Planning Commission

SUMMARY MINUTES Regular Meeting Eugene Planning Commission Sloat Room—The Atrium—99 West 10th Avenue March 5, 2007 11:30 a.m. PRESENT: Rick Duncan, President; Randy Hledik, Vice President; Jon Belcher, Phillip Carroll, Ann Kneeland, John Lawless, Anthony McCown, members; Lisa Gardner, Alissa Hansen, Steve Nystrom, Planning and Development Department; Gary McNeel, Public Works Department; Emily Jerome, Ross Williamson, City Attorney; Mark Hoyt, representative for the appellant; Lisa Warnes, Jan Wrilling, Charles Biggs, guests. ABSENT: Mike Sullivan, ex officio. PUBLIC COMMENT ON NON-AGENDA ITEMS There was no one wishing to offer public comment. I. STUDY SESSION TO REVIEW AGENDA OF MARCH 6, 2007 Green Valley Glen PUD (PDT 05-6) Staff: Alissa Hansen, 682-5508 II. ITEMS FROM COMMISSION AND STAFF A. Other Items from Staff B. Other Items from Commission MINUTES—Eugene Planning Commission March 5, 2007 Page 1  MINUTES Regular Meeting Eugene Planning Commission Sloat Room—The Atrium—99 West 10th Avenue March 5, 2007 11:30 a.m. PRESENT: Rick Duncan, President; Randy Hledik, Vice President; Jon Belcher, Phillip Carroll, Ann Kneeland, John Lawless, Anthony McCown, members; Lisa Gardner, Alissa Hansen, Steve Nystrom, Planning and Development Department; Gary McNeel, Public Works Department; Emily Jerome, Ross Williamson, City Attorney; Mark Hoyt, representative for the appellant; Lisa Warnes, Jan Wrilling, Charles Biggs, guests. ABSENT: Mike Sullivan, ex officio. PUBLIC COMMENT ON NON-AGENDA ITEMS There was no one wishing to offer public comment. I. STUDY SESSION TO REVIEW AGENDA OF MARCH 6, 2007 Mr. Duncan said his firm completed an appraisal on the property in 2004 for the City of Eugene when the City was considering acquiring the property. He had initial conversations with City staff, and two of his partners completed the assignment. He stated he did not have a conflict of interest and he would be impartial in making a decision. Ms. Kneeland stated she had resided in the Southeast Neighborhood area from June to October 2006, during which time she attended approximately four or five neighborhood meetings, several meetings of which were focused on the Dillard Heights PUD, while the other two were with neighbors who met to work to address the Green Valley Glen PUD. The meetings were focused on identifying experts and fund raising issues, and did not touch the substance of the application or the response. She attended the meetings as an interested neighbor and an attorney in transition. She had not attended any meetings since moving from the neighborhood in October. She had been on the e-mail distribution list until recently. To the extent the emails addressed the Green Valley Glen application she did not read them and deleted them. Mr. Belcher stated he had reviewed the tapes from the February 26, 2007 meeting. Mr. Hledik stated he had visited the site. Ms. Hansen distributed pages to the Commissioners that had been inadvertently left out of the agenda packets for the meeting. She added staff would review all of the pertinent materials to ensure that the Commissioners had everything. Ms. Hansen provided the staff presentation. She said the purpose of the meeting was to study the issues that the Planning Commission would hear testimony on at the March 6, 2007 public MINUTES—Eugene Planning Commission March 5, 2007 Page 1 hearing. She said the appeal was based on the evidence in the record, and her responses to questions from Commissioners would be based on what had been submitted. She said the focus of the Commission should be, Did the Hearings Official err on those three appeal issues that were in the appellant’s appeal narrative? She stated that Mr. Hledik and Ms. Kneeland had submitted questions via email which she would address during each assignment of error. Ms. Hansen facilitated a review of the three assignments of error. Appellant’s First Assignment of Error: The Hearings Official incorrectly concluded the application was not completed within 180 days of submittal, and therefore, incorrectly concluded standards enacted after the date the application was initially submitted applied to the application. Ms. Hansen stated Ms. Kneeland had observed that the Hearings Official had referenced ORS 197.178, which was an error in the Hearings Official's decision, because everything she quoted was from ORS 227.178. Ms. Hansen asserted there were several ways in which an application could be determined complete. • It was complete immediately upon receipt by the City, with all required documentation included, which was not generally the case. • If not complete, staff would send a letter to the applicant within thirty days identifying missing pieces. At that point an applicant could say they would submit all of the information, some of the information and tell the City they would not submit the rest of the information, or they would submit none of the information. In the case of the Green Valley Glen (GVG), the applicant submitted a packet of materials on March 24, 2006, the 180th day, with a statement indicating that the applicant had submitted everything the City had asked for. The applicant further asked that if the City did not think everything the City had asked for was included, to deem the application complete. Ms. Hansen explained the regular procedure was to deem the application complete. She affirmed she had completed the necessary review, and based on the information asked for by the City, the applicant had submitted everything asked for. In response to a question from Mr. Duncan, Ms. Jerome explained there were several ways to deal with the 180 day rule. Typically, a lawyer would include a statement that the information was complete and even if it was not, ask the governing body to deem it complete, because if an application