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HomeMy WebLinkAboutOpen Record 2nd Period (applicant response)LAW OFFICE OF BILL KLOOS, PC OREGON LAND USE LAW th 375 W. 4AVENUE, SUITE 204 EUGENE, OR 97401 TEL BK: 541.343.8596BILL KLOOS WEB: WWW.LANDUSEOREGON.COMBILLKLOOS@LANDUSEOREGON.COM July9, 2019 Eugene Planning Commission c/o Nick Gioello Planning Division th 99 W. 10Avenue Eugene, OR 97401 Re: Rebuttal Testimony -Capital Hill PUD(PDT 17-1), On Remand from LUBA Dear Planning Commissioners: We represent the Applicants for the Capital Hill PUD (PDT 17-1). This letter and attached documents respond to the testimony and evidence submitted by the Neighbors prior to the June18, 2019 deadline for initial evidence on remand. For the Planning Commission’s convenience, this response is organized by topic area with reference to the issuesraised by Neighbors as well as theApplicants’evidentiary responses provided as attachments. This response addresses both substantivearguments and procedural issues. Response to Arguments: The subject property is similar to allother steep-sloped sites throughout the City;the evidence demonstrates that Capital Hill PUDcan be developed safely with no adverse on- site or off-site impacts. Neighbors and their representatives assert that the subject property is unique because DOGAMI has recently mapped the property as having moderate to very high risk of landslide activity. See,Attachment 1, page 1 and 3. Neighbors’ claims are not accurate;the site is similar tomany of Eugene’s South Hills sites, some of which have been developed, others not. Importantly, the proposal is similar to many successful and safe PUDs developed throughout the City without adverse on-site or off-site impacts. Attachment 1 includes a series of excerpts from the DOGAMI SLIDO: Statewide 1 Landslide Information Layer for Oregon website.Page 1 shows the legend, with clear areas unlikely to have slide activity, yellow signifying moderate landslides possible, orange signifying high hazards and red signifying very high and existing landslides. Page 2 shows the hazard map overlaying an aerial image of the City of Eugene. Thehazardlayer has been made somewhat 1 Available at: https://gis.dogami.oregon.gov/maps/slido/ Eugene Planning Commission July 9, 2019 Page 2 transparent so you can see the underlying development, if any, on the included aerial photo. Page 3 shows the subject property (indicated by the green check mark) with the relatively flat portions of the site as clear, and the majority of the likelybuilding sites falling within the yellow (moderate) zone. Some dwelling sites on the east may intrude into the orange (high) hazard zone. Attachment 1, pages 4, 5 and 6 show different areas in west Eugene where development has safely occurred on areas of moderate, high and very high risk of landslides. Some areas, as shown on page 6,the Timberline Drive Area, include multi-family housing as well as single family residentsin a very highrisklandslide area. If one examines the SLIDO mapfor the Eugene Area,Attachment 1, page 2,one realizes that almost the entire City of Eugene’s residential land inventory is encumbered by site conditions similar to the conditionspresent here. The Capital Hill PUD proposal, the geotechnical analysis and the conditions of approval proposed are consistent with development that has occurred throughout the City.See, Attachment 2, Schirmer Satre Groupletter (discussing nature of project design and geotechnical analysis for projects in South Hills).Neighbors asked you before to enhance one of the Hearings Official’sconditions –one that required a subjective off-site impacts determination for building site geotechnical studies. That led to a remand because it was an improper condition of approval. Now they ask you to applya more stringent interpretation of the City’s geotechnical standards and to require more analysis of the property than has beenapplied in the past. The Planning Commission should resist Neighbor’s requests to deviate from the City’s past practices. Doing so not only shifts the goal posts for the Applicants, it will shift the goal posts for much of the City’s residential buildable lands inventory. That is a policy choice you should not make. Also, as discussed further below, Neighbors’ geotechnical consultant misread the stormwater analysis and is absolutely wrong in his assertions, as are the Neighbors and their attorney by repeating those assertions. The evidence in the record supports the conclusion that, as properly conditioned, the PUD will not be a significant risk to public health and safety due to soil erosion or slope failure, and that both on-site and off-site impacts have been adequately reviewed and mitigated. Proposed Condition of Approval 10 with its requirement for site-specific (PEPI and dwelling) geotechnical studies and the requirement for proposed development consistent with the site-specificstudy and Branch Engineering’s general recommendations for development, and the construction of the proposed stormwater system will ensure that the development