Planning Commission

MINUTES Eugene Planning Commission Council Chamber—Eugene City Hall—777 Pearl Street October 16, 2007 6 p.m. PRESENT: Richard Duncan, President; Randy Hledik, Vice President; Jon Belcher, John Lawless, Ann Kneeland, members; Steve Nystrom, Kurt Yeiter, Planning Division; Emily Jerome, City Attorney’s Office. ABSENT: Mr. Duncan called the meeting of the Planning Commission to order and announced the subject of the hearing, the transition of annexation procedures from the Lane County Local Government Boundary Commission to the City of Eugene. The commissioners introduced themselves. Mr. Duncan called for the staff presentation. Mr. Nystrom provided the staff presentation, reporting that Senate Bill 417 had abolished the boundary commission, which had been responsible for annexations in Lane County. Eugene and other municipali- ties would assume that responsibility, and staff had prepared an ordinance to that end. The ordinance was a response to the bill and focused on the procedural changes that would occur. The ordinance was not policy-related and all City Council policies related to annexation continued to exist. He emphasized that the elected officials would be the responsible parties for annexation decisions, not staff. All annexation requests would be processed and decided on by the City Council. Mr. Nystrom noted the lack of State funding for the assumption of annexation procedures and said staff had attempted to develop an annexation that could be done within existing resources and worked well for applicants, the public, and the council. The ordinance set up a two-track process, both of which went through he council. It was similar to the boundary commission process. The council would consider resolution for all annexation requests and either approve them or set a public hearing, providing a filter for the less controversial annexation requests, which were the majority of the requests received. Mr. Nystrom said the ordinance was also a response to voluntary, not involuntary, annexation requests. The Eugene council had policies discouraging involuntary annexations, and the ordinance reflected that. Mr. Nystrom said the criteria included in the ordinance were similar to those used by the boundary commission and were within the parameters of State law and council policy. Mr. Nystrom noted that the ordinance also addressed withdrawals from special districts by continuing the process with little change, and extra-territorial service extensions would be assumed by the City as well. Mr. Nystrom reported that the legislation went into effect January 1, 2008, and the City’s ordinance needed to be in effect by that time as well. The commission would deliberate on the issue on October 22, 2007, and time had been reserved on October 29, but that ran against the council time line for the Deleted: 5 MINUTES—Eugene Planning Commission October 16, 2007 Page 1 ordinance, which called for a public hearing on November 19 and action in early December 2007. Mr. Nystrom responded to commission questions received prior to the meeting. Regarding a potential scenario of property within the urban growth boundary with a failing septic tank, Mr. Nystrom said a property owner with a failing system wishing to hook up to the sewer system would need to annex. They might be able to work with the Lane County Sanitarian to upgrade the septic system. Ms. Jerome said the City’s policy was very restrictive, and there was no open invitation to connect. Properties must meet certain criteria to connect. The individual in the situation might be told by the State they must need to connect to a system, but they must apply and be approved. The City would not require them to connect to the system. Mr. Duncan pointed out that such an annexation could create an island, requiring neighbor- hood agreement. Ms. Jerome said that it might fall under a health hazard annexation but it was likely to be a case by case matter. The provision from annexing anything not contiguous was a State provision the City could not change. Mr. Nystrom said the ordinance would not affect that. Mr. Nystrom responded to a question regarding noncontiguous annexation and whether it would cause infill projects not to occur. He said that it was possible that could occur where it was difficult for properties to annex at a particular time. Would that bring rise to Ballot Measure 37 claims? He believed if so, it would be focused at the State as a State statute was involved. Mr. Nystrom noted questions related to other agency referrals and whether the City had to be name- specific in regard to the titles of individuals at those agencies, and the answer was no. Ms. Jerome said the references in the code to certain forms were being carried over from boundary commission law. Mr. Nystrom addressed a question related to the nodal overlay zone application as part of an annexation, and said there were a handful of sites identified in the Metro Plan for the Nodal Development \ND overlay. There were four such sites eligible for the designation. The provision was required as part of the current code and would require the ND zoning as an overlay zone; there would be a base zone that applied with the ND “tacked on.” He acknowledged concerns about what the ND overlay meant and whether it was a good tool, but said the provisions were in force in those areas. Mr. Duncan recalled discussion of ND overlay zones where the overlay itself was more a voluntary process someone would employ, whereas