Planning Commission

SUMMARY MINUTES Regular Meeting Eugene Planning Commission Sloat Room—Atrium Building—99 West 10th Avenue October 3, 2006 11:30 a.m. PRESENT: Mitzi Colbath, President; Rick Duncan, Vice President; Jon Belcher, Phillip Carroll, Randy Hledik, John Lawless, members; Gabriel Flock, Kent Kullby, Steve Nystrom, Planning and Development Department; Gary McNeel, Public Works Department; Dan Terrell, Yoon Hwan Shin, Matt Peterson, Zachary Vishanoff, Erica Johnson Garrich, guests. ABSENT: Mike Sullivan, ex officio. PUBLIC COMMENT ON NON-AGENDA ITEMS I. PLANNING COMMISSION DELIBERATION/ACTION: YOON HWAN SHIN , SHIN PROPERTIES LLC ZONE CHANGE (Z 06-3) Staff: Kent Kullby, 682-5453 • First Assignment of Error: The Eugene Planning Commission took a straw vote on: The Hearings Official erred when she failed to conclude that the subject property was a “small split-zoned tax lot” as that term was used in the River Road/Irving Subarea Recommendation 1. The result of the straw vote was 5:1 with Commissioner Carroll voting in opposition. • Second Assignment of Error: The Eugene Planning Commission took a straw vote on: The Hearings Official erred when she failed to balance inconsistent plan policies. The result of the straw vote was 4:2 with Commissioners Carroll and Lawless voting in opposition. • Third Assignment of Error: The Eugene Planning Commission took a straw vote on: The Hearings Official erred by summarily concluding that the proposed zoning was inconsistent with the plan designation for the property. The result of the straw vote was 4:2 with Commissioners Carroll and Lawless voting in opposition. • Fourth Assignment of Error: The Eugene Planning Commission took a straw vote on: The Hearings Official erred by concluding that site review will not ameliorate impacts from the proposed commercial uses on the adjacent residential uses. The result of the straw vote was unanimous 6:0. II. ITEMS FROM COMMISSION AND STAFF A. Other Items from Staff B. Other Items from Commission MINUTES—Eugene Planning Commission October 3, 2006 Page 1  MINUTES Regular Meeting Eugene Planning Commission Sloat Room—The Atrium—99 West 10th Avenue October 3, 2006 11:30 a.m. PRESENT: Mitzi Colbath, President; Rick Duncan, Vice President; Jon Belcher, Phillip Carroll, Randy Hledik, John Lawless, members; Gabriel Flock, Kent Kullby, Steve Nystrom, Planning and Development Department; Gary McNeel, Public Works Department; Dan Terrell, Yoon Shim, Matt Peterson, Zachary Vishanoff, Erica Johnson Garrich, guests. ABSENT: Mike Sullivan, ex officio. Ms. Colbath convened the meeting of the Eugene Planning Commission at 11:30 a.m. PUBLIC COMMENT ON NON-AGENDA ITEMS Zachary Vishanoff, Patterson Street, general delivery mailing address, expressed his disappointment with the Joint Lane County Planning Commission and City of Eugene Planning Commission meeting last week. He was concerned about the lack of public debate regarding land swaps, and a pattern of getting rid of parks for a new bridges and roads. Mr. Belcher stated the Planning Commission and Fairmount Neighborhood Association were not in the decision making loop for the property swaps. He asked how the Planning Commission could do a more effective job to promote better public input, noting the number of public feedback sessions had increased considerably. He suggested Mr. Vishanoff not tell the Planning Commission it was not doing a good job, but rather offer suggestions. Mr. Vishanoff said advertisements for public forums should be placed in the Eugene Weekly, and such ads should ask for input rather than simply having a meeting to educate the public. Mr. Belcher asserted that 95 percent of the time the Planning Commission was listening to the public at recent feedback sessions, while talking only 5 percent of the time during those meetings. I. PLANNING COMMISSION DELIBERATION/ACTION: YOON HWAN SHIN, SHIN PROPERTIES LLC, ZONE CHANGE (Z 06-3) Mr. Kullby offered the staff report. He said the Planning Commission held a public hearing on September 26, 2006 and heard testimony from the applicant/appellant and an abutting property owner in support of the zone change proposal and in support of the appeal seeking to reverse the Eugene Hearings Official’s denial of the zone change request. He noted that the applicant/appellant’s representative, Dan Terrell, Law Office of Bill Kloos PC, provided a fifteen day timeline waiver to allow the Planning Commission adequate time to deliberate and consider the issues raised in the appeal. He noted that Mr. Terrell had submitted documents, “Appellant’s Written Response to Staff Report” and “Applicant’s Proposed Findings” for the Planning MINUTES—Eugene Planning Commission October 3, 2006 Page 1 Commission’s consideration. The commissioners deliberated and agreed to meet on October 3, 2006 to further deliberate the appeal issues in preparation for taking final action on October 9. Mr. Kullby said the staff recommended Draft Final Order upholding the Hearings Official’s decision was both distributed at the September 26, 2006 public hearing and in the Agenda Item Summary for today’s meeting. Mr. Kullby stated the appeal was based on the existing record and the Planning Commission’s review and action should be focused entirely on the question of whether or not the Hearings Official