Planning Commission

SUMMARY MINUTES Regular Meeting Eugene Planning Commission Sloat Room–The Atrium Building–99 West 10th Avenue April 18, 2005 5:00 p.m. PRESENT: Mitzi Colbath Vice President; Randy Hledik, Phillip Hudspeth, Anne Marie Levis, Jon Belcher, Rick Duncan, members; Susan Muir, Kent Kullby, Gabe Flock, Steve Nystrom, Planning and Development Department; Emily Jerome, City Attorney’s Office; Alice Simpson, Derril Simpson, Tim Shinabarger, Bill Kloos, Jed Truett, Susanna Fontana, Majeska Seese-Green, Paulette Collard, Kevin Matthews, David Monk, Lisa Warnes, Charlotte Brady; Michael Steene, University of Denver, guests. ABSENT: John Lawless, Tom Coyle. PC DELIBERATION/ACTION: SPRING KNOLL PUD PHASE 4 (PDT 04-4) Ms. Levis, seconded by Mr. Hudspeth, moved to modify the Hearing's Official's Decision, based on the oral and written testimony the available evidence in the record, and the Commission’s discussion, concerning the denial of a tentative PUD application for Spring Knoll PUD Phase 4 (PDT 04-4), as referenced in the Final Order, Findings, and Conclusions of the Eugene Planning Commission. The motion passed unanimously, 6:0. SUMMARY MINUTES – Eugene Planning Commission April 18, 2005 Page 1 Regular Meeting  MINUTES Regular Meeting Eugene Planning Commission Sloat Room–The Atrium Building–99 West 10th Avenue April 18, 2005 5:00 p.m. PRESENT: Mitzi Colbath Vice President; Randy Hledik, Phillip Hudspeth, Anne Marie Levis, Jon Belcher, Rick Duncan, members; Susan Muir, Kent Kullby, Gabe Flock, Steve Nystrom- Planning and Development Department; Emily Jerome, City Attorney’s Office; Alice Simpson, Derril Simpson, Tim Shinabarger, Bill Kloos, Jed Truett, Susanna Fontana, Majeska Seese-Green, Paulette Collard, Kevin Matthews, David Monk, Lisa Warnes, Charlotte Brady; Michael Steene, University of Denver, guests. ABSENT: John Lawless, Tom Coyle. PC DELIBERATION/ACTION: SPRING KNOLL PUD PHASE 4 (PDT 04-4) Ms. Colbath convened the meeting of the Eugene Planning Commission. Ms. Colbath explained the purpose of the meeting was for the Planning Commission to deliberate and take action to affirm, reverse, or modify the decision of the Hearings Official denying tentative planned unit development approval for Spring Knoll PUD Phase 4 (PDT 04-4). She welcomed those in atten- dance but added that no testimony would be taken from the public as the appeal hearing closed on April 12, 2005. Ms. Colbath introduced staff who were present, and City Attorney Emily Jerome. Susan Muir, Planning Division Manager, reviewed the agenda materials that included an agenda, an agenda item summary, and a draft Final Order. Ms. Muir offered an overview of the issue before the Planning Commission. She noted this had been a difficult case. She said the Planning Division was charged with overseeing growth management policies, as well as preserving important community resources, balancing the interests of citizens and developers, involving the community in shaping our future, and facilitating wise private and public investment. Ms. Muir noted that given the arguments in the appeal before the Planning Commission, staff made a recommendation that the Planning Commission find that the application did not meet the criteria, and had in one instance failed to raise as an appeal issue on one of the factors of denial in the Hearings Official’s decision. She said that at the last meeting, the Planning Commission had expressed concern that staff had flip-flopped on the issue, by first recommending approval and later recommending denial at the appeal hearing. She said the initial staff recommendation was based upon all of the information available at that time. The revised staff recommendation to uphold the Hearings Official’s decision considered all the information in the public record including new information presented at the February 9, 2005 public hearing and a review of the Hearings Official’s decision. MINUTES – Eugene Planning Commission April 18, 2005 Page 1 Regular Meeting Ms. Muir reminded the Planning Commission of its role. She referred to the applicable Eugene Code (EC), Section 9.7680, which was posted on the wall. She said the Planning Commission must either affirm the Hearings Official, reverse the Hearings Official, or modify the Hearings Official’s decision. She said if the Planning Commission decided that the Hearings Official’s decision was wrong, it must make findings of fact describing the ways in which the Hearings Official failed to properly evaluate the application or make a decision consistent with applicable criteria before proposing a different decision, and then make its own findings to show that there was substantial evidence in the Hearings Official’s record to support a finding that the criteria had been met. Ms. Muir stated that although the Planning Commission might be tempted to facilitate moving the application forward, from a denial to an approval, through the application of conditions, staff would point out that the staff recommended list of conditions of approval presented to the Hearings Official were at the high ceiling for staffs’ comfort level regarding reasonable conditions. Thus, staff did not recommend going above and beyond the staff recommendation, at which point the application moved into being an unreasonable situation, raising issues for staff related to public notice, enforceability, public accountabil- ity, and other issues yet to be discussed. In response to the Planning Commission’s request for legal opinions on issues raised at the public hearing, Ms. Muir said that City Attorney Emily Jerome was present to advise the Planning Commission on the appeal before their deliberation. Ms. Jerome introduced herself, noting that she had been advising the City of Eugene on land use issues for approximately ten years, and was in constant contact with Planning Division staff as well as other City staff. Ms. Jerome highlighted the most pertinent part of the applicable City code that required the Planning Commission to determine if the Hearings Official failed to properly evaluate the applicable criteria of the application or make a decision consistent with applicable criteria. She said although she did not regularly attend the Planning Commission meetings, she assured the commissioners that discussions occurred as needed between her legal staff and planning staff, with the level of detail contingent on the specific topic. Ms. Jerome described the Planning Commission’s role as an appellate body, which differed significantly from the Planning Commission’s role when it made recommendations on legislative matters. She noted there was a section of the Eugene Code that addressed appeals of a Hearings Official’s decision. She said the standard for the Planning Commission’s review for each issue before it was whether or not the Hearings Official failed to properly evaluate the application, or make a decision consistent with applicable criteria. Inherent in the Planning Commission’s review was consideration of what evidence and arguments the Hearings Official had to work with, in conjunction with what the participants had stated, i.e., did she, or did she not, err in considering arguments relating to that standard. Ms. Jerome iterated that the code clearly said that the appellant’s statement and arguments presented to the Planning Commission must demonstrate how the Hearings Official erred with the same standard written in the requirements. She said the appellant’s appeal statement was the basis for what the Planning Commission should consider in its deliberations. She added that the Planning Commission must respond to those allegations of error based upon everything it heard. Ms. Jerome said the issues the Planning Commission could consider were limited to those five that were raised in the appellant’s March 22, 2005 appeals statement. She affirmed that staff had guided the Planning Commission through the five issues, as documented in the agenda materials for the April 12, MINUTES – Eugene Planning Commission April 18, 2005 Page 2 Regular Meeting 2005 public hearing. She stated that for each appeal issue, the Planning Commission must determine whether the Hearings Official erred, whether she properly evaluated the application materials with respect to the applicable criteria, or whether the Hearings Official’s decision might be inconsistent with the criteria. Ms. Jerome said there were many things raised in argument that were outside the scope of the Planning Commission’s consideration. She added that those things were not necessarily new evidence, but they were arguments that did not help the Planning Commission reach a decision. She noted that it was important to consider whether or not a particular argument actually went to the question before the commission, and she cited several examples. Ms. Jerome stated that staff had determined that the Hearings Official denied the application on a number of criteria, one of which had not been appealed by the applicant. She said that even if the Planning Commission found favorably for the applicant on all five issues, there was still a denial, because one of the criteria that the Hearings Official had found was not met had not been appealed by the applicant. She added that that criterion was outside the scope of the appeal. Ms. Jerome advised the Planning Commission to analyze all five of the appeal issues, because if the issue was appealed to the Land Use Board of Appeals (LUBA) or to a circuit court, she wished to have the strength of the commission’s full analysis in the record, even though she and City staff believed it was a denial in any case. Referring to Bill Kloos’ April 12, 2005 letter, Ms. Jerome said eight new conditions were proposed for Planning Commission consideration to bring the application into compliance with the standards that the Hearings Official found unmet. Ms. Jerome said those conditions were not new evidence, but rather were properly a part of the record that would likely be considered in arguments by LUBA. However, those conditions were probably not relevant to the key question which is: Did the Hearings Official err in evaluating what was in front of her. Those conditions were subject to Planning Commission considera- tion if the commission found that the Hearings Official erred, at which time the commission would have to develop its own findings with respect to consistency with the criterion. She said at that point it would be appropriate to note that the condition proposed by the appellant might help the commission develop its own findings. She stressed that the first standard was whether or not there was an error in the decision. Ms. Jerome affirmed her disagreement with most of Mr. Kloos’ April 12, 2005 letter, noting that she disagreed with each of the twelve key points at the end of the letter. She asserted that to knowingly allow the case to go beyond the 120-day time limit for decision making and into mandamus in Circuit Court was not in the City’s best interest, adding that she struggled to think of a situation in which it would ever be in the City’s