Planning Commission

SUMMARY MINUTES Regular Meeting Eugene Planning Commission Sloat Room–The Atrium Building–99 West 10th Avenue June 6, 2005 11:30 a.m. PRESENT: John Lawless, President; Mitzi Colbath, Vice President, Rick Duncan, Randy Hledik, Phillip Hudspeth, members; Mike Sullivan, ex officio member; Neil Björklund, Gabriel Flock, Susan Muir, Steve Nystrom, Ann Siegenthaler, Kurt Yeiter, Planning and Devel- opment Department staff; Gary McNeel, Public Works Department staff; Paul Conte, Matt Purvis, Jim Spickerman, Diane Wiley, Terry Connolly, Roxie Cuellar, Kevin Mat- thews, Debbie Jeffries, guests. ABSENT: Jon Belcher, Anne Marie Levis. PUBLIC COMMENT ON NON-AGENDA ITEMS I. APPROVAL OF MINUTES – MAY 2 AND 10, 2005 II. PC DELIBERATION: GOAL 5 NATURAL RESOURCES III. ITEMS FROM COMMISSION AND STAFF SUMMARY MINUTES – Eugene Planning Commission June 6, 2005 Page 1 Regular Meeting  MINUTES Regular Meeting Eugene Planning Commission Sloat Room–The Atrium Building–99 West 10th Avenue June 6, 2005 11:30 a.m. PRESENT: John Lawless, President; Mitzi Colbath, Vice President, Rick Duncan, Randy Hledik, Phillip Hudspeth, members; Mike Sullivan, ex officio member; Neil Björklund, Gabriel Flock, Susan Muir, Steve Nystrom, Ann Siegenthaler, Kurt Yeiter, Planning and Devel- opment Department staff; Gary McNeel, Public Works Department staff; Paul Conte, Matt Purvis, Jim Spickerman, Diane Wiley, Terry Connolly, Roxie Cuellar, Kevin Mat- thews, Debbie Jeffries, guests. ABSENT: Jon Belcher, Anne Marie Levis. PUBLIC COMMENT ON NON-AGENDA ITEMS There was no one wishing to provide public comment. I. APPROVAL OF MINUTES – MAY 2 AND 10, 2005 Ms. Colbath, seconded by Mr. Duncan moved to approve the May 2 and May 10, 2005 minutes as written. The motion passed 5:0. II. PC DELIBERATION: GOAL 5 NATURAL RESOURCES Mr. Björklund introduced the topic. He stated that the agenda packet contained the first installment of staff responses to questions raised by the Planning Commission, and to questions and issues raised in written or oral public testimony. Staff would continue to include responses in future agenda packets until all of the questions were addressed. Additionally, staff would track commission recommendations. Mr. Björklund said issues raised fell into two categories: • Issues that applied to one site. • Issues that applied across the board: o Issues related to how the draft water resources overlay zone was constructed, including setbacks, and exemptions. o Issues related to the impact of the buildable lands inventory. o Issues related to prior vested land useapprovals. o Issues related to the Economic, Social, Environmental and Energy (ESEE) Analysis. Directing the attention of the Planning Commission to the May 31, 2005 memorandum in the agenda MINUTES – Eugene Planning Commission June 6, 2005 Page 1 Regular Meeting packet entitled, Responses to Public Testimony on Goal 5 Recommendations, Mr. Björklund facilitated a discussion regarding the staff responses. • In response to a question from Mr. Duncan, Mr. Björklund replied that preliminary information was included in the packet from the City Attorney’s Office regarding vested interests, and addi- tional information was forthcoming. • Ms. Colbath asked for additional feedback from the City Attorney on the code section about waivers as they applied to Ballot Measure 37. Ms. Muir responded that the City Attorney’s office wrote that section of the applicable code. She added that the language would be revised to be consistent with potential changes approved during the current legislative session as needed. • Referring to number 13, Mr. Hledik asked for clarification on stormwater funding. Mr. Björk- lund replied that several years ago, Stormwater Funds were identified to acquire priority water- way segments. Those priorities were not related to Goal 5. While in some cases priorities coin- cided, staff did not conduct a detailed review of how those recommendations related to Goal 5. Mr. Björklund understood that those funds had been totally expended, and therefore not available to be applied towards the sites recommended for protection under Goal 5. He added that sites had been acquired with Stormwater Funds. Ms. Muir added that the City Council would conduct a work session on funding mechanisms for potential Ballot Measure 37 and Goal 5 claims on June 20, 2005. • Referring to number 10, Ms. Colbath asked if information from the City of Salem’s proposed process of considering protections for all significant wetlands within its city-owned parks could be made available to commissioners. Mr. Björklund clarified that the City of Salem’s proposed ordinance addressed only wetlands in city-owned parks, and thus did not include all Goal 5 prop- erties. He would follow up and bring any available information to the Planning Commission. • Ms. Colbath asked how many other jurisdictions had completed the Goal 5 work. Mr. Björklund replied that most of those jurisdictions were in the Portland metropolitan area, adding that some of the Portland metropolitan area jurisdictions had begun a second round of Goal 5 work. • Referring to number 31, Mr. Hledik asked what was the plan designation for the property in question that was zoned AG. Ms. Siegenthaler replied the property had a natural resource plan designation. She added that the AG zoning allowed for gravel extraction. • Responding to a question from Ms. Colbath regarding concerns of the Home Builders Association about the inventory for residential lands at the end of twenty years, Mr. Björklund said there were two significant things: 1. What was the process, what did the inventory look like, and when would a new buildable lands inventory be conducted. 