Planning Commission

AGENDA EUGENE PLANNING COMMISSION McNutt Room, City Hall, 777 Pearl Street www.eugene‐or.gov/pc Eugene, OR 97401 The Eugene Planning Commission welcomes your interest in these agenda items. Feel free to come and go as you please at any of the meetings. This meeting location is wheelchair‐accessible. For the hearing impaired, FM assistive‐listening devices are available or an interpreter can be provided with 48 hours notice prior to the meeting. Spanish‐language interpretation will also be provided with 48 hours notice. To arrange for these services, contact the receptionist at 541‐ 682‐5481. Telecommunications devices for deaf assistance are available at 541‐682‐5119. TUESDAY, SEPTEMBER 7, 2010 at 6:00 p.m. PUBLIC HEARING ON APPEAL OF HEARINGS OFFICIAL DECISION AND POSSIBLE DELIBERATION Rivendell PUD (City file PDT 10‐01) Assessor’s Map: 17‐04‐10‐00 Tax Lots: 1490 & 1590 Location: East of the Northwest Expressway, south of Irvington Drive, west of Merryvale Street Original Request: Tentative Planned Unit Development approval for 61‐single family residential lots. Appellant: Boyd Iverson, Treadmill Joint Venture Representative: Bill Kloos, Law Office of Bill Kloos, PC Property Owner: Boyd Iverson, Treadmill Joint Venture Lead City Staff: Bill Almquist, Assistant Planner, 541‐682‐5437 Conduct of Public Hearing The order of procedure for quasi‐judicial hearings is: 1. Planning Commission chair will commence public hearing. 2. Planning Commission chair will ask commissioners to disclose any conflicts of interest, ex parte contacts, and biases, abstentions or challenges to impartiality submitted pursuant to EC 9.7065. 3. Planning Commission will receive a City staff report and Commissioners will share any information learned from site visits. 4. Public testimony from the appellant and others in support of the appeal. 5. Comments or questions from interested people who are neither proponents nor opponents. 6. Public testimony from those in opposition. 7. Staff response to testimony. 8. Questions from the Planning Commissioners. 9. Rebuttal by the appellant. 10. Planning Commission Chair will announce whether the record is closed; record will be held open; or the public hearing will be continued. The Planning Commission will make a decision within 15 days of the close of the record. The Planning Commission’s action is final at the local level. PC AIS-September 7, 2010 - Page 1 PC AIS-September 7, 2010 - Page 2  AGENDA ITEM SUMMARY September 7, 2010 To: Eugene Planning Commission From: Bill Almquist, Assistant Planner, Eugene Planning Division Subject: Appeal of Hearings Official Decision: Rivendell PUD (PDT 10‐01) ACTION REQUESTED To hold a public hearing on an appeal of the Eugene Hearings Official’s decision to approve a tentative Planned Unit Development for Rivendell PUD (PDT 10‐01), and to take action to affirm, reverse, or modify the Hearings Official’s decision. BRIEFING STATEMENT The application subject to this appeal is a tentative planned unit development for a five‐phase, 61‐lot single‐family residential subdivision. The development is proposed on 10.88 acres located east of the Northwest Expressway and north of Irving Road. The property is owned by Boyd Iverson, Treadmill Joint Venture, and is zoned R‐1/WR/CAS Low‐Density Residential with Water Resources and Commercial Airport Safety Overlay Zones. The Eugene Hearings Official held a public hearing for the subject application on July 14, 2010 and issued a decision approving the request on July 28, 2010, subject to six conditions of approval. On August 11, 2010, an appeal of the Hearings Official’s decision was filed by Bill Kloos, P.C. on behalf of Treadmill Joint Venture. The appeal is comprised of one assignment of error, with three sub‐assignments of error, regarding the approval; and one additional issue related to the appeal filing fee, as reflected in the written statements submitted by the appellant, and further addressed in the staff response provided below. The Eugene Planning Commission is scheduled to hold a public hearing on this appeal on September 7, 2010. In accordance with the procedural requirements set forth in the Eugene Code (see EC 9.7655), the appeal shall be based on the record, and shall be limited to issues raised in the record that are set out in the filed statement of appeal issues. No new evidence pertaining to appeal issues can be accepted by the Planning Commission, and the basis of the appeal is limited to the issues raised during the review of the original application. The Planning Commission is required to conduct the hearing according to the statutory procedures for quasi‐ judicial hearings, and otherwise set forth in the Eugene Code (see EC 9.7065 through 9.7095). The Eugene Code requires that the Planning Commission’s decision on