HomeMy WebLinkAboutAgenda 9.21.16A
Hearings Official AGENDA
Meeting Location:
Phone: 541-682-5377 Harris Hall, Lane County Public Service Building
www.eugene-or.gov/hearingsofficial 125 East 8th Avenue
Eugene, Oregon
The Eugene Hearings Official 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 hours' notice. To arrange for these services, contact
the Planning Division at (541) 682-5481.
WEDNESDAY, SEPTEMBER 21, 2016
(5:30 p.m.)
1. PUBLIC HEARING
KERSEY, DANIEL & CHRIS (Z 16-2)
Request:
Zone change from AG Agricultural to R-1 Low Density Residential
Location:
3425, 3445, 3455, 3463 Gilham Road
(Assessor's Map/Tax Lot: 17-03-08-31-03600, 03700, 03800, 03900)
Applicant:
Daniel and Chris Kersey
Representative:
Renee Clough, Branch Engineering
Lead City Staff:
Althea Sullivan
Telephone: (541) 682-5282
E-mail: althea.c.sullivan@ci.eugene.or.us
II. PUBLIC HEARING
LAUREL RIDGE APPEAL REMAND (Z 15-5)
Request:
Zone change from AG Agricultural with /WR Water Resources
Conservation overlay to R-1 Low Density Residential and PRO Parks
Recreation and Open Space with /PD Planned Unit Development and /WR
Water Resource Conservation overlays.
Location:
End of Riverview Street, north of 30th Avenue, west of Moon Mountain
(Assessor's Map/Tax Lot: 18-03-10-00-00701, 00703)
Applicant:
Steve King, Environ-Metal Properties LLC
Representative:
Richard Satre, Schirmer Satre Group
Lead City Staff:
Erik Berg Johansen
Telephone: (541) 682-5437
E-mail: erik.berg@ci.eugene.or.us
Public Hearing Format:
1. Staff introduction/presentation.
2. Public testimony from applicant and others in support of application.
3. Comments or questions from neutral parties.
4. Testimony from opponents.
5. Staff response to testimony.
6. Questions from Hearings Official.
7. Rebuttal testimony from applicant.
8. Closing of public hearing.
The Hearings Official will not make a decision at this hearing. The Eugene Code requires
that a written decision must be made within 1 S days of close of the public comment
period. To be notified of the Hearings Official's decision, fill out a request form at the
public hearing or contact the lead City staff as noted above. The decision will also be
posted at www.eugene-or.us/hearingsofficial
AM
WPlanning
ZONE CHANGE STAFF REPORT
Applicant
Daniel and Chris Kersey
File Name (Number):
Kersey, Daniel and Chris (Z 16-2)
Applicant's Representative:
Renee Clough, Branch Engineering, INC.
Atrium Building, 99 West 10" Avenue
Eugene, Oregon 97401
Phone: 541-682-5377
Fax: 541-682-5572
www.eugene-or.gov/planning
Applicant's Request:
Rezone subject properties from Agricultural (AG) to Low-Density Residential (R-1)
Subject Property:
Addresses: 3425, 3445, 3455, and 3463 Gilham Road;
Assessor's Map/Tax Lots: 17-03-08-31/03600, 03700, 03800, 03900;
Relevant Dates:
Application submitted on June 8, 2016; application deemed incomplete on June 28, 2016;
application deemed complete July 26, 2016; public hearing scheduled for September 21, 2016
Lead City Staff:
Althea Sullivan, Assistant Planner, Eugene Planning Division, Phone: (541) 682-5282
Purpose of Staff Report
Staff reports provide community members an opportunity to learn more about the land use
request and to review staff analysis of the application. Staff reports are available seven days
prior to the public hearing (see EC 9.7320). The staff report provides only preliminary
information and recommendations. The Hearings Official will also consider additional public
testimony and other materials presented at the public hearing before making a decision on the
application. The Hearings Official's written decision on the application is generally made within
15 days following close of the public record, following the public hearing (see EC 9.7330). For
reference, the quasi-judicial hearing procedures applicable to this request are described at EC
9.7065 through EC 9.7095.
Kersey, Daniel and Chris (Z 16-2) September 2016 1
HO Agenda - Page 1
Background and Present Request
The subject property is comprised of four Tax Lots totaling approximately 2.95 acres, and is
located north of Ayres Road between Gilham Road and Walton Lane. Annexation of the subject
property became effective on July 29, 2016, based on findings that key urban facilities are
available. The Agricultural (AG) zoning of the property is a placeholder zone, allowing interim
uses until a time at which land is converted to urban development (see EC 9.2000 Purpose of
AG Agricultural Zone). The applicant's request to rezone the property to Low-Density
Residential (R-1) would provide zoning to allow for urban development.
Staff notes that there is property zoned Neighborhood Commercial (C-1), Medium-Density
Residential (R-2), and AG in the vicinity of the subject property. However, the majority of
property is zoned R-1, the requested zoning designation.
Referrals/Public Notice
Public notice of the subject application was mailed on August 19, 2016, and posted consistent
with the requirements of EC 9.7315 Public Hearing Notice. The Planning Division has received
no public testimony at the time of publication of this staff report. Any testimony received
following the completion of this staff report, and prior to the public hearing, will be presented
to the Hearings Official at the hearing.
The Planning Division also provided information concerning the application to other
appropriate City departments, public agencies, service providers, and the affected
neighborhood group. Staff notes that notice of the proposed zone change was mailed to the
Oregon Department of Land Conservation and Development (DLCD) on August 4, 2016. All
referral comments received by the Planning Division on this application are included in the
application file for reference, and addressed in the context of applicable approval criteria and
standards in the following evaluation.
Zone Change Evaluation
The Hearings Official will review the application for a zone change and consider pertinent
evidence and testimony as to whether the proposed change is consistent with the criteria
required for approval, shown below in bold typeface (see EC 9.7330 and EC 9.8865). Staff's
findings in response to each of the criteria are provided below, to assist the Hearings Official in
making a decision on the zone change request.
EC 9.8865(1): The proposed change is consistent with applicable provisions of the
Metro Plan. The written text of the Metro Plan shall take precedence over the Metro
Plan diagram where apparent conflicts or inconsistencies exist.
The Metro Plan designates the subject property as Low Density Residential, the proposed R-1
zoning is consistent with this designation. With regards to the Metro Plan policies, staff does
not find any polices that would serve as mandatory approval criteria for this zone change.
However, the following policy appears to be relevant.
Policy A.2: Residentially designated land within the UGB should be zoned consistent
with the Metro Plan and applicable plans and policies; however, existing agricultural
Kersey, Daniel and Chris (Z 16-2) September 2016 2
HO Agenda - Page 2
zoning may be continued within the area between the city limits and the UGB until
rezoned for urban uses.
While this policy does not serve as a mandatory approval criterion, it does highlight the
intention of the AG zone to act as a placeholder until land is rezoned for urban uses. The
applicant's request for a change in zoning from AG to R-1 fulfills the intent of this policy.
Based on these findings, the criterion is met.
EC 9.8865(2): The proposed zone change is consistent with applicable adopted
refinement plans. In the event of inconsistencies between these plans and the Metro
Plan, the Metro Plan controls.
The subject property is within the boundaries of the Willakenzie Area Plan (WAP), specifically in
the Unincorporated Subarea. The map on page 53 of the WAP identifies the subject property as
Low-Density Residential, consistent with the Metro Plan designation. Additionally, staff finds
that there are no policies from the WAP that would serve as mandatory approval criteria for
this zone change.
Based on these findings, this criterion is met.
EC 9.8865(3): The uses and density that will be allowed by the proposed zoning in the
location of the proposed change can be served through the orderly extension of key
urban facilities and services.
Key urban facilities and services are defined in the Metro Plan as: wastewater service,
stormwater service, transportation, water service, fire and emergency medical services, police
protection, City- wide parks and recreation programs, electric service, land use controls,
communication facilities, and public schools on a district-wide basis (see Metro Plan page V-3).
Referral comments from the Public Works Department, included in the application file, confirm
that the subject property can be served through the orderly extension of key urban facilities
and services. Public Works staff does note that access to the public stormwater system is not
available to serve the subject property. However, based on the soil type on-site treatment is a
feasible option and will be further evaluated at the time of future development.
Based on these findings, and future permitting requirements, this criterion is met.
EC 9.8865(4): The proposed zone change is consistent with the applicable siting
requirements set out for the specific zone in:
There are no specific siting requirements for the requested R-1 zone at EC 9.2735 Residential
Zone Siting Requirements.
Based on these findings, this criterion is met.
Kersey, Daniel and Chris (Z 16-2) September 2016 3
HO Agenda - Page 3
EC 9.8865(5): In cases where the NR zone is applied based on EC 9.2510(3), the property
owner shall enter into a contractual arrangement with the City to ensure the area is
maintained as a natural resource area for a minimum of 50 years.
This criterion does not apply as the proposed zone change does not include the NR zone.
Transportation Planning Rule Evaluation
Staff finds that Goal 12 Transportation of the Statewide Planning Goals, adopted by the Land
Conservation and Development Commission (LCDC), must be specifically addressed as part of
the requested zone change and in the context of Oregon Administrative Rules, as follows.
As adopted, OAR 660-012-0060(1) states:
(1) If an amendment to a functional plan, an acknowledged comprehensive plan,
or a land use regulation (including a zoning map) would significantly affect an
existing or planned transportation facility, then the local government must put
in place measures as provided in section (2) of this rule, unless the amendment
is allowed under section (3),(9), or (10) of this rule.