failed to properly evaluate the application or make a decision consistent with the applicable zone change criteria. He noted that the Planning Commission may modify the Hearings Official’s decision of denial with supplemental finds; or, in the event that the Planning Commission finds that the Hearings Official erred in denying the zone change request and chose to reverse the decision, the Planning Commission was required to provide specific findings of fact as to why the decision was in error. The Planning Commission could not reverse the decision without such findings. The Planning Commission’s decision must otherwise be made in accordance with the provisions for appeal decisions (Eugene Code (EC) 9.7680), and more specifically, consistent with the applicable zone change criteria (EC 9.8865). Mr. Kullby said several questions had been received from commissioners via e-mail to which staff had responded. Mr. Flock read the following: Question from Mr. Belcher: I would like to know which of the original lots within the subarea had been rezoned and/or partitioned. I am trying to confirm or refute what I understand is the applicant’s position that the large lots had their split zoning resolved by partition and rezoning and that small lots had been rezoned to their most intensive use. Response: Mr. Kullby said there were no zone change or partition records in the evidence before the Hearings Official, thus going beyond the scope of the evidence before the Hearings Official. Mr. Kullby read the following: Question from Mr. Lawless: Was the property developed or not. Mr. Kullby said there was a Regional Land Information Database (RLID) record on RLID page 163 that noted creation of the land use information on that record which stated that the site was developed with commercial uses as of 1985, while the date of the plan was 1987. There was a clear indication that the property was developed before the plan was adopted. Additionally, the existing general land use patterns color map on page 2-9 of the plan, and page 243 of the appeal hearing packet, showed that half of the site was developed and half of it was undeveloped. Thus, it was clearly known that part of the lot was undeveloped and had split zoning at the time of plan adoption. Mr. Kullby read the following: Regarding a question from Mr. Hledik, Mr. Kullby quoted the applicant/appellant: “Finally the cross outs and rewritten zoning designations on the composite oversized map shows that several parcels that straddle the 200 foot line have been rezoned to their most intensive use.” MINUTES—Eugene Planning Commission October 3, 2006 Page 2 Mr. Flock said the many of the examples in the record of rezoning of split zoned lots were examples that appeared to align with the boundary of land use designations. It was not apparent that areas where the rezone of a split-zoned tax lot to commercial zoning had extended beyond the commercial designation boundary of the plan diagram. Mr. Duncan stated that although he had been absent from the September 26, 2006 Planning Commission public hearing, he had read the record and listened to a recording of the meeting, and would be able to deliberate and take action in a well informed manner. He added that he owned one of the properties referenced in the discussion of the subarea, and asked if that created a problem. Mr. Nystrom said an issue would arise only if Mr. Duncan intended to introduce new evidence into the record. Mr. Duncan stated he did not intend to introduce new information into the record. Furthermore, he had no conflict of interest and no ex parte contacts, although he had driven by the property on numerous occasions. In response to Ms. Colbath, Mr. Kullby said the new Eugene/Springfield Metropolitan General Area Plan (Metro Plan) diagram was effective February 8, 2006, which was after the submittal of the application on February 4, 2006. Staff was using the applicable Metro Plan diagram that was in effect on February 4, 2006 to evaluate the application. Ms. Colbath opened deliberations. Mr. Lawless said he could not dispute what the Hearings Official deemed appropriate regarding definitions of developed and undeveloped lots and could not find an error in the Hearings Official’s findings in regards to distinguishing between small, medium, or large split-zoned lots. He said there was no quantifiable way to assign a lot as large or small, and therefore no reason to address the issue. Ms. Colbath said although the Hearings Official deemed Policy 6 applied to the proposal, she felt Policy 7 should be considered equally with Policy 6. She said that Policy 7 and the Suggested Actions of Policy 7 presented a conflict with Policy 6. She felt the Hearings Official erred in not balancing Policies 6 and 7. She added that Policy 3 may or may not apply as it addressed existing strip commercial, and the definition of strip commercial was not clear to her. Mr. Carroll said Policies 6 and 7 conflicted only if the definitions in the recommended actions in Policy 7 were substantially relevant, which he did not believe was the case. He added that he did not believe the Planning Commission could or should answer Mr. Terrell’s rhetorical question: “How did the refinement plan expect the lot to be developed if it the intent was to keep the lot split zoned and have the