this appeal be made within 15 days of the close of the record following the public hearing. However, staff emphasizes that a decision will be required no later than October 2, 2010 to meet the 120‐day statutory time limit, and to comply with local code procedures. The Planning Commission’s decision must otherwise be made in accordance with the provisions for appeal decisions (see 1 PC AIS-September 7, 2010 - Page 3 EC 9.7680), and more specifically, consistent with the applicable tentative Planned Unit Development (see EC 9.8320) and any other applicable criteria or standards. The Planning Commission is urged to articulate any specific questions of staff following the public hearing or via email to facilitate response at deliberations. Final deliberation and action by the Planning Commission is scheduled to occur at a work session on September 27, 2010. PLANNING COMMISSION’S REVIEW ROLE For clarification, staff notes that the Planning Commission’s review should be focused entirely on the question of whether or not the Hearings Official failed to properly evaluate the application or make a decision consistent with the applicable criteria. The only questions at issue in this appeal are whether or not the Hearings Official erred in establishing conditions and limitations in approving the applicant’s requested application, based on the approval criteria of EC 9.8320(11)(k). In regards to the Hearing Official’s approval and conditions, the Planning Commission may modify the Hearings Official’s decision with supplemental findings; or, in the event that the Planning Commission finds the Hearings Official erred in approving the request and chooses to reverse the decision, the Planning Commission is required to provide specific findings of fact as to why the decision was in error. The Planning Commission cannot reverse the decision without such findings. APPEAL ISSUES AND STAFF RESPONSE The appeal statement submitted by Bill Kloos, P.C. on behalf of Treadmill Joint Venture includes one assignment of error (with three sub‐assignments of error) related to the Hearings Official’s decision, and one assignment of error regarding the appeal fee. Responses to each of the assignments of error are provided below, followed by staff’s recommendation to the Planning Commission. Pursuant to EC 9.7655(3), an appeal must “include a statement of issues on appeal, be based on the record, and be limited to the issues raised in the record that are set out in the filed statement of issues. The appeal statement shall explain specifically how a hearings official or historic review board failed to properly evaluate the application or make a decision consistent with applicable criteria. The basis of the appeal is limited to the issues raised during the review of the original application.” Appeal Issue 1: The Hearings Official erred in not approving the relief requested by the applicant related to: (a) minimum front yard setback standards for corner lots. (b) minimum interior yard setbacks for primary residences. (c) minimum interior yard setbacks for garages and detached structures. This first appeal issue refers to the Hearings Official findings, conditions, and limitations at EC 9.8320(11)(k) found on pages 25‐29 of the decision. That approval criterion requires that the PUD complies with: “All other applicable development standards for features explicitly included in the application except where the applicant has shown that a proposed noncompliance is 2 PC AIS-September 7, 2010 - Page 4 consistent with the purposes set out in EC 9.8300 Purpose of Planned Unit Development.” The purposes of a Planned Unit Development are as follows: EC 9.8300 Purpose of Planned Unit Development. The PUD provisions are designed to provide a high degree of flexibility in the design of the site and the mix of land uses, potential environmental impacts, and are intended to: (1) Create a sustainable environment that includes: (a) Shared use of services and facilities. (b) A compatible mix of land uses that encourage alternatives to the use of the automobile. (c) A variety of dwelling types that help meet the needs of all income groups in the community. (d) Preservation of existing natural resources and the opportunity to enhance habitat areas. (e) Clustering of residential dwellings to achieve energy and resource conservation while also achieving the planned density for the site. (2) Create comprehensive site plans for geographic areas of sufficient size to provide developments at least equal in quality to those that are achieved through the traditional lot by lot development and that are reasonable compatible with the surrounding area. The applicant proposed noncompliance to several residential zone development standards, including reductions to minimum lot frontage, width, and area, as well as