Planning Commission

SUMMARY MINUTES Regular Meeting Eugene Planning Commission Sloat Room–The Atrium Building–99 West 10th Avenue October 24, 2005 11:30 a.m. PRESENT: Mitzi Colbath, Vice President; Jon Belcher, Rick Duncan, Randy Hledik, Phillip Hudspeth, Anne Marie Levis, members; Susan Muir, Steve Nystrom, Planning and De- velopment Department staff; Emily Jerome, City Attorney; Charles Biggs, guests. ABSENT: John Lawless, President. PUBLIC COMMENT ON NON-AGENDA ITEMS I. DELIBERATION/ACTION: KNUTSON FAMILY LLC ZONE CHANGE LAND USE BOARD OF APPEALS (LUBA) REMAND Ms. Colbath, seconded by Mr. Hledik, moved to approve the July 26, 2005, minutes as corrected and the August 8, 2005, minutes as submit- ted. The motion passed unanimously, 5:0. II. PREPARATION FOR JOINT CITY COUNCIL/PLANNING COMMISSION MEETING ON MIXED USE CENTERS III. ELECTION OF PLANNING COMMISSION OFFICERS IV. ITEMS FROM COMMISSION AND STAFF SUMMARY MINUTES – Eugene Planning Commission October 24, 2005 Page 1 Regular Meeting  MINUTES Regular Meeting Eugene Planning Commission Sloat Room–The Atrium Building–99 West 10th Avenue October 24, 2005 11:30 a.m. PRESENT: Mitzi Colbath, Vice President; Jon Belcher, Rick Duncan, Randy Hledik, Phillip Hudspeth, Anne Marie Levis, members; Susan Muir, Steve Nystrom, Planning and De- velopment Department staff; Emily Jerome, City Attorney; Charles Biggs, guests. ABSENT: John Lawless, President. Vice President Mitzi Colbath convened the October 24, 2005, meeting of the Eugene Planning Commis- sion. PUBLIC COMMENT ON NON-AGENDA ITEMS Charles Biggs, 540 Antelope Way, Eugene, commented on the importance of nodal overlay zones to nodes. He said the success of nodes would depend on how they were developed and nodal overlay zones imposed additional requirements in the area so that compatibility for dense development was ensured. He said that any updates or changes to nodal areas should consider the overlay zones as a critical element. Zachary Vishanoff, Patterson Street, Eugene, said he was working on housing and related issues and the University of Oregon had just given eviction notices to its tenants in the last large pocket of low-income housing in the Westmoreland area. He questioned how tenants could be evicted from neglected housing without a public process. He pointed to rehabilitated Amazon housing units and said there should be a collaborative approach to housing decisions. He said the Westmoreland area was a small node and there had been a decision to switch the node without public involvement. He urged the commission and City planners to encourage a responsible dialogue. Mr. Belcher pointed out that the property in question was zoned as Public Land and there would have to be a series of hearings if it was put to any other use. I. DELIBERATION/ACTION: KNUTSON FAMILY LLC ZONE CHANGE LAND USE BOARD OF APPEALS (LUBA) REMAND City Attorney Emily Jerome explained that the Planning Commission was scheduled to take action on an appeal of the Hearings Official’s decision Associate Planner Shawna Adams reviewed the application, which was initially submitted to the City in November 2003 and requested C-2/SR zoning for five contiguous tax lots on the west side of Coburg Road and north side of Willakenzie Road. She said the Hearings Official denied the zone change request in May 2004; the applicant appealed that denial to the Planning Commission and cited four assignments MINUTES – Eugene Planning Commission October 24, 2005 Page 1 Regular Meeting of error with regard to three specific zone change approval criteria. She said the applicant contended that the Hearings Official’s determination that the zone change was inconsistent with the Metro Plan blob diagram and the Willakenzie Area Refinement Plan and the applicant had not met its burden of demon- strating that transportation facilities were available or could be extended to the C-2 uses that would be allowed on the property. She related that the Planning Commission agreed with the applicant that the Hearings Official erred with respect to transportation facilities but upheld the Hearings Official’s conclusion regarding the Metro Plan diagram designation of Medium Density Residential and concludeed that Metro Plan designation trumped the refinement plan designation to the contrary. She said the Planning Commission affirmed the Hearings Official’s denial of the request and the applicant and opponents appealed the commission’s decision to the Land Use Board of Appeals (LUBA). According to Ms. Adams, LUBA remanded the decision to the Planning Commission, and LUBA’s decision was upheld by the Court of Appeals. She noted that LUBA did not take issue with the commis- sion’s determination regarding transportation facilities but did take issue with the lack of findings to support the conclusion. She also noted that LUBA agreed that the the 1987 Metro Plan diagram was the appropriate map for determining