Hearings Official Public Hearings

AGENDA Meeting Location: Phone: 541-682-5377 Atrium Building – Sloat Room www.eugene-or.gov/hearingsofficial th 99 West 10 Avenue The Eugene Hearings Official welcomes your interest in this agenda item. 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, February 12, 2014 (5:00 p.m.) I. PUBLIC HEARING ON APPEAL OF PLANNING DIRECTOR’S DECISION Willamette Oaks Phase V (MDA 13-2) Assessors Map: 17-04-24-10 Tax Lot: 1701 and 1702 Decision: Final Planned Unit Development modification to extend the approved time schedule Appellant: Michael Robinson, Perkins Coie, LLC. for Goodpasture Partners LLC Lead City Staff: Becky Taylor, Associate Planner Telephone: (541) 682-5437 E-mail: becky.g.taylor@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 interested persons who neither are proponents nor opponents of the proposal. 4. Public testimony from those in opposition to application. 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 15 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.  Atrium Building 99 west 10th Avenue Eugene, Oregon 97401 Phone: 541-682-5377 Fax: 541-682-5572 www.eugene-or.gov/planning ____________________________________________________________________________________ MEMORANDUM Date: February 4, 2014 To: Ken Helm, Hearings Official From: Gabe Flock and Becky Taylor, City of Eugene Planning Division Subject: Appeal of PUD Modification for Willamette Oaks Retirement Center (MDA 13-2) __________________________________________________________________________________ Background The subject appeal pertains to the Planning Director’s approval of a modification to a PUD for extension of the construction timeline. The PUD was originally approved in 1986 (see PD 86-1). Between the original approval and the subject modification, the PUD has been modified several times (see MD 89-18, MDA 00-6, MDA 00-15, MDA 03-11, and MDA 07-1), primarily to provide timeline extensions to the construction schedule. Phase V is the remaining portion of the PUD to be developed and is the subject of the present appeal. With regard to timing, the Final PUD (same file number as the tentative stage, PD 86-1) required the following as a condition of approval: A specific schedule indicating number of phases, construction to be completed during each phase, and time period of each phase, must be submitted by the applicant. Absent an approved schedule as specified, and per Eugene Code 9.510(4), the applicant shall be required to obtain all approvals for necessary building permits within one year of the decision date of this final approval of Phase V development. The final executed PUD agreement shall further specify the time schedule by which all construction shall be completed. The PUD performance agreement for Phase V was executed in 1997, which satisfied this condition and established the construction schedule for commencement by April 15, 1999, and completion by September 17, 2001. The time schedule for construction of Phase V was then subsequently extended by several additional modifications, each of which was approved by the City. The PUD approval was also extended by Ordinance No. 20440, passed in 2009, which further extended those dates to August 1, 2013 and August 1, 2014 respectively. The applicant filed another request (MDA 13-2) for modification to extend the timeline on July 31, 2013, which is the subject of the present appeal. On December 20, 2013, the Planning Director granted modification approval to extend the timeline for Phase V to June 9, 2014, with completion of construction by June 9, 2015. _____________________________________________________________________________________________________________ Willamette Oaks Appeal (MDA 13-2) February 2014 Page 1 HO Agenda - Page 1 For background, staff notes that the Planning Director initially denied the timeline extension requested by the applicant in 2000 (MDA 00-6), which was reversed by the Hearings Official (HO) on appeal. The Planning Director’s denial was primarily based on a determination that the modification would not remain consistent with the applicable permit criteria because pertinent code standards had changed since the PUD was originally approved. The intent of the denial was to “prevent continued, multiple extensions” to the schedule for completing the PUD based on significant changes to the land use code, and the significant time that had elapsed since the original PUD was approved and public notice of the proposal was provided. In that appeal, the HO’s reversal of the Planning Director’s decision includes several important determinations that are worth noting as context in the present appeal. Perhaps most importantly, and one that the City firmly agrees with to this day, is that the terms of the PUD agreement are not a condition of approval under which the modification request is to be evaluated. In essence, the executed performance agreement is a contract between the developer and the City that formalizes the terms of certain land use approvals issued under the land use code. It is the code that dictates the approval criteria and standards relating to expiration, and the agreement simply memorializes those code provisions as applied to a given land use approval. The HO also concluded that the Planning Director’s denial was based on discretion and reasoning