Planning Commission

SUMMARY MINUTES Public Hearing Eugene Planning Commission Council Chambers–City Hall–777 Pearl Street May 11, 2004 6:00 p.m. PRESENT: Charles Rusch, President, Jon Belcher, Mitzi Colbath, Rick Duncan, Adell McMillan members. ABSENT: Anne Marie Levis, member, Ton Coyle, ex officio member. RECUSED: John Lawless, member. PUBLIC HEARING TO AN APPEAL OF HEARINGS OFFICIAL DECISION Knutson Family, LLC (Z 03-19) 1. Staff presentation: Shawna Adams; 2. Open public hearing: Planning Commission; 3. Questions from the Planning Commission; 4. Close the public hearing; 5. Planning Commission discussion/action; SUMMARY MINUTES – Eugene Planning Commission May11, 2004 Page 1 Public Hearing  MINUTES Public Hearing Eugene Planning Commission Council Chambers–City Hall–777 Pearl Street May 11, 2004 6:00 p.m. PRESENT: Charles Rusch, President, Jon Belcher, Mitzi Colbath, Rick Duncan, Adell McMillan members; Shawna Adams, Steve Nystrom, Susan Muir, Planning and Development staff. ABSENT: Anne Marie Levis, member, Tom Coyle, ex officio member. RECUSED: John Lawless, member. PUBLIC HEARING TO ON APPEAL OF HEARINGS OFFICIAL DECISION Knutson Family, LLC (Z 03-19) Mr. Rusch called the meeting to order and summarized the hearing procedure. He explained that if the issue was not concluded at the present hearing, it would be concluded on May 17. Mr. Rusch asked Planning Commissioners to introduce themselves and indicate if they had any conflicts of interest or contacts. All commissioners present indicated they had no conflicts of interest nor contacts. It was noted that Mr. Lawless had requested to be recused. Mr. Rusch introduced Assistant Planner Shawna Adams for the staff presentation. Referring to the information provided in the agenda packet, Ms. Adams provided background information on the zone change application, the process to date, and the procedures for conducting the hearing. She also provided a general overview of the context of the appeal and with additional testimony submitted since the appeal was filed. She stated that in the event that the Planning Commission decided to affirm the Hearings Official’s decision, consistent with staff’s recommendation, a draft final order was available for adoption. But in the event of a reversal or modification of the decision, the Planning Commission was required to make specific findings of facts as to why the Hearings Official failed to properly evaluate the application or make a decision consistent with the applicable criteria. She conveyed staff’s request that the commission deliberate and provide sufficient direction to staff in order that staff may provide a draft final order at the May 17 meeting. Ms. Adams underscored that the key the zone change criteria stipulated that in the event of inconsisten- cies between area refinement plans and the Metro Plan, the Metro Plan “trumped” the refinement plan. Ms. Adams listed the Knutson’s assignments of error in its appeal, as follows: • The Hearings Official erred when stating that the subject property was residential as op- MINUTES – Eugene Planning Commission May 11, 2004 Page 1 Public Hearing  posed to commercial. • The Hearings Official erred in the application of certain Metro Plan and Willakenzie Area Plan policies and objectives. • The Hearings Official erred by failing to make a decision consistent with the approval cri- teria and by not applying the approved criteria and by applying other standards that were not approval criteria. • The Hearings Official erred in her interpretation of what is required to demonstrate that a property could be adequately served by the orderly extension of key urban facilities and services. She stressed that the Planning Commission’s review should be focused entirely on whether or not the Hearings Official failed to properly evaluate the application or make a decision consistent with applicable zone change approval criteria. She said that at issue is the Hearings Official’s conclusion that the applicant failed to demonstrate the proposed zone change complies with Eugene Code sections 9.8865 (1), (2), and (3). As a correction, she noted that the Appellant’s appeal statement and the staff Agenda Item summary incorrectly reference EC 9.8665 for the approval criteria instead of EC 9.8865. She emphasized that the approval criteria provide that in the event of inconsistencies the Metro Plan text overrides the Metro Plan diagram and the Metro Plan overrides applicable refinement plans. She also emphasized that the 1987 “blob map” was the adopted Metro Plan diagram in effect at the time this request was made and that the draft Metro Plan diagram to which the Appellant refers is not the adopted diagram applicable to EC 9.8865(1). Ms. Adams reported that the Hearings Official had found that the area around the subject property had been designated for medium density residential use and the applicant had not demonstrated any Metro Plan text that suggested a conflict that would override that designation. She indicated that color copies of the diagram had been distributed to the Planning Commission for reference. Staff indicated that the appeal issues are further addressed by staff in the Agenda Item Summary. She conveyed that staff concludes that the Appellant had not demonstrated that the Hearings Official erred and that staff therefore recommends that the Planning Commission uphold the Hearings Official’s decision. Ms. Adams said that since April 26th staff had received a two-page cover memorandum with a copy of ordinance 20319, submitted by Bill Kloos on behalf of the appellant and a letter from Bill Kloos dated May 11th that waived the 120-day statutory limit for land use decisions. She reported that a letter had also been received at the outset of the hearing from Liam Sherlock on behalf of Bothman and BiMart. Mr. Rusch asked that any site