HomeMy WebLinkAboutPlanning Commission Staff Report (8-6-19)~b
Planning
Commission
Phone: 541 -682-5481
www.eugene-or.gov/pc
AGENDA
Meeting Location:
Sloat Room-Atrium Building
99 W. 10`" Avenue
Eugene, OR 97401
The Eugene Planning Commission welcomes your interest in these agenda items. Feel free to
come and go as you please at any of the meetings. This meeting location is wheelchair-
accessible. For the hearing impaired, FM assistive-listening devices are available, or an
interpreter can be provided with 48-hour notice prior to the meeting. Spanish-language
interpretation will also be provided with 48-hour notice. To arrange for these services,
contact the Planning Division at 541-682-5675.
TUESDAY, AUGUST 6, 2019 - REGULAR MEETING (5:30 p.m. to 7:30 p.m.)
A. DELIBERATIONS/POSSIBLE ACTION: Capital Hill PUD Remand
(City File PDT 17-1)
The Planning Commission will hold deliberations on the remand by
the Oregon Land Use Board of Appeals of the Planning Commission's
approval with conditions of the Capital Hill tentative planned unit
development (PUD) application, a proposed 34-lot residential
development.
Staff: Nick Gioello, 541-682-5453, NGioello@eugene-or.gov
Commissioners: Steven Baker; John Barofsky; Tiffany Edwards (Vice Chair); Lisa
Fragala; Chris Ramey; Ken Beeson; Kristen Taylor (Chair)
AGENDA ITEM SUMMARY
August 6, 2019
To: Eugene Planning Commission
From: Nicholas Gioello, Associate Planner, Eugene Planning Division
Subject: Capital Hill PUD Remand (City File PDT 17-1)
ACTION REQUESTED
The Planning Commission will hold deliberations on the remand by the Oregon Land Use Board
of Appeals (LUBA) of the Planning Commission's approval with conditions of the Capital Hill
tentative planned unit development (PUD) application (City File PDT 17-1). LUBA remanded the
decision back to the City to allow the Planning Commission to adopt more adequate findings,
based on substantial evidence, regarding compliance with the geotechnical requirements of EC
9.8320(6) and EC 9.9630(3)(c)1. The Planning Commission's role, as discussed in more detail
below, will be to review additional evidence and testimony submitted by the applicant and
other interested parties during an open record period established for this remand proceeding,
and to decide, based on the evidence in the record, whether to affirm, modify, or reverse the
previous conditional approval of the tentative PUD application.
BACKGROUND
An application for tentative PUD was filed by Schirmer Satre Group on behalf of the property
owner, Cynthia and Thomas Dreyer, requesting a 34-lot residential Planned Unit Development
The subject property is 13.63 acres in size and is developed with three single-family homes, a
three-unit apartment building, a carriage house and non-residential storage building. The
property is located south of Hendricks Park, at the end of Capital Drive. The entire property is
zoned R-1 Low Density Residential and a portion has the /PD Planned Unit Development
Overlay.
The City's Hearings Official approved the tentative PUD application with conditions in April
2018. The Hearings Official's decision was appealed to the Planning Commission by both the
applicant and by a group of opponents including the Fairmount Neighborhood Association,
Laurel Hill Valley Citizens and a "Joint Response Committee" comprised of interested neighbors
who oppose the project. On June 14, 2018, after a public hearing and deliberations on the
appeal, the Planning Commission affirmed the Hearings Official's decision approving the
1 Although LUBA's remand references EC 9.9630, that code section does not apply directly to this tentative PUD
application. EC 9.9630 only applies to applications for subdivisions, partitions and site review. See EC 9.9500.
However, the policies of the South Hills Study (an adopted refinement plan) that are codified in EC 9.9630 are
directly applicable to the tentative PUD application through EC 9.8320(2) ("The PUD is consistent with applicable
adopted refinement plan policies."). This Agenda Item Summary will therefore refer to the applicable South Hills
Study policy rather than to EC 9.9630.
Page 1
application with conditions and modified Condition of Approval #10. The Planning
Commission's June 14, 2018 Final Order is included as Attachment A.
The Planning Commission's decision was appealed to LUBA by both the applicant and a group of
opponents consisting of the Fairmount Neighborhood Association, Laurel Hill Valley Citizens,
and the Joint Response Committee of the Fairmount Neighborhood Association and the Laurel
Hill Valley Citizens (the Neighbors). In November 2018, LUBA issued a decision on the appeal.
The Board agreed with the majority of the Planning Commission's decision, but ultimately
remanded the decision back to the City to allow the Planning Commission to adopt more
adequate findings based on substantial evidence, regarding compliance with EC 9.8320(6) and
EC 9.9630(3) (C).2 LUBA's Final Opinion and Order is included as Attachment B.
The applicant appealed LUBA's decision to the Court of Appeals, and on February 27, 2019 the
Court of Appeals affirmed LUBA's decision without opinion. On May 7, 2019, the applicant
requested that the City begin to process the remand.
On May 19, 2019, Planning staff mailed a "Notice of Opportunity to Submit Written Testimony
to the Eugene Planning Commission - Limited Issues" to the applicant and interested parties. A
copy of the Notice is provided as Attachment C. The notice provided that the Planning
Commission would accept "written testimony that addresses the Capital Hill Tentative PUD
application's compliance with the geotechnical requirements of Eugene Code (EC) sections
9.8320(6) and 9.9630(3)." The City intentionally limited the scope of permissible new
testimony to testimony that is relevant to the scope of issues set out in LUBA's remand.
For ease of reference, staff has provided a summary of all testimony received during the open
record period associated with the remand. That summary is included as Attachment D. The
applicant has objected to some of the testimony submitted as falling outside the scope of
permissible testimony as described in the notice. The Planning Commission will need to decide
whether to reject that testimony. Deliberations will start with that task, as well as other
preliminary procedural matters that need to be addressed before substantive deliberations
begin.
SCOPE OF REMAND
The approval criteria applicable to this remand are EC 9.8320(6) and the South Hills Study's
specific recommendations for development standards related to review of on-site and off-site
impact of the development.
EC 9.8320(6) requires that:
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
2 As noted above, although LUBA's remand references EC 9.9630, that code section does not apply directly to this
tentative PUD application. EC 9.9630 only applies to applications for subdivisions, partitions and site review. See
EC 9.9500. However, the policies of the South Hills Study that are codified in EC 9.9630 are directly applicable to
the tentative PUD application through EC 9.8320(2), so the application must comply with the same approval
criteria included in EC 9.9630(3).
Page 2
emergency response.
The South Hills Study's specific recommendations for development standards related to review
of on-site and off-site impact of the development require the following:
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 and above.
Slopes of 30 percent and above.
2. Basalt flows:
Soil depth of 40 inches and above.
Slopes of 20 percent to 30 percent.
3. Eugene Formation:
Soil depth of 40 inches and above.
Slopes of 20 percent to 30 percent.
4. Basalt flows:
Soil depth of 20 to 40 inches.
Slopes of 30 percent and above.
5. Eugene Formation:
Soil depth of 20 inches to 40 inches.
Slopes of 30 percent and above.
LUBA found that a reasonable decision maker would not have relied upon the applicant's
Geotechnical Investigation to find compliance with EC 9.8320(6) and the applicable South Hills
Study policy. LUBA therefore remanded the decision back to the City to allow the City to adopt
more adequate findings, based on substantial evidence in the record, regarding compliance
with those approval criteria. LUBA's conclusion was based in part on the apparently unrebutted
expert testimony of the Neighbors' consultant that no reliable conclusions can be drawn
regarding potential for slope failure on the site, because the applicant's test pits were clustered
on the least steep portion of the property, encompassed only 20 percent of the property, and
were located some distance from two identified areas of soil instability on which development
is proposed. LUBA's conclusion was also based on the unexplained assumption that the test pit
locations are representative of the subsurface conditions on the remainder of the property.
LUBA also explained that Condition of Approval #10, as modified by the Planning Commission
appeared to represent an attempt to overcome evidentiary inadequacies in the applicant's
Geotechnical Investigation.
The following Condition of Approval #10 was adopted by the Hearings Official in her April 20,
2018 decision:
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
Page 3
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 Planning Commission, on appeal, amended Condition #10 in their June 14, 2018 Final Order
as follows:
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 preliminary
geotechnical analysis approved for the tentative PUD, as well as any additional
geotechnical analyses required for individual permits. The geotechnical analyses
required for individual permits shall also address potential off-site impacts.
LUBA noted that the Planning Commission's findings did not cite to any evidence addressing
off-site impacts or explain why the Geotechnical Investigation provides an adequate review of
off-site impacts as required by the South Hills Study. LUBA speculated that this lack of evidence
may be the reason why the Planning Commission felt compelled to modify Condition of
Approval #10, to overcome evidentiary insufficiencies in determining compliance with EC
9.8320(6) and the applicable South Hills Study policy.
PLANNING COMMISSION'S REVIEW ROLE
In this case, the Planning Commission's role on remand is to consider the evidence and
argument in the record, including the new evidence and argument submitted during the open
record period on remand, and to decide whether to affirm, modify, or reverse the Hearings
Official's decision on the tentative PUD application. The issues within the scope of this remand
are summarized above, and otherwise set forth in LUBA's decision and the City's notice of these
proceedings in Attachment C. In addressing these issues, the Planning Commission must limit
its consideration to the established evidentiary record, which is discussed above.
If the Planning Commission finds the new evidence and testimony submitted during the recent
open record period does not alter the Commission's previous decision to affirm the Hearings
Official's approval of the application, the Planning Commission to adopt supplemental findings
in support of that affirmation. In this case, LUBA was clear that additional findings would be
needed based on substantial evidence to determine compliance with the relevant approval
criteria. The Planning Commission may otherwise modify its initial decision or reverse the
decision. If the Planning Commission decides to reverse its initial decision and deny the
application, the Planning Commission will need to adopt specific findings of fact as to why the
application does not meet the applicable approval criteria.
DELIBERATIONS ON REMAND
Below is a brief outline of staff's recommended approach to deliberations.
Page 4
Task #1
Review the testimony submitted during the open record period and determine if any
testimony is outside the limited scope of this remand or should otherwise be rejected from
consideration.
See Attachment D for a summary of all testimony received during the remand open record
period. The applicant has objected to certain testimony as outside the scope of the remand
open record. The testimony objected to by the applicant has is identified in Attachment D. The
Planning Commission will need to decide whether to reject that testimony. Staff will help walk
the Commission through the testimony that the applicant objects to.
Task #2:
Review and consider the materials in the record and decide whether to affirm, modify, or
reverse the Hearing's Official's approval of the Tentative PUD Application.
Staff recommends the following process as a framework for substantive deliberations:
• Review the new testimony included in the record (and not rejected) to determine if the
requirements of EC 9.8320(6) and the South Hills Study's specific recommendations for
development standards related to review of on-site and off-site impacts are met.
• Review the Public Works Memorandum - PDT 17-1, Capital Hill PUD: LUBA Remand
Geotechnical Concerns (July 29, 2019). See Attachment E.
• Review Condition of Approval #10 and consider proposed amendments to the language
by: 1) the applicant; 2) opponents/neighbors (Sean Malone); and 3) staff. Staff's
recommended change to the condition is addressed below in the Staff
recommendation and in more detail within the Public Works Memorandum referenced
above and included as Attachment E.
• Review the Draft Final Order (Attachment F) and provide staff with specific guidance on
any changes the Planning Commission would like to make to the Draft Final Order.
STAFF RECOMMENDATION
Based on the available information, including the appeal, the remand, and all relevant record
materials to date, staff has prepared a Draft Final Order affirming the Hearings Official's
approval and stating that the Planning Commission finds the following:
• That the placement and quantity of the test pits (including the nine new test pits) meets
the minimum requirements in Administrative Order No. 58-02-25-F for number and
spacing of test pits and constitutes substantial evidence of compliance with EC
9.8320(6); and
• Based on a review of the applicant's previous geologic investigations, the applicant's
May 14, 2019 supplemental report, and the applicant's proposed site plan, it appears
that the applicant has considered on-site and off-site impacts of the proposed
development and will implement recommendations intended to minimize those impacts
in accordance with the specific recommendations in the South Hills Study for
development standards related to review of on-site and off-site impact of the
development; and
• Finding that Condition of Approval #10 as initially proposed by Public Works staff and
adopted by the Hearings Official, will act as belt and suspenders to ensure that the
Page 5
individual public improvements and home sites are constructed in a way that is
geotechnically sound and that complies with the geotechnical analysis for the entire
PUD; and finding that amending Condition of Approval #10 to reference the original
geotechnical analysis dated February 6, 2017 and the additional analysis submitted May
14, 2019 will ensure the recommendations of both geotechnical analyses will apply as
public improvements and home sites are constructed; and
• Adopting the following Condition of Approval #10 (as initially adopted by the Hearings
Official and as amended):
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 applicant's geotechnical
analyses dated February 6, 2017 and May 14, 2019.
If the Planning Commission does not adopt the draft decision and instead decides to reverse or
otherwise modify its previous decision, the Planning Commission will need to articulate its
reasoning so that staff can prepare a revised Final Order that reflects the Planning
Commission's decision.
