until it is closed. Evidence in the record includes that provided by the city so long as it is provided before the close of the record. Mr. Conte's arguments related to the version of the Public Works referral comments that are incorporated into the Staff Report also does not establish a violation of ORS 197.763. To clarify, the Staff Report consists of the staff's initial evaluation of the application as it relates Hearings Official Decision (PDT 17-1) 7 to compliance with each of the approval criteria. The hearings official is not bound by that initial evaluation; nor is the hearings official's evaluation of the evidence in the record restricted by documents incorporated into the Staff Report. As to Mr. Conte assertion that the City staff has failed to submit one or more versions of the Public Works referral comments into the record, in fact each version has been included, and the hearings official received all versions before the close of the evidentiary record. Moreover, even if the city had not done so, Mr. Conte has also submitted additional copies of each of those documents into the record. Mr. Conte has not established that any party has been prejudiced by lack of ability to respond to the public works referral comments. Mr. Conte's procedural challenge regarding the city's compliance with ORS 197.763 is denied. b. "Motion to Reject or Ignore Impermissible Sentence of Staff Memo " In a motion dated April 4, 2018, Mr. Conte moved that the hearings official must "either reject or ignore an impermissible sentence" in a staff memorandum submitted by the City Staff on March 30, 2018. In that memorandum City planning staff responded to Mr. Conte's March 21, 2018 testimony that questioned the version of the Public Works Referral comments incorporated into the February 28, 2018 staff report. The staff memorandum includes the statement: "Staff maintains the staff report uploaded to the City website on February 28, 2018 is the staff report of record and the staff report given the [sic] to the Hearings Official." Mr. Conte disagrees with that statement. Mr. Conte argues that "it is glaringly obvious" that one or more versions of the Public Works Referral comments were not uploaded onto the City's website at the time the February 28, 2018 staff report was issued. Mr. Conte states: "Mr. Gioello's claim is not [sic] more than a far-too-late "CYA" attempt. At the time the Staff Report was submitted, on the final day allowed by ORS 197.763(4)(b), no reasonable person could have determined (or validated) which sections of the staff report were a verbatim and complete copy of the PWD referral comments. And that means that parties had no reasonable opportunity to present responsive testimony. This post facto claim by staff is too late and insufficient to remedy their procedural errors; and, as explained in my March 28, 2018 letter, the Hearings Official must either reject this sentence or ignore it in order to avoid prejudicing the substantial rights of participants in these proceedings." (Emphasis in original.) Mr. Conte's argument that parties have had no reasonable opportunity to present responsive testimony is unpersuasive. Regardless of whether or which the version(s) of the Public Works Referral comments were uploaded to the city's website on February 28, 2018, and regardless of which version or versions were incorporated the staff report, in fact the record of this application remained open for new evidence by all parties until March 21, 2018. All versions of the Public Works Referral comments were part of the record (and Mr. Conte submitted additional copies of those comments into the record with this testimony.) All parties, including Mr. Conte, had the opportunity to present testimony responsive to those referral comments during that time. Mr. Conte obviously disagrees with Mr. Gioello's statement. In his testimony submitted before, Hearings Official Decision (PDT 17-1) during and after the hearing Mr. Conte establishes that he disagrees with city staff's position as it relates to the Public Works Referral comments. While conflicting evidence and testimony is relevant to the weight afforded to that evidence and testimony, that a party disagrees with evidence, or the city's evaluation of evidence, is not a basis under ORS 197.763 to reject or ignore statements submitted into the record.4 Mr. Conte's motion to reject or ignore a sentence included in the Staff's March 30, 2018 memorandum is denied. E. Evaluation of Request 1. Challenges to Applicable Approval Criteria a. Applicability of only clear and objective approval criteria As explained in the Staff Report, the applicant filed the requested PUD application under the city's "general" PUD process, which requires compliance with the criteria established in EC 9.8320. By their terms, these criteria are discretionary; they are not and do not purport to be `clear and objective'. Consistent with that choice, the applicant's narrative addresses the general approval criteria. Notwithstanding that choice, the applicant "invokes * * * a right to an approval path under only clear and objective standards, as guaranteed by ORS 197.307(6)." The applicant argues that "[b]ecause this site cannot be developed under the "Needed Housing" track in the code, under ORS 197.307 the City is prohibited from applying any standards under the "General Track" that are not clear and objective." ORS 197.307 (as amended August 15, 2017) states, in relevant part: "(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 developing of housing, including needed housing. 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. "(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 4 It is possible that Mr. Conte's motion could be construed to argue that the challenged sentence is actually new evidence submitted after the March 21, 2018 deadline for new evidence. The hearing official does not consider that sentence to include new evidence. At most, it appears to be staffs attempt to respond to Mr. Conte's concerns regarding which version(s) of the Public Works referral comments staff relied on; it does not add any factual evidence to the record. Hearings Official Decision (PDT 17-1) 9 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." The applicant does not dispute that the City has adopted an approval process that meets the requirements of ORS 197.307(4); nor does the applicant challenge the city's authority to establish an approval process under ORS 197.307(6). Rather, the applicant argues that because development on the subject property would not be able to satisfy the clear and objective approval criteria of EC 9.8325 (the city's process that complies with ORS 197.307(4)), ORS 197.307 requires that the city must apply only a subset of the criteria within the alternative process of EC 9.8320 (the city's process allowed under ORS 197.307(6)) that are clear and objective. 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 applicant does not appear to dispute the city's needed housing track codified in EC 9.8325 complies with the requirements of ORS 197.307(4). And, the applicant does not appear to argue that they were somehow prohibited from submitting applying for development approval under the city's needed housing `track.' Rather, the applicant appears to argue that they have a "right" to develop the property to its maximum density under "clear and objective" criteria, regardless of the track they choose. The applicant states: "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 5du/acre density limited associated with the South Hills Study, the owner is entitled to a total maximum of 65 dwelling units on this site. Taking into consider the existing 6 dwellings on the site, the 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. The applicant proposes a total of only 37-43 units on the property." (March 3, 2017 application materials, emphasis added. )5 The applicant relies, in part, on a 2017 LCDC enforcement order against the City of Corvallis to support their authority to `ask for and receive clear and objective approval criteria.' That case stemmed, generally, from a City of Corvallis process that denied an applicant for a residential development the opportunity to apply for approval under clear and objective approval criteria 5 The hearings official notes that the "37-43 units" referenced in the city's argument were from the applicant's original site plan. In order to comply with the city's general track PUD approval criteria, the applicant has modified the proposal and reduced the number of lots proposed. Hearings Official Decision (PDT 17-1) 10 when the subject property was also subject to a PUD overlay. Also at issue, but not clearly decided, in that case was whether the city's clear and objective process, even if it was available, was facially defective in that no development could satisfy its requirements. While it is not entirely clear, the applicant does not appear to argue in this case that the city's clear and objective `track' is facially defective, i.e., that no development application could satisfy its requirements. Rather, it 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. The Corvallis enforcement order does not provide any authority for the applicant's argument. The Corvallis enforcement order resulted from process through which the applicant was not guaranteed the right to proceed under the clear and objective criteria: the City of Corvallis did not have an option within its code for the applicant to pursue its proposal under ORS 197.307(4). That enforcement order does not guarantee that (or even address whether) an applicant has a right to approval under clear and objective criteria. And it does not establish, or even suggest, that applicant has a right to `ask for and receive clear and objective approval criteria' independent of the city's established clear and objective `track.' It requires only that the city have a process under ORS 197.307(4) and that all residential development applicants have a right to `proceed' under that process. There is no question here that this applicant had the right to apply under the City's clear and objective track. Rather, it appears that the applicant is arguing that the right to `proceed' equates to a right to `approval' and that since the proposed PUD cannot be approved clear and objective approval criteria, the clear and objective track guaranteed under ORS 197.307(4) is not available to them. It does not appear that ORS 197.307(4) extends to guarantee every applicant a right to an approval under the clear and objective track. However, even if it does, the applicant hasn't established that the clear and objective track is effectively not available for the subject property. The applicant has summarily asserted that no development could be approved under the clear and objective track - and has attempted to shift the burden to the City, insisting that the city show how the clear and objective track could be used to approve some level development. The city Staff Report includes some analysis as to how the subject property could be developed under the clear and objective track. However, the city's evaluation is, necessarily, theoretical since it does not have an application based on those criteria before it. 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 Hearings Official Decision (PDT 17-1) 11 evidence regarding how this property could not satisfy the EC 9.8325 criteria, that new evidence is not properly part of this record. 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. Moreover, even if the applicant could establish that under ORS 197.307(4) the right to `proceed' under the city's clear and objective process guarantees the right to an approval under that process, ORS 197.307 provides no authority for the argument that the city must apply only what the applicant considers the clear and objective criteria included in its General track. There is nothing in ORS 197.307 to support the applicant's position that it has a right to have its PUD application reviewed under only a subset those provisions in the city's General track that the applicant considers clear and objective criteria. At most, even assuming the `right to proceed' under ORS 197.307(4) guaranteed the right to approval of some level of development, under ORS 197.307 the applicant would have the right to proceed under the clear and objective track. The applicant could have requested to develop the subject property under the clear and objective criteria. It did not do so. The applicant has requested review under the general track. All of the general track criteria are applicable to this review. b. Applicability of South Hills Study The City planning staff determined that, based on its location, the South Hills Study is one of the refinement plans applicable to the subject property. However, while acknowledging that the entire property is in the South Hills Study area, the applicant disputes the applicability of this plan. The applicant asserts that "This review is not subject to the policies of 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." In what the applicant's attorney described during the public hearing as a "novel" theory, the applicant essentially argues that the city has been improperly applying the South Hills Study to all areas described as being within its boundaries for the last 50 years. The city's Staff Report correctly evaluates and determines that the South Hills Study applies to the subject property. The hearings official adopts the analysis of the staff report (February 28, 2018 staff report, pages 5-6, as supplemented on March 21, 2018. The City attorney further clarified the applicability of the South Hills Study, explaining: "Contrary to the applicant's assertion, the footprint of the South Hills Study (SHS) is not limited to the properties to which it applied at that time of its adoption. The SHS itself Hearings Official Decision (PDT 17-1) 12 provides that its policies apply to properties located south of 18th Avenue and above 500 feet in elevation. 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. The resolution adopting the SHS (Resolution 2295, adopted June 10, 1974) provides that the SHS is "applicable to that area identified in the study as being south of 18th Avenue, above an elevation of 500 feet." The SHS did not (and does not today) include a map showing specific plan boundaries. Neither the SHS nor Resolution 2295 limit the footprint of the SHS to properties that were located within the city limits at the time the Resolution was adopted. Consequently, over time, as properties (including portions of the subject property) annexed into the City, if those properties were located south of 18th Avenue and above 500 feet, those properties because subject to the SHS." The hearings official accepts the City attorney's statement and rejects the applicant's argument that the South Hills study does not apply to this application. 2. Evaluation of Applicable Approval Criteria As stated above, the applicant has elected to seek approval of the requested PUD under the General PUD approval criteria at EC 9.8320. Those criteria require evaluation of the requested PUD as follows: EC 9.8320(1) The PUD is consistent with applicable adopted policies of the Metro Plan. Finding: The Metro Plan text and diagram designate the subject property as "Low Density Residential." As described in Metro Plan Residential Land Use and Housing Policy A.9, Low Density Residential development includes development up to 10 dwelling units per acre. The subject property is zoned R-1, which is consistent with the current Metro Plan designation.' The proposed development consists of 34 residential lots with two lots having the option to construct up to three units each for a total of 34 to 38 dwelling on 13.63 acres. This results in a gross density between 2.6 to 2.9 units per acre, well within the range indicated under the Metro Plan. Numerous area residents expressed concern that the proposed density is too high for the subject property, citing the property's topography, natural features, proximity to Hendricks Park and the Ribbon Trail, and its visible, South Hills location. However, the appropriateness of the Metro Plan designation is not at issue. This property is designated for low density urban residential 6 EC 9.2700 states that "the purpose of the R-1 Low-Density residential zone is to implement the Metro Plan by providing areas for low density residential use. The R-1 zone is designed for one-family dwellings with some allowance for other types of dwellings and is also intended to provide a limited range of non-residential uses that can enhance the quality of low density residential areas." Hearings Official Decision (PDT 17-1) 13 development, and the existing zoning is consistent with that designation. The Response Committee and several neighbors also argue that the density is actually much greater than indicated and allowed because of site constraints and the areas the applicant has proposed for open space and preservation. They argue that the applicant should not be permitted to count the individual and common preservation areas in calculating the proposed density. They argue that "in an effort to camouflage the incontrovertible massive neighborhood impact of the proposed PUD, the Applicant has grossly understated actual density by 59%." (Response Committee March 7, 2018 Written Hearing Testimony, page 102.) They also argue that proposed Lots 18 and 19 should not be included in the net density calculations because they "neither physically abut the development sites of the other 32 lots nor are they physically visible from the other 32 lots." By excluding these two lots and subtracting the common and private preservation areas, the Response Committee concludes that the density would be 5.25 units per acre, in violation of the maximum allowed. The Response Committee cites no legal justification for their desired recalculation of the proposed density. The common and private preservation areas are part of the proposed PUD and appropriately considered in determining net density. And all lots, whether or not visible from other parts of the PUD, not only may, but must be considered in the density calculations. The applicant and city have correctly calculated the proposed density and the proposed 2.6-2.9 dwellings per acre is well within the density allowed under the Metro Plan. The Planning Staff have identified the three following policies within the Metro Plan Residential Land Use and Housing Element as approval criteria for the proposed PUD: Policy A.10: Promote higher residential density inside the UGB that utilizes existing infrastructure, improvements the efficient ofpublic services and facilities, and conserves rural resource lands outside the UGB. Policy A.13: Increase overall residential density in the metropolitan area by creating more opportunities for effectively designed in-fill, redevelopment, and mixed use while considering impacts of increased residential density on historic, existing and future neighborhoods. Policy A.17. Provide opportunities for a .full range of choice in housing type, density, size, cost and location. The Staff Report described how the proposed PUD generally furthers these three policies. The Response Committee and numerous neighbors provide extensive discussion as to how the proposed development fails to satisfies these Metro Plan policies. However, none of these policies constitute a mandatory approval criterion for the proposed development. By their terms, they are directives to the City to guide the City in implementing the Metro Plan. And, in fact, for many of the reasons the Response Committee and neighbors cite, the City has not designated this property for `higher density' residential development. Consistent with the Metro Plan designation, the City has zoned the subject property, as well as the surrounding residential Hearings Official Decision (PDT 17-1) 14 neighborhood, for "low density" residential development, based on the property's attributes. The Response Committee and several neighbors argue that the proposed development also does not satisfy several additional Metro Plan policies. The Response Committee cites as applicable the following additional Residential Land Use and Housing Elements: Policy AJ]: Generally locate higher density residential developments near employment or commercial services, in proximity to major transportation systems or with transportation efficient nodes. Policy A.20: Encourage home ownership of all housing types, particularly for low income households. The Response Committee challenges compliance with Policy A.11 based on the proximity of the subject property to employment, commercial and transportation systems. They also note that the development proposed for this site will not be accessible for low-income households. As with the other Residential Land Use and Housing Element policies, these policies provide direction to the city, and are not mandatory approval criteria for the proposed development. Moreover, as noted above, and consistent with the Metro Plan designation, the applicant's request does not propose a higher density development for the subject property. The Response Committee also asserts the proposed development is inconsistent with Environmental Design Element, Policy E.2, which states: Natural vegetation, natural water features and drainage-ways shall he protected and retained to the maximum extent practical. Landscaping shall be utilized to enhance those natural features. This policy does notpreclude increasing their conveyance capacity in an environmentally responsible manner. The Response Committee acknowledges that the proposed site plan designates approximately one-third of subject property for preservation, which would retain that portion of the site's natural vegetation. However, they argue both that there is `no guarantee' that these areas won't be directly impacted and that, even if not directly impacted, they would be indirectly impacted by the proposed development. The provisions of this Metro Plan policy are primarily implemented through the specific code provisions, addressed below, that provide direction as to how the site's natural features are to be protected consistent with the property's zoning. To the extent this Metro Plan policy could be construed to apply directly to the proposed development site, by its terms, this policy directs preservation "to the maximum extent practical." It does not preclude development and must be implemented in conjunction and consistent with the property's urban residential designation. The proposed development preserves the natural vegetation on approximately one-third of the development site, in furtherance of this Metro Plan policy. Finally, the Committee asserts that the proposed development does not satisfy Energy Element, Policy J.8, which states: Hearings Official Decision (PDT 17-1) 15 "Commercial, residential, and recreational land uses shall be integrated to the greatest extent possible, balanced with all planning policies to reduce travel distances. The Response Committee expresses several concerns as to why the subject site does not satisfy this policy, including concerns that the subject property is not conveniently located near commercial, education, employment and transportation, and that the elevation and steep narrow roadways connecting it to the valley floor would present severe impacts for travel and emergency response. However, as with the others listed above, this policy primarily provides direction to the City in its legislative designation of property uses. In accordance with the Metro Plan, the City has designated this property for low density residential development. There is nothing in this policy language that establishes any approval criterion applicable to the proposed development. The proposed PUD is consistent with the applicable provisions of the Metro Plan. EC 9.8320(2) The PUD is consistent with applicable adopted refinement plan policies. Finding: As stated above, the South Hills Study refinement plan is applicable to the subject property. A portion of the subject property is also within the boundary of the Laurel Hill Plan and, therefore, that Refinement Plan is also applicable. South Hills Study Ridgeline Park Section The "Purpose Statements and Recommendations" of the Ridgeline Park section of the South Hills Study includes the following the Specific Recommendation: That all vacant property above an elevation of 901 '[feet) be preserved from an intensive level of development, subject to the following exceptions: 1. Development of individual residences on existing lots: and 2. Development under planned unit development procedures when it can be demonstrated that a proposed development is consistent with the purposes of this section. That the area specified for preservation be protected through a variety of techniques including but not limited to acquisition, scenic easement, density transfers, and dedication. Finding: The subject property has not been designated for preservation. Rather, as stated above, it is designated for low-density residential development. A portion of the subject property is located above 901 feet elevation. Accordingly, any "intense level of development" of that portion of the property is permitted subject to planned unit development procedures "when it can be demonstrated that a proposed development is consistent with the purposes of this section." The Purpose statement of the Ridgeline Park section states that any areas recommended for preservation or park usage should serve at least one of the following purposes: Hearings Official Decision (PDT 17-1) 16 1. To ensure preservation of those areas most visibly apart of the entire community; 2. To protect areas of high biological value in order to provide for the continued health of native wildlife and vegetation; 3. To ensure provision of recreational areas in close proximity to major concentrations of population; 4. To provide connective trails between major recreational areas; 5. To provide connective passageways for wildlife between important biological preserves; 6. To contribute to Eugene's evergreen forest edge; and 7. To provide an open space area as a buffer between the intensive level of urban development occurring within the urban service area and the rural level of development occurring outside the urban service area. The Staff Report evaluates the proposed development as it relates to the Ridgeline Park section purposes; and the Response Committee and neighbors have expressed numerous concerns regarding the compatibility of the proposed residential development to ridgeline park system. However, based on the language of the South Hills Study, these restrictions relate to and are encouraged only for areas recommended for preservation or park usage. They do not expressly apply to properties designated for residential development. Nonetheless, even though it is not an area recommended for preservation or park usage, the following analysis evaluates how the proposed development furthers several of the purposes listed. The subject property is located adjacent to the Ribbon Trail, which, as noted in the Staff Report and by several neighbors, is a popular trail used by the Eugene community as a connection from the 30th Avenue and Spring Boulevard area to Hendricks Park. In order to buffer the proposed residential development from the Ribbon Trail, the proposed PUD designates 2.33 acres along the entire east property line of the proposed PUD (Tract A) for preservation. Additionally, a portion of each individual lot that borders Tract A, totaling approximately 2.08 acres, is also required to be preserved. Combined, the proposed development preserves a total of 4.41 acres of along the eastern