Staff finds that the proposed zone change is subject to subsection (9), which reads as follows:
(9) Notwithstanding section (1) of this rule, a local government may find that an
amendment to a zoning map does not significantly affect an existing or
planned transportation facility if all of the following requirements are met.
(a) The proposed zoning is consistent with the existing comprehensive plan
map designation and the amendment does not change the plan map:
(b) The local government has an acknowledged TSP and the proposed
zoning is consistent with the TSP; and
(c) The area subject to the amendment was not exempted from this rule at
the time of an urban growth boundary amendment as permitted in DAR
660- 024-220(1)(d), or the area was exempted from this rule but the
local government has a subsequently acknowledged TSP amendment
that accounted for urbanization of the area.
Staff confirms that the proposed R-1 zoning for the subject property is consistent with the
existing comprehensive plan designation of Low Density Residential. This designation was in
effect at the time the acknowledged Transportation System Plan (TransPlan 2002) was adopted,
and the subject property was not exempt from TSP at the time of an urban growth boundary
agreement.
Based on these findings, the proposed zone change complies with TPR and satisfies OAR 660-
012-0060(1).
Kersey, Daniel and Chris (Z 16-2) September 2016 4
HO Agenda - Page 4
Staff Recommendation
Based on the available evidence, and consistent with the preceding findings, staff recommends
the Hearings Official approve the requested zone change to R-1 Low Density Residential.
Consistent with EC 9.7330, unless the applicant agrees to a longer time period, within 15 days
following close of the public record, the Eugene Hearings Official shall approve, approve with
conditions, or deny this Type III application. The decision shall be based upon and be
accompanied by findings that explain the criteria and standards considered relevant to the
decision, stating the facts relied upon in rendering a decision and explaining the justification for
the decision based upon the criteria, standards, and facts set forth. Notice of the written
decision will be mailed in accordance with EC 9.7335. Within 12 days of the date the decision is
mailed, it may be appealed to the Eugene Planning Commission as set forth in EC 9.7650
through EC 9.7685.
Attachments
The applicant's full-size site plans, and the entire application file, are available for review at the
Eugene Planning Division offices. The Hearings Official will receive a full set of application
materials for review prior to the public hearing. These materials will also be made available for
review at the public hearing.
Attachment A: Vicinity Map
Attachment B: Zoning Map
Attachment C: Applicant's Site Plan (reduced)
For More Information
Please contact Althea Sullivan, Assistant Planner, City of Eugene Planning Division, at: (541)
682-5282; or by e-mail, at: althea.c.sullivan@ci.eugene.or.us
Kersey, Daniel and Chris (Z 16-2) September 2016 5
HO Agenda - Page 5
Attachment A
Vicinity Map
Legend Caution:
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source data, subject W change,
0 Subject Property and fa general reference only.
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Zoning Map
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HO Agenda - Page 8
A
Planning
Memorandum
Date: September 14, 2016
To: Fred Wilson, Eugene Hearings Official
From: Erik Berg-Johansen, Assistant Planner, (541) 682-5437
Subject: LUBA Remand: Laurel Ridge Zone Change (Z 15-5)
Bac ound
The Laurel Ridge zone change application (Z 15-5) was originally submitted on May 27, 2015 by
Environ-Metal Properties, LLC. The subject site is located west of Moon Mountain in Eugene's
Laurel Hill Valley neighborhood. More specifically, Tax Lot 701 (approximately 98 acres) is the
northern-most of the two parcels, and is located just south of the terminus of Riverview Street
and Hendricks Hill Drive. Tax Lot 703 (approximately 23 acres) is the adjacent parcel to the
south, located approximately 250 feet northeast of 30th Avenue. A vicinity map is also included
as Attachment A.
An initial public hearing to rezone the subject site to R-1 Low-Density Residential and POS Parks
and Open Space with /PD Planned Unit Development and /WR Water Resources Conservation
overlay zones was held on August 26, 2015, and the zone change was conditionally approved by
the Eugene Hearings Official on September 24,2015. On October 6, 2015, Weltzin (Bill) Blix filed
an appeal on behalf of the Laurel Hill Valley Citizens (LHVC) neighborhood group. The appeal
was focused on the location of the boundary line between the proposed Low-Density Residential
zoning and Park, Recreation and Open Space zoning. The zoning is required to be consistent with
the Metro Plan diagram's plan designations for Low Density Residential (LDR) and Parks and
Open Space (POS). On October 20, 2015, the Eugene Planning Commission held a public hearing
on the appeal, and concluded their deliberations on October 26, 2015. The Planning Commission
agreed with the Hearings Official's decision and affirmed the zone change approval on October
29, 2015.
Both the applicant and the neighborhood group appealed the Planning Commission's decision to
the Oregon Land Use Board of Appeals (LUBA). In that appeal, LUBA decided to send the case
back (or "remand") to the City to allow the Hearings Official to reevaluate the proposed zone
change. Next week's public hearing scheduled before the Hearings Official for September 21,
2016 is to provide the public an opportunity to submit evidence and argument following LUBA's
remand decision.
_iiy of tugene • 99 W. 10th Ave. • Eugene. OR 97401 • 541-682-5481 • 541-682-5572 Fax
www.eugene-or.gov/planning
HO Agenda - Page 9
LUBA Remand: Laurel Ridge Zone Change (Z 15-5)
Summary of LUBA's Findings
LUBA's Final Opinion and Order was issued on March 11, 2016, and is included in this memo as
Attachment B. LUBA disagreed with the Hearings Official's decision, finding that Sheet 9/2/15-
04, a map created by LHVC representative Gunnar Schlieder, is valid evidence because it is based
on an enlarged version of the official Metro Plan diagram (which is printed on a 11-inch by 17-
inch piece of paper)'. LUBA also discusses "Exhibit L," which is a map that the applicant
submitted into the record on September 2, 2016. This was also the map that the Hearings Official
found to be "...the most accurate description of the boundary between the LDR and POS plan
designations on the property," and was therefore adopted as part of his approval (Hearings
Official Decision, page 8). LUBA also explains Exhibit L on page 11 of their Final Order.
For reference, staff has included reduced versions2 of Sheet 9/2/15-04 and Exhibit L as
attachments to this memo.
Specifically, LUBA states that "...remand is necessary for the hearings official to consider Sheet
9/2/15-04 free of the erroneous impression that it is based on an enlargement of the digital
Metro Plan diagram. Unless there is some other reason not to consider Sheet 9/2/15-04, for the
reasons stated above the hearings official on remand should make an evidentiary choice between
Exhibit L and Sheet 9/2/15-04 with respect to the matchup between the surveyed centerline and
the black line representing East 30th Avenue" (LUBA Final Order, page 34).
A- 14 0~ ,A ,v^ bU84'S P4_N0v`- -
LUBA's second primary finding is that additional map reference points3 (also known as
"referents) should be used to more accurately overlay the subject property on the enlarged
version of the Metro Plan diagram. LUBA states "...the hearings official erred in declining to
consider evidence regarding the matchup between the surveyed city limits line and Spring
Boulevard and the green finger4" (LUBA Final Order, page 37). In other words, LUBA finds that
the city limits line is another valid map referent that should be utilized.
LUBA further states that "...I agree with the majority that the hearings official's choice to rely on
a overlaid diagram that matches only one referent (the nearby East 30th Avenue centerline)
when an overlaid diagram that matches that referent and three additional referents (the East
30th curve, the East 301h/Spring Boulevard intersection, and the green finger) is inadequately
explained in the decision on appeal. In particular, the hearings official does not appear to have
appreciated that an overlaid diagram based on an enlargement of the official Metro Plan diagram
that matches four referents was available" (LUBA Final Order, page 39).
t The "unofficial" version is a digital PDF version available on the City's website, which was used to create a number
of other maps and diagrams present in the record.
2 The full-size versions of these maps (24 inches by 36 inches in size) are included in the application record and
were made available to LUBA.
3 Examples of reference points are street right-of-ways, intersections and surveyed property boundaries.
4 "The green finger is a thin rectangle of land designated POS [Parks and Open Space] depicted on the enlarged
Metro Plan diagram, which located north of the intersection of East 301h Avenue and Spring Boulevard, and which
is oriented in a north-south direction" (LUBA Final Order, page 25).
City of Eugene • 99 W. 10th Ave. Eugene. OR 97401 • 541-682-5481 • 541.682-5572 Fax
www.eugene-or.gov/planning
HO Agenda - Page 10
LUBA Remand: Laurel Ridge Zone Change (Z 15-5)
scope or ine Kemana Hearing
Based on LUBA's remand, the record will be re-opened to accept evidence related to the question
of whether the applicant's proposed zoning boundary between Low Density Residential and
Parks and Open Space is consistent with the Metro Plan. In other words, the record will be
limited, so only information or evidence related to the boundary location will be considered by
the Hearings Official. The record before LUBA included information regarding several referents
(a portion of East 30th Avenue and the City limits line). The applicant relied on only one referent.
To the extent the parties were under the mistaken belief, prior to LUBA's decision, that they
could not rely on multiple referents, it is appropriate to re-open the record to allow the parties
and other interested individuals to present evidence based on other reliable referents that were
not provided in the initial proceedings.
