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FINAL ORDER OF THE EUGENE PLANNING COMMISSION
ON REMAND FROM THE OREGON LAND USE BOARD OF APPEALS:
CAPITAL HILL PUD (PDT 17-1)
INTRODUCTION
This final order concerns a remand by the Oregon Land Use Board of Appeals of the Eugene
Planning Commission's decision approving the tentative planned unit development (PUD)
application for the proposed Capital Hill PUD (PDT 17-1).
The subject property is 13.63 acres in size and is developed with multiple residences and
accessory buildings. 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 applicants, Cynthia and Thomas Dreyer, filed an application for a
tentative PUD to create a 34-lot residential subdivision.
The Eugene Hearings Official held the initial public hearing on the tentative PUD application on
March 7, 2018. Following the hearing and open record period for additional testimony, on April
20, 2018, the Hearings Official approved the tentative PUD application with 20 conditions of
approval.
On May 7, 2018, both the applicant and the Joint Response Committee of the Fairmount
Neighbors Association and Laurel Hill Valley Citizens (Joint Response Committee) timely filed
appeals of the Hearings Official's decision. On May 9, 2018, the City mailed written notice of the
appeals. The Planning Commission held a public hearing on the appeals 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 Planning Commission affirmed the
Hearings Official's approval of the tentative PUD, with additional findings and conditions as well
as modifications to certain conditions of approval imposed by the Hearings Official. Specifically
related to this remand, the Planning Commission modified Condition of Approval #10 to require
that additional geotechnical analyses required for building and infrastructure permits address
potential off-site impacts.
Both the applicant and the Joint Response Committee timely appealed the Planning
Commission's decision to the Oregon Land Use Board of Appeals (LUBA). LUBA affirmed the
majority of the Planning Commission's decision, but ultimately remanded to allow the Planning
Commission to adopt more adequate findings based on substantial evidence, regarding
Final Order: Capital Hill PUD (PDT 17-1) Remand Page 1
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.
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)(c)." 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. The Planning Commission did not hold a hearing on remand.
The Planning Commission held deliberations on the remand on August 6 and 13, 2019.
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 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."), so the application must comply with the same
substantive approval criteria included in EC 9.9630(3). This Final Order will therefore refer to the
applicable South Hills Study policy rather than to EC 9.9630.
Final Order: Capital Hill PUD (PDT 17-1) Remand Page 2
I1® RECORD ET PLANNING COMMISSION
III® ISSUES
PROCEDURAL Bias/Ex arte Contacts
At the Planning Commission meeting on August 6, 2019, Vice Chair Tiffany Edwards responded
to a letter dated June 18, 2019 from Sean Malone requesting that Commissioner Edwards
recuse herself from the decision on remand. The Malone letter alleged that a 2018 email
exchange between Commissioner Edwards (who was not a planning commissioner at the time)
and a representative of the applicant constitutes an ex parte contact and shows that
Commissioner Edwards is biased. Regarding the allegation of ex-parte contact, Commissioner
Edwards confirmed that at the time of the email in question she was not a Planning
Commissioner so her contact with the applicant's representative did not constitute an ex parte
contact. Regarding the allegation of bias, Commissioner Edwards stated that she could make an
unbiased decision on the application and was able to set aside her personal views to evaluate
the application based solely on the evidence and argument in the record and the applicable
approval criteria.
Rejection of Testimony
At the Planning Commission meeting held on August 6, 2019, the Planning Commission rejected
the following testimony submitted during the remand open record period:
1. The Planning Commission rejected Susan Ferris' June 12, 2019 letter because it was
outside of the scope of the open record on remand, except for the following testimony:
® The first sentence of paragraph 1, beginning with "Eugene Code (EC) Sections..." and
ending with "...residential lots in this area.";
® The portion of the fourth sentence in paragraph 5 that states "This area suffers from
erosion";
® Paragraph 6;
® The first sentence in paragraph 8 and the phrase "problems with erosion";
® The first sentence of the final paragraph; and
® Closing salutation
2. The Planning Commission rejected the fourth and fifth paragraphs of Jennifer Mackey's
June 18, 2019 email because the Planning Commission determined that they were
outside of the scope of the open record on remand.