property line as a buffer between the residential development and the Ribbon Trail. The preserved areas will help to ensure the preservation of existing trees and vegetation while providing a continuous visual buffer between the adjacent Ribbon Trail and the future home sites. Preservation of Tract A and the preserved areas of the individual lots bordering Tract A are consistent with Policy 1. In addition to the preservation areas in Tract A and on adjacent individual lots, the proposed PUD designates several smaller areas of land throughout the site (Tracts B, C and D) for preservation, bringing the total preservation area of the PUD site to approximately 4.54 acres. As the staff note, (and as depicted on the site plan, at sheets L3.3, L3.4 and L4.0) a small area of Tract A will be initially disturbed in order to install a storm drainage feature. As a result, and as further described in findings of compliance with EC 9.8320(4)(b) Tree Preservation, five trees will be removed in or adjacent to Tract A and ten replacement trees will be required in their place. These described preservations areas will be protected from any future construction and removal of trees, therefore providing for the continued health of the native wildlife and vegetation, consistent with Policy 2. Hearings Official Decision (PDT 17-1) 17 In furtherance of Policy 5, the combined preservation areas of Tract A and the preserved areas of the eastern lots also act as an uninterrupted natural wildlife corridor, enhancing the existing wildlife corridor that the Ribbon Trail provides from the south of the site to Hendricks Park to the north. The Response Committee and several neighbors vehemently disagree that the proposed development furthers any of the South Hills Study Ridgeline Park purposes. Underlying their arguments is a premise that the subject property should largely be retained for park purposes and in any event, should not be developed for the density of residential development proposed by the applicant. However, the South Hills Study does not designate the subject property for preservation or park use and does not prohibit residential development. The proposed low density residential development is consistent with the property's zoning. The recommendations described in the South Hills Study purposes must be construed in the context of this residential zoning. The Response Committee cites specific instances where the proposed development will impact the current vegetation and current views of and from the subject property. The Response Committee and several neighbors also object to the number of trees that will be removed for the proposed development, noting that of 867 trees within the site, 466 will either be removed or are listed as `discretionary', which means they could be removed during home construction. They argue that removal of the trees will destroy habitat and fauna during logging and could have a negative impact on the biological value and habitat for native wildlife and vegetation. The Response Committee is correct: residential development of this property will change its character. What is currently forested vacant land with substantial vegetation will be disturbed; those walking along the Ribbon Trail will not have a fully unencumbered forested view of the subject property. Trees will be removed. However, this property is designated for residential development, the South Hills Study does not require that there be no impact. In fact, the proposed development preserves approximately one-third of the site, and the entire boundary along the Ribbon Trail is preserved, providing a continuous buffer between the residential development and the community trail. As stated above, because the subject property is designated for residential development and is specifically not recommended for preservation or park usage, the recommendations for the park and preservation purposes do not expressly apply. Nonetheless, the proposed site plan demonstrates consistency with at least three of these statements, consistent with the policy direction. As the Response Committee and neighbor arguments' attest, it would always be possible to preserve more and impact less. However, these Ridgeline Park purpose statements do not require absolute preservation or lack of impact, particularly when the property is designated for residential development. Density As the Staff Report explains, the Purpose statement of the South Hills Study Density section states the intent to `remain within the broad guidelines of "insuring utilization of vacant property already served with public facility", "defining the density range", insuring "adequate provisions Hearings Official Decision (PDT 17-1) 18 for development to accommodate anticipated growth", and "achieving a balance between the level of development and the provisions of public services." The following Specific Recommendation of the Density Section applies to the subject property: That in the area east of Friendly Street the maximum level of new development per gross acre he limited to 5 units per acre (the maximum figure of 5 dwelling units per gross acre being subject to positive findings under the planned unit development criteria). Finding: The 13.63-acre subject property is located east of Friendly Street and the applicant proposes to develop 34 to 38 single-family residential dwellings. The proposed gross density is approximately 2.6-2.9 units per acre, which is below the maximum allowed density of 5 dwelling units per gross acre. Development Standards As stated above, because the subject property is designated for residential development and because some of the subject property is located above an elevation of 901 feet, the proposed residential development must be reviewed in accordance with the PUD procedures and must be consistent the purposes identified in the Ridgeline section. Specifically, the Development Standards for the Ridgeline section of the South Hills Study require that any "intense level of development" of that portion of the property is permitted subject to planned unit development procedures "when it can be demonstrated that a proposed development is consistent with the purposes of this section." That planned unit development procedures shall he utilized for the following purposes: 1. To encourage clustering of development in areas characterized hy: a. Shallowest slopes b. Lowest elevations c. Least amount of vegetation d. Least amount of visual impact. 2. To encourage preservation as open space those areas characterized hy: a. Intermediate and steep slopes b. Higher elevations c. Significant amounts of vegetation; d. Significant visual impact. Finding: Under the terms of South Hills Development Standards, the applicant is "encouraged" to cluster development where, in general, it would have lesser impact; and to preserve areas that, in general, would have more significant impact. As the property characteristics are listed, the `lesser impacts' are related to the shallow slopes and lowest elevations; and the more significant impacts are related to steep slopes and higher elevations. However, as the Staff Report correctly notes, on the subject property, the steepest slopes are at the lower elevations; and the shallowest slopes are the higher elevations. Consistent with the stated purpose, the hearings official interprets these standards to encourage the applicant to propose a development that uses procedures afforded through the PUD procedures to balance the clustering of development and preserving of open space in a manner that would most effectively minimize overall impacts. Hearings Official Decision (PDT 17-1) 19 As explained in the Staff Report, and as reflected on the applicant's site plans, the steepest slopes and higher percentage of vegetation occur on the eastern side of the PUD site, adjacent to the site's border with the Ribbon Trail. The Tract A preservation area runs the entire length of the eastern border. All of the lots that border Tract A (Lots 5, and 8 through 19) also include private preservation areas adjacent to Tract A. This preservation area concentrates the open space buffer in the area of the property with the steepest slopes, most significant amounts of vegetation and most significant visual impact. These combined preservation areas will locate building sites on these lots closer to the top of the ridgeline, clustering home sites in areas with fewer trees and vegetation and, accordingly, resulting in the least impact. The greatest degree of previous site disturbance has occurred in the higher elevations of the site. This includes the previous construction of three homes, a multi-unit building, a barn and grading of a dirt vehicle trail where the private road (Cupola Drive) is proposed to be located. It also appears that a number of trees were removed in the past, since the number of mature trees at the highest elevations of the site are significantly fewer than in the lower elevations with minimal ground disturbance. Clustering of home sites in the mid to higher elevations will limit the ground disturbance and allow for the preservation of more trees and vegetation, which is consistent with the above policies to the extent possible, given the existing site conditions and constraints. The Response Committee and several neighbors object that the proposed development fails to locate development with the `least amount of visual impact" and the least amount of vegetation." They also argue that the buildings will be at the "highest most visible elevation" and that, as proposed most of the larger trees will be removed" and that logging activity will further destroy vegetation. The site's topography and the proposed site plan do not reflect the neighbors' characterization. Based on the site plan layout, the clustering of homes, the preservation of approximately one- third of the site as open space, the use of the existing trail in which to locate the private road, the applicant has used the PUD procedures in a manner to minimize overall impacts. It is clear that the Response Committee and neighbors do not believe the applicant has done enough; there are always ways that `more' could be preserved. However, in `encouraging' the applicant to design a residential development the respects the existing characteristics of the site and minimize the impacts, the South Hills Study residential development standards do not require absolute preservation or the absence of any impacts. In the context of the residential zoning of this property, the applicant has used the PUD procedures to design a proposed development that minimizes impacts and respects and preserves the site's natural characteristics. That adequate review of both on-site and off-site impact of any development by a qualified engineering geologist occur under any of the following conditions: 1. All formations Soil depth of 40 inches or above Slopes of 30 percent and above 2. Basalt flows Soil depth of 40 inches or above Hearings Official Decision (PDT 17-1) 20 Slopes of 20 percent to 30 percent 3. Eugene Formation Soil depth of 40 inches and above Slopes of 20 percent to 30 percent 4. Basalt flows Soil depth of 20 to 40 inches Slopes of 30 percent and above 5. Eugene Formation Soil depth of 20 inches to 40 inches Slopes of 30 percent and above Finding: This South Hills Development Standard requires an `adequate review of both on-site and off-site impacts' by a qualified engineering geologist when the subject property includes specific listed conditions. As recognized through the applicant's geotechnical analysis, the site contains Eugene Formation sandstone and siltstone formation with soil depths exceeding 40 inches and slopes exceeding 30 percent. Accordingly, because the property contains soils consistent with conditions 41 and 45 listed above, this criterion requires that the applicant's geotechnical analysis required both on-site and off-site review of impact. In compliance with this requirement, the applicant's geotechnical engineer's inspection included surrounding area to map geological surface features. Offsite landslide forms were mapped in the existing residential areas. The results of the applicant's on- and off-site analyses are documented in the applicant's preliminary geotechnical/geologic investigation. As the staff report summarizes, the applicant's geotechnical/geologic investigation found no significant geologic hazards that would impede or restrict the construction on the site. As discussed below regarding compliance with EC 9.8320(6) and EC 9.6710 Geological and Geotechnical Analysis, the applicant's investigation acknowledges that shallow slide debris in the top 2.5 feet of ground material can be expected in the steeper lots. The map included with the May 30, 2017 Geotechnical Addendum identifies the steepest areas along the eastern portion of the site as "High - Landsliding Likely," affecting Lot 5, Lots 8 through 20, and Lot 33. The geotechnical/geologic investigation also found that the site is geologically and geotechnically suitable for the proposed development, provided that specific recommendations described in the investigation are incorporated into the design and construction of the project. In response, the Response Committee critiqued the applicant's assessment through its own geotechnical/geologic review conducted by Dr. Gunnar Schlieder of GeoSciences. In that review, Dr. Schlieder disputes nearly all of the applicant's analysis and concludes that the site is not suitable for the proposed development. For purposes of compliance with the South Hills Study, the applicant has recognized the existence of conditions 41 and 45 listed above and, accordingly, has provided an in-depth, detailed analysis that includes an "adequate review of both on-site and off-site impact" of the proposed PUD as required by the South Hills Study. While critical of the applicant's methods and analysis, Dr. Gunnar does not dispute the scope of the study or provide evidence that it does not adequately consider both on-and off-site impacts. As relevant to required compliance with Hearings Official Decision (PDT 17-1) 21 EC 9.8320(6), the applicant's investigation and the Response Committee's review are addressed below. That developments he reviewed to encourage clustering of open space elements of different developments in order to preserve the maximum amount of continuous open space. Finding: This South Hills development standard encourages adjoining developments to `cluster' open space. The proposed PUD does not abut open space of any of the established residential development adjacent to it. It does, however, enhance the continuous open space of the park and public areas to the east and northeast of the site. As described above, the proposed PUD includes a total of 4.54 acres of protected open space. It buffers the proposed residential development from the eastern property boundary with common open space preservation area (Tract A) and individual preservation areas on Lot 5 and Lots 8 through 19. This clustering of open space both buffers the proposed development from the Ribbon Trail and protects significant natural features and vegetation. The common area and individual preservation areas of Lot 5 and Lots 8 through 19 will effectively act as one large continuous open space. The proposed development also includes a preservation area along the northeast boundary of the subject property which abuts the established public open space of Hendricks Park, consistent with the policy language above. That developments he reviewed in terms of scale, hulk and height to ensure that development blends with rather than dominates the natural characteristics of the south hills area. Finding: As described in the Staff Report, the subject property is characterized by two distinct areas: the area along the ridge of the site comprised of Lots 1 through 4, Lots 6 and 7, and Lots 20 through 34; and the eastern side, comprised of Lot 5 and Lots 8 through 19. Lots on the top of the ridge are characterized by a mixture of flatter terrain and typical slopes of 20% or less with relatively few trees. Five of the seven existing structures are located in this area. Lots on the eastern side of the development are characterized by steeper slopes of between 20% and 50%. A majority of the trees and other vegetation on the site are located in this area. All of the lots in this area have defined preservation areas that prohibit construction of buildings. Many of these lots have close to, if not more than, half of their lot areas protected by preservation area. This effectively acts as building envelope, forcing building locations closer to the streets that provide access to the lot, limiting grading impacts, creating a larger natural buffer to the adjacent Ribbon Trail to the east, and preserving more of the existing vegetation. The individual lot preservation areas, along with Tract A, provide a significant buffer and visual screen from lower elevations to the east of the site. This will limit the scale and bulk of the proposed single-family residential development as viewed from the east. The proposed PUD does not include specific building areas or envelopes to accommodate development impacts on each lot. The Response Committee and several neighbors argue that without details specifying the height and placement of homes on the sites, and without a specific Hearings Official Decision (PDT 17-1) 22 information regarding housing style and character, the applicant has not satisfied this South Hills Study development standard. The Response Committee relies on the applicant's statement that "'The Capital Hill CCR's will provide guidelines for the bulk, height and scale of the buildings. In addition, there will be a design review team that will review and approve proposed plans ensuring that the intent of the CCR's is met." (Application, page 35) The Response Committee argues that because the applicant is relying on CCR's, which have not been provided as part of the application, to establish compliance with this criterion, the applicant has not yet satisfied this criterion. The Response Committee is correct that if the application relies on CCR's to establish compliance with this, or any other, approval criterion, those CCR's must be included as part of the application. However, this South Hills Study development standard addresses the proposed PUD as a whole and does not require a review of individual buildings. Neither the PUD procedures applicable to this proposed development nor this South Hills Study development standard require the applicant to provide specific details about the buildings that may be developed in the future. At issue under this development standard is whether the proposed development blends in with the natural characteristics of the south hills areas. To that end, the Response Committee and several neighbors argue that the proposed houses will dominate views of the South Hills from the valley and will dominate views of the property from the Ribbon Trail. The Response Committee has provided simulated photographic views from the valley floor, which depict the entire site of the proposed development as devoid of all vegetation and dominated by towering homes; and several neighbors have urged that residential development of the subject property will dramatically alter the character of the South Hills. The applicant has provided its own simulated views, which indicate that development on the site would not be highly visible. In reality, residential development of this property may impact some views from the valley floor, as has the other residential development that has occurred in this area over time. However, based on the topography, the proposed tree preservation and the proposed site plan, the scale, bulk and height will create and maintain an impact consistent with the viewscape created by of the adjacent established residential neighborhood. As summarized in the Staff Report, the neighboring off-site mature trees and existing homes significantly obscure the view of the top of the ridge from lower elevations to the west. The applicant indicates that of the 34 proposed lots, 8 lots have the potential to be viewed from beyond the property to the west, but it is highly unlikely given the current condition of off-site mature trees. This will, in effect, limit the potential visual impact of the proposed single-family residential development in the top of the ridge area. Neighboring off-site mature trees and existing homes significantly obscure the view of the top of the ridge from lower elevations to the west. Just as the existing development on the property and on neighboring residential development has not dominated the views of the South Hills, as proposed by the applicant, the proposed residential development will also blend in with those views. The R-1 zoning requirements limit building heights to 30 feet, consistent with existing single- family structures both on and off site and in the general vicinity. No request for modification of maximum height limits or other residential development standards is included with the applicant's proposal. The Response Committee and other neighbors cite a clarification from the Hearings Official Decision (PDT 17-1) 23 City that on steep slopes, from the base of the slope, the actual building height could be up to 47 feet, and still be within the 30-foot building height limit. They argue that the excessive height is not permitted, and would result in a scale, bulk and height that dominates, rather than blends in, with the area's natural characteristics. This argument misconstrues the height limitation. The applicant has not requested modification of the height limit. For any residential development on a slope (including the surrounding established residential development), and based on the slope and the roof pitch, the city's standard calculation effectively permits a total of up to 47 feet within the 30- foot height limitation. The city's clarification adds that the City Council has added an allowance for greater roof pitches based on its view that "steeper roof pitches [are] more aesthetic and create less bulk or mass for a house." (Response Committee March 7, 2018 Written Hearing Testimony, Exhibit X (email memo from Mike McKerrow, Eugene Building and Permit Services)). Because the applicant has not requested any modification from the building heights allowed in the R-1 zone, any future building would be required to comply with the same height requirements as applicable in the surrounding neighborhood.' With the additional protections provided through private preservation areas on the eastern lots, common open space (Tract A), and the clustering of the proposed homesites, the applicant has demonstrated that the proposed development will blend with, rather than dominate, the natural characteristics of the area. In combination with configuration of the proposed development and the clustered open space, the applicable residential development standards for the R-1 zone will ensure general compatibility with the surrounding residential area and consistency with the policy language above. That all proposed road locations he reviewed to ensure minimum grade disturbance and minimum cut-and-fill activity, particularly in those areas most visible due to slope, topographic or other conditions. Finding: The proposed development will be accessed from the existing Capital Drive, which, as discussed below, will be widened and repaved to City standards, with minimal shallow grading, north of its intersection with Cresta De Ruta Street. Within the development, the applicant proposes a private road, Cupola Drive, to be located within the existing footprint of an existing vehicular accessway. The applicant's geotechnical/geologic investigation indicates that the proposed location of the private drive will require the least amount of grading and fill, with minor cut slopes on the uphill side. City staff report that they have walked this part of the site and agree with the applicant's assessment that the existing vehicular accessway, which is currently cut into the slope, is a logical location to establish the new private road. Slopes increase to the east of the trail and locating the new road further down the slope would require more extensive grading and retaining walls and result in the loss of more trees and vegetation. Improving Capital Drive in its current location (within the existing right-of-way) and utilizing the existing cuts into the hillside for the new private road will ensure that the necessary cut and fill is minimized to the greatest extent practical. The proposed ' If at the time of proposed construction, the developer proposes to exceed the height or any other development standard, the developer would be required to seek a modification from the city. Hearings Official Decision (PDT 17-1) 24 roads are designed to parallel existing topographical contours to the extent possible and the existing topography of the subject property and surrounding natural vegetation will generally limit visibility of the proposed roads, consistent with this standard. The Staff Report also notes that, as originally proposed, the site plan did not satisfy this standard. The staff explains that the original, March 3, 2017 site plan included additional lots along the north boundary of the site abutting Hendricks Park. The site plan depicted a private accessway at the end of Capital Drive to private access to those lots. Fire Department comments at that time indicated that an emergency turnaround would be required near the end of Capital Drive. The revised (June 19, 2017) site plan depicted a hammerhead style turnaround between proposed lots 1 and 2, and the elimination of the private drive and several lots along the north boundary of the site. However, that emergency turnaround would have required extensive grading into the hillside and retaining walls due to the site's topography. After further consultation, the Fire Department determined that the elimination of the additional lots and private driveway along the north boundary also eliminated the need for the emergency turnaround. With the resubmitted site plans (August 22, 2017) the emergency turnaround was eliminated. At least one neighbor argued that this revision was based on the applicant's desire to save money and cut corners at the expense of neighborhood safety. To the contrary, elimination of the emergency turnaround and the accessway and the additional lots along the north property boundary results in a plan that, in addition to reducing density, eliminates the need for extensive grade disturbance and cut-and-fill activity at the end of Capital Drive, thereby complying with this development standard. That planned unit development review shall he based upon a recognition of both public and private interest. In areas ofsignificant conflict (e.g., locating development in a highly visible area as opposed to a less visible area or in an area of significant vegetation as opposed to a relatively open area) which could be resolved through the use q f an alternative development plan, primacy shall be given to the public interest in any determinations. Finding: As the Staff Report explains, because of the location of the subject property, review of the proposed PUD must recognize both the public and private interest; and where there is a conflict between public and private interests, and where a modification to the site plan could benefit the public, (e.g., locating development in a highly visible area as opposed to a less visible area or in an area of significant vegetation as opposed to a relatively open area), "primacy shall be given to the public interest." In accordance with this South Hills Study standard, and to minimize the visibility and impact of the proposed