Once the Commission has completed its deliberations, staff will make any necessary revisions
to the Draft Final Order for the Commission's consideration and action at a subsequent
meeting, scheduled for August 13, 2019. The Planning Commission's decision on this remand
must be issued no later than September 4, 2019, to meet the 120-day statutory time limit for
these remand proceedings.
ATTACHMENTS
A hard copy of the complete record is available for free inspection at the Atrium Building, 99
West 10th Avenue, between 9:00 a.m. and 4:00 p.m. Monday through Friday. Copies may also
be obtained by the public at cost. The entire record of materials will be provided to the
Planning Commission separately. The full record will also be available at the Planning
Commission deliberation meetings.
A. Final Order of the Eugene Planning Commission for Capital Hill PUD (June 14, 2018)
B. LUBA Final Opinion and Order (November 20, 2018)
C. Notice of Opportunity to Submit Written Testimony
D. Summary of Testimony received
E. Public Works Memorandum (July 29, 2019)
F. Draft Final Order
FOR MORE INFORMATION:
Please contact Nicholas Gioello, Associate Planner, Eugene Planning Division, by phone at:
(541) 682-5437, or by e-mail at: NGioello@eugene-or.gov
Page 6
Attachment A
A,m
AM- -4401X
• - - Plainning Commissi®n
FINAL ORDER OF THE EUGENE PLANNING COMMISSION
ON APPEAL OF THE HEARINGS OFFICIAL'S TENTATIVE APPROVAL FOR
CAPITAL HILL PUD (PDT 17-1)
1. INTRODUCTION
This final order concerns two appeals of a decision by the Eugene Hearings Official to approve a
tentative planned unit development (PUD). The Eugene Hearings Official held the initial public
hearing on this request on March 7, 2018. Following the hearing and open record period for
additional testimony, she approved the applicant's tentative PUD with 20 conditions of
approval on April 20, 2018.
Two appeals were filed on May 7, 2018. One was filed by Bill Kloos, Attorney, on behalf of the
applicant. While the applicant appears amenable to the decision made by the Hearings Official,
even stating that had the opponents not filed an appeal they would withdraw their own appeal,
the appeal raises two legal issues that are essentially the same two legal arguments it made
before the Hearings Official. The second appeal was filed by the Joint Response Committee of
the Fairmount Neighbors Association and Laurel Hill Valley Citizens, also on May 7, 2018. The
neighbors' appeal includes 31 appeal issues, and attaches a letter from GeoScience, Inc., that
raises further argument with respect to the Hearings Official's application of criteria related to
geotechnical analysis.
On May 9, 2018, the City mailed written notice of the appeals and the Planning Commission
held the public hearing on the appeals on May 22, 2018. At the public hearing, attorney Bill
Kloos and Carol Schirmer provided oral testimony on behalf of the applicant (and as appellant).
Property owner and applicant Cynthia Dryer also provided testimony. Jason Brown, CW
Murchison, Susan Hoffman and Gunnar Schlieder, provided testimony on behalf of the Joint
Response Committee as appellant.
Elizabeth Langston, Nathaniel Teich, Brent Lorschieder, Mark Conely, John O'Conner, Deborah
Skell, Peggy Fisher, John Toner, Gavin McComas, Susan Hoffman and Annamarie Pihs spoke in
opposition to the application. There was no public testimony in favor of or neutral regarding
the application.
The applicant's legal counsel, Bill Kloos, followed with final rebuttal testimony. Written
testimony was also submitted by several individuals.
The Planning Commission closed the public hearing and closed the record to additional
testimony on May 22, 2018. The Planning Commission deliberated on the appeal issues at its
meetings on June 4, 7 and 12, 2018, and reached its final decision on June 14, 2018. The
Final Order: Capital Hill PUD (PDT 17-1) Page 1
Planning Commission affirmed the Hearings official's decision to approve the tentative PUD,
with additional findings and conditions as well as modifications to certain approval conditions,
as set forth in Section IV, below.
As described below, with this June 14, 2018 Final Order, the Planning Commission affirms the
Hearings Official's April 20, 2018 decision with modifications. The Planning Commission's
decision is detailed below with respect to each assignment of error.
II. RECORD BEFORE THE PLANNING COMMISSION
The record before the Planning Commission consists of all the items that were placed before,
and not rejected by, the Planning Commission prior to its final decision on this appeal. The
record in this appeal was physically placed before the Planning Commission at the hearing and
deliberations on this appeal and was also provided electronically to each of the commissioners.
Under EC 9.7655, appeals to the Planning Commission are "on the record," that is, the Planning
Commission is limited to consideration of the record before the Hearings Official. In addition,
appeals to the Planning Commission are "limited to issues raised in the record that are set out
in the filed statement of issues." The Planning Commission's decision on the appeal is based
upon consideration of all relevant evidence and argument within the record.
III. PROCEDURAL ISSUES
Bias/Ex Parte Contacts
At the Planning Commission meeting on May 22, 2018, Chairman Barofsky and Commissioner
Jaworski declared ex parte contacts related to the application on appeal and announced that
they could make an unbiased decision based on the evidence and argument in the record.
During the staff presentation, at the May 22, 2018, meeting it was stated that any person in the
audience had the right to rebut the substance of any of the ex parte communications. At the
Planning Commission meeting on June 7, 2018, Commissioner Taylor announced that while she
is a member of the Fairmount Neighborhood Association, she did not have any ex parte
contacts related the application on appeal and that she can make an unbiased decision based
on the evidence and argument in the record.
Rejection of Testimony
At the Planning Commission meeting held on June 4, 2018, the Planning Commission rejected
the following portions of the "Appeal Statement to the Eugene Planning Commission of the
Hearings Official Decision dated April 20, 2018, regarding the Capital Hill Tentative PUD
application, File PDT 17-1" submitted by the Joint Response Committee of the Fairmount
Neighbors Association and the Laurel Hill Valley Citizens:
1) The Planning Commission rejected items (f) and (1) under Appeal Issue 23 because the
Planning Commission determined that they constituted new issues not raised before the
Hearings Official;
2) The Planning Commission rejected the word "permanent" in the first sentence under the
heading "Environmental quality" in Appeal Issue 28 because the Planning Commission
determined that an assertion of permanent damage constituted new evidence not
presented to the Hearings Official;
Final Order: Capital Hill PUD (PDT 17-1) Page 2
3) The Planning Commission rejected the second and third sentences in the second paragraph
on page 1 of the May 2, 2018, letter from Gunnar Schlieder attached to the Joint Response
Committee's appeal statement because the Planning Commission determined that they
constitute new evidence not presented to the Hearings Official;
4) The Planning Commission rejected the fifth and sixth sentences in the last full paragraph on
page 10 of the May 2, 2018, letter from Gunnar Schlieder attached to the Joint Response
Committee's appeal statement because the Planning Commission determined that those
sentences constitute new evidence not presented to the Hearings Official; and,
5) The Planning Commission rejected the first sentence of the first paragraph under the
heading "Conclusion" in the Schlieder letter as a statement of fact that constituted new
evidence not presented to the Hearings Official.
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
After consideration of the applicable law and all argument and evidence in the record, the
Planning Commission finds that the subject application meets all applicable PUD approval
criteria from EC 9.8320 as specified by the Hearings Official, with the additional findings and the
additional and modified conditions of approval described below. In the event of any conflict
between the Hearings Official's decision and this Final Order, this Final Order shall prevail. The
Hearings Official's decision is adopted by reference and included as Attachment A.
As noted above, the Planning Commission was presented with two appeals. One appeal was
filed by the applicant with two assignments of error (Applicant's Appeal). The other appeal was
filed by the Joint Response Committee of the Fairmount Neighbors Association and Laurel Hill
Valley Citizens (Neighbors' Appeal) with 31 appeal issues. Each assignment of error in the
appeals is set forth below, followed by the Planning Commission's findings of fact and
conclusions of law as to each one. The Planning Commission's deliberations supporting this
decision took place on June 4, June 7, June 12, and June 14, 2018.
Applicant's Appeal
In its appeal, the applicant makes essentially the same two legal arguments it made before the
Hearings Official: 1) that the applicant is entitled to review of its application only under clear
and objective standards even though the applicant chose to proceed under the City's
discretionary (General) track; and 2) the City's adopted South Hills Study does not apply to the
property that is the subject of this Tentative PUD application. The following are the Planning
Commission's findings and conclusions on the two appeal issues raised by the applicant:
Clear and Objective Standards
Applicants for a Tentative PUD approval have the option of proceeding under the City's
"Needed Housing" track, or the City's "General" track. The approval criteria contained in the
Needed Housing track are clear and objective, while the approval criteria in the General track
tend to be more flexible and discretionary. In this case, the applicant chose to proceed under
the discretionary approval criteria of the General track, but then argued that state law requires
that the City only apply a subset of the General track approval criteria which are clear and
objective.
Final Order: Capital Hill PUD (PDT 17-1) Page 3
The Planning Commission finds that the Hearings Official correctly concluded that state law
does not require the City to apply only clear and objective approval criteria to an application
filed under the City's discretionary (General) track. The Hearings Official also correctly
concluded that all of the General track approval criteria are applicable to this Tentative PUD
application.
Applicability of South Hills Study
The applicant argues that the South Hills Study does not apply to the subject property because
the subject property was located outside City limits at the time the South Hills Study was
adopted.
The Planning Commission finds that the Hearings Official correctly concluded that the South
Hills Study does apply to the subject property. The South Hills Study applies to properties that
are: 1) located within the City, 2) south of 18th Avenue, and 3) above 500 feet in elevation. The
Hearings Official concluded that as properties located south of 18th Avenue and above 500 feet
annex into the City, they become subject to the South Hills Study. The Hearings Official
correctly concluded that the subject property is located within the City limits, south of 18th
Avenue and above 500 feet in elevation; therefore, the South Hills Study applies to the subject
property.
The Planning Commission agrees with the conclusion of the Hearings Official on the applicant's
appeal issues and finds no error that would warrant modification or reversal of the decision.
Neighbors' Appeal
The appeal submitted by the Joint Response Committee of the Fairmount Neighbors
Association and Laurel Hill Valley Citizens identifies 31 appeal issues related to what the
Committee believes represent errors in the Hearings Official's decision related to approving the
Capital Hill tentative PUD application, with supporting argument provided in a letter from
Geoscience, Inc. that was included with the appeal. The appeal makes the case that the
Hearings Official's decision should be reversed (and the application should be denied). The
Planning Commission's findings and conclusions related to each appeal issue are provided
below.
Appeal Issue #1: EC 9.8320 (1) - The Hearings Official erred regarding applicability of
the policies of the Metro Plan by denying that seven individual policy statements
should be considered as applicable in determining compliance with this criterion. The
Hearings Official incorrectly interpreted the requirements of this approval criterion
and failed to evaluate evidence in the record that contradicts the findings.
Hearings Official's Decision:
The Hearings Official identifies three Metro Plan policies (A. 10, A. 13 and A.17) as general
directives, "to the City to guide the City in implementing the Metro Plan" and not mandatory
approval criteria (Hearings Official Decision, page 14). The Hearings Official discusses policies A.
11 and A. 20, acknowledging that both policies, "provide direction to the city, and are not
mandatory approval criteria for the proposed development" (Hearings Official Decision, page
15), also pointing out that the applicant is not requesting a higher density development.
Final Order: Capital Hill PUD (PDT 17-1) Page 4
Planning Commission's Determination:
Staff discussed the applicability of adopted Metro Plan policies in its February 2018 Staff Report
(pages 6 and 7). Staff noted that none of the relevant Metro Plan policies appear to directly
apply as mandatory approval criteria. Staff found that the applicant's request did appear to
meet the intent of policies A. 10, A. 13 and A. 17, and the Hearings Official generally agreed.
The Planning Commission agrees with the Hearings Official's decision, that the proposed PUD is
consistent with the applicable provisions of the Metro Plan, with one important clarification
with regard to the wording in her decision. The Planning Commission accepts and adopts the
Hearing Official's findings related to this appeal issue except that the Planning Commission
modifies one sentence as follows: on page 14 of the Hearings Official's decision, fourth
paragraph, the Planning Commission modifies the following sentence to read: "The Planning
Staff have identified the three following policies within the Metro Plan Residential Land Use
and Housing Element as relevant to approval of the proposed PUD...."
Based on the available information in the record and the proposed clarification, the Planning
Commission finds that the Hearings Official did not err with respect to this appeal issue.
Appeal Issue #2: EC 9.8320(2) - The Hearings Official erred by incorrectly interpreting
the requirements of the South Hills Study, Ridgeline Park Section - Specific
Recommendations.
Appeal Issue #3: EC 9.8320(2) - The Hearings Official erred in the determination of
whether the PUD served the purposes outlined in the Ridgeline Park Section, South
Hills Study.