Final Order: Capital Hill PUD (PDT 17-1) Remand Page 3
3. The Planning Commission rejected the third and fourth sentences of the third
paragraph on the second page of Nathaniel Teich's June 18, 2019 letter because the
Planning Commission determined that they were outside of the scope of the open
record on remands
The Planning Commission has limited its consideration of the issues on remand to the remand
issues identified by LUBA's Final Opinion and Order, dated November 20, 2018, for LUBA Nos.
2018-074 and 2018-080.
IV. FINDINGS F FACT A CONCLUSIONS F LAW
After consideration of the applicable law and all argument and evidence in the record, the
Planning Commission readopts its Final Order dated June 14, 2018, as amended and
supplemented below. Specifically, the Planning Commission finds that the subject application
complies with 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. In
the event of any conflict between this Final Order and the initial Planning Commission decision
on this application or the Hearings Official's decision on this application, this Final Order shall
prevail. The Planning Commission's June 14, 2018, decision is adopted by reference and
included as Attachment A. The Hearings Official's decision is adopted by reference and included
as Attachment B.
Applicable Approval Criteria on Remand
LUBA's remand focused on two approval criteria: EC 9.8320(6) and the specific
recommendations from the South Hills Study for development standards related to review of
on-site and off-site impact of the development.z
2 As noted above, LUBA's remand refers to EC 9.9630(3)(c) rather than the South Hills Study. EC 9.9630
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 specific recommendations from
the South Hills Study for development standards related to on-site and off-site impact of development
that are directly applicable to this application are identical to EC 9.9360(3)(c) - the code section LUBA
referenced in the remand.
Final Order: Capital Hill PUD (PDT 17-1) Remand Page 4
EC 9.8320(6) provides:
The FIJD 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.
EC 9.8320(2) requires that the PUD be consistent with applicable adopted refinement plan
policies. The Planning Commission has previously determined that the South Hills Study is an
adopted refinement plan applicable to the subject property.
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. ,411 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.
Remand issue #1: Significant Risk to Public Health and Safety and On-Site Impacts
LUBA's Final Opinion and Order
Regarding the issues of on-site impacts of the proposed development and significant risk to
public health and safety from slope failure and soil erosion, LUBA explained:
In our view, a reasonable decision maker would not have relied upon the
[applicant's] Geotechnical Investigation to find compliance with EC 9.8320(6) and
EC 9.9630(3)(c). We conclude this 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, based on test pits
clustered on the least steep portion of the property, encompassing only 20
percent of the property, and some distance from two identified areas of soil
Final Order: Capital Hill PUD (PDT 17-1) Remand Page 5
instability on which development is proposed. Our conclusion is also based on
the unexplained assumption that the test pit locations are representative of the
subsurface conditions on the remainder of the property.
LUBA Final Opinion and Order dated November 20, 2018, LUBA Nos. 2018-074 and
2018-080, slip op at 38-39.
Planning Commission's Determination
The applicant has submitted the following Geotechnical reports, which have been signed and
stamped by Ronald J. Derrick, P.E., G.E. and Gary Sandstorm C.E.G.:
In response to LUBA's remand, the applicant submitted a supplemental geotechnical/geologic
report entitled: "Geotechnical/Geologic Investigation RE: LUBA Remand" which was signed and
stamped by Ronald J. Derrick, P.E., G.E. and Gary Sandstorm C.E.G. and dated May 14, 2019.
The applicant also submitted a Technical Memorandum regarding City of Eugene Stormwater
review applicability, dated July 8, 2019, and signed and stamped by registered professional
engineer Nathan Patterson.
