Planning Commission

SUMMARY MINUTES Regular Meeting Eugene Planning Commission Sloat Room–The Atrium Building–99 West 10th Avenue June 20, 2005 11:30 a.m. PRESENT: John Lawless, President; Mitzi Colbath, Vice President, Jon Belcher, Rick Duncan, Randy Hledik, Phillip Hudspeth, Anne Marie Levis, members; Mike Sullivan, ex officio member; Neil Björklund, Ken Guzowski, Alissa Hansen, Susan Muir, Steve Nystrom, Ann Siegenthaler, Planning and Development Department staff; Glenn Klein, City Attor- ney’s Office; Jim Spickerman, Linda Swisher, Frank Segarra, Kevin Matthews, Diane Wiley, Terry Connolly, Charles Biggs, Bruce Wild, Francina Verrijt, Ed Russo, guests. PUBLIC COMMENT ON NON-AGENDA ITEMS I. ITEMS FROM COMMISSION AND STAFF II. APPROVAL OF MINUTES – MAY 9, 2005 III. PC DELIBERATION: GOAL 5 NATURAL RESOURCES Staff: Neil. Björklund, 682-5507 IV. PREP FOR JOINT PLANNING COMMISSION AND CITY COUNCIL MEETING Staff: Steve Nystrom, 682-8385 V. ITEMS FROM COMMISSION AND STAFF A. Other Items from Staff B. Other Items from Commission  MINUTES Regular Meeting Eugene Planning Commission Sloat Room–The Atrium Building–99 West 10th Avenue June 20, 2005 11:30 a.m. PRESENT: John Lawless, President; Mitzi Colbath, Vice President, Jon Belcher, Rick Duncan, Randy Hledik, Phillip Hudspeth, Anne Marie Levis, members; Mike Sullivan, ex officio member; Neil Björklund, Ken Guzowski, Alissa Hansen, Susan Muir, Steve Nystrom, Ann Siegenthaler, Planning and Development Department staff; Glenn Klein, City Attor- ney’s Office; Jim Spickerman, Linda Swisher, Frank Segarra, Kevin Matthews, Diane Wiley, Terry Connolly, Charles Biggs, Bruce Wild, Francina Verricgt, Ed Russo, guests. Mr. Lawless convened the meeting at 11:36 a.m. PUBLIC COMMENT ON NON-AGENDA ITEMS Charles Biggs, 540 Antelope Way, expressed general concern about the state planning goals. He said a state resource was not identified by staff because it did not appear on an existing map according to a recent Register Guard article. He asked the Planning Commission to express a concern about how the maps would be updated, how resources would be identified and researched to determine if they were endangered, listed, or threatened. Additionally, he was concerned that several state resources that existed in non-traditional habitat that would be overlooked in surveying. Jeff Nelson, 2144 East 15th Avenue, stated that he had worked with the East Campus process, and was a former co-chair of the Fairmount Neighborhood Association. Speaking for himself, he said he was looking forward to working with city staff and the Planning Commission on the Walnut mixed use center. MINUTES – Eugene Planning Commission June 20, 2005 Page 1 Regular Meeting He asked when and why the rules for the Public Comment agenda item had changed. He asked what was being done to allow for more dialogue between the Planning Commission and the public. While city staff did a good job to represent the interested parties perspective, they did not always get it right. Addressing mixed use issues related to the Walnut Center, Mr. Nelson said traffic was a concern for the neighbors, and while there was not enough money available to mitigate traffic problems, he asked that special conditions be placed on mixed use centers. Kevin Matthews, P.O. Box 1588, Eugene, representing the Friends of Eugene, said there were defects in the public meeting calendar, citing outdated calendars and incomplete links as examples. He said the changes in the Public Comment section of the agenda did not conform to Planning Commission policy or legal requirements for soliciting public input. He said the written responses to Goal 5 at the June 5 public testimony were not provided on June 13 as previously agreed to by staff. Mr. Matthews said recent statements in a Register Guard editorial that maps of pileated woodpecker habitat did not exist were inaccurate. He said the maps did exist and he would provide copies of them to the Register Guard. Ms. Muir said the Public Comment language did change on the advice of the City Attorney following a lengthy Planning Commission discussion. It was difficult to determine what the record would be for future appeals once the record had closed, and subsequent information came in through the Public Comment time. I. ITEMS FROM COMMISSION AND STAFF Ms. Muir said the June 13, 2005 memorandum to the Planning Commission responded to all of the comments from the public. The responses had been posted to the webpage at www.eugenenr.org, where all Goal 5 information is posted. Mr. Belcher said he had not been pleased with the decision, and offered an alternative, that citizens could testify before a hearing that was scheduled, however, such comments would not become part of the record unless they were submitted for that purpose. Mr. Klein replied that if the issue was a quasi-judicial