compliance, but concluded that the map was unclear and did not clearly identify the subject properties as medium density residential . She indicated that the commission was tasked with substantiating the findings under transportation criteria and reconsidering the criteria related to compliance with the Metro Plan and the Willakenzie Area Refinement Plan (WAP). She referred to a revised final order prepared by staff to replace the previous final order of the Planning Commission, which reflects the direction from LUBA, the Court of Appeals, and the information in the record. City Attorney Emily Jerome noted that if Mr. Lawless was present he would have to re-declare a conflict of interest and not participate in the decision. She noted that two members were not on the commission when the matter came before it and one member who was on the commission did not participate. She asked those members to indicate if they had reviewed the record and felt sufficiently informed to participate. Commissioners Hudspeth, Hledik and Levis all indicated they had reviewed the record and felt qualified to participate. Mr. Duncan declared that he had missed the meeting when deliberations were held but had reviewed that record and had been present for all previous discussions and meetings. Ms. Jerome determined that all commissioners present would participate. She explained procedural issues related to a remand and pointed out that the scope of the remand before the commission was narrow. She said that staff recommended the commission set aside its previous order and issue a new one and that the record did not need to be re-opened in order to address the issues on remand. Ms. Levis asked why staff did not feel the record needed to be re-opened. Ms. Jerome replied that several of the issues were very directive and the commission had no discretion. She had reviewed the record and determined that there was time and sufficient opportunity for all issues to be raised locally. She said that staff would review each of the four assignments of error and the recommended findings and conclusions. A. The Hearings Official erred when she concluded that the Metro Plan designation for the sub- ject properties is residential, as opposed to commercial. Ms. Jerome said the Hearings Official found that the Metro Plan designation was medium density residential and the proposed C-2 zone was inconsistent with that. LUBA said that the Metro Plan was not clear and in that case the refinement plan, which designated the parcels as commercial, should be relied upon. She said that opponents of the application had appealed that ruling to the Court of Appeals, which MINUTES – Eugene Planning Commission October 24, 2005 Page 2 Regular Meeting agreed with LUBA. She recommended that the commission follow the direction of LUBA and the court and determine the property was commercial. Mr. Hledik said the record showed at least three versions of the Metro Plan diagram. He asked if the 1987 version should be used. Ms. Jerome said the 1987 diagram was the applicable version. Mr. Hudspeth asked if the Court of Appeals decision was specific to the case or a standing issue with reference to metro plans and refinement plans. Ms. Jerome said it was specific to Eugene because of Metro Plan language and that hierarchy would always be applied to the Metro Plan and any refinement plan. Mr. Belcher asked if the previous action had included any modification to the WAP. Ms. Jerome said it had not. Ms. Adams said the WAP designated the property as commercial but the WAP diagram and subarea diagrams did not specify the type of commercial. In response to a question from Ms. Levis, Ms. Jerome said the commission did not have to specify the type of commercial. She said the commission had 90 days to take action on remand. Ms. Jerome clarified that the commission was not designating the property but rather determining what designation already exists. She said LUBA had indicated the property was designated as commercial and the commission was only recognizing that fact; the current zone was General Office/C-1 and the applicant was requesting C-2. She clarified that General Office was under the umbrella of the City’s commercial zones. Ms. Colbath asked for a straw poll to determine if commissioners agreed with the staff’s recommended conclusion. Commissioners agreed unanimously with the recommendation. B. The Hearings Official erred in her application of certain Metro Plan and Willakenzie Area Plan policies and objectives. Ms. Jerome said the Hearings Official’s analysis of the Metro Plan and WAP policies were based on a determination that the designation was medium density residential. She said the Hearings Official concluded the Metro Plan policies supported the current zone but did not support a C-2 zone and found the rezone inconsistent. She said the Hearings Official also determined that two WAP policies were applicable and