best interest. She added that Mr. Kloos presented misinformation, noting that the Circuit Court would not necessarily require conditions. She said the appellant, in going to Circuit Court, had no obligation whatsoever to ask the court to impose any conditions. She said taking the case to Circuit Court was an action intended to punish local governments that failed to make a decision within the 120 day limit, and did not put local government in a very good position. She said resolving the issue in the courts was very costly. It shifted the burden so that the appellant could assert that local government had failed to make a decision within the prescribed time limit, and could ask the court to approve an application as submitted by the appellant. She said the City, through witnesses and trial attorneys, would have to demonstrate that the court should not approve the application as submitted, to the extent the City wanted conditions or there was a criterion that was not met. She said this process was intended to be very costly and difficult for local governments, so as to force local governments to make decisions within the 120 day limit or extensions thereof. Ms. Jerome strongly advised the Planning Commission against taking any MINUTES – Eugene Planning Commission April 18, 2005 Page 3 Regular Meeting knowing action that would push the commission outside of the mandated time frame for decision-making. Ms. Jerome said she had talked with the appellant’s attorney regarding extending the timeline. She said the appellant might be willing to do so in order to allow the Planning Commission to review or formulate conditioning that might allow the findings of compliance with the standards in the Oregon Revised Standards (ORS) 197.522. Ms. Jerome proposed waiting to see where the deliberations went to determine if ORS 197.522 should be discussed. Her advice was that to the extent there was no request for an extension of the 120 days, the Planning Commission should not knowingly go outside of the 120 day limit. Ms. Jerome said another legal issue related to ORS 197.522, the reasonable conditions statute, had limited applicable case law. She stated it was acknowledged that it was absolutely determined that it was the applicant, not the City that was required to produce the reasonable conditions. She affirmed that it was not the City’s burden to come up with the reasonable conditions, contrary to the contents of Mr. Kloos’ letter. She added that case law had determined that the appropriate time for the applicant to propose reasonable conditions was before the initial decision maker, and that bringing conditions up later was not helpful when the Planning Commission’s standard of review was did the original decision maker err. She noted that they may or may not be relevant at this point. The case law affirmed that the reasonable conditions should have been brought up before the Hearings Official, and not at this point in the process. She noted that the City did a great deal in an attempt to bring the application into compliance with the criteria. She understood that all of the conditions that the Hearings Official considered were those proposed by staff and not by the applicant. Ms. Jerome iterated that the Planning Commission was not looking at the appeal from scratch as the appellant would have the commission believe. She said there were five issues to be reviewed, with the standard of did the Hearings Official err as the basis of their decision. She added that the commission was not to take a brand new look at the criteria and whether or not they were made from whole cloth. Rather, she said the commission was to look at what the Hearings Official did, and what she relied upon. Ms. Jerome said an applicant’s attorney had one obligation, and that was to zealously advocate for his client, with the goal of having the Planning Commission see things the appellant’s way. In this case, it would mean deciding for the appellant on all five appeal issues. She said it was important for the Planning Commission to ask planning staff and the City Attorney questions, adding that the appellant’s attorney was not advocating for good government, but had a different interest. Ms. Colbath, noting that one denial point was not appealed by the applicant, asked for clarification that even if only one denial issue remained, the Planning Commission would deny the application. Ms. Jerome confirmed that was correct, and she reiterated that she asked the commission to go further in their analysis; so that in the event the case went to LUBA or to circuit court, the City would have a full analysis in the record. The Planning Commission took a break from 5:25 p.m. to 5:35 p.m. to review the draft final order. Ms. Muir reminded commissioners not to have conversations with anyone during the break. Ms. Colbath noted consensus for the Planning Commission to ask questions prior to deliberating. Related to the one unappealed issue, Mr. Belcher asked, if the Planning Commission did not find the Hearings Official’s argument compelling, had it been appealed would it have resulted in the decision MINUTES – Eugene Planning Commission April 18, 2005 Page 4 Regular Meeting being overturned, or if that issue was mute because it was not appealed. Ms. Jerome replied that it was beyond the scope of what the Planning Commission could consider. Ms. Levis opined that the unappealed issue should be identified in the Planning Commission’s decision as part of the findings. Ms. Jerome noted as clarification for the Planning Commission that even if it completely reversed the Hearings Official on the five appeals, it did not mean approval, and that was worth explicitly stating in its decision. Ms. Colbath asked how deeply they should delve into other appeal issues given this situation. Ms. Levis said it was important for the commission go to into as much depth as necessary on each appeal issue. Mr. Duncan said as he went through the information, it was important to him to discuss the sub-issues so that both sides understood what the Planning Commission was thinking. He said it was important for the future as more sensitive land and difficult development proposals requested planned unit development (PUD) approvals within the Urban Growth Boundary (UGB). Mr. Belcher said some procedural questions had been raised, and he hoped there would be time to discuss those issues. In response to a question from Ms. Colbath, Mr. Belcher referred to page 45 that said in the Hearings Official’s decision, “As noted above, the application does not satisfy EC 9.6505,” adding that the applicant did not appeal that point of the Hearings Official’s decision. Ms. Colbath noted consensus among the Planning Commissioners to include in its findings a statement that the applicant failed to appeal the issue that the Hearings Official found that criterion EC 9.8320(11) had not been met in regards to meeting Eugene Code standard EC 9.6505. Thus, the Planning Commission did not discuss the issue further. In response to Ms. Colbath, Mr. Duncan proposed reviewing Appeal Issues 4 and 5. • Appeal Issues # 4 and #5 Mr. Duncan said he was confused by the Hearings Official’s statement on page 40, paragraph three, the second sentence of her decision, “However, as proposed, Lots 1, 5, 12, 15, 16, 17, 18, 19, 21, 22, 23 (almost 50% of the lots), exceed the maximum lot size for the zone. This standard is not met.” He said it was not clear if the impacted area or the total was the measure. He said seventeen of the twenty-three lots exceeded 13,500 square feet (s.f.). If only the impacted area was the measure, eight of the twenty-three lots exceeded 13,500 s.f. He said he also did not understand why this was denied. Mr. Kullby noted that the applicant provided a table of lot sizes on page 206 of the record. Mr. Flock added that the table split out the area of impact from the total area, and said he believed the Hearings Official’s findings were in reference to the total area of each lot. Mr. Duncan noted if that was the measure, seventeen of the twenty-three lots exceeded the maximum lot size. MINUTES – Eugene Planning Commission April 18, 2005 Page 5 Regular Meeting Mr. Kullby said paragraph two read, “However, Lots 1, 5 through 12, lots 15 through 19, and lots 21 through 23 exceeded the maximum lot area (13,500 s.f.) prescribed in EC 9.2760”. Mr. Flock opined that the Hearings Official erred when she referenced the statement in paragraph three. The Planning Commission agreed with Ms. Muir’s suggestion to add a clarification to the findings to indicate that the Planning Commission had found an error in the written decision. Mr. Duncan said that in the PUD as a whole, the net of the impacted areas was less than 13,500 s.f., when looking at the twenty-three lots. He opined that some of the discussion was related to the fact that it helped with some of the preservation, resulting in a lower impacted area for development. He asked if the intent of the 13,500 s.f. restriction was required to be on a development basis, or on a lot by lot basis. Mr. Belcher thought it was on a lot by lot basis, since it would be difficult to enforce the restrictions once the lots were sold. He added that the 13,500 s.f. restriction had nothing to do with the preservation of natural resources, but rather the intent was to increase density by restricting the lot size, allowing for construction of more houses for more people. Mr. Duncan said he understood that adjustment process was to allow for areas that were unbuildable conservation areas, or had topographical problems, and a larger lot could be approved if the usable portion of the lot was less than 13,500 s.f. He did not understand the Hearings Official’s rationale stating that the standard had not been met, nor did he find it in the applicant’s discussion. Ms. Colbath had tried to find contiguousness of the areas that were unusable between lots. She said that could be an example of clustering or in other ways such as having larger lots, and she did not understand the applicant’s reasoning in the location of the proposed impact areas. Mr. Belcher said the primary way an applicant could deal with the South Hills Study requirements of preserving vegetation and reducing visual impacts was through lot size. He said the applicant’s plans for large lots and large impact areas within the lots in which almost every tree inside the large impact areas could be removed, did not appear be an effective way to meet the South Hills Study requirements. He said limitations on size and scale of homes might reduce the impact, but he did not see anything in the original application that demonstrated how a large lot proposal would work to avoid creating the type of impacts that the South Hills Study requirements were intended to prevent. Mr. Hledik asked if 50 percent or 75 percent of the lots were too many to exceed the maximum lot size standard, was there criteria in the code that stated 25 percent or 10 percent was acceptable, or was it discretionary. Ms. Muir replied that the code was not specific and that it was a