Planning Commission

AGENDA EUGENE PLANNING COMMISSION Phone: 541‐682‐5481 Bascom‐Tykeson Rooms, Downtown Library, 100 W. 10th 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. MONDAY, SEPTEMBER 27, 2010 – REGULAR MEETING (11:30 a.m. to 1:30 p.m.) 11:30 a.m. I. PUBLIC COMMENT The Planning Commission reserves 10 minutes at the beginning of this meeting for public comment. The public may comment on any matter, except for items scheduled for public hearing or public hearing items for which the record has already closed. Generally, the time limit for public comment is three minutes; however, the Planning Commission reserves the option to reduce the time allowed each speaker based on the number of people requesting to speak. 11:40 a.m. II. APPROVAL OF MINUTES Minutes of May 24, 2010. 11:50 a.m. III. RIVENDELL PUD APPEAL DELIBERATIONS AND ACTION Staff: Bill Almquist, 541‐682‐5437 1:15 p.m. VI. ITEMS FROM COMMISSION AND STAFF A. Other Items from Staff B. Other Items from Commission Commissioners: Heidi Beierle, Chair; Jonathan Belcher; Rick Duncan, Randy Hledik, Jeffery Mills, Vice Chair; William Randall; Lisa Warnes PC AIS 9-27-10 - Page 1 PC AIS 9-27-10 - Page 2  AGENDA ITEM SUMMARY September 27, 2010 To: Eugene Planning Commission From: Bill Almquist, Assistant Planner, Eugene Planning Division Subject: Appeal of Hearings Official Decision: Rivendell PUD (City file PDT 10‐01) ACTION REQUESTED To deliberate on the 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 Eugene Planning Commission held a public hearing on this appeal on September 7, 2010 according to the statutory procedures for quasi‐ judicial hearings, and otherwise set forth in the Eugene Code (see EC 9.7065 through 9.7095). Testimony was received from the applicant, Boyd Iverson and his attorney Bill Kloos in support of the appeal (both dated September 7, 2010). Additional written argument (cover letter dated September 1, 2010) was also provided as well as a request to consider, as evidence in support of the appeal, application materials and other public records from the previous development of Rivendell Subdivision that were referenced in the original application and testimony before the Hearings Official but not specifically included in the file record or physically placed before the decision‐maker. Following the public hearing, the Planning Commission posed several questions to staff related to the Hearings Official’s decision and the applicant’s proposal. Staff’s responses to those questions are provided below. In response to the request to consider additional evidence, the Planning Commission also met on September 13, 2010 to seek advice from the City’s attorney on the matter. Under the provisions of EC 9.7095(1)(a), the Planning Commission voted 4 to 2 to “take official notice” and consider the following additional materials as part of the record on this appeal: 1 PC AIS 9-27-10 - Page 3  1) Public Records Request Form from Bill Kloos, dated 09/01/10. 2) Cover letter re: Public Records to be Submitted to the Planning Commission, dated 09/01/10. 3) Approved Revised Site Review Plans for Rivendell (SR 00‐10), dated 07/30/01. 4) Planning Director’s Decision for Minor Site Review Modification for Rivendell Subdivision (MDA 01‐2), dated 04/12/01. 5) Planning Director’s Decision for Site Review Modification for Rivendell Subdivision (MDA 03‐13), dated 10/13/03. 6) Approved Revised Site Review Plans for Rivendell Subdivision (MDA 03‐13), dated 12/29/03. As part of deliberations, in response to the appeal issues and with consideration of all relevant evidence and argument included in the record to date, the Planning Commission is asked to determine whether the Hearings Official: (1) failed to properly evaluate the application; or (2) made a decision that was not 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). (As mentioned in the 9/7/10 public hearing, the appellant’s issue regarding appeal fees is beyond the scope of the Planning Commission’s authority and cannot be reviewed as part of this appeal). 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. 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 the applicant extended the 120‐day statutory time limit and local code procedures by 60 days to allow for a decision by December 1, 2010 (confirm new 120 day deadline). The Planning Commission’s decision must otherwise be made in accordance with the provisions for appeal decisions (see EC 9.7680), and more specifically, consistent with the applicable tentative Planned Unit Development criteria (see EC 9.8320) and any other applicable criteria or standards. Staff is prepared to assist the Planning Commission in reviewing the assignments of error at the deliberation meeting on September 27, 2010. RESPONSE TO PLANNING COMMISSION QUESTIONS As noted above, following closure of the public hearing, the Planning Commission posed several questions to staff regarding evidentiary issues, procedural review, and other substantive information. These questions (in bold), along with staff’s response, are provided below. 