the zone was proscriptive as to what was to be done in regard to floor area ratios (FARs), etc. Mr. Nystrom distinguished between the ND designation in the plan and the ND overlay zone, which functioned like a zoning district and had development standards like the FAR requirements. Those would be in effect. In terms of how many areas that were not annexed but were affected, Mr. Nystrom speculated that it would be primarily the Royal Node area and parts of Rasor Park. Ms. Jerome said the language was in the existing code; even if the boundary commission was in place, the code instructed the boundary commission as to what the zoning would become in those areas. Mr. Nystrom responded to a question about the City’s Growth Management Study (GMS) policies and whether they could be used as criteria for review of the ordinance. He said no. GMS policies were not codified as part of the approval process. Mr. Hledik asked if the decision to hold a public hearing was at the discretion of the council or it if could initiated by a neighborhood. Ms. Jerome said the statutes provided for an expedited procedure for double- majority annexations, and the ordinance carried that procedure forward. For triple majority annexations, a hearing was required. The ordinance permitted the council to hold a public hearing on a double majority annexation, which was not currently permitted under State law. At the request of Mr. Belcher, Ms. Jerome explained the difference between the double majority and triple Deleted: 5 MINUTES—Eugene Planning Commission October 16, 2007 Page 2 majority annexation applications by referring him to page 3 of the ordinance, Section 9.7810, which included the application requirements for the two annexation types. Mr. Hledik said page 3 of the staff report spoke to recent changes in street annexations, and asked staff to speak to that. Mr. Nystrom reminded the commission the council had considered whether to include street annexations in noncontiguous annexations, and agreed that street annexations could still be used as a tool as long as it did not create islands in the unincorporated Santa Clara/River Road area. Mr. Lawless asked if the ordinance allowed the City to annex streets. Ms. Jerome said the city could initiate an annexation application for property it owned and also could initiate applications for annexation of streets leading to that property. Mr. Nystrom said the City could not annex a public street attached to a private property if it created an island. Mr. Nystrom noted the testimony received as of 5 p.m. that evening, distributed to the commissioners. Mr. Duncan opened the public hearing. Kate Kelly, 1185 Sunnyside Drive, suggested that with the dissolution of the boundary commission, the community had the opportunity to bring the issue back to the people familiar with the area who lived in the community. She noted the City’s policy that people annex to receive building permits and said it was a matter of concern to many residents. What had occurred in the River Road area had caused consternation to residents as they conformed to the code but did not fit in with residents’ vision of the area. She asked the commission to keep the big picture in mind as it worked on the “little stuff.” John Dotson, 2447 Canterbury Street, asked under what authority the commission had to subject County citizens to City annexation standards. He cited a June 2007 Supreme Court ruling in support of his remarks, 21-22. He said voluntary annexation was forced annexation and the boundary commission had liberal policies bestowed by the State legislature that the City did not have. When he sought a building permit, he should not be faced with a request for annexation now or at any time in the future. James Seaberry, 1475 Greenacres, questioned what the City was attempting to do because it all affected the county. He asked “where is the County?” He said the urban growth boundary should be forgotten; it was a tool used by the boundary commission to make people conform. He believed the process was an attempt to circumvent the process that had been established. He emphasized the County owned the roads involved, and he process was an attempt to circumvent that. He said the County must get involved and be listened to and questioned. If the County decided to turn the roads over to the City, he maintained it needed to do so instantaneously, even under old boundary commission law. He suggested that the issue needed to be delved into. Mr. Seaberry emphasized that the citizens were going to ask about the law. He asked if the public hearing was quasi-judicial and if so, who could he appeal to. Dave VanSickel, 2057 Rogue Street, noted residents work to abolish the boundary commission but the planning commission was trying to set up the process again. He said if the City’s employees could not comprehend State law they should not be working for the City. His property ran to the middle of the street, and if the City wanted it, it could pay him for it and reduce his taxes. Ron Funke, 99 West 10th, Suite 109, said that some thought that the passage of the senate bill was a victory while others did not feel it went far enough. He had been appalled the council did not vote to support the boundary commission and had supported the removal of Oregon Revised Statute (ORS) 199, regarding noncontiguous annexations. It was a tool that had been used successfully for 20 years. He acknowledged that nothing could be done at this point, but said he used Lane