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HomeMy WebLinkAboutOpen Record 2nd Period (6-18-19 to 7-9-19)Nick Gioello Nicholas R. Gioello, M. Adm. Associate Planner | Planning Division City of Eugene Planning & Development 99 West 10 Avenue th Eugene Oregon 97401 p 541.682.5453 f 541.682.5572 ngioello@eugene-or.gov Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10 Page 11 Page 12 Page 13 Page 14 Nick Gioello Nicholas R. Gioello, M. Adm. Associate Planner | Planning Division City of Eugene Planning & Development 99 West 10 Avenue th Eugene Oregon 97401 p 541.682.5453 f 541.682.5572 ngioello@eugene-or.gov Sean T. Malone Attorney at Law 259 E. Fifth Ave., Tel. (303) 859-0403 Suite 200-C Fax (650) 471-7366 Eugene, OR 97401 seanmalone8@hotmail.com July 9, 2019 Via Email Eugene Planning Commission c/o Eugene Planning and Development th 99 W. 10 Ave Eugene, OR 97401 nick.r.gioello@ci.eugene.or.us NGioello@eugene-or.gov Re: FNA/LHVC Response Remand Testimony the Capitol Hill Tentative PUD Plan Application, PDT 17-001, Map 18030431 Please accept this responsive remand (LUBA No. 2018-080) testimony on behalf of the Fairmount Neighborhood Association, Laurel hill Valley Citizens and the Joint Response Committee of the Fairmount Neighborhood Association and Laurel Hill Valley Citizens for the Capitol Hill Tentative PUD plan application (Neighbors). This testimony responds to the applicants materials submitted on by June 18, 2019. More specifically, this testimony is presented as alternate proposed findings to the applicants proposed findings. Because the applicants proposed findings do not contain page numbers, page numbers have been included on the attached applicants proposed findings in the bottom right hand corner. Neighbors will refer to the relevant page numbers and other indicators where the Neighbors proposed alternate findings should be located. Alternate finding Page 2, first indented paragraph: Change Thee to The. Alternate finding Page 4, first full paragraph should be replaced with the following: Because the Planning Commission finds the Geoscience Inc. materials to be more credible than that submitted by Branch Engineering and their representatives, these findings summarize the evidence it relies upon to reach its conclusion. Alternate finding Page 4, after the sixth bullet point, add the following additional bullet point: June 17, 2019 Technical review and Geotechnical/Geological Investigation Re: LUBA Remand, Capital Hill PUD (PDT 17-0001) of Branch Engineering Materials dated May 14, 1 2019. Alternate finding Page 5, last full paragraph: DOAMI should be replaced with DOGAMI. Alternate finding Page 6 through 7, replace the paragraphs under the bolded heading Planning Commissions Determination with the following: The Planning Commission concludes that the Branch Engineering May 10, 2019 materials fail to address the inadequacies identified by LUBA and that the evidence in the entire record fails to support a conclusion that the proposal complies with the requirements of EC 9.8320(6) and EC 9.9630(3)(c) with respect to risks to public health and safety due to geologic related causes. Though Branch Engineering excavated an additional nine (9) test pits, the test pits do not substantially increase the area in which the test pits occur across the property. This was the same basic failure that LUBA identified previously, and it appears as though the applicant has only marginally increased the area in which the test pits occur. The Branch Report notes that the test pits were not arranged in a manner to maximize a certain percentage of the site area, an issue for which LUBA specifically faulted the applicant. The applicant appears to have made the same mistake in determining that the coverage of the site is not an indicator of its thoroughness. The Planning Commission also finds that because the issue here is whether there is a significant risk to public health and safety, addressing the geology of the entire site is an important issue. As noted by Geosciences, it appears as though the additional test pits avoid those areas that are most susceptible to unstable conditions have been avoided: even after the latest round of test pits, the portions of the PUD property with the highest potential for unstable soil conditions (the steep slopes on the east side of the property) have been mostly left out of the assessment. Where the assessment encountered evidence of actual slope movements (TP-21), no further test pits were installed that would allow a definition of the problem in terms of lateral extent and configuration or the mechanism of movement. Without such a definition of the problem, it is impossible to determine what effect the proposed development will have on stability of the existing slide. The Planning