discretionary. Mr. Kullby said the applicant could have used the PUD modification provision of the criteria to argue for a modification to the maximum lot size standard rather than the exception process provided in the R-1 zoning standards which would require findings for an exception for each lot. He read the R-1 zoning exception text which would allow exceptions due to, “…existing physical circumstances such as topography, constrained lands, conservation easements, existing buildings or utilities which prevent the ability to further divide the lot.” The PUD modification portion of the PUD criteria, EC 9.8320(11)(j), could permit an overall modification to the maximum lot size with consideration given to the whole development. In response to Ms. Colbath, Mr. Flock said the Hearings Official chose not to act on the request for MINUTES – Eugene Planning Commission April 18, 2005 Page 6 Regular Meeting modification because she found that other standards and criteria had not been met. Mr. Belcher said if the purpose of the increased lot size was to protect trees or to reduce the visual impact of the development, then it did not serve to preserve trees. He said it appeared that the applicant’s proposal called for removing 80 to 90 percent of the trees. In response to Ms. Colbath, Mr. Belcher replied that the last two pages of the agenda packet identified which trees would be cut, noting that the ostensible reason for the large lot size was to preserve trees. Mr. Hledik expressed concern, stating that all trees in the impact area on the plan were designated for removal. He added that there were several trees on the large lots scheduled to be saved, noting that if more numerous, smaller lots had been used, and it would be possible for the trees on those lots to be cut as well. He said the developer had created larger lots with trees designated for preservation, although the large impact area within the lots was problematic. Ms. Colbath asked if twice as many lots could have been created on the property. Mr. Kullby said that question pushed the issue of clustering, so as the number of proposed dwelling units reaches the maximum density allowed, the need to cluster the development and provide separate common open space lots to meet the PUD criteria increases. Mr. Hledik asked how the common open space lots for conservation were established. Mr. Kullby replied that the CC&Rs and the homeowners’ association of the subdivision governed the use of such lots and were responsible for maintaining such lots. The common open space could be only be used by residents of the subdivision, noting that the conservation open space lots were not intended for public use. Conservation zones within a lot could only used by the lot owner and would be maintained by that lot owner in conformance with the CC&Rs. Mr. Hledik noted there were multiple ways to achieve conservation. He said there was an effort demonstrated in the PUD to preserve trees, but that the unknown number of trees in the conservation area, plus the trees that could be gone in the large impact areas raised concerns. Ms. Levis said that as she understood the Hearings Official denial, too many lots exceeded the maximum lot size, and thus the Hearings Official felt that the standard had not been met. Mr. Flock said he did not think the Hearings Official was making a determination regarding what was too many or too little, but whether or not the numerical standard of 13,500 s.f. had been met. The Hearings Official had simply attempted to list the lots that did not comply. Mr. Nystrom said it was important to understand the criterion was whether or not the standard had been met. He said the Hearings Official had said the criterion had not been met. While the Planning Commission was looking for an exception, the Hearings Official’s position had been silent. He added that the Hearings Official’s obligation was to answer the question, opining that since the Hearings Official had already denied the application on other factors, it was not necessary to grant an exception within the denial. She had answered the question and met her obligation. Mr. Duncan said he was bothered that eight lots contained impact areas larger than 13,500 s.f. He also MINUTES – Eugene Planning Commission April 18, 2005 Page 7 Regular Meeting noted that the applicant’s table was somewhat confusing because the table did not match the figures shown on the plat. He said the issue would be raised again in the future PUDs, and it was important for the Planning Commission to clearly understand the lot size standards. Mr. Belcher said it would be easy to protect trees if there was only one lot, but that would not meet the goal of providing housing in the UGB. He said he could be more supportive of the application if clustering had been used to put more lots in the development and had preserved more trees. Ms. Colbath stated there were multiple ways to achieve the goal, noting that the choice that was made was shown on the plans. She said the question was, did a condition exist that could be placed on this scenario, or was there a condition that could be put on this scenario that would have made it a legitimate way of preservation under a scenario other than clustering. She said she wanted to see as much housing within the UGB as possible, which was the intent of creating the maximum lot size. Mr. Belcher said if the applicant had pointed out evidence that indicated there were areas that were not buildable due to slope, those areas could have been eliminated from consideration of the criteria, and placed in conservation easements. Referring to page 25 of the agenda packet in the Hearings Official’s decision, Ms. Levis read, “The applicant bears the burden to establish compliance with all applicable approval criteria.” She asked if the Hearings Official erred when looking at Appeal Issue Four. She said the applicant bore the burden to propose a PUD that met the criteria, it was not up to the City to indicate what the conditions are necessary to meet the criteria. She added the Planning Commission should not fixate on what was not exactly right in the decision especially since it was the burden of the applicant to provide sufficient information in the first place. She felt the Hearings Official did not err in this instance. She added that she could be comfortable if all that was necessary was tweaking the applicant’s proposal, but the current application required an overhaul. She said the limitation of what could be accomplished and what could be enforced with new conditions had been reached. Mr. Hudspeth concurred with Ms. Levis, and wanted to move on. Mr. Hledik asked what standard would have made the Hearings Official more comfortable, as she was troubled that almost 50 percent of the lots exceeded the maximum. Mr. Nystrom said that the Hearings Official was simply stating the facts, rather than iterating a specific number of lots that did not comply. He added that she did address the criteria, and was silent on the exception, inasmuch as it was not necessary to specify the exception. Ms. Levis asked if would have been allowable if the applicant had asked for the exception prior to or at the very beginning of the PUD process. Mr. Nystrom replied it was complicated by the applicant’s request that asked for an exception based on R-1 zoning standards and exceptions, when it would be difficult for the applicant to make a case on that level. Mr. Kullby said he had tried to put the request into a better framework for the discussion in the Staff Report presented to the Hearings Official; however, the findings from the applicant were not in the record to justify the request. Mr. Flock said the Hearings Official based her decision upon the merits of the materials provided by the MINUTES – Eugene Planning Commission April 18, 2005 Page 8 Regular Meeting applicant. Mr. Nystrom added there were issues with the accuracy of the information in the materials, as well. Mr. Duncan stated that he agreed with Ms. Levis, and was bothered by the way the numbers were thrown out like they meant something, when exceeding 13,500 s.f. was the point of the Hearings Official’s argument. Mr. Belcher expressed concern that there was a process to have lots larger than 13,500 s.f. that the applicant did not address via a PUD modification request. But he said he was also uncomfortable setting a precedent that would say in order to meet the goals of the South Hills Study, all that was needed was to create large lots. Ms. Colbath concurred with Ms. Levis, saying she agreed that the Hearings Official did not err in her decision, and the applicant did not request the exceptions or modifications properly in their written statement. She felt something was missing from the Hearings Official’s decision because the Hearings Official was silent on the issue. Ms. Jerome stated that the draft Final Order before the Planning Commission had the Planning Commis- sion making two findings. The Hearings Official correctly determined that the maximum lot size standard was not met under subsection (a) of criterion EC 9.8320(11); and, the Hearings Official was not required to further consider a PUD modification not requested by the applicant. She said if a decision maker determined that if there was one criterion that was not met, it was not imperative that the decision maker consider the other criteria thought she agreed it was cleaner if the Planning Commission looked at all of the criteria, particularly in the event that an appeal body determined there was not sufficient basis for denial in the record. The draft final order language before the Planning Commission simply states that the Hearings Official was not required to consider the exception or modification. The Planning Commission did not need to go further than that and did not need to determine if there would have been a meritorious modification or exception. Ms. Jerome said she heard consensus from the Planning Commission that subsection (a), on its face, had not been met, because there was at least one lot that was above the maximum. She added that the discussion was moving in the direction of, “Should there have been a modification or exception?” She said if there was no analysis on that, and it was the last and only thing left as a potential basis for denial, it would come back to the Planning Commission for findings. She said there was less legal risk if the Planning Commission addressed everything, but it was a policy decision for the commission to determine where it cut off the analysis. In response to Mr. Belcher, Ms. Jerome said the Planning Commission would first need to find that the Hearings Official erred by not providing more analysis under subsection (j) of PUD criterion EC 9.8320(11). Then the Planning Commission would need to look at the applicant’s proposal for making findings for an exception or modification to determine if the proposal met subsection (j). Mr. Belcher said there was a process by which to get an exception to the maximum lot size via a Type II decision process. He asked how it could be folded into