outside the scope of the approval criteria with regard to preventing multiple extensions. She found that those concerns would need to be addressed legislatively through code amendments and could not be resolved through a modification request. Staff notes that no such amendments have occurred with respect to limiting the overall number of such PUD modifications, or the amount of time that may be requested. It is also notable the HO’s determinations in MDA 00-6 were made in the context of applying code provisions in effect at the time, prior to the City’s Land Use Code Update in 2001 which did change the process and approval criteria for modifications to existing land use approvals. Essentially, those code amendments in 2001 eliminated the distinction between major and minor modifications, and changed the criteria for all modifications to eliminate the provision requiring that they “remain consistent with all applicable permit criteria”. As addressed in the Planning Director’s decision here, under the current code provisions and Type II procedures for considering the present modification request, the only applicable approval criteria are found at Eugene Code (EC) 9.8370(1) and (2). These are the “corresponding provision(s) of any future such law” mentioned in the time schedule of the original PUD agreement, which replaced the old code modification provisions. Those code amendments did not include any provisions that would limit an applicant’s ability to further extend an approval timeline; as noted previously, no such amendments have occurred since this issue was addressed by the HO in MDA 00-6. Notice and Appeal On December 24, 2013, notice of the decision granting the modification approval (MDA 13-2) was provided in accordance with the Type II application procedures at EC 9.7220. On January 6, 2014, Michael Robinson filed an appeal of the Planning Director’s decision on behalf of Goodpasture Partners, LLC, which owns adjacent property. _____________________________________________________________________________________________________________ Willamette Oaks Appeal (MDA 13-2) February 2014 Page 2 HO Agenda - Page 2 The appellant argues that the Planning Director “improperly approved the construction time extension request.” The appellant asserts that they will be adversely affected by the development of the “outdated PUD, which originally received tentative PUD approval 27 years ago, and which received final Phase V PUD approval 16 years ago.” (See page 1 of the appellant’s written statement, which is included as Attachment B.) The appeal statement identifies seven assignments of error, which are outlined below and include staff’s response. The public hearing for this appeal is scheduled for February 12, 2014 and public notice of the appeal hearing was mailed in accordance with applicable code requirements on January 23, 2014. As described in the public notice, the decision on this modification appeal is subject to the procedural requirements of EC 9.7600 through 9.7635, and the public hearing for this appeal will be conducted according to quasi-judicial hearing procedures in state law and described at EC 9.7065 through 9.7095. Pursuant to EC 9.7630, the HO shall affirm, reverse, or modify the Planning Director’s modification approval. EC 9.7630(2) clarifies that the HO can only reverse or modify the Planning Director’s decision if he finds that the Planning Director failed to properly evaluate the application or make a decision consistent with the approval criteria. Since the submittal of the appeal, staff has received no additional testimony in response to the public notice. Any written testimony or other evidence submitted between the date of this memorandum and the appeal hearing will be forwarded for consideration as part of the decision on this appeal. In addition to any public testimony or other evidence that may be forwarded or presented at the upcoming public hearing, please review the attached items from the application file. Appeal Issues and Staff Response The appellant identifies seven assignments of error in the written appeal statement, which are summarized below (in bold), followed by staff’s response. 1. The Director erred in concluding that the criteria in EC 9.516(9) (1971), which expressly regulates modifications to the PUD Agreement, do not constitute the applicable approval criteria governing Willamette Oaks’ application. The performance agreement for Willamette Oaks PUD includes a provision that sets the time schedule for commencement and completion of construction. Paragraph 1.a. of the original Phase V agreement required that construction commence by April 15, 1999, and that total construction be completed on or before September 17, 2001. As noted previously, these dates were extended by several subsequent modifications to the time schedule that were all approved by the City. Ordinance No. 20440 further extended those dates to August 1, 2013 and August 1, 2014, respectively. The Planning Director found that the present request for a timeline extension would require approval of a PUD modification. That finding is based on language found in the PUD expiration provisions, EC 9.7230(5). A final PUD approval is effective for 36 months after the effective date of approval. EC 9.7230(5) provides that the commencement or expiration dates