does not includeany of the potential slide triggers. The proposed development will not remove the resisting force at the toe of any potential slide area; it will notlead todevelopment of infrastructure or dwellings designed to increase the driving force at the top of any slide area by the placing of soil; and it will notadd water to the slide area (in fact, the stormwater management 2 Eugene Planning Commission July 9, 2019 Page 3 plan actually reduces water in potential slide areas by conveyanceof waterto a more suitable point of disposal). This approach to technically addressing sensitive South Hills sites has proven effective time and time again. The Planning Commission should not change how the standards are applied and should resist the Neighbors’recommendations for more test pits, poison pill conditions of approval anddenial of a proposal for whichthe evidence in the records demonstrates compliance with all of the applicable approval criteria. Applicant’s geotechnical analysis has included a Certified Engineering Geologist throughout the process. Multiple Neighbors and their representatives have alleged that the Branch Engineering analysis is inadequate because it was not conducted by a Certified Engineering Geologist as required by the code. Applicants find these claims a bit perplexing, basically because the professional stamp for Gary Sandstrom, CEG (Certified Engineering Geologist) is found on everytechnical report submitted by Branch Engineering in this proceeding.See, Branch Engineering submittal on remand.This includes the Geotechnical/Geologic Investigation on Remand (May 14, 2019), the Geotechnical/Geologic Investigation (February 6, 2017), and the Geotechnical Investigation Addendum (May 30, 2017). Just because these reports are alsostamped by a Professional Engineer (Branch Engineering’s Principal Geotechnical Engineer), does not negatethe fact that a CEG has been involved in all of the technical work and site reconnaissance conducted on the subject property. One wonders whether Neighbors’ experts have actually reviewed the geotechnical analysis prepared by the CEG for this proposal. The only documents that are signed by Ronald Derrick, PE,aloneare the March 20, 2018 and March 28, 2018 rebuttals to arguments submitted by Neighbors. As for allegations that Gary Sandstrom, CEGdid not participate in the off-site review (Malone, June 18, 201\[9\], p. 3), that assertion is contrary to the record. The May 30, 2017 Addendum specifically statesthat Mr. Sandstrom traversed not only the subject property, but the surrounding area toevaluate and map geologic surface features. Claims that a CEG was not involved as part of the on-site and off-site geotechnical analysis are without merit. The Planning Commission should reject neighbors’ arguments and conclude the application’s geotechnical reports were prepared by a CEG. The vast majority of building sites have been analyzed Having convinced LUBA that the findings about the test pit locations are not adequate, the Neighbors continue with a holiday fireworks displayof arguments related to the “percentage area of coverage” of the geotechnical test pits.It is time to shut down that nonsense. 3 Eugene Planning Commission July 9, 2019 Page 4 The weakness of Neighbors’ argument can be found in their response to the increased number of test pits that were dug. They argue that there is no standard that says a certain number of test pits is adequate(one can also say inadequate). By the same token, there is no standard that says a certain “percentage”of the site must be “covered” by test pitsin order to be adequate. There is no standard other than a professional’s expert opinion that the number or location of test pits doneadequately maps the relevant geologic conditions. No standard involves a certain percentage of site coverage; no standard involves a certain number of test pits. Applicants’ engineers have rightly asked, “How much would be enough for the neighbors?” The fact of the matter is that the test pits focus on the areasof the subject propertywhere construction is likely to take place –the roads and the likely building locations for homes. As the Site Exploration Map submitted on remand shows, the test pits are spread out and located approximately where 19 of the 34 building sites are located. Six more of those lots, not including the barn site, have existing structures on them. And two more are unbuilt sites (Lots 1 and 2) on a part of the property that is not within any hazard area as shown by the DOGAMI maps. This means that test pits, existing construction and lots where slopes are not an issue are present for 27 of the 34 lotsfor development in the areas where development is likely to occur. That is 79% of the developable sitelocations. And that does noteveninclude test pits thatare at the same elevation laterally from adjacent lots. Neighbors suggest that more test pits should be dug in areas that will not be developed. Why would one want to disturb existing vegetation, which adds to soil stability,to dig test pits in areas where no construction