development, the proposed site plan clusters the developable areas of the lots in less vegetated areas, through the use of common open space preservation area (Tract A) and individual preservation areas on the eastern lots to provide for a larger overall preserved area on the steepest slopes and most densely vegetated portion of the site. The applicant has attempted to work with the constraints and opportunities of the property, which have dictated the development pattern of the proposal. Based on the site's topography, the proposed sited plan Hearings Official Decision (PDT 17-1) 25 places more lots in the higher elevations where more site disturbance has occurred in the past (including the construction of existing structures and associated grading and the past removal of trees and vegetation.) By locating the new private road within the footprint of the existing vehicular accessway the applicant has worked with the existing property constraints while limiting site disturbance. Locating almost all of the preservation area in the steepest portion of the site where trees and vegetation are most dense also serves the public interest by providing a larger buffer between the publicly used Ribbon Trail and the developed portion of the site. The Response Committee and several neighbors disagree that the proposed PUD gives "primacy to the public interest." As the Response Committee states: "In exchange for 34 home sites for buyers who can afford the high cost of construction at this site, the citizens of Eugene will lose a segment of the "evergreen edge" viewshed that has long defined the character of Eugene - a threat foreseen by the authors of the South Hills Study more than forty years ago. The citizens of Eugene will see an increased risk to windthrow and forest degradation in Hendricks Park, the "crown jewel" of the Eugene Park system, and a park close enough to downtown that people frequently walk up Capital Drive to hike its trails. They will see the character and natural setting of the Ribbon Trail (which connects to Hendricks Park) altered and destroyed." "There is a significant conflict between the developer's private interest in increasing the return on an investment property with the public's interest in providing good stewardship of the land, the water, and the community. The Eugene Code provides that in the event of such a conflict "primacy shall be given to the public interest" especially when the conflict could be resolved through "use of an alternative development plan." Response Committee March 7, 2018 Written Hearing Testimony, pages 31, 33. Many neighbors echoed similar perspectives and concerns. One neighbor characterized the development of this site as a "public taking." Others argued that even though they are privately owned, the eight acres immediately adjacent to Hendricks Park should be considered and preserved as an extension of the park; and that the entire site should be protected as a public asset. Another urged that the impacts on other residents, vegetation and wildlife must be more fully evaluated and documented before any impacts to this land should be allowed. Another commented that "bottom line" should be the maximum preservation of the natural environment for the benefit of future generations, and several one expressed that this development would ignore the rights of those who like to hike and live in this area. The Response Committee and the surrounding residential neighbors clearly see the public interest in the preservation of this largely vacant property. However, the Ridgeline Park section of the South Hills Study does not designate this property for preservation or public acquisition. This property is privately owned and zoned for low-density residential development. Hearings Official Decision (PDT 17-1) 26 This South Hills Study development standard does not require (or permit) the "public interest" in preservation of the undeveloped private property within its boundaries to disregard the private property owner's interests. As the Response Committee recognizes, as it is worded, this standard requires that in the areas where there is a significant conflict, and where an alternative plan that would resolve those conflicts is available, the public interest - i.e., the alternative plan that would resolve the conflict by reducing the impact - shall be given primacy. The proposed site plan furthers this standard. The proposed site plan has considered alternatives and locates residential development the less visible area as opposed to the highly visible areas, and in areas of relatively open space rather than in areas of significant vegetation. It also clusters both the open space and the residential development in a way that minimizes the impacts of development and maximizes the preservation of site's vegetative cover. While the Response Committee and surrounding residential neighbors would like to see more preservation and less development, in fact, the proposed residential development does reflect a recognition of the public's interest in a residential development that minimizes impacts and retains the site's significant natural features while also being consistent with the property's residential zoning. All developments shall he reviewed for potential linkage with or to the ridgeline park system. Finding: As described in the application (and depicted on the March 3, 2017 site plan) and summarized in the Staff Report, the applicant explored the possibility of providing a City dedicated connection trail through the common space to the Ribbon Trial. The City's Parks and Open Space staff reviewed the applicant's proposal and declined the connection since it was located on steep terrain and did not meet trail standards. Since the entire eastern boundary of the site is extremely steep, the ability to provide an adequate trail access connection to the Ribbon Trail would result in the loss of multiple lots and possible loss of more vegetation. In addition, the geotechnical/geological investigation found that the eastern portion of the site has a high likelihood of landslide. Construction of a trail in this area would require additional grading measures that would have greater impacts on the surrounding vegetation then a typical trail on flatter lands. Parks and Open Space staff noted that the Ribbon Trail has an existing access connection to Hendricks Park immediately north of the proposal. The terminus of Capital Drive also provides a public pedestrian access point into Hendricks Park and to the Ribbon Trail. The Response Committee disagrees and argues that the failure to provide a link to the trail system violates this South Hills Standard. However, this standard does not require a link; it requires that the potential links be considered. The city reviewed the development for potential linkage. As stated above, the City Parks and Open Space staff determined to not pursue a connection. That all developments be reviewed to ensure maximum preservation of existing vegetation. Finding: The proposed PUD has been reviewed to ensure maximum preservation of existing vegetation. As stated above, the proposed PUD preserves approximately one-third of the site for Hearings Official Decision (PDT 17-1) 27 preservation. Areas included in proposed common open space and within private preservation areas contain the majority of significant trees and vegetation that are suitable for preservation, while also accommodating street extensions, utilities and other infrastructure in a relatively compact manner as necessary to serve a reasonable level of low-density residential development. As stated above, the Response Committee and neighbors disagree that the proposed development ensures "maximum preservation of existing vegetation." They argue extensively that either the property should not be developed at all, or that much more of the existing vegetation must be preserved. However, as discussed above, the property is designated and zoned for low-density residential development, and this policy must be construed and applied within that context. The proposed PUD is designed to maximize the preservation of the site's existing vegetation and to cluster development in areas with less vegetation. While the neighbors would prefer more preservation and less (or no) development, the proposed preservation of approximately 1/3 of the existing vegetation of the site furthers this policy. Laurel Hill Plan The following Laurel Hill Plan policies are also applicable to the proposed PUD. Land Use and Future Urban Des Policy 1: Approval of Valley Development will take into consideration: a. Density. The appropriate density for residential development shall he determined based on 1) the provision of the Metropolitan Area General Plan [MetroPlan] calling for an overall density range of one to ten units per acre; and 2) provisions of the South Hills Study, including those limiting density to five units per acre for sites above 500 feet in elevation. h. Size. Large apartment complexes (over thirty-two units) are objectionable because their dominance would alter entirely the character of the Valley. Approval of apartment complexes larger than 32 units will depend upon the feasibility of providing adequate urban services, streets, schools, and transportation. C. Dispersal. Planned Unit Developments composed primarily of multiple family dwelling units shall be separated and dispersed and not abutting. Finding: As discussed above, the South Hills Study refinement plan restricts the density allowed on the proposed PUD site to 5 units per acre. The proposed PUD's proposed density of between 2.6 and 2.9 units per acre. Subsections 2 and 3 of this policy are not applicable because the proposed PUD does not propose large apartment complexes and is not composed primarily of multi-family dwellings units. One neighbor argued that the proposed PUD does not satisfy Policy 1(a) because residential development would be visible from the Ribbon Trail. However, Policy 1(a) does not address the location of dwellings; and Policies 1(b) and (c), which arguably could be relate to the location of dwellings in relation to the Ribbon Trail, apply only to multi-family dwellings and is, therefore, not applicable to this application. Policy 5: New land divisions shall he planned to respect the existing topography and Hearings Official Decision (PDT 17-1) 28 ensure solar potential to the extent possible. Developers shall be encouraged to investigate techniques other than grid-type division of land when planning for development. Finding: As summarized in the Staff Report, and as depicted on the applicant's site plans, the site contains steep topography with slopes in excess of 40% along the eastern half of the property. To minimize impacts to existing features, the proposed private road (Cupola Drive) has been located along an existing graded vehicular accessway, and most of the lots are either clustered around this street or around existing Capital Drive. The proposed lot configuration is not a grid-type division of land, which is appropriate and encouraged by this policy, given the topography of the site and the development of surrounding properties. As discussed below, the proposed PUD is exempt from the solar lot standards. The steepest slopes along the eastern portion of the site have mainly been preserved through common open space (Tract A) and individual preservation areas for all lots that border Tract A. These combined preservation areas equal approximately 4.54 acres and will preserve approximately 33% of the entire site. Policy 6: The Laurel Hill Plan supports the South Hills Study Standards. In general, alteration of land contours shall by minimized to retain views of natural features and retain as much of the forested atmosphere as possible. Aside from purely aesthetic considerations, these hillsides demand care in development because the topsoil is thin and the water runoff is rapid. Proposed developments shall respect the above considerations. The Valley hillside policy applies to all land with an average slope, from toe to crest, of 15% or greater. (A 15-percent slope is one in which the land rises l5 feet per 100 horizontal feet). a. If, in the opinion of the responsible City official, an adverse conservation or geological condition exists upon a parcel of land proposed for a subdivision, or before any major hillside clearing, excavation, filling or construction is contemplated, the requirements of the Uniform Building Code, Chapter 70, Excavation and Grading, and those sections of the code relative to foundation design may be invoked. b. Considerable latitude shall be allowed the developer in the shaping, depth, and required street frontages of lots where it is necessary to preserve the terrain. Finding: The findings above demonstrate compliance with the South Hills Study Standards as they apply to the subject property. Those findings also establish compliance with this Laurel Hill Plan policy. The Response Committee argues that the applicant's Tree Preservation Plan proposes extensive tree removal and fails to adequately protect the existing trees on the site, in violation of this Policy. Compliance with the applicant's Tree Preservation Plan, and conditions related to tree preservation are addressed under EC 8320(4) below. Transportation Policy 1. No arterial or limited access road will be allowed within the boundaries of the Valley which would connect the Glenwood interchange on Interstate 5 to 30th Avenue or Spring Boulevard. Hearings Official Decision (PDT 17-1) 29 Policy 2. No arterial or limited access road will be allowed within the Valley except as necessary to serve Valley residents, as it would physically and thus destroy the neighborhood. Finding: The proposed PUD includes no arterials or limited access roads subject to these policies. The proposed improvements to Capital Drive and the proposed new private drive, which are intended to serve the residents of the immediate area, are outside the boundaries of the Laurel Hill Plan. Policy 4: All future construction in the Valley or East Laurel Hill shall include adequate off-street parking to accommodate not only permanent residents but a reasonable number of visitors. Although on-street parking should be discouraged, in some areas pull-out facilities for parking should be developed, particularly where congestion exists. Finding: The proposed PUD does not include the exact locations of individual homes within the footprint of the proposed lots. However, in the R-1 zone, a minimum of one parking space is required for each single-family lot. On-street parking along one side of the street is provided on both Cupola Drive and Capital Drive, which would accommodate some additional parking needs. While any proposed building must comply with the R-1 standards, the hearings official does not consider one off-street parking space to be adequate to accommodate both permanent residents and a reasonable number of visitors as required under this policy. As discussed in more detail below, access to the proposed PUD will be reliant primary on Capital Drive, and to a lesser degree, on Cresta de Ruta, both of which connect to Spring Street, from which all access is dependent. Below the proposed development site, those streets are not constructed to current city standards. Because those streets are narrow and currently experience significant on-street parking, it is critical that the proposed development provide adequate off-street parking to ensure that residents and visitors to the development do not rely on the existing street network for parking. In addition, as further discussed below, neighbors report that currently emergency vehicles have difficulty turning around on both Capital Drive and Cresta de Ruta. The proposed Cupola Drive will be a loop street, which can serve to increase the maneuverability of emergency vehicles, not only for the proposed development, but also for the existing neighborhood. To that end, it is critical that on-street parking along Cupola Drive not impede the ability of emergency vehicles to use that street. Accordingly, in order to adequately accommodate residents and visitors, as required under this policy, approval of this PUD is conditioned upon a requirement for two or more off-street parking spaces per lot. East Laurel Hill Area Policy 6: Development and expansion of park facilities and bicycle paths is encouraged. The South Hills ridgeline park plan shall be continued. Finding: The east end of the proposed PUD site is located within the East Laurel Hill area. The subject property currently has a pedestrian connection at the end of Capital Drive to the adjacent Hendricks Park and Ribbon Trail, which are part of the South Hills ridgeline park plan. The proposed PUD will not impact continuation of the South Hills ridgeline park plan. Hearings Official Decision (PDT 17-1) 30 EC 9.8320(3) The PUD will provide adequate screening from surrounding properties including, but not limited to, anticipated building locations, bulk, and height. Finding: The property is bounded by single-family residentially developed properties on the west and south and by Hendricks Park and the Ribbon Trail to the northeast and east. The proposed site plan provides for significant continuous preservation areas along the eastern boundary, adjacent to the Ribbon Trail, which contains a significant number the trees on the property. In addition to Tract A, which will preserve 2.33 acres of primarily mature trees along the eastern border adjacent to the Ribbon Trail, Lots 5 and 8-19, adjacent to Tract A, all include private preservation areas, where the open space provided by Tract A will be extended. The combination of the Tract A preservation area and the dedicated preservation areas on Lots 5 and 8-19, preserve a total of approximately 4.41 acres along the property's eastern edge. While these preservation areas may not completely obscure views of the residents on those lots from the Ribbon Trail, they will provide substantial screening. The site plan depicts most of the residential development on the western side of the site, closer to the middle of the subject property. The adjacent residential neighborhood to the west also has steep topography, significantly sloping away from the site. The site is currently mostly obscured from view and difficult to observe from the flatter elevations below and to the west. Several properties along the highest portions of the site (which includes Lots 4, 20, 23, 24, 33 and 34) are currently developed with structures. The undeveloped lots clustered in this area have fewer trees than the eastern portion of the site. As discussed below, approval of this PUD is subject to a condition requiring that trees on individual lots cannot be removed until a construction permit is issued; and on a condition requiring that any trees in the buildable areas of individual lots that are removed for development, or die for any reason, must be replaced with new trees at a one to one ratio. This ensures that the site will remain vegetated and provide adequate screening in the future. The proposed PUD does not include any request for approval of any dwellings. Rather, following final PUD approval, the applicant intends to sell lots to individual builders and potential homeowners for future development. As noted above, the applicant's narrative states that private covenants, conditions, and restrictions (CC&Rs) will provide guidelines for the bulk, height, and scale of the buildings and a design review team will review and approve proposed building plans to ensure that the intent of the CC&Rs are met. The applicant has not provided any specifics as to what may be included in future CC&Rs. The Response Committee and several neighbors note that, to the extent the applicant relies upon future CC&R's to establish compliance with this (or any other) approval criterion, the applicant has failed to establish compliance with the criterion. However, neither EC 9.8320(3) nor any other PUD approval criterion, require that the PUD include proposed buildings. While the proposed lot locations and configurations must be evaluated for compliance with this criterion, future buildings are not subject to this review, and evaluation for compliance with this criterion does not include consideration of those future buildings. At the time residential dwellings are Hearings Official Decision (PDT 17-1) 31 proposed for any of the approved lots, they must be evaluated for compliance with the R-1 zone development standards, and the bulk and height must be consistent with those development standards. To the extent the developer requests any deviations or modifications to those standards, those requests would be subject to the city's review process. Thus, compliance with this criterion does not rely on any specifications that may be included in future CC&R's. As described previously with regard to policies of the South Hills Study, the individual lot preservation areas along with Tract A provide a significant buffer and visual screen from lower elevations to the east of the site. The R-1 zoning requirements limit building heights to 30 feet, lot coverage to 50%, and require typical setbacks from property lines consistent with existing single-family development in the general vicinity. This will limit the scale and bulk of the proposed single-family residential development and provide adequate screening, commensurate with the R-1 zoning of this and adjacent residential development. The Response Committee also questions how the proposed building sites will be limited to the maximum 50% lot coverage ratio, given the amount of dedicated open space provided in several of the lots. As further discussed in findings of compliance with EC 9.8320(10), each lot must satisfy the lot coverage and dimensional requirement. Those lot coverage and dimensional requirements will be further confirmed through the subdivision and final plat processes. As discussed further below, based on the current site plan, Lots 5 and 14 through 19 exceed the 13,500 square foot limitation for the R-1 zone. As proposed, except for Lots 5 and 16, each of these lots include preservation areas that effectively reduce the buildable area to less than the 13,500 square feet. In addition, Lot 22 is undeveloped but contains an existing vineyard, fruit tree orchard, and several large trees and is proposed to exceed the 13,500 square foot limitation. As discussed under EC 9.8320(10), the applicant's requests for flexibility to allow larger lots sizes for Lots 5, 16 and 22 are denied. For compliance with the R-1 zoning standards, as a condition of approval the site plans must be revised show buildable areas on these three lots not to exceed 13,500 square feet. Subject to compliance with the conditions of approval noted above and addressed below, the proposed PUD will provide adequate screening from surrounding properties, in compliance with this criterion. 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. 1. For areas not included on the City's acknowledged Goal 5 inventory, the preservation of significant natural features to the greatest degree attainable or feasible, including: a. Significant on-site vegetation, including rare plants (those that are proposed for listing or are listed under State or Federal law), and native plant communities. b. All documented habitat for all rare animal species (those that are proposed for listing or are listed under State or Hearings Official Decision (PDT 17-1) 32 Federal law). c. Prominent topographic features, such as ridgelines and rock outcrops. d. Wetlands, intermittent and perennial stream corridors, and riparian areas. e. Natural resource areas designated in the Metro Plan diagram as "Natural Resource" and areas identified in any city-adopted natural resource inventory. 2. For areas included on the City's acknowledged Goal 5 inventory: a. The proposed development's general design and character, including but not limited to anticipated building locations, bulk and height, location and distribution of recreation space, parking, roads, access and other uses, will: (1) Avoid unnecessary disruption or removal of attractive natural features and vegetation, and (2) Avoid conversion of natural resource areas designated in the Metropolitan Area General Plan to urban uses when alternative locations on the property are suitable for development as otherwise permitted. 