visits by commissioner be reported. All five commissioners shared that they were familiar with the site, but had not paid it a specific visit. Mr. Rusch called for testimony from the applicant. Bill Kloos, P.O. Box 11906, indicated he would address two primary issues of the four: determination of the plan designation and how to prove that urban services were available. Regarding the latter, he explained that in this particular instance the focus was on traffic impacts. Mr. Kloos alleged that upholding the Hearings Official decision would call into question the validity of the Metro Plan update. He noted that the update had been approved by the City of Eugene, though it had yet to be approved of by Springfield and Lane County. He asserted that the update sought to make the Metro Plan diagram parcel specific and that, as it was most likely to be approved, it should be considered MINUTES – Eugene Planning Commission May 11, 2004 Page 2 Public Hearing in this decision. Regarding urban services, Mr. Kloos declared that the attention paid to this issue was due in part to conjecture on the part of the entities that sought to block the zone change application. He claimed that the most intensive use of the property fit the model for the current zoning. He felt that it would be impossible to address such a requirement prior to having a firm idea of how the subject property would be developed. Mr. Kloos thought the Hearings Official had erred when reading the Metro Plan and determining that the subject property was residential, because he alleged the refinement plan indicated the property was commercial. He asserted there was no plan change, that the property was intended to be zoned commer- cial. Mr. Kloos cited another property that had been rezoned and averred that a presentation of hypotheses of what would be developed in the future was not a good basis to prove up the adequacy of urban services. He asserted that the Hearings Official had asked the applicant to hypothesize what development would occur and demonstrate that the capacity of urban services would meet the needs of any development. He suggested the Planning Commission consult the City Attorney on this item. Mr. Kloos urged the commission to take time deliberating. Seeing no other proponents and no one who wished to provide neutral testimony, Mr. Rusch asked for testimony in opposition. Liam Sherlock, 777 High Street, Suite 200, represented the opponents in support of the Hearings Official decision. He provided his testimony in writing. Mr. Sherlock said the Hearings Official decision spoke for itself. He felt the Hearings Official’s hands were tied by the criteria applicable at the time the application was first submitted. He noted that Mr. Kloos asked the Hearings Official and the Planning Commission to ignore the applicable criteria and look to criteria that was not yet approved. He averred that careful reading of the Metro Plan diagram and the Willakenzie Refinement plan upheld the Hearings Official decision. Mr. Sherlock said, as noted by the Hearings Official, the Willakenzie Plan did not specify the property as any kind of particular commercial use, but acknowledged that the uses there were commercial. He asserted the uses there were consistent with the residential designation, as neighborhood commercial uses were allowed as residential uses as indicated by the Hearings Official. He noted that, in a 1993 decision on an almost identical appeal to this one wherein the same applicants asked that the subject parcels be rezoned for a more intensive commercial use, the Hearings Official had ruled against it because the Metro Plan indicated the properties were residential. Mr. Sherlock stated that the applicant had every right to petition the City Council to have the parcels redesignated on the Metro Plan. He stated that instead of doing so, the applicant had pursued the same avenue as it had done unsuccessfully 11 years earlier. He asserted that it was not surprising that, for the exact same reasons, the application for rezoning was denied. Mr. Sherlock reiterated that the updated Metro Plan could not be used until all three jurisdictions had adopted it. He questioned the wisdom of pursuing the zoning change prior to its adoption, given that it MINUTES – Eugene Planning Commission May 11, 2004 Page 3 Public Hearing was being cited in this appeal. Regarding the provision of urban services, Mr. Sherlock said to read Mr. Kloos’ interpretation of the criteria in EC 9.8655(3) would be “to read the criteria out of existence.” He stated that it would bypass the criteria and deal with traffic implications and sewer capability on a site planning basis. He felt it would turn planning “on its head,” adding that the purpose of a rezone criteria was to make sure a use made sense within the context of the area it was located in. With respect to the fourth assignment of error, he related that the Hearings Official correctly found the traffic report submitted by the applicant to be “woefully inadequate.” Chris Bothman, 1602 Coburg Road, spoke in support of the Hearings Official decision to keep the lots zoned General Office (GO) and not Commercial (C-2). He related that within one block of the area there were 19 restaurants. One mile north of the subject properties, there were 20 more restaurants and one mile south there were four more restaurants and more planned to be developed. He asked that the commission uphold the Hearings Official decision. Carl Bothman, 1602 Coburg Road, stated that he had been operating a small franchise restaurant by the subject properties for 25 years. He related that prior to owning this franchise, he conducted site studies for another franchise. He found it ironic that, post the previous defeat of the zone change request, the applicant had sought to pursue the same avenue for it, given that