this Type III process. Mr. Flock said an applicant could elect to have an application reviewed at a higher level, but he noted that the Type III process in this case was imposed by other factors which required a PUD review of develop- ment on the property. MINUTES – Eugene Planning Commission April 18, 2005 Page 9 Regular Meeting Mr. Hledik noted that the argument had to be made on a lot by lot basis in a Type II process based on the R-1 zoning exception provisions. Mr. Kullby said in a Type II subdivision, it would need to be reviewed on a lot by lot basis, because only the PUD, Type III process allows for general modifications to standards. He said even the PUD modification process, a Type II decision, could not be used to modify code standards. Mr. Flock said the PUD process provides additional discretion regarding criterion (11)(j) that would not be available in a standard subdivision. Mr. Nystrom said the PUD option provided greater flexibility to look at the project on a global basis rather than on a lot by lot basis. He added that all of the lots subject to the modification needed to be identified. Although staff had opined the PUD approach was a more appropriate place to have the discussion, the applicant chose a different path. He reminded the Planning Commission that it was obligated to determine whether the Hearings Official erred before it went deeper into the “what if’s.” Ms. Colbath said the Hearings Official had not erred given the set of circumstances she had, i.e., the Hearings Official was not approving the other issues, and the Hearings Official was not required to comment on it if she was not approving the other issues. Conversely, if the Planning Commission found the Hearings Official erred in other places, it might find that she erred with this issue, also. Mr. Hledik said legal counsel was asking the Planning Commission to consider everything to ensure that it was bullet proof when it went to further appeal. He said it would be desirable if the Hearings Official could do the same for the Planning Commission in the future, noting that there were a considerable amount of unanswered questions in the decision. The Planning Commission took a straw poll: Did the Hearings Official err in making findings that there were lots over the maximum lot size of 13,500 s.f. The commission voted unanimously to uphold the Hearings Official’s decision. Following further discussion, Mr. Nystrom said the focus of the Planning Commission discussion should be if the Hearings Official erred by not addressing the question. The Planning Commission took a straw poll: Did the Hearings Official err when she determined that because the application must be denied, it served no purpose to evaluate or comment on those proposed modifications at this time, based upon whether she appropriately evaluated the application or whether she failed to make a deci- sion consistent with the applicable criteria. The commission voted unanimously to uphold the Hearings Official’s decision. • Appeal Issue #1 Mr. Hledik iterated his comments made at the April 11, 2005 public hearing, that he saw no ties to a specific Metro Plan policy in the Hearings Official’s comments. He added that although he had been bothered by the Hearings Official citing reference to misstated goals and objectives in Metro Plan, but MINUTES – Eugene Planning Commission April 18, 2005 Page 10 Regular Meeting since no policy had been identified by the applicant, it was not necessary for the Planning Commission to address his concern. Ms. Colbath said she understood that the Hearings Official was addressing what the applicant had written. In fact, not only policies were addressed, but objectives and potential findings were addressed in the commentary by the applicant. Although she was citing an incorrect statement made by someone else, the Hearings Official correctly quoted the applicant, thus, the Hearings Official’s statement was correct. Mr. Kullby confirmed the Hearings Official cited the incorrect policy, and Ms. Muir suggested that the Planning Commission find that the Hearings Official erred. Mr. Belcher said he read in the Hearings Official’s argument that the Metro Plan said “..broad objectives that are reflected through refinement plans and codes…” and that by not meeting specific pieces of code, the applicant did not meet the broad objectives of the Metro Plan. That was not an argument he had previously heard. He said the argument should be made in the specifics of the code, not in the refinement plan policies, rather than raising the argument to the level of the Metro Plan. The Planning Commission took a straw poll: Did the Hearings Official err in Appeal Issue #1. The commission voted unanimously in opposition to the Hearings Official’s decision regarding PUD criterion EC 9.8320(1). • Appeal Issue #2 Mr. Duncan stated that he had reread the South Hills Study, a 30 year old document, which was developed before the City became more knowledgeable about issues such as wetlands and saving natural resources, and other issues. Citing page 27, he questioned the decision, in that he interpreted the term “areas” used in the South Hills Study to be referring to the whole south hills area, not just the area of the PUD request. He added that the Hearings Official had focused on the development site, rather than as the entire area of this portion of the south hills. Referring to the topographical map included in the report, he observed there were many areas around the Spring Knoll PUD with higher slopes with greater visual impact and that the Spring Knoll PUD was proposed on some of the lower lands in relation to the ridgeline of the south hills. Mr. Duncan he said he believed the South Hills Study policies were written to consider the a development site in context to the whole south hills area. Mr. Hledik concurred with Mr. Duncan. He said if the general goal was to preserve scenic ridgelines, he questioned why the Hearings Official focused only on the eleven acre PUD proposal as opposed to looking at it in the larger context of where the eleven acres sat within the south hills. He asked if this could be considered a lower elevation in the broader context of where the site is located in relation to the south hills ridgeline. He said the Hearings Official looked at the eleven acres, and he asked if that was the intent of the refinement plan policies and PUD criterion in evaluating PUDs. Mr. Flock said that staff had consistently interpreted and applied this policy language in the context of a development site in a given application. He added it was not clear to staff where or how boundaries outside of the application would be defined on which to base an analysis. Mr. Belcher asked what process would be used to evaluate the entire south hills impacts relative to this parcel, i.e., was it high or low in the south hills. He opined it was a relatively impossible task. MINUTES – Eugene Planning Commission April 18, 2005 Page 11 Regular Meeting Mr. Belcher asked if now that the south hills had experienced some development future applicants would find it more difficult to meet the visual standards because some of the other developments because of the existing impacts by other applicants. Mr. Belcher said he thought that was what the PUD process was about, to at least allow a review of development site options, so that adjustments could be made within the development site. Mr. Belcher said the Planning Commission had never looked at PUD sites in this broader manner and asked if staff wanted to change the way in which it looked at the South Hills Study. Mr. Duncan asked if the site had been configured differently, with each piece considered independently, was the commission looking at what was best for the south hills as far as a development strategy. Or, was the commission looking at it piece by piece? He said if the piece by piece approach was used, less desirable projects could result. He noted that if urban developments became more intense and looked only at whatever showed up each time, a hodgepodge development process would result. For example, if the site under discussion was divided into three pieces, the applicant could develop any way he wanted to because each site would be under the four acre requirement. Mr. Duncan said if the intent was to save the ridgeline, the mistake had already been made. There were already houses sitting on the ridge, and this proposal was below the ridge. He asked how would urbanization continue, and how could it be achieved in a way that benefited the south hills, the visual enjoyments, and the public needs. Ms. Colbath said the community already looked comprehensively at land use issues, such as access and egress and street connectivity. She could not go to a PUD site and evaluate it only in the context of its lot but would want to evaluate it in the context of its area. She said staff had to deal with these issues on a lot by lot basis every day. Ms. Jerome said when discussing standards like these, she observed different interpretations among the commissioners. What she needed from the Planning Commission was a vote on specific interpretation of the criteria. Mr. Belcher opined that the Planning Commission was making good arguments, albeit to modify the South Hills Study. He said when the South Hills Study was written 30 years ago, it was clear to him that it was written on a PUD by PUD basis. The South Hills Study had been interpreted in that manner ever since. He said with more sophistication and history, it may not do what it was intended to do, but it was still the South Hills Study. He said if the commission wished to change the South Hills Study it should do so, but the commission could not reinterpret it for this PUD. Ms. Levis said the good thing about the PUD like this was that you had all of the other PUDs built around it. The bad thing was that you had all these PUDs built around it, and so we can now point to develop- ments we do not like and the South Hills Neighbors are requesting that a bad development practices not be repeated. She said that in context to the UGB, this site is zoned for development. She asked, “How do we do what the South Hills Study plan told us to do, such as ensure clustering and preservation, and ensure that the scale, bulk, and height of development blends in with the south hills character while recognizing private and public interests?” Mr. Belcher said if you use the logic that you have to look at the area as a whole, the ability to visually impact the south hills area has been exhausted. MINUTES – Eugene Planning Commission April 18, 2005 Page 12 Regular Meeting Mr. Duncan said there were some subsections to be dealt with. He said the intent of the South Hills Study was to talk about trying to create a good south hills development process, and he was not comfortable saying since it had always been done one way that was the only way. He said the intent was to go another way. Unfortunately, the document is 30 years old and we are not sure what any of the intents are being adequately accomplished. Referring to page 