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. Finding: As explained in the Staff Report, and further confirmed in the staff's March 21, 2018 memorandum, the City planning staff has concluded that the subject property is included on the City's acknowledged Goal 5 inventory. The staff rely on the April 12, 1978 Scenic Sites Working Paper, which designates the subject property as Natural Sites of Visual Prominence and Prominent and Plentiful Vegetation. After questioning the City's assessment, the applicant appears to accept the city's determination. The Response Committee's Geotechnical Engineer, Gunnar Schlieder, disputes that determination. He surmises that "judging from the title "Scenic Sites Working Paper" it would indicate that this was a preliminary document, and not officially adopted by City Council. (GeoScience, Inc. Report, March 7, 2018.) However, he does not provide any evidence to dispute the City's assessment. Based on the city's assessment, the hearings official also agrees that the subject property is included in the City's acknowledged Goal 5 inventory and, accordingly, the provisions of EC 8320(4)(a)(2) apply to the proposed tentative PUD. EC 9.8320(4)(a)(2)(a) requires that the PUD be designed and sited to minimize impacts to the natural environment by addressing 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, in order to (1) avoid unnecessary disruption or removal of attractive natural features and vegetation, and (2) avoid conversion of natural resource areas designated in the Metropolitan Area General Plan to urban uses when alternative locations on the property are suitable for development as otherwise Hearings Official Decision (PDT 17-1) 33 permitted. The Metro Plan does not designate any of the subject property as a natural resource area. Accordingly, this criterion requires that the applicant minimize impacts by avoiding `unnecessary' disruption or removal of attractive natural features and vegetation. As previously described in the findings of compliance with the applicable South Hills Study policies, the proposed development minimizes impacts to the site by clustering residential lots and other development impacts in areas of previous impact, less steep terrain, and less dense or otherwise less significant vegetation. The proposal includes significant preservation areas on the steepest slopes of the site. As further discussed below regarding the required tree preservation, the applicant's tree preservation plan and the corresponding tree preservation list represented on the applicant's site plans (sheets L3.0 through L3.4 and L4), depict that the areas included in the Tract A common open space and within individual lot preservation areas comprise the majority of significant trees, vegetation, and other natural features that are suitable for preservation; while also accommodating street extensions, utilities, and other infrastructure in a compact manner to serve a reasonable level of low-density residential development. As depicted on the site plans, the proposed common open space (Tracts A, B, C, and D) along with the individual preservation areas of lot 5 and lots 8 through 19, results in preservation of approximately 33% of the site, primarily along the eastern border, where natural vegetation is the heaviest. Also, the proposed placement of Cupola Drive along a formerly cleared and graded vehicle accessway will limit the necessary grading and associated cut and fill, which helps to minimize soil erosion and flood hazard. Locating Cupola Drive in this area also requires fewer tree removals since trees have already been removed along the vehicle accessway. The applicant has proposed to include notes on the plan set regarding tree preservation conditions. These notes, which are made conditions of approval, provide additional clarity and assurance regarding the tree preservation requirements and allowed development. As also discussed with regard to the South Hills Study policies, the Response Committee and several neighbors object that the proposed PUD does not minimize impacts and causes substantial disruption and removal of attractive natural features and vegetation. In addition to arguments raised above, they argue that the loss of this forest will increase erosion, flooding and pollution; and that the removal of a substantial portion of trees for construction, and the probable windthrow destruction of the existing remaining trees, will cause, substantial and unnecessary disruption, as well as reduce necessary screening. The Response Committee retained a professional forester to specifically evaluate the applicant's proposed tree removal. In a detailed report, and based his observation and published studies, in addition to concerns over slope stability (address below under findings of compliance with EC 9.8320(6)), he opined that the tree removal would "significantly increase the risk of wind damage as remaining trees would be more vulnerable to being blown down or having their tops broken. (James Mehrwein Report, February 27, 2018.) In response to concerns regarding potential windthrow, the applicant retained an arborist to review the applicant's proposed tree removal plans. Based on his site review and analysis, he Hearings Official Decision (PDT 17-1) 34 concluded that, in his opinion, "Windthrow does not seem to be a large factor in this location as there are large conifers that exist in thick standards offsite all around the development. * * * The removal of trees on the lots east of Cupola Drive in order to build homes will likely not produce much fear wind throw * * Prevailing winds are typically out of the west to southwest and will be deflected over and above the preservation area. The remaining trees will be well protected on the north, south and east * * Trees removed from the Capital Drive area are not found in significant groupings so it is unlikely that the removal of these trees will have a negative impact on the remaining trees both on and off site." Based on the published studies and analysis by Mr. Mehrwein, it is certainly possible that there could be some windthrow as a result of tree removal on the subject property. However, based on the applicant's arborists assessment of the actual proposed tree removal, it is also possible that there will be none. At issue under this criterion is whether the proposed PUD has been designed and sited to minimize impacts to by avoiding unnecessary disruption or removal of attractive natural features and vegetation. While Mr. Mehrwein and surrounding neighbors would conclude that the applicant could do more to preserve trees and further reduce (or eliminate) the potential for windthrow, the applicant's plan to remove trees necessary for the proposed development demonstrates that is has satisfied its obligation to avoid unnecessary disruption or removal of those trees. As they relate to this criterion, the findings regarding compliance with the South Hills Study policies are also incorporated here. As with those policies, this criterion recognizes the property's zoning, and requires that, within the context of that zoning, the PUD must avoid "unnecessary" disruption. While the Response Committee and other neighbors adamantly oppose disruption of this forested site, this criterion does not preclude development. In fact, the preservation of continuous open space through Tract A and adjoining preservation areas on private property, the location of Cupola Drive along a previously cleared and graded vehicle accessway and the clustering of development within the area of the property with the least vegetation and visual impact, establish compliance with this criterion. The objection as it relates to the applicant's proposed tree preservation plan is discussed below. One individual disputes compliance with this criterion on the basis that the proposed development does not have minimal impact on natural environment because of its impact on Hendricks Park. Mr. Mehrwein also cites the potential impact of tree removal on Hendricks Park and the Ribbon Trail. However, this criterion relates specifically to minimizing the impact to natural features on the proposed development site. Potential off-site impacts are addressed above with regard to the applicable South Hills Study policies. The applicant's proposal development demonstrates compliance with this criterion. (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 Hearings Official Decision (PDT 17-1) 35 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. Finding: As explained in the Staff Report, the applicant submitted a Tree Preservation Plan that indicates the location of all existing trees on site and evaluates them under this criterion. At the applicant's request, the City Planning Director waived the requirement for a licensed arborist on the professional design team. Instead, the applicant's tree preservation plan was prepared by the applicant's representative, who is a licensed landscape architect. Several neighbors objected to the city's waiver of the requirement that the tree preservation plan be submitted by a certified arborist, arguing that a plan prepared by a landscape architect is inadequate to evaluate the conditions of trees on the site. As one neighbor stated, "the specialized skill of an arborist is necessary to make determinations as to the health of trees". He further explained, "there is no way to audit the landscape architect's work. We can't access the site; it is private property. We can't examine each tree. How do we know the information is accurate?" (Mark Conley, March 20, 2018.) In response to concerns raised regarding the tree preservation plan, the applicant retained an arborist to provide additional review. Kyle King, a local certified arborist, walked the property and observed the condition of the individual trees as well as the forest as a whole. He also reviewed the applicant's Tree Preservation Plan. In a report dated March 21, 2018, the arborist provided an evaluation and concluded that, in his opinion, the assessment in the applicant's Tree Preservation Plan is appropriate. As discussed above, areas included in the proposed Tract A common open space and within the individual preservation areas of the eastern lots comprise the majority of significant trees and vegetation which are suitable for preservation. As described in the Tree Preservation Plan, the condition of trees throughout the site varies from good to poor. Many of the trees have not been actively maintained for decades. A number of trees have been damaged by events such as ice storms and severe wind over the years. All of the trees shown on the lots in areas where construction may occur are listed on the Tree Preservation Plan as "discretionary" trees, which indicates that they could be removed at the Hearings Official Decision (PDT 17-1) 36 time of future development on each lot. Since the lots will be sold to individual owners who will decide where to locate a future home, it is unknown at this time where construction may occur on any lot. In order to ensure that any trees lost from future site development are replaced, the applicant has proposed a one to one replacement for every tree that must be removed for development. As confirmed by the arborist, the Tree Preservation Plan depicts that the applicant has made an effort to preserve as many healthy trees as possible by concentrating the tree preservation in one large area along the eastern border of the property. This is the area of heaviest tree population and thereby preserves larger stands of trees in their natural habitat and also limits further wind- throw damage to which isolated trees are more susceptible. This approach also creates a larger vegetative corridor and provides a significant visual buffer between the publicly used Ribbon Trail and the proposed private home sites. While the Response Committee and neighbors clearly do not believe the applicant's Tree Preservation Plan retains enough trees, the plan does provide clarity and assurance regarding the tree preservation requirements and allowed activities within various areas on the subject property, particularly within the common open space preservation areas (Tracts A along with smaller preservation areas in Tracts B, C and D) and within individual lot preservation areas. That plan, in combination with specific notes on the plans, will ensure compliance with this criterion. However, while no major revisions to the proposed lot configurations, or other areas such as preservation areas, are required to satisfy this criterion, based on staff's recommendations, the applicant agrees to several revisions that will provide additional mitigation and protection of trees on the site. Accordingly, the following changes to the Tree Preservation Plan "Notes" on sheet L3.0, are adopted as conditions of approval: On the final plans, replace "Notes" 42 on sheet L3.0 with the following: Protective fencing for trees identified to be preserved shall be installed under the direction of a certified arborist and inspected and approved by the City prior to beginning any construction related activities. All protective tree fencing shall remain in place until completion of all construction activities; any relocation or removal of the protective fencing shall also occur under the direction of a certified arborist, with approval by the City. On the final plans, replace "Notes" 48 on sheet L3.0 with the following: In the event a preservation tree must be removed, justification of the removal must be documented by a certified arborist. Documentation must be provided to the City for review prior to tree removal activity. Removal of a preservation tree will require the planting of 2 replacement trees for every tree removed. Replacement trees shall be a native species, with a minimum caliper of 1 ~/z inches for deciduous trees and a minimum height of 5 feet for coniferous trees. Any trees that must be replaced within private preservation areas are the responsibility of that lot owner. Any trees that must be replaced in Tracts A, B, C, and D will be the responsibility of the common owners or homeowners association. • On the final site plans, remove "Note" 49 on sheet L3.0. Hearings Official Decision (PDT 17-1) 37 On the final plans, replace "Notes" 411 on sheet L3.0 with the following: Trees in the common areas of Tract A and individual lot preservation areas that die naturally or are damaged naturally and become potentially hazardous will require no replacement trees. The removal of dead, diseased, or hazardous trees is allowed with prior approval by a certified arborist and documentation of that approval (including the need for removal) provided to the City. An area of Tract A between Lots 13 and 14 will be excavated for the inclusion of a storm drainage feature as depicted on plan sheets L3.3, L3.4 and L4.0. As a result, five trees will be removed in or adjacent to Tract A. To enhance the mitigation, and further reduce impacts, staff have recommended that two replacement trees for each tree removed. The applicant agrees to that recommendation. Therefore, this approval is conditioned on the following changes to the tree preservation plan: On the final plans, replace "Notes" 413 on sheet L3.0 with the following: Any trees to be removed in Tract A, as a result of installation of the storm sewer system between and near Lots 13 and 14, shall be replaced with two trees for every tree removed, after the City's acceptance of the system. Replacement trees shall be a native species, with a minimum caliper of 1 ~/z inches for deciduous trees and a minimum height of 5 feet for coniferous trees and planted in the same general area. Planning staff also expressed additional concerns with trees proposed to be preserved in Tracts A, B, C, and D, and the preservation areas of Lots 5 and 8 through 19. These preserved areas have a significant number of trees with critical root zones (CRZ) that extend into the buildable areas of lots that they are adjacent to. Based on staff's recommendation, the applicant agrees to an additional condition to minimize the impact to these CRZ. Accordingly, this approval is conditioned on the following: On the final plans for all lots that border Tracts A, B, C, and D or contain a preservation area, a temporary 10-foot construction setback area from all abutting preservation areas and Tracts A, B, C, and D shall be shown. The following note shall be added to the plans: "For all lots that border Tracts A, B, C, and D or contain a preservation area, a temporary 10-foot construction area setback from all abutting preservation areas and Tracts A, B, C, and D shall be enforced during home construction, and shall include temporary construction fencing." Finally, planning staff have requested, and the applicant agrees, to the following condition to ensure that the applicant's Tree Preservation Plan will clearly define what activities are allowed within preservation areas: On the final plans, include a note that states: "Within the individual preservation areas of Lot 5 and Lots 8 through 19, and on Tracts A, B, C, and D, no above ground structure that requires a building permit; no impacts to preserved trees; and no grading activity shall be allowed. The only exception is within Hearings Official Decision (PDT 17-1) 38 Tract A, the storm drainage facility and associated grading and maintenance, as shown on the plans." Subject to compliance with the conditions identified above, the applicant's Tree Preservation Plan complies with this criterion. (c) Restoration or Replacement. 1. For areas not included on the city's acknowledged Goal 5 inventory, the proposal mitigates, to the greatest degree attainable or feasible, the loss of significant natural features described in criteria (a) and (b) above, through the restoration or replacement of natural features such as: a. Planting of replacement trees within common areas; or b. Re-vegetation of slopes, ridgelines, and stream corridors; or c. Restoration of fish and wildlife habitat, native plant habitat, wetland areas, and riparian vegetation. To the extent applicable, restoration or replacement shall be in compliance with the planting and replacement standards of EC 6.320. 2. For areas included on the city's acknowledged Goal 5 inventory, any loss of significant natural features described in criteria (a) and (b) above shall be consistent with the acknowledged level of protection for the features. Finding: As discussed above, the subject property is included on the city's acknowledged Goal 5 inventory and, therefore, EC 9.8320(4)(c)(2) applies to this application. The acknowledged level of protection requires that the proposed PUD comply with applicable provisions of the Metro Plan and South Hills Study. Compliance with those applicable provisions is addressed above. Relying on this criterion, one neighbor asserted that the level of tree removal allowed within this proposed PUD is not consistent with the acknowledged level of protection of the features, namely the view from lower elevations. The comment does not specify the "acknowledged" level of protection, other than to suggest that the Metro Plan and the South Hills Study contemplate significant protection of all natural features and require that existing views of the South Hills ridgeline be maintained. As discussed above, the proposed residential use of the subject property is contemplated and allowed by both the Metro Plan and the South Hills Study. Protection of the natural resources must be evaluated within the context of the allowed use. Over time, as the designated and planned use of the surrounding residential properties has occurred, the ridgeline has been slightly modified; as the natural features, and particularly the tree canopy, has grown back in those residential areas, the impacts have been mitigated. Based on the proposed development, including both the proposed common and private preservation areas, and the applicant's proposed restoration plans, the proposed development complies with the level of protection contemplated by the Metro Plan and South Hills Study. (d) Street Trees. If the proposal includes removal of any street tree(s), removal Hearings Official Decision (PDT 17-1) 39 of those street tree(s) has been approved, or approved with conditions according to the process at EC 6.305. EC 6.305(3) prohibits removal of street trees without a permit and establishes the city's authority to require replacement of removed trees. The applicant proposes to remove existing street trees as part of the proposed improvements to Capital Drive. Removal of these trees must be authorized through the Privately Engineered Public Improvement (PEPI) permit process, along with payment of appraised values. To ensure that street trees are removed and replaced in accordance with City standards, this approval is subject to the following condition of approval: • The final PUD plans shall note that street tree removals must meet the permit and replacement value requirements of EC 6.305. EC 9.8320(5): The PUD provides safe and adequate transportation systems through compliance with the following: (a) EC 9.6800 through EC 9.6875 Standards for Streets, Alleys, and Other Public Ways (not subject to modifications set forth in subsection (11) below). (b) Pedestrian, bicycle and transit circulation, including related facilities, as needed among buildings and related uses on the development site, as well as to adjacent and nearby residential areas, transit stops, neighborhood activity centers, office parks, and industrial parks, provided the city makes findings to demonstrate consistency with constitutional requirements. "Nearby" means uses within 1/4 mile that can reasonably be expected to be used by pedestrians, and uses within 2 miles that can reasonably be expected to be used by bicyclists (c) The provisions of the Traffic Impact Analysis Review of EC 9.8650 through 9.8680 where applicable. This criterion requires an evaluation of the proposed PUD's transportation system to determine whether it is `safe and adequate' in relation to three specific subsections. It does not, and cannot, require an evaluation of the existing surrounding city street system independent of impact of the proposed development on that system. Rather, it requires an evaluation of the PUD's impact on the existing transportation system within the context of the three subsections. EC 9.8320(5): The PUD provides safe and adequate transportation systems through compliance with the following: (a) EC 9.6800 through EC 9.6875 Standards for Streets, Alleys, and Other Public Ways (not subject to modifications set forth in subsection (11) below). Finding: EC 9.8320(5)(a) requires compliance with the standards for streets, alleys and other public ways set forth in EC 9.6800 through EC 9.6875. Each of those standards is addressed as follows: EC 9.6805 Dedication of Public Ways. Hearings Official Decision (PDT 17-1) 40 EC 9.6805 permits the City to require dedication of public ways for bicycle and/or pedestrian use as well as for streets and alleys, as a condition of any development, provided the City makes findings to demonstrate consistency with constitutional requirements. The public ways for streets to be dedicated to the public by the applicant must conform to the adopted right-of-way map and EC Table 9.6870. As explained below in findings regarding EC 9.6870, the City is not requiring any additional right-of-way dedication or special setback for the proposed PUD. EC 9.6810 Block Length The applicant does not propose any new public local streets and, therefore block length requirements are inapplicable to this proposed PUD. As explained below in findings of compliance with EC 9.6815, the existing street configuration justifies an exception to the requirement for a connecting street between Capital Drive and Floral Hill Drive. EC 9.6815 Connectivity for Streets The Street Connectivity standards require compliance with the requirements of EC 9.6815(2)(b)(c) and (d) unless an exception is justified under EC 9.6815(2)(g): As described in the Staff Report, EC 9.6815(2)(b) requires street connections in the direction of any planned or existing streets within 1/4 mile of the development site and connections to any streets that abut, are adjacent to, or terminate at the development site. EC 9.6815(2)(c) requires that the proposed development include streets that extend to undeveloped or partially developed land adjacent to the development site in locations that will enable adjoining properties to connect to the proposed development's street system. EC 9.6815(2)(d) requires secondary access for fire and emergency vehicles. EC 9.6815(2)(g)(1) allows for an exception to these standards if the applicant provides a local street connection study which demonstrates that the proposed street system meets the intent of street connectivity provisions of the land use code as expressed in the purpose and intent statement at EC 9.6815(l), and also shows how undeveloped or partially developed properties within a 1/4 mile can be adequately served by alternative street layouts. Additionally, EC 9.6815(2)(g)(2) provides that the City must grant an exception to these requirements if it is demonstrated that a connection cannot be made due to existing physical conditions, buildings and other development on adjacent lands. EC 9.6815(2)(a) precludes private streets unless the developer can demonstrate that a public street is not necessary to meet other street connectivity standards. The applicant's proposed private street (Cupola Drive) is permissible in this case because a public street connection is not required per the findings of subsections (b) through (f) below. EC 9.6815(2)(b) requires the development to include street connections in the direction of existing or planned streets, and to extend streets that abut, are adjacent to, or terminate at the development site. Existing streets within 1/4 mile of the development site include Capital Drive, (which abuts the westerly boundary of the subject site) and Floral Hill Drive, which is approximately 1000 feet to the east and is separated from the development site by the City- Hearings Official Decision (PDT 17-1) 41 owned Ribbon Trail. As reflected in the February 28, 2018 revised Public Works referral comments (Public Works referral comments) (page 3), the applicant's request for an exception to the requirement to provide a connection between Capital Drive and Floral Hill Drive pursuant to EC 9.6815(2)(g)(2)(a) is warranted, given that the existing slopes to the east are in excess of 30% (well above the City's maximum street grade requirements) and would require that the street cross the Ribbon Trail. EC 9.6815(2)(c) requires developments to include street extensions to undeveloped or partially developed lands adjacent to the development, and in a location that enables adjoining properties to connect to the proposed development's street system. Other than Hendricks Park to the north and the Ribbon Trail to the east, the only adjoining lands include a 0.7-acre property (Assessor's Map 18-03-04-31, Tax Lots 2601 and 2603) to the west of the development site, and Tax Lots 101 and 102 of Assessor's Map 18-03-04-34 to the south of the development site, all of which have adequate frontage on Capital Drive. Public Works referral comments (page 3) recommends that there should be no requirement to provide additional public street connections through the subject site to any of these properties. Capital Drive currently terminates at the City-owned Hendricks Park property and a connection in the direction of the Ribbon Trail is physically precluded. EC 9.6815(2)(d) requires secondary access for fire and emergency vehicles consistent with EC 9.6870. The proposed PUD qualifies for an exception to this standard under EC 9.6815(2)(g)(2)(a) because the slopes between Capital Drive and Cresta De Ruta Street to the west, and from the private street (Cupola Drive) to the easterly property boundary are well in excess of 15%, which is the maximum allowable grade for City streets. Further, an exception to the north is warranted under EC 9.6815(2)(g)(2)(b) because the property to the north is developed as a City park (i.e., Hendricks Park) and Capital Drive already provides a public right-of-way connection to this adjoining property. No additional street connection is feasible or warranted. EC 9.6815(2)(e) requires minimization of excavation and embankment for proposed street alignments. Public Works Referral comments (page 3) conclude that the proposed development complies with this standard because the proposed public street improvements will be located in alignment with the existing roadway location. The proposal for curbside sidewalks on the east side of Capital Drive will reduce the amount of excavation as compared to setback sidewalks. EC 9.6815(2)(f) requires that barriers be installed at the end of a required improved street when it terminates at an existing street that is not improved to City standards. The applicant has proposed to end the full width improvements of Capital Drive approximately 125 feet south of the property's northern edge. This will leave the remaining 125 feet in its current, unimproved condition. The installation of a street end barricade will be required north of any Capital Drive access points, south of Hendricks Park, during the PEPI process, consistent with this standard. One neighbor argues that the exception to the Street Connectivity Standard at EC 9.6815(2)(b) is prohibited because it violates the purpose of EC 9.6815(l) that "streets are designed to efficiently and safely accommodate emergency fire and medical service vehicles." (CW Murchison written testimony, March 21, 2018.) He argues that the existing streets cannot safely Hearings Official Decision (PDT 17-1) 42 accommodate emergency vehicles and, therefore, the city cannot make an exception to the requirement for secondary access. As discussed above, EC 9.6815(2)(g)(2) requires the City to grant an exception if a connection cannot be made due to existing physical conditions, buildings and other development on adjacent lands. As described in the Public Works referral comments, a connection between Capital Drive and Floral Hill Drive is precluded by the existing physical conditions, including the existing slopes, which are in excess of 30% (well above the City's maximum street grade requirements) and the Ribbon Trail, which is located between the two streets. Based on the above analysis, the proposed PUD complies with the EC 9.6815 street connectivity standards. EC 9.6820 Cul-de-Sacs and Turnarounds EC 9.6820(l), (3), and (4) include requirements for cul-de-sacs and turnarounds. EC 9.6820(5)(a), allows an exception to these requirements when the topography of the proposed development site precludes compliance. As the applicant explains, the construction of a cul-de- sac on Capital Drive would require significant grading. The existing topography within the right of way of Capital Drive is steep and would preclude construction of a cul-de-sac or hammerhead turnaround at the terminus of Capital Drive without significant cuts and fills. Public Works Referral comments (page 4) concur with