Planning Commission

SUMMARY MINUTES Regular Meeting Eugene Planning Commission Sloat Room—The Atrium—99 West 10th Avenue March 12, 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, City Attorney; Mark Hoyt, representative for the appellant; Lisa Warnes, guests. ABSENT: Mike Sullivan, ex officio. PUBLIC COMMENT ON NON-AGENDA ITEMS I. PC DELIBERATION: GREEN VALLEY GLEN PUC Staff: Alissa Hansen, 682-5508 Mr. Belcher, seconded by Mr. Hledik, moved to reject Exhibit Y in the applicant’s appeal packet. The motion passed unanimously 7:0. Mr. Hledik, seconded by Mr. McCown, moved that the Planning Commission tentatively accept the completeness of the application within the 180 day period. The motion passed unanimously, 7:0. Mr. Belcher, seconded by Mr. Hledik, moved extend the meeting time for ten minutes. The motion passed unanimously, 7:0. Mr. Hledik, seconded by Mr. Lawless, moved to tentatively find that the Hearings Official erred in her findings based on the analysis in the March 9, 2007 memorandum. Ms. Kneeland, seconded by Mr. McCown, moved to table the motion. Ms. Kneeland amended the motion to table the motion until the next Planning Commission meeting. Mr. McCown accepted the amendment. The motion to table passed 6:1, with Mr. Hledik voting in opposition. II. ITEMS FROM COMMISSION AND STAFF A. Other Items from Staff B. Other Items from Commission MINUTES—Eugene Planning Commission March 12, 2007 Page 1  MINUTES Regular Meeting Eugene Planning Commission Sloat Room—The Atrium—99 West 10th Avenue March 12, 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, City Attorney; Mark Hoyt, representative for the appellant; Lisa Warnes, guests. ABSENT: Mike Sullivan, ex officio. PUBLIC COMMENT ON NON-AGENDA ITEMS There was no one wishing to offer public comment. I. PC DELIBERATION: GREEN VALLEY GLEN PUD Mr. Duncan noted consensus to follow Mr. Belcher’s suggestion to designate any decisions made today as tentative to provide time for additional consideration. Ms. Hansen noted she had distributed testimony via email that had been received at the March 6, 2007 public hearing, and distributed additional testimony that had been received at the public hearing. She added Commissioners should have copies of a March 7, 2007 e-mail memorandum from staff that addressed the completeness review and a March 9, 2007 e-mail memorandum from staff responding to Commissioners’ questions from the March 5, 2007 Planning Commission meeting and the March 6 public hearing. Mr. Belcher, seconded by Mr. Hledik, moved to reject Exhibit Y in the applicant’s appeal packet. In response to Mr. Hledik, Ms. Jerome said Exhibit Y had not been submitted to and therefore not considered by the Hearings Official, and therefore could not be accepted as new evidence by the Planning Commission. The motion passed unanimously 7:0. Ms. Jerome stated she had spoken with the counsel for the appellant and the organized opposition, and offered them an opportunity to provide any input she should consider in addressing Planning Commissioners’ questions, specifically if there were any items in the record that went above and beyond the argument the Commission was about to consider. She said she had not heard from either counsel. Ms. Hansen read the First Assignment of Error: MINUTES—Eugene Planning Commission March 12, 2007 Page 2  • 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. Responding to Mr. Duncan, Ms. Jerome explained that under the statutes the applicant had several options to avoid an application from becoming void by saying they would submit nothing else. If they closed the loop by submitting all of the missing information, or they told the City they intended to submit nothing else, the City had to process the application. She asserted that many applicants said they would submit nothing else. Ms. Hansen said when an application was submitted the City of Eugene had 30 days to determine if everything it needed was included, but the application was not reviewed against the criteria at this point. When the application was deemed complete, the review against the criteria commenced. There were times during completeness review when staff flagged issues for applicants to eliminate problems later in the process. Mr. Nystrom said the Planning Commission deliberation was not so much about quality of information, but whether the information existed. Responding to Mr. Lawless, Ms. Jerome stated, as a safeguard, even when applicants felt they had provided everything, they could say they intended to provide nothing else. She said the intent of the statute was to safeguard an applicant by preventing jurisdictions for requesting more information than was needed. She added once an application was deemed complete, it must be processed according to established procedures. In response to Mr. Carroll, Ms. Hansen said the only information before the Hearings Official was a short statement from the staff report stating the application was deemed complete per the applicant’s request. Mr. Belcher noted the opponent said a solar access plan was missing from the