Council of Governments Deleted: 5 MINUTES—Eugene Planning Commission October 16, 2007 Page 3 (LCOG) data to identify parcels of .08 acres or less and there were about 300 acres of noncontiguous, or 1,200 houses denied annexation into Eugene, and 320 parcels that could potentially have a Ballot Measure 37 or Ballot Measure 49 claim, depending on how the election came out. What the community had done was to reduce significantly the supply of buildable lands inside the urban growth boundary (UGB) that had been the community’s way of building the city. Veneta and Elmira had grown by “leaps and bounds” because of restrictions on what could be developed in Eugene. Planning had become more difficult because of the increasing number of conditions being imposed. He urged the commission to recommend to the council that the council revisit the issue; the legislature would meet again in February, and he questioned whether it was fully informed of the impacts the legislation would have, but should consider getting it revoked. Jerry Finnigan, 1250 Irvington Drive, Santa Clara Community Organization Chair, said residents sought change to receive a voice. People were watching the process and there was a lot of mistrust. He urged the commission to come up with a transparent process. Notification needed to be widespread so people knew what was going on. He said that the concept of expedited annexations looked like a way of getting around people. Rob Handy, 455-1/2 River Road, noted his submission of e-mailed comments. He asked that the hearing be extended until October 18 to allow for more public comment. He commended Mr. Nystrom’s work but suggested that ease of administration was the wrong thing to focus on. Resolution 4903 and the senate bill occurred because what went on in regard to what some City staff considered logical policy implementa- tion. He was concerned that the proposed criteria were similar to the boundary commission criteria because he believed that was a problem. His testimony addressed what he thought was lacking. He suggested that the community could have a broader policy discussion by first holding residents harmless; he interpreted the ordinance as “a backslide” into the boundary commission days. There was too much staff discretion included in the ordinance. He thought the ordinance lacking in transparency and accountability. He believed the State statute gave the City more latitude to be stringent and avoid “gray areas” that existed under the boundary commission. Lauri Segal, Goal 1 Coalition, submitted her testimony in writing. Kate Perle, 4740 Wendover Street, asked that the record be left open for one or two weeks for comment. She agreed with others about the need for transparency and the seeming lack of transparency, which would exacerbate feelings of hostility in the neighborhood. There were several things in the code that concerned her in regard to the lack of transparency, such as the noticing provision; she said that in the area, that often involved only one property owner. She also cited the lack of posting and suggested what was being proposed was less than what the boundary commission had done. She suggested that notice be similar to that done for other land use actions in the city. She objected to the City’s attaching street annexations to private annexation requests without permission of the applicant. She objected to expedited annexations because of the lack of transparency. She agreed with Ms. Segal that the process was being rushed and suggested a more collaborative process was needed. She submitted written testimony. There being no further requests to speak, Mr. Duncan called for staff comment. Responding to a question from Mr. Belcher, Mr. Nystrom said that the process was a legislative process, not a quasi-judicial process. Ms. Kneeland asked what was required by the senate bill and if the City could defer to the State statute. Ms. Jerome said the bill directed the City to be prepared to accept applications beginning January 2. It did not call for local provisions, but State statutes lacked such things as application requirements or fee Deleted: 5 MINUTES—Eugene Planning Commission October 16, 2007 Page 4 provisions. There were no criteria in the statutes for approval or denial outside a city’s best interest, which was open to discretion. Those factors impelled staff to get something in place for applicants, staff, and the decision makers. Mr. Duncan asked what challenge Eugene would face if it was not ready by January 2. Ms. Jerome said the City was obligated to accept applications. The City would accept the application and process it according to State law and under State processes. It was not clear what he city would get in the form of an application, or what criteria would apply. Mr. Nystrom suggested that to take the approach of implementing State law would call into question the issue of transparency even more. Mr. Seaberry asked that the public hearing be closed because staff was speaking in that section of the meeting and criticizing other speakers. Mr. Duncan asked Ms. Jerome to comment. Ms. Jerome believed no procedural error had been committed but advised that the hearing be closed. Mr. Hledik asked what would happen if the record remained open for one week or two weeks. Mr. Nystrom said that it would place pressure on the deadline for council action. He believed that the commission’s deliberations must be completed on the last date scheduled. Mr. Belcher, seconded by Mr. Hledik, moved