the applicant's evaluation and conclusion. Accordingly, in accordance with EC 9.6820(5)(a), the topography of the development site allows for an exception to EC 9.6820(l), (3), and (4). EC 9.6830 Intersections of Streets and Alleys (1) Angles EC 9.6830(l) requires that all streets intersect one another at an angle as near to a right angle as practicable considering topography of the area and previous adjacent layout. Public Works referral comments (page 4) agree that the proposed development complies with this standard as a result of the large curb radii at the street intersection of Capital Drive and Cupola Drive, which provides adequate space in the intersections to allow vehicles to orient themselves 90-degrees to the intersecting street in order to make right hand turns. (2) Offsets EC 9.6830(2) requires a 100-foot minimum offset distance between local streets. The distance along Capital Drive between Cresta de Ruta Street and Cupola Drive (South) and the distance between Cupola Drive (South) and Cupola Drive (North) each exceed 100 feet. Accordingly, the proposed development complies with this standard as EC 9.6835 Public Accessways Hearings Official Decision (PDT 17-1) 43 The Ribbon Trail, a publicly-owned hiking trail, is located adjacent to the eastern boundary of the subject property. Because the path is unimproved (not paved) and because the slopes in the eastern portion of the development site exceed 30%, EC 9.6835 does not require a public connection to the Ribbon Trail. EC 9.6840 Reserve Strips This standard does not apply because the proposed development does not create the need to prevent access to adjoining properties or streets or to control access to the subject property. EC 9.6845 Special Safety Requirements No special safety requirements are necessary to discourage use of the streets by non-local motor vehicle traffic. EC 9.6850 Street Classification Map As discussed below at EC 9.6870 Street Width, the proposed PUD is consistent with the adopted Street Classification Map, in compliance with this standard. EC 9.6855 Street Names EC 9.6855 requires that names for new streets that are not in alignment with existing streets are subject to approval by the Planning Director and must not unnecessarily duplicate or resemble the name of any existing or platted street in Lane County. Capital Drive is an existing street name and the applicant's proposed improvements will extend the street within right-of-way that is adjacent to the development. The proposed private street name "Cupola Drive" has been referred to the regional road naming group and Public Works staff have determined the name to be acceptable. EC 9.6860 Street Right-of-Way Map The proposed PUD does not amend the right-of-way map. This standard is not applicable. EC 9.6870 Street Width Pursuant to EC 9.6870, the right-of-way and paving widths of streets shall conform to those widths designated on the adopted Street Right-of-Way map. When a street segment right-of-way width is not designated on the adopted Street Right-of-Way map, the required street width must be the minimum width shown for its type in Table 9.6870 Right-of-Way and Paving Widths. A greater width may be required based on adopted plans and policies, adopted Design Standards and Guidelines for Eugene Streets, Sidewalks, Bikeways and Accessways or other factors which in the judgment of the Planning and Public Works Director necessitate a greater street width. Capital Drive, which is not identified on the adopted Street Classification Map or the adopted Right-of-Way Map (Fig. 60-61 of the Arterial and Collector Street Plan (ACSP)), is a local Hearings Official Decision (PDT 17-1) 44 street. Capital Drive is characterized as a low-volume street. Under EC Table 9.6870, low volume local streets are required to have between 20 and 28 feet of paving width along with 45 to 55 feet of right-of-way width. The existing 50-foot right-of-way exceeds the minimum required right-of-way width of 45 feet for local streets and is also sufficient to construct the required improvements in Capital Drive, which includes a 21-foot wide paved street with curbs and gutters on both sides and a 5-foot wide curbside sidewalk on the east side of the street. The proposed paving and right-of-way widths comply with the widths identified in Table 9.6870. The proposed street design will be more precisely reviewed for compliance with applicable standards during the subsequent Privately-Engineered Public Improvement (PEPI) permit process. Public Works referral comments page 5-6) confirm that no additional dedication or special setbacks for street right-of-way are required. EC 9.6873 Slope Easements Slope easements may be required to facilitate the construction of public streets and alleys and to protect the structural integrity of the roadway. The applicant acknowledges that slope easements may be required because of the site's topography and the site plan depicts proposed slope easements on Sheet L2.0. Because the extent of slope easements will not be known for certain until the PEPI permitting process, the exact requirement for slope easements will be determined at the time of the subsequent subdivision application and required to be shown on the final plat. EC 9.6875 Private Street Design Standards The applicant proposes a private street (Cupola Drive) to serve the proposed development. As explained in the Staff Report, EC 9.6815(2)(a) requires private streets to be designed and constructed in accordance with applicable requirements contained in the adopted Design Standards and Guidelines for Eugene Streets, Sidewalks, Bikeways and Accessways, which are more specifically identified in Section M. Private Streets and Alleys (on page 39 of Exhibit A of City Council Resolution No. 4608) in the ACSP. Under Section M of the adopted standards (Arterial and Collector Street Plan), private streets are required to comply with the standards for public streets with respect to intersection configuration, minimum centerline radius length, grade, sight distance, width, curb requirements, sidewalks and street alignments relative to natural resource sites and water-related features. Public Works referral comments (page 6-7) confirm that the proposed private street conceptually complies with the applicable standards. Under the private street typical section on the applicant's site plans (Sheet C4 Private Roadway Plan & Profile) Cupola Drive will consist of 21-foot paving, curbs on both sides of the street, and a 3.5-foot-wide sidewalk on the westerly side of the street in a 25-foot wide right-of-way (i.e., joint access easement). At the time of the subsequent subdivision review, and prior to final plat approval, the private street must be formally created by a separate document (i.e., Private Joint Use Access and Utility Hearings Official Decision (PDT 17-1) 45 Easement and Maintenance Agreement (JAM), or similar document). As the Staff Report summarizes, the JAM will include a description defining the area of the private street and will also identify permitted improvements, construction expectations, rights of usage and maintenance responsibilities for the facilities in the private street, as well as responsibilities for the public sidewalk adjacent to the private street. The JAM will be recorded concurrent with and cross-referenced on the final plat. At the time of the subdivision review, provisions ensuring emergency access over the private street must also be addressed. These may be included in the JAM or alternatively may be dedicated as a Public Emergency Access Easement on a standard City form. The access connection to the private street must be constructed as a standard driveway apron. The structural design and construction inspection for the private street shall remain the developer's responsibility. Certification by a licensed engineer that a structural design meeting the applicable public standards has been completed, will be required at the time of the site development permit for the private street. Based on these findings and future permit requirements, the proposed development complies with the EC 9.6800 through EC 9.6875 standards for streets, alleys and other public ways. EC 9.8320(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. Finding: This criterion relates directly to the proposed PUD itself, requiring that proposed onsite transportation system is safe and adequate as it relates both internally and to `nearby' uses. As explained in the Staff Report, the proposed PUD includes major street improvements to Capital Drive adjacent to Lot 20 and northward to Lot 2. These improvements include widening of the road to meet City standards, curb and gutter, and sidewalk along the east side of the road. Cupola Drive, a proposed private road, will connect to Capital Drive at the southern and northern portions of the development allowing an access loop through the development. Cupola Drive will also include curb and gutter and sidewalk on the west side of the road. The improvements to Capital Drive, and the addition of Cupola Drive, will facilitate the safe and adequate vehicular, pedestrian and bicycle transit circulation within the development, and will allow drivers to navigate through the development in a continuous manner without negotiating a three-point turnaround or the use of a private driveway, which is currently the only way to enter and then exit that portion of Capital Drive north of the intersection with Cresta De Ruta Street. Hearings Official Decision (PDT 17-1) 46 As discussed below in findings of compliance with EC 9.6505(4), Public Works Referral comments (page 12) recommend the proposed sidewalk along Capital Drive be widened to 5- feet in width in order provide safe and adequate connection to the established neighborhood along Capital Drive. The hearing official agrees that the 5-foot sidewalk is necessary in order to ensure safe and adequate access both within and adjacent to the proposed PUD. Nearby facilities include Hendricks Park, the Ribbon Trail and neighboring developed residential areas. There are no other facilities within a 1/4 mile accessible to pedestrians. The wider sidewalk along Capital Drive will facilitate pedestrian access both to the park and to the adjoining residentially-developed neighborhood. Laurelwood Golf Course is within 3/4 mile of the site and accessible by bicycle. The nearest commercial area is 19th Avenue and Agate Street with retail and restaurant uses, located within 1 1/4 miles from the site and accessible by bicycle. The nearest LTD bus line (route 27) is also located within 1 1/4 miles on 24th Avenue between Agate Street and Nixon Street. The Response Committee and numerous residents of the adjacent established residential neighborhood presented testimony and evidence to demonstrate that the existing transportation system, upon which the proposed development must rely, is currently unsafe and therefore incapable of serving the proposed PUD development. To support their argument that the existing street system cannot serve additional development, several cite the requirement that in evaluating pedestrian, bicycle and transit circulation, the applicant must also evaluate "nearby' adjacent uses. They urge that because of the condition of the existing street system, the proposed development does not and cannot provide `safe and adequate' transportation system. One resident argued that the fact that, in his opinion, the existing street system is currently `inadequate' and that the applicant's proposed development will not cause the inadequacies in the existing street system is "immaterial." To the contrary, as stated above, under EC 9.8320(5) the safety and adequacy of the existing street system is relevant to this criterion only insofar as the proposed development impacts that system. This criterion requires an evaluation of how the proposed transportation system will impact nearby uses and it is within this context that the safety and adequacy of the onsite transportation system is evaluated. As discussed above, the onsite transportation system will include improvements to Capital Drive and the addition of a private loop street that will facilitate traffic movement both within the proposed PUD and existing street system. The proposed developments impact of the on-site transportation system on the existing uses are further addressed below in the findings of compliance with EC 9.8320(7). Those findings are incorporated here to demonstrate that the proposed development can provide safe and adequate pedestrian, bicycle and transit circulation, in compliance with EC 9.8320(5)(b). The findings below regarding compliance with EC 9.8320(5)(c) are also incorporated to establish that the traffic that will be generated by the proposed development is insufficient to warrant a Traffic Impact Analysis (TIA).Those findings provide additional support for the conclusion that, as proposed, the PUD will `safe and adequate transportation systems" as it relates to the pedestrian, bicyclist and transit circulation with the proposed development and to adjacent and nearby residential areas. Hearings Official Decision (PDT 17-1) 47 EC 9.8320(5): The PUD provides safe and adequate transportation systems through compliance with the following: (c)_[t]he provisions of the Traffic Impact Analysis Review of EC 9.8650 through 9.8680 where applicable. Finding: EC 9.8320(5)(c) requires the evaluation of the proposed transportation system under a Traffic Impact Analysis (TIA) when a TIA is applicable to the proposed development. EC 9.8650 through 9.8680 require a Traffic Impact Analysis when the anticipated traffic generated by a proposed development meets one of the thresholds established in EC 9.8670, which states Traffic Impact Analysis Review is required when one of the conditions in subsections (1) - (4) of this section exist unless the development is within an area (a) shown on Map 9.8670 Downtown Traffic Impact Analysis Exempt Area, or (b) subject to a prior approved Traffic Impact Analysis and is consistent with the impacts analyzed. (1) The development will generate 100 or more vehicle trips during any peak hour as determined by using the most recent edition of the Institute of Transportation Engineer's Trip Generation. In developments involving a land division, the peak hour trips shall be calculated based on the likely development that will occur on all lots resulting from the land division. (2) The increased traffic resulting from the development will contribute to traffic problems in the area based on current accident rates, traffic volumes or speeds that warrant action under the city's traffic calming program, and identified locations where pedestrian and/or bicyclist safety is a concern by the city that is documented. (3) The city has performed or reviewed traffic engineering analyses that indicate approval of the development will result in levels of service of the roadway system in the vicinity of the development that do not meet adopted level of service standards. (4) For development sites that abut a street in the jurisdiction of Lane County, a Traffic Impact Analysis Review is required if the proposed development will generate or receive traffic by vehicles of heavy weight in their daily operations. For purposes of EC 9.8650 through EC 9.8680, "daily operations" does not include routine services provided to the site by others, such as mail delivery, garbage pickup, or bus service. "Daily operations" does include, but is not limited to, delivery (to or from the site) of materials or products processed or sold by the business occupying the site. For purposes of EC 9.8650 through EC 9.8680, "heavy vehicles" are defined as a single vehicle or vehicle combination greater than 26,000 pounds gross vehicle weight or combined gross vehicle weight respectively. In order to evaluate traffic impacts of the proposed PUD, the applicant prepared a Traffic Safety and Street Connectivity Study. In consultation with Public Works analyses (Public Works referral comments, page 7 and Public Works December 8, 2017 Capital Drive Roadway Review), and in reliance on the applicant's Traffic Safety and Street Connectivity Study, the City planning staff determined that the proposed PUD did not satisfy any of the thresholds for a traffic impact analysis. Hearings Official Decision (PDT 17-1) 48 As summarized in the Staff Report, and as outlined in the applicant's Traffic Safety and Street Connectivity Study, the anticipated peak hour trips of the proposed development will be 27 AM peak hour trips and 35 PM peak hour trips, which do not reach the threshold of 100 or more peak hour trips. The report adds that there are no documented concerns to warrant further review under these standards, nor will the proposed residential development generate or receive vehicles of heavy weight in routine daily operations. The applicant's Traffic Safety and Street Connectivity Study identified no reported crashes between January 1, 2010 and December 31, 2014, which is the most recent five-year period of available crash data from the Oregon Department of Transportation's Crash Analysis and Reporting Unit. The Staff Report specifically relied on Public Works December 8, 2018 Memorandum prepared by Scott Gillespie, P. E., Public Works Development Review Manager, (city traffic analysis), which determined that Spring Boulevard and Capital Drive, which provides access to the site, are adequate to serve the proposed development and no off-site mitigation by the applicant is required. The city traffic analysis concludes there is insufficient evidence to suggest the existing roadways are unsafe or incapable of serving the development site. Accordingly, the Public Works staff determined that the proposed development does not meet any of the applicable triggers for Traffic Impact Analysis (TIA) Review, and therefore no TIA is required pursuant to EC 9.8650-9.8680. The Response Committee and numerous neighbors reject the applicant's report and the city's traffic analysis. In extensive written, oral, photographic and video evidence, the neighbors describe an existing roadway system that they consider to be unsafe and argue that additional cars generated from the proposed development will make an unsafe situation more dangerous. Many note the inadequate infrastructure, include substandard widths and the lack of sidewalks and curbs. Some note current difficulties caused by delivery or construction vehicles parked along narrow streets, and the congestion issues created by vehicles parked along the streets. Others note that the blind curves and the condition of the shoulders create a dangerous situation. One individual urged that adding more traffic to this system would result in `mayhem.' Some photographs and videos of the streets reflect these constraints, depicting cars and trucks parked in the roadway resulting in a single lane for vehicles and limited maneuverability; others show congestion caused by an accident or inclement weather. Some show pedestrians walking in the middle or along the edge of the street, and others show a vacant street. Much of the evidence and testimony related to the potential impact of the proposed development on the existing street system relies on this criterion to support a conclusion that the proposed PUD must be denied because additional traffic cannot be safely accommodated. However, this criterion requires an evaluation of whether the proposed PUD provides a `safe and adequate transportation system' through a traffic impact analysis when one of the EC 9.8670 thresholds is met. Accordingly, as they relate to this criterion, the hearings official construes the neighbors' arguments to be that a traffic impact analysis should have been required. The Response Committee submitted a review of the applicant's Traffic Safety and Street Connectivity Study by another traffic engineer, Mr. Massoud Saberian. His review echoed the neighbor's evaluation of the existing street conditions. His analysis was critical of the timing of the applicant's traffic counts and included numerous suggestions that questioned the applicant's Hearings Official Decision (PDT 17-1) 49 engineer's methods and calculations. However, neither Mr. Saberian's review, nor any other evidence submitted by the Response Committee or other neighbors includes any calculations to dispute the city's and applicant's conclusion that the proposed development will not generate 100 or more vehicle trips during any peak hour as determined by using the most recent edition of the Institute of Transportation Engineer's Trip Generation. Accordingly, there is no evidence in the record that, under EC 9.8670(l) a TIA is required. EC 9.8670(2) requires a TIA if "the increased traffic resulting from the development will contribute to traffic problems in the area based on current accident rates, traffic volumes or speeds that warrant action under the city's traffic calming program and identified locations where pedestrian and/or bicyclist safety is a concern by the city that is documented." Several neighbors refer to an accident that occurred in the neighborhood in September, 2017, as evidence that the city's statement regarding the lack of accidents in the area is inaccurate. They also note apparently unreported accidents that have occurred between motorists and bicyclists and cite many `near-misses' that they routinely confront. They note that neighbors must be extremely vigilant to avoid accidents, and that traffic must stop when residents exist their driveways in order to avoid collisions. They report that often traffic is delayed or constrained by vehicles blocking the roadway. Many note the lack of off-street parking, which requires that they and their neighbors, as well as visitors and contractors, park on the narrow roadways. Within the context of the existing roadway conditions and the current enforcement issues, the threshold for a TIA is whether "the increased traffic resulting from the development will contribute to traffic problems in the area based on current accident rates, traffic volumes or speeds that warrant action under the city's traffic calming program, and identified locations where pedestrian and/or bicyclist safety is a concern by the city that is documented." Based on the Response Committee and neighbors' testimony and evidence, it does not appear that the increased traffic from the development would warrant action under the city's traffic calming program. Based on their evidence and testimony regarding the low reported accident rates and low traffic volumes and speeds, it appears that, while drivers, bicyclists and pedestrians must remain vigilant, the street system is functional: it has not resulted in situation that would warrant additional calming mechanism or other actions under the city's traffic calming program. Rather, while the neighbors uniformly reject the City's traffic analysis, based on their descriptions, it appears that the existing conditions are consistent with the city's objectives for `queuing street' design standards. As the analysis states, "The narrow roadway and topography create a self-regulating condition consistent with the City of Eugene queuing street design standards and appropriate for the topography, speeds, and volumes in the surround[ing] neighborhoods." (December 8, 2017 city traffic analysis.) And, while pedestrians must share the road in several locations with bicyclists and vehicles, it does not appear that this area has been identified by the city for additional mitigation or concern. There is insufficient evidence that the additional traffic generated by the proposed development would necessitate additional action under the city's traffic calming program. Finally, EC 9.8670(3) would warrant a TIA if the traffic engineering analyses that indicate approval of the development will result in levels of service of the roadway system in the vicinity Hearings Official Decision (PDT 17-1) 50 of the development that do not meet adopted level of service standards. The applicant's Traffic Safety and Street Connectivity Study provides evidence that that the roadway system in this area is currently meeting adopted levels of service standard. The City has not identified any streets in the vicinity where LOS performance standards are not met. While disputing the applicant's conclusions, the Response Committee's traffic analysis does not provide any evidence to indicate that the LOS performance standards are not met. Based on the evidence in the record, the hearings official agrees that the proposed PUD does not meet any of the threshold requirements for a TIA under EC 9.8320(5)(c). Based on the above analysis, the proposed PUD complies with the requirements of EC 9.8320(5)(a) and (b) to provide safe and adequate transportation systems. EC 9.8320(6) The PUD will not be a significant risk to public health and safety, including but not limited to soil erosion, slope failure, stormwater or flood hazard, or an impediment to emergency response. Finding: Soil Erosion: The applicant provided an analysis to demonstrate that the proposed PUD does not pose a significant risk due to soil erosion. Because of the size of the proposed development, an erosion prevention permit will be required before any ground disturbing activities. Slope Failure: The applicant's evaluation of risk due to `slope failure' is included in the applicant's geotechnical investigation. That investigation concludes that the proposed development is feasible from a geologic and geotechnical perspective, and that the proposed development will not adversely impact the proposed site or adjacent properties. As it relates specifically to slope failure, the applicant's investigation states: No indications of significant active or recent slope instability (such as tension cracks, sunken grades, springs, bare soil head scarps or incised erosional channels) were observed during reconnaissance. Soil creep indicated by fir trees with curved trunks is common, and quite extreme in places. Slopes below the proposed loop road are slightly hummocky due in part to logging activities, but there were no indications of recent or extensive slope failures observed. The Ribbon Trail is buttressed by low wooden cribbing in places, but no culverts or indications of high runoff were observed. The steeper slopes are generally vegetated with middle-age to relatively mature trees up to 3 feet or more in diameter and in our opinion appear to be relatively stable. Ferns are common on the steeper slopes, but other wetland type species are not. Branch Engineering Geotechnical Investigation, February 6, 2017. By its terms, the applicant's geotechnical report is a preliminary investigation and also includes numerous specific recommendations to minimize any potential for slope failure. Hearings Official Decision (PDT 17-1) 51 As noted above, the Response Committee presented its own Geotechnical assessment, which disputes nearly every finding of the applicant's report. As it relates to slope stability, the GeoSciences analysis relies on Dr. Schlieder's interpretation of LIDAR data and extensive discussion to suggest that the subject property may be geologically unstable. Following his initial investigation, Dr. Schlieder provided an addendum to support his interpretation, based on the presence of `lobes' in the pavement of Floral Hill Drive, located "at or near the toe of the east- facing slope below the proposed PUD." (Addendum to Geotechnical Review of Capital Hill PUD, March 21, 2018.) The Response Committee's forester, James Mehrwein, also disagrees with the applicant's analysis regarding the potential for slope failure. He concludes that "there is current evidence in the project area of slope instability. After viewing the site and reviewing published studies regarding tree removal and