reductions to minimum front and interior yard setbacks for primary dwellings, garages, and detached structures. The appellant is contesting the conditions and limitations established by the Hearings Official for three of the approved “noncompliances” described above. In his appeal brief, the appellant does not address the findings of the Hearings Official for each specific proposed noncompliance, but rather uses a more generalized argument as to why the Hearings Official erred in his decisions. A summary of each of the conclusions being contested by the appellant, as well as staff’s response to each, is included below. Sub‐assignment (a) [Noncompliance #4 of the decision]: The applicant proposed noncompliance for the front yard setback standard on all corner lots to be reduced from 10 feet (as required per EC 9.2750) to 5 feet for the street side of each corner lot not used for vehicular access to a garage or carport. The Hearings Official approved this proposed reduction as being consistent with the purposes set out in EC 9.8300; however, he also clarified specific limitations to intrusions through the following condition: 3. A note shall be added to the final site plans that states the 5‐foot front yard setback shall be measured from the leading edge of the structure and that eaves, overhangs, chimneys, bay windows, etc. shall not be allowed intrusions in the remaining 5‐foot front yard setback. The Hearings Official based this stipulation on the finding that such projections could have 3 PC AIS-September 7, 2010 - Page 5 negative impacts on the pedestrian‐friendliness of the development (which would be contrary to section (1)(b) of the PUD purpose statement above). The Hearings Official further noted that landscaping is “an important component of creating a pedestrian‐friendly neighborhood…” and that projections would limit the type, location, and density of landscaping possible in the setback area. The appellant argues that such relief was granted in earlier phases of the Rivendell PUD, and therefore should be permitted in this instance. The appellant, however, does not specifically indicate how the Hearings Official failed to interpret applicable law or provide how the established limitation is deficient. The appellant only notes that oral testimony to the idea that similar relief had been granted should suffice as support to the point made. Staff disagrees with the appellant and holds that the burden of proof lay with the applicant to demonstrate the relevancy of a previous land use decision and its bearing on the current application. Furthermore, whereas such concessions for encroachments were specifically requested for other proposed minimum setback reductions, the applicant did not specifically request any such additional encroachments into the reduced setback in this instance. It is the responsibility of the applicant not only to make the request for such an exception, but also to demonstrate that such an exception would be consistent with the purposes of the PUD. As the Hearings Official notes, the applicant stated at the hearing that there are numerous successful neighborhoods where a sidewalk adjoins a residence with less than a 5‐foot setback; however, no photos of existing development were provided to specifically show what such a reduced minimum front yard setback with intrusions would look like, nor did the diagrams included in the application show any intrusions in the setback. In summary, the applicant neither requested the exception, nor provided the findings or other evidence in support of such an exception. Based on the information provided above, and in the absence of sufficient detail regarding this appeal issue, staff recommends that the Planning Commission affirm the Hearings Official’s decision with regard to Appeal Issue 1(a). Sub‐assignment (b) [Noncompliance #7 of the decision]: The applicant proposed noncompliance with the minimum interior yard setback for all lots to be reduced from 5 feet (as required per EC 9.2750) to 3 feet for the primary residential structure (with the minimum required distance between buildings being reduced from 10 feet to 6 feet). The applicant also requested that standard encroachments (such as roof overhangs, footings, and building projections) be allowed to extend 12 inches into the reduced interior yard setback. The Hearings Official granted the applicant’s requested reduction to the minimum interior yard setback, but only between two single‐story dwellings. Furthermore, the Hearings Official precluded any encroachments into the setbacks for dwellings that have a reduced interior yard setback. The Hearings Official based these limitations on a number of findings, including that the applicant had not submitted sufficient information in support of the reduced interior yard setbacks. For