2. What was the actual impact on buildable lands from the existing regulations. Mr. Björklund explained that the exemptions and flexibility in the regulations precluded creation of unbuildable lots, adding that the footprint of the maximum protected area could be reduced to accommodate development. He said the hypothetical numbers that had been provided were in- tended to provide a context to illustrate the relative amount of land effected by the conservation MINUTES – Eugene Planning Commission June 6, 2005 Page 2 Regular Meeting  setbacks. Mr. Björklund elucidated that the buildable lands inventory would reflect as accurately as possi- ble the availability of buildable lands at the point of adoption of the inventory, as well as ac- knowledging that the amount of available land in the inventory would be reduced to where to- wards the end of the planning period there would be much less land available. The jurisdiction could either choose to conduct a new buildable lands inventory at a given point in time, or address the inventory later, as required, during the periodic review process. Referring to comments from Eugene Chamber of Commerce representative Terry Connolly, Mr. Björklund said that the hypothetical examples used the worst case examples to demonstrate how much land could be affected by the regulations compared to the buildable land supplies. The regulations allowed adjustments to the protections on a case by case basis, thus making it difficult if not impossible to calculate a footprint of what would ultimately be protected. Mr. Sullivan asked if when conducting an inventory, would a cumulative worst case scenario be required, or would a parcel by parcel adjustment to the buildable area be required. Mr. Björklund replied that in the past, a set of assumptions had been developed on the supply side about what was available, and opined that the same procedure would be used for future buildable lands stud- ies. He added it had not been possible to factor in lands in the buildable lands inventories that could not be mapped, and were factored out by assumptions in one or more of the three inventory studies. • Referring to number 9, Mr. Sullivan asked if alternative setback scenarios were put forward, and how the actual setbacks were determined. Mr. Björklund said that staff looked at several options, including what other jurisdictions had done, what the scientific literature provided, and the city’s experience with setbacks in the West Eugene Wetlands Plan (WEWP) area during the past ten years. Using the WEWP model, the setbacks proposed for Goal 5 were modified to fit the types of physiographic and geomorphic circumstances in waterways that did not apply in west Eugene. • Referring to number 61, Ms. Colbath asked if the contractual relationship between the City of Eugene and the University of Oregon (UO) Riverfront Research Park (RFRP) would prohibit the city from imposing requirements not included in the contract. Mr. Björklund said he would check with the City Attorney. Mr. Sullivan expressed a similar concern regarding a conditional use permit (CUP). He said sig- nificant actions and investments that had been made as the basis of the CUP at the RFRP had a contractual feel, albeit a different type of transaction, that was viewed as similar to an easement or contract. He expressed hope that issue would be addressed by the City Attorney as a contrac- tual right that survived. Mr. Lawless added that was similar to any development agreement that private parties had with the city, in that they were binding both ways. Mr. Nystrom affirmed that the City Attorney would review these concerns. Mr. Hledik asked why the white oak forest, the pileated woodpeckers and other Oregon sensitive species were not addressed in the upland wildlife preservation areas. Mr. Björklund replied that in 2003, the City Council directed staff to remove non-stream areas from the inventory by apply- MINUTES – Eugene Planning Commission June 6, 2005 Page 3 Regular Meeting  ing the safe harbor process to them. The staff analysis at the time demonstrated that applying the safe harbor provisions to the non-stream areas would accomplish that directive. The pileated woodpecker was designated as a sensitive species in 1993. Staff consultation with Oregon De- partment of Fish and Wildlife (ODFW) indicated that there was no documented habitat for sensi- tive species in the South Hills. Whether or not the original information from ODFW was accurate, it was followed. The appro- priate place to address whether or not the City Council action was correct and based upon correct information would have been to file a legal objection. The council action went completely through the process to acknowledgement without challenge on that issue. The Planning Commis- sion could reconsider that action and recommend the City Council direct staff to conduct that work. That would require new inventory