it could be pursued at a more legislative level. He supported the Hearings Official’s decision, noting that he had purchased the site in part because of the General Office buffer between the commercial areas and the residential areas. He added that the offices provided medical services for senior citizens and seemed to draw many people to the area. He also supported the Hearings Official finding that further evidence regarding the capacity of traffic facilities was needed. Charles Biggs, 540 Antelope Way, requested that the Planning Commission affirm the Hearings Official’s ruling. Speaking on his own behalf, he pointed out that the Crescent Village planned unit development (PUD), cited by the appellant, was required to prove that urban services could be extended in an orderly fashion. He thought it foolish to change a zoning and then attempt to accommodate such a use. He resubmitted his testimony into the record. Terry Froemming, 2886 Bailey Lane, spoke on behalf of the executive committee of the Harlow Neighbors, related that the neighborhood group had concluded that, when taking into account the neighborhood and adjacent property, it made sense to have some transition area. He said the best way to keep such a transitional zone was to leave the property zoned C-1. Mr. Rusch called for staff response to testimony. Ms. Adams stated that Mr. Biggs testimony was on page 386 of the agenda packet. Mr. Belcher said it appeared to him that the Willakenzie Refinement Plan had designated the subject property as commercial. He wondered why the Metro Plan had not sought to be consistent with the refinement plan. In response, Ms. Adams stated that the Hearings Official’s findings were two-fold in that she found that not only is the proposed zone change inconsistent with the Metro Plan, in which case the Metro Plan MINUTES – Eugene Planning Commission May 11, 2004 Page 4 Public Hearing prevails over any text to the contrary in the refinement plan, but also that the proposed zone change is inconsistent with the refinement plan policies irrespective of any conflicts between the plans. Mr. Belcher thought the lack of clarity between the two plans had contributed to this appeal. Mr. Nystrom said staff recognized there were many parts of the City that had not been reconciled with the Metro Plan and changes had been made that, for whatever reason, had not triggered refinement plan amendments. He was uncertain as to why the Willakenzie Plan had not been amended, if such amend- ments were indeed necessary. In response to a question from Ms. Colbath, Mr. Nystrom acknowledged that the Metro Plan Diagram was a “blob map” but this did not mean it did not have use in determining designations. He stated that, in this case, the designation was clear. Ms. McMillan asked staff to speak to the request regarding traffic information. She wondered if it was very different from the sort of information on urban services that was required in other zone change requests. Ms. Adams responded that the question was whether the existing transportation system had the capacity to be extended to serve additional development and that the Hearings Official determined the applicant had not adequately addressed this question for all of the tax lots in question. Mr. Rusch felt it made sense to look to the smaller refinement plans to become more familiar with the details, but acknowledged that the code dictated that the Metro Plan ruled over refinement plans. He commented that this did not seem to resolve anything. Mr. Rusch conveyed his discomfort with the process. He opined that it seemed redundant to require a finding that a zone was designated for a use prior to approval of a change in zoning to that use. Mr. Nystrom responded that the rules governing zone changes had been set up in a rigid fashion which made it more difficult to step back and look more broadly in a zone change itself. Ms. Colbath asked, regarding urban services, for background on past practices and how they would relate to this particular determination. Ms. Adams replied that scrutiny of the Hearings Official’s decision should only be conducted with the specific criteria in mind. In that light, she said the questions to be asked were whether the Hearings Official had looked at the specific criteria, which stated ‘could urban services be extended,’ and then to look at her finding and ask if she had addressed that question. Ms. Adams related staff’s contention that the Hearings Official had done so. She asserted that the Hearings Official faulted the applicant’s traffic analysis primarily because its scope did not extend to all five parcels under consideration. Without that information, the Hearings Official concluded that there was insufficient information to find the criteria had been met for all five parcels. Mr. Belcher expressed concern that there was an apparent dichotomy in the Metro Plan as there were pending amendments that had yet to be enacted. Mr. Nystrom cautioned the commission from taking on hypothetical issues. He pointed out that a deeper discussion of the Metro Plan itself would be stepping beyond the bounds of the appeal. Regarding the extension of urban services, Mr. Belcher did not understand what level the applicant had to prove the adequacy of transportation facilities given that the facility already existed adjacent to the subject properties. Mr. Nystrom responded that the Hearings Official had not rendered that decision, but rather had determined that the information supplied by the applicant did not represent clear findings that MINUTES – Eugene Planning Commission May 11, 2004 Page 5 Public Hearing the facility would be adequate. Mr. Belcher opined that there was no clear standard. Mr. Nystrom reiterated that the commission was only charged with determining whether the Hearings Official had determined correctly that