matter opposed to a legislative matter, comments made to commissioners after an application had been filed or a process initiated became ex parte communications, even if that happened in front of the commission as a whole, but not as part of the MINUTES – Eugene Planning Commission June 20, 2005 Page 2 Regular Meeting official process. Although those ex parte communications would not be illegal, they would have to be made a part of the record in order to give anybody who did not attend a meeting the ability to challenge the comments. When the Planning Commission was involved in a process that could result in a Land Use Board of Appeals (LUBA) appeal, it was important to have as clean a record as possible to be able to determine what was included in the process and what was not included in the process. Additionally, particularly with quasi-judicial processes, the Planning Commission’s recommendation and the City Council’s decision needed to be based upon the record, and the intent was to give everyone who wished to participate an equal opportunity to hear and to respond to information. Ex parte communications that occurred before a public hearing would not be heard by all, and thus, would not provide an opportunity for all to respond to. Mr. Belcher opined that processes initiated through the Planning Commission that subsequently went to the City Council received public testimony prior to City Council deliberation. Mr. Klein replied that the public hearing was the only venue for public testimony before the City Council in quasi-judicial matters, while public comment outside of the public hearing process regarding legislative issues did occur. Mr. Belcher asked if a restrictive policy was needed for Planning Commission legislative issues. Mr. Klein replied that it was not necessary from a legal perspective, but from a policy perspective, the issue was a matter of fairness for the people who do not show up because they were waiting for the scheduled public hearing on the legislative matter. An administrative nightmare would result if multiple public hearings were allowed. Ms. Muir said staff was attempting to do more related to soliciting public input, citing the Chambers project as an example. She said staff had agreed to bring a proposal at the public hearing to the commission to broaden the public process and take it out of the formal Planning Commission public hearing process, to be more inclusive and involved. Ms. Colbath asked for clarification regarding receipt of e-mails by Planning Commissioners. Ms. Muir said the public was asked to send e-mails to staff rather than directly to the commissioners, so they could be reviewed to ensure they complied with the adopted public process. Those e-mails were then distributed to all Planning Commissioners through the regular agenda packets. Ms. Colbath gave an e- mail she had received but not read, from Diane Wiley at the University of Oregon, to Ms. Muir. In response to Mr. Belcher, Mr. Klein advised commissioners to declare an ex parte contact if they MINUTES – Eugene Planning Commission June 20, 2005 Page 3 Regular Meeting received and opened e-mail messages related to issues before the commission that were received as part of distribution lists not associated with the commission. II. APPROVAL OF MINUTES – MAY 9, 2005 Mr. Lawless corrected page 6, paragraph 1, to read, “Responding to Ms. Colbath, Mr. Björklund referred to page 461 in the agenda packet, which included draft findings that stated that areas could be protected without reducing the buildable land supply below the projected demand.” Mr. Lawless corrected page 6, paragraph 10, to read, “Following a brief discussion about the mechanics of the joint public hearing with the Lane County Planning Commission on May 10, 2005, Mr. Lawless adjourned the Planning Commission meeting at 1:18 p.m.” Ms. Colbath corrected page 6, paragraph 6, to read, “Ms. Colbath reported that she and Mr. Lawless accompanied the City Council on a recent mixed use tour.” Ms. Levis, seconded by Ms. Colbath moved to approve the May 9, 2005 minutes as amended. The motion passed 7:0. III. PC DELIBERATION: GOAL 5 NATURAL RESOURCES A. Vesting Mr. Klein offered a presentation on vesting issues related to Goal 5. He said court cases related to vesting in Oregon over the last 20 years had not provided broad guidance, while the statutory provisions resulted in ambiguities. Mr. Klein stated that similar issues arose when the Land Use Code Update (LUCU) was adopted in 2001. The City Attorney developed guidelines that had been intended to insure that the policies imbedded in LUCU and other land use codes would be followed, while they would not be burdensome for planning staff to apply or for the public to understand and apply. Mr. Klein suggested that similar guidelines could MINUTES – Eugene Planning Commission June 