2 PC AIS 9-27-10 - Page 4 1. Can we review the decisions/materials from the previous Rivendell development? As discussed at the September 13th, 2010 meeting, the City Attorney noted that, based on EC 9.7095(1)(a), Planning Commission may “take official notice” of these public records. The City Attorney recommended against doing so, however, because the evidence had not actually been set in front of staff or the Hearings Official during or prior to the public hearing. At the September 13th meeting, Planning Commission voted 4 to 2 in favor of admitting the evidence provided by Bill Kloos at the September 7th meeting to consider as part of the record on this appeal. 2. Are the appellant’s and appellant’s representative’s written testimonies considered “new evidence”? Neither Mr. Kloos’ nor Mr. Iverson’s written arguments, dated and submitted September 7th, are considered “new evidence.” 3. How is this application different (procedurally) from that done with the earlier “phases” of Rivendell? The earlier “Rivendell” developments were approved in October 2000 via a cluster subdivision application with corresponding site review—both Type II processes. The applicant later submitted three separate site review modifications: one in March 2001 to allow 3‐foot wide side yard setbacks on any lots not adjoining neighboring subdivisions; one in August 2003 to adjust proposed lot sizes and street frontage for certain lots and to allow a reduced front yard setback for corner lots along one side, among other adjustments; and one in June 2005 to eliminate the RV/storage area and replace it with four single‐family homes. The subject development, by contrast, has been proposed through a Planned Unit Development application—a Type III process. Modifications such as those noted above, and those that are the subject of this appeal, were requested through EC 9.8320(11)(k), which states: “The PUD complies with all applicable development standards explicitly addressed in the application except where the applicant has shown that a modification is consistent with the purposes as set out in EC 9.8300 Purpose of Planned Unit Development.” 4. What was different in this development (such as code changes, land use decisions, etc.) that led to it going through a PUD where it didn’t require a PUD before? As noted above, the earlier developments went through a cluster subdivision and site review process, with later modifications; whereas, the subject proposal has been submitted through the tentative PUD process. It should be noted that the applicant could have elected to undergo the cluster subdivision and site review application processes in order to propose a subdivision with similar reliefs and density to those approved in the earlier Rivendell development. The zoning for the subject property is the same as that for the previous development and relatively little has changed within the code that would impact the applicant’s ability to have such relief considered by the Planning Director. 3 PC AIS 9-27-10 - Page 5 The initial reliefs requested during the first Rivendell subdivision [for 3‐foot interior yard setbacks for 13 lots (including 8 “cottage unit” lots) and zero lot lines for 6 duplex lots, among other reliefs] were subject to the site review approval criteria, which are attached at the end of this document. As mentioned above, the original subdivision (ST 00‐08 and SR 00‐10) went through a series of modifications which eliminated the cottage units and changed the duplex lots to single‐family lots, among other revisions. At the time of the earlier Rivendell development, as with current code, subsequent modifications to development standards of an already approved cluster subdivision and site review were evaluated based off the following criteria: (1) Consistency with conditions of the original approval; and (2) A result in insignificant changes in the outward appearance of the development and impact on the surrounding properties. Today, reliefs from development standards such as those requested in the original applications could be approved through the cluster subdivision per EC 9.8055(1), which states: “With the exception of density requirements, the residential development standards of EC 9.2750 Residential Zone Devleopment Standards and EC 9.2751 Special Development Standards for Table 9.2750 may be relaxed based on compliance with the remainder of the cluster subdivision criteria. An exception or an adjustment to a development standard constitutes compliance with the standard.” An applicant can also later apply to modify the approved site plans via a modification—as was accomplished through the previous development and with the same criteria. Nonetheless, the applicant chose to submit the subject proposal through the Planned Unit Development process. The criteria for relief from development standards in the subject PUD application are based upon consistency with the PUD purpose statement, which are also attached at the end of this document. These criteria are substantially different than the site review criteria from 2000. 