In response to LUBA's comments on remand, on March 22, 2019, the applicant excavated nine
additional test pits on the site. The applicant then submitted a supplemental Geotechnical
Investigation dated May 14, 2019. In that supplemental report the applicant states that the
"test pits were not arranged in a manner to maximize a certain percentage of the site area, but
rather in accordance with engineering practices and the City of Eugene Standards for Geological
and Geotechnical Analysis." The City's Standards for Geological and Geotechnical Analysis are
adopted in Administrative Order No. 58-02-25-F.
The Planning Commission recognizes that the standards of Administrative Order No. 58-02-25-F
are not directly applicable to this tentative PUD application.' Nevertheless, the Planning
Commission finds that Administrative Order No. 58-02-25-F provides a useful guide to the
requirements for geotechnical evaluations, and specifically the adequacy of test pit locations,
and provides helpful context regarding the question of whether the applicant's geotechnical
evaluation can be relied upon to determine the application's consistency with EC 9.8320(6) and
the applicable geotechnical recommendations from the South Hills Study. City Public Works
staff has opined that the placement and quantity of the applicant's test pits (including the nine
new test pits) meet the minimum requirements in Administrative Order No. 58-02-25-F for
3 Administrative Order No. 58-02-25-F sets out specific requirements for geotechnical evaluations
subject to compliance with EC 9.6710. Those standards are not directly applicable in the case of Capital
Hill PUD due to its inclusion on the City's Goal 5 inventory - see EC 9.6710(3)(f) (activities on land
included in the City's acknowledged Goal 5 inventory are exempt from the requirements of EC 9.6710).
Final Order: Capital Hill PUD (PDT 17-1) Remand Page 6
number and spacing of test pits. The Planning Commission therefore finds that the applicant
has provided the City with substantial evidence that the location of the test pits adequately
identify the geologic features of the site.
The applicant's May 14, 2019 Geotechnical Investigation identifies an area of previous slide
activity on the northeastern portion of the site as well as possible past landslide activity in the
southeast portion of the site. However, the applicant's experts did not observe any signs of
recent or active landslide activity. The applicant's May 14, 2019 Geotechnical Investigation
concludes that "[n]ew landslide activity is not expected, provided that primary landslide triggers
are mitigated during the site development. These triggers are: removing material from the
base of a slope or toe, adding surcharge loads to the top of a slope, and increasing water
infiltration into existing landslide mass." The applicant's May 14, 2019 Geotechnical
Investigation reiterates the recommendations in the applicant's February 6, 2017, Geotechnical
Investigation and includes the following additional recommendations:
1. Control the input of water onto slopes within the moderate and deep landslide
susceptibility zones and on existing deep landslides
2. Avoid adding material (weight) to the tops of susceptible slopes or, conversely
3. Avoid removing material from the bottoms of slopes (excavation or grading)
Based on the applicant's May 14, 2019 supplemental report and Public Works referral
comments dated July 29, 2019, the Planning Commission finds that the proposed development
will follow recommendation #1 (control the input of water onto slopes within the moderate
and deep landslide susceptibility zones and on existing deep landslide) by installing several
detention systems to restrict the peak flow rate of the post-development conditions to a rate
equal to or less than pre-development conditions (discussed further in Public Works Referral
comments dated February 28, 2018). Once the runoff from the impervious surfaces has been
detained via the detention systems, the runoff will be piped to a level spreader system located
near the east boundary line of the proposed PUD. While several opponents have raised
concerns related to this stormwater system, the Planning Commission finds that this proposal
(in conjunction with Conditions of Approval 17 and 18) will mimic the existing conditions on the
development site related to stormwater. The Planning Commission finds that a stormwater
system that mimics existing site conditions should not result in any additional geologic risk to
Final Order: Capital Hill PUD (PDT 17-1) Remand Page 7
the surrounding area.
After reviewing the applicant's site plans Public Works staff determined that the applicant has
not proposed excavation or grading at the bottom of slopes. See Public Works Referral
Comments dated July 29, 2019. The Planning Commission therefore finds that the proposed
development will follow recommendation #3 (avoid removing materials from the bottoms of
slopes (excavation or grading)).