work because no official inventory work addressed ei- ther oak woodlands or pileated woodpecker habitat, subject to available funding and staffing. In response to Mr. Hledik, Mr. Björklund stated that he was aware of no other sensitive species mapped at the time the inventory was adopted, under the safe harbor provisions. • Ms. Colbath asked how the Oregon Administrative Rules (OAR) review process would work as identified in a letter from the Friends of Eugene. Mr. Björklund said the city could address the is- sue in a number of ways, based upon a recommendation by the Planning Commission. • Referring to number 11, Mr. Duncan asked for a further explanation of draft section 9.4960. Mr. Björklund explained that generally, the city could respond to mapping errors prior to adoption through the public hearing process. Afterwards, Council action was required to change the Goal 5 map. • Referring to number 12, Mr. Duncan expressed frustration that code enforcement was complaint based. He asked if the city had developed a fee schedule describing penalty enforcement. Mr. Nystrom said there were some fine provisions and civil penalties in the code. Mr. Duncan stated that if protection measures were created, violators should know how they would be charged. Mr. Nystrom said he would check into the fee schedule. Ms. Colbath asked if there was a refund mechanism, fee waiver process or other method to hold harmless those who appealed Goal 5 or Ballot Measure 37 rulings, if the rulings were eventually determined to be incorrect. Mr. Nystrom said that the issue was a policy issue rather than a legal issue, and noted that the city was entitled to recoup the time and costs of processing applications. Referring to page 9 of the proposed ordinance, Mr. Duncan iterated that he was particularly inter- ested in the overlay zone language contained in draft section 9.4960. Mr. Björklund replied staff would address the issue of fee waivers if a property owner challenged the accuracy of a city de- termination that a property was covered by Goal 5, when it fact, it was not. • Mr. Hledik asked how concrete or other hard surface drainage ways in setbacks would be ad- dressed. Mr. Björklund replied that setbacks were tied to property, and existing development was exempt, noting that an existing culvert would be treated as an existing development, and therefore exempt. It could be repaired or replaced, but not expanded. There were provisions elsewhere in the code that defined the conditions under which the culvert could stay. Furthermore, the code assumed a road was over a culvert, and therefore, the road was also exempt. MINUTES – Eugene Planning Commission June 6, 2005 Page 4 Regular Meeting  Mr. Björklund added that several people testified about the outfall at the end of Ayres Pond with a 20 foot high outfall structure. He said staff were not previously aware of the existence of the structure. Mr. Björklund said staff research had determined that the structure prevented the wa- terway from being fish bearing. Additionally, staff had determined that this was not a Goal 5 re- source. After meeting with the property owners and examining the drainage way and other area features, staff determined that this was not a natural channel and did not follow a historic natural channel. The structure had been constructed as a drainage feature, and was not in alignment with any historical water feature. Staff concluded this did not meet the definition of a riparian area be- cause there was not stream. Staff was recommending removing that piece of property from the inventory. • Mr. Duncan asked for clarification on culvert repair criteria. Mr. Björklund stated that draft code 9.4930(2)(g), repair or replacement of privately owned culverted streams, was a use that was al- lowed outright. If a public road was replaced with a larger footprint, the project would be subject to a Type II review. Mr. Duncan noted that several people testified about culverts. Many of the stream corridors in the south hills drained fairly small watersheds. In other situations, large, steep ravines had relatively small culverts. He asked if consideration had been given to using culvert volume or size rather than vague terminology related to high bank or high water marks. Mr. Björklund replied those had not been considered because it was not known how the culvert size related to the level of flow, noting that there were inadequately sized culverts throughout the city. Additionally, it was not possible to identify what lay upstream. Generally, there was no historical flow data on the waterways, adding that there were relatively few waterways in the entire metropolitan area for which there was historical flow data, with the exception of the Willamette River and Amazon Creek. Mr. Björklund said in the South Hills the definition of the conservation area referred to the boundaries of the site in the adopted maps, thus it was less important to know where the high bank occurred in the south hills area. • Referring to Mr. Hledik’s question about number 82, Mr. Björklund said the mapping error occurred between the field work and translation into the GIS system. Mr. Björklund added that staff spent hundreds of hours during the past year, making corrections and improving the data, and would be making recommendations