can be extended if the applicant submits a “modification” requesting such change. The City has interpreted that language to require a modification to the PUD, subject to the criteria set forth in EC 9.8370, in order to extend a timeline, even if that timeline only appears in a performance agreement. _____________________________________________________________________________________________________________ Willamette Oaks Appeal (MDA 13-2) February 2014 Page 3 HO Agenda - Page 3 Provision 2 of the related performance agreement includes an important clarification worth noting here, as follows: “Any additions, deletions, or modifications of this Agreement, including the exhibits, are subject to provisions of Section 9.516(9) of the Eugene Code, 1971 (or the corresponding provision of any such future law).” Underline and italics added for emphasis. Mr. Robinson asserts that “there is no corresponding provision in the present code addressing the modification of a PUD agreement.” He states that EC 9.8370 regulates modifications to an approved PUD itself, whereas the subject request is to modify the construction schedule of the PUD agreement. (See page 3 of appeal statement.) Mr. Robinson also refers to his letter dated December 6, 2013, which was submitted during the public comment period prior to the Planning Director’s decision (see Attachment D.) In his December 6, 2013 comments, Mr. Robinson asserted that the modification is subject to old code provisions at EC 9.516(9), in effect at the time of the original approval, which included a requirement that the proposal “will remain consistent with the applicable permit criteria.” The Planning Director disagreed. The old code provisions in EC 9.516(9) do not apply here as asserted in Mr. Robinson’s testimony, and described previously above. Appellant is correct that EC 9.516(9)(1971) fell under a section related to modification of performance agreements, and EC 9.8370 relates to modifications of approved PUD’s. However, as explained above, the current code requires time extensions to be processed as PUD modifications under EC 9.8370. Accordingly, EC 9.8370 is the current corresponding version of EC 9.516(9), pursuant to Provision 2 of the performance agreement. Under EC 9.8370, the applicant need not demonstrate that the modification “will remain consistent with the applicable permit criteria,” because that requirement was eliminated as a result of the City’s Land Use Code Update through code amendments occurring in 2001. 2. The Director’s decision is not supported by substantial evidence in the whole record or adequate findings to support the conclusion that the PUD modification satisfies EC 9.516(9)(e)(1) (1971). This assignment of error relies on an affirmation of Appeal Issue 1, regarding the applicable code criteria. As such, the appellant asserts that the Planning Director failed to make findings of compliance with the old code criteria. Staff disagrees for the reasons provided under Appeal Issue 1, and concludes that no findings need to be made with respect to the old code criteria for modifications. 3. The Director erred by failing to acknowledge, analyze, and provide findings demonstrating compliance with the criteria for extension of the construction schedule pursuant to the Phase V PUD Agreement. The appellant asserts that EC 9.7320(5) does not expressly regulate or otherwise authorize extensions to PUD construction time schedules. Staff notes that EC 9.7230(5) Expiration confirms that prior to the expiration date, the applicant may submit a modification requesting a change to the commencement or expiration time period. _____________________________________________________________________________________________________________ Willamette Oaks Appeal (MDA 13-2) February 2014 Page 4 HO Agenda - Page 4 The appellant also claims that a prior modification (MDA 07-1) removed the ability to extend the time schedule. Just because the modified agreement simplified the time schedule language does not mean that the applicant cannot utilize EC 9.7230(5) to extend the timeline through a modification application. Again, the City views the appellant’s reasoning as perhaps creative, but unpersuasive and legally incorrect. 4. The Director erred by finding that the restrictions on time extensions under EC 9.7020 were inapplicable and conflicted with EC 9.7320. The appellant asserts that the Planning Director erred in determining that the 245-day limitation on time extensions at EC 9.7020 was not implicated in the modification application. The appellant argues that the plain language of the provision means that, because the total of all extensions already greatly exceeds the code’s 245-day limit, no additional extensions may be granted. Again, the appellant also mistakenly relies on a distinction between the PUD approval and the agreement, to suggest that the applicant cannot utilize the modification provisions in EC 9.7320(5) and corresponding provisions at EC 9.8370, to extend the expiration period. The cited provision, EC 9.7020, is found in the portion of EC Chapter 9 titled Application Procedures. It is immediately preceded by a section titled Application Completeness Review (EC 9.7015), which includes language that implements the statutory provisions related to the 120-day rule. Given its placement directly following EC 9.7015, it is clear that the 245-day time frame found in EC 9.7020 was meant to mirror ORS 227.178(5). 