had not been deemed complete in one way or another by the 180th day, it was void, and would need to be resubmitted. Responding the Mr. Belcher, Ms. Hansen explained if an application deemed complete was subsequently found to have missing information, options included, but were not limited to submitting information at a later time, or not submitting the information due a belief by the applicant that there was sufficient information. Mr. Lawless arrived at 11:45 a.m. In response to Ms. Kneeland, Ms. Jerome asserted she had reviewed the applicant’s appeals statement in combination with what the applicant subsequently submitted, and it was staff’s feeling that the record was complete. Staff could provide an analysis of the information without adding new information to the record. Noting the Hearings Official had determined that the record was not complete, and therefore new MINUTES—Eugene Planning Commission March 5, 2007 Page 2 criteria adopted by the City Council should be applied, Mr. Belcher asked what conditions would say the record was not complete and therefore new criteria of additional land use decisions would take effect. Ms. Jerome said staff must deem an application complete if asked to do so by the applicant, even if staff did not believe it was completed, for the purposes of applying new criteria, and to start the 120 day timeline. Responding to Mr. Belcher, Ms. Hansen said the staff analysis had not been completed prior to initial hearing and the document containing that information had not been available for the Hearings Official at the time of the hearing. Ms. Jerome added that it appeared the Hearings Official read the applicant’s statement requesting the application be deemed complete, without conducting an independent analysis of whether or not it had been submitted, and none was provided. Ms. Jerome addressed a question submitted via email from Ms. Kneeland. The applicant had stated that even if the missing items were not provided, the applicant felt they still met the requirements of the new section of the code adopted after September 26, 2005. If the Planning Commission found the Hearings Official to be correct in her interpretation, would the Planning Commission need to review the criterion based upon the evidence submitted. Explaining the Commission had options, Ms. Jerome said if the Commission determined that the Hearings Official was incorrect, and subsequent to perusing the record, believed everything was submitted, it was within the Commission’s purview, even if the Hearings Official was correct, to look at the additional criteria that the Commission did not believed applied but if they did, the Commission could analyze what was in the record related to those criteria. Such an analysis would provide a safeguard in the event that LUBA found that the Planning Commission was incorrect, or remanded the appeal. She was convinced that the staff analysis of the applicant’s information made the record complete, and from a legal standpoint, the Planning Commission was safe with the current level of analysis. Ms. Jerome said the Hearings Official, the applicant and herself had a different reading of what would happen if the application was not complete within 180 days. The Hearings Official applied all of the criteria until the time she wrote her decision. The applicant asserted that even if the application was deemed complete based upon his refusal to submit additional information, he could to go back to the submittal date. Ms. Jerome opined the most reasonable interpretation of the statutes was that the criteria and standards that applied were the ones that were in place and effective at the time the application was deemed complete. In response to Mr. Hledik’s question if the Planning Commission took the extra step, could LUBA remand a decision based upon the Commission’s misinterpretation, Ms. Jerome said staff would write a decision that carefully phrased any additional analysis, as precautionary rather than necessary. In response to Ms. Kneeland, Ms. Hansen said the water resources conservation overlay zone went into effect January 2005, followed by the minor code amendments; the Metro Plan Update went into effect February 2006. The application was deemed complete in March 2006, after which the stormwater standards went into effect July 2006. Ms. Jerome stated the stormwater standards would not be applicable if LUBA viewed the application as she did. Responding to Mr. Belcher, Ms. Jerome concurred that LUBA could remand the application back to the Planning Commission if LUBA determined that the application was incomplete and the Commission had not submitted analysis supporting its assertion the application as complete. She MINUTES—Eugene Planning Commission March 5, 2007 Page 3 further concurred that the Planning Commission could indicate its intention to review additional standards upon remand, and that LUBA had no option other than remand if the analysis was not submitted. In response to Mr. Hledik, Ms. Jerome said because the applicant had seen the water resources as an issue, he had addressed those issues as after the fact criteria and the Planning Commission had sufficient information to address those issues. Responding to Mr. Belcher, Ms. Jerome said the Hearings Official had provided the public with sufficient time address the water resources issue by leaving the record open. Appellant’s Second Assignment of Error: The Hearings Official incorrectly concluded the evidence submitted by Applicant’s engineering geologist did not demonstrate the Applicant can construct road improvements within the proposed areas of impact. Ms. Hansen said the Planning Commission needed to address two issues: • Did the applicant need to provide the soil borings? • Was there enough information in the record to determine that the mitigations