Planning Commission

SUMMARY MINUTES Public Hearing Eugene Planning Commission Council Chamber—Eugene City Hall—777 Pearl Street March 6, 2007 6:00 p.m. PRESENT: Rick Duncan, President; Randy Hledik, Vice President; Jon Belcher, Phillip Carroll, Anne Kneeland, John Lawless, Anthony McCown, members; Lisa Gardner, Alissa Hansen, Steve Nystrom, Planning and Development Department; Gary McNeel, Public Works Department; Emily Jerome, City Attorney. ABSENT: Mike Sullivan, ex officio. PUBLIC HEARING ON APPEAL OF HEARINGS OFFICIAL’S DECISION Green Valley Glen (PDT 05-6) Assessor’s Map: 18-03-02-00 Tax Lot: 101 Location: Between Dillard Road and Nectar Way in southeast Eugene. Request: Tentative planned unit develop to create a four-phase, 113-lot, single- family residential subdivision with attached and detached dwellings, a private street system, common open space areas and a maintenance equipment building. Appellant’s Representative: Mark Hoyt, Sherman, Sherman, Johnnie & Hoyt LLP Lead City Staff: Alissa Hansen, Senior Planner (541) 682-5508 MINUTES—Eugene Planning Commission March 6, 2007 Page 1 Public Hearing  Public Hearing Eugene Planning Commission Council Chamber—Eugene City Hall—777 Pearl Street March 6, 2007 6:00 p.m. PRESENT: Rick Duncan, President; Randy Hledik, Vice President; Jon Belcher, Phillip Carroll, Anne Kneeland, John Lawless, Anthony McCown, members; Lisa Gardner, Alissa Hansen, Steve Nystrom, Planning and Development Department; Gary McNeel, Public Works Department; Emily Jerome, City Attorney. ABSENT: Mike Sullivan, ex officio. Mr. Duncan convened the Planning Commission at 6:05 p.m. PUBLIC HEARING ON APPEAL OF HEARINGS OFFICIAL’S DECISION Green Valley Glen (PDT 05-6) Assessor’s Map: 18-03-02-00 Tax Lot: 101 Location: Between Dillard Road and Nectar Way in southeast Eugene. Request: Tentative planned unit develop to create a four-phase, 113-lot, single- family residential subdivision with attached and detached dwellings, a private street system, common open space areas and a maintenance equipment building. Appellant’s Representative: Mark Hoyt, Sherman, Sherman, Johnnie & Hoyt LLP Lead City Staff: Alissa Hansen, Senior Planner (541) 682-5508 Planning Commissioners introduced themselves. Mr. Duncan stated the purpose of the meeting was to hold a public hearing on an appeal of the Eugene Hearings Official’s decision to deny a tentative planned unit development request made for Green Valley Glen PUD (PDT 05-6). Mr. Duncan asked that the meeting be orderly and respectful to all present. He asked members of the public to contain their public comments to testimony at the podium. Mr. Duncan explained how the public hearing would be conducted. He explained that procedures for the meeting had previously been discussed with and agreed upon by the appellant and organized opposition. Both sides had agreed to a 45 minute time limit to present their testimony, MINUTES—Eugene Planning Commission March 6, 2007 Page 1 Public Hearing followed by a 20 minute time limit for applicant rebuttal. Others wishing to testify would be limited to three minutes. He further explained that in accordance with the procedural requirements set forth in the Eugene Code (EC) 9.7655, the appeal shall be based on the record, and shall be limited to issues raised in the record that were set out in the filed statement of appeal issues. No new evidence pertaining to appeal issues could be accepted by the Planning Commission, and the basis of the appeal was limited to issues raised during the review of the original application. The Planning Commission was required to conduct the public hearing according to the statutory procedures for quasi-judicial hearings, and others set forth in Eugene Code 9.7065 through 9.7095. Mr. Duncan asked Planning Commissioners to disclose any ex parte contacts, conflicts of interests, biases, or challenges to impartiality. 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, two or three 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 changing fields. 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. Carroll said he returned a telephone call to Lisa Warnes at the Eugene Tree Foundation several months prior to the public hearing before the Hearings Official. He explained to her that he was a Planning Commissioner. Both parties understood the potential conflict of interest and did not discuss the substance of the issue. That contact would not effect his consideration of the site. Mr. Hledik said he visited the site about two weeks ago. Mr. McCown had nothing to declare. Mr. Belcher said he was employed by the United States Forest Service (USFS) and worked in the same office as one of tonight’s speakers, Al Johnson. Mr. Belcher and Mr. Johnson had not discussed the issue and had no ex parte contacts. Mr. Lawless said he had had no ex parte contacts nor had any conflicts of interest. Mr. Duncan said the appraisal firm of which he had part ownership had completed an appraisal on the property in 2004. He had some initial contacts, but the appraisal was completed by two other members of the firm. He had no conflicts of interest and could remain impartial in considering the issue. He added he had made a site visit two weeks ago. Ms. Jerome asked if, as a result of any of the contacts, any of the Planning Commissioners felt they could not be