Hearings Official's Decision:
The Hearings Official determined that "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" (Hearings
Official Decision, page 18). The Hearings Official also determined that the portion of the
property above 901 feet is permitted to develop subject to the PUD procedures since
consistency with the purposes of the Purpose Statements and Recommendations could be
demonstrated. The Hearings Official determined that the preserved area which includes Tract A
and the preserved areas of the individual lots was consistent with purpose statement #1- To
ensure preservation of those areas most visibly a part of the entire community. The Hearings
Official determined that preservation areas will be protected from construction and tree
Final Order: Capital Hill PUD (PDT 17-1) Page 5
The Hearing Official discusses several issues raised by the Neighborhood Response Committee
(NRC). The NRC makes the argument that the subject property should be retained as a park
purpose and not be residentially developed. The Hearings Official states that "the South Hills
Study does not designate the subject property for preservation or park use and does not
prohibit residential development". The NRC also objects to the number of trees to be removed.
The Hearings Official acknowledged that future construction requires the removal of trees, and
noted that "this property is designated for residential development, the South Hills Study does
not require that there be no impact".
Summary of Appellant's Argument:
The appellant states, "The Hearings Official incorrectly interpreted the Ridgeline Park section of
the South Hills Study to mean that the specific recommendations in EC 9.9630(1)(a)2 do not
apply" (Appeal Statement, page 3). Based on the Hearings Official's interpretations and decision
no protection is afforded any land above 901 feet. The appellant argues that, "All subject
property above 901' must be developed according to the South Hills Study refinement zone,
not simply R-1 zoning" (Appeal Statement, page 3). The appellant argues that the Hearing
Official's analysis is in error, because the Ridgeline Park section refers to land above 901 feet
and the Hearings Official erred by allowing the applicant to fulfill the purposes by setting aside
property below 901 feet.
Planning Commission's Determination:
The Planning Commission concurs with the findings of the Hearings Official, and as noted in its
staff report, "The Ridgeline Park section of the South Hills Study is primarily intended for areas
within the south hills suitable as recreational parks" (page 8). The Planning Commission agrees
that the applicant has demonstrated consistency with the South Hill Study and exceeded the
recommendations by demonstrating consistency with three of the Ridgeline Park purpose
statements.
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Appeal Issue #4: EC 9.8320(2) - The Hearings Official incorrectly interpreted the
language and requirements of the Development Standards SEC 9.9630(3)(b)].
Hearings Official's Decision: The Hearings Official interpreted the South Hills Study standards to
"encourage" the applicant to propose a development that uses procedures afforded through
the PUD process to balance the clustering of development and preservation of open space to
effectively minimize overall impacts (Hearings Official Decision, page 19). The Hearings Official
also determined that the combined preservation areas will locate building sites closer to the
Final Order: Capital Hill PUD (PDT 17-1) Page 6
top of the ridgeline, clustering home sites in areas with fewer trees and vegetation and,
accordingly, resulting in less impact to the site, noting that the greatest degree of previous site
disturbance occurred in the higher elevations of the site (Hearings Official Decision, page 20).
The Hearings Official also disagreed with the NRC's characterization of the site's topography
and proposed site plan.
Summary of Appellant's Argument:
The appellant asserts (Appeal Statement, page 6) that the Hearings Official describes the,
"Development Standards for the Ridgeline section of the South Hills Study" (Hearings Official
decision, page 19) but then lists the purposes from the Development Section, not the Ridgeline
Park section, which is a misinterpretation.
The appellant also asserts (Appeal Statement, page 6) that the Hearings Official erred by using
the phrase, "overall impacts" on pages 19 and 20 of her decision because the phrase is not a
recognized goal or policy of the South Hills Study. The appellant also asserts that the Hearings
Official erred by describing the open space buffer as being concentrated in the area with the
steepest slopes and that clustering of home sites in the mid- to higher elevations will allow for
the preservation of more trees (Hearings Official Decision, page 20).
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Planning Commission's Determination:
The appellant has referenced EC 9.9630(3)(b) and (c) Development Standards - Specific
Recommendations, however it is important to note that the entire South Hills Study is
applicable to this development and not just EC 9.9630, since a Tentative PUD must be
consistent with applicable adopted refinement plan policies as defined under EC 9.8320(2). The
policies at EC 9.9.630(3)(b) and (c) are identical to those in the South Hills Study, however the
codified policies are only applicable to land use applications for Subdivision, Partition and Site
Review as stated in EC 9.9500. This is a technical detail noted here simply for purposes of
clarification, as the substance of the policies in this case remains the same.
The following is one of the relevant Development Standards of the South Hills Study applicable
to the proposed PUD, as addressed in the staff report and Hearings Official decision, and raised
in this appeal issue.
That planned unit development procedures shall be utilized for the following purposes:
1. To encourage clustering of development in areas characterized by:
a. Shallowest slopes
b. Lowest elevations
c. Least amount of vegetation
d. Least amount of visual impact.
2. To encourage preservation as open space those areas characterized by:
a. Intermediate and steep slopes
b. Higher elevations
c. Significant amounts of vegetation;
Final Order: Capital Hill PUD (PDT 17-1) Page 7
d. Significant visual impact.
As reflected on the applicant's site plans and in other supporting application materials, the
steepest slopes and higher percentage of vegetation occur on the eastern side of the PUD site.
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 contain varying sized preservation areas. These
combined preservation areas will locate potential building sites on these lots closer to the top
of the ridgeline that this site is located on. This will in effect provide clustering of home sites
where less trees and vegetation are located. Although contrary to the above purposes of
clustering development areas in the lowest elevations and preserving open space in the highest
elevations, the physical characteristics of the site, with the steepest slopes and higher
percentage of vegetation in the lowest elevations, preclude these purposes. 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 proposed private road (Cupola Drive) would be located. It also
appears that a number of trees were removed over the preceding years 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.
A key factor involved in the correct interpretation of this policy relates to its use of the word
"encourage." While the policy itself requires that the PUD procedures be utilized for the
purposes listed, the word "encourage" affords substantial latitude in determining the meaning
and effect of the policy on a given development proposal. As such, the Hearings Official did not
err in her analysis of "overall impacts" since requiring strict compliance with the purposes listed
would actually run afoul of the South Hills Study intent, based on the existing site
characteristics and constraints discussed above (e.g. requiring development impacts to be
located on the steepest slopes at lower elevations, and where most existing significant trees
exist). Accordingly, the Planning Commission agrees with the Hearings Official's interpretation
as the proper method to apply the policy given the circumstances, and to the extent that it can
even be applied as an approval standard.
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Appeal Issue I#5: EC 9.8320(2) - The Hearings Official's findings regarding the
consistency of the application are based on two errors:
1. She failed to consider that, by their own admission, the investigation conducted by
Branch Engineering was "a preliminary study" rather than an 'in-depth, detailed
analysis. "
2. She failed to consider evidence that Branch Engineering's really limited work
cannot "adequately consider both on-site and off-site impacts" as required by the
SHS. For discussion see Appendix A, Memorandum from Gunnar Schlieder, Ph.D.,
CEG, GeoScience Inc. dated May 2, 2018.
Final Order: Capital Hill PUD (PDT 17-1) Page 8
Hearings Official's Decision:
The Hearings Official accepted the applicant's geotechnical analysis by Branch Engineering
which provided an in-depth, detailed analysis, with adequate review of both on-site and off-site
impacts, and that no significant geologic hazards were found that would impede or restrict
construction on the site (Hearings Official Decision, page 21).
Summary of Appellant's Argument:
The appellant asserts that the Hearings Official failed to consider that the geotechnical study
conducted by Branch Engineering was a preliminary study and not an in-depth and detailed
analysis, and the Hearings Official failed to consider evidence that the preliminary study cannot
adequately consider both on-site and off-site impacts consistent with the South Hills Study.
Planning Commission's Determination:
Staff's analysis, including input from the City's Public Works Department, found that the
applicant's geotechnical analysis was adequate to show compliance with the approval criteria
subject to Condition of Approval #10 in the Hearings Official's decision. The Planning
Commission generally agrees with that analysis and the Hearings Official's decision. The
geotechnical/geologic investigation found no significant geologic hazards that would impede or
restrict the construction on the site (Staff Report, page 11). The applicant's study conducted
site investigation and analysis, and did acknowledge expected areas of slide debris in the
steeper lots with some areas of the site having a high likelihood of surface land-sliding.
However, the applicant's analysis 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.
The Planning Commission determined that the Hearings Official correctly imposed a condition
of approval requiring a geotechnical analysis from a certified engineer for any Privately
Engineered Public Improvement (PEPI) permits, building permits, and site development permits
for the initial construction of infrastructure and residences on individual lots during future
development of the site. Each of these permits is required to adhere to the recommended
standards for design and construction described in the geotechnical analysis (Staff Report, page
32). This condition is necessary to ensure that compliance with the South Hills Study
Development Standards regarding adequate review of both on-site and off-site impact by a
qualified engineering geologist and in accordance with the Tentative PUD approval criteria at EC
9.8320(2) and (6), regardless of the status of the property being on the City's Goal 5 inventory
or the exemption to the standards for geotechnical analysis at EC 9.6710(3)(f). However, the
Planning Commission finds that in order to comply with the policy related to geotechnical
evaluation in the Development Standards of the South Hills Study under EC 9.8320(2), as well as
EC 9.8320(6), it is necessary to modify condition of approval # 10 to include more explicit
language requiring compliance with both the recommendations in the preliminary geotechnical
report submitted and approved as part of the PUD and subsequent geotechnical analyses
required with each specified permit for development, including the need to address off-site
impacts. Accordingly, the Planning Commission modifies Condition of Approval #10 as follows:
Final Order: Capital Hill PUD (PDT 17-1) Page 9
Based on the available information in the record, and with this modification to Condition of
Approval#10, the Planning Commission finds that the application complies with the policy
concerning geotechnical evaluation in the Development Standards of the South Hills Study
under EC 9.8320(2), as well as EC 9.8320(6) as it relates to the required geotechnical analysis for
the proposed PUD.
Appeal Issue #6: EC 9.8320(2) - The Hearings Official erred by referencing a
preservation area, along the northeast boundary of the subject property abutting
Hendricks Park.
Hearings Official's Decision:
The Hearings Official found the proposal was consistent with South Hills Study development
standard encouraging adjoining developments to 'cluster' open space. She found that the
proposed PUD enhances the continuous open space of the park and public areas to the east
and northeast of the site and states, "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" (Hearings Official
Decision, page 22).
Summary of Appellant's Argument:
The appellant asserts the Hearings Official erred by stating, "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"
(Hearings Official Decision, page 22). The appellant contends, "There is no separate
preservation area along the northeastern boundary of the PUD" (Appeal Statement, page 8)
Planning Commission's Determination:
The Planning Commission concurs with the findings of the Hearings Official that the inclusion of
preservation areas in the PUD is consistent with the policy language of the South Hills Study,
"That developments be reviewed to encourage clustering of open space elements of different
developments in order to preserve the maximum amount of continuous open space". The staff
report referenced this area as follows: "Staff notes that the proposal also includes a
preservation area along the northeast boundary of the subject property which abuts the
established public open space of Hendricks Park, consistent with the policy language above"
(Staff Report, page 12). Staff was referencing the combined preservation areas of Tract A and
Final Order: Capital Hill PUD (PDT 17-1) Page 10
Lot 5 as depicted on the applicant's site plan, with approximately 64 feet of combined
preservation area abutting Hendricks Park to the north, starting at the northeast corner of Lot
5. Staff found that this is generally consistent with the intent of the South Hills Study policy
language to provide continuous open space not only within the development but also by
abutting the public open space of Hendricks Park and the Ribbon Trail property.
The Planning Commission accepts and adopts the Hearings Official's findings related to this
appeal issue with one modification to clarify reference by the Hearings Official to the
"northeast boundary" of the subject property as it relates to a proposed preservation area
shown on the applicant's site plans abutting Hendricks Park. For clarity, the Planning
Commission accepts finding on page 22 of the Hearings Official's decision with the following
modification: "The proposed development also includes a preservation area
m^r¢h°;°+ b^ ®R~ near the northeast corner of the subject property, which abuts the
established public open space of Hendricks Park, consistent with the policy language above."
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue, except as modified above.
Appeal Issue #7: EC 9.8320(2) - The Hearings Official incorrectly interpreted the
requirement that developments be reviewed in terms of scale, bulk and height to
determine the Application is compliant.
Hearings Official's Decision:
The Hearings Official found that the individual lot preservation areas and Tract A, provide a
visual screening that will limit the scale and bulk of the proposed single-family residential
development as viewed from lower elevations to the east (Hearings Official Decision, page 22).
She found that the South Hills Study development standards do not require a review of
individual buildings, and that there is nothing in the PUD criteria or the South Hills Study
development standards that require the applicant to provide specific details about the buildings
that may be developed by others in the future. The Hearings Official found that based on the
topography, proposed tree preservation and proposed site plan, the scale, bulk and height of
the PUD will have an impact consistent with the view-scape created by the adjacent established
residential neighborhood. It is anticipated that 8 of the 34 proposed lots have the potential to
be readily visible from off-site and will be consistent with the view-scape created by the
adjacent established residential neighborhood. In the Hearings Official's opinion, since the
applicant has not requested a modification from the building heights allowed in the R-1 zone,
the height of future homes will be similar to the surrounding neighborhood, ensuring general
compatibility with the surrounding residential area.