Following the Hearings Official's decision on remand, the application may be appealed to the
Eugene Planning Commission. For remand proceedings, the 120-day local decision deadline
begins at the time the applicant commences the process. The applicant's representative, Bill
Kloos, commenced this remand process on August 8, 2016, which makes December 6, 2016 the
deadline for a final local decision. Staff also notes that per State statute, this deadline cannot be
extended.
Attachments
Attachment A: Vicinity Map
Attachment B: LUBA Final Opinion and Order, dated March 11, 2016
Attachment C: Sheet 9/2/15-04 (as referenced in LUBA's Final Order), reduced version
Attachment D: Exhibit L (as referenced in LUBA's Final Order), reduced version
ty of Eugene • 99 W. 10th Ave. • Eugene. OR 97401 . 541-682-5481 • 541.682-5572 Fax
www.eugene-or.gov/planning
HO Agenda - Page 11
Attachment A - Vicinity Map
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8-7-2015 HO Agenda age 12
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Page 1
Attachment B
BEFORE THE LAND USE BOARD OF APPEALS
OF THE STATE OF OREGON
LAUREL HILL VALLEY CITIZENS,
Petitioner,
vs.
CITY OF EUGENE,
Respondent,
and
ENVIRON-METAL PROPERTIES, LLC
Intervenor-Respondent.
LUBA No. 2015-091
ENVIRON-METAL PROPERTIES, LLC,
Petitioner,
vs.
CITY OF EUGENE,
Respondent,
and
LAUREL HILL VALLEY CITIZENS,
Intervenor-Respondent.
LUBA No. 2015-092
FINAL OPINION
AND ORDER
Appeal from City of Eugene.
03/11/16 Am 9.21 LUBA
HO Agenda - Page 13
Attachment B
1
2
3
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5
6
7
8
9
10
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12
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14
15
16
17
18
19
Sean T. Malone, Eugene, filed the petition for review and response brief
and argued on behalf of petitioner/intervenor-respondent Laurel Hill Valley
Citizens.
Bill Kloos, Eugene, filed the petition for review and response brief and
argued on behalf of petitioner/intervenor-respondent Environ-Metal Properties,
LLC.
No appearance by the City of Eugene.
BASSHAM, Board Chair; RYAN, Board Member, participated in the
decision.
HOLSTUN, Board Member, concurring.
REMANDED 03/11/2016
You are entitled to judicial review of this Order. Judicial review is
governed by the provisions of ORS 197.850.
Page 2
HO Agenda - Page ' 4
Attachment B
1 Opinion by Bassham.
2 NATURE OF THE DECISION
3 Petitioners in LUBA Nos. 2015-091 and 2015-092 appeal a planning
4 commission decision approving a zoning map amendment to conform the
5 zoning of the applicant's property to the underlying residential and open space
6 comprehensive plan designations.
7 MOTION TO INTERVENE
8 Environ-Metal Properties, LLC (Environ-Metal), the applicant below,
9 moves to intervene in LUBA No. 2015-091. Laurel Hill Valley LHVC
10 (LHVC) moves to intervene in LUBA No. 2015-092. There is no opposition to
11 either motion, and they are allowed.
12 MOTION TO FILE REPLY BRIEF
13 LHVC, petitioner in LUBA No. 2015-091, moves to file a reply brief in
14 that appeal to address waiver challenges. There is no opposition to the motion
15 and the reply brief is allowed.
16 MOTION TO SUPPLEMENT PETITION FOR REVIEW
17 Environ-Metal, petitioner in LUBA No. 2015-092, moves to supplement
18 its petition for review in that appeal with a partial transcript of a planning
19 commission hearing. There is no opposition to the motion, and the supplement
20 is allowed.
Page 3
HO Agenda - Page 15
Attachment B
1 INTRODUCTION
2 A. Background
3 The subject property is a 121-acre parcel with a long east-west axis,
4 located at the southern edge of the city, adjacent to the urban growth boundary.
5 The comprehensive plan designation for the subject property is controlled by
6 the Metro Plan diagram, adopted in 2004, which is a paper 11x17 inch map at a
7 scale of one inch equals 7,000 feet. The Metro Plan diagram is not property-
8 specific, and indicates plan designation by blobs of color.
9 In the present case, the southwestern boundary of the property adjoins
10 the right-of-way for East 30th Avenue. In this area, which has steep slopes, the
11
city-owned property that
includes
the East 30th Avenue right-of-way is
12
approximately 240 to 300
feet wide.
On the Metro Plan diagram, East 30th
13 Avenue in the vicinity of the subject property is depicted as a black line that
14 runs along a southeast to northwest axis, then curving gently to the west, where
15 it intersects with Spring Boulevard, approaching from the south, and then
16 continues west.
17 In 2012, Environ-Metal applied to the city for zoning map amendments
18 and development approvals to develop the entire property for residential use,
19 based on a refinement plan map that appeared to show the entire property
20 designated Low Density Residential (LDR). The city denied the application,
21 concluding that the controlling document, the 2004 Metro Plan Diagram,
22 depicts a strip of land in the southern portion of the property with the Parks and
Page 4
HO Agenda - Page 15
Attachment B
1 Open Space (POS) designation. In Environ-Metal Properties, LLC v. City of
2 Eugene, 69 Or LUBA 33, affd 263 Or App 714, 330 P3d 74 (2014), LUBA
3 affirmed the city's conclusion that a southern portion of the subject 121-acre
4 property is designated POS. LUBA rejected Environ-Metal's argument that it
5 was impossible to determine based on the scale and lack of detail on the Metro
6 Plan Diagram exactly where on the subject property the boundary line between
7 the LDR and POS designations lies. We commented:
8 "Because the Metro Plan diagram is now digitized, and the
9 depicted plan boundaries [on the digitized map] are sharper than in
10 previous versions, the problem may not be as difficult to solve as
11 [Environ-Metal] fear[s]. It may be possible to scale up the digital
12 version of the map, overlay it with property lines from a digital
13 database, and determine the precise plan designation boundaries
14 on the subject property with reasonable accuracy. If for some
15 reason that is not possible, the city and [Environ-Metal] will have
16 to do the best they can with the tools at their disposal." 69 Or
17 LUBA at 47.
18 B. The Present Zoning Application
19 In 2015, Environ-Metal filed the present application to rezone the
20 northern portion of the subject property for residential use, and to zone
21 approximately 20 acres of the southern portion of the property Parks and Open
22 Space (POS), zones that implement the plan designations on the property.
23 Eugene Code (EC) 9.8865(1) is a zone change criterion requiring that the
24 applicant demonstrate that "[t]he proposed change is consistent with the
25 applicable provisions of the Metro Plan." Thus, the relevant legal question is
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Attachment B
1 whether the proposed zoning of the subject property is consistent with the
2 Metro Plan diagram.
3 In general, the evidence submitted below attempted to follow LUBA's
4 suggested approach, by first creating a map (which we refer to as a survey
5 map), at a scale of 1 inch equals 200 feet that depicts the subject property lines,
6 the urban growth boundary, city limits and the 30`h Avenue centerline. The 30th
7 Avenue centerline is located based on data from the Lane County Surveyor's
8 Office. The property boundary, city limits and urban growth boundary are
9 based on surveys. We understand the parties to agree that the subject property
10 lines, the urban growth boundary, city limits and the 30'' Avenue center line
11 are accurately depicted in relation to each other.
12 Next, the Metro Plan diagram is enlarged and scaled to 1 inch equals 200
13 feet (the enlarged Metro Plan diagram). The parties initially used the digital
14 version of the Metro Plan diagram. However, as explained below, the parties
1.5 later shifted to using enlarged scans of the official paper 2004 Metro Plan
16 diagram.'
' What we refer to as the "digital version" of the Metro Plan diagram is one
or more maps generated by a digital database maintained by the Lane County
Council of Governments (LCOG). All parties agree that maps generated from
the LCOG database are not officially adopted maps, and that the paper 2004
Metro Plan diagram is the relevant Metro Plan diagram for purposes of EC
9.8865(1). However, at oral argument, LHVC and Environ-Metal agreed that
there are no substantive differences relevant in this appeal between the features
depicted on the enlarged maps in the record based on the digital version of the
Metro Plan diagram and those based on the paper 2004 Metro Plan diagram.
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Attachment B
1 The final, and most difficult task, is to overlay the survey map (which
2 does not show the LDR/POS boundary) on the enlarged Metro Plan diagram
3 (which shows the LDR/POS boundary). We refer to such combined maps as
4 "overlaid diagrams." If the surveyed property boundaries matched up to any
5 features on the enlarged Metro Plan diagram, it would be relatively
6 straightforward to establish the location of the LDR/POS boundary on the
7 subject property, and hence the zoning boundary. However, in general the
8 surveyed property boundaries do not match up to any features on the enlarged
9 Metro Plan diagram. There are, however, several nearby features that can be
10 aligned with the other surveyed lines on the survey map. We refer to these
11 features depicted on the enlarged Metro Plan diagram as "referents."
12 Depending on how they are counted, in the area of the subject property there
13 are three to four referents that could be used to align the survey map onto the
14 enlarged Metro Plan diagram. Because all of the surveyed lines on the survey
15 map have an accurate relationship with each other, by matching up surveyed
16 lines and features located near the subject property, one can be reasonably
17 confident that the LDR/POS boundary is located as accurately as possible
18 within the boundaries of the surveyed property lines. One of the overlaid
19 diagrams is set out in an appendix to assist in understanding the relatively
The only apparent difference is greater fuzziness in the lines and boundaries
depicted on the paper 2004 Metro Plan diagram, compared to the crisper lines
and boundaries depicted on the digital version. In this opinion, all references
to the "2004 Metro Plan diagram" are to the official, paper version.