were feasible, and that the cut and fill activity could be confined to the proposed limits? In response to questions submitted by Mr. Hledik via email, Ms. Hansen said although there were no geotechnical reports from other PUDs in the record, but the record did contain two Hearings Official’s decisions from the Moon Mountain PUD and the Springknoll PUD, which provided a brief description of the geotechnical information submitted for those projects. In further response to Mr. Hledik’s questions, Ms. Hansen said she had no further geotechnical reports in the record, but referred Commissioners to the Hearings Official’s decisions included in the record. She added there was no evidence in the record related to Privately Engineered Public Improvement (PEPI) Permits, thus she was unable to respond to Mr. Hledik’s question about how PEPI Permits had been managed for other projects. Ms. Hansen said EC 9.8335 stated that modifications to tentative PUDs must be consistent with the conditions of original approval. She said EC 9.8365 stated that the final PUD required that all of the conditions of the tentative PUD had been met. Responding to Mr. Lawless, Ms. Hansen said the January 1, 2006 Minor Code Amendments had revised the language that previously had not allowed a tentative PUD to be modified. In response to Mr. Belcher, Ms. Hansen said the applicant would not get final approval if it was unable to meet all of the conditions of the tentative PUD, and the applicant would need to reapply. Ms. Hansen directed Commissioners to a memorandum from Ms. Jerome regarding evaluating expert testimony. Responding to Mr. Hledik, Ms. Jerome said if resumes of the geotechnical experts were not included in the materials submitted, it would be considered evidence and could not be added at this point. Mr. Hledik noted all of the geotechnical experts were certified engineering geologists. In response to Mr. Carroll, Ms. Hansen said the origin of the limits on the proposed impacts, consisting of tree protection fencing as well as related cut and fill impacts, were self-imposed by MINUTES—Eugene Planning Commission March 5, 2007 Page 4 the applicant. Appellant’s Third Assignment of Error: The Hearings Official incorrectly concluded development of the site bordered by two residential neighborhoods, and the Bonneville Power Administration (BPA) power easement to the south, presented a wildfire hazard. Ms. Hansen asserted her report stated that the applicant had addressed the wildfire hazard issue. Ms. Hansen reviewed questions submitted by Ms. Kneeland via email. Ms. Hansen stated the missing pages identified by Ms. Kneeland had been provided to Planning Commissioners at today’s meeting. She said that an email correspondence from the Fire Marshal was attached to a letter to the applicant identifying those items the applicant needed to provide to the City for completeness. She added this was an unusual case in which the Fire Marshal was given an opportunity to comment before the completeness review, and she did not consider those comments to be part of the completeness review. Ms. Jerome said after the hearing, staff would need to ensure that participants did not submit new evidence, and would advise the Commission on what it would need to reject as new evidence in its deliberations. She asserted staff have made every effort to ensure that the appropriate code was cited throughout the document. Mr. Nystrom noted wildfire hazard issues as they related to PUDs were specific fire code issues. Ms. Jerome said it was up to the Planning Commission to determine the scope of the criterion and how it applied to this application. General Discussion Responding to Mr. Lawless, Mr. Nystrom said the task of the Planning Commission was to: • Deny the appeal; • Reverse the appeal; or, • Modify the findings; change some findings in part but not others; modify with additional conditions in the record. At the request of Commissioners, staff reviewed the process for the March 6 public hearing and the deliberation and decision timelines. II. ITEMS FROM COMMISSION AND STAFF A. Other Items from Staff Ms. Gardner said she was preparing a Planning Commission retreat report for distribution and as a resource for the Commission’s future discussion on visioning and the public involvement process. She reviewed the Rasor Park public forum held on February 27, 2007, adding Planning Commissioners were welcome attend a follow-up meeting on March 6, 2007. Ms. Gardner had received a letter signed by 16 of the 17 neighborhood leaders that pointed out concerns with the code amendment process. She had responded with an updated process and timeline developed by staff with the consultant. Mr. Nystrom said the role of Commissioners related to the minor code amendments would MINUTES—Eugene Planning Commission March 5, 2007 Page 5 become more active beginning in late April. Additionally, the Commission would be looking at opportunity siting, infill standards, and downtown zoning code amendments. B. Other Items from Commission Mr. Lawless said he and Ms. Harding met with the Churchill neighborhood association regarding compatibility standards. Mr. Belcher said he met with Amazon neighbors on infill and opportunity siting. Mr. Hledik said he attended the Airport Master Plan Update Advisory Committee meeting on February 28. He reported the first two chapters had been drafted. He had been struck by the impacts of the events of September 11, 2001, and the efforts of the airport marketing staff. He added facility needs based upon projections would be reviewed at the May meeting. Mr. Duncan adjourned the Planning Commission meeting at 1:25 p.m. (Recorded by Linda Henry) m:\2007\planning and development department\planning division\planning commission\pc70305.doc MINUTES—Eugene Planning Commission March 5, 2007 Page 6