Based on the evidence in the record, the Planning Commission finds that: 1) the PUD will utilize
development techniques consistent with the recommendations included in the applicant's
February 6, 2017 and May 14, 2019 Geotechnical Investigations that do not require removal
mass at the base or toe of slopes; 2) the proposed PUD will utilize development techniques
consistent with the recommendations included in the applicant's February 6, 2017 and May 14,
2019 Geotechnical Investigations that do not add mass to the top of slopes; and 3) consistent
with the recommendations included in the applicant's February 6, 2017 and May 14, 2019
Geotechnical Investigations the proposed PUD includes a system that captures stormwater
runoff from impervious surfaces and conveys that water to suitable points of disposal. The
Planning Commission finds that the applicant has adequately considered on-site impacts of the
proposed development and will implement recommendations designed to minimize those
impacts.
For all the reasons articulated above, as well as the reasons articulated in the Hearings Official's
decision dated April 20, 2018, and the Planning Commission's Final Order dated June 14, 2018,
the Planning Commission finds that the applicant's Geotechnical Investigations provide an
adequate review of the on-site impacts of the proposed development and demonstrate that
the proposed PUD will not create a significant risk to public health and safety through soil
erosion or slope failure.
Remand ;Issue' #2: Significant Risk to Public Health and Safety and Off-Site Impacts
Final Order: Capital Hill PUD (PDT 17-1) Remand Page 8
LU A's Final pinion and Order
Regarding the issue of off-site impacts of the development, LUBA explained:
LUBA Final Opinion and Order dated November 20, 2018, LUBA Nos. 2018-074 and
2018-080, slip op at 39.
Planning Commission's Determination:
In response to this remand issue, the Planning Commission adopts the findings related to
Remand Issue #1, above and adopts the following additional findings:
The Planning Commission finds that off-site impacts of the development and the geologic risks
to off-site public health and safety result primarily from stormwater run-off from impervious
surfaces and potential landslides.
As noted in response to Remand Issue #1, the Planning Commission finds that the proposed
development will include installation of several detention systems to restrict the peak
stormwater flow rate of the post-development conditions to a rate equal to or less than pre-
development conditions (discussed further in Public Works Referral comments dated February
28, 2018). Once the runoff from the impervious surfaces has been detained via the detention
systems, the runoff will be piped to a level spreader system located near the east boundary line
of the proposed PUD. While several opponents have raised concerns related to this stormwater
system, the Planning Commission finds that this proposal (in conjunction with Conditions of
Approval 17 and 18) will mimic the existing conditions on the development site related to
stormwater.
The Planning Commission finds that a stormwater system that mimics existing site conditions
should not result in any additional geologic risk to the surrounding area.
In response to Remand Issue #1, the Planning Commission found that the applicant has
adequately identified and will mitigate landslide risks on the subject site. The Planning
Commission finds that mitigation of on-site landslide risks also necessarily mitigate risks of off-
site landslide activity caused by the development. In addition, the applicant's May 14, 2019
Geotechnical Investigation outlines the various on-site and off-site investigations conducted by
the applicant's geotechnical engineers, including off-site reconnaissance of the Floral Hill Drive
area and the Ribbon Trail. The applicant's geotechnical experts did not observe any sign of
Final Order: Capital Hill PUD (PDT 17-1) Remand Page 9
recent or on-going landslide activity. The applicant's May 14, 2019, Geotechnical Investigation
concludes that:
Opponents have raised issues of soil movement and point to an old barn on the subject
Based on the evidence in the record, the Planning Commission agrees with the conclusion in
the applicant's May 14, 2019 Geotechnical Investigation that landslide activity and associated
off-site impacts are "best mitigated by incorporating the recommendations of [applicant's]
February 6, 2017 report and the recommendations [from the applicant's May 14, 2019
Geotechnical Investigation] into the design and construction of the proposed development." As
the Planning Commission found in response to Remand Issue #1, the PUD has incorporated the
recommendations of the applicant's February 6, 2017 and May 14, 2019 Geotechnical
Investigations as follows: 1) the PUD will utilize development techniques consistent with the
recommendations included in the applicant's February 6, 2017 and May 14, 2019 Geotechnical
Investigations that do not require the removal of materials at the base or toe of slopes; 2) the
proposed PUD will utilize development techniques consistent with the recommendations
included in the applicant's February 6, 2017 and May 14, 2019 Geotechnical Investigations that
do not add mass to the top of slopes; and 3) consistent with the recommendations included in
the applicant's February 6, 2017 and May 14, 2019 Geotechnical Investigations the proposed
PUD includes a system that captures stormwater runoff from impervious surfaces and conveys
that water to suitable points of disposal. The Planning Commission finds that the applicant has
adequately considered off-site impacts of the proposed development and will implement
recommendations designed to minimize those impacts.