fair and impartial. She noted no one felt they could not be fair and impartial. Alissa Hansen offered the staff report. She said the purpose of the meeting was to hold a public hearing on an appeal of the Eugene Hearings Official’s decision to deny a tentative planned unit development request made for Green Valley Glen PUD, which was a proposed 113-lot, single- MINUTES—Eugene Planning Commission March 6, 2007 Page 2 Public Hearing family residential development with a private street system, and common open space areas. The appeal submitted by the applicant’s representative included three assignments of error. The assignments of error focused on the Hearings Official’s decision with respect ORS 227.178, as well as the tentative planned unit development approval criterion at Eugene Code (EC) 9.8320(1), (2), and (6). The three alleged assignments of error were: 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. 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. 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 said background on the assignments of error was available in the staff report provided with the agenda packet. She said testimony should be directed specifically to the three appeal issues and relevant criteria. No new evidence pertaining to the appeal issues could be accepted by the Planning Commission, and the basis of the appeal was limited to the issues raised during the review of the original application. She referenced the staff report, a poster citing the three assignments of error, and several handouts for the Planning Commission and available to the public. The Planning Commission review would be focused entirely on the question of whether or not the Hearings Official erred in her evaluation of the application or made a decision inconsistent with the relevant criteria. A decision was required no later than March 30, 2007 to meet the 120 day statutory time limit and to comply with local code procedures. She added staff would follow up on questions raised by the Planning Commission at its March 5, 2007 meeting prior to deliberation on March 12, 2007. Ms. Hansen provided two pages missing from the materials given to Commissioners on March 5, 2007. Mr. Duncan opened the public hearing and asked for public testimony from the appellant and others in support of the appeal. Mark Hoyt, 475 Cottage Street, NE, Suite 120, Salem, Oregon, identified himself as the appellant’s representative. Mr. Hoyt offered the following points in support of overturning of the Hearings Official's decision: • R-1 zoned property for single-family residential development. MINUTES—Eugene Planning Commission March 6, 2007 Page 3 Public Hearing  • No variances requested in terms of actual zoning approval. • Original proposal for 113 units; conditions imposed by staff and the Hearings Official which were acceptable to the appellant would delete five lots, leaving a total of 108 units. • Appellant had no objections to any of the proposed conditions in the Hearings Official's report should the Hearings Official's decision be overturned and the conditions imposed. • Hearings Official found the appellant satisfied all of the PUD criteria regarding the resources. He provided an overview of the proposed project that was previously entered into the record at the Hearings Official’s public hearing on December 12, 2006. Mr. Hoyt provided a PowerPoint presentation entitled, Green Valley Glen An R-1 Zoned PUD Where Resources Are Treated as Assets, that outlined his comments, a copy of which was provided for Planning Commissioners. Mr. Hoyt introduced Gary Peterson who had conducted the geotechnical analysis on the site on behalf of the applicant. Gary Peterson, 4350 West Bay Road, reviewed his professional credentials and provided a PowerPoint presentation entitled Green Valley Glen Planning Commission Issue—2 Engineering Geology, March 6, 2006 Hearing, Gary Peterson, CEG, Vice President, Shannon & Wilson, that outlined his comments addressing the Second Assignment of Error, a copy of which was provided for Planning Commissioners. Mr. Hoyt provided replacement pages for Planning Commissioners that reflected the October 14, 2006 e-mail from Adra Chastain, Eugene Fire Department, Fire Marshal’s office that was in the record, noting the incorrect version had inadvertently been included in the appeals statement. Additionally, he provided a document entitled, Proposed Finding Regarding Geotechnical Investigation, for Planning Commissioners which supported statements made by Mr. Peterson at this public hearing. Bill Kloos, 375 West Fourth Avenue, #209, stated he represented an applicant who currently had a South Hills PUD application in the queue for consideration, and wished to support the Green Valley Glen applicant’s position so he could get in line to appear in the event the Green Valley Glen eventually went to the Land Use Board of Appeals (LUBA). His clients were interested in having a correct interpretation of state law because it would be applied to them in the future. Mr. Duncan asked for public testimony from interested people who were neither proponents nor opponents. There was no one who wished to offer testimony. Mr. Duncan asked for public testimony from those in opposition. Zack Mittge, 777 High Street, Suite 200, stated he represented Vision for Intact Ecosystems