the applicant had not adequately addressed the impact on traffic capacity in the application for the zone change. Mr. Duncan asked how a major arterial such as Coburg Road could not be considered to provide adequate traffic service. Mr. Nystrom pointed out that one of the subject properties did not face Coburg Road. He stated that the issue was largely focused on the properties proximity to a crowded intersection and how the intersection would be impacted. Mr. Belcher asked if the record could be left open so that the commission could ask the Hearings Official for more input. Ms. Muir recommended the commission ask staff to obtain the answers for them. Mr. Belcher indicated he was unprepared to make a determination at this time. He felt he needed to read the information he had been provided again. Mr. Duncan noted that three of the lots had been improved and two had not. He felt the applicant primarily addressed the two vacant lots because he did not believe the other three lots would be redeveloped. Mr. Nystrom responded that the Hearings Official had indicated there was not an adequate acknowledgement of what was possible under C-2 on all of the tax lots. Mr. Rusch called for rebuttal from the applicant. Mr. Kloos asserted that the Hearings Official had “gotten tired” and had “skipped over” the evidence regarding transportation facilities. He said the appellant had hired a transportation engineer who had counted cars. He related that the traffic engineer had determined that there was a “little room left” for more traffic intensity. He thought there were specific fixes that could mitigate traffic such as adding turn lanes and taking out greenery that only “collected cigarette butts.” He stated that the appellant had looked at the traffic that could be generated from the two vacant properties if zoned C-1 or zoned C-2. He felt the appellant’s study had adequately posited the traffic generated by a range of uses. Mr. Kloos averred that the job of the Planning Commission was to question the rulings of the Hearings Official. He called them the “top of the food chain” and “the big cheeses.” He alleged that staff was “putting blinders” on the commission and defending the Hearings Official decision. Mr. Kloos reiterated his assertion that the refinement plan needed to be reviewed in tandem with the Metro Plan. He alleged that LUBA instructed planners to do so. Mr. Kloos asked the Planning Commission to at least consider upholding the appeal on the two parcels that were yet to be developed. He said this was most important to his clients. Mr. Kloos was amenable to the commission asking further questions of the Hearings Official, but wished to have a chance to respond. He opined that the Hearings Official “in a situation like this gets a little defensive of her own decisions.” He admonished the Planning Commission to “be quite comfortable taking her decision apart, changing it dramatically.” He called it the job of the Planning Commission to make policy. MINUTES – Eugene Planning Commission May 11, 2004 Page 6 Public Hearing Ms. Colbath asked if Mr. Kloos had requested to change the zoning on only the two parcels that were not developed. Mr. Kloos responded that the Hearings Official had denied the zone change for all of them and had affirmed the GO and C-1 zoning for the parcels. He felt that to she had been “confused.” He said it was not up to the client to demonstrate that this was the best zone for the parcels, but rather that the parcels met the applicable criteria for the zone change. In response to a question from Ms. Colbath, Ms. Adams explained that at the time of application the applicant requested that the Hearings Official approve the zone change for all or a portion of the tax lots in question. Mr. Nystrom added that the Planning Commission could find that any one or more parcels could meet the applicable criteria. Regardless of this, he reiterated that the Hearings Official had considered the applicable criteria for all five parcels. Seeing no further questions or comments, Mr. Rusch declared the record closed and called for Planning Commission deliberation. Mr. Duncan remarked that there was an abundance of information to absorb. He requested more time in order to adequately consider it. Mr. Nystrom asked if any of the four assignments of error that the appellant had brought before the commission could be deliberated upon at the present meeting. Ms. Muir noted that the waiver of the 120- day rule would allow the deliberation to be deferred if necessary. Mr. Duncan suggested deferring the discussion for two to three weeks. Mr. Belcher indicated that, at this time, he was less inclined to support the allegation that the Hearings Official did not accurately interpret the Metro Plan than he was inclined to support the suggestion that further evidence should be provided that the transportation facilities capacity was adequate for future development of the property. Nonetheless, he felt it would be beneficial to give the evidence more focused attention. Ms. Colbath said it would serve the commission well to take time and deliberate. She wished to reach a better understanding of precedents set by LUBA. She asked if the City Attorney could provide this information. Mr. Nystrom noted that the City Attorney did review all of the appellant’s arguments and had not indicated any dispute with the ruling the Hearings Official had made. Mr. Rusch declared that the matter would be deferred until a later date, to be determined pending a review of the calendar. Mr. Rusch adjourned the meeting at 7:04 p.m. (Recorded by Ruth Atcherson) Bill KloosLiam SherlockChris BothmanCarl BothmanCharles BiggsTerry Froemmingm:\2004\planning and development department\planning division\planning commission\pc040511.doc MINUTES – Eugene Planning Commission May 11, 2004 Page 7 Public Hearing