Additional Concerns
Additional concerns submitted by interested parties include:
® Additional evidence of active slope movements
® Removal of existing trees will create geological hazard
® Applicant's site reconnaissance methods
• The applicant's geotechnical report does not meet the criteria of a Level 3 Geotechnical
Analysis
Final Order: Capital Hill PUD (PDT 17-1) Remand Page 10
Active Slope Movements
Interested parties raised concerns about soil movement on the steep eastern slopes of the PUD
property, pointing to visual observations as well as testimony from neighbors who live downhill
of the site along Floral Hill Drive. Several of these residents expressed concerns about flooding
as well as foundational/structural issues stemming from active soil movements
Removal of Existing Trees
Interested parties submitted testimony arguing that the removal of established vegetation will
decrease soil stability and will potentially increase the likelihood of a landslide. However, the
applicant has demonstrated that removal of trees will only happen in areas of development,
which are largely proposed within the flattest areas of the site. No trees are proposed to be
removed within the conservation area along the east side of the site (with the exception of any
removal authorized between Lots 13 and 14 by Condition of Approval #6 related to the storm
sewer system), which is the area of the site with the highest landslide susceptibility.
Site Reconnaissance
Interested parties submitted testimony criticizing the reconnaissance methods used by the
applicant to obtain observations and field geological data. The South Hills Study requires an
"...adequate review of both on-site and off-site impact of any development by a qualified
engineering geologist..." Mr. Gunnar Schlieder, Certified Engineering Geologist, concludes that
since the applicant's licensed geologist was not in the field to conduct off-site work and
reconnaissance, the applicant has not met the requirements of the South Hills Study. The
Planning Commission disagrees with this conclusion. The applicant's engineering geologist
signed and stamped the applicant's February 6, 2017 and May 14, 2019 geotechnical
investigations. The Planning Commission finds that a geotechnical investigation that includes an
adequate review of the on-site and off-site impact of a development and is signed and stamped
by a licensed engineering geologist complies with the requirements of the South Hills Study.
Level 3 Geotechnical Analysis
Interested parties submitted testimony arguing that the May 14, 2019 geotechnical
investigation provided by the applicant does not meet the requirements of a Level 3
Geotechnical analysis as outlined in EC 9.6710. The Planning Commission finds that this
argument is moot because a Level 3 analysis is not required for this application.
Final Order: Capital Hill PUD (PDT 17-1) Remand Page 11
EC 9.6710(3)(f) states:
"The following activities are exempt from the requirements of this section:"
"(f) Activities on land included on the city's acknowledged Goal 5 Inventory"
safety through soil erosion or slope failure.
For all the reasons articulated above, as well as the reasons articulated in the Hearings Official's
decision dated April 20, 2018, and the Planning Commission's Final Order dated June 14, 2018,
the Planning Commission finds that the applicant's Geotechnical Investigations provide an
adequate review of the off-site impacts of the proposed development and demonstrate that
the proposed PUD will not create a significant risk to public health and safety through soil
erosion or slope failure.