and Watersheds (V.I.E.W.). He provided a letter dated March 6, 2007, addressed to the Eugene Planning Commission, RE: Appeal of Green Valley Glen PUD (PDT 05-6); Our Clients: V.I.E.W. and Lisa Warnes; Our File No.: 8188/10313A, for Planning Commissioners, which iterated his presentation. Mr. Mittge concluded the Hearings Official’s decision should be upheld due to the following criteria: MINUTES—Eugene Planning Commission March 6, 2007 Page 4 Public Hearing  • Failure to Challenge Findings. • Failure to Conform with the 180 Day Requirement. • Geological Deficiencies and Risk of Slope Failure. • Wildfire Risk. Mr. Mittge introduced Mr. Schlieder who had conducted the geotechnical analysis on the site on behalf of V.I.E.W. Gunnar Schlieder, P.O. Box 2238, Eugene identified himself as a consultant for V.I.E.W. Mr. Schlieder reiterated testimony provided and entered into the record at the December 2006 Hearings Official’s public hearing. He averred he did not need to prove that the appellant’s proposal was not feasible, but rather that the appellant had not proven it was feasible. Tom Halferty, 4510 Manzanita Street, provided a written copy of his testimony to staff. He asserted the proposed development did present a wildfire hazard to the residents of the development, the community at large, and to rural inhabitants of the forested land south of Eugene. He said the development increased the risk of wildfire starting in the natural areas in the Wildland Urban Interface within the development and spreading to the natural areas beyond. Mr. Carroll noted the record contained descriptions of the soils on the site. He asked Mr. Schlieder to explain the difference between physical characteristics of the earth flow and those soils found elsewhere on the site in terms of density, water percolation, and other characteristics. Mr. Schlieder explained the various layers consisting of clay, rock, sand and other materials, and how these layers behaved under different weather and hydrological conditions. In response to Mr. Carroll, Ms. Jerome said staff was noting and tracking evidence offered at this public hearing, and would make a determination on that which was considered new evidence, and therefore not eligible for consideration under appeal by the Planning Commission. Mr. Duncan raised a concern about reneging on the previously agreed upon format by both parties by allowing additional speakers in support of upholding the Hearings Official’s decision to address the Planning Commission. Mr. Hoyt accepted the request and asked that the appellant be given similar additional time later in the hearing. Mr. Carroll reiterated the question he asked of Mr. Schlieder to Mr. Peterson. Mr. Peterson reviewed the soils report contained in his November 29, 2006 document previously entered into the record. Michael James, 1565 Polk Street, #6, supported upholding the Hearings Official's decision based on the following: Hazard Area B mapping was a conservative view of the condition; failure on shear key would damage Dillard Road and other upslope lots; the road had suffered over the years with settlement occurring over time and climate change presenting challenges in the future; slow moving soil would be a problem. Paul Conte, 1461 West Tenth Avenue, related to the First Assignment of Error, said staff MINUTES—Eugene Planning Commission March 6, 2007 Page 5 Public Hearing erroneously allowed the applicant to submit supplemental information findings after the 180 day time limit upon which staff relied upon in its original findings. The Hearings Official interpreted the law differently, asserting the applicant did not get to repeatedly amend its application beyond the 180 day limit. Regarding the Second Assignment of Error, he quoted a City Attorney memo, “The applicant has the burden of proof.” Mr. Conte said the Hearings Official rightly determined that the applicant had not conducted engineering tests to conclude the proposed development could occur without significant risk. Robert Olsen, 32810 Sisters Loop, provided a written copy of his testimony to staff. He asserted that in the event of failure, the City and the property owners would be left holding the bag, noting that the developer would shed the corporate veil, protecting him from risks and liability. He said the Hearings Official was unhappy with the amount of information provided related to the potential fire hazard at the site. He claimed that while both parties were negligent, the developer had failed to respond. As a risk assessment professional, he said the area looked like a wildland urban interface opposed to a flat land development. It was impossible to build the proposed number of houses on the site while at the same time saving fifty percent of the land for wildland. Peggy Soomil, 5185 Nectar Way, represented the Timber Village Homeowners Association on Nectar Way in southeast Eugene, located downhill from the proposed Green Valley Glen development. She said the residents were concerned with increased fire hazards and the effects of soil erosion if the PUD was approved. She asserted the proposed stormwater collection system was not adequate to provide proper drainage to protect Timber Village from soil erosion and underground streams. Lisa Warnes, 5020 Nectar Way, addressed the Second Assignment of Error