slope instability, it is my opinion that the proposed plan to harvest the trees designated for removal would increase the likelihood of slope failure in the future." He further explains that type of slope instability he observed would be considered "soil creep." The applicant's geotechnical engineer responded to Mr. Mehrwein's assertion that the property may be subject to soil creep as follows: "Soil creep is the downhill movement of near surface soil (usually the upper 2- to 3-feet) due to gravity, freeze/thaw, and shrink/swell effects. The slow creep may cause a pistol- butting of tree trunks during their early growth phase until substantial root mass and trunk strength is developed. Creep is common on most hillsides and does not indicate gross landslide movement. Creep movement is generally mitigated by modern foundation systems and control of soil moisture and temperature under and around the residence to where the slow movement is unnoticeable over the typical lifespan of a residence." (Branch Engineering Geotechnical/Geological Investigation Rebuttal, March 20, 2018.) The applicant's geotechnical engineer responded to the GeoSciences assessment by reiterating the finding in the applicant's analysis that "[t]here are areas of gross land instability on the east side and those were field mapped to the best of our ability for the planning level report. Mr. Schlieder's interpretation of the LIDAR is simply that, an interpretation with no ground reconnaissance of the site. The supposed landslide features that appear to encroach onto the northeast portion of the site are just as likely to be erosional in nature if they exist at all." To respond to Dr. Schlieder's analysis related to Floral Hill Drive, the applicant's engineer provides a detailed factual analysis to support its conclusion that there is no indication of landslide movement in that area. Neither the GeoSciences assessment nor the forester's assessment consider or respond to the numerous, specific recommendations in the applicant's geotechnical investigation to minimize the potential for slope failure. The standards for Geological and Geotechnical Analysis at EC 9.6710 are discussed in further detail below. However, as those standards relate to the issue of slope stability, Public Works referral comments (page 7-8) agree with the applicant's analysis and conclusions in the report. In Hearings Official Decision (PDT 17-1) 52 addition to adherence with the specific recommendations included in that report, Public Works referral comments also recommend the following condition of approval below to ensure that the PUD will not create any significant risk of slope failure. A geotechnical analysis from a certified engineer, with specific recommendations for design and construction standards, shall be provided with any applications for Privately Engineered Public Improvement (PEPI) permits, as well as building permits and site development permits for the initial construction of infrastructure, and residences on individual lots. The development proposed with each permit shall adhere to the recommended standards for design and construction as contained in the related geotechnical analysis. The hearings official agrees with this Public Works recommended condition; and also agrees that the applicant's preliminary geotechnical investigation provides substantial evidence that the PUD will not be a significant risk to public health and safety due to slope failure. While the GeoSciences and forestry evaluations provided by the Response Committee disagree with that analysis, their interpretations and analyses do not factor in the very numerous, specific recommendations in the Geotechnical investigation to ensure against slope failure, and do not establish that subject to the listed recommendations, the proposed development puts the property at risk for slope failure. S'tormwater or Flood Hazard: The proposed development site is located outside of any flood hazard areas and does not create a flood hazard. Stormwater flood control requirements are further addressed below, under the related standards at EC 9.8320(10)(j). Emergency Response: This criterion requires a finding that the proposed PUD will not be an impediment to emergency response. As explained in the Staff Report, the Fire Marshal's initial review comments described the restricted access along Spring Boulevard and Capital Drive south of the proposed development as currently causing significant delays in Fire Department response for several reasons: unusually high opposing traffic, a collision of vehicles, road construction, construction vehicles related to residential housing, down trees or wires, and other drivers attempting ill-timed turn around attempts or trying to park. Those comments also expressed concern with the potential impact on the timely response of fire vehicles responding to major medical emergencies and fire incidents. The Fire Marshal's office indicated that minimizing restrictions along existing roadways leading up to the development site would greatly improve the ability of the fire department and other emergency responders to respond quickly. To improve access to the site the Fire Marshal's office recommended that, "No Parking - Fire Lane" signs be installed on both sides of existing roads that lead up to the Capital Hill PUD area. In addition to the Fire Marshal's recommendation, the City received a petition signed by 31 area residents, titled, "Petition of Concerns Over Hazardous Street Parking on Capital Drive", requesting an investigation of the increase in parking in the 2600 block of Capital Drive based on the residents' concern regarding hazardous conditions for motorists, bicyclists, pedestrians and emergency responders. In response to these concerns, the City's Traffic Engineer executed Hearings Official Decision (PDT 17-1) 53 Administrative Order (AO) 58-18-01 on February 23, 2018, which removes all on-street parking from Capital Drive between Spring Boulevard and Cresta De Ruta Street. It is expected that "No Parking" signs will be installed on Capital Drive by April 30, 2018. In response to the anticipated measures to alleviate access issues, the Fire Marshals' office provided updated comments on February 20, 2018 that concludes that providing the full unobstructed width on Capital Drive from Spring Boulevard to Cresta De Ruta Street with "No Parking" signs on both sides of the roadway will improve emergency access and evacuation capabilities along the route to the proposed development. Several neighbors expressed serious concerns regarding the existing problems of fire trucks and other emergency vehicles accessing the neighborhood. Several noted the difficulties of fire trucks turning around on the narrow roadways. One neighbor argued that the Fire Department "has clearly said that it [the proposed development] is an impediment to emergency response, even with no parking signs on Capital Drive." He argues that when the Fire Department "clearly' states this PUD will be an impediment, the city cannot guarantee that it will not be. (March 30, 2018 email correspondence from CW Murchison). As discussed above, the Fire Marshal's office comments indicate that the parking prohibition leading to the proposed PUD could alleviate current issues in navigating the existing street system. The February 20, 2018 comments do not state that, with the addition of no-parking signs, the proposed development would create an impediment. Moreover, to the extent the emergency response issues relate to the ability of trucks to maneuver and turnaround, the proposed PUD could improve the existing situation. By providing a loop road (Cupola Drive) near the end of Capital Drive, emergency vehicles can more efficiently maneuver the streets. Eliminating the need to turnaround, the vehicles can negotiate the existing street system more efficiently. Based on the Fire Marshal's updated comments, and with the addition of a loop street that allows greater maneuverability of emergency vehicles, the evidence in the record indicates the proposed PUD will not be an impediment to emergency response 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 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. Finding: The applicant has provided evidence regarding the adequacy of the public facilities and services available to the site Hearings Official Decision (PDT 17-1) 54 Eugene Water and Electric Board (EWEB) Referral comments confirm the availability of electricity service. As discussed in the Staff Report and in the EWEB Referral comments, there is sufficient water to supply the proposed PUD. However, the existing water system infrastructure does not have adequate capacity to provide the required domestic and fire water flows resulting from the increased demand of the proposed development. Accordingly, under this criterion, because the services are not presently available, the applicant must demonstrate the future availability of those services. Specifically, EWEB determined that the applicant would need to work with EWEB's water engineering department in order to discuss options for design of a new water distribution system, which includes a new pump station and associated piping to provide adequate water for the development; and the applicant would responsible for cost sharing of the new system. To satisfy that requirement, that applicant submitted an "Owner Commitment to Contribute to Cost of Water Infrastructure." That statement, signed by the owners, states the owners' current written commitment to pay their proportionate share of capital costs required to upgrade EWEB off-site facilities, as needed to adequately serve the proposed development of this property". EWEB has accepted this statement. A member of the Response Committee disputes the adequacy of the form of commitment, the scope of EWEB's authority to enter into this agreement and the scope of the commitment. She argues, in part, it does not appear to cover the entire subject property. She is correct; it does not list Tax Lot 201. However, the applicant explains that this omission was a result of a typographical error, and that the applicant intends that the commitment over the entire property. As a condition of this approval, that Commitment must be re-executed to clarify that the subject property to which it applies includes Tax Lot 201. The hearings official further finds that EWEB's acceptance of the commitment to be within its authority, and that the written statement is sufficient to demonstrate compliance with EC 9.8320(7)(c). As discussed in findings of compliance with EC 9.6505(l), prior to final subdivision approval, the applicant will also need to provide documentation from EWEB ensuring adequate water service. With regard to other public facilities and services, Public Works Referral comments (page 8-9) concurs with the applicant's statement that adequate public utilities and services are presently available to the site, as also indicated on the applicant's plans. Findings of compliance with EC 9.8320(10)(b) and 0), regarding public improvements and stormwater, further address the availability of these services to the site. The applicant has proposed a stormwater system to be constructed through the PEPI process, which will limit post development runoff to pre- development levels, consistent with the criteria set forth in EC 9.6791 through 9.6797. Those standards outline the requirements for flood control, water quality, and flow control and are further discussed below. In response to neighborhood concerns regarding the adequacy of the public street system, the applicant prepared a Traffic Safety and Street Connectivity Study to confirm the adequacy of transportation facilities. As explained in the Staff Report, the city's traffic analysis discusses the roadway conditions on Capital Drive and Spring Boulevard, and reviews the applicant's traffic Hearings Official Decision (PDT 17-1) 55 safety and street connectivity study that is reviewed in this memorandum. As summarized in the Staff Report, the city traffic analysis noted that the applicant's engineer did the following: • Prepared volume and speed study calculations in addition to other geomatics and operational calculations. • Properly estimated trip impacts from the development site per ITE standards. • Included estimated construction traffic from the development site even though it is not considered best practice to do so. • Analyzed intersections for safety and operations. • Demonstrated that no crash reducing measures are necessary. • Demonstrated that recorded traffic speeds are within acceptable percentages for the posted and statutory speed • Demonstrated that Capital Drive and Spring Blvd have adequate capacity to serve the development site. • Demonstrated that no measurable congestion from an engineering standpoint will result from the proposed development. Based on the applicant's study and the city's regulatory framework and statistical information regarding roadway capacity, operations and safety, the city traffic analysis concludes that there are adequate public facilities and services are available to the site. Specifically, the city traffic analysis relies and explains that the volumes and speed along Capital Drive and Spring Boulevard were within expected standards for local streets. The city traffic analysis also reviewed information associated with the 2014 re-paving of Capital Drive and Spring Boulevard, finding that pavement structural sections were designed to City standards, have the capacity to serve the existing neighborhood and the proposed development, and were found to be adequate to accommodate construction traffic from the development site. The city traffic analysis also found the measured speeds on the streets are consistent with the statutory and posted speeds and do not warrant an increase or reduction in the posted speed. It also found that the measured speeds and lack of crash history indicate the roadway is operating as intended; and that its research indicates that these streets have been fully improved with curb and gutters since the 1950's and were designed to standards and exceptions of the design engineer and City/County engineers at the time of their construction. It further found that, based on the city's engineering records, the roadway has historically performed well. The analysis concludes that the evidence in the city's records indicate the existing roadways are safe and capable of serving the development site. As stated above, the Response Committee and many residents of the surrounding developed residential neighborhood vehemently disagree that existing transportation system is adequate to serve the proposed development, and specifically reject the city's traffic analysis. One neighbor objected to any reliance on that analysis, asserting that the analysis is wholly factually inaccurate. Noting that the City Public Works Development Review Manager declined to respond to his request for clarification and corrections to the analysis, he states that there is "nothing at all in the Gillespie memo that the Hearings Official can rely on upon as substantial, reliable and probative evidence." (Paul Conte testimony, March 8, 2018.) Hearings Official Decision (PDT 17-1) 56 The Response Committee and other neighbors also challenge the qualifications of the applicant's traffic engineer and opine that their traffic engineer is more qualified to assess the existing street system and the potential impact of additional development. The hearings official finds no merit to any challenge to the qualifications of any of the traffic professionals (or the other professionals who prepared or reviewed evidence for this application). The hearings official finds no reason to question the qualifications of the professionals who prepared or reviewed the evidentiary materials for the analysis of the existing transportation system or the potential impact of additional development on that system. While professionals may disagree with others' analysis, that disagreement does not render the others' qualifications deficient. As discussed above in relation to EC 9.8320(5), the Response Committee's traffic engineer and many neighbors disagree with the city's characterization of the existing neighborhood's street system. However, notwithstanding their vehement opposition to the city's characterization of the streets, that analysis is actually largely consistent with the neighbor's descriptions. The city's analysis does not dispute that the streets leading to the proposed PUD are not built to city standards. It describes Spring Blvd as "a local street improved with travel lanes, curbs and stormwater controls. The paving width was designed to 18 feet from curb face to curb face. No sidewalks are present on either side. Parking is restricted on both sides of the roadway. No parking signs are present but intermittently space. The spacing does not meet current no-parking sign spacing standards but the presence of signage legally establishes the restriction throughout its length. Horizontal alignment, warning and advisory speed signs are present where site distance is limited as the statutory speed (25 mph). A speed sign is present on the downhill portion of the roadways." The analysis further explains that "Capital Drive begins at the intersection of Spring Blvd (along with Woodlawn and Madrona.) The intersection is fully controlled due to the awkward geometry and site distance. Capital Drive is a local street improved with travel lanes, curbs and stormwater controls. The paving width was designed to 18 feet from curb face to curb face. A 2-foot wide sidewalk exists on the downhill side of the roadway ending at the intersection of Alta Vista Ct. Parking is restricted on the uphill side of the roadway. Signage is present at what appears to be standard spacing. Both curbs are painted yellow restricting parking on Capital Drive form the intersection of Alta Vista Court through the 180 degree turn near the top of Capital Dr. approximately 200 feet from the intersection of Cresta De Ruta. The 200-foot section from the end of the 180-degree curve to Cresta De Ruta appears to have a faded yellow curb painted on the downhill side of the road. Parking patterns in this section are less pronounced. Capital Drive from Cresta De Ruta through the development site does not allow parking on either side of the road. This is established by no parking signs on both sides of the road. Horizontal alignment, warning and advisory speed signs are present where site distance is limited at the statutory speed (25 mph). Many neighbors describe the impact of the existing street layout as resulting in numerous Hearings Official Decision (PDT 17-1) 57 enforcement issues, with vehicles parking along the street leaving inadequate width for two cars to pass simultaneously. Others note that pedestrians and bicyclists must share the road with vehicles. However, they also note that through vigilance and caution, they and their neighbors are able to navigate and drive safely through this neighborhood. One neighbor noted "when I first moved here I thought this was a recipe for many accidents. I've been surprised but have come to realize that many accidents are avoided only because many drivers here are long experienced with the roads and exercise the abundance of caution that compensates for those who drive unaware, not an insubstantial number. And, a moderate volume of traffic mitigates the danger." (Email comment from Christopher Ogle, March 14, 2018.) During the hearing, and in written other written testimony, other neighbors describe that the stability of their neighborhood mitigates safety issues, and that "90% of the traffic is people who live here and they are safe" but that adding people who aren't familiar with the roads will create a dangerous situation. (March 7, 2018 Public Hearing testimony, Jason Brown.) While the neighbors cite their experiences navigating the existing street system to urge that the system cannot accommodate additional development, the city's traffic analysis explains the city's perspective that this system, while not built prior to current city standards, functions in accordance with its classification. As noted above in relation to EC 9.8320(5), the analysis explains that "the narrow roadway and topography create a self-regulating condition consistent with the City of Eugene queuing street design standard and appropriate for the topography, speeds and volumes in the surrounding neighborhoods. Spring Blvd. and Capital Drive do not have a crash history. This further justifies the adequacy to safely serve motorists, pedestrians and cyclists." He further explains, in the larger city context, that "The narrow character for the existing roadways is consistent for the existing roadways is consistent with the intent of the current City design standards for queuing streets. This situation happens all throughout the City of Eugene and other communities in Oregon. City design standard evolve and it is not implied that older streets designed under older standards are inadequate or inherently unsafe. The roadways are merely suffering from functional obsolescence. Functional obsolescence does not imply that older streets are unsafe, perform poorly or do not have the capacity to serve growth. Functional obsolescence simply means there is a reduction in the usefulness or desirability of a roadway because of an outdated design features, usually one that cannot be easily changed. From an Engineering operations and safety perspective, there is no appreciable difference between an 18-foot-wide road and a 20-foot-wide road. The utilization of on street parking is sparse and the portions that are being used support traffic calming in the area. The roadway his historically performed well and there is no engineering evidence to the contrary. The neighbors wholly disagree with the city traffic analysis and with the applicant's traffic study. The Response Committee's traffic engineer's review of the applicant's traffic study and the city's analysis also rejects both analyses. However, that review primarily emphasizes how the current street system fails to conform to city standards and notes many enforcement-related issues; and suggests that the system cannot be safe and the streets cannot safely function as Hearings Official Decision (PDT 17-1) 58 `queuing' streets because they are not constructed to current standards. However, the review does not provide engineering evidence that the street system is not functioning adequately. The reality that the streets do not conform to city standards does not render the street system inadequate. Based on all of the evidence in the record, including the low reported accident rates, the neighbor's testimony, and the Response Committee's traffic engineer's analysis, it appears that, while the streets are narrow and not constructed to current city standards, the street system does function adequately. Based on the above analysis, public facilities and services are either presently available, or can be available, and can be extended to serve the proposed development, in compliance with EC 9.8320(7). EC 9.8320(8) Residents of the PUD will have sufficient usable recreation area and open space that is convenient and safely accessible. Finding: The common open space established by Tracts B, C, and D on the flatter portion of the site will provide the opportunity for relatively easy access for passive recreational activity on the development site. Tract A is located in the steepest area of the site and not easily accessible. At least one neighbor challenged the sufficiency of the open space, given the steepness of Tract A, which limits its availability for active use and is not `safely accessible. She argued that usable recreation space must be `flat.' The usability of some open space on the property, including that on Tract A, may focus on its visual and aesthetic open space values. However, given the amount of open space, relatively large lots sizes within this PUD and this site's proximity to Hendrick's park, like their neighbors surrounding them, the residents of this PUD will have sufficient usable recreation areas and open space available to them that is convenient and safely accessible. 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. Finding: The proposed PUD includes single-family detached dwellings and is therefore subject to compliance with the applicable solar lot standards at EC 9.2790, as follows: EC 9.2790 Solar Lot Standards. (2) Solar Lot Requirements. In R-1 and R-2, at least 70% percent of the lots in a subdivision shall be designed as "solar lots" and shall have a minimum north-south dimension of 75 feet and a front lot line orientation that is within 30 degrees of the true east-west axis. For purposes of this subsection, a lot proposed for more than one dwelling unit shall count as more than one lot, according to the number of units proposed (e.g. a lot proposed for a fourplex shall be considered 4 lots). Hearings Official Decision (PDT 17-1) 59 As explained in the Staff Report, the applicant indicates that 8 of the proposed 34 lots do not have front lot lines since they are accessed via private access easements across other parcels within the proposed PUD. Of the 26 remaining lots, 8 are solar lots (approximately 31%). Out of 34 lots, only 5 do not achieve the minimum 75 foot north-south width dimension, despite their orientation to the front lot line or lack of a front lot line. (3) Exceptions to the Solar Lot Requirements. A proposed subdivision shall be exempt from EC 9.2790(2) if either of the following exists: (a) Density. The proposed subdivision provides at least 70% of the maximum allowed density according to the zoning of the property. (b) Site Constraints. One of the following circumstances is present: 1. Compliance with applicable street standards or public street plans requires a street configuration that prevents the lots from being oriented for solar access. Capital Drive is an existing dedicated public right-of-way. Capital Drive follows the natural contours of the hillside topography with a number of curves and changes in direction. The street runs primarily north-south along the west side of the proposed PUD with one curved segment oriented within 30 degrees of true east-west. Due to the existing location of Capital Drive, only one of the ten lots that front the street meets the solar requirements. The applicant has proposed to locate Cupola Drive within an existing graded area that has been previously used for vehicular access the property. This location follows the existing contours of the area, which minimizes grading impacts to the site. Cupola Drive is also a curved roadway that creates a looped connection to Capital Drive, which prohibits most of the proposed lots from meeting the requirement for the front lot line to be within 30 degrees of true east west. Because both roadways are oriented to the topography of the site, with Capital Drive already in existence and Cupola Drive located to minimize grading activity, a majority of the proposed lots cannot meet the solar lot standards and therefore the development is exempt from the solar lot standards under (3)(b)(1). 