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Attachment B
1 complicated facts in this case. LUBA has modified the copy of the overlaid
2 diagram with text boxes to identify various features and survey lines.
3 Both Environ-Metal and LHVC submitted overlaid diagrams that differ
4 somewhat, and those differences are discussed in more detail below. In
5 general, Environ-Metal relied on only a single referent, matching the surveyed
6 centerline of East 30th Avenue with a portion of the black line representing East
7 30th Avenue depicted on the enlarged Metro Plan diagram. As noted, Environ-
8 Metal used a survey obtained from the county surveyor to locate the built
9 centerline of East 30th Avenue on the survey map, and attempted to align that
10 centerline, depicted as a thin green line on the survey map, with the thicker
11 black line that depicts East 30th on the enlarged Metro Plan diagram that
12 represents the paved portion of East 30`h Avenue. The resulting overlaid
13 diagram depicts the features shown on both maps. See Exhibit G, Record 1378
14 and the color copy at Oversize Exhibit RE-Z. As explained below, on Exhibit
15 G and all other Environ-Metal overlaid diagrams, the thin green line
16 representing the East 30th Avenue centerline (from the survey map) matches the
17 line showing the East 30th Avenue alignment from the enlarged Metro Plan
18 diagram where it is closest to the subject property, but where East 30th Avenue
19 curves west, those lines diverge.
20 LHVC submitted testimony and maps prepared by an engineer,
21 Schlieder, critiquing the proposed diagram at Exhibit G. Record 1071-91.
22 Schlieder noted that Exhibit G is apparently based not on the official paper
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Attachment B
1 version of the 2004 Metro Plan diagram, but on the unofficial digital version.
2 Schlieder presumably did not intend this to be a criticism in itself, because the
3 initial maps submitted by Schlieder were also based on the digital Metro Plan
4 diagram.
5 Substantively, Schlieder identified what we will call the "north arrow"
6 problem. In brief, Environ-Metal's surveyed map and enlarged Metro Plan
7 diagram were both oriented with true north to the top of the diagram.
8 However, Schlieder noted that the north arrow on the 2004 Metro Plan diagram
9 is tilted two degrees to the right relative to the top of the printed page,
10 apparently to reflect what is called "grid north," a convention reflecting the
11 difficulty of representing a portion of the round globe on a flat map. Schlieder
12 submitted diagrams showing that when the property boundaries are tilted two
13 degrees to match the north arrow on the 2004 Metro Plan diagram an additional
14 eight acres is subject to the POS designation.
15 Second, Schlieder noted that on Exhibit G the centerline of East 30"'
16 Avenue from the survey map diverges north of the thick black line representing
17 East 30th Avenue from the enlarged Metro Plan diagram at the point where East
18 30ffi Avenue curves west near its intersection with Spring Boulevard. Schlieder
19 calculated this divergence to represent approximately 124 feet on the ground at
20 the appropriate scale. Further, Schlieder took the position that the city limits
21 line from the survey map, as depicted on Exhibit G, is offset to the northwest
22 from its correct position, which according to Schlieder is actually located along
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Attachment B
1 the eastern boundary of Spring Boulevard, but Exhibit G depicts the city limits
2 line to the west of Spring Boulevard. Schlieder attributed these anomalies in
3 part to the north arrow problem, and in part to what LHVC calls the "sliding"
4 problem. Schlieder argued that Environ-Metals' single-referent, single-axis
5 approach allows the subject property lines to "slide" in a northwest direction
6 along the axis of East 30`x' Avenue, with the result that less land within the
7 subject property is subject to the POS designation. Schlieder calculated that
8 with the north arrow problem corrected, and the East 30t` Avenue centerline
9 and city limits lines placed to match the western curve of the East 30th Avenue
10 alignment and the eastern boundary of Spring Boulevard, approximately 40
11 acres of the subject property is subject to the POS designation, rather than the
12 20 acres advocated by Environ-Metal.
13 On September 2, 2015, city planning staff submitted a supplemental staff
14 memorandum that agreed with Schlieder that using additional physical
15 referents would more accurately align the property with the Metro Plan
16 diagram, and that a more accurate map would result if the property boundaries
17 are rotated to match the two-degree tilt of the north arrow on the Metro Plan
18 diagram. Record 195. Staff also argued that the hearings official should not
19 rely upon diagrams based on the unofficial digital Metro Plan diagram. Record
20 194.
21 On the same date, September 2, 2015, Environ-Metal submitted two
22 additional, alternative overlaid diagrams (Exhibit L and Exhibit M) to address
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Attachment B
1 the "north arrow" problem and - the criticism that Exhibit G is based on an
2 enlargement of the digital Metro Plan diagram. Record 201, 202 (see also
3 oversize color copies RE-K and RE-L). Both additional overlaid diagrams that
4 are Exhibits L and M are based on a scanned enlargement of the official paper
5 2004 Metro Plan diagram.
6 Overlaid diagrams Exhibit L and M omit the city limit lines and some of
7 the urban growth boundary lines from Environ-Metal's survey map, which
8 were included on overlaid diagram Exhibit G, leaving only the property
9 boundaries and the centerline of East 30th Avenue from the survey map.
10 Exhibit L rotates the property boundaries and centerline two degrees to the
11 right, to match the north arrow on the 2004 Metro Plan diagram. Because of
12 the long east-west axis of the subject property, the rotation adds approximately
13 eight acres to land subject to the POS designation. Exhibit M is not rotated,
14 and we understand Exhibit M to be consistent with Exhibit G. Environ-Metal
15 argued to the hearings official that the two-degree north arrow tilt on the Metro
16 Plan diagram is a scrivener's error, and that the hearings official should
17 determine the location of the property relative to the features on the enlarged
18 Metro Plan diagram, based on the unrotated "true north" Exhibit M over the
19 rotated "grid north" Exhibit L.
20 On the same date, Schlieder submitted a set of five new overlaid
21 diagrams, labeled LHVC Sheets 9/2/15-01 through -05. Record 188-92,
22 Oversize Exhibit RE-I. The most relevant in the present appeal is Sheet 9/2/15-
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Attachment B
1 04.2 Schlieder testified that Sheet 9/2/15-04 is an overlaid diagram using an
2 enlarged Metro Plan diagram based on the official paper 2004 Metro Plan
3 diagram. Sheet 9/2/15-04 purports to correct the "north arrow" problem and
4 the "sliding" problem identified in Schlieder's earlier testimony. Schlieder
5 argues that Sheet 9/2/15-04 overlays the surveyed lines shown on Environ-
6 Metal's survey map, including the East 30`h Avenue centerline and the city
7 limits, with the associated features on the enlarged Metro Plan diagram in a
8 manner that matches all referents more closely than any of Environ-Metal's
9 diagrams.
10 C. The Hearings Official's Decision
11 On September 24, 2015, the hearings official issued his decision that
12 essentially chose to rely on Environ-Metal's Exhibit L, the two-degree rotated
13 diagram. The hearings official rejected Environ-Metal's arguments that the
14 two-degree tilt to the north arrow on the 2004 Metro Plan diagram is a
15 scrivener's error.
16 With respect to the Schlieder overlaid diagrams submitted on September
17 2, 2015, LHVC Sheet 9/2/15-01 through -05, the hearings official stated that
2 Sheets 9/2/15-01 and -02 are based on Environ-Metals' scans of the digital
Metro Plan diagram. Sheet 9/2/15-03 is a scan of the official paper 2004 Metro
Plan diagram, at the scale of one inch equals 7,000 feet, overlaid by the
property boundaries. However, at that scale, the subject property is almost
indiscernible. Sheet 9/2/15-05 is based on the digital Metro plan map, and is
overlaid with tax lot information.
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Attachment B
1 Schlieder's arguments based on those diagrams were "compelling," and if the
2 question was where is the LDR/POS boundary located based on any available
3 information, he would likely agree. Record 148. However, the hearings
4 official concluded that he could not rely on LHVC Sheets 9/2/15-01 through -
5 05, because all were based on the digital Metro Plan diagram rather than the
6 official 2004 Metro Plan diagram. Id. Further, the hearings official noted that
7 Schlieder's arguments are based in part on city limit lines and tax lot
8 information, which are not features depicted on the official 2004 Metro Plan
9 diagram.
10 D. Appeal to the Planning Commission
11 LHVC appealed the hearings official's decision to the planning
12 commission. Environ-Metal moved to strike portions of the appeal that
13 included or referenced new evidence or raised new issues not raised before the
14 hearings official. LHVC submitted a revised appeal statement that the planning
15 commission accepted.
16 The planning commission conducted a hearing on the appeal and, on
17 October 29, 2015, issued its decision affirming and adopting the hearings
18 official's decision as its own. Because the planning commission adopted no
19 findings of its own, for clarity we refer to the city's decision as the hearings
20 official's decision.