instance, the Hearings Official noted that the applicant did not provide evidence as to how residents in the previous phases of Rivendell felt about the density and reduced 4 PC AIS-September 7, 2010 - Page 6 setbacks, which the Hearings Official could have used to determine whether the reduced setbacks should be permitted. The Hearings Official also pointed out that the applicant, by virtue of requesting reduced lot widths, frontages, areas, etc., was creating his own “hardship” that gave rise to the request for reduced interior yard setbacks in the first place. Lastly, the Hearings Official noted that reduced setbacks would affect the size and type of interior yard landscaping possible, as well as the amount of light and air movement between buildings. Again, the appellant argues that such relief was granted in earlier phases of the Rivendell PUD and therefore should be granted in this instance as well. The appellant claims that the oral testimony provided by the applicant at the hearing should be enough evidence to support this point. The appellant also takes issue with the subjectivity the Hearings Official applied in reviewing this request for noncompliance. Lastly, the appellant questions how relevant the impact on interior yard landscaping, light, and air movement is to the PUD purpose statement, and therefore to this criterion. As mentioned above, staff notes that the burden of proof is on the applicant to demonstrate how the proposal is consistent with the purposes of the PUD. Prior to the public hearing, the application lacked findings to support the request—except to note that it would provide a higher degree of flexibility of design, and that similar relief was granted in previous phases. The initial application was absent any photographic or other evidence to show that the development could be done with reduced setbacks in a way that created a development “at least equal in quality to those that are achieved through the traditional lot by lot development and that are reasonable compatible with the surrounding area.” The applicant eventually submitted photographic evidence of buildings from previous phases of Rivendell at the hearing; however staff did not have an opportunity to review these photos as part of its recommendation to the Hearing Official. Staff disagrees with the appellant that the criteria do not permit a subjective test; in fact, the criteria inherently require it. As noted above, subsection (2) of the PUD purpose statement specifically addresses the elements of “quality” and “compatibility”—both of which are, by nature, subjective. The Hearings Official indicates concerns about the impact certain allowances might have on residents—especially in regards to two‐story dwellings that are adjacent to each other. He provides a reasonable compromise in allowing a reduced setback of 3 feet between one‐story dwellings, but maintains the requirement for a 5‐foot setback between two‐story dwellings. Staff, with the benefit of now having reviewed the photos provided at the hearing, concludes that the Hearings Official did not err in providing such a limitation. The limitation prevents a design where two‐story dwellings could be situated only 6 feet from each other, or where a two‐story dwelling might “loom” over an adjacent one‐story home. Staff also notes that based on the available evidence, and with additional direction and clarification provided by the Planning Commission, this limitation could be modified to provide additional design flexibility to allow construction where two‐story dwellings may have the first story 3 feet from the property line (with no intrusions), but the second story must be set back 5 feet (with allowed intrusions). This would appear to be consistent with the Hearings Official’s intent but is not explicitly addressed in his findings and decision. 5 PC AIS-September 7, 2010 - Page 7 Based on the information provided above, staff recommends that the Planning Commission affirm the Hearings Official’s decision with regard to Appeal Issue 1(b), and consider modifying the decision regarding Noncompliance #7 to state that two‐story buildings may have the first story 3 feet from the property line (with no intrusions), but the second story must be set back 5 feet (with allowed intrusions). Sub‐assignment (c) [Noncompliance #8 of the decision]: The applicant proposed noncompliance with the minimum interior yard setbacks for garages and detached structures (including secondary dwelling units, sheds and other similar buildings allowed by code) to be reduced from 5 feet (as required per EC 9.2750) to zero feet, allowing for the construction of common wall garages and common wall detached structures between adjoining parcels. The applicant further requested that, where common walls are not utilized, a minimum