two were not and found that the policies were not met by the applicant. She said the commission had determined that the Hearings Official did not err and LUBA was requiring the City to determine which policies applied and re-analyze the issue based on the understanding that the property was commercial and not residential. She said staff recommended the commission include in its decision every policy that was raised by parties to the local proceedings and find the policies did not apply as mandatory approval criteria to be thorough. She drew the commission’s attention to the draft order prepared by staff that included analyses under each of the Metro Plan and WAP policies. Mr. Hledik asked if staff sensed, based on the record, that all of the applicable policies had been reviewed or could there be other policies that were not brought into the record. Ms. Jerome said she had discussed that issue at length with staff and believed that every potentially applicable policy was contained in the order, as well as several that were not applicable. Ms. Colbath asked for clarification of Finding 1.d in the proposed final order. Ms. Jerome said the applicant had indicated the specific policy did not apply, the opponents argued that it did and staff found MINUTES – Eugene Planning Commission October 24, 2005 Page 3 Regular Meeting that the policy could not be a basis for denial. Mr. Hledik noted the referenced Metro Plan policy to increase the amount of undeveloped land zoned for light industrial and commercial uses and asked if it was the responsibility of the Planning Commission, representing the City, to take that action instead of individual property owners. Ms. Jerome responded that outside of the application review process in the course of its work plan the commission might initiate such a process or plan during review of refinement plans. Mr. Hledik asked if there was direction to the commission on how to implement policies that included words such as “encourage” or “recognize.” Ms. Jerome said there were several cases from LUBA and the Court of Appeals that interpreted those terms and the staff recommendation was consistent with LUBA’s position. She said that generally if the language indicated that an applicant “should” take an action instead of “shall” there would be evidence of the applicant’s attempt. Mr. Belcher noted that the commission would be creating findings that could be cited in future land use decisions. He was concerned that the language under Finding 1.b was to the contrary. Ms. Levis said it made sense for the commission to remain consistent and if certain policies were directed at the City then one should not be taken out of context and applied at the parcel level. Ms. Jerome suggested that the language in Finding 1.b could be changed as follows: Although the applicant/appellant addressed it (LUBA Rec. 634), this policy is not mandatory be- cause it is directed to the city in its development of code provisions, not to quasi-judicial actions on individual properties. Therefore, the policy cannot be a basis for denial. Even if the policy did apply To the extent this policy applies to individual actions… Mr. Nystrom commented that it was difficult to determine whether some policies were directed at the City or to individual land use actions and staff could adjust any of the findings according to the commission’s direction. Mr. Belcher said his interest was in language that did not mandate or prohibit application of a policy. Mr. Hledik commented that the proposed language change applied only to the proposed action and he was concerned about consistency. Mr. Belcher reiterated that he did not want the language to constrain the commission in the future to use the policy to justify consolidation and was concerned that without the language change the tool might not be available. Ms. Adams suggested adding the following sentence to replace the deleted language from the finding: This policy is directed to the City in its development code provisions. Ms. Colbath asked for a straw poll on Finding 1.b as originally proposed by staff. The straw poll was four in favor of the existing language and two opposed. Ms. Colbath determined that the original language would remain in the finding. Ms. Colbath asked for a straw poll on Finding 1.c. The commission unanimously agreed to the proposed language. MINUTES – Eugene Planning Commission October 24, 2005 Page 4 Regular Meeting In response to a question from Ms. Colbath regarding Finding 1.d, Ms. Jerome replied that the opponents said the applicant had failed to demonstrate compliance with the policy and argued that it was applicable; the Hearings Official did not address the policy. Ms. Colbath asked for a straw poll on Finding 1.d. The commission unanimously agreed to the proposed language. Ms. Jerome clarified that the Hearings Official’s decision cited a number of policies and noted that with