29, Ms. Colbath quoted from the Hearings Official’s decision, “The Hearings Official concludes that the proposed open space and conservation areas (areas outside of the designated Areas of Impact) are provided in a way that clusters open space elements of abutting development to provide a continuous open space element along the streams that traverse the site.” Ms. Colbath opined that the Hearings Official found that what was done was appropriate, asked staff for an explanation on why it was not appropriate. Mr. Flock said there were two areas in the policy language that referred specifically to clustering. The first, as cited on page 27, was to encourage clustering of development in areas characterized by interme- diate and steep slopes; higher elevations; significant amounts of vegetation; and, significant visual impact. He added that the language on page 29 provided language for another policy, “That developments be reviewed to encourage clustering of open space elements of different developments in order to preserve the maximum amount of continuous open space.” Mr. Flock said that only when a policy specifically called for the evaluator to look outside the develop- ment site would the context of a site to its surroundings be evaluated. In this case the evaluation of combining the open space elements of this development site with those that may exist around it was called for. He said the language on page 29 was about clustering open space elements with other existing open spaces around the development. Ms. Colbath asked if the developer had moved the proposed development to another part of the site, would it have worked better. Mr. Nystrom said the applicant could have clustered development more than what was proposed. He said there were different factors to consider when trying to develop land in a sensitive manner. One was to cluster development as best you can in areas that were less sensitive. Secondly, clustering open space to provide larger contiguous pieces of open spaces where possible, and better yet, to locate open spaces on site contiguous to open space on adjacent properties. Thus, both aspects of clustering should to be considered. He said there were a myriad of ways to approach the problem, all of which were discretion- ary. Thus, there was no black and white answer. He said as the Planning Commission moved deeper into this PUD, there were several very discretionary points. The Planning Commission needed to ask what the Hearings Official saw in her review, and where and how she may have erred. He said the commission would not be able to offer a precise interpretation on every policy issue, and would not be able to see them on the same plane. Ms. Colbath summarized that the Hearings Official was looking for all of the elements being met. Mr. Nystrom stated the South Hills Study said this was a sensitive area with many different constraints and attributes that needed careful treatment. Thus, a PUD was required for larger scale developments in the south hills, to provide a mechanism to consider the myriad of issues, and to balance them appropri- ately. He said the bar may change from site to site, and the fact that development occurred over time adjacent to the property or across a ridgeline, may or may not affect that decision. The point was that the MINUTES – Eugene Planning Commission April 18, 2005 Page 13 Regular Meeting applicant had the burden of taking the entire bundle of issues, identifying constraints and sensitive issues, and doing his best to make all of the elements fit. The answer could vary from project to project. He said the Planning Commission was first being asked to make sure they were on the same ground in terms of how it saw the function of the South Hills Study, and in agreement in terms of how it generally applied. Then the Planning Commission could go into more specifics. Mr. Nystrom said there may be cases where there were no adjacent open spaces on different developments, but it was important to evaluate them and look for opportunities for clustering open spaces. Mr. Duncan said he was not saying that his interpretation of the South Hills Study was different than what had occurred in the past. He was suggesting that his interpretation that one section apparently was different than what had occurred in the past, and this was the first time he had heard this. As he read it, it was apparent to him that the Planning Commission was talking about a much larger area. He did not want to suggest that the South Hills Study itself had a different interpretation than what had occurred in the past. Mr. Belcher said he agreed to the extent that it would be good to take a gestalt approach, but the only tool in the tool box was on a lot by lot basis. Mr. Belcher said the South Hills Study was always first on the Planning Commission’s list of requests to the City Council to revise and update the document. Ms. Colbath said the question was did the Planning Commission agree that this was on a PUD only basis, or did the Planning Commission believe that it was something larger than the PUD only that was missing from the Hearings Official’s evaluation. She said the Hearings Official, staff and the Planning Commis- sion had previously evaluated south hills PUDs in this way in the past. The question was, Does this commission believe that was the way in which this PUD should be evaluated. Ms. Colbath posed a straw poll, asking: Do you look at this as a PUD only basis as in the past, with the exception of criteria where it calls for addressing a larger area within the south hills. Ms. Jerome said it was important to capture the intent of the straw poll, and read revised language for the straw poll. As an initial matter, the Planning Commission interprets the policy cited in the middle of page 27, as pertaining to areas in the context of the subject development site. A majority of the Planning Commissioners agreed with the language as presented. The Planning Commission took a break from 7:18 p.m. to 7:25 p.m. • Appeal Issue #2 (a) Mr. Flock read the four issues raised by the appellant in challenging the Hearings Official’s decision to deny the application on Appeal Issue #2, on page 20 (applicant’s appeal), and page 27 (the Hearings Official’s findings). Mr. Nystrom said the Planning Commission discussion should focus on whether or not the findings regarding clustering were adequate, or whether the Hearings Official erred in that finding. MINUTES – Eugene Planning Commission April 18, 2005 Page 14 Regular Meeting Mr. Flock read from page 5 of the Draft Final Order, “…the Planning Commission finds that the Hearings Official appropriately evaluated a variety of factors in concluding that the policy was not met, including deficiencies and inaccuracies on the applicant’s plans, lack of specificity regarding the location and types of vegetation to be preserved or otherwise removed, and uncertainty regarding the relationship of building envelopes and areas to be preserved.” He added that there was evidence in the record including testimony from both sides. Ms. Colbath asked in what areas the Hearings Official found lack of specificity. Mr. Nystrom said that in the impact areas, it was not clear how the applicant would cluster development to ensure that criteria regarding how to cluster the actual impact of the development would be met. Instead, there was a large area on each of the identified tax lots that illustrated an area of impact, within which somewhere, development would occur. He said the lack of specificity of where the development would be located and how it would occur was one area the Hearings Official felt was deficient. Mr. Flock said information was lacking in relationship to the type, quality and location of the vegetation to be preserved and removed. Mr. Hledik said specificity was not clear in the process, so there was some discretion. He opined that could be addressed by a condition. Mr. Nystrom said staff had attempted do to that with its list of recommended conditions. The Hearings Official felt the conditions were not adequate at addressing the deficiencies of the proposal, and did not answer the policy and criteria issues to the Hearings Official’s satisfaction. Mr. Flock said there was sufficient uncertainty that the Hearings Official felt there needed to be more public input and evaluation of the factors that would come to the conclusion regarding the conditions needed. Mr. Nystrom said all of the South Hills Study policies related to Appeal Issue #2 were very discretionary, and he noted there were no clean answers as to what clustering meant, or what percent was necessary to be consistent with the policy. He said the Planning Commission needed to look at the information provided by the Hearings Official. It then needed to look into the record to determine if there was adequate justification to find that the appellant failed to show compliance, or did the Hearings Official err in reaching her conclusion. Mr. Belcher said the question of the decision was a key one, in that the Planning Commission was asked to determine whether the application made a sufficient effort to preserve vegetation, in spite of the fact that it was not clear how much vegetation needed to be preserved. How can a response be given when there was insufficient evidence? It was difficult to judge the application if the proposal was unclear. Without some indication of the number of trees being preserved versus the number being taken, how could a determination be made regarding preserving sufficient vegetation. Referring to page 31, Mr. Hledik read, “The Hearings Official agrees with opponents that the Tree Preservation Plan and the proposed building impact areas do not assure that development will be consistent with this policy. While conditions of approval may be sufficient to assure that trees stands are preserved, it is first necessary to know the precise location and species of trees to be retained and removed, the precise location of building envelopes, and more information regarding plant and animal MINUTES – Eugene Planning Commission April 18, 2005 Page 15 Regular Meeting species on the site.” Mr. Hledik proposed making a condition out of the statement. Ms. Muir responded that the Hearings Official was saying that if she had seen a plan that identified the location of the trees, she could have conditioned those specific trees to be preserved. Mr. Hledik said he struggled with the idea that if the footprints were not mandated on the plan in this type of development, this kind of looser impact area would be acceptable to some extent, in this type of development. It was not known what type of structure would be built until the lot was sold, but during the building permit process, conditions that narrowed down the locations of the building footprint and driveway could be implemented, allowing for vegetation removal. Mr. Belcher said the question before the Planning Commission was did the proposed plan provide sufficient preservation of existing vegetation. To answer that questions, determining where the trees were after