1 Otherwise, the most notable change in the code regards the open space provisions of a cluster subdivision. In October 2000, when the applicant submitted his application for a cluster subdivision (ST 00‐8), the criteria required that an amount of “semi‐private” common open space be provided equal to “(t)he difference in square footage between the minimum lot area per dwelling unit required… and the square footage of actual dwelling unit lots created…” [EC 9.550(b)]. The applicant originally provided the required amount of open space as part of the approval, but later did away with it through a site review modification (MDA 03‐13) that also adjusted the lot sizes so that none were any smaller than the minimum required lot area of 4,500 square feet. Today, the cluster subdivision criteria require, per EC 9.8055(2), that “…the proposed subdivision includes at least 25% of the development site in common open space that either is suitable area for natural resource protection or for use by residents.” A PUD, by contrast, has no such requirement for open space on the actual development site, but rather that “(r)esidents of the PUD will have sufficient usable recreation area and open space that is convenient and safely accessible” [EC 9.8320(8)]. (As noted in the Hearings Official decision, the subject development is within ¼ mile of Arrowhead Park). The applicant was not required to go through a PUD process. 1 As a note, at the time that the initial “phase” of Rivendell was proposed, the criteria for modifications within a PUD were the same as those for a cluster subdivision and site review [EC 9.516(9)(e) of code in effect in 2001]. 4 PC AIS 9-27-10 - Page 6 5. In regards to the reliefs requested for this development, are the circumstances different in this instance and, if not, why can’t the appellant rely on precedence set in earlier approvals? The applicant chose to submit the application through a separate application procedure—in this case a Type III PUD application with different criteria for modifications of development standards, and decided upon by an independent third party. Therefore, he cannot rely on precedence set in earlier approvals, but must rather meet the criteria applicable to the PUD request: the purpose statements at EC 9.8300. 6. How was the applicant supposed to know that certain relief needed to be requested when it was previously allowed and was not restricted until the conditions/limitations were imposed by the Hearings Official? The burden of proof lay with the applicant to show how proposed noncompliances are consistent with the approval criteria—in this case, the PUD purpose statements at EC 9.8300. The fact that the applicant chose to undergo a different application procedure than in the previous development further underscores the need for the applicant to request and justify relief from development standards according to the applicable criteria. Nowhere in the application materials submitted prior to the Hearings Official hearing (which was all that staff was given to base its recommendation upon) did the applicant draw a connection between the relief approved as part of the earlier development and the noncompliances requested as part of the subject proposal. The applicant only notes, at EC 9.8320(3), that “Homes constructed within this development will be similar size, height, and bulk as the existing surrounding homes in the various phases of Ryan Meadows and Rivendell adjacent to the proposed development.” While the applicant may have assumed that the requested noncompliances were the same as those approved as part of the initial subdivision, the parallel was never explicitly drawn in the application. The information Mr. Iverson provided, making the connection between the two proposals, was not provided until the Hearings Official hearing on July 14, 2010. At that point, the applicant chose not to hold the record open, which would have allowed staff time to review the new evidence as part of its recommendation. Regardless, staff maintains that the PUD is a separate application type with different criteria from that of a cluster subdivision, site review, or modification. The purpose statements of the PUD provide the approval criteria by which the proposed noncompliances are to be evaluated, not previous decisions of dissimilar application types. 7. What is the purpose of Limited Consultation/Pre‐Development Conference? Why weren’t concerns with the application raised at that time? The purpose of a Limited Consultation/Pre‐Development Conference is to allow staff an overview of a proposal, and to attempt to identify issues that may arise during the application process. It is not an in‐depth analysis or detailed review, and rarely, if ever, are all the elements of the proposal provided by the applicant prior to the meeting. Without reviewing the application in depth, it is not possible to identify all potential issues with an application. The 5 PC AIS 9-27-10 - Page 7 fact that staff does not identify all issues at the meeting does not constitute or guarantee an approval of an application. The applicant must still undergo an application process which provides a more thorough review. Per staff notes from the October 28, 2009 limited consultation, the applicant was specifically told that he would, through his application, need to show how the proposed noncompliances meet the purpose statements of the PUD and, more specifically, the applicant was asked to show what the proposed noncompliances would look like, especially from the street. 