lot be developed with commercial and residential uses off of River Road?” Mr. Carroll stated the specificity of the test of the suggested action constituted the context for understanding the policy. He said the substantial context for understanding the issue were in the findings and the policies of the refinement plan. He added that the findings from which the policies arose addressed the issues of preventing the expansion of strip development, of dispersal of neighborhood commercial, and of preventing conflicts between commercial developments and abutting residential development. It seemed that the proposed zone change potentially violated MINUTES—Eugene Planning Commission October 3, 2006 Page 3 the basic findings provided as part of the refinement plan. There was nothing in the findings of the refinement plan that expressed concern that there were a variety of lot dimensions in the River Road area and that it was the intent of the plan to ensure that those lots were developed in a fair manner, or that development sites should not be difficult to develop. Mr. Carroll said the drafters of the refinement plan did consider the effects of split zoning, but perhaps they were unwilling or unable to follow through to ensure that the refinement plan policies made sense for all lot configurations, and thus only allowed small lots to be . He was doubtful that the issue could be resolved in this forum. He doubted there was sufficient evidence in the record to overturn the Hearings Official’s decision. Mr. Carroll said that the applicant/appellant cited the case of Graville in their application. He opined there was a difference with the issue before the Planning Commission in that in the Graville example, the city and the applicant seemed to agree which policies applied, while in this instance there is disagreement as which policies are applicable and disagreement as to how specific sub-recommendations would be used to create a certain zoning pattern. He asserted that when taking a broad look at the refinement plan, the “small/large” distinction was not relevant, and the other basis for appeal went away. Mr. Belcher said there was specific Land Use Board of Appeals (LUBA) direction through the Knutson decision to consider not just the policies but also the recommendations of policies. In this instance, there was specific direction given in the River Road/Irving subarea, to prevent more commercial except in the subarea, by establishing a 200 foot wide commercial area. Additionally, within the recommendations, it acknowledged split zones would be created, and directed rezoning of small tax lots to their most intensive use. He said in the subarea, those small tax lots had been rezoned. He added the intent and legislative history were clear. He said the only question for him was whether this was a large lot to be rezoned. He said the lot in question was not an undeveloped lot, and in comparison to two other larger lots identified on the reference map, it appeared it was not large, therefore must be identified as small and should be rezoned. Mr. Lawless said all of the other split tax lot rezonings still fit in the footprint of the “blob diagram” for commercial land use designations, and the subject area to be rezoned was not within a commercial designation on the land use diagram of the plan, which he saw as a fundamental difference to other zone changes that had occurred when a lot was split-zoned. He said Policy 6 appeared to address locational limits, and Policy 7 addressed the qualitative nature of compatibility and how it would be achieved. Physical location and compatibility issues were not related. Mr. Hledik said the Hearings Official’s decision was based on three points: • The zone was inconsistent with the plan designation. • There was conflict with policies. • Site review would not ameliorate those conflicts. Mr. Hledik said although staff had made plausible arguments for denial, the applicant/appellant had made equally plausible arguments for approval. He cited issues with the Hearings Official’s conclusions, noting the Hearings Official relied on Policy 6, that new neighborhood commercial uses shall be located away from River Road, as well Policy 7 that neighborhood uses shall not be located on or adjacent to River Road. He found fault, in that Policy 3 was not appropriately considered by the Hearings Official. He noted that Policy 3 made a distinction between what was addressed in Policy 6, specifically the location of new neighborhood commercial uses, versus Policy 3 and the expansion onto contiguous property of strip commercial uses, which was what MINUTES—Eugene Planning Commission October 3, 2006 Page 4 was relevant in this situation. Mr. Hledik asserted that Policy 3 and Policy 7 were consistent and he asserted that the Hearings Official erred by not balancing Policy 6 with Policy 3, and Policy 3 in conjunction with Policy 7. He asked if the intent of the plan was to create zone plan diagram inconsistencies, noting those inconsistencies did not occur on the west side of River Road. He stated there was no reference in the record related to the refinement plan language distinguishing between large and small lot designations. Staff did a credible job suggesting looking in the immediate area, while applicant/appellant wanted to look