to keep the record open for seven days (October 23, 2007, at 5 p.m.) and to close the public hearing. Responding to a question from Ms. Kneeland, Mr. Nystrom described the process that would occur if the record remained open in terms of the information the commission received and its opportunity to review that information. Ms. Kneeland preferred to leave the record open for two weeks. Mr. Lawless asked if extension of the record would preclude the commission from asking additional questions of staff. Ms. Jerome said no. Mr. Belcher pointed out that in terms of timing, the council would also consider the issue. He asked the impact of extending the record for two weeks. Mr. Nystrom said the effect would be that the council would have its work session before the commission made a decision. He was unsure that staff could find another time on the council’s schedule. Mr. Belcher suggested the week was a compromise given the opportunity to comment before the council The motion passed unanimously. Mr. Duncan declared the hearing closed. Mr. Lawless asked for information about the history of the boundary commission that led to its abolition and the code amendment before the commission so he had a sense of the real concerns held by residents. Ms. Kneeland said that it seemed as though some decisions had been made to follow the boundary commission procedures and she asked who made that decision. Ms. Jerome said that was not the intent; in drafting the ordinance, she was focused on complying with the new law and considered other codes from other cities in the state. She did not review the boundary commission statute. Mr. Nystrom said that were Deleted: 5 MINUTES—Eugene Planning Commission October 16, 2007 Page 5 similarities but those derived from State statute. The staff had felt there was some merit to the two-track process because it was allowed by the State statute. The boundary commission process was not a model, but staff wished to illustrate that some of the changes were not so drastic, and that was a result of State law. Responding to a question from Mr. Hledik, Ms. Jerome said that City annexation of a road did not force annexation of the properties adjacent, but did allow for it; a noncontinguous property could not voluntary request annexation without contiguity somewhere. Mr. Hledik determined that it was against City policy to work with the County to force annexation. Mr. Nystrom said the City operated under a voluntary annexation process and responded to requests for annexation; the only active role it played was in regard to street annexations, and the council had given staff clear direction on that. Ms. Jerome said that there was a section of the State statute that gave local governments authority to annex islands; the Beaverton case was an island annexation case, and the City did not include a provision for that in the ordinance because of the council direction. Mr. Duncan asked how the City treated right-of-way in regard to ownership. Ms. Jerome said that it was a case by case, plat by plat basis; in some cases row was its own tax lot, and in other cases tax lots extend to the center line. In some cases some lots go the center line while others do not. Now that the city was operating under 222 rather than 199 it had more case law to rely on in regard to the issue. Mr. Belcher asked about the involuntary annexations mentioned. Mr. Nystrom said the ordinance would not affect that; in regard to improvements, such things as room additions do not trigger annexations; they came from additional dwellings units or an additional demand on services. He believed there was some misunderstanding about what those triggers were. Mr. Belcher suggested that information about those thresholds be provided to the commission before deliberations. Responding to a question from Ms. Kneeland, Mr. Nystrom indicated the requirement for annexation of new construction was in Section 9 of the Eugene Code. Ms. Jerome clarified that it was a County-adopted policy derived from the Eugene Code. Mr. Belcher asked why the legislature changed the law, and if the commission could have a copy of the testimony that occurred before the State legislature. Mr. Belcher noted Mr. Funke’s reference to properties that could not annex and asked if staff could confirm those numbers. Mr. Nystrom was unsure that staff could do so, but he noted the many properties not annexed and not adjacent to annexed properties. Mr. Belcher requested a map. Mr. Funke offered to share the basis of his calculations. Mr. Belcher asked about what flexibility existed in implementing State law as demonstrated by the ordinances of other cities. Mr. Duncan said it would be interesting to see a correlation between Eugene and communities with areas similar to the characteristics of the River Road/Santa Clara area. Ms. Jerome asked him to share suggestions. Mr. Duncan suggested Springfield and the City of Klamath. Ms. Kneeland asked the source of the notice distance. Ms. Jerome said it was from the State statute. She confirmed that the City had discretion to extend the notice distance. Mr. Duncan requested what the City typically used as a notice distance. Ms. Kneeland thought it would be interesting to know what the County did in regard to notification in Deleted: 5 MINUTES—Eugene Planning Commission October 16, 2007 Page 6 more rural areas. Mr. Duncan adjourned the meeting at 7:25 p.m. (Recorded by Kimberly Young) Deleted: 5 MINUTES—Eugene Planning Commission October 16, 2007 Page 7