8. What was the difference (substantively) between the earlier phases of Rivendell and this development? Are the minimum square footages of this development less than that of the earlier phase? Having accepted the previous applications and decisions into the record, staff notes that the subject development differs somewhat from the earlier Rivendell subdivision, as modified, in regards to lot area, widths and frontages. The proposed density for the subject development is approximately 7.5 units/acre versus approximately 6.1 units/acre for the previous subdivision— both well under the maximum allowable density of 14 units/acre in R‐1. The subject development, Rivendell PUD, proposes four (out of 61) lots to be under the minimum lot size of 4,500 square feet; 16 lots with frontages less than the required 50 feet; and 15 lots with widths less than the required 50 feet. Nine of the lots with sub‐standard frontages and widths are grouped together along the western boundary of the proposed development, east of the A‐1 Channel and Northwest Expressway. By comparison, zero (out of 67) lots in the earlier Rivendell subdivision, as modified, were under 4,500 square feet; three lots had lot frontages less than the required minimum; and zero lots had widths less than 50 feet.2 9. Please clarify staff’s comments regarding the PUD process and the compatibility of constructed housing types. Are we looking at housing type and how developers build them, as part of the PUD process? Also, please clarify statement regarding “Looking at what can be allowed versus what we want to prevent”? The question here was not entirely clear. Staff did bring up the issue of compatibility in context of the PUD purpose statement and additional criteria. EC 9.8320(13) states “The proposed development shall be reasonably compatible and harmonious with adjacent and nearby land uses,” which speaks to development outside the subject development. Assuming the question focused on the compatibility between dwellings within the development, the PUD purpose statement provides a more subjective test for the relationship between those buildings. EC 9.8300(2) states “…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 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 reasonably compatible with the surrounding area” (emphasis added). Staff notes that a PUD is not commensurate to a design review process; however, staff finds that the criterion lends itself to a decision based upon a subjective review of the 2 As noted above, the original version of the Rivendell subdivision, as approved in ST 00‐08 and SR 00‐10, had 13 lots that were less than 4,500 square feet, 8 of which were “small cottage” lots. These lots were all modified or eliminated as part of site review modification (MDA 03‐13). 6 PC AIS 9-27-10 - Page 8 development as a whole. It was staff’s recommendation, at the time, and without the benefit of photos and additional evidence that 3‐foot setbacks, combined with reduced lot frontages, width, and size, would create an environment where privacy would be compromised, where interior side yards would be rendered functionally unusable and unaccessable. The Hearings Official cited other potential issues with landscaping potential and light and air circulation between buildings. 10. How can the PUD process, per EC 9.8300(1)(c), “(c)reate a sustainable environment that includes… a variety of dwelling types that help meet the needs of all income groups in the community”? The PUD purpose statement language is aspirational, not compulsory. The PUD process is not designed to produce all of the conditions under EC 9.8300(1), but is intended to enable them. 11. What latitude does the Hearings Official have, within a PUD decision, to provide an opinion on items of a subjective nature (ex. pedestrian‐friendly neighborhood/ environment and the role landscaping plays)? A PUD, by its very nature, requires subjectivity. Many, if not most of the applicable criteria are discretionary, and therefore, require judgment in determining compliance. This is especially true for requests of noncompliance. As mentioned in #9 above, EC 9.8300(2) provides a subjective test by which to judge noncompliances proposed via EC 9.8320(11)(k). 12. What is the requirement of the Hearings Official to confirm that that information is truthful versus inappropriate comments or not comments based in fact? Is the Hearings Official supposed to have all the facts given to him, or if there is a piece of info that is given to them that is public record, should the Hearings Official go through and confirm that information? The question here was not entirely clear; however, there is no requirement for the Hearings Official to check the facts given to him. Rather, the Hearings Official must consider all evidence and to the best of his or her ability, determine what credible evidence to rely on in making their decision. While staff can assist in confirming the validity of certain facts supplied by the applicant and relied upon by the Hearings