Summary of Appellant's Argument:
The appellant asserts the proposed PUD should be evaluated in terms of scale, bulk and height
per the Specific Recommendations in the South Hills Study. The appellant cites LUBA decision
No. 2012-039 which states, "City cannot rely on non-binding expressions of intent from an
application to ensure that approval standards are met", and therefore the applicant is not
allowed to postpone the evaluation of the bulk and height of construction to a later time.
Final Order: Capital Hill PUD (PDT 17-1) Page 11
Planning Commission's Determination:
Staff confirms the findings of the Hearings Official, and as noted in its staff report, "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" (Staff Report, page 12) and, "the
applicable residential development standards for the R-1 zone will ensure general compatibility
with the surrounding residential area" (Staff Report, page 13). The applicant is not proposing to
build any of the potential new single-family houses. The lots will be sold and individual property
owners will build houses sometime in the future. Based on the applicant's statement, of the 34
proposed lots, only 8 lots have the potential to be viewed from beyond the property to the
west, and the offsite view of these 8 lots will be limited based on the current condition of off-
site mature trees. Offsite views of the lots on the eastern side of the development will be
limited by the significant preservation areas and large number of preserved trees. As stated in
the staff report, "the individual lot conservation areas, along with the previously described
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". Staff also notes that the applicant did not request a modification of
maximum height limits or other residential development standards, therefore the applicable
residential development standards for the R-1 zone will ensure general compatibility with the
surrounding residential area.
During deliberations The Planning Commission expressed concern that the Hearings Official did
not adequately address the issue of bulk and scale as it relates to lot coverage, specifically
pertaining to Lots 5, and 8 through 19 all of which have preservation areas on the lots. As
further discussed in this Final Order under Appeal Issue #25, the Planning Commission has
modified the Hearings Official's decision with an additional condition of approval in order to
provide clarity on lot coverage requirements based upon only the "buildable" portion of a lot.
The Planning Commission also finds that Conditions of Approval #11 and #12 provide further
support for the conclusion that the intent of the relevant South Hills Study policy language has
been met.
The Planning Commission also notes that the application does not include any CC&R's to
demonstrate consistency with any of the applicable standards, and it is not required to. The
Hearings Official correctly determined that CC&Rs are not required to show that the approval
criteria are met.
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Appeal Issue I#8: EC 9.9630(3)(8) - The Hearings Official erred in determining
compliance with this standard, failing to evaluate evidence in the record contradicting
this finding, "That planned unit development review shall be based upon a recognition
of both public and private interest. In areas of significant conflict (e.g., locating
development in a highly visible area as opposed to a less visible area or in an area of
significant vegetation as opposed to a relatively open area) which could be resolved
through the use of an alternative development plan, primacy shall be given to the
public interest in any determinations."
Final Order: Capital Hill PUD (PDT 17-1) Page 12
The Hearings Official also considered the input of the NRC and individuals who provided
opposing testimony that the proposed PUD does not give primacy to the public interest. The
Hearings Official relied on the fact that the South Hills Study does not designate this property
for preservation or public acquisition, noting the site is privately owned and zoned for low-
density residential development. The Hearings Official concludes, "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"
(Hearings Official Decision, page 27).
Summary of Appellant's Argument:
The appellant disagrees with Hearings Official's findings, claiming that previous iterations of the
proposed development by the applicant dating back to 2008, all showed fewer lots on the site,
which did a better job of meeting the public interest.
Planning Commission's Determination:
The Planning Commission concurs with the findings of the Hearings Official, and as noted in its
staff report, "Staff finds that the proposal provides for an appropriate level of low-density
residential development, while attempting to preserve the natural features and qualities of the
subject property as much as possible" (Staff Report, page 14). The staff report also notes that
"the applicant has attempted to cluster 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" (Staff Report, page 15). The applicant has also placed a
majority of lots and the new private road where previous site disturbance occurred in the past,
while locating preservation areas in the steepest portion of the site where trees and vegetation
are most dense, which serves the public interest. The Planning Commission agrees with staff's
analysis and the Hearings Official's decision, and emphasizes that previous iterations of the
applicant's plans which may have been shared with neighbors dating back to 2008 but are not a
part of the current application nor included within the existing record, were not considered.
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Final Order: Capital Hill PUD (PDT 17-1) Page 13
Appeal Issue #9a EC 9.8320(3) ® The PU will provide adequate screening from
surrounding properties including, but not limited to, anticipated building locations,
bully, and height.
Hearings Official's Decision:
The Hearings Official found that the combined private lot preservation areas combined with the
common preservation area of Tract A will provide substantial screening for areas to the east.
The site is currently mostly obscured from view from the flatter elevations below and to the
west. The Hearings Official also noted conditions of approval that require trees on individual
lots cannot be removed until a construction permit is issued, and trees in developable areas
that are removed for future homes or die for any reason shall be replaced with a one to one
ratio. This ensures that the site will remain vegetated and provide adequate screening in the
future.
The Hearings Official also found that while the proposed lot locations and configurations must
be evaluated for compliance, future buildings are not subject to this review, and evaluation for
compliance with this code section does not include consideration of future buildings. All future
proposed homes must be evaluated for compliance with the R-1 zone development standards,
and the bulk and height must be consistent with those development standards, which includes
building heights, setbacks and lot coverage.
Additionally, the Hearings Official imposed staff's recommended condition of approval to limit
buildable areas for Lots 5, 16 and 22. For compliance with the R-1 zoning standards, as a
condition of approval the site plans must be revised to show buildable areas on these three lots
not to exceed 13,500 square feet.
Summary of Appellant's Argument:
The appellant asserts that the Hearings Official made multiple errors regarding compliance with
this requirement, as summarized below:
® The Hearings Official erred on Page 31 in the initial paragraph of her Decision when she
stated, "The proposed site plan provides for significant continuous preservation areas
along the eastern boundary, adjacent to the Ribbon Trail..."" The appellant asserts that a
6 foot fence along the entire length of the eastern property line is proposed, and this is
counter to several of the Hearings Official's statements that a beneficial characteristic of
the eastern lots is that they, "act as an uninterrupted natural wildlife corridor" (Hearings
Official Decision, page 18); "continuous buffer" (Hearings Official Decision, page 18);
"continuous preservation area" (Hearings Official Decision, page 31); and, "continuous
wildlife habitat and corridor" (Hearings Official Decision, page 78).
® The Hearings Official erred on Page 31 of her decision when, in discussing screening, she
stated that "the site is currently mostly obscured from view and difficult to observe from
flatter elevations below and to the west". The screening referred to by the Hearings
Official includes mature trees both onsite and offsite. An analysis of the proposed
removal of the mature trees should have been requested, as well as "the likelihood that
some neighboring trees will become damaged or die over time or that they will be
removed because of further development of adjoining lots" (Appeal Statement, page 12).
Final Order: Capital Hill PUD (PDT 17-1) Page 14
® The Hearings Official erred in not recognizing that the planned removal of one large
redwood tree (Tree 41398 in good condition) located in Tract C is in direct violation of
the guidelines for Preservation Areas.
® The Hearings Official erred in logic on page 31 when discussing how the PUD will provide
adequate screening from surrounding properties, including but not limited to,
anticipated building locations, bulk and height.
® The Hearings Official erred in logic on pages 31 and 32 because she relied on both
mature trees off-site and off-site neighboring residential structures to provide screening
for the development. The Hearings Official previously stated that, "based on
topography, the proposed tree preservation and the proposed site plan, the scale, bulk
and height will create and maintain an impact consistent with the view scape created by
of [sic] the adjacent established residential neighborhoods" (Hearings Official Decision,
page 23 as part of the South Hills Study discussion).
® The Hearings Official erred on page 34 in her interpretation that the Response
Committee misconstrued how the city will apply the height limitations to the to-be-built
homes.
Planning Commission's Determination:
The Planning Commission concurs with the findings of the Hearings Official that the criteria for
adequate screening have been met. As discussed in the staff report (page 19) there are no
proposed buildings or additions proposed with the PUD application. Single-family homes will be
constructed by individual property owners over time, and required to comply with the
applicable R-1 zoning and development standards. The applicant's narrative indicates that
private 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. However, it is important to understand that the City does not enforce
private covenants or agreements between private parties, and that while CC&Rs can be more
restrictive than City code, they cannot provide exceptions to City codes regarding restrictions
on building locations, bulk, and height, or any other City codes.
As discussed in the staff report, the large tree preservation area on the eastern portion of the
site will provide a significant buffer and provide screening for the adjacent Ribbon Trail and
provide screening for the residential properties to the east, which are significantly lower in
elevation. 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. The PUD is also
conditioned so that if any trees must be removed from any preservation area, justification of
the removal must be documented by a certified arborist and provided to the City for review
prior to the tree being removed. Removal of a preservation tree will require the planting of 2
replacement trees for every tree removed. This ensures that the site will remain vegetated and
provide adequate screening in the future.
Another important factor to consider as to the correct interpretation of this approval criterion
is the meaning of "adequate screening" in the context of the site, proposed development, and
surroundings. This is an inherently subjective standard, and does not require that the proposed
development be invisible from surrounding properties, which include residential uses similar to
that which is proposed, and park lands, which staff believes will be adequately screened by
Final Order: Capital Hill PUD (PDT 17-1) Page 15
existing vegetation.
With regard to the proposed 6-foot see-through agricultural-type fence along the eastern
property line, the appellant argues that it would effectively nullify the utility of Tract A as a
wildlife corridor. However, staff does not believe this issue is relevant under the criterion for
adequate screening, as it would be a see-through fence and not intended for the purpose of
visual screening. Initially, when this issue was raised in the appeal testimony, staff believed
there may be a basis under the PUD approval criteria to preclude the fence in the interest of
facilitating wildlife passage. Upon closer evaluation, the appellant has not sufficiently identified
any specific code authority (and the Planning Commission was unable to find any), that would
enable such a requirement.
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Appeal Issue #10: EC 9.8320(4) - The PUD is designed and sited to minimize impacts to
the natural environment. The Hearings Official erred by waiving the requirement for a
licensed arborist on the professional design team, and by disregarding the evidence
provided by Jim Mehrwein, Registered Professional Forester.
Hearings Official's Decision:
As explained in the Hearings Official's decision, "at the applicant's request, the City Planning
Director waived the requirement for a licensed arborist on the professional design team"
(Hearings Official Decision, page 36). In response to concerns raised regarding the tree
preservation plan, the applicant retained Kyle King, a local certified arborist, who provided a
report dated March 21, 2018, concluding that, in his opinion, the assessment in the applicant's
Tree Preservation Plan is appropriate.
The Hearings Official discusses the report submitted by James Mehrwein, February 27, 2018, on
behalf of the Neighborhood Response Committee on pages 34 and 35 of her decision. The
Hearings Official concludes, "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" (Hearings Official Decision, page 35). The Hearings Official also
discusses Mr. Mehrwein's assertion of negative impacts from tree removal on Hendricks Park
and the Ribbon Trail, and concluding that the development demonstrates compliance: "this
criterion [EC 9.8320(4)] 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" (Hearings Official Decision, page 35).
Summary of Appellant's Argument:
The appellant asserts that the Hearings Official erred by failure to ensure the applicant satisfied
the requirements of EC 9.8320(4) by waiving the requirement for a licensed arborist on the
professional design team, and by disregarding the evidence provided by Jim Mehrwein,
Registered Professional Forester.
Final Order: Capital Hill PUD (PDT 17-1) Page 16
Planning Commission's Determination:
The Planning Commission determined that The Hearings Official did not err since the ability to
waive the requirement for a licensed arborist resides with the Planning Director. EC
9.8310(2)(b) Professional Design Team Designation, states, "Unless waived by the planning
director, the professional design team shall consist of at least the following professionals: 1.
Oregon licensed arborist...". With the initial application, the applicant requested a waiver by the
Planning Director for the arborist requirement, which was granted by the Director. Also, the
Professional Design Team Designation is part of the application requirements for the Tentative
PUD and not specifically included within the approval criteria, so would not in and of itself serve
as a basis for approval or denial. During the open record period, the applicant provided a letter
by Kyle King, certified arborist, discussing the condition of the trees on the property, and
confirming the Landscape Architect's previous tree assessment as appropriate. The arborist also
discusses the loss of trees and its effect on remaining trees both on-site and off-site, wind-
throw, and survival of the preserved trees. Ultimately, the Hearings Official agreed with the
applicant's evidence over that of the opponents (and did not disregard theirs), which is well
within her authority and appropriate in her role as the initial decision-maker (Hearings Official
Decision, pages 32-38).
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Appeal Issue #11: EC 9.8320(4)(a)(2) - For areas included on the City's acknowledged
Goal5 inventory. The Hearings Official erred by improperly evaluating evidence in
support of compliance with this criterion.
Appeal Issue #12: EC 9.8320(4)(a)(2) - For areas included on the City's acknowledged
Goal 5 inventory. The Hearings Official erred by stating that the evidence suggests
there is minimal threat of windthrow for on-site trees and trees within adjacent
Hendricks Park.