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.): (a) EC 9.2000 through 9.3980 regarding lot dimensions and density requirements for the subject zone. Finding: The provisions of EC 9.2750, Residential Zone Development Standards, and EC 9.2760, Residential Zone Lot Standards, are applicable to the requested PUD based on the R-1 zoning of the subject property. The subject development site is 13.63 acres, with a net acreage of 13.1 acres that excludes the area of the proposed private street as required by EC 9.2751(1)(c)1. The applicant proposes a Hearings Official Decision (PDT 17-1) 60 total of 34-38 dwelling units (including existing units), resulting in a net density of 2.6 - 2.9 units per acre. Although the standards in Table 9.2750 allow for a maximum of 14 units per acre in the R-1 zone because of the property's location, it is subject to the South Hills Study limitation, which restricts the subject property to a gross density of 5 units per (gross) acre. The proposed net density of 2.6 to 2.9 units per acre is well within the established maximum of 5 units per acre. As discussed further above in relation to findings of compliance with the South Hills Study density requirements, the Response Committee disputes the applicant's (and city's) calculation of density. They argue that the proposed common open space area (Tract A) and the private preservation areas designated on several of the proposed lots should be excluded from the density calculation. They also argue that one of the existing developed lots be excluded from the calculations. However, as stated above, in determining the density, the city must consider the entire property - including that portion the applicant proposes to preserve in order to minimize impacts and otherwise address all applicable approval criteria. The common and private preservation areas are part of the proposed PUD and appropriately considered in determining net density. And all lots, whether or not visible from other parts of the PUD, not only may, but must be considered in the density calculations. Table 9.2750 limits the maximum lot coverage for all lots to 50%. As the applicant acknowledges, for purposes of this calculation, lot coverage includes only the non-preservation areas of each lot. Accordingly, in accordance with Table 9.2750, for those lots that include preservation areas, that square footage of the preservation area must be excluded in the calculation of lot coverage. For Lots 16 and 17 the applicant requests the option to construct one to three units on each lot as attached single-family units. The applicant requests flexibility for these two lots with an increase in the maximum lot coverage to 65% in the event more than one single-family unit is built on either lot. The applicant points out that Table 9.2750 allows for a 25% increase for lot coverage for row houses. By allowing an increase in the lot coverage, the ability to develop the property is enhanced, providing greater diversity of housing units and maximizing infill opportunities. In accordance with Table 9.2750, that flexibility is permitted, and shall be reflected as a condition of approval on the final plans as follows: The following note shall be included on the final plans: For lots 16 and 17, each lot shall have the option of constructing up to three attached single-family structures. If only one single-family structure is proposed on either of those lots, that lot shall have a maximum lot coverage of 50% of the buildable portion of the lot. If two or three single-family structures are proposed, that lot shall have a maximum lot coverage of 65% of the buildable portion of the lot. The buildable portion of the lot shall be the area identified as outside any preservation area and shall not exceed 13,500 square feet, regardless of how many dwellings are developed on the lots. The Response Committee requests that this note be revised to add "as is the case with all other new single-family lots." This condition is specific to lots 16 and 17. Adding a generic phrase at the end of this note is not necessary and could lead to confusion. Hearings Official Decision (PDT 17-1) 61 In addition to the applicant's request for flexibility to allow for greater lot coverage on Lots 16 and 17 (in the event that more than one dwelling is built on those lots) the applicant also requests additional flexibility under applicable lots standards in accordance with the following: EC 9.2761 Special Standards for Table 9.2760. (1) Lot Standards. (c) Lot area, frontage, and width minimums may be modified with an approved cluster subdivision in R-1 or Planned Unit Development (PUD) in any zone. (5) Exceptions to the maximum lot size shall be granted if any of the following is met: (a) Existing physical circumstances such as topographically constrained lands, conservation easements, existing buildings, or utility easements prevent the ability to further divide the lot. (d) The exception will enable the protection of natural resources. (d) The exception will enable the protection of natural resources. Finding: The standards of Table 9.2760 limit the maximum size of new lots in the R-1 zone to 13,500 square feet. The applicant requests several exceptions to this standard. Lots 4, 20, 22 and 23 are existing lots that are developed with existing buildings and other physical features associated with those buildings such as driveways and garden spaces. The applicant asserts that the existing development on these lots preclude reducing them below the maximum 13,500 square feet. With regard to Lots 4, 20, and 23, the hearings official agrees with the Planning Staff's analysis that the proposed lot boundaries appear logical in order to preserve the existing developed structures and other improvements, while allowing for the proposed new lots and future development. Further division of these lots would disrupt the existing development. Lot 22 is proposed to include 17,994 square feet. That lot contains an existing vineyard and fruit tree orchard as well as several existing large trees, which the developer wishes to retain in its entirety with the existing house on Lot 23. However, if the applicant were to sell one or both of Lots 22 and 23, Lot 22 would be able to develop a larger area than is otherwise allowed for the R-1 zone. Accordingly, an exception to allow a greater lot size for Lot 22 is not warranted. Lots 5, and 14 through 19 exceed the maximum allowable lot size as a result of topographic constraints and natural resource protection. All of these lots have individual preservation areas in addition to their useable (or buildable) areas. After subtracting the preservation areas, all but two lots (Lots 5 and 16) have useable areas under 13,500 square feet. The proposed preservation areas on these lots effectively reduce the buildable area of each lot to within the 13,500 square foot limitation for the R-1 zone. However, after subtracting the proposed preservation area, Lot 5 has a useable area of 16,618 square feet and Lot 16 has a useable area of 16,168 square feet. The applicant has not established a basis under EC 9.2761(5) to increase the buildable areas for either Lot 5 or Lot 16 beyond the 13,500 square foot limitation allowed in the R-1 zone. In order Hearings Official Decision (PDT 17-1) 62 to provide consistency with the R-1 zone and to limit grading impacts and maximize tree preservation associated with development, those two lots must be revised to reflect a buildable area not to exceed 13,500 square foot. To ensure compliance with this limitation, the approval is subject to the following condition: • The final site plan shall be revised to show a buildable area on Lots 5, 16 and 22 not to exceed 13,500 square feet. Lots 5, 6, 8, 9, 17, 18, 19, and 33 have no frontage on a public or private street. All of these lots are accessed by private driveways with access easements across other parcels, or in the case of Lot 19, across Tract A. The Response Committee argues that access easements for these lots are inadequate because they are too narrow and unsafe for pedestrians, bicyclists and physically challenged individuals. While not directly related to the request to modify the street frontage, the proposed shared driveway accesses provide effective frontage and access for practical purposes to these lots while reducing the need for additional streets, which would create additional grading impacts and potential loss of additional trees and vegetation. Accordingly, the lot frontage requirement is modified for those lots. Based on the above findings and subject to the conditions noted above, the proposed PUD satisfies the requirements of EC 9.8320(10)(a). (b) EC 9.6500 through EC 9.6505 Public Improvement Standards. EC 9.6500 Easements Finding: EC 9.6500 authorizes the City to require dedication of easements for public utilities and access under certain circumstances and prohibits obstructions within public easements. The applicant proposes to provide a 10-foot public utility easement (PUE) across Lots 1 and 2 to accommodate the public storm drainage system stormwater detention pipes and manholes. For the public wastewater system, public utility easements will be required as a condition of approval under EC 9.6505(2), below. Otherwise, the applicant does not propose, nor has Public Works staff identified, the need for additional public easements to address stormwater or wastewater needs for present or future development of the area. EC 9.6505 Improvements-Specifications Finding: EC 9.6506 requires all public improvements to be designed and constructed in accordance with adopted plans and policies, the procedures specified in EC Chapter 7, and standards and specifications adopted pursuant to EC Chapter 7. Additionally, all developments are required to be served by and implement infrastructure improvements including water, Hearings Official Decision (PDT 17-1) 63 sewage, streets, street trees, street lights, sidewalks, accessways, and stormwater drainage. The applicant proposes all public improvements to be privately engineered and constructed. To ensure compliance with EC 9.6505, an Engineering and Construction agreement is required for the private construction of public improvements, which must be submitted when the construction plans are submitted for review and approval. The configuration and size of the public improvements will be subject to approval by the City Engineer upon review of the design and supporting analysis prepared by the applicant's engineer. If the improvements are not permitted prior to plat approval, a bond for the construction of public improvements will be required prior to final plat approval. These requirements will be further addressed through the subsequent subdivision application process. EC 9.6505(1) Water Supply Finding: As discussed above, referral comments from Eugene Water and Electric Board (EWEB) indicate there is sufficient water to supply the proposed Capital Hill PUD. However, the water system is restricted by the existing infrastructure which does not have adequate capacity to provide the required domestic and fire water flows to the proposed development. The proposed development will require significant upgrades to the EWEB water system, which would include a new pump station and associated piping. As also discussed above, the applicant has committed to contributing to the cost of that infrastructure. Through the "Owner Commitment to Contribute to Cost of Water Infrastructure, signed by both property owners, the have committed "to pay their proportionate share of capital costs required to upgrade EWEB's off-site facilities, as needed to adequately serve the proposed development." The Response Committee objects that the owners' written commitment is insufficient and does not guarantee that they will follow through with the commitment to contribute to the cost of the infrastructure. EWEB, however, has determined the Owner Commitment to Fund Water Infrastructure to be acceptable. Public Works referral comments (page 8-9) note that prior to final subdivision approval the applicant must provide documentation from EWEB ensuring adequate water service. To ensure water is provided as proposed, the approval is also subject to the following condition: Prior to final plat approval, the applicant shall provide documentation that EWEB has received a financial guarantee, ensuring water will be provided to each lot in the plat. It is noted that EWEB currently accepts cash payment, bond, or an irrevocable letter of credit as financial guarantees. Based on these findings, and with the condition of approval above, the standard for water supply will be met. EC 9.6505(2) Sewage Finding: EC 9.6505(2) requires all developments to be served by wastewater sewage systems of the City, in compliance with the provisions of EC Chapter 6. Hearings Official Decision (PDT 17-1) 64 The applicant proposes to serve Lots 1-12 and 23-28 by extending a public mainline to the south in Capital Drive from an existing manhole (49149); and to provide service to Lots 5-12 and 27- 28 by individual private pressure services located in the private street, Cupola Drive. The applicant proposes to serve Lots 13-17, 20-22 and 29-34 by extending a public mainline to the north in Capital Drive (and a portion of Cupola Drive) from an existing manhole (43706); and to provide service to Lots 13-17 and 29-32 and 34 by individual private pressure services located in Cupola Drive. Public Works referral comments (page 10-11) find these proposals to be are conceptually acceptable, with the exception that standard public utility easements are necessary for the construction of public wastewater mainlines on private property. Accordingly, Public Works rejects the applicant's proposal to construct individual private pressure services within the Capital Drive public right-of-way for service to Lots 18-19; private service lines are not permitted in the public right-of-way. Accordingly, compliance with EC 9.6505(2) requires the following conditions of approval: Prior to final PUD approval, the applicant shall revise Sheet C1 - Wastewater and Water Plan to include 14-foot public utility or public wastewater easements, centered on the public wastewater mainlines, for all wastewater mainlines proposed on private property. In the event that a public mainline is proposed for location within 7 feet from the edge of a public right-of-way, a public utility or wastewater easement shall be dedicated on the adjacent private property at the width necessary to ensure 14 feet of operational and maintenance access to the wastewater mainline (7 feet on each side), when combined with the public right-of-way within that 14 feet. Prior to final PUD approval, the applicant shall revise Sheet C1 - Wastewater and Water Plan to include wastewater services for Lots 18 - 19 that do not include private service lines within the public right-of-way. Private service lines may be relocated on private property, or public gravity service lines may be placed in the right of way. Public Works referral comments (page 11) note that it is in the public's interest to ensure that the City has access to that portion of the public wastewater system located on private property, to prevent or address backups or to conduct other wastewater system inspection, maintenance, and repair needed to prevent damage to the public system and the private properties it serves. Those comments also include an evaluation to establish that there is a constitutionally-required nexus between the requirement to dedicate a 14-foot-wide public utility easement and the public interest at issue. Without a sufficient public utility easement, the City of Eugene could be considered to be trespassing on private property when accessing the public facility for inspection, maintenance, or repair of the public wastewater line. 14 feet is the minimum necessary to allow for public maintenance vehicles to access the entirety of the proposed public wastewater line for inspection and maintenance purposes. This width also allows sufficient width for excavation equipment in the event that the line needs to be replaced altogether. Hearings Official Decision (PDT 17-1) 65 This is the last opportunity that the City will have to require the dedication of the easement prior to the construction of the utility lines. Subject to compliance with the conditions of approval noted above, and the requirement below to ensure a more detailed review of the public wastewater system improvements as part of the Privately Engineered Public Improvement (PEPI) process, the standards for sewage at EC 9.6505(2) will be met. EC 9.6505(3) Streets and Alleys EC 9.6505(4) Sidewalks Finding: EC 9.6505(4) requires all sidewalks in the development to be located, designed, and constructed according to the provisions of Chapter 9, the Design Standards and Guidelines for Eugene Streets, Sidewalks, Bikeways and Accessways, construction and design standards adopted pursuant to Chapter 7, and other adopted plans and policies. The applicant proposes a 4-foot wide sidewalk (including the curb) on the east side of Capital Drive, a local street. As discussed in the Staff Report, the sidewalk design standards for local streets are set out on pages 36-38 of the adopted Design Standards and Guidelines for Eugene Streets, Sidewalks, Bikeways and Accessways. In this case, consistent with the design standard at Section F.5, a curbside sidewalk on one side of the street is sufficient to meet the Design Standards because Capital Drive is an Access Lane with steep surrounding topography, and a curbside sidewalk will reduce excessive impacts to such topography. However, the proposal for a 4-foot-wide sidewalk is inconsistent with the design standard at Section F.1 which states "Sidewalks are required along all new local streets and shall be a minimum of 5 feet wide." Table 2, Note A (on page 35 of the Design Standards and Guidelines) specifies that "for curbside sidewalks, the sidewalk dimension includes 5' paved walk and 6" curb (5'6" total); the 1' strip behind the walk is added to the planting strip dimension." In order to comply with this standard, the following condition requires the applicant to modify the PUD plans to incorporate a 5-foot sidewalk along the east side of Capital Drive: • Prior to final PUD approval, the applicant shall revise the PUD plans to include 5-foot sidewalks along the east side of Capital Drive. In addition to compliance with the stated design standard requirement, the Public Works referral comments (page 13) include the additional constitutional justification for requiring a 5-foot sidewalk along Capital Drive. Specifically, those referral comments state that it is in the public's interest to have sidewalks for pedestrians and people with mobility impairments to safely travel on a publicly dedicated surface in both directions between locations in their immediate neighborhoods and to more distant attractors, without being in direct competition for travel space with bicyclists and motorized vehicle drivers. The referral comments also note that there is a nexus between the requirement to construct an additional foot - for a 5-foot sidewalk - along the east side of Capital Drive and the public interest at issue. The 5-foot wide curbside sidewalk will allow for pedestrians and people with mobility impairments to safely travel on a publicly dedicated surface in both directions between Hearings Official Decision (PDT 17-1) 66 locations in the Capital Hill neighborhood and to more distant attractors such as schools, stores, and parks. The construction of the curbside sidewalk adjacent to the proposed development will provide the public with a viable alternative to walking in the street and being forced to compete with larger and faster bicycles, cars, and trucks. Due to topographical constraints, the applicant has not proposed sidewalks on the west side of Capital Drive, as is the current condition. With only having sidewalks on one side of Capital Drive, it is imperative that the sidewalk be constructed to the standard width. The requirement to construct a 5-foot wide curbside sidewalk along the entire frontage of the proposed development is roughly proportional to the impact that the proposed development will have on the City's transportation facilities. The proposed development will result in 32 new single-family residential lots and two new lots with the potential for attached-dwelling use. These residential lots will be accessible from either Capital Drive, or a proposed private street, Cupola Drive, which takes access from Capital Drive. Currently, approximately 12 single-family properties have frontage on this block; the additional single-family lots will increase the number of properties that access this block by approximately 167%. The construction of new residential dwellings will result in an increase of vehicular traffic onto this block by approximately 324 new vehicular trips per day (see Trip Generation Manual from the Institute of Transportation Engineers (ITE) for Single-Family Detached Housing) and will also result in additional pedestrian traffic on abutting sidewalks. Without the additional sidewalk width, pedestrians will have difficulty sharing a dedicated sidewalk, especially when sharing with those who may have a physical disability or visual impairment. This is the last opportunity that the City will have to require sidewalk construction prior to development of the parcels. Based on the above findings and condition of approval, the proposed PUD complies with EC 9.6505(4). EC 9.6505(5) Bicycle Paths and Accessways Finding: As described in the findings of compliance with EC 9.6820 and EC 9.68356 above, no bicycle paths or public access ways are required for the proposed PUD. (c) EC 9.6706 Development in Flood Plains through EC 9.6709 Special Flood Hazard Areas - Standards. Finding: These standards do not apply because the subject property is not located within a special flood hazard area as mapped by the Federal Emergency Management Agency. (d) EC 9.6710 Geological and Geotechnical Analysis Finding: EC 9.6710(3) Exemptions from Geological and Geotechnical Analysis Requirements, specifically exempts activities on lands in the City's Goal 5 inventory from analysis under EC 9.6710. As discussed above, the subject property is included on the City's acknowledged Goal 5 Hearings Official Decision (PDT 17-1) 67 inventory, in accordance with the April 12, 1978 Scenic Sites Working Paper, which designates the subject site as Natural Sites of Visual Prominence and Prominent and Plentiful Vegetation. Notwithstanding this exemption, both the South Hills Study Development Standards policy and the requirements at EC 9.8320(6) regarding slope failure, require a geotechnical evaluation. To the extent the requirements of 9.6710 can inform the analysis required by the other code requirements, those criteria remain relevant to this evaluation. The applicant has submitted a geotechnical/geologic investigation and addendum, based on the South Hills Study Development Standards policy. 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 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 referral comments (page 14) concur 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 identified under EC 9.8320(6). The Response Committee submitted its own geotechnical evaluation. Based primarily on interpretation and extrapolation of LIDAR mapping and DOGAMI reports, the review by Dr. Gunnar Schlieder of GeoSciences takes issue with nearly every finding of the applicant's investigation. Obviously, based on their evaluations and approaches, qualified professionals can reach different conclusions. However, for purposes of compliance with the City's PUD criteria, and using the standards of EC 9.6710(4) as guidance, the question is whether the applicant has sustained its burden to establish that it has completed an adequate Level One and Level Two Analysis. Essentially, the applicant must establish that the proposed development is feasible from a geotechnical standpoint. To be certain, additional work must be completed. To that end, the applicant's report includes an extensive list of recommendations for additional geotechnical work that must be completed to ensure that the public and private facilities within the PUD are located, designed and constructed in a manner that provides for public health, safety and welfare. Dr. Schlieder's concerns regarding slope stability are addressed above in findings of compliance with EC 9.6820(6). However, as noted in those findings, while challenging much of the Geological and Geotechnical Analysis, Dr. Schlieder does not establish that the applicant has failed to comply with the requirements of an adequate Level One and Level Two Analysis. And, significantly, his review does not establish how the numerous recommendations of the applicant's preliminary report will not adequately address his concerns or otherwise are inadequate to ensure that the PUD features are located, designed and constructed in a manner that provides for public health, safety and welfare. Hearings Official Decision (PDT 17-1) 68 To the extent EC 9.6710 requirements serves as guidance for the preparation of complete geological and geotechnical analyses, the applicant's preliminary investigation complies with those requirements. (e) EC 9.6730 Pedestrian Circulation On-Site. Finding: The EC 9.6730 standards for on-site pedestrian circulation are generally applicable to institutional, office, commercial, multi-family residential and industrial PUDs. These standards are not applicable to the proposed single-family residential PUD. (f) EC 9.6735 Public Access Required. (1) Except as otherwise provided in this land use code, no building or structure shall be erected or altered except on a lot fronting or abutting on a public street or having access to a public street over a private street or easement of record approved in accordance with provisions contained in this land use code. Finding: Each of the proposed lots have frontage on a public street or have access to a public street via a private street or shared access easement. Access to Lots 5-10 and 16-19 will be provided via 20-foot-wide shared access easements. The Response Committee urges that these shared access easements should be required to have sidewalks. However, not only would those additional improvements require added grading and removal of vegetation, EC 9.6735 does not warrant that additional development. As noted above, the future subdivision application process will include a required review and approval of a joint access easement and maintenance agreement to be recorded concurrent with the final plat. (2) Access from a public street to a development site shall be located in accordance with EC 7.420 Access Connections - Location. If a development will increase the development site's peak hour trip generation by less than 50% and will generate less than 20 additional peak hour trips, the development site's existing access connections are exempt from this standard. The proposed development is subject to the applicable standards at EC 7.420 and will comply as addressed in the following findings. EC 7.420 Access Connections - Location (1) Access Connections to all Street Classifications. Access connections to all street classifications shall be located in accordance with the following standards: (a) No access connection shall be located to encompass a municipal utility. An access connection may encompass a municipal utility if the applicant either: 1. Executes a public utility easement for the encompassed municipal utility; or Hearings Official Decision (PDT 17-1) 69 2. Agrees to accept financial responsibility for relocating and/ or adjusting the encompassed municipal utility. Compliance with this standard will be determined at the time of the building permit when precise access connection (i.e. individual driveway) locations have been determined. (b) Except when an existing lot or parcel frontage is located entirely within an area where the adjacent street grade is over fifteen percent (15%), no access connection shall be located in areas where the street grade is over fifteen percent (15%). If an existing lot or parcel frontage is located entirely within an area where the existing street grade is over fifteen percent (15%), one access connection may be permitted at