setback of 3 feet (with minimum 6‐foot separation between structures) be allowed on each parcel between said structures. In his decision, the Hearings Official allowed for common wall construction for garages detached from the dwelling and stipulated that, if there is no common wall, then setbacks may be reduced down to 3 feet between two single‐story garages. The Hearings Official notes that this setback “shall be as the Hearings Official approved in number 7 above for the primary residence...” It is assumed that, since the Hearings Official made no specific mention precluding the reduced setbacks of other detached structures, as defined by the applicant, that these permitted setbacks were intended to apply to those structures, as well. The Hearings Official indicated that he based this decision upon findings provided under Noncompliance #7 above. Assuming that all detached structures were meant to be included in the approved noncompliance, it is not specifically clear what aspect of the Hearings Official’s decision that the appellant is contesting. The Hearings Official appears to have approved the exact request made by the applicant—that common walls be allowed for garages (and, presumably, all other detached structures) and that, where common walls are not utilized, that a minimum setback of 3 feet be allowed under certain circumstances. It is possible that the appellant takes issue with the allowance because it references that which is stipulated in Noncompliance #7 (which allows for a 3‐foot setback between two single‐story dwellings, but requires a 5 foot setback for two‐story dwellings), but this is not clear. Regardless, as mentioned above, staff concludes that the Hearings Official provided a reasonable compromise with the limitations provided under Noncompliance #7. Though this may not bear relevance in regards to two garages, the limitation prevents a design where two‐story accessory dwelling units could be situated only 6 feet from each other, or where a two‐story building might “loom” over an adjacent one‐story home. Staff again notes that, based on the available evidence, and with additional direction and clarification provided by the Planning Commission, this limitation could be modified to provide additional design flexibility by allowing for construction where non‐common‐wall buildings two stories in height may have the first story 3 feet from the property line (with no intrusions), but the second story must be set back 5 feet (with allowed intrusions). Again, this would appear to be consistent with the Hearings Official’s intent but is not explicitly addressed in his findings and decision. Such setbacks will help to both protect the privacy of potential residents (of secondary dwelling 6 PC AIS-September 7, 2010 - Page 8 units) and allow adequate access and light and air movement between buildings, while still providing the applicant with a high degree of design flexibility. Based on the information provided above, staff recommends that the Planning Commission affirm the Hearings Official’s decision with regard to Appeal Issue 1(c), and consider modifying the decision regarding Noncompliance #8 to note that non‐common‐wall buildings two stories in height may also have the first story 3 feet from the property line (with no intrusions), but the second story must be set back 5 feet (with allowed intrusions), and that this also applies to all detached structures. Appeal Issue 2: The City erred in imposing an appeal fee that is disproportionate to the actual or average costs of this appeal and is also unreasonable. EC 9.7655(3) requires that appeal statements specify how the Hearings Official: (1) failed to properly evaluate the application; or (2) made a decision that was not consistent with the applicable criteria. The appellant does not specify how the imposition of the allegedly unreasonable appeal fee is the result of the Hearings Official’s failure to properly evaluate the application or the Hearings Official’s decision’s inconsistency with an applicable criterion. The Planning Commission’s review is limited to whether the Hearings Official: (1) failed to properly evaluate the application; or (2) made a decision that was not consistent with the applicable criteria. While appellant may be raising an important issue, it is not one that the Planning Commission can substantively address. The Hearings Official’s decision did not determine or impose the appeal fee and it would have been beyond the scope of the Hearings Official’s authority to do so. The Planning Commission’s review must be based on the evidentiary record that was created before the Hearings Official. The Hearings Official’s record does not include any evidence to form the basis for this appeal issue, or to resolve it. Even if the appellant was correct in its assertion