will occur? It makes little sense to do so, and one suspects that Neighbors would not ever concede that a sufficient “percentage”of the site has been studied. Data are endless, but more data does not always have more utility to making a decision. This is not to say that the eastern lots of the proposal do not warrant appropriate attention. They have been given that attention through these studiesand will get more attentionassite specific geotechnical studies are conducted andindividual dwellings are constructed.The geotechnical analysisin the recordshows that, with properly engineered foundations using construction techniques imposed by conditions of approval, that it is safe to build on the property.As Branch Engineering has explained, it is likely thatseveral if not most ofthe lots on the eastern edgewill require a pier style foundation or more extensive foundation workthan normal, but that roads and dwellings can be built safely on the subject property.That conclusion for the eastern slope of the property is much like the pier foundation house to the west of the subject property, located in an area mapped by DOGAMI as “high hazard.”Such foundations are safe despite the slopes. The Planning Commission should conclude that the geotechnical analysis contained in the record provides sufficient evidence to reach conclusions regardingpublic safety,the on-site and off-site impacts and, in particular, adequately addresses the areas where construction activity will occur. 4 Eugene Planning Commission July 9, 2019 Page 5 Stormwater Concerns Much of the Neighbors’ testimony concerns impacts from stormwater management of the proposed development. As an initial matter, LUBA did notremand for review of stormwater issues. Stormwater was addressed during the initial proceedings and stormwater management is now a resolved issue. Any new stormwater issues raised by Neighbors, have been waived. The Planning Commission should reject stormwater arguments as outside the scope of the remand. That said, in an abundance of caution, Applicants have had the engineer responsible for designing the stormwater system, Nathan Patterson,P.E.,review and respond to the GeoSciences, Inc. allegations. That technical memorandum is attached as Attachment 3hereto. Mr. Patterson explains that the project’s stormwater management analysis and proposed facilities are designed using an accepted stormwater methodology (the Santa Barbara Unit Hydrograph hydraulic modeling method) and accepted technical solutions to managing stormwater flow. In plain language, that methodology captures stormwater from a larger area (the developed area), containsit, and releases the water at a rate that equals the pre-development peak flow rate equivalent for the width of the spreadersas measured for a 10-year storm. The TechnicalMemorandum explains: “By collecting runoff from a larger area at the top of the hill into underground storage and pipes, there will be less runoff soaking into some of those areas Mr. Schleider seems so concerned with at the top and eastern facing slopes. Those other locations will receive equivalent peak runoff rates which should avoid any detrimental issues as the review suggests.” To reiterate that main point, the Technical Memorandum states: “To put it in more simple terms, during a 10-yearstorm event on the undeveloped site, the same peak flow rate would drain across the undeveloped 38’ wide section. Again, we are matching pre-developed rates across the same 38’ wide section, despite collecting runoff from a larger area.” In even plainer terms, GeoScience, Inc’s and Neighbors’ claims of significant amounts of water being dumped into theoff-site“creek” (which does not appear on any City waterway map) by the proposal during periods of creek flooding are wrong. The rate of flow from the site does not change. The Technical Memorandum analyzes where the GeoScience, Inc. analysis goes wrong and leads towhat the memorandum describes as a gross mischaracterizationof the stormwater analysis.First, Geosciences uses an unprofessional measurement of flow and, second, attempts to calculate runoff volumes by calculatingabsorption/transmission of water into the soil using unorthodox and unprofessional techniques. The problem with the GeoScience, Inc. analysis is 5 Eugene Planning Commission July 9, 2019 Page 6 that such considerations are already factored into the Santa Barbara Unit Hydrograph modeling system. As the Technical Memorandum explains, GeoScience, Inc. does not follow professional engineering standardsin its effort to evaluate stormwater flow, which leads to incorrect conclusions. This is perhaps because Mr. Schleider, despite being a CEG, is not a Professional Engineer trained in stormwater modeling and design. GeoScience is commenting on matters outside its area of expertise. The final paragraphs of the Technical Memorandum drive home just how far off GeoScience’s allegations are. The Technical Memorandum explains: “The storm report establishes that the proposed development is meeting pre- developed discharge rates down the hill