the point of lowest grade percentage. In compliance with this standard, the majority of the proposed grades are not over 15%. A very short section of the private street adjacent to Lot 31 exceeds 15%; however, there is adequate frontage in which to locate an access connection consistent with this standard. (c) If a parcel has frontage on two or more streets of different street classifications, the access connection shall access the street with the lowest classification. The subject site does not have frontage on two or more streets with different classifications and, therefore, this standard is not applicable. (d) Access connections located within five feet of an existing alley connection may be merged with the alley pavement. The combined connection width shall not exceed 35 feet. A public access easement shall be recorded and submitted to the city upon issuance of a permit to construct the access connection. The proposed development does not include and is not adjacent to an alley and, therefore, this standard is not applicable. (2) Access Connections to Arterial and Major Collector Streets. The subject site is not located on an Arterial or Major Collector street and, therefore, this standard is not applicable. (3) Access Connections to Local and Neighborhood Collector Streets. In addition to the location standards set forth in EC 7.420(1), access connections to local and neighborhood collector streets shall be located in accordance with the following standards: Hearings Official Decision (PDT 17-1) 70 (a) Lots and parcels at intersections shall have the access connection begin no less than 20 feet from the end of the radius of the curb, or 20 feet from the property corner if there is no curb. At the time of the building permit for Lot 3, 20, 21 and 26, approval of the access connection will require that it be located no less than 20 feet from the end of the curb return. (b) A safety island of not less than 22 feet of full height curb shall in all cases be provided between access connections under one ownership. Compliance with this standard will be determined at the time of the building permit when precise access connection locations have been determined. Based on these findings and future permit requirements, the proposed development will comply with the applicable access connection standards. (g) EC 9.6750 Special Setback Standards. No special setbacks are required for future right-of-way or public utility easements. As discussed previously at EC 9.6805 and EC 9.6870, Capital Drive complies with applicable right-of-way width requirements. (h) EC 9.6775 Underground Utilities. All on-site utilities will be placed underground according the applicant's written statement and site plans, consistent with EC 9.6775. (i) EC 9.6780 Vision Clearance Area. These standards apply to all proposed intersections. The applicant's plans show no apparent visual obstructions that would pose a hazard to the traveling public. These standards will be further evaluated at the time of development on individual lots. (j) EC 9.6791 through 9.6797 regarding stormwater flood control, quality, flow control for headwaters area, oil control, source control, easements, and operation and maintenance. EC 9.6791 Stormwater Flood Control Finding: The hearings official adopts the following findings of the Staff Report, which establish compliance with the EC 9.6791 Stormwater Flood Control standards: In order to protect lives and properties from flood and drainage hazards, stormwater runoff from development sites (as calculated utilizing the Rational Method and considering all developments having received tentative or final plan approval) shall be discharged into existing stormwater flood control facilities that have the capacity to handle the stormwater runoff, or, be retained or Hearings Official Decision (PDT 17-1) 71 detained onsite; or, discharged into a new stormwater flood control facility constructed by the applicant. Proposed and required stormwater flood control facilities shall be designed and constructed in compliance with code requirements. The applicant calculated the stormwater runoff using software which utilizes the Santa Barbara Unit Hydrograph Method. This method is acceptable and is considered an equivalent hydrological analysis to the Rational Method. Per the applicant's Stormwater Management Plan and Drainage Study, dated March 3, 2017, and stamped by Nathan Patterson, P.E., the stormwater treatment and management plan for the development includes the widening of a public street, the construction of a private street, and underground treatment and detention tanks. This report has identified five existing points of connection/discharge: (1) the eastern gutter line on Capital Drive, (2) Hendricks Park east of the development, (3) a shallow channel north of the site, (4) the western gutter line on Capital Drive, and (5) the adjacent neighboring properties to the west of Capital Drive. The applicant has broken the proposed stormwater management up into three initial components: (1) Capital Drive runoff, (2) private roadway runoff, and (3) individual lot runoff. The majority of Capital Drive currently sheet flows to the west where intermittent curb exists. In areas where curb does not exist, runoff drains to discharge point (5), which are the neighboring properties to the west of Capital Drive. Capital Drive The applicant has proposed to construct a flush curb on the west side of Capital Drive in the areas where a functioning curb currently does not exist. The proposal for a flush curb is consistent with existing drainage patterns. The applicant is proposing to reconstruct Capital Drive to City of Eugene local street standards, which includes constructing the road to a width of 21 feet. The road is proposed to be constructed in a fashion that mimics existing drainage patterns and quantities, with any additional street width draining to the east gutter. There is a high point in Capital Drive at approximately the middle of the site. Runoff south of the high point on the east side of Capital Drive will be collected into catch basins and directed to a mechanical treatment device near the southern intersection with the private roadway. The runoff will then exit the underground system via a bubbler and continue down the curb line at a rate less than or equal to existing rates. Runoff north of the high point on the east side of Capital Drive will be collected into a proposed catch basin and underground detention tank system that will discharge into an existing drainage ditch north of the site. Runoff on the west side of Capital Drive will drain at rates and locations that match existing conditions - either to the western gutter line or the adjacent neighboring properties to the west. Private Roadway The applicant has proposed three discharge locations for the runoff of the proposed private roadway. The first discharge point is for the southern portion of the private roadway, which will be collected by catch basins or a trench drain and will enter an underground detention tank. From here, the runoff will then be discharged into the eastern gutter line south of the intersection via a bubbler. The second discharge point for the private roadway is located at the bottom of the conservation area between Lots 13 and 14. Runoff for this drainage basin will be collected into various underground storage tanks that will reduce the peak discharge rate and release into the eastern conservation area west of the Ribbon Trail, via level spreaders. The third discharge point Hearings Official Decision (PDT 17-1) 72 is for runoff along the northern portion of the private roadway. This runoff will be collected into a series of underground storage tanks and discharged into an existing drainage ditch north of the proposed development site. Individual Lots For the lots bound by the new roadway improvements, upon treatment and flow control, drainage disposal will discharge onto the new roadways. For the lots draining away from the roadway to the east, disposal will be into level spreaders directed toward the existing park land to the east or north. These locations are consistent with existing drainage patterns. The proposed system has been designed so that discharge will occur at locations that mimic existing conditions and at rates that are less than or equal to existing rates. The results from infiltration testing confirms that the soils (Hydrologic Groups C and D) mapped at this site are not appropriate for on-site infiltration, which is why the applicant has proposed a series of underground mechanical forms of collection, detention, treatment, and discharge. Staff confirms that the proposed detention system demonstrates conceptual compliance with this standard and EC 9.6791(3)(b)(2), subject to a more detailed review for compliance with applicable standards during subsequent permit reviews. Based on these findings, this standard is met and will be further reviewed at the time of development. EC 9.6792 Stormwater Quality Finding: The hearings official adopts the following findings and conditions of the Staff Report, which establish compliance with the EC 9.6792 Stormwater Quality standards, subject to compliance with the specified conditions: In order to reduce runoff pollution and mitigate the volume, duration, time of concentration, and rate of stormwater runoff from the development, the applicant must select, size, and locate stormwater quality facilities from the Stormwater Management Manual to treat the stormwater runoff from the proposed development. As noted previously, the application includes the widening of an existing public street as well as the construction of a private street. Capital Drive The applicant has stated that the additional road widening of Capital Drive is too small to justify the cost of water quality treatment, and therefore has proposed no treatment facilities for this portion of the project. This is inconsistent with EC 9.6792(3)(b), which requires infiltration, filtration, or mechanical facilities to treat the runoff of a proposed public street. For compliance with this standard, the following condition is warranted: The final plans shall be modified so that the stormwater runoff on the north and south ends of the additional Capital Drive road width will be treated through either filtration or mechanical treatment methods in compliance with the Public Improvement Design Standards manual. Hearings Official Decision (PDT 17-1) 73 Private Roadway The applicant has proposed to provide a filtration facility for the runoff of the east side of the private street through the use of a filter strip and level spreaders. The applicant has stated that the runoff on the north and south ends of the proposed private street will be too small to justify installing on-site treatment methods and proposes to pay a higher rate of system development charges (SDC) for the impervious area created. This proposal is inconsistent with EC 9.6792(3)(c), which requires either infiltration or filtration facilities to treat the runoff of a proposed private street. For compliance with this standard, the following condition is warranted: The final plans shall be modified so that the stormwater runoff on the north and south ends of the proposed private street will be treated through a filtration facility in compliance with the Stormwater Management Manual. Individual Lots The applicant has stated that individual lots will address flow control and water quality standards when applying for building permits on a case by case basis. The applicant also suggests that possible water quality mechanisms for the lots include: mechanical treatment, lined planters, rain gardens, sand filters, or swales. The water quality standards for the individual lots will be addressed on a case by case basis at the time that each lot applies for a building permit. Based on these findings, and with the recommended conditions of approval, this standard is met. EC 9.6793 Stormwater Flow Control (Headwaters) Finding: The subject property is located above elevation 500, triggering the need to meet flow control requirements. Tables 1 and 2 of the applicant's Stormwater Management Plan and Drainage Study outline the discharge locations and flow rates under both existing conditions and proposed conditions. The hearings official adopts the findings of the Staff Report, which establish compliance with the EC 9.6793 Stormwater Flood Control (Headwaters) standards, as follows: Capital Drive The applicant has proposed to use a number of underground storage facilities with orifices in order to meet the flow control requirements of EC 9.6793. These underground detention tanks will direct stormwater runoff to a location that mimics where runoff drains to under existing conditions. As depicted on Tables 1 and 2 of the applicant's Stormwater Management Plan and Drainage Study, runoff from Capital Drive will discharge in three locations - Discharge Sites 1, 3, and 4. The applicant has demonstrated that the proposed stormwater system receiving runoff from Capital Drive will result in peak discharge rates that are less than (Discharge Sites 1 and 4) or equal to (Discharge Site 3) pre-development conditions, consistent with the requirements set forth in EC 9.6793(3)(a). The facilities appear to be consistent with EC 9.6793(3)(c), which requires that facilities be sited and designed according to the flow control provisions and the facility design requirements set forth in the Stormwater Management Manual. Private Roadway Hearings Official Decision (PDT 17-1) 74 Similar to the system proposed for Capital Drive, the applicant has proposed to collect stormwater runoff from the private street into a series of underground storage facilities with orifices in order to meet the flow control requirements of EC 9.6793. As shown in Tables 1 and 2 of the applicant's Stormwater Management Plan and Drainage Study, runoff contributed by the construction of the private street will be discharged at Discharge Sites 1, 2, and 3. For the northern and southern portions of the proposed private street, runoff will be collected into underground detention vaults with orifices that will reduce the peak discharge rate that are less than or equal to pre-development conditions. Water will then connect into the proposed public system where it will discharge at the locations identified in the Stormwater Management Plan and Drainage Study. Tables 1 and 2 show that the peak discharge rate at Discharge Site 1 will be less than that under existing conditions, and the peak discharge rate at Discharge Site 3 will be equal to that under existing conditions, consistent with EC 9.6793(3)(a). For the remaining portion of the private street, runoff will be directed into a series of underground storage tanks with orifices that will reduce the peak discharge rate. Runoff will then be released through level spreaders into a designated preservation area on the east side of the development site. Based on existing topography, the proposed system closely mimics existing runoff locations. The discharge location is identified as Discharge Site 2 in Tables 1 and 2 of the applicant's Stormwater Management Plan and Drainage Study. As shown in Table 2, the peak discharge rate being released out of each level spreader mimics that of the existing conditions. It is noted in the report that a 38-foot wide section was used to establish the existing basin and its peak discharge rate of 0.16 cubic feet per second (cfs). The proposed system includes two 38- foot wide level spreaders, each being 38 feet long and each having a peak discharge rate of 0.16 cfs, which matches the existing condition, and which is consistent with the flow control standards outlined in EC 9.6793(3). Individual Lots The applicant has stated that individual lots will address flow control and water quality standards when applying for building permits on a case by case basis. The flow control standards for the individual lots will be addressed on a case by case basis at the time that each lot applies for a building permit. Based on these findings, this standard is met and will be further reviewed at the time of development. EC 9.6794 Stormwater Oil Control This standard does not apply because the proposed development will not result in any of the conditions listed under EC 9.6794(2) (a)-(d). EC 9.6795 Stormwater Source Controls This standard does not apply because this application will not result in any of the site uses or characteristics listed under EC 9.6795(2) (a)-(h). Hearings Official Decision (PDT 17-1) 75 EC 9.6796 Dedication of Stormwater Easements The applicant has proposed to place a portion of the public storm line on the north end of Capital Drive within a 10-foot wide Public Utility Easement on the east side of the right-of-way. The proposed storm pipe is 24 inches in diameter and is designed to increase the storage capacity of the storm water system. Public Works referral comments (page 20) concur with the applicant's assessment that because of the existing grades within the right of way, there will not be adequate cover over this proposed pipe. In order to achieve proper cover over the pipe, the applicant has proposed to direct the pipe alignment outside of the right-of-way to the east, where there will be adequate cover over the detention pipe. Based on these findings, this standard is met. EC 9.6797 Stormwater Operation and Maintenance As required by EC 9.6797(3)(d), applications proposing City operation and maintenance of all or part of the stormwater facility must include an Operations and Maintenance Agreement in accordance with the facility agreements adopted as part of the Stormwater Management Manual. An agreement for the public stormwater treatment manhole will be required as part of the PEPI permit process and prior to final subdivision approval. As depicted on Sheet C2 - Stormwater Plan, the proposed storm drainage system will include a variety of public and private systems. Conditions related to Maintenance of the individual systems will be imposed at the time of the tentative subdivision review. Based on these findings and future permit requirements, this standard will be met. (k) All other applicable development standards for features explicitly included in the application except where the applicant has shown that a proposed noncompliance is consistent with the purposes set out in EC 9.8300 Purpose of Planned Unit Development. An approved adjustment to a standard pursuant to the provisions beginning at EC 9.8015 of the land use code constitutes compliance with the standard. Proposed Lots 33 and 34 are currently developed with a three-unit multi-family dwelling within a two-story structure. These lots are located within the boundary of the Fairmount Neighbors association. This two-story structure was converted at some point in the past from a single- family dwelling into a three-unit multi-family dwelling. As explained in the Staff Report, neighborhood concerns with the existing use of the structure were brought to the planning staff's attention during the PUD process. Under EC 9.2741 Special Use Limitations for Table 9.2740, triplexes and duplexes are prohibited within the Fairmount Neighbors boundaries. The Staff Report further explains that in response to neighbors' concerns, Code Compliance Services staff inspected the interior of the structure and conducted research on the history of its use. Code Compliance Services staff confirm that the structure is set up as three separate living Hearings Official Decision (PDT 17-1) 76 units, each with kitchen facilities and individual electric meters. Code Compliance Service staff's research found no compelling evidence that the three units were legally established and determined that the modifications to the structure were conducted without building permits. In response, the applicant submitted revisions to the site plan (dated November 28, 2017), which reconfigured lot lines so that this structure would be split between Lots 33 and 34. The applicant intends to modify the structure, creating two attached single-family units so that each unit resides on a different lot. This is intended to meet the code restriction prohibiting triplexes and duplexes in the Fairmount Neighbors area. Code Compliance Services staff are working with the property owner to resolve the issues, given the significant amount of non-permitted work done to the structure, and to bring it into compliance. In order to ensure that the structure and any future modification to it are in compliance with code requirements, the following condition is made a condition of this PUD approval: • Prior to final PUD approval, all requirements of EC 9.2750 Residential Zone Development Standards, including Table 9.2750 and EC 9.2751 Special Development Standards for Table 9.750, shall be met regarding the existing structure located on Lots 33 and 34. Private Streets The proposed PUD includes a private street (Cupola Drive), which is considered to be a feature explicitly included in the application and therefore subject to compliance with applicable standards at EC 9.6875. As addressed below in findings of compliance with EC 9.6815, Connectivity for Streets, the applicant has demonstrated that a connection to the east to Floral Hill Drive is not feasible since it is separated from the development site by the City owned Ribbon Trail and the existing slopes to the east are in excess of 30%. In addition, the private street standards will allow for a more compact design that minimizes grading impacts than would public streets. Residential Development Standards As discussed above, and as recited in the Staff Report, the applicant requests flexibility or exceptions to several of the residential development standards of the R-1 zone. Those requests are evaluated above in findings relate to the lot dimension and density requirements in EC 9.200 through 9.3980. EC 9.8320(11): The proposed development shall have minimal off-site impacts, including such impacts as traffic, noise, stormwater runoff and environmental quality. Finding: Compliance with the PUD criteria and applicable residential development standards discussed throughout this decision, also establish that the proposed development will have minimal off-site impacts consistent with EC 9.8320(l1). The findings above establishing compliance with 9.8320(5), 9.8320(6) and 9.8320(7) establish that the proposed PUD will have minimal off-site impacts and are incorporated here to establish compliance with this criterion. EC 9.8320(12): The proposed development shall be reasonably compatible and harmonious with adjacent and nearby land uses. Hearings Official Decision (PDT 17-1) 77 Finding: The proposed PUD is located in an area that is zoned and developed primarily for low- density residential use. While the proposed gross density of 2.6 to 2.9 units per acre is on the low side of the maximum allowable density and may be lower than the surrounding neighborhood, the residential use is consistent with the developed surrounding area. As a low- density residential development within a similar low density residential neighborhood, the proposed PUD will be compatible and harmonious with the adjacent residential uses. Hendricks Park is immediately adjacent to the north property boundary and the Ribbon Trail adjacent to the east property boundary are both public lands. To the extent that the proposed residential development will alter the existing vacant landscape, clustering of home sites in the mid to higher elevations limits the ground disturbance and allows for the preservation of approximately 4.41 acres of the site along the east boundary, providing a significant buffer with the existing forested area on the Ribbon Trail property. This preserved area provides a visual screen of the development for those who use the Ribbon Trail for recreation purposes and a significant wildlife habitat and corridor, helping to ensure a more harmonious environment. Several neighbors express concern that the proposed houses may not be `compatible' with the rest of the neighborhood and may not be compatible or harmonious with the adjacent public lands. As the applicant correctly recognizes, the words `compatible' and `harmonious' are not defined in the city's code. The surrounding single-family residential neighborhood is a mix of architectural styles, materials, and number of stories. The PUD criteria do not require that the PUD include the specifications of future existing homes. However, within the context of the PUD criteria, the applicant proposes to continue the developing this existing this neighborhood to include additional similar low density residential development. As each of the lots are developed by private owners, they will be required to comply with applicable residential development standards at the time of individual building permit review, that include height, setbacks, and lot coverage, as established in the Eugene Code, as well as the approved conditions of approval for the PUD. Neighbors also argue that the residential development is somehow incompatible or inharmonious with the adjacent public park and trail. However, as is evident in the existing neighborhood, residential uses are generally compatible and harmonious with natural, preserved vegetated areas. When, as in this instance, the low-density residential use retains a significant vegetative buffer between the residences and adj acent public spaces, that compatibility and harmony is enhanced. The proposed PUD satisfies this standard. EC 9.8320(13): If the tentative PUD application proposes a land division, nothing in the approval of the tentative application exempts future land divisions from compliance with state or local surveying requirements. Finding: The applicant proposes to divide the subject property into 34 residential lots and 4 tracts of common open space. As stated above, nothing in the approval of this tentative PUD Hearings Official Decision (PDT 17-1) 78 application exempts the future land division application from compliance with state or local surveying requirements. As required by the tentative subdivision approval criteria at EC 9.8515(12), subsequent land division applications must be consistent with the approved PUD. While not required under the City's code, given the extent of final design and construction details that will be coordinated through the subsequent subdivision application(s) and related permit review processes, the planning staff have highly recommended that the applicant submit the final PUD application for Capital Hill PUD concurrent with the tentative subdivision application. As the staff note, this will facilitate coordination of those subsequent reviews and numerous technical details to ensure consistency with the approved tentative PUD. EC 9.8320(14): If the proposed PUD is located within a special area zone, the applicant shall demonstrate that the proposal is consistent with the purpose(s) of the special area zone. Finding: The subject property is not located within a special area zone and, therefore, this criterion is not applicable. EC 9.8320 (15) For property with the /SR Site Review Overly Zone the PUD complies with any additional site-specific criteria that were specified at the time the /SR designation was applied to the property. Finding: The property does not have the /SR Site Review Overlay Zone and, therefore, this criterion is not applicable. DECISION Based on the above analysis and findings, and subject to the conditions noted above, the hearings official APPROVES the application for the Capital Hill PUD. Virginia Gustafson Lucker Hearings Official Dated this 20th day April, 2018. Mailed this day of April, 2018. SEE NOTICE OF HEARINGS OFFICIAL DECISION FOR STATEMENT OF APPEAL RIGHTS Hearings Official Decision (PDT 17-1) 79