Hearings Official's Decision:
The Hearings Official agreed with staff's determination that the site is designated as a Natural
Sites of Visual Prominence and Prominent and Plentiful Vegetation in the April 12, 1978 Scenic
Sites Working Paper. The Hearings Official also noted that the Metro Plan does not designate
any of the subject property as a natural resource area, and that the applicant minimized
impacts by avoiding unnecessary disruption or removal of attractive natural features and
vegetation. This was accomplished by clustering residential lots and development impacts into
areas of previous impact, in less steep terrain, and less dense or otherwise less significant
vegetation. The proposal also creates significant preservation areas on the steepest slopes of
the site where natural vegetation is most significant and in a natural state.
The Hearings Official also discusses the concerns raised by the NRC with erosion, flooding,
pollution, tree removal and screening, and the effects of windthrow from the loss of trees. The
Hearings Official reviewed both analyses from Mr. Mehrwein, on behalf of the NRC, and from
the applicant's arborist, and concluded, "While Mr. Mehrwein and surrounding neighbors would
Final Order: Capital Hill PUD (PDT 17-1) Page 17
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' (Hearings Official Decision page 35). The Hearings Official also noted
that this section of the code relates specifically to minimizing the impact to natural features on
the proposed development site, and not to off-site impacts which are addressed in the South
Hills Study policies (Hearings Official Decision, page 35).
Summary of Appellant's Argument:
The appellant asserts that the applicant proposes to only preserve approximately 1,100 square
feet of area and two trees of significant size on the portion of the site above 901 feet, and that
the applicant has not provided anticipated building locations, bulk and height in order to
outline the effect of construction on the natural features. The appellant asserts that the
Hearings Official failed to stipulate that these details should be a condition of approval.
The appellant also asserts that significant concern was raised by Jim Mehrwein, Registered
Professional Forester, that trees cut down on the site will have negative impacts for adjacent
trees both on-site and in Hendricks Park, becoming vulnerable to windthrow. The appellant
asserts that the Hearings Official failed to show how the applicant satisfied its obligation to
avoid unnecessary disruption or removal of trees on the site. The appellant asserts, "the
Hearings Official fails in this regard to enforce (4)(b)(5), (6), (7), and (8). Because the Applicant's
plan allows for a clearcut along the ridgeline above 901', trees "along the perimeter of the lots
and within setback areas" (5), "trees and stands of trees located along ridgeline and within
corridors" (6), "Trees with significant habitat value" (large trees important to protecting the
forest against windthrow) (7), and "Trees adjacent to public parks, open space and streets" are
all under threat of destruction" (Appeal Statement, page 15).
Planning Commission's Determination:
The Planning Commission concurs with the Hearing s Official's decision. As discussed in the staff
report (page 20), the applicant demonstrated minimizing impacts to the site by clustering
residential lots areas of previous manmade impact with less steep terrain, and less dense or
otherwise less significant vegetation. Significant conservation areas are proposed on the
steepest slopes of the site. Based on the available information, the areas included in Tract A
and within individual lot preservation areas comprise the majority of significant trees,
vegetation, and other natural features which are suitable for preservation. The proposed
combined conservations areas total approximately 33% percent of the site. The chosen
placement of Cupola Drive 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 appellant asserts that the applicant's plan allows for the clear cutting of trees along the
ridgeline. Planning Commission disagrees with this assertion, noting that the removal of trees in
buildable areas will be at the discretion of the developer or future lot owners, and these trees
can only be removed for the construction of a home and associated improvements such as
driveways. Eugene Code development standards will restrict the maximum lot coverage on
each lot so that lots cannot be completely covered by structures. Condition #10 further insures
Final Order: Capital Hill PUD (PDT 17-1) Page 18
limitations on maximum lot coverage for Lots 16 and 17, since these lots have the option to
construct up to three attached homes on each lot.
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Appeal issue #13o EC 9.8320(4)(b) - Tree Preservation. The Hearings Official made
errors regarding Condition 8 in approving that "'the applicants Tree Preservation Plan
complies" with Criterion EC 9.8320(4)(b).
Hearings Official's Decision:
The Hearings Official found the applicant responded to concerns raised by the NRC regarding
the tree preservation plan by retaining a certified arborist. The applicant's arborist analysis
concluded that the previously submitted Tree Preservation Plan assessment was appropriate.
The Hearings Official found that the applicant's proposal preserves as many healthy trees as
possible by concentrating the tree preservation in one large area along the eastern border of
the property. This provides larger stands of trees in their natural habitat and limits further
wind-throw damage to which isolated trees are more susceptible (Hearings Official Decision,
page 37).
The Hearings Official found that the applicant agreed to several revisions to the Tree
Preservation Plan Notes that will provide additional mitigation and protection of trees on the
site, and were adopted as conditions of approval. Also, as conditions of approval, the applicant
will replace trees removed in Tract A for a storm drainage feature at a rate of two new trees for
every one removed tree; all lots that border Tracts A, B, C, and D or have a preservation area on
the lot shall have a temporary 10-foot construction easement from all abutting preservation
areas during home construction. Also, the Hearings Official approved a condition of approval
that limits all preservation areas from having above ground structures and grading activity
(Hearings Official Decision, page 38). The Hearings Official concluded that the applicant's Tree
Preservation plan complied with the criteria of this code section.
Summary of Appellant's Argument:
The appellant asserts that condition #8 is insufficient to protect all the preservation areas once
the individual lots have been sold, and therefore is not adequate to rely on for compliance with
EC 9.8320(4)(b) regarding tree preservation. The appellant maintains that the individual lot
preservation areas will not be policed or enforced if an unscrupulous property owner cuts down
protected trees. The appellant asserts that all preservation areas should be under the control of
the home owners association for better protection.
Planning Commission's Determination:
The provisions of the applicant's tree preservation plan, in combination with specific notes on
the plans as additional conditions of approval, along with conditions of approval for a
temporary construction easement setback and restrictions on above ground structures and
grading activity in the preservation areas will ensure compliance with the applicable criteria
regarding tree preservation (Staff Report, pages 22-23). Much like CC&R's, the City does not
rely on private homeowners associations (and cannot) for enforcement of the land use code
Final Order: Capital Hill PUD (PDT 17-1) Page 19
and requirements of its land use approvals. Accordingly, staff's recommendation and the
Hearings Official's decision appropriately includes conditions of approval that will become
enforceable requirements with violations subject to civil penalty, and which will govern the
City's approval of development and use of the proposed lots into the future, regardless of
change in ownership over time.
The Planning Commission concludes that the Hearings Official correctly imposed a condition of
approval that prohibits above-ground structures and grading activity in all preservation areas
(Hearings Official Decision, page 38).This condition is necessary to ensure that ensure
compliance with the Tentative PUD approval criteria at EC 9.8320(4)(b) regarding tree
preservation. However, the Planning Commission finds that more explicit language is necessary
to protect trees from impacts from the construction of structures that do not require building
permits, and to address the applicant's proposed fencing along the eastern boundary of the
subject site. Accordingly, the Planning Commission modifies Condition of Approval #8 as
follows:
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 Fequi' a bull ing peFmit
or fence shall be constructed; there shall be no impacts to preserved trees; and
no grading activity shall be allowed. The only exceptions is are: 1) within Tract A,
where the storm drainage facility and associated grading and maintenance, as
shown on the site plans, is allowed; and 2) the applicant's proposed 6 -foot tall
agricultural pass-through fence shall be allowed along the entire southern,
eastern, and northern boundaries of the Tract A preservation area, and the
preservation area along the northern boundary of Lot 5, on the subject
property. The placement of the agricultural fence shall occur under the
direction of a certified arborist, consistent with and documented by, a report
from the arborist demonstrating that no preservation trees will be negatively
impacted by the fence.
The modification of Condition of Approval #8 also provides consistency with the purpose
statements as described in the Ridgeline Park section of the South Hills Study. The proposed
modification to require the placement of the agricultural fence at the direction of a certified
arborist so that no preservation trees are negatively impacted is also consistent with the tree
preservation policies and Development Standards section of the South Hills Study.
Based on the available information in the record, and with this modification to Condition of
Approval #8, the Planning Commission finds that the application complies with EC 9.8320(4)(b)
as it relates to tree preservation.
Appeal Issue #14: EC 9.8320(4) - The PUD is designed and sited to minimize impacts to
the natural environment by addressing the following. The Hearings Official failed to
consider all the attributes of significant trees in establishing compliance with EC
9.8320(4).
Final Order: Capital Hill PUD (PDT 17-1) Page 20
Appeal Issue #15: The Hearings Official erred on pages 38 and 39 by stating that
Applicant satisfies section ()(b) by agreeing to replace trees cut down in preservation
areas for the construction o the storm ter system.
Hearings Official's Decision:
The Hearings Official found the applicant's arborist analysis concluded that the previously
submitted Tree Preservation Plan assessment was appropriate. The Hearings Official found that
the applicant's proposal preserves as many healthy trees as possible by siting the residential
lots and new street in areas of previous impact, with less steep terrain and less dense or
otherwise less significant trees and vegetation (Hearings Official Decision, pages 33-37).
The Hearings Official found that the applicant agreed to include Tree Preservation Plan Notes
on the final plans that will provide additional mitigation and protection of trees on the site.
These additional notes were adopted as conditions of approval. Other conditions of approval
require the applicant to replace trees removed in Tract A at a rate of two new trees for every
one removed tree; all lots that border Tracts A, B, C, and D or have a preservation area on their
lot shall have a temporary 10-foot construction easement from all abutting preservation areas
during home construction (Hearings Official Decision, page 38). Also, the Hearings Official
adopted staff's proposed condition of approval that limits all preservation areas from having
above ground structures and grading activity (Hearings Official Decision, page 38). The Hearings
Official concluded that the applicant's Tree Preservation plan complied with the criteria of this
code section.
Summary of Appellant's Argument:
The appellant asserts that the Hearings Official based her decision on compliance with tree
preservation along the eastern border of the property; ignoring trees that provide a buffer
between potentially incompatible land uses, trees along the perimeter of lots within building
setback areas, trees located along ridgelines and within view corridors, and trees adjacent to
public parks, open space, and streets. The appellant also asserts that the Hearings Official erred
by allowing the applicant to remove and replant trees in the Tract A preservation area, where
the storm water system is located. The appellant argues that the storm water system will
require maintenance over time and it is possible the trees will not be able to grow or will have
to be removed when work is done on the storm water system.
Planning Commission's Determination:
The provisions of the applicant's Tree Preservation Plan, in combination with specific notes on
the plans as additional conditions of approval, and with conditions of approval for a temporary
construction easement setback and restrictions on above ground structures and grading activity
in the preservation areas demonstrates compliance with the applicable criteria regarding tree
preservation (Staff Report, pages 22-23). Regarding the removal and replacement of trees in
Tract A for the storm drainage feature, five trees are slated for removal and based on the
conditions of approval, 10 trees of native species will be required to be planted as
replacements. For this type of storm drainage feature, typical maintenance requires cleaning
out of the installed drain pipes and no grading or ground disturbance is anticipated (Staff
Report, page 23).
Final Order: Capital Hill PUD (PDT 17-1) Page 21
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Appeal Issue #16: EC 9.8320(4)(c) Restoration or Replacement: The Hearings Official
asserted a claim unsupported by evidence that priori pacts on trees from existing
development have diminished, thus implying that impacts from proposed CHPUD
would have similar effect.
Hearings Official's Decision:
The Hearings Official found that protection of the natural resources must be evaluated within
the context of the allowed use. Over time, 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. With the proposed common and private preservation areas
and the proposed restoration plans, the development complies with the level of protection
contemplated by the Metro Plan and South Hills Study (Hearings Official Decision, page 38).
Summary of Appellant's Argument:
The appellant asserts that the Hearings Official erred in asserting that over time the ridgeline
has been slightly modified and those impacts have been mitigated with the regrowth of the
tree canopy, and therefore the proposed development complies with the level of protection
contemplated by the Metro Plan and South Hills Study. The appellant argues that the Ridgeline
Park purpose statement of the South Hills Study seeks to mitigate development above 901 feet
elevation. The removal of trees above 901 feet will likely cause other trees to fall, and the
approval of this PUD fails to protect trees above 901 feet elevation.
Planning Commission's Determination:
With the required notes on the plan and specific conditions of approval that govern tree
preservation, restoration and replacement, the applicant has demonstrated compliance with
the code criteria. The applicant will be required to replace any identified preservation trees lost
during construction such as street widening, new street, driveways, stormwater facilities,
sewer, utilities and fences. In the future, the loss of any identified preservation trees will be
replaced by the Homeowner's Association, and any identified preservation trees lost within the
individual lot preservation areas of Lots 5 and 8 through 19, will be replaced by the lot owner,
except for preservation trees lost naturally without human intervention (Staff Report, page 24).
By requiring replacement trees for any identified preservation trees that are lost during
construction, the Hearings Official found that the proposed development complies with the
level of protection for residential use contemplated by the Metro Plan and South Hills Study.
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Appeal Issue #17. EC 9.6820(1) Cul-de-Sacs or Emergency Vehicle Turnarounds; EC
9.8320(5)(b) The PUD provides safe and adequate transportation systems. The
Hearings Official erred in allowing the final 125 feet of Capital Drive to remain
unimproved, causing unsafe conditions.