Commission understands that an adequate review requires that the applicant address geologically unstable areas, which the applicant has largely avoided both previously and on remand. According to GeoSciences investigation, which the Planning Commission finds persuasive, The Planning Commission further finds that if addressing 20% of the development site was insufficient and inadequate for LUBA, then a slightly greater percentage would be also be insufficient and inadequate, especially when the new test pits avoid the areas of geologic concern. In short, the geotechnical assessment does not appear to have improved itself in any meaningful way because the assessment still avoids the areas of actual slope movement. Though not an approval criterion, the Planning Commission notes that the applicants geotechnical assessment is not a Level 3 analysis because not only does it not satisfy the criteria 2 for a Level 2 analysis but it fails to provide site-specific geotechnical design of facilities such as, but not limited to, streets, foundations, utilities, retaining walls and structures due to geologic constraints. The Planning Commission finds that no site-specific information required by a Level 3 analysis has been provided. This informs compliance with EC 9.8320(6) and lends support to a finding that the applicant has not not be a significant risk to public health and safety, including but not limited to soil erosion, slope failure, stormwater or flood hazar The Planning Commission also finds that the applicants geotechnical analysis while it falls short in its scope and adequacy tends to confirm the findings of GeoSciences prior work. As noted by GeoScience, the applicants geotechnical analysis shows that large portions of the eastern half of the PUD have been subject to slope movement. TP-12, the only test pit installed in an area GeoScience identifies as a slope movement head scarp\[,\] This not only demonstrates that the geotechnical consultant has not provided adequate test pits across the site but also confirms the accuracy of GeoSciences investigation. For the reasons provided above, the Planning Commission finds that the Branch Engineering materials on remand fail to provide an adequate review of the on-site impacts of the proposed development and fail to demonstrate that the PUD will not be a significant geologic risk to public health and welfare under EC 9.8320(6) and EC 9.9630(3)(c). Moreover, the Planning Commission finds that GeoScience has provided substantial evidence that the PUD will be a significant geologic risk to public health and welfare under EC 9.8320(6) and EC 9.9630(3)(c). Alternate finding Pages 7 through 8, the findings below the bolded Planning Commissions Determination should be replaced with the following: The Planning Commission concludes that the Branch Engineering May 10, 2019 materials fail to adequately address issues identified by LUBA regarding off-site impacts and that the evidence in the entire record supports a finding that the proposal fails to comply with requirements of EC 9.8320(6) and EC 9.9630(3)(c). The Planning Commission finds the submissions of GeoSciences to be more persuasive and credible than that of Branch Engineering. The Planning Commission finds that the primary geologic risks to off-site public health and safety are from landslides and stormwater runoff from impervious surfaces. The Planning Commission finds GeoSciences investigation persuasive in identifying a slope of almost 50% on which water is proposed to be discharged at a rate of 144 gallons per minute. As noted by GeoSciences, that same water is being discharged directly above the existing Ribbon Trial and existing houses and Floral Hill drive in an area shown by GeoScience as being at the center of a large slope movement. GeoScience notes that there is no evidence to establish that the soil conditions in this area to absorb or otherwise convey the water, and it is all the more troubling because the applicant acknowledges that it must \[c\]ontrol the input of water onto slopes within the moderate and deep landslide susceptibility zones and on existing deep landslides. GeoScience estimates that roughly 99.43% of the water delivered via the level spreaders will bubble out of the level spreaders and run downhill across the Ribbon Trial and towards the homes below. The Planning Commission finds that this will create a significant risk to the 3 public health and safety. As noted by GeoSciences, \[i\]t is inconceivable how this system is a) technically viable, and b) consistent with the above recommendation to control the input of water . The Planning Commission finds the Geoscience investigation persuasive and more credible than that of Branch Engineering. As noted above, the Planning Commission finds that the applicants