for corrections such as the channel just discussed. He expressed confidence that the last few errors were being identified before the adoption of the plan. Referring to the map on page 298 of the ESEE analysis, Mr. Björklund said staff had walked the property with the owner, who identified the location of the two streams in question. Staff was working to translate that field data into corrected GIS data, at no cost to the property owner. • Ms. Colbath asked what the staff position was related to the OAR designation of the pileated woodpecker as a sensitive species, and asked if that was an inventory error that needed correc- tion. Mr. Björklund said that the errors under consideration consisted of sites within the adopted acknowledged inventory that were in the wrong place. He iterated that the issue related to the pileated woodpecker was a body of inventory data that the City Council explicitly removed from the inventory through its adoption action. MINUTES – Eugene Planning Commission June 6, 2005 Page 5 Regular Meeting  • Ms. Colbath expressed appreciation to Bruce Newhouse for assisting with updating the plant species inventory. She also thanked Mr. Björklund for his work with Mr. Hammer. • Referring to number 76, Ms. Colbath opined that the existing buildings were grandfathered, which Mr. Björklund confirmed as correct. She asked if the buildings were grandfathered under current code, could they be replaced under proposed ordinance. Mr. Björklund said the buildings would be treated as exempt from the regulations, but would require a Type II review, as a mini- mum, if the footprint was expanded within the conservation area. Additionally, if other code provisions allowed a taller building, a taller building could be built within the footprint. • Mr. Lawless noted this was relatively consistent with other development standards. • In response to Mr. Duncan, Mr. Björklund said that the maps provided to the commissioners were scale accurate. • Referring to pages 67 and 68 of the May 9, 2005 packet, Mr. Duncan noted what appeared to be inconsistencies with the charts. Mr. Björklund replied that was a mistake, adding that there were three sub-segments, only one of which had been included. • Referring to numbers 8 and 66 as questioned by Mr. Hledik, Mr. Björklund said Mr. Leahy’s main concern was whether he would be able to build houses on the three identified lots. Ms. Siegenthaler said as with any of the conservation areas applied to a given lot, it could potentially change the kind of development allowed, such as the size or location of a house, or location of driveways, as examples. She added that staff had not observed anything that would prevent con- struction on the lots in question, but application of the conservation area would impact the future development. Mr. Nystrom added that a vesting ruling that had not been determined would likely impact this development. He added that this was a subdivision rather than a PUD. Noting that concerns related to specific questions had been addressed, Mr. Björklund facilitated a discussion about the review process. • Mr. Lawless said it was important to determine how requests for adjustment reconsideration would be triaged, and wished to see a prescreening procedure established to provide an economic, cost effective process for both staff and property owners. Mr. Nystrom confirmed that Mr. Dun- can also asked for a simple resolution process for obvious mistakes, rather than the more complex issues. Mr. Duncan added that this was a complicated process that not everyone understood, and he was interested in an easy way to fix errors. • Ms. Colbath asked if a refundable deposit could be paid at the beginning of an adjustment consid- eration that could be the beginning of a fee if the process was deemed more complex. Mr. Sulli- van stated that there was a distinction between a scrivener’s error and a major error, and a short loop could be devised to catch the scrivener’s errors. In the event of legitimate disputes, it would be necessary for the property owner to go through a longer process. Ms. Muir added that al- though the city did not have a deposit process, there was a fee refund process in place. She opined that the commission was looking for a process that did not place an unnecessary financial burden on property owners. • Mr. Duncan asked for clarification on working through the process over the next few weeks, and MINUTES – Eugene Planning Commission June 6, 2005 Page 6 Regular Meeting  focusing on the critical information in the volume of reading materials. Mr. Björklund said there was value in talking about concerns early on in the process and reiterated that staff was tracking the issues raised by the commission. He emphasized that staff did not want to restrict commis- sioners’ questions and discussions. • In response to Mr. Hledik, Mr. Nystrom said it may be necessary to revise the Goal 5 schedule, to ensure that the code amendment language and other questions could be adequately addressed. • Mr. Lawless said that he wanted the City Attorney to respond to the legal questions and the methodology to modifications, adding that he did not see the minor mapping errors as big issues. He stressed the items in question included challenges to the mapping, and how staff and property