Final Order: Capital Hill PUD (PDT 17-1) Page 22
Summary of Appellant's Argument:
The appellants assert that the Hearings Official erred by allowing the exception to EC 9.6820
Cul-de-Sacs and Turnarounds by creating a situation where the final portion of Capital Drive
remains unimproved (Hearings Official Decision, page 43). The appellant argues that the
proposed installation of a barrier at the end of Capital Drive, will cause two existing homes to
lose their access to the road thereby creating an unsafe situation, with the lack of emergency
access to these homes. They also assert that the Hearings Official erred by allowing this section
of Capital Drive to remain unimproved while determining compliance with safe and adequate
transportation systems at EC 9.8320(5)(b).
Planning Commission's Determination:
The Planning Commission disagrees with the appellant's assertion that two existing homes on
the west side of Capital Drive will lose their driveway access with the installation of a required
traffic barrier. As noted in the staff report (page 27) during the Privately Engineered Public
Improvement (PEPI) permitting process, a street end barricade will be required north of any
Capital Drive access points and south of Hendricks Park. This means that the barricade would be
placed somewhere between the boundary of Hendricks Park and the last driveway access point
on Capital Drive. The intent is that vehicular access will be available for the two homes not part
of this development, as well as Lots 1 and 2 in the development.
Staff notes, "A later site plan revision (June 19, 2017) depicted a hammerhead style turnaround
between Lots 1 and 2 and the elimination of the private drive and several lots along the north
boundary of the site. The emergency turnaround required extensive grading into the hillside and
retaining walls due to the topography of the site. In a subsequent discussion with the Fire
Department, it was found that the elimination of the 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" (Staff Report, page 14).
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Appeal Issue #18: EC 9.8320(5)(b) The PUD provides safe and adequate transportation
systems. The Hearings Official erred in finding that the CHPUD will provide safe and
adequate transportation systems for pedestrians mile) and bikes (2 miles).
Final Order: Capital Hill PUD (PDT 17-1) Page 23
Hearings Official's Decision:
Summary of Appellant's Argument:
The appellant asserts that the Hearings Official erred by indicating a 5-foot sidewalk is
necessary in order to ensure safe and adequate access, but to not require a sidewalk for the
entire portion of Capital Drive from Cresta de Ruta to the 5-way intersection with Spring
Boulevard to the south. The appellant argues that Capital Drive does not meet the necessary
requirements to ensure safe and adequate access.
Planning Commission's Determination:
The proposed improvements to the transportation system for vehicles, pedestrians and
bicyclists within the development, which includes the widening of Capital Drive, the addition of
curb, gutter and sidewalks to the portion of Capital Drive located within the development, and
the construction of Cupola Drive which allows travel through the development in a continuous
manner without negotiating a three-point turnaround or the use of a private driveway, are
consistent with the approval criteria at EC 9.8320(5). However, based on testimony and
evidence in the record, including testimony submitted by Peggy Fisher who resides at 2808
Capital Drive adjacent to Lots 18 and 19 (see email dated May 22, 2018), the Planning
Commission finds that the current condition of the narrow, steep, curved portion of Capital
Drive which fronts Lots 18 and 19 of the PUD creates the potential for negative and unsafe
interactions between vehicles and pedestrians or bicycles, thereby impeding bicycle and
pedestrian access along that portion Capital Drive.
The Planning Commission finds that the increase in daily vehicle, pedestrian, and bicycle trips
from the proposed development, paired with the current state of the portion of Capital Drive
fronting Lots 18 and 19 will create an environment that is not safe for pedestrians and bicyclists
to access nearby residential areas and neighborhood activity centers. Nearby facilities include
Hendricks Park, the Ribbon Trail and neighboring developed residential areas. There are no
other facilities within a % mile that are accessible to pedestrians. Based on the above findings,
the Planning Commission concludes that a condition of approval is necessary to increase the
paving width and to add sidewalks along the portion of Capital Drive that fronts Lots 18 and 19
of the PUD to accommodate vehicular travel and still provide safe passage for pedestrians and
bicycles at this particular location. The following condition of approval is required to ensure a
safe and adequate transportation system for all modes of travel:
21. Prior to occupancy of any new dwellings in the PUD, applicant shall improve that
section of Capital Drive abutting Lots 18 and 19, to ensure at least 21 feet of paving
Final Order: Capital Hill PUD (PDT 17-1) Page 24
Based on these new findings and condition of approval, the pedestrian, bicycle and transit
circulation requirements of EC 9.8320(5)(b) are met.
Constitutional Findings for Required Improvement
It is in the public interest that the portion of Capital Drive abutting Lots 18 and 19 of the PUD
has a paved width of at least 21 feet and 5 foot curbside sidewalks along the edge of Capital
Drive abutting Lots 18 and 19, all within the existing right-of-way, to ensure safe and adequate
bicycle and pedestrian circulation to nearby residential areas and neighborhood activity
centers.
There is a nexus between the requirement to improve the portion of Capital Drive abutting Lots
18 and 19 with a paved width of at least 21 feet and 5 foot curbside sidewalks along the edge of
Capital Drive abutting Lots 18 and 19, and the public interest at issue. EC 9.8320(5)(b) requires
that the PUD provide safe and adequate transit systems, including bicycle and pedestrian
circulation, both within the PUD itself and as necessary to access adjacent and nearby
residential areas. A minimum of 21 feet of paving and 5 foot curbside sidewalks along the edge
of Capital Drive abutting Lots 18 and 19 will allow pedestrians and bicycles to more safely utilize
Capital Drive to access adjacent and nearby residential areas and neighborhood activity centers.
The requirement to improve the portion of Capital Drive abutting Lots 18 and 19 with a paved
width of at least 21 feet and 5 foot curbside sidewalks along the edge of Capital Drive abutting
Lots 18 and 19, all within the existing right-of-way, is roughly proportional to the impact that
the proposed development will have on the City's transportation facilities. The proposed
development will result in up to 33 new residential dwelling units (with 5 currently existing on
the subject site). It can reasonably be expected that the majority of traffic from these new
residential lots will take access via Capital Drive. Currently, it appears that approximately 19
existing dwellings take access onto Capital Drive north of proposed Lots 18 and 19; thus, the
additional 33 residential units will increase the number of residential units that access Capital
Drive by roughly 173 percent. The construction of the new residential units will result in an
increase of vehicular traffic onto Capital Drive by approximately 150 new vehicular trips per day
as estimated using the applicant's calculated trip generation rate of 4.53 trips/unit/day in the
applicant's Traffic Safety and Street Connectivity Study included in the record (dated August 8,
2017).
The record shows that the portion of Capital Drive abutting Lots 18 and 19 is approximately 90
feet long. Given that the PUD will generate an additional 150 vehicle trips per day on Capital
Drive, along with additional pedestrian and bicycle trips, and given the small amount of
improvement that will be necessary, the requirement to improve the portion of Capital Drive
abutting Lots 18 and 19 with a paved width of at least 21 feet and 5 foot sidewalks along the
Final Order: Capital Hill PUD (PDT 17-1) Page 25
edge of Capital Drive abutting Lots 18 and 19, all within the existing right-of-way, is roughly
proportional to the impact that the proposed development will have on the City's
transportation facilities.
Appeal Issue #19: C 9.6870 Street Width. The Hearings Official erred in determining
compliance with EC 9.6870 Street Width. The street width at the sharp curve o Capital
where lots 18 and 19 have a driveway access will not be improved to 21 feet in width,
and there is no proposed or existing sidewalk at this part of the CHPUD development.
Hearings Official's Decision:
The Hearings Official found that the proposed paving and right-of-way widths comply with the
widths identified in Table 9.6870. Public Works referral comments confirm that no additional
dedication or special setbacks for street right-of-way are required.
Summary of Appellant's Argument:
The appellant asserts that the Hearings Official erred by finding that the proposed development
meets the standards of EC 9.6870 Street Width since the portion of Capital Drive adjacent to
Lots 18 and 19 is less than 21 feet in width and has no sidewalk.
Planning Commission's Determination:
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 applicant's proposed street classifications, and
paving and right-of-way widths, comply with the widths identified in Table 9.6870, and are
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 (Staff Report, page 29). However, there was no requirement made
for street improvements along the frontage of Lots 18 and 19, which has been addressed with
additional findings and a condition of approval that modifies the Hearings Official's decision to
require 21 feet of paving and curbside sidewalks along the frontage of these lots, under Appeal
Issue #18 above.
Appeal Issue #20: EC 9.8320(6) The PUD will not be a significant risk to public health
and safety, including but not limited to soil erosion, slope failure, stormwater or flood
hazard, or an impediment to emergency response.
Hearings Official's Decision:
Regarding soil erosion, the Hearings Official found, "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". The Hearings Official noted that the
applicant's geotechnical investigation found no indications of recent or extensive slope failures
observed (Hearings Official Decision, page 51). The Hearings Official also agreed with the
proposed Public Works condition of approval for a geotechnical analysis for all future permits
and concluded that the applicant's preliminary geotechnical investigation provided substantial
evidence of no significant risk to public health and safety due to slope failure. The Hearings
Official also noted "While the GeoSciences and forestry evaluations provided by the Response
Final Order: Capital Hill PUD (PDT 17-1) Page 26
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" (Hearings Official Decision, page 53).
Summary o Appellant's Argument:
The appellant asserts that the applicant cannot demonstrate that the PUD as currently designed
will not be a risk to public health and safety, or prevent soil erosion. The appellant argues that
the Hearings Official erred by relying on "future work" by the applicant to address the question,
and that EC 9.8320(6) requires that this determination be made at the Tentative PUD
application stage, not at the PEPI or building permit stages (staff notes that the appellant does
not indicate what specific "future work" is being referred to in its argument). The appellant
further asserts that the Hearings Official erred by claiming the applicant's geological reports
contain "numerous specific recommendations to minimize the potential for slope failure". The
appellant argues that this is not true and that one of the recommendations appears to increase
the potential for slope failure by allowing overly steep fill slopes with inadequate drainage (staff
notes that the appellant does not indicate which specific recommendation it is referring to).
Additional related arguments are summarized below:
® The Hearings Official erred in accepting Branch Engineering's explanation of the tree
deformation on the site as having resulted from "soil creep" only, and ignoring evidence
by GeoScience (on behalf of the appellant) of geomorphic evidence of landslides.
® The Hearings Official erred in finding that the deformation exhibited by the pavement of
Floral Hill Drive is anthropogenic, and failing to consider the totality of facts in evidence
by only accepting statements and opinions by the applicant's consultant.
® The Hearings Official erred by approving a design with a level spreader stormwater
discharge facility which will significantly increase the risk of off-site impact from slope
movements and soil erosion.
Planning Commission's Determination:
Other than the modification to Condition of Approval #10 as discussed previously under Appeal
Issue #5 (related to the approval criteria at EC 9.8320(2) concerning South Hills Study
requirements for geotechnical review), there was no error on the part of the Hearings Official in
finding conformance with EC 9.8320(6).
Since building activity would occur over a long time, first as basic infrastructure is installed,
followed by individual homes built by property owners, it is necessary that erosion prevention
permits will be required prior to any ground-disturbing activities.
A geotechnical analysis from a certified engineer was submitted by the applicant and reviewed
by Public Works staff. Staff notes that the application is technically exempt from the codified
standards because the site is included on the City's adopted Goal 5 inventory according to EC
9.6710(3)(e). Regardless, Public Works staff found that those standards have been met with the
applicant's report. A condition of approval was imposed by the Hearings Official and modified
Final Order: Capital Hill PUD (PDT 17-1) Page 27
by the Planning Commission as discussed above with respect to Appeal Issue #5. That modified
approval condition is necessary to guarantee that the recommendations in the applicant's
geotechnical analysis are carried out during future development of individual lots. The report
concludes that the site is geologically and geotechnically suitable for the proposed
development, and includes a number of construction recommendations including the design
and construction of the proposed residential building pads and foundations and public
infrastructure improvements. Public Works staff concurred with this initial geotechnical
assessment, and the Hearings Official agreed based on all the available evidence in the record.
As modified, the condition will require adherence to the recommendations in the preliminary
geotechnical report as well as all subsequent geotechnical analyses required to be submitted
with each permit as the site develops over time. The modified condition also ensures that the
subsequent geotechnical analyses address potential off-site impacts. With these modifications,
the Planning Commission finds that EC 9.8320(6) is met.
The development site is at the top of a hill, outside of any flood hazard areas, and does not
create a flood hazard. A discharge point for the Cupola Drive 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. Based on existing
topography, the proposed drainage system closely mimics existing runoff locations and the
peak discharge rate being released out of each level spreader mimics that of the existing
conditions (Staff Report, pages 49 and 51).
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Appeal Issue #21: 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, storm water or flood
hazard, or an impediment to emergency response. The Hearings Official erred in
finding that the evidence in the record indicates the proposed PUD will not be an
impediment to emergency response.