regard to some of the Metro Plan policies and objectives that none of them individually constituted a mandatory approval criterion. She said that Finding 1.e included those policies and an analysis. Ms. Colbath observed that the finding determined that the policies were applicable to general planning activities and not individual applications. Ms. Colbath expressed concern with determining that policies were not applicable to individual actions. Mr. Belcher said the basis of his concern was that the language indicated the policy would be applicable as broad brush changes were made down to the level of refinement plans but the reality was that the actual land use changes that took place were typically through actions such as zone changes, to which the policy would not be applicable. Mr. Hledik said it was the difference between a legislative action and a quasi-judicial action and in a future Metro Plan amendment the policy could be used as a guiding reason for that amendment. He remarked that refinement plans were conceptual and idealized. Ms. Levis pointed out the hierarchy of Metro Plan and refinement plans and said that by affirming that a Metro Plan policy did not specifically affect an individual application did not preclude future determina- tions; it meant the policy set the stage for underlying policies in the future. Ms. Colbath asked for a straw poll on Finding 1.e. The commission agreed to the proposed language, 4.2; Mr. Belcher and Ms. Colbath voting no. Mr. Hledik asked if traffic impact analyses (TIA) were applied at the time of site review. Mr. Nystrom said a TIA could be triggered by a development application that could be anything from a building permit to land use application, but not a zone change request. Mr. Belcher asked if a zone change request was received that the staff knew could not be supported by a TIA would it still be allowed, creating a use that could not be filled. Mr. Nystrom said the commission had indicated in its earlier discussion that conceptually the zone change could be accounted for by the existing transportation system. Ms. Colbath asked for a straw poll on Finding 1.f. The commission agreed to the proposed language, 4.2; Mr. Belcher and Ms. Colbath voting no. Ms. Colbath determined that there were no questions or concerns regarding findings 2.a, 2.b and 2.c. In response to a question from Ms. Colbath regarding Finding 2.d, Ms. Jerome said the commission’s MINUTES – Eugene Planning Commission October 24, 2005 Page 5 Regular Meeting initial decision on the entire assignment of error affirmed the Hearings Official’s findings. Ms. Adams added that the commission had rejected the findings related to General Office zoning and the refinement plan. Ms. Colbath asked for a straw poll on findings 2.d, 2.e, 2.f and the Conclusion. The commission agreed unanimously with the recommendations. Ms. Colbath asked staff to provide her with information on the location of the General Office zone. C. The Hearings Official erred by failing to make a decision consistent with the approval criteria and by not applying the approval criteria and by applying other standards that are not ap- proved criteria. Ms. Jerome said the issue was addressed in the commission’s earlier discussion about whether certain policies applied and lack of clarity in the Hearings Official’s analysis. She said the proposed language referred to the first and second assignments of error; the assignment of error at issue had not been raised to LUBA and LUBA did not address it other than asking the commission to review all of the policies again. Ms. Colbath asked for a straw poll to determine if commissioners agreed with the staff’s recommended conclusion. Commissioners agreed unanimously with the recommendation. D. The Hearings Official erred in her interpretation of what is required to demonstrate compli- ance with the EC 9.8865(3) requirement that uses “can be served through the orderly extension of key urban facilities and services.” Ms. Jerome stated that the applicant claimed the Hearings Official erred in her interpretation of what was required to demonstrate compliance with the code. She cited the relevant code section that required that the applicant showed the uses and density that would be allowed by the proposed zoning in the location of the proposed change can be served through the orderly extension of key urban facilities and services. She said the Hearings Official found that the criterion was met with respect to all facilities and services except transportation, but the decision was not clear about what the criterion actually required. She said the decision indicated that the criterion did not require a full TIA but did require the applicant to examine some of the more intense uses allowed in the proposed zone and show that they could be served through the orderly extension of facilities and services. She said the applicant argued that