the fact did not tell decision makers now whether there would be sufficient vegetation preserved in the end result Mr. Hledik said staff pointed out that aside from the road and the impact areas, approximately 41 percent of the area was preserved. If that was narrowed down to the areas within an impact area, removing only that vegetation which was in the footprint and the driveway, how much more vegetation could be protected at one point in time. Mr. Nystrom said it was difficult to dissect this, issue by issue, when looking at the larger package. He believed neither the Hearings Official nor was staff looking at something that would be so specific in terms of the exact footprint for each of the lots. He said he did not understand the Hearings Official evaluation to require that level of specificity. But, with the large amount of areas that were shown as potential impact areas that could accommodate the house, driveway and landscaping, and with insuffi- cient detail about how that would be captured, it was difficult for the Hearings Official to say there was enough evidence to satisfy the criteria. He added that the Planning Commission could disagree with the Hearings Official, stating it knew that “x” percent of area had to be preserved. The finding that she erred by asking for any level of specificity about the lots is not needed. He interpreted her decision as indicating that the applicant did not pose enough of a credible argument, and did not identify potential impacts. Ms. Colbath said as she interpreted the Hearings Official’s decision to mean that there was no require- ment to give precise information regarding all of the trees on the lot. Mr. Kullby said that although not a code requirement, the application forms did request an arborist’s report and a tree preservation plan showing all the trees (8” diameter or greater) on the site. Mr. Nystrom iterated the evaluation of the information presented in relation to the criteria and standards for gaining PUD approval was a balancing act. In some cases, a detailed inventory of every tree on the lot may be necessary to meet that test, but it may not be necessary in other cases. The code said the burden was with the applicant to demonstrate that the proposal could meet that test based on the evidence presented in the application. Ms. Colbath said people viewed clustering differently. Clustering to one person may be leaving conservation areas, and clustering all of the development in another area. Another view of clustering would be to have a conservation area within a lot and have a home site location clustered within one area MINUTES – Eugene Planning Commission April 18, 2005 Page 16 Regular Meeting of the lot i.e. in an impact area. Ms. Colbath asked what was the quantitative measure of adequate vegetation preservation. If the Hearings Official did not err in saying more information was necessary to make a specific finding on the location and types of vegetation to be preserved or removed, how would that be determined in a condition? Ms. Levis reiterated the Planning Commission was not here to figure out all of the details, but to interpret the Hearings Official’s judgment. She said she believed the commission did not have enough information to make a determination otherwise. Mr. Belcher added that the burden of proof was on the applicant to demonstrate why he clustered or did not cluster. He saw no argument that the applicant had clustered, with the exception of setting aside the conservation areas. There was insufficient argument as to why he did not cluster. Mr. Belcher stated the application was not a well developed application. Mr. Nystrom said there were four items within appeal issue #2. Ms. Jerome said with respect to appeal issue #2(a), encourage clustering and preservation, it was preferable for the commission to address those issues together. Mr. Duncan expressed difficulty in dealing with the issues together in that preservation was possible without clustering, as the Hearings Official observed. Ms. Levis said page 28, read, “The applicant states that the impact areas on individual lots are delineated in a way that clusters impacts away from natural features proposed for protection.” Mr. Duncan said he interpreted the Hearings Official’s decision to mean clustering was intended to save vegetation. Page 26, said “the Hearings Official agrees that the PUD design proposed by the applicant does little to cluster residential development away from the sensitive areas on the site. However, clustering is not the only design mechanism that can be used to minimize impacts.” Ms. Levis said the Hearings Official used the word cluster in two different ways, i.e., clustering areas of impact and also clustering development in areas to leave clusters of non-impacted areas. Mr. Duncan understood that clustering was a housing process which had not been truly successful in the south hills. Thus people shied away from it. That did not mean clustering open space, vegetation and everything else to create the open space and protect the natural resource and conservation areas was not desirable. Mr. Hledik said he was not familiar with how the South Hills Study had been developed nor its intent. Looking at previous Planning Commission actions related to PUDs in the south hills before, the Hearings Official said it was not consistent with the policy because the proposed design did not preserve as much of the natural features as is feasible. As is feasible was not part of the encourage clustering and encourage preservation. It seemed to be more of an affirmative do it than encourage. Mr. Belcher said if there were conditions on the site or mechanisms that the applicant determined that clustering did not make sense, it was the applicant’s responsibility to advise the City that it was too MINUTES – Eugene Planning Commission April 18, 2005 Page 17 Regular Meeting restrictive, or to propose an alternative. The applicant failed to make a reasonable effort to demonstrate that clustering and/or preservation was not feasible. Ms. Colbath posed a straw poll: Do you believe the Hearings Official was correct in her finding on the encourage preservation is- sue. A majority of the Planning Commissioners agreed with the language as presented. Addressing the clustering question, Ms. Levis said some people defined clustering as actual buildings while she interpreted it as clustering areas of impact or nonimpact. Ms. Colbath said perhaps clustering was about the preservation issue and not specifically about clustering of buildings. Ms. Jerome said one approach was to encourage clustering in areas characterized by the four characteris- tics cited on page 27. Development was not defined in the South Hills Study, leaving some questions as to whether or not it referred to just buildings. Development was defined in the land use code. It was clearly stated that clustering was seen from an area perspective not just the construction of buildings. The Planning Commission needed to reach consensus on whether the Hearings Official erred in her interpreta- tion. Mr. Nystrom said the Hearings Official was saying that the applicant erred in not providing enough information to demonstrate that he had attempted to meet the encourage statement by providing arguments to show how those preservation issues would be addressed. Mr. Belcher iterated that clustering served four purposes: to move development to the shallowest slopes, the lowest elevations, the least amount of vegetation, and the least amount of visual impact. Ms. Colbath offered a straw poll: The Hearings Official was correct in citing a lack of information on clustering of development as one of her findings for denial. A majority of the Planning Commissioners agreed with the language as presented. • Appeal Issue #2 (b) Mr. Flock said on page 29, she pointed out there was not enough information to support the conclusion. She cited the schematic drawings provided by the applicant’s architect but noted there was no mechanism regarding CCRs or other provision to commit them to a particular design. “Further, the architectural renderings do identify the relationship between the dwellings and the trees identified to be preserved.” Mr. Flock said on page 29, she agreed with the opponents “That the areas of development impact, as proposed, are not likely to encourage compact dwelling design in a manner that would render the built environment a part, rather than a dominant feature, of the landscape.” Mr. Nystrom added that in the findings, further arguments made by the applicant’s attorney at the April 12, 2005 appeal public hearing relied on new conditions to show compliance with the PUD criteria. MINUTES – Eugene Planning Commission April 18, 2005 Page 18 Regular Meeting Mr. Flock pointed out that Mr. Kloos’ written arguments put forth three conditions, 15.1, 15.2, and 17.1. However, there were no findings other than referring to the Hearings Official’s decision and quoting it. Mr. Kloos claimed the project blended with the natural environment based on additional conditions, even while the scale, bulk and height considerations were ignored. There were no findings to support where the Hearings Official erred and how these conditions would fill that gap in the analysis error. Mr. Duncan asked staff how enforceable by the City were the CCRs. He opined they were not enforce- able. Mr. Flock said certain provisions of the CCRs could be enforceable but only if they were conditioned as such by the City. Mr. Nystrom said only in rare occasions has the City been a party to the CCRs by which the CCRs could be enforced by the City. He said it was not typical for the City to be a party to the CCRs of a subdivision. Mr. Nystrom said it was always difficult in single family PUDs to determine how much of information was necessary to satisfy the criteria. This PUD was not so much a precise housing design but was about looking at areas of impact. The Hearings Official found problems with the vegetation side of the equation, as far as what would be protected, screened, and other factors that might soften the impact. There was very little definition of either of the impact area and preservation of natural vegetation components of the applicant’s proposal. Mr. Duncan found that drawings would have been helpful to illustrate something other than a building envelope. There was nothing on the plans that showed the amount of vegetation that would be required for screening between houses. Mr. Kullby said a landscape plan prepared by a certified landscape architect would meet the test. Ms. Levis said the applicant commented at the April 12, 2005 public hearing about imposing color selection for the houses in the PUD. However, there was noting in the record that proposed or would enforce that kind of requirement at the time of house construction. Mr. Kullby said that could be addressed in a new PUD proposal. Ms. Colbath said the CCRs could have been a condition had the Hearings Official found there was adequate information in other areas. The Hearings Official said several times that there was