application. Ms. Hansen stated the applicant had asked that the solar lot standards, meaning none of the lots would meet those standards. Ms. Jerome added that the applicant felt they had addressed the requirement by seeking a waiver and presumably provided information for the waiver. Additionally, Mr. Nystrom said, the applicant felt the exemption request provided sufficient information on how the applicant would comply. Mr. Belcher referred to Paul Conte’s testimony that five later submissions of information were added to the record. Ms. Hansen responded that the staff response was included in the March 9 memorandum previously entered into the record. Ms. Jerome added that the response attributed to the City Attorney’s office was virtually a direct quote from LUBA. Mr. Belcher opined with the inclusion of later submissions, staff did not view it as a new application. In response to Mr. Hledik’s query if the City had a solid position on an appeal to LUBA, Ms. Jerome opined the Planning Commission had less legal risk in determining it was complete on the 180th day than declaring that it was not. If the Planning Commission determined items were missing, a good record would need to be created identifying specifically what was required, what was provided and what was missing. She further said the law was clear regarding the protocol to deem the application complete without further staff analysis and the Hearings Official did no further analysis. MINUTES—Eugene Planning Commission March 12, 2007 Page 3 Mr. Duncan understood that the additional submittals were modifications due to staff requests or agreements with neighborhoods, and was typical that applications were dynamic and changed as they moved through the process. Ms. Hansen concurred, particularly in the case of such a large, complex project with many criteria subject to review. She noted the applicant provided information in response to the neighbors. Mr. Carroll noted he continued to struggle with the concept of the application being deemed complete versus actually being complete, and how that influenced the Hearings Official’s decision. Ms. Jerome, in response to Ms. Kneeland, explained it was unlikely that LUBA would disagree with the decision that the application was complete by the 180th day because a completeness determination was generally a local determination. Ms. Jerome added if the Planning Commission applied the later enacted criteria, it would likely not result in remand even if LUBA disagreed the Planning Commission if the criteria had been properly addressed. Ms. Jerome stated if the Planning Commission determined the application was incomplete and need to apply the additional, or applied the additional criteria as a safeguard, additional analysis would be required. She noted the applicant challenged some of the findings the Hearings Official made on some of the later enacted criteria, adding that the Hearings Official did not elaborate to determine which of the later criteria applied. Ms. Jerome stated the opponents’ attorney responded in his March 6 testimony alleging the applicant did not adequately the Hearings Official’s findings on the later enacted criteria. She said the first step was to determine whether or not the later enacted criteria should be applied. Ms. Hansen concurred with Mr. Belcher that the staff review was based upon the September 24 plan submittal, identified as plan N, which had only subtle modifications from previous plan submittals. Responding to Mr. Hledik, Ms. Jerome explained the Planning Commission’s record should reflect an initial determination regarding whether later enacted criteria were applied. She added if the Commission directed drafting a decision that all of the information was submitted by the 180th day, a draft decision would include an analysis of which later enacted criteria actually applied. Ms. Jerome, in response to Ms. Kneeland, if the Planning Commission determined the application was missing information on the 180th day, additional analysis would be needed. Ms. Hansen assured Mr. Duncan that other land use issues that came into effect during the 180 day period in addition to the four previously identified had been included as part of the staff review. Ms. Jerome, responding to Mr. Carroll, stated in practice a good attorney would make sure an application did not void in 180 days. The applicant did what was required by asking that the application be deemed complete on day 179 to move to the next level, which was a common practice. Responding to Mr. McCown, Ms. Jerome said the Commission needed to focus on whether the missing information was submitted within 180 days, rather than on whether the application was deemed complete and on what basis. Ms. Jerome concurred with Mr. Belcher that the analysis was not new evidence but an MINUTES—Eugene Planning Commission March 12, 2007 Page 4 interpretation of the evidence already in the record. Mr. Belcher said the applicant addressed everything they were asked to do, by either taking further action, stating they had taken sufficient action, or