and provided a written copy of her testimony to staff. She said the opponents did have indisputable evidence to demonstrate the applicant did not prove that there would not be negative on- or off-site impacts due to slope failure. Since the applicant had ample opportunity to conduct the proper testing and did not, the Hearings Official’s decision needed to be upheld by the Planning Commission. Carol Pearle, 5005 Nectar Way, expressed concern about the increased water flow and flooding due to heavy rains, and described several existing naturally occurring problems. Dave Kofranek, 843 Snell Street, asked that the original Hearings Official's decision be upheld. Tammie Stark, 843 Snell Street, urged the Planning Commission to uphold the Hearings Official's original decision, in particular the Second and Third Assignments of Error. She expressed concern about safety. She said the area had an intense microclimate with high rain fall that impacted the geology of the area. David Thor Johnson, 4986 Hunters Glen Drive, said he lived above the proposed development site, and watched water run over Dillard Road. Al Johnson, 5015 Nectar Way, said the Hearings Official’s decision on the Second Assignment of Error should be upheld because it was not possible to engineer a repair to the drainage. Increased water flows in a ten year event could have a dramatic impact on the area. He iterated testimony he previously entered into the record. Madrona Holden, 3470 Potter Street, spoke in support of upholding the Hearings Official's original decision. MINUTES—Eugene Planning Commission March 6, 2007 Page 6 Public Hearing Kevin Matthews, P.O. Box 1588, identified himself as president of the Southeast Neighborhood Association. He claimed the application changed throughout the process and implored the Planning Commission to read Mr. Mittge’s legal arguments. He said the Commission should look at the disagreements between the geological consultants. He noted the appellant had not addressed dewatering the wetlands. Mr. Duncan noted there was no staff response to the testimony nor were there questions from Planning Commissioners. Mr. Duncan asked for rebuttal testimony from the appellant. Mr. Hoyt, again supported by a PowerPoint presentation, reviewed documents previously submitted to the record. In response to testimony from those in opposition, he said while the hazard area crossed Dillard Road, the impact area did not. He said the appellant had not addressed dewatering the wetlands at this hearing because it had specifically been addressed by the Hearings Official who had concluded there was no evidence indicating the drainage associated with the shear key mitigation concepts would dewater the wetlands in a way that would require denial of the application. The appellant had not challenged the finding, thus had not brought evidence to address issues not before the Commission. Asserting that Mr. Matthews and Ms. Warnes had testified for the organized opposition outside of the 45 minute time limit previously agreed upon by both parties, Mr. Hoyt said he had not asked others to offer testimony in support of the appellant outside of his presentation, and asked for some indulgence on the part of the Planning Commission if he exceeded his allotted time for rebuttal. Mr. Hoyt first addressed Mr. Mittge’s written information. Mr. Hoyt said the application process under consideration was complicated, and there was a difference between completeness and compliance. The appellant submitted all information requested by staff in March 2006, after which both the Fire Marshal and neighborhood association asked that the road widths be increased to assist with fire access. The appellant modified the application to expand the roadways and to remove the twenty percent grade to increase the accessibility for fire apparatus and emergency response at the site. The application was revised, but not substantially changed. Three lots were deleted and the roadway was extended and widened. All of the appellant’s experts revised their reports to take into account the loss of open space so that all of the information presented would be accurate. Additional information was submitted after March. It was not completeness information, but rather information regarding compliance comments and requests from the neighbors and the Fire Marshal that the application be modified. Thus, date citations reflected submittal of the original drawings in March 2006, and submittal of additional drawings in July 2006. The drawings were numbered the same, but the substance contained in the drawings was different. Mr. Hoyt said Mr. Mittge also challenged the assignment, claiming the appellant did not assign error to every finding. Mr. Hoyt said the appellant did not pull every finding, but pulled out the conclusions from which the findings flowed, and said the findings should be reversed in response to conclusions being erroneous. This did not invalidate the appeal. The appellant had demonstrated compliance with all of the criteria and appealed the three issues that had been decided against the appellant. Mr. Hoyt asked that those findings be revised. MINUTES—Eugene Planning Commission March 6, 2007 Page 7 Public Hearing Mr. Hoyt addressed Mr. Mittge’s argument that the water resources bridge crossing was not in authorized in