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Attachment B
1 E. Environ-Metal's Appeal to LUBA
2 In LUBA No. 2015-092, Environ-Metal argues in a single assignment of
3 error that the hearings official erred in rotating the property boundary lines two
4 degrees to align with the two-degree skew in the north arrow printed on the
5 2004 Metro Plan diagram. According to Environ-Metal, the two-degree tilt to
6 the north arrow is a scrivener's error and was not intended to require that plan
7 designation and zoning boundaries should be determined based on a two-
8 degree tilt from true north. In essence, Environ-Metal argues that the hearings
9 official erred in adopting the rotated Exhibit L rather than the non-rotated
10 Exhibit M, as the basis for determining the LDR/POS boundary.
11 F. LHVC's Appeal to LUBA
12 In LUBA No. 2015-091, LHVC advances a single assignment of error
13 with three sub-assignments of error. First, LHVC argues that the hearings
14 official erred in rejecting Sheet 9/2/15-04, in the erroneous belief that that
15 overlaid diagram was not based on an enlargement of the official 2004 Metro
16 Plan diagram. Second, LHVC argues that the hearings official erred in
17 rejecting two other maps as sources of information to determine consistency
18 with the 2004 Metro Plan diagram. Third, LHVC argues that the hearings
19 official erred in determining the LDR/POS boundary based on Environ-Metal's
20 single-referent approach, rather than on the multiple-referent approach i
21 advocated by LhTVC. Environ-Metal presents waiver challenges to some of the f
22 issues presented in the second and third sub-assignments of error.
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Attachment B
1 With that introduction, we turn to the parties' arguments.
2 ASSIGNMENT OF ERROR (ENVIRON-METAL)
3 As noted, the hearings official concluded that because the 2004 Metro
4 Plan depicts a "grid north" arrow rotated two degrees to the right, the subject
5 property overlay and other overlays should also be rotated to match. Record
6 150. Environ-Metal assigns error to that conclusion, arguing that the use of a
7 grid north arrow instead of a true north arrow was a scrivener's error, and that
8 rotating the overlays to match the grid north arrow is therefore inconsistent
9 with the 2004 Metro Plan diagram.
10 Environ-Metal supports its argument that the rotated north arrow on the
11 2004 Metro Plan diagram was a scrivener's error by noting that no evidence
12 exists in the record to demonstrate that the governing bodies who adopted the
13 2004 Metro Plan diagram intended to adopt a grid north rather than true north
14 orientation for the diagram. Environ-Metal notes that the north arrow on
15 earlier versions of the Metro Plan diagram appear to have a true north
16 orientation, i. e., the north arrow points toward the top of the printed map.
17 According to Environ-Metal, if the governing bodies that adopted the Metro
18 Plan intended to change the orientation of the north arrow to grid north, there
19 would have been some mention of that intent in the legislative history. That is
20 because, Environ-Metal argues, adoption of grid north rather than true north
Page 15
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Attachment B
1
has weighty
implications.
According to Environ-Metal, if plan
designation
2
boundaries are based on
grid north rather than true north, the
result is a
3 significant change in the location of plan boundaries in areas, such as the
4 present one, where the plan is not parcel-specific and the property in question.
5 is subject to more than one plan designation. However, Environ-Metal argues,
6 the available legislative history is silent about the north arrow, from which
7 Environ-Metal concludes that there was no intentional decision to adopt a grid
8 north arrow. If so, Environ-Metal argues, the grid north arrow is a scrivener's
9 error that should be ignored. Environ-Metal argues that consistency with the
10 2004 Metro Plan requires orienting the property boundary and other overlays
11 with the understanding that the diagram itself is oriented to true north, i. e. north
12 is straight up to the top of the page on which the diagram is printed, which is
13 how Environ-Metal's preferred diagram, Exhibit M, is oriented.
14 LHVC responds, and we agree, that Environ-Metal has not demonstrated
15 that the hearings official erred in requiring that the overlays match the grid
16 north arrow. Environ-Metal's premise is that there is a mis-match between the
17 orientation of the north arrow and the orientation of the printed diagram itself.
18 However, Environ-Metal cites to no evidentiary or other support for that
19 premise. Environ-Metal is probably correct that if the governing bodies who
20 adopted the 2004 Metro Plan diagram intended to take the extraordinary and
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Attachment B
1 confusing step of orienting the diagram itself to the top of the printed page as
2 north but orienting the north arrow to grid north, there would likely be
3 something in the legislative history to explain that odd choice. The basic
4 function of the north arrow on a map is to indicate the orientation of the
5 features depicted on the map relative to the north pole. The simpler
6 explanation for legislative silence regarding the north arrow, as LHVC argues,
7 is that both the diagram itself and the north arrow are oriented toward grid
8 north. LHVC cites the Schlieder testimony to explain that the use of grid north
9 on the 2004 Metro Plan map was purposeful. Schlieder explained:
10 "The Oregon State Plane Coordinate System's central meridian is
11 located in Central Oregon. * * * [W]ith increasing distance
12 eastward and westward from the meridian, lines actually pointing
13 to True North are subject to increasing rotation toward the
14 meridian at their northern end and no longer run straight up and
15 down on the projection. * * * In the Eugene area, which is located
16 approximately 125 miles west of the meridian, the rotation
17 imparted by the projection is right around 2 degrees (clockwise)."
18 Record 881.
19 LHVC also argues that the grid north orientation of the 2004 Metro Plan
20 diagram can be seen by looking at the north-south streets on the diagram. In
21 older versions of the Metro Plan diagram that orient north toward the top of the
22 printed page, the north-south streets appear to be parallel to the side borders.
23 By contrast, on the 2004 Metro Plan diagram, the north-south streets appear to
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Attachment B
1 be slightly tilted to the right on the 2004 Metro Plan diagram, relative to the
2 side borders, to match the two-degree rotation of the north arrow.3
3 It is Environ-Metal's burden to demonstrate that the hearings official
4 erred in requiring that the overlays align to match the north arrow on the 2004
5 Metro Plan diagram. Environ-Metal has not done so. Environ-Metal relies
6 upon the questionable premise that on the 2004 Metro Plan diagram the north
7 arrow was accidentally rotated two degrees to grid north, while the body of the
8 diagram was oriented to reflect the top of the printed page as true north.
9 However, there is simply no evidence to support that premise. To the contrary,
10 the testimony and evidence in the record, while not conclusive, suggests that
11 both the north arrow and the features on the diagram are oriented to grid north.
12 Environ-Metal's assignment of error is denied.
3 The record helpfully includes Exhibit N (oversize exhibit RE-M), which
appears to support LHVC's position. Exhibit N provides side-by-side
comparisons of adopted Metro Plan diagrams from 1980, 1987, and 2004. The
adopted 1980 and 1987 Metro Plan diagrams have true north arrows pointing to
the top of the maps, and the north-south streets appear to align accordingly,
being parallel to the sides of the map. Record 203. In contrast, on the 2004
Metro Plan diagram the same north-south streets depicted on earlier diagrams
appear, to our untutored eye, to be rotated slightly to the right, relative to the
side borders, consistent with the two-degree tilt of the grid north arrow. Id.
Page 18
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Attachment B
1 ASSIGNMENT OF ERROR (LHVC)
2 A. First Sub-Assignment of Error
3 LHVC argues that the hearings official mistakenly assumed that the
4 LHVC Sheet 9/2/15-04, submitted on September 2, 2015, was based on an
5 enlargement of the digital Metro Plan diagram rather than an enlargement of
6 the official paper 2004 Metro Plan diagram.4 Due to this mistake, LHVC
4 The hearings official's decision states, in relevant part:
"LHVC produced maps showing much more POS designated lands
by using a version of the Metro Plan diagram obtained from
LCOG that are depicted in Exhibits 1-5 [Sheets 9/2/15-01 through
-05] to their letter of September 2, 2015. LHVC also uses tax lots
for other properties, city limits, and additional streets to generate
what it argues are more accurate maps than the applicant. LHVC'
materials were prepared in part by a certified engineering
geologist, and the arguments are compelling. In fact, if the
question were where the boundary is most likely located using any
available information, I would likely agree with [LHVC]. In
determining the boundary, however, we are all bound by the 2004
Metro Plan diagram. As staff's September 2, 2015 memorandum
explains, LHVC' used maps generated by LCOG from a digital
version that is different from the 2004 Metro Plan. Even though
the digitized version is likely more accurate than the 2004 Metro
Plan, even LCOG acknowledges that only the 2004 Metro Plan is
the official version of the diagram. Furthermore, city limits and
tax lots are not depicted on the 2004 Metro Plan diagram. So even
though LHVC' maps may be theoretically more accurate, they are
not more accurate for determining the boundary by using the 2004
Metro Plan diagram." Record 148.
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Attachment B
1 argues, the hearings official failed to consider Sheet 9/2/15-04. LHVC argues
2 that it raised this issue on appeal to the planning commission, but the planning
3 commission did not adopt findings addressing the issue, instead simply
4 adopting the hearings official's decision as its own, thus perpetuating the error.
5 Environ-Metal responds that the hearings official correctly concluded
6 that none of the diagrams Schlieder submitted on September 2, 2015, including
7 Sheet 9/2/15-04, are based on enlargements of the 2004 Metro Plan diagram.
8 However, Environ-Metal offers no basis for that assertion. Schlieder stated in
9 his testimony, to which he imprinted his seal as an engineer, that Sheets 9/2/15-
10 03 and -04 are based on the 2004 Metro Plan diagram instead of the digital
11 version. Record 185-86. As far as we can tell from comparing the various
12 maps in the record, that statement is correct. Sheet 9/2/15-04 appears to have
13 the same fuzzier lines and boundaries of the enlargement of the paper 2004
14 Metro Plan diagram that Environ-Metal's Exhibits L and M show, rather than
15 the crisper lines and boundaries of maps based on an enlargement of the digital
16 Metro Plan diagram.
17 Environ-Metal next argues that LHVC has the burden of demonstrating
18 that the hearings official did not, in fact, consider Sheet 9/2/15-04. Environ-
19 Metal notes that at the beginning of his decision, under the heading
20 "Documents Considered by the Hearings Official," the hearings official stated
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Attachment B
1 that "I have considered all of the documents in the planning file for the
2 proposed zone change, (Z 15-5) as well as the testimony and documents
3' provided at the public hearing and the evidence submitted during the open
4 record period." Record 145. Environ-Metal argues that this declaration
5 establishes that the hearings official considered all of Schlieder's submissions,
6 including Sheet 9/2/15-04.