for the two (2) 38’ wide level spreaders. By releasing runoff at an equivalent rate, the design meets the City’s intent to have little to no affect to pipe or ditch capacity downstream. Therefore, one cannot claim that a design that matches pre-developed discharge rates will affect the peak depthof any downstream creek. “Something the storm report does not elaborate on as much as it could is that under the proposed development, the runoff release rate to the east will actually be less than under the existing conditions. * * *. This is not a requirement for the project, but just a statement to show how the current design is more conservative than required, and in contradiction to Mr. Schleider’s claims.” (emphasis added). Strangely enough, Branch Engineering’s solution to stormwater management provides whatGeoSciences recommendedto the Planning Commissionshould be done–i.e., “demonstrate how the development could be designed to mitigate the issues at least to some degree.” GeoSciences, p. 14. The stormwater management and tree retention strategy targets two of the three key geotechnical concerns Branch Engineering has stated throughout the proceedings. It does not remove the resisting force at the toe of potential slide areas by removing soils and cover vegetation, and it does notadd water into the slide area. Instead the proposalreducesthe water to the steeply sloped areas by conveying itto a more suitable point of disposal to be metered out at the same rate it currentlyflows. The proposal does notincrease the risk of a slide;it decreases slide risk. The Planning Commission should conclude that the evidence in the record demonstrates that there will be no adverse on-site or off-site impacts due to storm water from the proposed development and that the development will not be a threat to public health or safety. Floral Hill Drive Properties Neighbors and GeoScience express concerns about the conditions that residents of Floral Hill Drive are currently experiencing, to include claims of cracked foundations, leaking foundations and periodic flooding. Notethatthese are current conditions prior to the 6 Eugene Planning Commission July 9, 2019 Page 7 development of the PUD. They are typical conditions for houses located at the base of tall hillsideswhere water inevitably flows. The questions one should ask about the statements, for which answers are not included in the record, are: Did any of the houses that are undergoing settling problems have a geotechnical study conducted for the building site to ensure an appropriate foundation was constructed? Was appropriate foundation waterproofing, that recognized the inherent wet conditions for those properties, applied during construction?Was a foundation drainage system installed? If so, is it currently functional? Who was the contractor that constructed the foundation and what were their qualifications?The issuesraisedhave less to do with the proposed PUD than they do with the existing construction and conditions, particularly given that the residences are on the opposite side of the Ridgeline Trail than the proposaland are unlikely to be directly influenced by surface runoff from the present, undeveloped slope. As the Branch Engineering Technical Memorandum explains, the standard for this proposal is that it nothave off-site adverse impacts, which the city had interpreted to mean that there are not greater impacts after development than before development.Down-stream flows in open streams and closed pipes cannot increase as a result of the development. They do not.As the evidence in the record and theTechnical Memorandum demonstrates, the proposal more than mitigates for the stormwater impacts that will flow from impervious surfaces,anditwill have less of a stormwater flow impact to the neighboring properties after development than it does before development. While one may feel for the Floral Hill Drive neighbors and the issues they currently deal with, the evidence in the record is that the proposal will not cause new problems for them and will not aggravate any of the alleged existing problems. Their arguments provide no basis for the Planning Commission to deny the proposal. Condition of Approval 10 Neighbors make multiple arguments concerning Condition of Approval 10. One neighbor claims that Condition of Approval 10 is a contradiction to EC 9.6710(3), (Hoffman), and Neighbors’ attorney argues, alternatively,thatapplicants propose “to do away” with Condition 10 (Malone, p. 2) and that the findings inadequately address Condition 10 (Malone, p. 3). Each is addressed in turn. Applicants are not proposing to getrid of Condition of Approval 10. Applicants do, however, urge the Planning Commission to approve Condition of Approval 10 similar to the one imposed by the Hearings Officer, and to get rid of the poison pillthat theNeighbors convinced the Planning Commission to impose during the prior proceedings. The condition the Hearings Officialimposed and the slight modification to that proposed here are lawful. Condition 10 is similar to conditions imposed on most