Remand Issue : Condition o Approval #1
LUBA's Final Opinion and Order
In its April 20, 2018 Final Order, the Planning Commission modified Condition of Approval #10
adopted by the Hearings Official to require:
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's decision speculates in several places as to why the Planning Commission amended
Condition of Approval #10. LUBA states:
However, the planning commission seemed to recognize the incomplete nature of the
Geotechnical Investigation in modifying Condition 10.
Final Order: Capital Hill PUD (PDT 17-1) Remand Page 12
LUBA Final Opinion and Order dated November 20, 2018, LUBA Nos. 2018-074 and
2018-080, slip op at 38.
LUBA Final Opinion and Order dated November 20, 2018, LUBA Nos. 2018-074 and
2018-080, slip op at 39.
The apparent lack of evidence on this point [off-site impacts] may be the reason
that the planning commission felt compelled to modify Condition of Approval 10,
to require that all public improvements and building permits include a site-
specific geotechnical analysis that addresses, among other things, "potential off-
site impacts."
LUBA Final Opinion and Order dated November 20, 2018, LUBA Nos. 2018-074 and
2018-080, slip op at 39-40.
In the present case, however, the apparent lack of specific evidence and findings
in the present record regarding off-site impacts suggests that the modification to
Condition of Approval 10 was intended to overcome evidentiary insufficiencies in
determining compliance with EC 9.8320(6) and 9.9630(3)(c).
LUBA Final Opinion and Order dated November 20, 2018, LUBA Nos. 2018-074 and
2018-080, slip op at 40.
Planning Commission's Determination
For the reasons articulated above, the Planning Commission finds that the application complies
with 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. However, based
on the understanding that this area is geologically-sensitive, and for the reasons outlined
below, the Planning Commission also imposes the following Condition of Approval #110:
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 applicant's
geotechnical analyses dated February 6, 2017 and May 14, 2019.
City Public Works staff has opined that the current industry practice is for a site-specific
Final Order: Capital Hill PUD (PDT 17-1) Remand Page 13
The purpose of conditions of approval is to ensure that a proposed development which
For the reasons articulated above, the Planning Commission finds that the approval criteria
located in 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 are met without
Condition of Approval #10. Therefore, the Planning Commission finds that imposition of
Condition of Approval #10 does not defer a finding of compliance with applicable approval
criteria to a subsequent building permit approval process that does not provide notice or public
participation. Rather, the Planning Commission finds that Condition of Approval #10 as
adopted in this Final Order will act as belt and suspenders to ensure that the individual
improvements constructed on the site are constructed in a way that is geotechnically sound
and that complies with the applicant's geotechnical analyses dated February 6, 2017 and May
14, 2019.
V. CONCLUSION
The Eugene Planning Commission has reviewed the record and has voted to affirm the decision
to conditionally approve the tentative PUD for Capital Hill PUD (PDT 17-1). Additional findings
and modified or added conditions of approval are provided in Section IV of this Final Order; all
conditions of approval associated with this application are also included below for ease of
reference. All conditions of approval, including conditions imposed by the Hearings Official,
conditions imposed by the Planning Commission, and modified/replaced conditions remain
applicable and are set out below.
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
Final Order: Capital Hill PUD (PDT 17-1) Remand Page 14
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" #3 on sheet L3.0 of the site plans with the
following:
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.
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 % 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:
Final Order: Capital Hill PUD (PDT 17-1) Remand Page 15
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 applicant's
geotechnical analyses dated February 6, 2017 and May 14, 2019.
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
Final Order: Capital Hill PUD (PDT 17-1) Remand Page 16
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
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 abutting Lots 18 and 19 and within the existing right-of-way. The
applicant shall obtain approval of a Privately Engineered Public Improvement 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 13th day of
August, 2019.
Final Order: Capital Hill PUD (PDT 17-1) Remand Page 17
Kristen Ta , Chair
Eugene Planning Commission
Attachment A: Planning Commission Final Order, dated June 14, 2018
Attachment B: Hearings Official's Decision, dated April 20, 2018
Final Order: Capital Hill PUD (PDT 17-1) Remand Page 18