Hearings Official's Decision:
The Hearings Official found that 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 Hearings Official noted that that the Fire Marshal's office indicated that
minimizing the restriction along Spring Boulevard and Capital Drive leading up the development
site would greatly improve fire and emergency respond times. The Fire Marshal's review
comments recommended that, "No Parking- Fire Lane" signs be installed on both sides of
existing roads that lead up to the Capital Hill PUD area (Hearings Official Decision, page 53).
Final Order: Capital Hill PUD (PDT 17-1) Page 28
(Hearings Official Decision, page 54).
Summary of Appellant's Argument:
The appellant asserts that the Hearings Official erred in finding that the proposed PUD will not
be an impediment to emergency response. The Fire Marshal's comments indicate emergency
access will be improved, not that it will be adequate. Removal of on-street parking does not
remedy the substandard road width and lack of a 5-foot sidewalk. The Fire Marshal's office
raised many other concerns in the record about emergency access, but the Hearings Official
only focused on removal of parking from Spring Boulevard and Capital Drive.
Planning Commission's Determination:
There was no error on part of the Hearings Official in finding conformance with EC 9.8320(6)
regarding emergency response. Staff concluded for the same reasons as the Hearings Official
listed, that the proposed development complies with this criterion. The removal of parking
from both sides of Spring Boulevard and Capital Drive elicited revised comments from the Fire
Marshal's office indicating improved emergency access and evacuation capabilities along the
route. Additional public health and other necessary infrastructure improvements which include
the addition of two fire hydrants, major improvements to the EWEB water delivery
infrastructure, the requirement to sprinkle new residential units, and the addition of the Cupola
Drive which provides a street loop system that efficiently allows for fire safety and emergency
services vehicles to safely and efficiently maneuver once on site, will contribute significantly to
a reduced risk to public health and safety.
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Appeal Issue #22: The Hearings Official erred in not requiring fire sprinklers in the
proposed development.
Hearings Official's Decision:
The requirement for fire sprinklers was not addressed in the Hearing Official's Decision.
Summary of Appellant's Argument:
The applicant has stated that fire sprinklers would be installed in all new homes to be
constructed. There is no requirement in the Hearings Official's decision to actually include the
fire suppressing sprinklers in this proposed development.
Final Order: Capital Hill PUD (PDT 17-1) Page 29
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Appeal Issue #23: EC 9.8320(7)(c) 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.
The Hearings Official erred on Pages 54 and 55 of the Decision of the Hearings Official
dated April 20, 2018 regarding the Applicant's current compliance with EC
9.8320(7)(c). At issue is the applicant's (i.e., the "owners") current compliance with
the code as it relates to the future availability of sufficient domestic and fire water
flows to the proposed PUD, including a new off-site pump station and associated
piping. The applicant would be responsible for cost sharing of the new system.
Hearings Official's Decision:
The Hearings Official found that EWEB referral comments indicate 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. EWEB determined that the applicant would
need to work with EWEB's water engineering department to discuss options a new water
distribution system, and the applicant would responsible for cost sharing of the new system.To
satisfy that requirement, that applicant submitted a written commitment to pay their
proportionate share of capital costs required to upgrade EWEB off-site facilities (Owner
Commitment to Contribute to Cost of Water Infrastructure). EWEB has accepted this
statement.
The Hearings Official also found 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). Also, prior to final subdivision approval, the applicant will need to provide
Final Order: Capital Hill PUD (PDT 17-1) Page 30
documentation from EWEB ensuring adequate water service.
The appellant also argues that the Hearings Official erred by accepting the, "Owner
Commitment to Contribute to Cost of Water Infrastructure" document as sufficient to
demonstrate compliance with EC 9.8320(7)(c), and ignoring NRC concerns about this document.
They believe the document contains many flaws that render uncertain the satisfaction of the
obligation it purports to create (see Appeal Statement, pages 23 and 24 for detailed issues with
the document).
Planning Commission's Determination:
There was no error on part of the Hearings Official in accepting the "Owner Commitment to
Contribute to Cost of Water Infrastructure" document and finding this written statement is
sufficient to demonstrate compliance with EC 9.8320(7)(c). The necessity to upgrade the
existing water system and the cost sharing of the design and construction of new water
facilities is a commitment between the property owner and EWEB and not under jurisdiction by
the City of Eugene except to ensure that adequate water service is made available prior to
need. In order to demonstrate compliance with this code criterion, it is only necessary for the
applicant to demonstrate compliance with at least one of the three listed future availability
requirements in EC 9.8320(7)(a, b or c). The applicant submitted the above described document
and staff received email confirmation on March 20, 2018 from EWEB stating, "EWEB has
reviewed the attached Owner Commitment to Fund Water Infrastructure and find it acceptable"
(Capital Hill PUD Index of Record, #47, pages 1469 to 1473, email and letter from Wallace
McCullough (EWEB), received March 20, 2018). Prior to final subdivision approval, the applicant
will need to provide documentation from EWEB ensuring adequate water service, and a
condition of approval was imposed to ensure the standard is met.
Of note, the Planning Commission rejected items (f) and (1) listed under Appeal Issue 23,
determining that they constituted new issues not raised before the hearings official.
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Appeal Issue #24: EC 9.8320(7)(c) Adequate public facilities and services are available
to the site. The Hearings Official erred in the determination that adequate public
facilities and services are available to the site, in regard to the existing street system
serving the PUD.
Final Order: Capital Hill PUD (PDT 17-1) Page 31
Hearings Official's Decision:
The Hearings Official found that based on the applicant's Traffic Safety and Street Connectivity
Study and the city's regulatory framework and statistical information regarding roadway
capacity, operations and safety, the city traffic analysis concludes that adequate public facilities
and services are available to the site. Public Works analysis 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 existing roadways (Spring Boulevard and Capital Drive) are 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. Public Works analysis
concludes that the evidence in the City's records indicate the existing roadways are safe and
capable of serving the development site (Hearings Official Decision, page 56).
The Hearings Official also considered the concerns of citizens who provided testimony about
traffic issues and the analysis of the Response Committee's traffic engineer, noting that, "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 '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"
(Hearings Official Decision, pages 58 and 59).
The Hearings Official found that, "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)" (Hearings Official Decision,
page 59).
Summary of Appellant's Argument:
The appellant asserts that the Hearings Official erred in multiple ways regarding adequate
public street system serving the site, including: reliance on statements in the staff report that
are without support in the document cited; disregarding the evidence presented by the NRC
demonstrating the inadequacy of the current roadway system available to the site; erring in
finding that public facilities and services are either presently available, or can be available, and
can be extended to serve the proposed development; basing her conclusion that the below-
standard street system does function adequately on the notable vigilance and caution of the
current neighbors; reliance on demonstrably erroneous and unreliable evidence by Scott
Gillespie, Eugene Public Works; erring in citing the evidence that on street parking on Capital
Drive acts as a traffic calming device; erring in disregarding the many enforcement issues on
Final Order: Capital Hill PUD (PDT 17-1) Page 32
Capital Drive and surrounding streets; and failing to properly consider and/or weigh the Eugene
Fire Code Standards for fire apparatus access roads as authoritative reference standards.
Planning Commission's Determination:
There was no error on part of the Hearings Official in finding compliance with EC 9.8320(7)
regarding an adequate public street system serving the site. The Planning Commission concurs
with the conclusions of the applicant's Traffic Safety and Street Connectivity Study and with
Public Works staffs assessment of that review and other information regarding the 2014 re-
paving of Capital Drive and Spring Boulevard. The Planning Commission also accepts the
memorandum by Scott Gillespie, P. E., Public Works Development Review Manager, discussing
the roadway conditions on Capital Drive and Spring Boulevard (Staff Report, page 35). The
Hearings Official properly weighed the available evidence in the record to reach her conclusion,
and therefore, did not err with respect to this issue.
Appeal Issue #25: EC 9.8320(10)(x): EC 9.2000 through 9.3915 regarding lot dimensions
and density requirements for the subject zone.
Hearings Official's Decision:
The Hearings Official found that, "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" (Hearings Official Decision, page 61).
Summary of Appellant's Argument:
The appellant asserts that the Hearings Official erred when addressing the proposed PUD's
compliance with EC 9.8320(10)(a), in reference to the R-1 zoning code requirement at EC
9.2750 Lot Coverage limiting single family detached lot coverage to 50% and by included the
private preservation areas on Lots 5, and 8 through 19 in total calculation of lot size. The
Hearings Official erred by not including a requirement that lot coverage only be calculated as a
percentage of the "buildable" portion of lots as a Condition of Approval or as a required note
on the final plans.
Planning Commission's Determination:
The Hearing Official correctly concluded that lot coverage requirements are based upon only
the "buildable" portion of the proposed lots (excluding preservations areas). In the interest of
clarity the Planning Commission hereby modifies the Hearings Official's decision to include the
following additional condition of approval:
22. The final PUD plans shall include the following note:
The maximum lot coverage for all lots is 50%. The square footage of any
preservation areas shall be excluded in the calculation of lot coverage.
Based on the available information in the record, the Planning Commission affirms the Hearings
Official's decision with respect to this appeal issue, as modified by condition of approval # 22.
Final Order: Capital Hill PUD (PDT 17-1) Page 33
Hearings Official's Decision:
The Hearings Official found that the PUD was consistent with EC 9.6735 under EC 9.8320(10)(f)
Public Access Required since all lots had either frontage on a public street (Capital Drive), or
access to a public street via a private street (Cupola Drive) or easement. EC 9.6735 and EC
9.8320(10)(f) govern the ingress and egress for all proposed lots via lot frontage or private
access easement. The Hearings Official noted that Lot 5 through 10 and 16 through 19 will have
private access easements connecting to Cupola Drive or to Capital Drive.
Summary of Appellant's Argument:
The appellant's assert that the Hearings Official's error is an incorrect statement regarding the
width of the easement providing access to Lots 5-10. The 11/27/17 Site Plan L 2.0 clearly
indicates that the access easement for Lots 5-10 is 28 feet wide with a 20 foot wide paving
surface. (This identical language, including failure to identify the width error, was found on
Page 45 of the 2/28/18 Staff Report.) The access easements for Lots 16 & 17 and for Lots 18 &
19, are noted on the 11/27/17 Site Plan L2.0 to be 20 feet wide with 12 foot wide paving
surfaces. These two access easements are narrower.
Planning Commission's Determination:
The Planning Commission affirms the Hearing Official's finding of compliance with EC 9.6735
under EC 9.8320(10)(f) Public Access Required on page 69 of the Hearings Official's decision,
third paragraph, modified as follows: "Access to Lots 5-10 will be provided via a 28-foot-wide
shared access easement and Lots 16-19 will be provided via 20-foot-wide shared access
easements". Regardless of the overall width of the easement, the standard is met with the
inclusion of a private easement that connects to a private street (Cupola Drive), which then
connects to a public street (Capital Drive).
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Appeal Issue #127: EC 9.8320(10)(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. The Hearings Official erred on Page 76 of her
Decision because under EC 9.8320(10)(k) she did not address the issue of the
prohibition of individual lot fencing within the proposed PUD. The Applicant indicates,
on Page 56 of the 8122117 Application, the code requirements for interior and front
yard fencing height and setbacks. The Application then indicates "None ('i.e., no
Final Order: Capital Hill PUD (PDT 17-1) Page 34
fencing] proposed at this time. "
Hearings Official's Decision:
The Hearings Official did not address a prohibition against fencing between individual lots in the
decision.
Summary of Appellant's Argument:
The appellant takes issue with the fact that the applicant indicated Covenants, Conditions and
Restrictions (CC&Rs) for the project would prohibit the construction of fences between
individual lots. The Hearings Official erred by not addressing a prohibition against such fencing
either as a condition of approval or as a notation on the final plans.
Planning Commission's Determination:
There are no code requirements to eliminate private fences between properties in the PUD
criteria. Any mention by the applicant regarding the intent to limit fences between properties
through private CC&Rs is solely at the discretion of the owner since CC&Rs are privately
enacted and enforced by the property owner and future Home Owners Association through
civil action.
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Appeal Issue #28: EC 9.8320(11): The proposed development shall have minimal off-
site impacts, including such impacts as traffic, noise, stormwater runoff and
environmental quality. The Hearings Official erred in dismissing EC 9.8320 (11) by
referring to her previous discussions of Criterion (5), (6), and (7) and alleging that
these discussions "establish that the proposed PUD will have minimal off-site
impacts".
Hearings Official's Decision:
The Hearings Official found that the findings in EC 9.8320(5), EC 9.8320(6) and EC 9.8320(7)
established that the proposed PUD would have minimal off-site impacts. The Hearings Official
incorporated these previous findings to establish compliance with this criterion (Hearings
Official Decision, page 77).
Summary of Appellant's Argument:
The appellant asserts that the Hearings Official failed to evaluate the evidence in the record
that contradicts her findings. The appellant argues that this cursory dismissal is a serious error
in judgment and ignores the appellant's careful analysis of detailed evidence of the off-site
impacts on road, traffic and emergency response conditions. The appellant believes there are a
number of crucial errors, inaccuracies, and omissions in the evidence and analysis presented in
both the application and the staff materials, as well as in the Hearings Official's discussions. The
appellant maintains that direct, pertinent evidence and analysis are necessary and must be
evaluated under EC 9.8320(11) to determine whether the application satisfies the standard.