that the City’s appeal fee structure dictated an appeal fee that, in this case, is too high, that determination would not result in a change to the Hearings Official’s decision and it does not call the Planning Commission’s jurisdiction into question. Whether the City’s appeal structure, as applied in this case, is inconsistent with state law is an independent question that is beyond the scope of the Planning Commission’s authority. The Planning Commission lacks the authority to allow any deviation from the City’s adopted fee structure. Staff notes that the appellant also submitted a separate request to the City asking for relief from the appeal filing fee, which the Planning Director will respond to under separate cover. In the absence of a specific criterion or related findings that would serve as a basis for error, staff recommends that the Planning Commission affirm the Hearings Official with respect to PUD Appeal Issue 2. 7 PC AIS-September 7, 2010 - Page 9 RECOMMENDATION Based on the available evidence and consistent with the preceding findings, and with specific modifications provided in response to the appeal issues raised, staff concludes that the Hearings Official’s decision was not in error or otherwise inconsistent with the applicable approval criteria from EC 9.8320(11)(k). With the additional findings provided by staff and absent additional testimony or evidence to indicate otherwise, staff recommends that the Planning Commission affirm, with modifications to clarify allowed setbacks for two‐story buildings and for detached structures as noted above under sub‐assignments (b) and (c), the decision of the Hearings Official granting tentative planned unit development approval for Rivendell PUD (PDT 10‐1). Should the Planning Commission find that additional approval conditions or findings are necessary to ensure compliance with the applicable approval criteria, with consideration of the appeal issues described above; staff recommends that the Planning Commission further modify the Hearings Official’s decision pursuant to EC 9.7680. In the event that the Planning Commission finds the Hearings Official erred in approving the request, with the conditions and limitations therein, and chooses to reverse the decision, the Planning Commission is required to provide specific findings of fact as to why the decision was in error. The Planning Commission cannot reverse the decision without such findings. ATTACHMENTS The entire application file including the Hearings Official decision is available for review at the Eugene Planning Division offices, and a full set of record materials will also be provided to the Planning Commission under separate cover. The application file will also be made available for review at the Planning Commission public hearing, and any follow‐up work sessions on this matter. For convenience, the following relevant items from the public record are attached for reference: 1. Appeal form and written statement for PDT 10‐01, prepared by Bill Kloos, P.C. on behalf of Treadmill Joint Venture, received August 11, 2010. 2. Decision of the Hearings Official for the City of Eugene, for Rivendell PUD (PDT 10‐01), dated July 28, 2010. FOR MORE INFORMATION: Please contact Bill Almquist, Eugene Planning Division, by phone at (541) 682‐5437, or by e‐mail at bill.j.almquist@ci.eugene.or.us 8 PC AIS-September 7, 2010 - Page 10 PC AIS-September 7, 2010 - Page 11 PC AIS-September 7, 2010 - Page 12 PC AIS-September 7, 2010 - Page 13 PC AIS-September 7, 2010 - Page 14 PC AIS-September 7, 2010 - Page 15 PC AIS-September 7, 2010 - Page 16 PC AIS-September 7, 2010 - Page 17 PC AIS-September 7, 2010 - Page 18 PC AIS-September 7, 2010 - Page 19 PC AIS-September 7, 2010 - Page 20 PC AIS-September 7, 2010 - Page 21 PC AIS-September 7, 2010 - Page 22 PC AIS-September 7, 2010 - Page 23 PC AIS-September 7, 2010 - Page 24 PC AIS-September 7, 2010 - Page 25 PC AIS-September 7, 2010 - Page 26 PC AIS-September 7, 2010 - Page 27 PC AIS-September 7, 2010 - Page 28 PC AIS-September 7, 2010 - Page 29 PC AIS-September 7, 2010 - Page 30 PC AIS-September 7, 2010 - Page 31 PC AIS-September 7, 2010 - Page 32 PC AIS-September 7, 2010 - Page 33 PC AIS-September 7, 2010 - Page 34 PC AIS-September 7, 2010 - Page 35 PC AIS-September 7, 2010 - Page 36 PC AIS-September 7, 2010 - Page 37 PC AIS-September 7, 2010 - Page 38 PC AIS-September 7, 2010 - Page 39 PC AIS-September 7, 2010 - Page 40 PC AIS-September 7, 2010 - Page 41 PC AIS-September 7, 2010 - Page 42 PC AIS-September 7, 2010 - Page 43 PC AIS-September 7, 2010 - Page 44 PC AIS-September 7, 2010 - Page 45 PC AIS-September 7, 2010 - Page 46 PC AIS-September 7, 2010 - Page 47 PC AIS-September 7, 2010 - Page 48 PC AIS-September 7, 2010 - Page 49 PC AIS-September 7, 2010 - Page 50 PC AIS-September 7, 2010 - Page 51