1 Further, the appellant’s interpretation of EC 9.7020 is not supported by the legislative history of that provision, which confirms that the intent was to parallel state statutes relating to the 120-day rule. Appellant’s interpretation would cause an absurd result when taken in context with the provisions of EC 9.7320(5) and EC 9.8370, which otherwise allow an applicant to modify the PUD approval to extend the expiration periods. As described previously, the code has never been amended with the intent to limit the number of, or amount of time included in, such modification requests. The provision added to the code at EC 9.7020 maintains consistency with statutes that limit the amount of time extensions that may be granted under the statutory 120-day rule (i.e. for an on-going, initial application process); not surprisingly, the math shows that the total of 120 days with the maximum amount of time extensions granted (245 days) equals 365 days; this mirrors the language in ORS 227.178 concerning the 120-day rule. As relevant here, only as it relates to the applicant’s Type II request for PUD modification, no time extensions have been requested by the applicant or otherwise granted by the City with respect to the 120-day rule or EC 9.7020. The simple result is that the final local decision on this current Type II application (including this appeal) is due from the Hearings Official no later than March 12, 2014, based on the date the application was deemed complete on November 12, 2013. 1 ORS 227.178(5) provides, in relevant part: “The 120-day period set in subsection (1) of this section may be extended for a specified period of time at the written request of the applicant. The total of all extensions * * * may not exceed 245 days.” _____________________________________________________________________________________________________________ Willamette Oaks Appeal (MDA 13-2) February 2014 Page 5 HO Agenda - Page 5 Again, the City views the appellant’s reasoning as perhaps creative, but unpersuasive and legally incorrect. 5. The Director erred in concluding that the modification is consistent with the original conditions of approval as required by EC 9.8370(1) and EC 9.516(9)(e)(1)(a) because the Director: (1) misconstrued the plain language of Condition 1(d); and (2) imposed a new condition that modifies Condition 1(d). Condition 1(d) is recited above and on page 7 of the written appeal statement. Essentially, this condition required the applicant to provide a specific time schedule. This condition was met as part of the final PUD process, which established the initial time schedule in the PUD performance agreement. As relevant here, the HO determined long ago in the context of a prior appeal (MDA 00- 16) that this condition has already been satisfied. The appellant asserts that the condition does not grant the City any discretion to grant extensions to that schedule; staff notes that the condition does not explicitly preclude extensions. As discussed above, EC 9.7320 expressly allows applicants to extend PUD expiration dates through the modification process. The appellant further states that even if EC 9.7230(5) applied, it does not supersede the conditions of approval. Staff agrees. The modification approval criteria require compliance with the original conditions of approval, and in this case, the original condition of approval was satisfied long ago as part of the final PUD approval. The appellant further misconstrues the resulting time schedule language in the PUD agreement as if it were an immovable, insurmountable condition of the original approval. As discussed previously, it is not, and cannot be interpreted in the way the appellant suggests while giving proper meaning to all of the relevant, related current code provisions that govern modifications to extend the expiration period. The appellant also asserts that the Planning Director erred in imposing a new condition allowing an amendment to the PUD agreement and construction schedule as a means of complying with the original approval condition 1(d). The appellant claims that this is modifying the original condition, whereas the modification approval criteria require consistency with the original conditions. The additional condition was intended as a means of ensuring consistency with the original condition, since that original condition was fulfilled through the PUD performance agreement. Here, to the extent that the Planning Director may have erred in making that condition of approval, as a means to ensure consistency with the original condition of approval and further, as a means to ensure that the extended time schedule is memorialized in an updated agreement, it should be stricken on appeal. The applicant would be required to do so anyway, based on the requirements for Performance Agreements at EC 9.7025(6), with or without the condition of approval, so the issue is moot. 6. The Director erred in concluding that the application satisfies EC 9.8370(2) and EC 9.516(9)(e)(1)(b) when the only evidence in the record refutes this conclusion. As discussed under Appeal Issue 1, staff disagrees with the appellant concerning applicability of old code provisions. EC 9.8370(2) requires the modification