Official, this is quite distinct from the responsibility the applicant bears to provide the necessary evidence with enough specificity and clarity to demonstrate compliance with the criteria. APPEAL ISSUES Much of the information below has already been provided to the Planning Commission at part of the public hearing on appeal, but now includes consideration of the testimony provided by the appellant and the appellant’s representative, as well as additional evidence admitted into the record following the public hearing. The appeal issues are restated below, as well as the PUD purpose statements at EC 9.8300, which are criteria for approval of the applicant’s requested “noncompliance” to various development standards. In the interest of facilitating deliberations, staff recommends the 7 PC AIS 9-27-10 - Page 9 Planning Commission focus their discussion on these criteria in determining whether or not the Hearings Official’s decision should be modified, affirmed, or reversed in response to the appeal issues raised. The appeal 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, as summarized below: 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 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. Sub‐assignment (a) [Noncompliance #4 of the Hearings Official 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: 8 PC AIS 9-27-10 - Page 10  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 negative impacts on the pedestrian‐friendliness of the development. 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 evidence in the record shows that similar relief to that requested was granted in the earlier Rivendell subdivision, and that the submitted photos provide evidence that such intrusions do not create a pedestrian‐unfriendly environment. The appellant provides a list of evidence in the record he feels shows specific standards for relief [EC 9.8300(1)(a),(c), and (e)] are met via the increased density the relief allows (Page 4 of memo from Bill Kloos, dated 9/7/10). The appellant also argues that the issue of landscaping is unrelated to the standards by which the requested relief should be evaluated. If the Planning Commission determines that the Hearings Official erred by either (1) failing to properly evaluate the application; or (2) by making a decision that was not consistent with the applicable criteria at EC 9.8300, then the Planning Commission may elect to modify the Hearings Official decision regarding Appeal Issue 1(a). Should the Commission elect to modify the decision, then it must provide findings that show how the requested relief complies with, or at least does not conflict with, the elements of the PUD purpose statement. Should the Planning Commission specify any conditions regarding intrusions in such a modification, for clarity, it must also provide justification for those conditions. Should the Planning Commission affirm the Hearings Official with respect to Appeal Issue 1(a), the Commission shall provide findings that describe how the Hearings Official properly evaluated the application and made a decision that was consistent with the applicable criteria at EC 9.8300. Sub‐assignment (b) [Noncompliance #7 of the Hearings Official 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 9 PC AIS 9-27-10 - Page 11 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 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 evidence in the record shows that the requested relief was granted in the earlier Rivendell subdivision, and that the submitted photos and other evidence provide support that staff’s and the Hearings Official’s concerns regarding such relief are unfounded. Furthermore, the appellant argues that limitations, as set by the Hearings Official, would preclude him from creating a “visually interesting and varied subdivision with a variety of home choices and designs” (Page 4 of memo from Boyd Iverson, dated 9/7/10). The appellant provides a list of evidence in the record he feels shows the standards for relief [EC 9.8300(1)(a),(c), and (e)] are met via the increased density the relief allows (Page 6 of memo from Bill Kloos, dated 9/7/10). The appellant also notes that “(n)o negative comments were voiced at the neighborhood meeting. This reception from neighbors and residents of the phases of Rivendell PUD that are already completed demonstrates the PUD purposes of EC 9.8300(1) have been met.” If the Planning Commission determines that the Hearings Official erred by either (1) failing to properly evaluate the application; or (2) by making a decision that was not consistent with the applicable criteria at EC 9.8300, then the Planning Commission may elect to modify the Hearings Official decision regarding Appeal Issue 1(b). Should the Commission elect to modify the decision, then it must provide findings that show how the requested relief complies with, or at least does not conflict with, the elements of the PUD purpose statement. Should the Planning Commission specify any conditions regarding intrusions in such a modification, for clarity, it must also provide justification for those conditions. Should the Planning Commission affirm the Hearings Official with