owners would work through the process, as well as the legal issues that needed to be addressed by the City Attorney. Mr. Lawless said he wished to see the first attempts of staff and legal staff su- perimposed over the proposed code language as a footnote to what has already come to the com- mission. • Ms. Colbath said that fines for code violations were considered a cost of doing business, and it was not in the public interest to have a flat fine structure. She suggested that a daily or ongoing fine structure should be considered. • Mr. Nystrom said that fines were currently a part of the enforcement strategy, and ongoing or daily fines were incorporated into the fine structure. • Mr. Duncan said he wanted move from a complaint driven process and towards a prevention strategy. • Mr. Duncan cited erosion control issues as an example that could need a quick decision process. Mr. Björklund said there were not highly erosive flood charged waters in the metropolitan area like those along the McKenzie River, although there were some areas in the south hills with highly erodable soils or soil hazard areas. When those soil conditions existed, highly engineered construction was required if construction was allowed on the sites. Ms. Muir stated that there were provisions in the code that permitted emergency actions to protect people and property. • In response to Mr. Hledik’s question about 9.4930(4)(e) related to the Native Plant Society of Oregon (NPSO), Mr. Björklund said the NPSO was a statewide organization that was involved with the Oregon Flora Project, that tracked information and maintained up to date records regard- ing native and rare plants, and provided good information regarding native plants. Mr. Björklund added that staff had contact the NPSO numerous times throughout the Goal 5 process during the past fifteen years. He added that the plant lists were based on information that originally came from the NPSO, as the only source of information on which plants occurred where within urban area. Neither the State of Oregon nor the Oregon Department of Agriculture had comparable ex- pertise and knowledge. Mr. Hledik expressed concern about codifying requiring private parties notice to a non- governmental group, although he did not object to the city consulting with those groups. Mr. Sul- livan suggested that the code language should state the city could seek advice from non- government or non-profit groups, but that private parties would not be required to do so. Mr. Björklund added that the proposed language called only for provision of information, and did not MINUTES – Eugene Planning Commission June 6, 2005 Page 7 Regular Meeting  call for approval or follow-up. Mr. Duncan affirmed that the language could be read and inter- preted differently in the future, and did not want to include a specific name in the code. • Referring to page 18 of the original packet, in response to a question from Mr. Duncan, Mr. Björklund said that the threshold of 33 percent of the development site inside the protected area had been used since 1995 to determine whether an exception would be granted. • In response to a question from Ms. Colbath, Mr. Björklund said the Planning Commission would sign off on and forward the entire ordinance and all of its exhibits, including the ESEE analysis, proposed code amendments, findings, and plant lists, to the City Council. He said staff would provide a tracking matrix of what the Planning Commission had signed off on. Mr. Lawless thanked staff for their work on the Goal 5 process. He asked for a brief weekly update on which version of the proposed language was current. III. ITEMS FROM COMMISSION AND STAFF A. Other Items from Commission In response to a question from Mr. Hledik, Ms. Muir said commissioners could attend Chambers Area Families for Healthy Neighborhoods (CAFHN) tutorials, and should work with staff to ensure that a Planning Commission quorum was not present. She added that the issue was legislative, and commis- sioners could share information from the sessions at the regular Planning Commission meetings. Mr. Duncan reported that the Historic Review Board (HRB) had designated the McCracken Building as an historic landmark. He added the State Historic Preservation Office (SHPO) was seeking to have the cities be more active in historic preservation activities for which funding may be available. The HRB would be advised soon regarding a grant to fund a River Road study. B. Other Items from Staff Mr. Sullivan noted the excellent recent newspaper headlines about downtown. He said no specific proposals had yet been received, and there had been a good response to the downtown plan. Mr. Nystrom said staff would email alternative Goal 5 meeting dates to commissioners. Mr. Björklund added that tentative dates for Goal 5 to go to the City Council were September 21, 2005 for a work session, and September 26, 2005 for a public hearing. Mr. Nystrom confirmed that the Parks and Open Space public hearing had been removed from the schedule, and a new date had not been determined. Mr. Lawless adjourned the Planning Commission meeting at 1:25 p.m. (Recorded by Linda Henry) c:\documents and settings\cemnllh\desktop\linda\2005\06june05\pc050606.doc MINUTES – Eugene Planning Commission June 6, 2005 Page 8 Regular Meeting