7 The hearings official certainly considered Sheets 9/2/15-01 through -05
8 in the sense that he must have viewed them. However, based on the findings
9 quoted at n 4, it is clear that the hearings official believed he could not apply or
10 rely on Schlieder's September 2, 2015 maps, in order to determine the location
11 of the LDR/POS boundary, in part because the hearings official understood that
12 all five sheets were based on the digital Metro Plan diagram. We disagree with
13 Environ-Metal that the hearings official's declaration of documents considered
14 is sufficient to establish that the hearings official in fact considered Sheet
15 9/2/15-04 for its potential significance in resolving the question before the
16 hearings official: whether the proposed alignment of the property boundaries,
17 and hence the location of the LDR/POS boundary, is consistent with the 2004
18 Metro Plan diagram, as required by EC 9.8865(1). The hearings official
19 expressly declined to consider Schlieder's September 2, 2015 maps, including
20 Sheet 9/2/15-04, for that purpose, under the impression that all of the maps
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Attachment B
1 were disqualified from consideration for that purpose, because they were based
2 on the digital rather than paper Metro Plan diagram. As explained above, that
3 impression is only partially correct: Sheets 9/2/15-03 and -04 are based on
4 scans of the paper 2004 Metro Plan diagram.
5 In sum, we agree with LHVC that remand is necessary for the planning
6 commission or hearings official to consider Sheet 9/2/15-04 free of the
7 mistaken assumption that it is based on the digital Metro Plan diagram, and
8 adopt any necessary findings based on that consideration. We do not mean to
9 suggest that the city may not choose to consider or to rely on Sheet 9/2/15-04
10 for other reasons that are explained in its findings on remand. However, the
11 city erred in declining to consider Sheet 9/2/15-04 for the reason cited.
12 As explained below, consideration of Sheet 9/2/15-04 on remand will
13 likely be shaped by our resolution of the third sub-assignment of error, which
14 concerns whether the city must consider additional referents, and which ones,
15 in determining whether the proposed zoning is consistent with the 2004 Metro
16 Plan diagram
17 The first sub-assignment of error is sustained.
18 B. Second Sub-Assignment of Error
19 LHVC argues that the hearings official erred in refusing to consider
20 other maps, in determining whether the proposed zone change is consistent
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Attachment B
1 with the 2004 Metro Plan diagram. Specifically, LHVC argues that the
2 hearings official erred in rejecting consideration of (1) various overlaid
3 diagrams based on enlargements of the unofficial digital version of the Metro
4 Plan diagram, and (2) Sheet SA 7.0, which is a overlaid diagram that Environ-
5 Metal introduced in the first proceeding that led to Environ-Metal Properties,
6 LLC.S
7 Environ-Metal responds in part that no issues were raised during the
8 local appeal of the hearings official's decision to the planning commission
9 regarding whether the hearings official erred in rejecting consideration of maps
10 based on the digital Metro Plan diagram, or regarding Sheet SA 7.0, and thus
11 the arguments raised in the second sub-assignment of error are waived.
12 Although Environ-Metal does not cite the source of its waiver argument, we
13 understand Environ-Metal to refer to the "exhaustion-waiver" principle
14 articulated in Miles v. City of Florence, 190 Or App 500, 79 P3d 382 (2003) (to
15 preserve an issue before LUBA where the local appeal regulations require
16 specification of issues, the issue must have been specified in the local appeal).
17 As noted, the planning commission granted a motion to strike with
18 respect to portions of the original October 6, 2015 appeal statement, and
5 According to LHVC, Sheet SA 7.0 shows approximately 40 acres of the
subject property subject to the POS designation, consistent with LHVC'
position, rather than the 20 acres advocated by Environ-Metal in the
proceedings leading to this appeal.
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Attachment B
1 accepted a redacted version of that original appeal statement. In addition, the
2 planning commission allowed LHVC to submit a revised appeal statement
3 dated October 12, 2015, which we understand reflects most of the redactions in
4 the original. Record 63-71.
5 With respect to Sheet SA 7.0, in its reply brief, LHVC does not identify
6 any place in either the original redacted or the revised appeal statement
7 accepted by the planning commission that mentions Sheet SA 7.0.
8 Accordingly, we agree with Environ-Metal that under Miles issues regarding
9 Sheet SA 7.0 cannot be raised in this appeal.
10 With respect to whether the hearings official erred in rejecting
11 consideration of overlaid diagrams based on enlargements of the digital Metro
12 Plan diagram, LHVC argues that this issue was adequately raised in the revised
13 appeal statement, which refers to several maps attached to the appeal statement
14 that are based on the digital version of the Metro Plan diagram.
15 While the revised appeal statement discusses several overlaid diagrams
16 attached to the revised appeal statement that are based on enlargements of the
17 digital Metro Plan diagram, that discussion is in service of Appeal issue No. 1,
18 which concerns one of the issues raised in the third sub-assignment of error.
19 Appeal issue No. 1 concerns arguments that the hearings official should have
20 considered the city limits line depicted on several maps in the record as one of
21 the referents to determine whether the proposed zoning is consistent with the
22 2004 Metro Plan diagram. Record 64. Appeal issue No. 1 does not raise, at
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Attachment B
1 least expressly, the different issue raised in the second sub-assignment of error,
2 that the hearings official erred in rejecting consideration of maps based on
3 enlargements of the digital Metro plan diagram. The digital Metro plan
4 diagram does not depict or include the city limits line, although several
5 overlaid diagrams prepared by the applicant and opponents that are based on
6 enlargements of the digital Metro plan diagram show the city limits.
7 Accordingly, we agree with Environ-Metal that the issue of whether the
8 hearings official erred in rejecting consideration of maps based on
9 enlargements of the digital Metro plan diagram was not raised in the local
10 appeal statement, and is therefore not an issue that can be raised before LUBA,
11 pursuant to Miles.
12 The second sub-assignment of error is denied.
13 C. Third Sub-Assignment of Error
14 Under the third sub-assignment of error, LHVC argues that the planning
15 commission erred in affirming the hearings official's acceptance of the
16 applicant's "single-referent" approach, and in failing to adopt findings
17 regarding the issue of "sliding" and the failure to use multiple referents such as
18 Spring Boulevard, the city limits line, and what LHVC refers to as the "green
19 finger.i6
6 The green finger is a thin rectangle of land designated POS depicted on the
enlarged Metro Plan diagram, which is located north of the intersection of East
30th Avenue and Spring Boulevard, and which is oriented in a north-south
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Attachment B
1 The issues raised under the third sub-assignment of error intersect with
2 our resolution of the first sub-assignment of error. As explained, the hearings
3 official failed to recognize that overlaid diagram Sheet 9/2/15-04 is based on an
4 enlargement of the paper Metro Plan diagram, and therefore did not consider
5 Sheet 9/2/15-04 for its proffered purpose. We concluded that remand is
6 necessary for the city to consider Sheet 9/2/15-04. Sheet 9/2/15-04 represents
7 what can fairly be characterized as a multiple-referent approach, compared to
8 the diagrams submitted by Environ-Metal, which attempt to match only a single
9 referent, a portion of East 30th Avenue. Therefore resolution of the arguments
10 under the third sub-assignment of error have significance for the proceedings
11 on remand.
12 1. Multiple Referents versus Single Referent
13 We understand Ll-1VC to contend that the single-referent, single-axis
14 approach accepted by the hearings official is an inferior and less reliable
15 approach, compared to the multiple-referent, multiple-axis approach advocated
16 by Schlieder, because the single-referent approach allows "sliding" of the
17 property boundaries along the single-axis, while a multiple-referent, multiple-
direction. We understand that the green finger, on the ground, is a public trail
or pathway that runs north and south. The significance of the green finger is
tied to the significance of the city limits line, because according to LHVC a
portion of the city limits line runs down the eastern boundary of the green
finger. The green finger is displayed on the diagram that is attached to this
opinion.
Page 26
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Attachment B
1 axis approach provides a more accurate and reliable fix that is more likely to
2 result in an overlaid diagram that is consistent with the 2004 Metro Plan
3 diagram. LHVC argued in its appeal to the planning commission that "[u]sing
4 a single referent when multiple referents are available is not reasonable."
5 Record 64. However, LHVC argues the planning commission did not adopt
6 findings addressing this issue.7
7 Environ-Metal responds that LHVC has not identified any legal
8 requirement that multiple referents be used, or that require a minimum or
9 reasonable number of referents. According to Environ-Metal, the hearings
10 official relied upon the referent that is closest to the subject property, the black
11 line depicting the stretch of East 30`h Avenue that runs parallel to the subject
12 property's southwestern border at a distance of approximately 200 to 250 feet,
13 which the hearings official found to be the most proximate, and hence most
14 reliable referent. Environ-Metal argues that all of the referents that LHVC
15 argues should be used are further away from the subject property, and therefore
7 Appeal Issue No. 2 stated, in relevant part:
"The Hearings Official erred by allowing the applicant to use 30`h
Avenue as the sole referent to locate their property on the 2004
Metro Plan diagram as seen on their map * * [W]ithout the use
of another referent the applicant could align their property
anywhere along the approximately 1500 foot NW segment of 30`h
Avenue adjacent to the applicant's property. * * * Using a single
referent when multiple referents are available is not reasonable."