20, 2005 Page 4 Regular Meeting be imbedded into the Goal 5 ordinance, since he anticipated there would be more controversy related to vesting and Goal 5 protection measures. By imbedding the guidelines, uncertainty and the risk of litigation would be reduced for all parties, including the public, property owners and for the city. Mr. Nystrom summarized the guidelines, averring that the basis for the guidelines was state statutes, noting that the primary applicable statute stated that the city was obligated to review applications under the rules in place at the time the application was submitted. Mr. Nystrom added that regulations in place at the time a project was submitted would apply throughout the entire project. Additionally, if the land use decisions were completed, although a project was not fully built out, the final land use decision would be subject to those regulations in place at the time the project was submitted. Mr. Nystrom said the issue became complicated when multiple land use applications were necessary, or an application did not adequately address the range of issues that could arise in processing a development application. Citing the Riverfront Research Park (RFRP) as an example, Mr. Nystrom stated that before LUCU, natural resource issues, such as conservation and preservation areas, were not applicable. Issues that had been addressed as part of the original RFRP conditional use permit (CUP) were vested. Those issues not previously addressed through LUCU would not be vested, and would need to be carefully evaluated under Goal 5 provisions. The RFRP application had included provisions that addressed the Willamette Greenway and other natural resource protection measures, and thus would be vested. Mr. Nystrom said that single family subdivision applications were challenging, in that subdivision applications did not typically address preservation issues and siting of homes. Furthermore, subdivision applications did not generally address development issues, leaving those development issues unvested and potentially subject to Goal 5 requirements. Mr. Lawless sensed some ambiguity in the intensity of measuring natural resources and grandfathering them under an umbrella, versus how they may actually be enforced or superimposed on development under the new definition. If the community considered other topics in the future, such as economic or socio-cultural, they would not be grandfathered under the new requirements. MINUTES – Eugene Planning Commission June 20, 2005 Page 5 Regular Meeting Mr. Nystrom replied part of the difficulty with the vesting question was determining how to address it in a fair and equitable manner while faced with an ever changing set of rules. He said the guidelines developed through the LUCU process had achieved a fairly good balance. In response to Mr. Belcher, Mr. Nystrom iterated that the city looked back at the decisions that guided development if new circumstances were identified. In response to a question from Mr. Belcher, Mr. Nystrom said when subdivisions were created and platted, they received permanent approval. Under site reviews and CUPs, timeframes of varying lengths could be imbedded through the approval process. Ms. Colbath asked if an approved PUD was incomplete, in that it did not include a map, would the PUD be vested. Mr. Nystrom replied that PUDs consisted of two steps, tentative and final applications, and typically included a subdivision process consisting of both applications. The first step, the tentative PUD application, would capture the concept for the entire area that could consist of multiple build out phases. The tentative application would contain conditions for approval, such as natural resource issues, based upon the information provided by the applicant. Generally there was adequate information in the tentative PUD application to demonstrate where conservation and buildable areas were sited to for tentative approval. The details were provided at a later time. The code contained language that said any subdivision that followed was required to be consistent with the PUD and eliminated the double jeopardy issue. In response to a question from Ms. Colbath regarding the RFRP CUP, Mr. Nystrom replied that as long as future buildings were consistent with the originally approved documents, they would be approved. However, if the plan was modified, a new process would be necessary. In response to a question from Ms. Colbath regarding property acquired by the City of Eugene from Lane County that had restrictions, Mr. Klein said that the city could not waive its governmental powers to adopt guidelines inconsistent with the contract. However, the city could be required to pay monetary damages if it breached the contract. Ms. Colbath stated she hoped the Planning Commission would have an opportunity to review the