respect to Appeal Issue 1(a), the Commission shall provide findings that describe how the Hearings Official properly evaluated the application and made a decision that was consistent with the applicable criteria at EC 9.8300. Sub‐assignment (c) [Noncompliance #8 of the Hearings Official 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 10 PC AIS 9-27-10 - Page 12 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, the appellant takes issue with the decision 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). The appellant argues that the Hearings Official decision is unexplained in terms of approval standards and based on faulty rationale. The appellant also claims that evidence in the record shows that similar relief was granted in the earlier Rivendell subdivision, and that the submitted photos show “…that reduces setback between a one‐ and two‐story building does not result in buildings “looming” over each other, nor does it defeat any of the PUD purposes of EC 9.8300(1).” The appellant provides a list of evidence in the record he feels shows the standards for relief [EC 9.8300(1)(a),(c), and (e)] are met via the increased density the relief allows (Page 8 of memo from Bill Kloos, dated 9/7/10). The appellant also notes that “(n)o negative comments were voiced at the neighborhood meeting. This reception from neighbors and residents of the phases of Rivendell PUD that are already completed demonstrates the PUD purposes of EC 9.8300(1) have been met.” If the Planning Commission determines that the Hearings Official erred by either (1) failing to properly evaluate the application; or (2) by making a decision that was not consistent with the applicable criteria at EC 9.8300, then the Planning Commission may elect to modify the Hearings Official decision regarding Appeal Issue 1(c). Should the Commission elect to modify the decision, then it must provide findings that show how the requested relief complies with, or at least does not conflict with, the elements of the PUD purpose statement. Should the Planning Commission specify any conditions regarding intrusions in such a modification, for clarity, it must also provide justification for those conditions. Should the Planning Commission affirm the Hearings Official with respect to Appeal Issue 1(a), the Commission shall provide findings that describe how the Hearings Official properly evaluated the application and made a decision that was consistent with the applicable criteria at EC 9.8300. 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 11 PC AIS 9-27-10 - Page 13 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. 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 based on the conclusion above. OPTIONS/RECOMMENDATION FOR THE PLANNING COMMISSION TO CONSIDER In regards to Appeal Issue 1(a)‐(c), staff has provided the Planning Commission with information and options above regarding approaches it may take as part of this decision. Planning Commission shall provide direction to staff as to whether they will modify, affirm or reverse the Hearings Official’s decision—in consideration of the additional evidence and argument on appeal— and relate that to the applicable criteria (the PUD purpose statements at EC 9.8300). Staff will then provide findings to approve or deny the “noncompliances” as requested and return with a final order at a subsequent meeting for the Planning Commission’s review and approval. ADDITIONAL EVIDENCE AND TESTIMONY ATTACHMENTS The following items have been submitted to you at the September 7 and 13, 2010 public meetings as additional evidence and admitted as part of the record under official notice provisions of EC 9.7095(1)(a). 1) Written argument and corresponding tables of evidence from Bill Kloos, dated 9/7/10. 2) Written testimony and photo documentation from Boyd Iverson, dated 9/7/10. 3) Letter from Bill Kloos to City of Eugene, dated 9/1/10 re: additional evidence taken under official notice below: 4) Public Records Request Form from Bill Kloos, dated 9/1/10. 5) Decision of Planning Director for Minor Modification for Rivendell Subdivision, (MDA 01‐2), 12 PC AIS 9-27-10 - Page 14  dated 4/12/01. 6) Revised approved site plans for Rivendell Subdivision site review (SR 00‐10), dated 7/30/01. 7) Decision of Planning Director for Minor Modification for Rivendell Subdivision, (MDA 03‐13), dated 10/13/03. 8) Revised approved site plans for Rivendell Subdivision (MDA 03‐13), 12/29/03. ATTACHMENTS 1) 2000 Land Use Code excerpts (Cluster Subdivision/Site Review Criteria) 2) 2010 Land Use Code excerpts (Tentative Planned Unit Development Purpose Statement) The entire record of materials, including the Hearings Official’s decision, is available for review at the Eugene Planning Division offices and has been provided to the Planning Commission under separate cover. The record, including all related materials submitted since the public hearing, will also be made available for review at the Planning Commission’s deliberation meeting(s). 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 13 PC AIS 9-27-10 - Page 15 14 PC AIS 9-27-10 - Page 16 PC AIS 9-27-10 - Page 17 PC AIS 9-27-10 - Page 18 PC AIS 9-27-10 - Page 19