South Hills PUDs. Itrequires a house site-specific geotechnical report and itrequires any building permit application for construction ofa house(or PEPI project)to comply with the recommendations contained in that report. Such conditions can be imposed once the decision-maker concludes at the PUD stage thatthe evidence demonstrates 7 Eugene Planning Commission July 9, 2019 Page 8 that the property can be developed safely. The geotechnical evidence in thisrecord demonstrates that the site can be developed safely, and if properly developed there will be no adverse on-site or off-site impacts. Neighbors’ poison pill introduces a further discretionary element to the geotechnical analysisdone at the site-development stage. Instead of simply evaluating the geologic conditions of a building site and stating the engineering requirements to build on those conditions safely,the languageurged by Neighbors andimposed by the Planning Commissionrequired a subjective determination regarding the off-site impacts(if any) ofa properly constructed foundation for a single house. It is that discretionary determination that LUBA held requires a public hearing. Neighbors’ attorney was fully aware in the initial proceeding that the modifications that the Neighbors were requesting to Condition 10 would be fatal on appeal to LUBA.Neighbors’ attorney has been around the block on these matters. Neighbors’ attorney is right in one respect –it is imperative that Condition of Approval 10 remainas proposedand require a site-specific geotechnical study as Branch Engineering has always advised and the Hearings Officer imposed. However, Neighbors’ attorney is incorrect that the condition should remain unamended and continue to have the poison pill of discretionary decision-making involved as part of the objective geotechnical engineering analysis Condition 10 had coming from the Hearings Officer. The Planning Commission should conclude that the proposal willadequately mitigate potentialadverse on-site and off-site impacts and that Condition of Approval 10 should be amendedto impose only the objective house-or PEPI-specific geotechnical analysis and consistency with the Branch Engineering general construction recommendations. Condition 10is not a contradiction ofEC 9.6710(3). EC 9.6710 discusses the purpose of geological and geotechnical analyses, when they’re required, exemptions and the different categories of analysis. However, the exemptions do not applyin instances when a condition of approval imposes a geotechnical analysis requirement. Here, the condition is imposed to seek specific recommendations for design and construction standards for site development, based on the precise geologic site conditions, and imposes the requirement that the development proposed be consistent with those recommendations. That is not in conflict with EC 9.6710(3). The Planning Commission should approve the application with the Condition of Approval 10 as proposed. The Geotechnical work on remand was done during the wet season. Neighbors Kim and John Toner contend that the geotechnical analysis was done during the dry season when conditions were most favorable for good resultsand “before the rains cause instability”. While the Toners are correct that the initial 10 exploratory test pits were conducted in September 2016, that fact is not as significant as they seek to make it. Soil borings of the type 8 Eugene Planning Commission July 9, 2019 Page 9 conducted seek to determine the geologic makeup of the soils, which is not contingent on the weather conditions. It is that makeup that determines the characteristics when wet and dry conditions are present. In any event, the 9 exploratory test pits conducted for the remand proceedings were done on March 22,2019, definitely during the wet season. The results of those latter test pits are consistent with the prior test pits and analysis. Contrary to Neighbors’ assertions, the on-siteand off-site visual surveys were not conducted during the dry season. Thefirst site reconnaissance was conducted on April 22 and 27, 2016. Another visual survey of the site and general area was conducted on May 30, 2017. And following remand, a site reconnaissance of the site and the greater area was conducted on March12, 2019, shortly after an unusually heavy snowfall on February 25, 2019. None of these visual surveys wasdone in the dry season. The Barn is simply an example of why proper foundations are necessary –it is not indicative of landslide activity. Several Neighbors contend that the barn on the subject property is evidence of active gross landslideactivityon the property. The GeoSciences report is more judicious in its terminology, using the term slope movement instead. The Branch Engineering analysis submitted in March 20, 2018 discusses the issue of soil creep –the downhill movement of near surface soil due to gravity, freeze/thaw and shrink/swell effects. Significantly, Branch Engineering explains that soil creep is common on most hillsides, does notindicate gross landslide movement, and is generally mitigated by