energy MINUTES – Eugene Planning Commission June 20, 2005 Page 6 Regular Meeting policy. Mr. Björklund added that energy was part of the analysis required by the regulations. Mr. Nystrom said the staff recommendation was that staff would bring specific code language back to the Planning Commission to capture today’s discussion. B. Buildable Lands Inventory Mr. Klein offered an overview of state and city policies and practices related to buildable lands, particularly related to residential lands. Noting that the last buildable lands study was completed in 1999, Mr. Klein affirmed that state law required the residential lands inventory, and was to include a 20 year supply of buildable land. He added there was nothing in state law that required a rolling 20 year supply, thus there was no requirement for a 20 year supply at the time the City Council adopted Goal 5, which would take place in the fall. In 1999, an excess supply was identified. Through the Goal 5 process, the excess supply could be removed from the inventory. Mr. Klein explained that the Goal 5 protection measures as currently drafted would not result in removing all of the excess supply. Staff would return to the Planning Commission with specific findings to demonstrate that removal of the excess supply had not occurred. He reiterated that there was no obligation for the city to demonstrate that it had a residential lands inventory that would meet the city’s needs until 2025. The only obligation was to make it clear that the excess supply previously identified in the residential lands inventory had not been exhausted. Commenting on Mr. Klein’s statements, Mr. Björklund clarified that the findings related to the buildable land supply had been distributed to the Planning Commission. Mr. Duncan asked how a challenge to the residential lands study would be process. Mr. Klein said any challenge would have had to take place prior to adoption in 1999. In response to Ms. Colbath, Mr. Klein said if the buildable lands inventory was exhausted within ten years, it would not present a legal problem, but would be a policy question. Ms. Muir said that the policy issue could be addressed as a Planning Commission work program item part of the joint session with the City Council. MINUTES – Eugene Planning Commission June 20, 2005 Page 7 Regular Meeting C. Ballot Measure 37 Mr. Klein said the Goal 5 protection ordinance had a provision that authorized moving Ballot Measure 37 claims into Goal 5 the provision stated if a property owner felt he had a reduction in value after adjust- ment review, he could bring the issue back to the city for further review. Mr. Klein stated several Ballot Measure 37 related bills and amendments had been introduced in the state legislature, and reviewed the status of the various pieces of legislation and how they would impact the City of Eugene if adopted. In response to a question from Mr. Belcher, Mr. Klein said he recommended the language because there were many unknowns with the current Ballot Measure 37 process, including whether the City of Eugene could require a property owner to pay a fee for processing a Ballot Measure 37 claim. Mr. Belcher noted that the Goal 5 language provided only for a waiver but not compensation, as allowed by Ballot Measure 37. Mr. Klein said a funding source had not been identified for compensation, adding that provision for future compensation could be included in the language. Mr. Klein explained the how the Ballot Measure 37 process would work. Ms. Colbath asked why the Goal 5 protection process put the waiver process in the hands of the City Manager opposed to a hearings official or other land use body. Mr. Björklund replied that was a reference to adoption of a plant list that called for administrative adoptions under the authority of the City Manager, and the City Manager could delegate the technical work to other staff. Following the Planning Commission discussion, Mr. Klein offered to revise the proposed ordinance language to reflect the Planning Commission’s concerns. Mr. Björklund proposed that staff would walk through the draft code language at the June 27, 2005 meeting, but did not expect to have corrected hard copy of the draft code available. IV. PREP FOR JOINT PLANNING COMMISSION AND CITY COUNCIL MEETING MINUTES – Eugene Planning Commission June 20, 2005 Page 8 Regular Meeting Mr. Björklund and Mr. Klein left at 1:15 p.m. Mr. Nystrom reviewed the materials in the agenda packet preparatory to the joint meeting with the City Council, and facilitated a discussion about the topics that would be addressed. Mr. Lawless adjourned the Planning Commission meeting at 1:35 p.m. (Recorded by Linda Henry) m:\2005\planning and development department\planning division\planning commission\pc050620.doc MINUTES – Eugene Planning Commission June 20, 2005 Page 9 Regular Meeting