Record 64.
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Attachment B
1 presumably less reliable. Environ-Metal contends that trying to match other
2 referents would simply water down the accuracy of the analysis.
3 While Environ-Metal is correct that there is no legal requirement to use
4 multiple referents to answer the question posed by EC 9.8865(1), we generally
5 agree with LHVC that, unless there is some reason to question the accuracy of
6 referents, a multi-referent approach is likely to produce a more accurate and
7 reliable result, compared to the single-referent approach advocated by Environ-
8 Metal and accepted by the hearings official.
9 The question posed under EC 9.8865(1) is whether the proposed zoning
10 is consistent with the 2004 Metro Plan diagram. Due to the exceedingly small
11 scale and other limitations of the 2004 Metro Plan diagram, determining
12 whether proposed zoning is consistent with the diagram means, as a practical
13 matter, attempting to match or line up surveyed features or lines with features
14 or lines depicted on the 2004 enlarged Metro Plan diagram. As explained
15 above, because the property boundaries depicted on Environ-Metal's survey
16 map do not directly overlay any features or lines depicted on the enlarged
17 Metro Plan diagram,8 the city and all parties recognized the necessity to match
a Actually, that is not quite true. The southern boundary of the subject
property corresponds to the urban growth boundary line, a line which was first
surveyed in 2005. The UGB line in this area runs along a ridgeline, and that
line bears a strong correlation in shape to a series of black dashes on the 2004
Metro Plan diagram that represents the approximate location of the UGB along
that same ridgeline, although in 2004 the exact location of the UGB had not
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Attachment B
1 lines or features depicted on the survey map that are located some distance
2 from the property with lines or features shown on the enlarged Metro Plan
3 diagram that are also located some distance from the property. Because
4 surveyed lines, such as the property boundaries, the UGB line, the East 30th
5 Avenue centerline, and the city limits line, have a determinable spatial
6 relationship with each other, if those surveyed lines are overlaid and matched
7 with available referents depicted on the enlarged Metro Plan diagram, one can
8 then determine how much of the subject property is subject to the POS
9 designation.
10 Environ-Metal argues that matching up with a portion of only one
11 referent, the portion of the black line on the enlarged Metro Plan diagram
12 representing East 30th Avenue that is closest to the subject property, is a
13 sufficient basis to determine with reasonable accuracy how much of the subject
14 property is subject to the POS designation. If that portion of East 30th Avenue
15 were the only available referent, we would likely agree. However, as LHVC
16 argues, the portion of East 30th Avenue closest to the subject property is mostly
17 a straight line running along a northwest-southeast axis. If the surveyed
18 centerline is matched only to this straight portion of East 30th Avenue, and not
been surveyed or established. However, on appeal no party attaches any
significance to whether and how well the surveyed property/UGB lines on the
maps offered by Environ-Metal and LHVC match up with the black rectangular
blobs that represent the UGB line on the 2004 Metro Plan diagram, and we
consider that question no further.
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Attachment B
1 fixed in place by a second reference point or reference axis, then it can "slide"
2 unhindered to the northwest or southeast for at least a short distance, which
3 reduces the accuracy and reliability of the ultimate determination of
4 consistency with the 2004 Metro Plan diagram and the location of the
5 LDR/POS boundary. If any other referent point or line is available in the area,
6 then matching up to both that referent and the portion of East 30t' Avenue
7 closest to the subject property, if possible, should improve the accuracy and
8 reliability of the consistency determination.
9 Accordingly, we agree with LHVC, at least in the abstract, that a multi-
10 referent, multi-axis approach is likely to produce a more accurate and reliable
11 result than a single-referent, single-axis approach. In our view, if multiple
12 referents are available, a reasonable decision maker would at least consider the
13 "fit" provided by multiple referents, and would not limit consideration to the fit
14 provided by a single-referent, single-axis approach.
15 As discussed below, the parties dispute whether other referents are
16 available or reliable. There appear to be two main disputes: whether the
17 hearings official should have considered (1) the fit provided by matching the
18 survey map and enlarged Metro Plan diagram depictions of the portion of East
19 3Wh Avenue that curves to the west near its intersection with Spring Boulevard,
20 and (2) matching the city limits line from the survey map with the east
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Attachment B
1 boundary of Spring Boulevard and the "green finger" shown on enlarged Metro
2 Plan diagram.9 We turn to those arguments.
3 2. The Western Curve of East 30th Avenue
4 As explained above, Environ-Metal's overlaid diagram Exhibit G
5 matched the East 30th Avenue centerline from the survey map with the black
6 line on the enlarged Metro Plan diagram depicting East 30th Avenue where the
7 latter is closest to the subject property, but the two lines depicting East 30th
8 Avenue from the survey map and enlarged Metro diagram diverge in the
9 westem curve of East 30th Avenue. The same divergence is seen on overlaid
10 diagram Exhibit L, the map ultimately adopted by the hearing official.
11 Schlieder argued to the hearings official that this divergence is evidence that
12 the overlaid survey lines had been slid too far to the northwest, thus creating
13 the divergence
14 The hearings official rejected that argument:
15 "LHVC also takes issue with how the applicant aligned East 30th
16 Avenue with the subject property. According to LHVC, aligning
17 the location of East 30`h Avenue on the map of the property with
18 East 30th Avenue on the 2004 Metro Plan diagram results in the
19 two depictions of East 30`h Avenue diverging from each other,
20 particularly the farther you get from the property. LHVC
21 attempted to align East 30`h Avenue differently to show more POS
22 plan designation for the property. The 2004 Metro Plan diagram is
9 To the extent LHVC argues about other potential referents, those
arguments are not sufficiently developed for review.
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Attachment B
1 a generalized map. When it is scaled up to match metes and
2 bounds descriptions of individual parcels there will almost always
3 be discrepancies. No matter where you align East 30th Avenue, the
4 farther you get from the alignment the more the maps will diverge.
5 It. seems reasonable to me to align East 30th Avenue along the
6 property line as the applicant did. That method seems more likely
7 to be more accurate in the vicinity of the property than aligning
8 East 30th Avenue farther away from the property. Therefore, I
9 agree with the applicant that it properly used East 30"' Avenue as a
10 referent." Record 9-10 (footnote omitted).
11 The foregoing finding seems to presume that it is an either/or choice: either
12 match the centerline with the East 30th Avenue alignment close to the property
13 or match the centerline with the alignment further from the property, where it
14 curves west. The hearings official did not appear to consider the possibility
15 that the surveyed centerline can be aligned with East 30th Avenue both where it
16 is closest to the subject property, and where it curves west near its intersection
17 with Spring Boulevard. As explained above, given the inherent uncertainty of
18 a single-referent, single-axis approach, an alignment that matches multiple
19 linear referents, particularly those on a different axis that intersect the first axis
20 at angles, is likely to provide a more accurate and reliable fix. Because the
21 western curve of East 30th Avenue is at an angle to the relatively straight
22 portion of East 30th Avenue closest to the subject property, matching the
23 centerline to the western curve provides an additional referent that acts as a
24 second axis to the main axis provided by the portion of East 30th Avenue
25 closest to the property.
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Attachment B
1 As noted, LHVC overlaid diagram Sheet 9/2/15-04 appears to depict an
2 alignment that matches East 30th Avenue along its entire length, both where it
3 is closest to the subject property and where it curves to the west. However, the
4 hearings official did not consider Sheet 9/2/15-04, in the mistaken impression
5 that it was not based on the 2004 Metro Plan diagram.
6 Environ-Metal argues that choosing the "fit" of the East 30th Avenue
7 centerline with the black line representing East 30th Avenue on the 2004 Metro
8 Plan diagram has a fact-finding quality to it to which LUBA should defer, if
9 that judgment is supported by substantial evidence. However, in our view,
10 choosing the alignment that is consistent with the Metro Plan diagram is a
11 mixed question of law and fact. Choosing which referents to rely upon is
12 fundamentally an interpretation of the 2004 Metro Plan diagram, and thus a
13 matter of construing the law. We agree with Environ-Metal that, once the
14 relevant referents have been determined, the hearings official's choice between
15 competing diagrams showing different alignments of surveyed lines with the
16 same set of referents would be an evidentiary call, which LUBA must affirm if
17 based on substantial evidence, i.e. evidence that a reasonable person would rely
18 on in reaching a decision. Younger v. Portland, 305 Or 346, 358-60, 752 P2d
19 262 (1988). However, the hearings official never had the opportunity to make
20 such a choice with respect to East 30th Avenue, in part because he had
21 eliminated from consideration all maps he believed were not based on the 2004
22 Metro Plan diagram, including Sheet 9/2/15/-04. He believed, erroneously, that
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Attachment B
1 only the two final overlaid diagrams Environ-Metal submitted, Exhibits L and
2 M, were based on enlargements of the paper Metro Plan diagram.
3 For the reasons stated in the first sub-assignment of error, remand is
4 necessary for the hearings official to consider Sheet 9/2/15-04 free of the
5 erroneous impression that it is based on an enlargement of the digital Metro
6 Plan diagram. Unless there is some other reason not to consider Sheet 9/2/15-
7 04, for the reasons stated above the hearings official on remand should make an
8 evidentiary choice between Exhibit L and Sheet 9/2/15-04 with respect to the
9 matchup between the surveyed centerline and the black line representing East
10 30th Avenue. We do not mean to suggest that the hearings official cannot
11 ultimately conclude, as an evidentiary matter, that the matchup between the
12 centerline and the black line that is depicted on Exhibit L is more consistent
13 with the 2004 Metro Plan diagram than matchup depicted on Sheet 9/2/15-04,
14 based on findings that explain the basis for that conclusion. However, the
15 hearings officer must resolve that question in the first instance.