modern foundation systems through thecontrol of soil moisture and temperature under and around building foundations. When properly constructed, soil creep around a residence is slowed to the point that it is“unnoticeable over the typical lifespan of a residence.” The photographic images of the barn provided by GeoScience are, at best, evidence of normal soil creepover 50 or more years,and proof that, indeed, one needs proper foundations for structures on steep slopes or else structuralbuildinginstability can occur. There is no evidence that this barn has a properly engineered foundation;indeed, few barns have real. This is why Branch Engineering recommended that site-specific geotechnical studies be prepared for PEPI projects and dwellingsas well as providing specific development recommendations for all sites. These are imposed through Condition of Approval 10. The barn photographs are simply evidence that the condition is warranted. Issues Not Within the Scope of Remand Neighbors raised several issues on remand that have been resolved, are outsidethe scope of the remand proceeding or beyond the authority of the Planning Commission to grant. The Planning Commission should identify these issues in the findings and not address their merits. These issues are provided below in bullet-point form: 9 Eugene Planning Commission July 9, 2019 Page 10 Traffic/Speed/Pedestrian Safety (Ferris) –traffic issues have been resolved. Tree Removal Generally (Ferris, O’Connor) –tree issues have been resolved. Need For Affordable Housing (Ferris) –outside the scope of remand and approval criteria. EC 9.8320(10) and EC 9.6710 (Dorsey, Schleider) –Standards not applicable, not within the scope of remand. Increase protections beyond what is provided by the Eugene Code (Hoffman, Teich) – outside scope of remand and beyond Planning Commission’s authority. Negative Impact on environment, noise, visual and air quality (Mackey) –issues have been resolved, outside scope of remand. Emergency Response (Mackey, Teich) –issues have been resolved, outside the scope of remand. Future Storm Events (Teich) –outside the scope of remand. Procedural Issues: Commissioner Tiffany Edwards shouldnot recuse herself from this proceeding. Neighbors’ attorney Sean Malone requested that Commissioner Tiffany Edwards recuse herself, alleging that she is biased. Mr. Malone’s legal position is not well taken,and the evidence in the record does not demonstrate that Commissioner Edwards need or even should recuse herself.At most, she should acknowledge the allegation and publicly assert, if appropriate, that she has not prejudged the decision and is not biased. The Court of Appeals in Klein v. Oregon Bureau of Labor and Industries, 289 Or App 507, 552, 410 P3d 1051 (2017) explained that the touchstone of bias is whether the comments show that the decision maker is not capable of judging the controversy fairlyon its own facts. The court explained that the key to evaluating claims of bias is whetherthe evidence demonstratesthe decision-maker’sprejudgment of the specific factsof the application, not the decision-maker’s particular views on policy matters or aspects of the law. Here, all of the evidence Mr. Malone points to addressesgeneralpolicy matters and refersto this application only in reference to it being an example of a context where those types ofpolicy concernsarise. The emails do not discuss the details of this application or prejudge the merits of the application. Even the case cited by Mr. Malone does not fully support his position. Eastgate Theatre, Inc. v. Board of County Comm’rs, 37 Or App 745,751-55,588 P2d 640 (1978). It cites and relies on cases that have held that the principles expressed in Fasanocannot and should not be applied as literally asfor court proceedings, and that the goal of Fasanois that land-use decisions are made fairly. The decision recognizes that land use decision makers are “expected to be intensely involved in the affairs of the community” and to hold known positions on policy matters. 37 Or App at 752-53. 10 Eugene Planning Commission July 9, 2019 Page 11 Commissioner Edwards’ policy positions concerning the land use difficulties developers occasionally face is no different than any other Commissioner’s policy opinions,such as that natural resources should generally be protected or the city needs more affordable housing. Commissioner Edwards has no direct conflict of interest,and Mr. Malone has not demonstrated that she has prejudged this application. Commissioner Edwards should not recuse herself from this proceeding. Attorney Errorregarding geotechnical report. Applicants’ attorney can only plead “mea culpa”regardingstatements that a Level 3 geotechnical analysis was conducted.The error is mine.As Applicant’s own experts have pointed outto me,and consistent with assertions made by Neighbors’ representatives, a Level 3 analysis has not been conducted for this project because one is not required. I misread my meeting notes and confess I must improve my penmanship. As Neighbors’ geotechnical consultant concedes, it has