across a broader area. In the absence of more definite language in the plan, Mr. Hledik opined that the plan allowed for approval of the applicant/appellant’s zone change request, and that the Hearings Official erred. Mr. Lawless asserted that Policy 3 and Suggested Action 3.1 discouraged commercial infringement into residential areas around the periphery of the commercial development along River Road. He added that the Hearings Official suggested that Site Review overlay zoning was intended as a secondary method to deal with the details of what was appropriate, rather than as a tool to make something appropriate that didn’t fit the land use diagram. In response to Mr. Belcher, Mr. Flock said there were portions of the commercial designation and zoning that extended beyond the 200 foot boundary along River Road. He added that staff could only interpret and estimate how of the land use diagram related to tax lot boundaries. Mr. Belcher opined that the writers of the refinement plan recognized that the 200 foot boundary was not sufficient to address the inconsistencies with split zoning, and so they developed the subarea recommendations to do so. He said the intent of the plan was to allow for the most intensive use on split zoned lots. He agreed that Site Review overlay zoning without specific standards may not be sufficient for this site. Ms. Colbath said she did not find that Policy 3 and Suggested Action 3.1 applied to lots that were split zoned, and she concurred with the applicant/appellant that the writers of the refinement plan intended that two acre parcels were reasonable for development as noted in Suggested Action 7.1(b), making the 1.68 acre site suitable for development. Mr. Belcher said another ambiguity was whether the refinement plan language intended that development should be restricted to 2 acre lots, or 2 acre development areas that included contiguous lots. Mr. Carroll asserted that the best way to make a decision was to go back to the language in the findings which were adopted as part of the plan and rely on those findings and how they led to the policies. Beyond that, the Planning Commission was in jeopardy of setting a precedent that shouldn’t be applied to other situations in the plan, and that the Planning Commission was leaving itself vulnerable to their own interpretation of the plan. Mr. Hledik stated that Suggested Action 7.1(a) created an exception to the policies limiting commercial uses along River Road. Mr. Belcher noted that that Suggested Actions 7.1 included development standards that should be applied to the site. The Planning Commission reached a consensus for a process for voting on the assignments of error, deciding to conduct a straw poll on each assignment of error. MINUTES—Eugene Planning Commission October 3, 2006 Page 5  • Third Assignment of Error: The Eugene Planning Commission took a straw vote on: The Hearings Official erred by summarily concluding that the proposed zoning was inconsistent with the plan designation for the property. The result of the straw vote was 4:2 with Commissioners Carroll and Lawless voting in opposition. • Second Assignment of Error: The Eugene Planning Commission took a straw vote on: The Hearings Official erred when she failed to balance inconsistent plan policies. The result of the straw vote was 4:2 with Commissioners Carroll and Lawless voting in opposition. • First Assignment of Error: The Eugene Planning Commission took a straw vote on: The Hearings Official erred when she failed to conclude that the subject property was a “small split-zoned tax lot” as that term was used in the River Road/Irving Subarea Recommendation 1. The result of the straw vote was 5:1 with Commissioner Carroll voting in opposition. • Fourth Assignment of Error: The Eugene Planning Commission took a straw vote on: The Hearings Official erred by concluding that site review will not ameliorate impacts from the proposed commercial uses on the adjacent residential uses. The result of the straw vote was unanimous 6:0. Mr. Flock said given the votes on upholding the assignments of error meant that the Planning Commission must develop specific edits or findings of fact where needed to reverse the decision by closely reviewing the applicant/appellant’s suggested findings. He opined that the appellant’s findings were sufficient to reverse the decision, adding that there may be some specific edits needed based on the Planning Commission’s discussion. Ms. Colbath noted consensus to complete deliberations and action at the next Planning Commission meeting on October 9th. Mr. Carroll left at 1:40 p.m. II. ITEMS FROM COMMISSION AND STAFF A. Other Items from Staff Mr. Nystrom said the agenda for the October 9, 2006 Planning Commission meeting would include the Yoon Hwan Shin Zone Change and the Walnut Station Citizen Involvement Plan. B. Other Items from Commission Mr. Belcher stated he misstated homeownership statistics at the joint meeting with the City Council. He added he sent a note to Councilors immediately following that meeting to correct his statement. Ms. Colbath adjourned the Planning Commission meeting at 1:45 p.m. (Recorded by Linda Henry) m:\2006\planning and development department\planning division\planning commission\pc061003.doc MINUTES—Eugene Planning Commission October 3, 2006 Page 6