interpretation was wrong and uses did not need to be examined; only whether or not the area could be served by transporta- tion facilities needed to be examined. She said opponents argued that interpretation of the criterion should require an applicant to show that the most intense use allowed in the proposed zone could be served. Ms. Jerome related that the commission had found the Hearings Official had erred and the applicant had met the burden under the criterion and findings determined that the applicant’s traffic analysis was sufficient. She said LUBA found the commission’s decision conclusory and inadequate and directed the commission to adopt adequate findings explaining what the criterion required and why the commission believed the evidence in the record satisfied those requirements, if it did. She stated that the commission was bound by the decision to provide an interpretation of the criterion and then apply that to the facts; the commission was not bound to come to the same conclusion it did the first time. She said that staff had provided an interpretation and analysis that the criterion meant an applicant needed to show that at least two uses allowed in the proposed zone, which were not allowed in the current zone, could be served MINUTES – Eugene Planning Commission October 24, 2005 Page 6 Regular Meeting through the order extension of the transportation infrastructure. Ms. Colbath asked whether the question of whether transportation was a key urban service was raised during the commission’s deliberations. Mr. Belcher asked if there was a list of key urban services. Ms. Jerome cautioned the commission that there was not a list of key urban services in the record and discussing the issue further would require the record to be re-opened. Mr. Belcher asked if the City typically applied the requirement to show that at least two uses in the proposed zone could be served. Mr. Nystrom replied that the requirement was staff’s attempt to clarify the direction from LUBA and that, a range of uses was considered. Ms. Jerome said that LUBA applied a formula to interpretation issues: first the text of the requirement was examined and if the meaning was unclear, then the context of the criterion related to other criteria could be considered. She said that LUBA did not clarify the issue, Metro Plan policies could be considered to provide the context. She said staff recommended two or more uses because uses and densities were plurals in the policy. Ms. Colbath referred to the commission’s discussion that increases in intensity and “upzoning” of property would again provide an opportunity to consider traffic from proposed development. Ms. Adams said that the Planning Commission had not agreed with the applicant’s position that potential uses should not be considered when determining whether transportation facilities could be extended. She also said that the commission had rejected both the opponent’s argument that the criterion requires the applicant demonstrate that the most intensive C-2 uses could be served by transportation facilities and the Hearings Official’s findings that the applicant must demonstrate that more intensive C-2 uses than allowed in the current C-1 zone could be served. She said the draft final order is based on staff’s understanding of the Planning Commission’s previous discussion and intent. Mr. Belcher asked what would ensure essential services were being provided to developments in the event that they intensified over time. Mr. Nystrom replied that there were certain triggers that looked at transportation through TIA provisions. Ms. Jerome pointed out that the parcels were subject to site review. Ms. Colbath agreed with the staff’s interpretation and said she supported the findings and conclusion. Mr. Belcher stated his concern that the uses were not defined as the highest and most intensive uses and it was acceptable if the applicant could demonstrate accommodation of the lowest uses. He was satisfied that there were adequate tools available to address traffic concerns but thought the commission should re- examine those provisions of the code at some point in the future. Ms. Colbath asked for a straw poll to determine if commissioners agreed with the staff’s recommended findings, analysis and conclusion. Commissioners agreed unanimously with the proposed language. Ms. Levis, seconded by Mr. Belcher, moved, based on oral and written testimony and the available evidence in the record and the commission’s discussion, to re- verse the decision of the Hearings Official and uphold the appeal concerning the zone change approval for Knutson Family, LLC (Z 03-19), and further moved to adopt the draft final order, findings and conclusions of the Eugene Planning MINUTES – Eugene Planning Commission October 24, 2005 Page 7 Regular Meeting  Commission as prepared by the staff. The motion passed unanimously, 6:0. Mr. Duncan left the