16 3. City Limits Line/Green Finger/Spring Boulevard
17 One reason why the hearings official declined to consider Schlieder's
18 overlaid diagrams submitted on September 2, 2015, is that the overlaid
19 diagrams depicted the city limits line from Environ-Metal's survey map, and
20 attempted to match the city limits line with the eastern boundary of Spring
21 Boulevard and the eastern edge of the green finger. The hearings official
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Attachment B
1 concluded that the city limits line could not be considered, because it was "not
2 depicted on the Metro Plan diagram." Record 9.
3 LHVC argues that the hearings official erred in refusing to consider the
4 city limits line, because while not depicted on the enlarged Metro Plan
5 diagram, the city limits line in this area is a surveyed line that can be accurately
6 located along the boundaries of two features that are depicted on the enlarged
7 Metro Plan diagram: Spring Boulevard and the so-called "green finger."
8 According to undisputed testimony in the record, the city limits line is located
9 along the eastern boundary of Spring Boulevard, and borders the eastern and
10 northern boundary of a portion of the green finger, the base of which forms an
11 `2" shape. However, LHVC argues that Environ-Metal's overlaid diagram
12 Exhibit G, offsets the city limits line from its survey map to the northwest, so
13 that the line is located west of Spring Boulevard and west of the green finger
14 from the enlarged Metro Plan diagram. By contrast, LHVC argues, Schlieder's
15 maps, including overlaid diagram Sheet 9/2/15-04, locate the property
16 boundaries consistently with all referents, including the matchups between the
17 city limits line, Spring Boulevard, and the green finger, including the "L" shape
18 formed by its base. According to LHVC, the hearings official erred in failing
19 to consider matching the city limits line to Spring Boulevard and the green
20 finger as additional referents.
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Attachment B
1 a. Waiver
2 Initially, Environ-Metal argues that no issues regarding the city limits
3 line depicted on several maps in the record were raised in the unredacted
4 portions of the original appeal statement filed October 6, 2015, and therefore
5 any issues regarding the city limits were waived in this appeal, under Miles.
6 Environ-Metal notes that, although the revised appeal statement raises issues
7 regarding the city limits line, the revised appeal statement was submitted after
8 the deadline for filing the local appeal. According to Environ-Metal, LHVC
9 may not rely upon the issues raised in the untimely filed revised appeal
10 statement to avoid waiver under Miles, but can only rely upon issues raised in
11 the unredacted portions of the timely filed original appeal statement. Because
12 all mention of the city limits issue was redacted from the original, timely filed,
13 appeal statement, Environ-Metal argues, no issues regarding city limits can be
14 raised in the present appeal.
15 We assume without deciding that Environ-Metal is correct that issues
16 raised in a revised appeal statement filed after the deadline for filing the local
17 appeal cannot survive to reach LUBA under Males, although Environ-Metal
18 cites no authority for that proposition. However, even under that assumption,
19 we disagree with Environ-Metal that issues regarding use of the city limits line
20 were waived in this case.
21 The process by which the planning commission accepted the redactions
22 proposed by Environ-Metal in the original appeal statement (which redacts all
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Attachment B
1 mention of the city limits), while also accepting the revised appeal statement
2 (which includes the city limits issue redacted from the original appeal
3 statement), is too complicated to relate in detail. But based on the partial
4 transcript of the planning commission proceeding provided by Environ-Metal,
5 it is reasonably clear that the planning commission concluded that the issues
6 raised in the original appeal statement regarding the city limits line were
7 properly before them. The planning commission chose to implement that
8 conclusion by accepting both the redacted and revised appeal statements. The
9 revised appeal statement effectively restored the redactions that concern the
10 city limits issue. Because that issue was raised in the original timely filed
11 appeal statement, Environ-Metal's arguments provide no basis to find that the
12 issue is waived under Miles.
13 b. Matching the surveyed city limits line to Spring
14 Boulevard and the Green Finger is an appropriate
15 referent
16 On the merits, we agree with LHVC that the hearings official erred in
17 declining to consider evidence regarding the matchup between the surveyed
18 city limits line and Spring Boulevard and the green finger. While the city
19 limits line is not depicted on the enlarged Metro Plan diagram, neither is the
20 centerline of East 30th Avenue on which Environ-Metal exclusively relies.
21 Both the city limits and center line are surveyed, and there is no dispute that the
22 depiction of their location and relationship on the survey map is accurate. Both
23 the centerline and the city limit line bear close physical relationships to features
Page 37
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Attachment B
1 depicted on the 2004 Metro Plan diagram: the survey map centerline to the
2 enlarged Metro Plan diagram black line depicting East 30th Avenue, and the
3 survey map city limits line to the boundaries of Spring Boulevard and the green
4 finger. If there is some reason to regard the centerline matchup as a reliable
5 referent, while regarding the city limits line matchup as an unreliable referent,
6 neither the hearings official nor Environ-Metal identify it. Like the western
7 curve of East 30th Avenue, the city limits line is positioned at various angles to
8 the portion of East 30th Avenue that Environ-Metal relies upon as its sole
9 referent, and thus the city limits line matchup acts as an additional referent to
10 check the accuracy of Environ-Metal's preferred location of the match between
11 the survey map and the enlarged Metro Plan diagram.
12 In sum, we agree with LHVC that on remand the hearings official should
13 give appropriate evidentiary consideration to referents provided by the matchup
14 between the city limits line, and the depicted boundaries of Spring Boulevard
15 and the green finger, in determining whether the proposed zoning is consistent
16 with the 2004 Metro Plan diagram.
17 LHVC's third sub-assignment of error is sustained.
18 LHVC's assignment of error is sustained, in part.
19 The city's decision is remanded.
20 Holstun, Board Member, concurring.
21 It is difficult to understand why, 12 years after the 2004 Metro Plan
22 diagram was adopted, the plan designations for properties that are subject to
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Attachment B
1 that Metro Plan diagram, and therefore the zoning, must ultimately be
2 determined by enlarging that Metro Plan diagram by a factor of 35 and then
3 trying to align that enlarged Metro Plan diagram on a map that is drawn at a
4 usable scale. Any imperfections or inaccuracies in the relative positions of
5 features shown on that Metro Plan diagram will be greatly magnified in that
6 enlargement process and the effort to match the enlarged Metro Plan diagram
7 with an accurate, usable-scale map is an inherently imprecise and subj ective
8 exercise no matter how one tries to dress the process up with indicia of
9 precision. But until the Metro Plan jurisdictions prepare and adopt the Metro
10 Plan diagram at a usable scale, an exercise like the one in this case is
11 unfortunately unavoidable.
12 Notwithstanding the inherent imprecision of the required process to
13 determine the location of the Metro Plan designations on the property, I agree
14 with the majority that the hearings official's choice to rely on a overlaid
15 diagram that matches only one referent (the nearby East 30'h Avenue
16 centerline) when an overlaid diagram that matches that referent and three
17 additional referents (the East 30th curve, the East 30th'/Spring Boulevard
18 intersection, and the green finger) is inadequately explained in the decision on
19 appeal. In particular, the hearings official does not appear to have appreciated
20 that an overlaid diagram based on an enlargement of the official Metro Plan
21 diagram that matches four referents was available. The hearings official's
22 rejection of some other overlaid diagrams can be read to suggest that the
Page 39
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Attachment B
1 hearings official may have believed those other three referents are too far from
2 the subject property to be reliable. However, they are not that much further
3 from the property than the single referent the hearings official ultimately relied
4 on. Relying on a single referent approach, when a seemingly more accurate
5 approach that matches that referent and three other nearby referents is
6 available, needs a better explanation, if there is one.
Page 40
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HO Agenda - Page 2
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Attachment B
Certificate of Mailing
I hereby certify that I served the foregoing Final Opinion and Order for LUBA No. 2015-
091/092 on March 11, 2016, by mailing to said parties or their attorney a true copy thereof
contained in a sealed envelope with postage prepaid addressed to said parties or their attorney
as follows:
Anne C. Davies
Assistant City Attorney
City of Eugene
125 E 8th Avenue
Eugene, OR 97401
Nick Klingensmith
Law Office of Bill Kloos PC
375 W. 4th Street Suite 204
Eugene, OR 97401
Sean T. Malone
Attorney at Law
259 E. 5th Avenue, Suite 200-G
Eugene, OR 97401
Dated this 11th day of March, 2016.
Kelly Burgess Kristi Se e
Paralegal Executive Support Specialist
i
RECEIVED
MAR 15 '2016
HO Agenda - Page ~4
Attachment C
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SUBJECT PROPERTY
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RtAP 107.10-00 LOTS 701 l 707
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Attachment D
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ZONE CHANGE: METRO PLAN
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DIAGRAM ON SUBJECT PROP.
LAURELRIDGE
MAP 1P-03-10-00, 1 OfS 701 X. 703
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HO Agenda - Page 56