not enough information to add more conditions to the proposal. She noted that the criteria identified scale, bulk and height, as major development concerns, not the color of the houses. Mr. Nystrom said location on the site was important too. Mr. Flock said using the natural environment for landscape screening between dwellings was another method that applicant could have proposed.. Mr. Nystrom said screening individual homes with new landscaping or existing trees and the existing vegetation would also help houses blend in with the environment. While screening was not mandatory, it would serve a useful purpose. MINUTES – Eugene Planning Commission April 18, 2005 Page 19 Regular Meeting In response to Ms. Colbath, Mr. Nystrom said the applicant needed a mechanism to allow the Hearings Official to determine what development parameters set up in the applicant’s proposal would demonstrate what the scale, mass and bulk impact would be on the lots. Again, insufficient information provided by the applicant precluded designing meaningful conditions. Ms. Colbath asked what kind of information was usually provided by applicants. Mr. Nystrom said a precise footprint was not necessary, but a defined area within which the house would be located, regardless of whether it was a 2,000 s.f. house, or a 4,000 s.f. house. Mr. Nystrom said other PUDS have illustrated better-defined areas of impact within which a building envelope would be sited to meet the criteria. In this situation, the information was not provided by the applicant . Mr. Belcher said the only thing provided were some drawings of what could occur, but with no guarantee that the houses would look like what was presented in the application, or that any of the trees shown around the houses depicted would remain or be planted. Ms. Levis asked what information from the applicant was preferred when lots were to be sold one at a time to individuals. Mr. Nystrom said there was quite a bit of custom building in the south hills, so getting an idea of what each house would look like was difficult. Staff looked for as many parameters as possible to address the mass, scale, and bulk question. Well-defined building envelopes provide limits to mass, scale, and bulk information as well as location information. Mr. Hledik asked if the applicant had inserted the 80 foot diameter proposal early on in the process, might that have helped better define this proposal. Mr. Nystrom yes, in principle some better definition may have helped. He noted staff had made that request several times throughout the process, but the applicant had not provided all the information requested by staff. Ms. Colbath offered a straw poll: Does the Planning Commission uphold that the Hearings Official was correct in her findings regard- ing scale, bulk, and height, as far as the adequacy of the information that was provided. A majority of the Planning Commissioners agreed with the language as presented. The commission voted unanimously to uphold the Hearings Official’s decision. • Appeal Issue #2 (c) Referring to page three of the appeal, Mr. Flock addressed subsection (c), “Recognition of both public and private interests.” He said the Hearings Official addressed this on page 30. She had relied in part on testimony provided at the February 9, 2005 public hearing. She also summed up her findings in the second paragraph with regard to the policy. Mr. Flock added that the staff draft findings did not include the sub-item. The draft order would be amended to include the issues of scale, bulk and height. MINUTES – Eugene Planning Commission April 18, 2005 Page 20 Regular Meeting Mr. Duncan asked what enforcement authority if any did the City have in the private conservation areas once they were platted, and developed. Mr. Flock replied the City had enforcement authority for conditioned requirements through the PUD performance agreement and the approved site plans. CCRs should incorporate those conditions and could mandate additional restrictions or protections that could be extracted from private party agreements between owners. Certain provisions of CCRs could be designated as being enforceable by the City. In response to Mr. Duncan, Mr. Nystrom stated that the City had enforcement authority over land use decisions, and land use management staff was in the role of enforcing the conditions of approval. In some cases, civil penalties could be imposed if property owners violated the conditions. Mr. Duncan asked about enforcement five to ten years from now. Referring to page 37, he noted that there appeared to be little enforcement related to pesticides and wetland fill issues. He felt people should be relied upon to act legally, and that requests should not be denied simply because someone might act illegally. Mr. Kullby said the example brought up in public testimony by Ms. Henderson about the lack of wetland protections was one in which the City could not conduct enforcement in Springcrest PUD Phase 1 (near the subject site) because the PUD conditions was not strong enough for city staff take act upon. He said Ms. Henderson was saying that she wanted language that was strong and enforceable unlike what has happened in the past with unenforceable preservation proposals in other PUDs. Mr. Nystrom said that is an important point, about the City’s ability to follow up on land use enforce- ment. Some violations were part of other agencies’ enforcement authority. Perhaps both the wetlands fill and pesticide issues would be beyond the control of the City, but there was concern about the limitations of the City’s enforcement authority as a whole. Mr. Duncan expressed concern about the public interest. It was not up to the private developer to determine how public resources would be managed, but rather public agencies. Mr. Duncan said conservation easements should incorporate requirements that are enforceable by the public. Mr. Belcher said it was a matter of degree. A homeowners’ association could protect a piece of land which would provide more protection than if it stayed in individuals’ lots where they were individually expected to preserve it, but less protection than it would receive under a conservation easement. The third level was that there would be no requirement at all. Most of these lots had no requirements at all. Mr. Hledik asked for typical examples of how conservation areas were protected in other PUDs. Mr. Nystrom replied, referring to page 30 of the Hearing's Official's Decision, that in the grander scheme of things one would balance the public interest in having some of the natural areas preserved as part of the south hills philosophy. One balances the public interest while allowing private interests in providing economically viable projects that provide for some level of residential densities in the south hills. The Hearings Official made statements that indicated the applicant did not do a good job of looking at the issue or had not answered questions to enable the Hearings Official to evaluate that policy. Mr. Nystrom said there were a variety of ways of providing that balance. Usually conservation areas MINUTES – Eugene Planning Commission April 18, 2005 Page 21 Regular Meeting were deeded as separate lots in common ownership and were maintained by homeowners’ associations or some form of easement on private lots that were protected. Those were more the responsibility of individual property owners for their section of the conservation easement. Mr. Belcher said this proposal did not meet with density or natural resource protection requirements of providing public benefits. It had a lower density than was mandated by the code and did not sufficiently improve the natural resource areas, thus meeting neither requirement. Ms. Colbath said there were many ways to view public interest. Several PUDs in the south hills dedicated land for parks, citing Skyline Park as an example. Although some public benefit occurred, was it enough? She said she could not say that the Hearings Official erred in her judgment on that issue. Mr. Hledik said the Hearings Official did not address the 41 percent protected area proposed by the applicant, which was significant. The 41 percent seemed to provide significant protection, which the Hearings Official did not address. Mr. Nystrom said these were all discretionary issues and the examples varied from project to project. Ms. Levis observed that the Planning Commission was having difficulty reaching agreement on this issue and asked if the commission could refrain from addressing it. Ms. Levis said she focused on a section on page 30, which read, That planned unit development review shall be based upon recognition of both public and private interests. In areas of significant conflict, which could be resolved through the use of an alternative development plan, primacy shall be given to the public interest in any determination. Again, the Hearings Official did not have enough information. Ms. Levis, reading from page 30, said, The public interest stems from the balance of preservation of natural resources and the provision of increased urban densities within the urban growth boundary of the City in a manner that balances private and public interests. The Hearings Official concludes that as proposed, the applicant has not demonstrated that the PUD design recognizes the public interest in preserving natural areas with a private property owner’s desire to develop his/her property. The issue was, did the Hearings Official err in her decision, not whether the commissioners judge public private interests differently from the Hearings Official. Ms. Jerome said there were two components to the standard. The first one is, the Hearings Official misinterpreted the criteria or applied the criteria incorrectly. The second component was did the Hearings Official make a decision that was consistent or inconsistent with the applicable criteria. Ms. Colbath said this clearly was recognition of both public and private interest, but what is the balance. Ms. Levis said that was not the Planning Commission’s judgment. Ms. Jerome said the criterion that was the standard for the Planning Commission review had the two components, and the second component, failure to properly evaluate the application would mean that the Hearings Official missed something in the application or did not weigh the evidence accurately. The second part addressed making a decision that was consistent with the approval criterion. In this case, the applicable criterion was cited on page 30. If the Planning Commission was deciding that it meant something very different from how she applied it, then the Hearings Official would have made a decision inconsistent with the applicable criterion. If the commission believed the Hearings Official erred, it MINUTES – Eugene Planning Commission April 18, 2005 Page 22 Regular Meeting needed to specifically say how she misinterpreted the information, and, then it had to provide a decision. Ms. Colbath asked if the Planning Commission found the Hearings Official erred on one of these a, b, c, d, did it