to result in insignificant changes to the physical appearance of the development, the use of the site, and impacts on surrounding properties. Staff affirms that the modification involved no changes to the site plan; hence the modification does _____________________________________________________________________________________________________________ Willamette Oaks Appeal (MDA 13-2) February 2014 Page 6 HO Agenda - Page 6 not change the development plan that approved the physical appearance and use of the site, which was the basis for determining impacts on surrounding properties. The appellant asserts that the most recent site plans filed with the City indicate significant changes. The modification application did not request any site plan changes, nor did the Planning Director’s decision authorize any site plan changes. The only active development permit for Phase V is an Erosion Prevention permit, which can be extended annually with a fee. The appellant requests, if the HO affirms the Planning Director’s decision, that an additional condition be imposed to require building permits to be consistent with the Phase V PUD plans. Such a condition is unnecessary, as all permits are reviewed for consistency with approved land use decisions. Further, since the appellant’s request to make such a condition clearly falls outside the scope of the present application for a time extension only, and therefore is not relevant under the modification approval criteria in this case, the authority to make such a requirement does not exist. 7. The Director erred in approving the modification request because the 16-year old Phase V of the Willamette Oaks PUD is stale due to significant changes in applicable facts and law. Further Willamette Oaks has abandoned and discontinued any vested right it had to complete and continue what is now a nonconforming development. The appellant states that the Phase V PUD is not vested to develop under the building code and floodplain standards in effect in 1990 or 1997, and further, that there is no evidence that Phase V of the PUD as originally approved could comply with the new building code and floodplain standards. As such, the appeal asserts that continuing to extend the timeline is a pointless exercise because it may never be able to be built as originally approved. The appellant further claims that Phase V is a nonconforming development that has been discontinued based on no construction, and that changes to the surrounding properties and changes in factual and legal circumstances warrant denial of the timeline extension. These arguments appear to be a last-ditch effort to assert some sort of error, again, well outside the scope of the present request and modification approval criteria. Furthermore, the HO dispensed with similar arguments made by the City in reversal of the Planning Director’s denial of MDA 00-16. Similar to the appellant’s arguments above, concerning site plans filed with the City for a subsequent building permit review, this appeal is not the forum for resolving any alleged inconsistencies between a building permit and the final PUD approval. Those issues would need to be addressed through enforcement of the final PUD requirements as part of the building permit review. Staff Recommendation Based on the available evidence, and consistent with the preceding findings and specific clarifications provided in response to the appeal issues raised, staff concludes that the Planning Director’s decision was not in error or otherwise inconsistent with the applicable modification approval criteria at EC 9.8370. With the additional findings provided by staff and absent additional testimony or evidence to indicate otherwise, as of the date of this report, staff recommends that the Hearings Official affirm the decision of the Planning Director granting modification approval for Willamette Oaks PUD, Phase V (MDA 13-2). _____________________________________________________________________________________________________________ Willamette Oaks Appeal (MDA 13-2) February 2014 Page 7 HO Agenda - Page 7 Attachments A: Air Photo B: Appeal Form and Written Statement C: Decision of the Planning Director for Willamette Oaks (MDA 13-2) D: Appellants December 6, 2013 testimony E: Decision of the Hearings Official for Willamette Oaks (MDA 00-6) The full application file will be made available at the public hearing on this matter, and is otherwise available for review at the Eugene Planning Division offices. Staff is forwarding the Hearings Official a copy of all relevant application materials, testimony and related evidence in the record to date. For More Information Please contact Becky Taylor, Associate Planner, Eugene Planning Division, by phone at (541) 682-5437 or by e-mail, at becky.g.taylor@ci.eugene.or.us. _____________________________________________________________________________________________________________ Willamette Oaks Appeal (MDA 13-2) February 2014 Page 8 HO Agenda - Page 8  Attachment A Vicinity Map T E DO N C WIMBL ER LP AL EX AN D RL P E HILLIARD LN DE WA AN TE R FO AL RD EX WA Y OAKLEIGH LN GOODPASTURE ISLAND RD MCCLURE LN DR STULTS AVE HENS STEP ´ Legend Caution: This map is based on imprecise source data, subject to change, Streets and for general reference only. 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