meeting at 1:15 p.m. II. ELECTION OF PLANNING COMMISSION OFFICERS Ms. Colbath opened nominations for Planning Commission officers. Ms. Levis nominated Ms. Colbath for president. Mr. Belcher noted that the commission had previously expressed the desire to discuss alternatives to seniority for selecting officers. He had no concern with the nominees but did want to have the discussion before the next election. Ms. Muir said the commission’s protocol had been to elect the most senior member as president but the bylaws did not require that. There being no further nominations, Ms. Colbath closed the nominations for president. Ms. Colbath was unanimously elected Planning Commission president, 5:0. Ms. Colbath nominated Mr. Duncan for vice president. Mr. Hudspeth asked if the vote on vice president could be postponed until Mr. Duncan and Mr. Lawless were present to participate. Ms. Colbath withdrew her nomination pending the commission’s determination on whether to delay the vote until all members were present. Ms. Colbath asked for a straw poll on delaying the vote on vice president. The commission agreed to delay the vote, 3:2; Mr. Hledik and Ms. Colbath voting no. III. PREPARATION FOR JOINT CITY COUNCIL/PLANNING COMMISSION MEETING ON MIXED USE CENTERS Principal planner Kurt Yeiter related that the November 16, 2005, joint meeting with the City Council was a follow-up to the fall 2004 joint meeting and the topic was opportunity siting. He referred to the draft Agenda Item Summary (AIS) prepared by staff for the council and asked the commission for feedback as well as directions on the presentation format. He said that staff was proposing a two-pronged approach to define and describe opportunity siting and list suggested improvements to the Mixed Use Centers (MUC) program. He reviewed the information in the AIS and requested comments. Ms. Colbath thanked Mr. Yeiter for working with the commission’s subcommittee to develop the draft. Mr. Belcher echoed Ms. Colbath’s comments and said he was pleased with the draft AIS. Mr. Hledik asked why the alternate path concept was not reflected in the AIS. Mr. Yeiter agreed that MINUTES – Eugene Planning Commission October 24, 2005 Page 8 Regular Meeting streamlining the PUD process and the opportunity PUD were discussed as the first steps or prototypes of alternate path and he would add that to the AIS. He indicated that he would revise the AIS and develop a slide presentation with notes. Ms. Colbath noted points raised by Mr. Lawless in his email about making the process as straightforward as possible to encourage the type of development preferred within the parameters of the desired outcomes. Ms. Colbath stated that the commission preferred a motion from the council that would integrate the work outlined in the AIS to the commission’s work program. Ms. Muir said that would be clarified in the AIS and a proposed motion. V. ITEMS FROM COMMISSION AND STAFF Ms. Muir announced that the City had received a Measure 37 claim and staff would be analyzing the ruling and the claim. She said the claim was related to an industrial park in west Eugene and the claimant was seeking either $5 million or a waiver of the code. She said under the City’s ordinance the claim would not come to the commission but staff would keep members briefed on what was occurring. Mr. Hudspeth asked if there was any direction from staff regarding a recent motion by Councilor Bonny Bettman. Ms. Muir noted the motion had passed before the recent Marion County ruling on Measure 37 and it was likely there would be further discussion on the motion, which directed the city manager to delay all action on any action that could increase property values until a givings tax was discussed. Ms. Colbath thanked outgoing commission member Anne Marie Levis for her many years of service on the Planning Commission. Mr. Belcher reported that he had visited with former development director Lew Bowers who was now involved in development in Portland and was willing to talk to the commission about his experience in Portland with mixed use centers. He noted that he and Mr. Duncan had recently discussed their thoughts on growth in Eugene with the Local Government Advisory Committee. Mr. Yeiter pointed out the council would be discussing at its October 26, 2005, work session a request by the City of Coburg to connect to the wastewater facility and confirmation of City support for the West Eugene Parkway. Mr. Hudspeth asked when there would be a follow-up discussion on the parks and open space issue. Mr. Nystrom distributed an updated schedule and said the subject was on the commission’s November 8, 2005, meeting. Ms. Colbath adjourned the Planning Commission meeting at 1:35p.m. (Recorded by Lynn Taylor) m:\2005\planning and development department\planning division\planning commission\pc051024.doc) MINUTES – Eugene Planning Commission October 24, 2005 Page 9 Regular Meeting