Final Order: Capital Hill PUD (PDT 17-1) Page 35
The applicant also demonstrated consistency with the Laurel Hill Plan and its policies, such as:
approximately 2.5 to 2.8 dwelling units per acre which is well below the recommended density
of 5 dwelling units per acre; location of the Cupola Drive along an existing graded vehicular
accessway; clustering of lots in a non-grid type fashion around the road system, a large
preservation area located in the steepest portion of the site with the heaviest vegetation;
minimizing alterations to land contours to retain as much of the forested atmosphere as
possible; no new roadways proposed within the Laurel Hill Plan boundary; and on-street
parking to accommodate a reasonable number of visitors.
Public Works staff has reviewed the traffic safety and street connectivity study submitted by
the applicant, and concludes there is no evidence to suggest the existing roadways that provide
access to the development site are unsafe or incapable of serving the site and no offsite
mitigation is required. A memorandum from Scott Gillespie P. E., Public Works Development
Review Manager is discussed in detail at EC 9.8320(7) (Staff Report, pages 35 and 36). The
memorandum indicates that Spring Boulevard and Capital Drive, which provides access to the
site, are adequate to serve the proposed development and concludes there is no evidence to
suggest the existing roadways are unsafe or incapable of serving the development site.
Therefore, no off-site mitigation by the applicant is required.
Public Works Staff confirms that the proposed detention system demonstrates conceptual
compliance with the applicable standards at EC 9.6791 through 9.6795 and that stormwater
discharge will occur at locations that mimic existing conditions and at rates that are less than or
equal to existing rates, therefore minimizing off-site impacts and environmental quality (Staff
Report, pages 48 to 51).
Regarding noise, the development is proposed with 34 residential lots and no uses other than
residential are proposed. Anticipated noises generated from the development will be consistent
with the noises and sounds generated by the neighboring residential areas and will have
minimal impact to the surrounding area.
Of note, the Planning Commission rejected the word "permanent" in the first sentence under
the heading "Environmental quality" in Appeal Issue 28, determining that an assertion of
permanent damage constituted new evidence not presented to the hearings official.
Based on these findings staff concluded that the proposed PUD would have minimal off-site
impacts. The Hearings Official correctly evaluated and weighed the available evidence on these
Final Order: Capital Hill PUD (PDT 17-1) Page 36
issues as they relate to the approval criteria, and found that EC 9.8320(11) was met.
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Hearings Official's Decision:
The Hearings Official determined that the PUD was reasonably compatible and harmonious
with adjacent and nearby land uses. 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. 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. 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 comply with applicable residential development standards that
include height, setbacks, and lot coverage, as established in the Eugene Code, as well as the
approved conditions of approval for the PUD (Hearings Official Decision, page 78).
Summary of Appellant's Argument:
The appellant asserts that the proposed development is not compatible and harmonious with
adjacent and nearby land uses. The appellant argues that the proposed PUD does not provide
sufficient screening to provide minimal off-site impacts from the Ribbon Trail, and would
permanently change and deplete the environmental quality and natural urban resource of the
forested landscape within the development and off-site. The appellant believes there is no
guarantee that the designated preservation and conservation areas would be not be
compromised as the individual lots are built out. The appellant also claims that serious and
irreversible impacts would result from clearing the site and increasing the potential for slope
instability and landslide hazard.
Planning Commission's Determination:
The Hearings Official did not err in determining the PUD was reasonably compatible and
harmonious with adjacent and nearby land uses. As discussed in the staff report, the proposed
PUD is located adjacent to single-family low-density residential development. It is a low-density
residential land use, and staff finds no inherent conflicts that would keep the developments
Final Order: Capital Hill PUD (PDT 17-1) Page 37
from being reasonably compatible and harmonious with nearby residential development. The
proposed gross density of 2.5 to 2.9 units per acre is well below the maximum allowable density
of 14 units per acre, and is below the recommendation of 5 units per acre both in the South
Hills Study and the Laurel HIII Plan (Staff Report, page 57).
Residential development directly abutting recreational uses makes the proposed development
compatible with the nearby Hendriks Park and the Ribbon Trail. Protections for significant
natural features and vegetation on the subject site will further ensure compliance with the
applicable criterion. As noted in the staff report, "Given the varied nature of the existing
neighborhood, `reasonable' and "harmonious" could mean that the proposed development will
have a mixture of units that are mostly single family detached, some single-family attached, one
and two stories in height, with varied and eclectic architectural styles, and variable parking
options (i.e. garages, no garages, carports)" (Staff Report, page 58). The applicant is not
proposing to build homes as part of the PUD. Since lots will be sold and developed individually
by their respective owners over time, each home will have a distinct and different architectural
style and appearance, using various materials consistent with single-family home construction.
Also, the varying topography will conceivably have an effect on the type of house and
construction methods. This is consistent with the neighboring single-family areas that have also
developed overtime in a similar fashion.
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Appeal Issue #30: The Hearings Official postponed determining whether several
approval criteria had been met until a future process, and that process lacks public
notice or a public hearing.
Hearings Official's Decision:
The Hearings Official approved the PUD with 20 conditions of approval in order to ensure
compliance with all code requirements and to establish the framework for additional changes
to the final PUD plans as prescribed in these conditions and necessary for the Final PUD review
process.
Summary of Appellant's Argument:
The appellant asserts that the Hearings Official erred by postponing a determination on
whether a number of approval criteria had been met until a future process, and that process
lacks public notice or a public hearing. The appellant provides a list of all 20 conditions of
approval as evidence for their assertion (Appeal Statement, pages 35 through 39). Also listed
are references in the Hearings Official Decision to any mention of a future process for further
review, such as:
® At the time residential dwellings are proposed for any of the approved lots, they must
be evaluated for compliance with the R-1 zone development standards, and the bulk
and height must be consistent with those development standards.
® The proposed street design will be more precisely reviewed for compliance with
applicable standards during the subsequent Privately-Engineered Public Improvement
(PEPI) permit process.
Final Order: Capital Hill PUD (PDT 17-1) Page 38
® Because the extent of slope easements will not be known for certain until the PER
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.
® At the time of the subsequent subdivision review, and prior to final plat approval, the
private street must be formally created by a separate document (i.e., Private Joint Use
Access and Utility Easement and Maintenance Agreement (JAM), or similar document).
® Sections 4.0 and 5.1 of the report [Branch Engineering Geological/Geotechnical
Investigation] additional site evaluation at the time of more extensive design work and
possible construction may be required.
® 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.
® Individual lots will address flow control and water quality standards when applying for
building permits on a case by case basis.
® 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 PER permit process and prior to final subdivision
approval.
Planning Commission's Determination:
The appellant makes an argument that the use of conditions of approval in the Hearings
Official's Decision is an attempt to remedy a lack of compliance with specific approval criteria.
The appellant appears to be making an attempt to invalidate all 20 conditions of approval since
it lists each condition in its argument as examples. The appellant also asserts that the process of
allowing conditions of approval postpones approval criteria to a later process that lacks public
notice or a public hearing. The Planning Commission understands the concern about deferring
additional review to a future time. However, in this particular case, the Tentative PUD approval
is the first land use approval required, followed by Final PUD, and Tentative Subdivision
approvals. These additional, required land use applications provide an opportunity through a
Type II process to further evaluate the conditions of approval and whether or not they have
been met at the appropriate stage in the process (the appropriate timing of which is often
specified in the language of the condition itself). The Type II application process provides
another opportunity for written public comment as it requires a public notice. Type II decisions
are appealable, which provides another forum including a public hearing and Hearings Official
review to evaluate the applicant's compliance with conditions of approval and any information
used to demonstrate compliance with them. This sequence and the application procedures are
consistent with the Eugene Code and State law. Planning Commission finds there are no
Final Order: Capital Hill PUD (PDT 17-1) Page 39
conditions of approval contained in the Hearings Official's decision that represent an
inappropriate deferral of compliance to a later stage in the process without the required
opportunity for public input and review.
Regarding the additional list of items deferred to a later time but not specifically addressed as a
condition of approval, in all PUD applications, this is standard practice to provide information
items related to compliance with code requirements that will need to be addressed as part of
subsequent permitting processes. In the above list of future review items, it is apparent that
these items are typically associated with the building permit or public improvement permitting
stage of development, neither of which constitute land use decisions and both of which require
a more extensive level of plans and details then is required at the PUD approval stage. The
above list of future review items is typical for PUDs of this type, and provides for consistency
and compliance with code requirements in a normal and logical sequence.
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Appeal Issue #31: The Hearings Official stated, ""The city deemed the application
complete on August 29, 2017". This is an error because the applicant forced
completion at that date, while there were issues remaining that Eugene Planning
considered unsatisfied (Hearings Official Decision, page 4).
Hearings Official's Decision:
The Hearings Official does not make a decision on when an application is deemed complete,
and therefore no decision on this issue was made.
Summary of Appellant's Argument:
The City deemed the application complete on August 29, 2017. This is an error because the
applicant forced completion at that date, while there were issues remaining that Eugene
Planning considered unsatisfied (Hearings Official Decision, page 4).
Planning Commission's Determination:
The Hearings Official made a statement of fact based on information provided by staff, only for
background information purposes. The Hearings Official has no authority on determining the
day an application is deemed complete; that authority belongs to the applicant and City. More
importantly, the applicant has the right under State law and the Eugene Code to request that
an application be deemed complete even if the applicant has not provided all of the
information or materials requested by staff. This, in and of itself, is not a basis for reversal or
denial of a given land use application.
Based on the available information in the record, the Planning Commission finds that the
Hearings Official did not err with respect to this appeal issue.
Final Order: Capital Hill PUD (PDT 17-1) Page 40
V. CONCLUSION
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" #2 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.
3. The final PUD plans shall replace "Notes" #8 on sheet L3.0 of the site plans 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 % 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" #9 on sheet L3.0 of the site plans.
5. The final PUD plans shall replace "Notes" #11 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.
Final Order: Capital Hill PUD (PDT 17-1) Page 41
6. The final PUD plans shall replace "Notes" #13 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 %2 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 the following:
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 or fence shall be constructed; there
shall be no impacts to preserved trees; and no grading activity shall be allowed. The
only exceptions are: 1) within Tract A, where the storm drainage facility and
associated grading and maintenance, as shown on the site plans, is allowed; and 2)
the applicant's proposed 6-foot tall agricultural pass-through fence shall be allowed
along the entire southern, eastern, and northern boundaries of the Tract A
preservation area, and the preservation area along the northern boundary of Lot 5,
on the subject property. The placement of the agricultural fence shall occur under
the direction of a certified arborist, consistent with and documented by, a report
from the arborist demonstrating that no preservation trees will be negatively
impacted by the fence.
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 preliminary
geotechnical analysis approved for the tentative PUD, as well as any additional
geotechnical analyses required for individual permits. The geotechnical analyses
required for individual permits shall also address potential off-site impacts.
Final Order: Capital Hill PUD (PDT 17-1) Page 42
11. The final PUD plans shall include the following note:
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.
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
Final Order: Capital Hill PUD (PDT 17-1) Page 43
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.
21. Prior to occupancy of any new dwellings in the PUD, applicant shall improve that section
of Capital Drive abutting Lots 18 and 19, to ensure at least 21 feet of paving width within
the existing right-of-way. The applicant shall also improve that section of Capital Drive
abutting Lots 18 and 19 with a minimum 5-foot wide curbside sidewalk along the edge
of Capital Drive and within the existing right-of-way. The applicant shall obtain approval
of a Privately Engineered Public Improvement (PEPI) permit for these required street
improvements, and provide documentation of compliance upon completion.
22. The final PUD plans shall include the following note:
The maximum lot coverage for all lots is 50%. The square footage of any
preservation areas shall be excluded in the calculation of lot coverage.
Accordingly, the PUD is hereby approved with conditions. The foregoing findings and
conclusions are adopted as the Final Order of the Eugene Planning Commission on Appeal of
the Hearings Official's Tentative Approval for Capital Hill PUD (PDT 17-1), on this 14th day of
June, 2018.
John Barofsky, Chair
Eugene Planning Commission
Attachment A: Hearings Official's Decision, dated April 20, 2018
Final Order: Capital Hill PUD (PDT 17-1) Page 44
DECISION 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) 3
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.
'The 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 LinkedIn 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
2 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 emails 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 emails 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 emails 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 VaffReport 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.'
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 staff's 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
inf^astructure, 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.I I 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 be 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 fi°om 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 a part 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 adj acent 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 be 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 be utilized for the following purposes:
1. To encourage clustering of development in areas characterized by:
a. Shallowest slopes
b. Lowest elevations
c. Least amount of vegetation
d. Least amount of visual impact.
2. To encourage preservation as open space those areas characterized by:
a. Intermediate and steep slopes
b. Higher elevations
c. Significant amounts of vegetation;
d. Significant visual impact.
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 be 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 be reviewed in terms of scale, bulk and height to ensure that
development blends with rather than dominates the natural characteristics of the south
hills area.
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 be 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
of 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