been previously determined that the proposed PUD is included in the city’s Acknowledged Goal 5 Inventory and is explicitly exempt from the provisions of EC 9.6710. SeeEC 9.6710(3)(f). Neighbors representatives’efforts to try to shoe-horn into this proceeding sections of the Eugene Code not remanded by LUBA(e.g., EC 9.6710 andEC 9.8320(10)) similarly constitute error. They are beyond the scope of remand and represent unpreserved arguments. The Planning Commission should ignore all parties’ statements that reach a bit too far. CredibilityIssues After reading the GeoScience, Inc. report, the Commission should see credibility issues in that work. The Commission should focus in particular on the argumentative tone of the June 17, 2019GeoScience, Inc. report and its characterizations of the Branch Engineering analysis and conclusions contained in the entire record, as well as GeoScience’scommentary on Branch Engineering’s intentions both in this report and in the earlier proceeding (allegations of biased assessment, see Branch 3/20/2018 Response). GeoScience’s statements detract fromthe credibility of its own conclusions. The GeoScience, Inc. report goes well beyond a professional engineering analysis, delving into legal analysis of LUBA’s decisions and, as noted above, opining on engineering matters outside itsprofessional expertise. The report comes across as an advocatingfor the neighbors in the manner a lawyer mightuseas opposed topresenting the objective analysis ofa professional engineer. This begs the question whetherthe assertions he is making arehis professional opinion, or ones crafted to suit the positions of his employers. The multiple Branch Engineering reports contained in the record are stamped with the professional stamps for several engineering professionals and include statementsthatthe reports 11 Eugene Planning Commission July 9, 2019 Page 12 were done with the level of care and skill exercised by other current geotechnical professionals. The GeoScience, Inc. report is also stamped, and presumably contains the same report limitations, although none isset forth in the report. ThePlanning Commission should make its own credibility determinations regarding the competinggeotechnical analyses in this proceeding. Which professionals are more believable? Applicants have been unable to determine from the record the credentials for Professor Dorsey. Because the record lacks any evidence regarding her credentials, she cannot be considered an expert witness, despite her qualifications as a professor and obvious knowledge of earth sciences. That said, her statements do not go to the specifics of the proposal’s design; they insteadexpress abstract concepts (runoff from impervious surfaces can cause problems to steep sloped areas) that warrant the considerations given by the analysis that supports the proposal. Unfortunately, Professor Dorsey alsoraises issues that are beyond the scope of the remand and have been waived. Nothing Professor Dorsey states refutes the Branch Engineering analysis or otherwise warrants denial of the application. Conclusion LUBA remanded the Planning Commission’s decision to approve the Capital Hill PUD on a single issue –geotechnical considerations. LUBA remanded for the Planning Commission to determine whether the PUD will pose a significant risk to public health and safety due to soil erosion or slope failure (EC 9.8320), and whether there has been adequate review of both on-site and off-site impacts by a qualified engineering geologist (EC 9.9630). Neighbors submitted graphic evidence of how landslides could occur given DOGAMI’s recent slide-hazard mapping andargued slideswould impact off-site properties if they didoccur. However, that evidence is no different than the sites for many completed PUDs in the City, and for much of the City’s vacant buildable residential landsinventory. Such sites can be safely developed. Given the geotechnical evidence in the record, this site can be too,and the proposed conditions of approval will ensure that it is. GeoScience makes many allegations in its remand evidence, particularly concerning stormwater issues. Besides the fact that stormwater is a resolved issue and outside the scope of remand, Branch Engineering has responded by explaining how GeoScience’s analysis mischaracterizes the storm analysis and makes claims regarding stormwater runoff that are incorrect and that do not follow professional engineering standard methodology. In the end, the stormwater runoff release rate to the east of the project will be less after the project is constructed than it presently is now.There will be no off-site impacts. 12 Eugene Planning Commission July 9, 2019 Page 13 For the above reasons, the Planning Commission should conclude that the evidence in the record demonstrates that the proposal complies with the geotechnical requirements of EC 9.8320 and EC 9.9630, and approve Capital Hill PUD (PDT 17-1)on remand. Sincerely, Bill Kloos Bill Kloos Attachments: Attachment 1–DOGAMI map excerpts. 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