reconnaissance was not performed consistent with the plain text of the applicable criteria. The Planning Commission also finds that EC 9.9630(3)(c) requires that a qualified engineering geologist perform the -site and off-site impact of any development. Based on the applicants review was performed by a Geotechnical Engineer and a Professional Engineer. A Certified Engineering Geologist, Gary Sandstrom, performed the on- site review but Mr. Sandstrom did not perform the off-site review. Because the review does not comply with the requirements of EC 9.9630(3)(c), the applicant has failed to carry its burden. The record contains evidence from Neighbors of a great deal of fallen trees and the deformation of a barn, demonstrating that the barn is being pulled downslope, consistent with an active landslide, according to Geosciences investigation. GeoSciences investigation went further, surveying homeowners within the area mapped by GeoScience as a slope movement deposit. According to that survey, several homes reported not only flooding but also movement. The Planning Commission finds that the investigation into the barn, the survey of homeowners, and GeoSciences expertise are sufficient to demonstrate that the PUD will pose a significant risk to public health and safety. Moreover, the Planning Commission finds that the efforts of Branch Engineering were more limited, resulting in only a visual reconnaissance of off-site impacts, whereas GeoScience engaged property owners and gathered their historic observations. For example, GeoSciences investigation reported that: \[s\]everal of the homes located closest to the PUD reported issues related to either foundations, or moisture/wetness. At lest one of the homeowners (Karuna Gatton, 2826 Floral Hill Drive) has submitted a letter into the record substantiating that their home has experienced foundation cracking. Occupants of other houses indicated that their house is severely out of level (2710 Floral Hill Drive) or has experienced several water service line breaks in the recent past (2842 Floral Hill Drive). Other reports concern large amounts of water (2708 Floral Hill Drive, 2710 Floral Hill Drive, 2826 Floral Hill Drive and 2942 Floral Hill Drive) by the creek bisecting the small neighborhood. This creek has its headwaters directly below the proposed location of the level spreader storm drain discharge. The Planning Commission finds these personal accounts and the expertise of Geosciences are substantial evidence that ground movement and an existing water problem are present on and directly downslope of the PUD. The Planning Commission finds the testimony of Geosciences persuasive and credible in that these issues will be significantly exacerbated by the proposed development. For the reasons provided above, the Planning Commission finds that the Branch Engineering materials fail to provide an adequate review of the off-site impacts of the proposed development and fail to demonstrate that the PUD will not be a significant geologic risk to public health and 4 welfare. The Planning Commission concludes that the proposed PUD fails to satisfy the requirements set forth under EC 9.8320(6) and EC 9.9630(3)(c). Alternate finding : Page 9 through 11, beginning with the bolded and underlined Remand Issue #3: Condition of Approval 10 CONCLUSION to above the bolded should be deleted because the applicant has failed to satisfy other criteria. However, the Planning Commission could also simply retain Condition of Approval 10 in addition to the denial. To remove the condition altogether in light of any approval would put the public at risk by failing to resolve the geologic issues raised by GeoSciences and well-understood by LUBA. Alternate finding : Page 11 under the bolded CONCLUSION should be replaced with the following: The Eugene Planning Commission has reviewed the record and the issues remanded by LUBA and has voted to reverse the decision of the Hearings Office to conditionally approve the tentative PUD for Capital Hill PUD (PDT 17-1). Accordingly, the PUD is hereby denied, on this ___ day of ____________, 2019. Please add these alternative findings to the record, as well as the attached proposed findings of the applicant that have been numbered in the bottom right corner. I respectfully request that the Planning Commission deny the application because substantial evidence exists to demonstrate that the PUD is a significant risk to the public health and safety and the applicant has not adequately reviewed both on-site and off-site impacts of the development. Moreover, the off-site impacts have not been reviewed by an engineering geologist. For the above reasons, the application on remand must be denied because the applicant has not satisfied. Sincerely, Sean T. Malone Cc: Clients 5