stating they believed omissions would be waived. Mr. Duncan said rather than clear delineations, there was much left to interpretation due to the complexity of the project. Ms. Kneeland thought the applicant had addressed all issues identified on the completeness list iterated by the City of Eugene. Mr. Hledik opined the issue was completeness for application purposes versus compliance with the code. For completeness of application purposes primarily based on Ms. Hansen’s evaluation, he was comfortable the application was complete within the 180 day period. Mr. Lawless agreed with Mr. Hledik, adding the completeness determination did not address the quality or acceptability of the additional information but rather that it was address. On this basis he supported completeness and deemed completeness. Mr. Hledik, seconded by Mr. McCown, moved that the Planning Commission tentatively accept the completeness of the application within the 180 day period. The motion passed unanimously, 7:0. Mr. Duncan opened the floor to further discussion about Second Assignment of Error. Mr. Hledik, addressing the safeguard issue that in the event, for whatever reason, the 180 day completeness was not found to be correct, regardless, the applicant did comply with all other applicable code and plan amendments and other requirements that transpired between the date of the application and the Hearings Official’s hearing, based upon the staff analysis provided in the March 9, 2007 memorandum. He suggested the deemed complete date was immaterial because the deemed complete date was impacted by subsequent code changes and amendments. Ms. Jerome responded that the tentative motion just passed by the Commission would provide for completion of analysis up to the date of the Hearings Official’s decision. Mr. Duncan asked if the Planning Commission’s decision could be appealed on the basis of the its further analysis rather than simply the 180 day completeness requirement. Ms. Jerome opined if LUBA agreed with the Commission’s determination that all of the information was submitted within 180 days, it was unlikely they would look at the additional analysis. If the appeal went to LUBA on any issue, this would likely be used by both parties. If the Commission did not make findings on any of the later enacted criteria and LUBA disagreed with the Commission’s determination on completeness in 180 days, LUBA would remain the appeal for the Commission to make findings. Although LUBA had not been asked to interpret the statute related to identifying a date certain, it would be useful for the Commission to ask for that date if not provided. She said the legal risk of being overturned on its initial determination was low, and a decision by the Commission not to address the later enacted criteria did not pose a significant risk. However, the Hearings Official, applicant and appellant had provided a fair amount of analysis and information. MINUTES—Eugene Planning Commission March 12, 2007 Page 5 Mr. McCown said the only instance where stormwater regulations would be considered was if the designation was made that the Planning Commission count through the Hearings Official’s opinion. Ms. Kneeland noted the Hearings Official’s position was it was open through her decision. Ms. Jerome applied the date of her decision as final date, but the date was a moving target. Mr. Belcher asked, to the extent that the Hearings Official spoke to water resources, was it appropriate to say that the Hearings Official erred in the manner in which she applied those standards. Ms. Jerome said to the extent they were raised in appeal, based upon the testimony of the opponent’s attorney, the applicant did not appeal a number of findings of the Hearings Official, particularly the later enacted criteria. Ms. Jerome thought the findings were raised in the portion of the appeal in which the applicant stated they had met the criteria, and were part of the appeal. Ms. Hansen stated the Hearings Official found that the applicant met the water resources requirement. Mr. Belcher said even though the opponents raised the issue of whether a bridge could be built, they did not appeal it and it was therefore not subject to Planning Commission review. Mr. Belcher understood if the Planning Commission did not analyze those statutes that would take effect after the 180 day application period LUBA would be required to remand the decision back to the Commission. Ms. Jerome responded if LUBA disagreed with the Commission’s determination whether all of the missing information was submitted it could remand. Mr. Lawless said whether the applicant had voluntarily complied with criteria adopted subsequent to the application as a part of the tentative PUD application, and was therefore imbedded in the application, and complied with the now current regulations. Any subsequent failure to comply would require a modification of the PUD and through another process. In reviewing the conditions of approval, Ms. Jerome said all of the conditions imposed by the Hearings Official, with which the applicant