the water resources zone. Again, that issue was not before the Planning Commission because it had been decided in favor of the appellant by the Hearings Official. The appellant had submitted detailed analysis as Appendix B to the submittal on January 19, 2007. The detail was compliant with the water resources overlay zone. The Hearings Official found that the appellant complied. No error was assigned and the evidence and the Hearings Official's conclusions that demonstrated the compliance were in the record. Responding to comments made throughout the process, Mr. Hoyt stated that the design for the toe buttress designed by Squier and Associates, and the design for the mitigation prepared by Shannon & Wilson, were not substantially different. Although Mr. Schlieder took Mr. Hoyt to task on this issue, and although there may be technical differences, those differences were not significantly different. Mr. Hoyt stressed the decisions required by the Planning Commission and the Hearings Officials required far less geotechnical information to approve two other PUDs, PTD 05 -7 and PDT 05-3, which were filed at the same time as the Green Valley Glen PUD. Those decisions demonstrated that the current discussion was about design function rather than feasibility function. Mr. Peterson offered additional rebuttal testimony. He stated that although Mr. Schlieder had indicated the earth flow was active, Mr. Schlieder had presented no evidence in support of that assertion. He said Dillard Road was not the applicant’s problem. Addressing the standard of care issue, he said the current process had brought forth new LIDR information at the December 2006 public hearing. Landslides on the site were not recognized at the time the work was done other than road failures on Dillard Road. Embankment failures on old roads in Oregon were common and addressed as road issues rather than as earth flow issues. Mr. Peterson said Squier and Associates, Shannon & Wilson, and Mr. Schlieder presented parallel ground surface and contact opinions. The variations could be argued, and more information would always be preferred at any level of geological and geotechnical investigation. Mr. Hoyt professed that Mr. Schlieder had presented the worst case scenario. He asserted the appellant would do the right things, including performing appropriate borings and testing, and would bring back appropriate design information. He averred the process was being asked to be “front end loaded.” He said there was nothing in code that required final designs as this stage of the process. Mr. Hoyt asserted the Planning Commission had been provided sufficient information to demonstrate that the appropriate investigation was done, mitigation could be performed and appropriate mitigation concepts had been demonstrated as feasible. The only question was how these requirements would be applied. The application had been rigorously evaluated by staff and thoroughly challenged by the neighbors. He commended the neighbors on their professionalism, organization and challenges. He said the appellant had worked with the neighbors early in the process, and modified the plans several times at the neighbors’ request. Mr. Hoyt said the Hearings Official had said that the application was perfect in every respect except for geological borings, and asked for those borings to answer the unknown. Mr. Hoyt asserted that the appellant did not have to answer the unknown, but rather needed to demonstrate that it had addressed the known in a feasible manner, and could resolve other issues in design through the conditions of approval process. MINUTES—Eugene Planning Commission March 6, 2007 Page 8 Public Hearing Mr. Hoyt said under the current PUD proposal, over 50 percent of the site was preserved, amd Goal 5 corridors were subject to minimal impact. This was a very technical design that had been diligently worked on by qualified professionals. He said the work was completed within the time limit, appropriate geotechnical work had been submitted, and the appellant had demonstrated compliance. Although there was no significant fire threat on the site, the Hearings Official had incorrectly said the fire threat had not been adequately addressed. Mr. Hoyt said the appellant would waive the 15 day response period to provide the Planning Commission and staff opportunity to completely evaluate all of the information. Mr. Duncan closed the record. He thanked everyone for their participation. He said the Planning Commission would deliberate the Green Valley Glen PUD on March 12 and 19, and March 26 if necessary. He said meeting announcements would be placed on the City’s website. Mr. Nystrom asked Commissioners to send any questions to staff via e-mail to enable staff and the City Attorney to prepare responses for the March 12 meeting. Ms. Hansen collected materials from Planning Commissioners that had been distributed by speakers. She and Ms. Jerome would review to ensure that there was no new testimony included, and return pertinent materials to Commissioners at the March 12 meeting. Mr. Duncan adjourned the Planning Commission meeting at 9:10 p.m. (Recorded by Linda Henry) m:\2007\planning and development department\planning division\planning commission\pc070306ph.doc MINUTES—Eugene Planning Commission March 6, 2007 Page 9 Public Hearing