make the entire decision an error. Ms. Jerome said no, the Planning Commission had already determined that the Hearings Official was correct on a and b, which meant that the overall determination that this criterion A 3 20 (20) (2) in the South Hills Study policy had not been met. Ms. Colbath said she would be voting against the Hearings Official’s decision, because she did not believe the Hearings Official properly evaluated the conservation area proposed by the applicant, and the Hearings Official did not make a decision consistent with the applicable policy. Mr. Belcher said he would vote to affirm the decision. The applicant had not provided a sufficient body of information. The Hearings Official said there was not sufficient protection of the resources on the site and she specifically said that the property owner should be aware of development limitations in the City. Because there were no conditions of any great impact, one could not judge whether the public need would be protected at this time. He agreed he was least comfortable taking a stand on this issue. Ms. Levis said she was uncomfortable with this because the applicant made a good faith effort to have large areas of vegetation preservation. The applicant did some really good things and he tried different ways of doing it. But she agreed that the applicant did not give enough detail in the proposals. The applicant looked at larger lot sizes so they could preserve more vegetation. Unfortunately, he did not tell the commission how they were going to preserve it. On the issue of scale, bulk and height, Ms. Levis said the applicant failed to provide any information. The applicant tried to do a lot of really good things that would have made this a good PUD but because the details were not there, Ms. Levis said she had to agree with the Hearings Official’s decision. Referring to pages 217-226, Mr. Duncan said there was extensive discussion about prohibited activities within conservation areas as part of the application. Mr. Nystrom said he was not sure if the applicant was agreeing to follow all of the requirements that were provided in the arborist’s report because those provisions were not incorporated onto the site plans or into CCRs. Mr. Flock said it was only during the appeal and through Mr. Kloos’ letter that conditions were offered by the applicant that would identify the requirements of the application. Staff had attempted to condition elements they thought were essential. Mr. Kullby said it was part of the application but it was not integrated with the site plan. The staff conditions would be noted the site plans and be incorporated into the PUD performance agreement. In this application, there was no way that the City could enforce all of the provisions included in the arborist’s report. Mr. Nystrom said it was not clear if the arborist’s report was a part of the appeal proposals. Mr. Flock noted that report was received on January 20, 2005. It was precipitated by some additional MINUTES – Eugene Planning Commission April 18, 2005 Page 23 Regular Meeting discussion with staff at a meeting with the applicant. Staff encouraged the applicant to provide more detailed information regarding what protection would occur in these areas. He added staff did not have confidence that the conservation areas would actually achieve the intended purpose. Mr. Hledik said Mr. Belcher raised an interesting point that the Hearings Official might have been looking at how to balance preservation and natural resources versus increased urban densities to resolve the significant conflicts between public and private interests. The Hearings Official focused on the private owners’ desire to develop property versus the public interest to preserve the natural areas. Where she erred was in evaluating the criteria with the facts and terms of balance. Ms. Colbath posed a straw poll: Do you believe the Hearings Official was correct in her evaluation of recognition of both public and private interest. A majority of the Planning Commissioners disagreed with the Hearings Offi- cial’s findings. Ms. Jerome said the Planning Commission was reversing the Hearings Official on the findings for this South Hills Study policy, and needed to discuss how the Hearings Official erred. Mr. Nystrom said the main point was the lack of recognition of the applicant’s proposal to provide large open space area as a key component in that finding of error. Mr. Nystrom modified the language of the previous straw poll: The Planning Commission finds that the Hearings Official erred in that the applicant had ade- quately recognized both public and private interests as evidenced by the provision of the large common open space area. The Planning Commission unanimously accepted the modification. Mr. Belcher asked if there would be a second requirement that not only was that area be set aside but that sufficient provisions were included to ensure that it was protected. He said if you set something aside and had no provisions for protection then there was no reason to set it aside. Ms. Levis said the Planning Commission agreed that the Hearings Official erred on this issue in that she did not consider that recognition of public private interests were established and therefore conditions were established. Referring to page 20, Mr. Flock referred to (d) Maximum preservation of existing vegetation. The findings of this policy were on page 31 which read: The Hearings Official agrees with the opponents that the Tree Preservation Plan and the proposed building impact areas do not assure that development will be consistent with this policy. While conditions of approval may be sufficient to assure that tree stands are preserved, it is first necessary to know the precise location and species of trees to be retained and removed, the precise location of building envelopes, and more information regarding plant and animal species.” Ms. Levis said the Hearings Official did not have sufficient information on building envelopes, on what trees were there, on what was going to be maintained, to say there would be maximum preservation of existing vegetation. Thus, the Hearings Official did not err on this issue. MINUTES – Eugene Planning Commission April 18, 2005 Page 24 Regular Meeting Mr. Hudspeth agreed with Ms. Levis. Referring to the April 12, 2005 public hearing, he noted that trees were omitted from the inventory. Mr. Hledik agreed with Ms. Levis. The findings were written with the applicant’s site plan that had legends showing trees to be removed prior to any consideration as to what the footprint or the impact area might be. The plan gave the impression that all of the trees would be removed and a house built. That was contrary to ensuring the maximum preservation. Not all of the trees would necessarily have to be removed but according to the plans, it appeared they would go prematurely. Ms. Colbath agreed with everything that had been said, and would be voting to uphold the Hearings Official's Decision. Ms. Colbath offered a straw poll: Does the Planning Commission believe that the Hearings Official was correct on her findings on maximum preservation of existing vegetation. The Planning Commissioners agreed unanimously to uphold the Hearings Official’s decision. Appeal Issue #3 Ms. Colbath said she was concerned because the Goal 5 inventory had been adopted. Mr. Flock said the code provisions that implement the protections of the inventory were yet to be adopted. Ms. Colbath asked how they would know whether the inventoried Goal 5 waterways were going to be protected or not. Mr. Flock said the code criteria specified protection for Goal 5 resources that must be demonstrated in the PUD proposal. Criterion (4) protection of natural features under (a) split into two subsections. Section (4)(a)1. talked about protection criteria regarding areas not included on the City’s acknowledged Goal 5 inventory. In the case of (4)(a)2 talked about protection criteria for areas on the Goal 5 inventory. The Hearings Official did interpret that the area was included on the City’s Goal 5 inventory. The whole site was part of the Goal 5 inventory as a result of its designation on the scenic areas map of the old Goal 5 inventory. But, the Hearings Official also found correctly, that the new inventory included the intermit- tent streams that traversed the site. The appellant claimed that the Hearings Official incorrectly applied both sets of standards. She applied only (4)(a)2. Ms. Jerome explained that Goal 5 had a number of components. Goal 5 required the City to have inventories on scenic areas, riparian areas, and habitat. The scenic areas were not required to be updated, and had been in place for a long time. They were still in place and still acknowledged. The habitat and riparian inventories were also in place and acknowledged. This site happened to be on the scenic inventory and portions of it were on the new inventory. The fact that it was on the scenic areas map is very clear and that dictated how it was treated under the PUD criteria. Mr. Belcher said there was a split in the process that determined which way you go in the criteria, and it depended on whether it was in the Goal 5 inventory or not. He noted that basically all of the south hills fell into the Goal 5 path. Ms. Colbath offered a straw poll: MINUTES – Eugene Planning Commission April 18, 2005 Page 25 Regular Meeting  Was the Hearings Official correct in her findings on Appeal Issue 3 . The Planning Commission agreed unanimously to uphold the Hearings Official’s decision. Ms. Muir said staff would draft a revised order and the Planning Commission could make a motion on the order. The Planning Commission took a break from 8:59 p.m. to 9:18 p.m. while staff revised the draft order. Ms. Muir reminded the Planning Commission that it could not discuss the merits of the issue, and should not talk with members of the public during the break. Ms. Jerome left the meeting at 9:02 p.m. Mr. Nystrom distributed copies of the FINAL ORDER, FINDINGS, AND CONCLUSIONS OF THE EUGENE PLANNING COMMISSION: SPRING KNOLL PUD PHASE 4 (PDT 04-4). Mr. Nystrom reviewed the changes that had been made to the document during the Planning Commission break. Ms. Levis, seconded by Mr. Hudspeth, moved to modify the Hearing's Official's Decision, based on the oral and written testimony, the available evidence in the record, and the Commission’s discussion, concerning the denial of a tentative PUD application for Spring Knoll PUD Phase 4 (PDT 04-4), as referenced in the Final Order, Findings, and Conclusions of the Eugene Planning Commission. The motion passed unanimously, 6:0. Mr. Belcher noted that a member of the audience commented to him that the Planning Commission was doing a very good job, especially Ms. Colbath in deliberating and facilitating the meeting. Ms. Colbath adjourned the Planning Commission meeting at 9:22 p.m. (Recorded by Linda Henry) m:\2005\planning and development department\planning division\planning commission\pc050418.doc MINUTES – Eugene Planning Commission April 18, 2005 Page 26 Regular Meeting