comfortable, related to the criteria that applied in any case. If the Commission reviewed the later enacted criteria and determined that one of them addressed on the appeal did not match, that alone would not result in denial. If the Commission chose not to address the later enacted criteria today, all of the conditions imposed by the Hearings Official would be part of the Commission’s decision unless addressed under Assignment of Error One, Two or Three. Mr. Carroll expressed his discomfort with moving ahead with reviewing potentially applicable standards for the following reasons: The Hearings Official included the analysis as a safeguard of her determination that the application was incomplete. The appellant included it as a safeguard to their argument that it was complete. He felt it was not in the best interest of the City for the Planning Commission to continue along the lines and guarantee its decision. He preferred to analyze new standards, if at all, when there was a case with discreet language on how the ordinances were being enacted. Mr. Hledik said the Hearings Official did not have the stormwater management manual available for review. He asked if the applicant had adhered to the manual in development of its plan. MINUTES—Eugene Planning Commission March 12, 2007 Page 6 Mr. McNeel replied that analysis had not been done. Ms. Hansen said that analysis generally occurred during the building permit application process. Mr. Nystrom added Ms. Hansen had specifically identified those stormwater standards were applicable. Ms. Jerome said the stormwater standards would apply to the building permits for the site. She said those standards were design standards for the actual build out. Mr. Lawless asked at what point in the process the developer had some level of surety in what the requirements would be for the rest of the project. Related to the issue of the bridge, Mr. Belcher said the neighbors would have been required to expend $4,000 to appeal, which struck him as difficult. This offered additional support for the Commission doing additional analysis on the “what if” criteria. Responding to Ms. Kneeland, Ms. Jerome said the bridge construction was not addressed in the appeal and thus she had not addressed it. In response to Mr. Hledik, Ms. Jerome said the Hearings Official’s findings on the new WR overlay zone would stand because they were not on appeal. Mr. Duncan noted consensus to refrain from addressing the later enacted criteria. Ms. Jerome explained if LUBA remanded the appeal, the Commission could either open the record on the issues, or it could choose to work with the existing record. It was cleaner with the Commission’s determination not to address the later enacted criteria to have a final decision that did not address the later enacted criteria. Ms. Hansen read the Third Assignment of Error and read the relevant approval criteria. • 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. In response to Mr. Hledik, Ms. Hansen confirmed that the Hearings Official findings were related to emergency response. She added that the Hearings Official stated that the applicant did not address wildfire in the context of their response, but the applicant claimed they had addressed that issue and cited its location in the record. Ms. Kneeland said the Planning Commission needed to look at the full criteria including but not limited to vehicular access including public health and safety issues. Responding to Mr. Hledik, Ms. Hansen said the Fire Marshal had reviewed the application and concurred with street widths and slopes. She added the fire code would be part of the building permit application process. Mr. Lawless saw nothing problematic with the assignment of error language. The criteria for the MINUTES—Eugene Planning Commission March 12, 2007 Page 7 land use application were limited and staff said they were complied with. Ms. Kneeland said the opponents claimed the geography of the area rather than the vehicles was a risk. Mr. McCown asked if the development increased or decreased the fire hazard, or was there evidence to support either assertion. Mr. Belcher was not convinced there was evidence that this PUD was significantly different from others approved in the area. The area was being studied more than it had been in the past, and there was recognition that there was a danger in the south hills in general, but there was no applicable code that dealt with that concern, and there was not a basis to deny the application. Ms. Kneeland opined the Commission was not tied to the Hearings Official’s thinking, but rather were subject to the original criteria. Ms. Jerome said the Commission was bound by the issues raised in the appeal, and the limited to an impediment to emergency response. She said the appellant claimed the Hearings Official erred in saying it was an emergency response issue. Mr. McCown said the finding was the issue of vehicular access and the opponents broadened it out to a bigger, wildfire picture. Ms. Jerome reiterated the criterion, that the PUD would not be a significant risk to public health and safety, including but not limited to things that might be a significant risk to public health and safety, including emergency response. Repeating Ms. Hansen’s comments, she said finding is based on the available information the Hearings Official concluded except with respect to wildfire, the applicant had demonstrated the PUD would not be a significant risk to public health and safety. She said it would be worth explaining how the Planning Commission viewed the Hearings Official’s decision. Going back to the question what was the applicable criteria, Mr. Hledik said the PUD emergency access issue was the only issue, noting that everything else was a guideline, including the mitigation plan and the wildfire protection plan, which were not applicable to land use decisions. He averred it was not the role of the Planning Commission to make up rules and criteria. Ms. Jerome asked Commissioners first to interpret the criterion and then apply the interpretation. Mr. Belcher said there needed to be something unique to this site, such as new conditions that needed to be addressed, and those did not seem to apply in this situation. He asked if the Planning Commission agreed with the Hearings Official regarding wildfire risks, did that mean there would be no additional PUDs in the south hills where a canopy was required. Or, could a condition be established that identified conditions for this PUD to be acceptable. He did not see evidence from the Hearings Official showing why the condition was not met, and he did not see a solution if it were. Ms. Kneeland interpreted the issue that the Planning Commission was looking at wildfire risk in general and not intended to be additional criteria. She saw the issue being this proposal was uniquely at risk for fire, and was not whether any PUD would be approved in the south hills in the future. MINUTES—Eugene Planning Commission March 12, 2007 Page 8 Mr. Lawless saw the question as not being as one in which the PUD provided a higher risk for wildfire, but did the PUD considering that it also provided for fire department approved access for emergency vehicles, Fire Marshal approved fire hydrants and fire protection system imbedding in the area, without which might provide a higher risk of fire. There was a level of mitigation that the PUD application included as mitigating elements to an otherwise fire hazard setup. Referring to the Wildland Urban Interface Fires document as a resource, Mr. Duncan said although he found a number of general comments in the applicant and opponents’ arguments, about canyons and the chimney effects, he found no discussion from either side regarding why this area was truly different than other areas in the south hills. He noted there was testimony at the March 6, 2007 public hearing asserting this area received more rain than a large portion of Eugene. He found no evidence that this area was dramatically different than other areas of the south hills. Mr. Carroll cautioned Commissioners that they were not comparing this application to other PUDs, but basing their decision on the evidence provided for it. Mr. Duncan said several years ago it was acknowledged that the entire south hills had potential fire danger, which resulted several code changes, but this PUD was not dramatically different from other PUDs. Mr. Belcher, seconded by Mr. Hledik, moved extend the meeting time for ten minutes. The motion passed unanimously, 7:0. Mr. Hledik, seconded by Mr. Lawless, moved to tentatively find that the Hearings Official erred in her findings based on the analysis in the March 9, 2007 memorandum. Ms. Kneeland requested that the motion be withdrawn to allow additional time to consider the ramifications of the vote. Mr. Belcher was ready to vote, but supported Ms. Kneeland’s request to withdraw the motion. Ms. Kneeland, seconded by Mr. McCown, moved to table the motion. Ms. Kneeland amended the motion to table the motion until the next Planning Commission meeting. Mr. McCown accepted the amendment. The motion to table passed 6:1, with Mr. Hledik voting in opposition. • 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. II. ITEMS FROM COMMISSION AND STAFF A. Other Items from Staff Ms. Hansen said the McKenzie Willamette public hearing was scheduled for April 24, 2007. A MINUTES—Eugene Planning Commission March 12, 2007 Page 9 brief conversation about meeting logistics followed. In response to a query from Mr. Lawless, Ms. Jerome directed Commissioners to email information to her regarding potential conflicts of interest on the part of the Commissioners. B. Other Items from Commission Mr. Belcher said he had received an query from the chair of the Amazon neighbors regarding a lot partition in the neighborhood. He responded it was a type two decision and not within the purview of the Planning Commission. Mr. Duncan adjourned the Planning Commission meeting at 1:45 p.m. (Recorded by Linda Henry) m:\2007\planning and development department\planning division\planning commission\pc070312.doc MINUTES—Eugene Planning Commission March 12, 2007 Page 10