Planning Commission

AGENDA EUGENE PLANNING COMMISSION Phone: 541‐682‐5481 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. MONDAY, APRIL 25, 2011 – 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. GOODPASTURE WILLAMETTE GREENWAY PERMIT APPEAL (WG 10‐3) (Deliberation & possible action) Staff: Steve Ochs, (541) 682‐5453 1:15 p.m. III. 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 April 25, 2011 - Page 1 PC AIS April 25, 2011 - Page 2  AGENDA ITEM SUMMARY April 25, 2011 To: Eugene Planning Commission From: Steve Ochs, Associate Planner, Eugene Planning Division Subject: Appeal of Hearings Official Decision: Goodpasture Island Off‐Site Transportation Improvements (WG 10‐3) ACTION REQUESTED To deliberate and take final action to affirm the Eugene Hearings Official’s decision, regarding the appeal of Willamette Greenway Permit WG 10‐3. BRIEFING STATEMENT The application subject to this appeal is a Willamette Greenway Permit approval for transportation improvements including a new bridge at the Goodpasture Island Road/Delta Highway intersection. In June of 2010, the applicant received tentative PUD and Zone Change approval to construct a 583‐unit multi‐family development on property located at Goodpasture Island Road and Alexander Loop (see PDT 09‐1, TIA 09‐4 and Z 09‐6). As a condition of that approval, the applicant was required to construct off‐site transportation improvements at the Goodpasture Island Road / Delta Highway interchange. The applicant is now requesting approval to construct these transportation facility capacity improvements as required by the previous land use applications. The improvements to the Goodpasture Island / Delta Highway interchange include a new bridge associated with the widening of Goodpasture Island Road and the widening of interchange approaches. The proposed traffic mitigation improvements at the Goodpasture Island Road / Delta Highway interchange are completely within public right of way and within the adopted boundaries of the Willamette River Greenway. The Eugene Hearings Official held a public hearing for the subject application on December 15, 2010. The Hearings Official issued a decision approving the request on February 24, 2011. On March 9, 2011, an appeal of the Hearings Official’s decision was filed by Zack P. Mittge of Hutchinson, Cox, Coons, DuPriest, Orr & Sherlock, P.C. on behalf of Willamette Oaks LLC. The appeal is comprised of 12 assignments of error for the Willamette Greenway Permit. The Eugene Planning Commission held a public hearing on this appeal on April 5, 2011 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 the applicant extended the 120‐day statutory time limit and local code procedures to allow for a decision prior to June 2, 2010. The Planning Commission’s decision must otherwise be made in accordance with the provisions for appeal decisions (see EC 9.7680), and more specifically, 1 PC AIS April 25, 2011 - Page 3 consistent with the applicable Willamette Greenway requirements (see EC 9.8815) and any other applicable criteria or standards. 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 request are whether or not the Hearings Official erred in approving the applicant’s requested applications based on the approval criteria of EC 9.8815 Willamette Greenway Permit Approval Criteria and Standards. 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 requests and chooses to reverse the decisions, the Planning Commission is required to provide specific findings of fact as to why the decisions were in error. The Planning Commission cannot reverse the decisions without such findings. MOTION TO DISMISS Paragraph 2 of Michael Robinson’s April 5, 2011 letter to the Planning Commission, requests that the Planning Commission dismiss the appeal on its face because it does not comply with the minimum requirements of EC 9.7655(3). While some of the twelve appeal issues are vague and do not address specific criteria, EC 9.7655(3) does not specify the consequence of not addressing the minimum requirements as dismissal of the appeal. Therefore, it is recommended that the Planning Commission address the merits of this appeal as shown in the attached draft Final Order (Attachment A). BACKGROUND INFORMATION In addition to the file record provided on disk to the Planning Commission, the following submittals were received at the April 5, 2011 public hearing: 1) Letter from Michael Robinson on behalf of Goodpasture Partners in support of Hearings Official’s Decision 2) Letter from Zack Mittge on behalf of Willamette Oaks, LLC in support of the appeal with the following attachments: a. Letter from Poage Engineering dated July 18, 2008 with air photo attachments b. Memorandum from GeoScience, Inc. dated December 29, 2010 c. Wetland Delineation Report for Goodpasture Partners Since the Planning Commission’s April 5, 2011 public hearing and during the applicant’s period for final written argument established by the Planning Commission, the following additional items have been received: 3) Email from Michael Robinson dated April 6, 2011 confirming open record timeline and providing 7 day extension to 120 day timeline. 4) Letter from Michael Robinson to Planning Commission submitted on behalf of the applicant, dated April 12, 2011. 2 PC AIS April 25, 2011 - Page 4 Several “shared” copies of this information will be provided at deliberations including hard copies of the draft Final Order. For additional information on the subject request, please refer to the attached draft Final Order and information provided under separate cover which includes the Hearings Official’s decision, public testimony and application information. RECOMMENDATION Unless there are specific errors raised as concerns by the Planning Commission, based on the available evidence and lack of compelling argument from the appellant with the findings provided in the draft Final Order, staff recommends that the Planning Commission take action in this meeting to affirm the decision of the Hearings Official granting conditional Willamette Greenway Permit approval (WG 10‐3). Should the Planning Commission find that additional approval conditions or findings are necessary to ensure compliance with the applicable approval criteria, 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 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 Attachment A: Final Order of the Eugene Planning Commission for Goodpasture Island Off‐Site Transportation Improvements (WG 10‐3) 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 meeting for final action. FOR MORE INFORMATION: Please contact Steve Ochs, Eugene Planning Division, by phone at (541) 682‐5453, or by e‐mail at steve.p.ochs@ci.eugene.or.us 3 PC AIS April 25, 2011 - Page 5 PC AIS April 25, 2011 - Page 6  FINAL ORDER, FINDINGS, AND CONCLUSIONS OF THE EUGENE PLANNING COMMISSION: GOODPASTURE ISLAND OFF‐SITE TRANSPORTATION IMPROVEMENTS (WG 10‐3) I. INTRODUCTION The Eugene Hearings Official held a public hearing for the subject application on December 15, 2010. The Hearings Official issued a decision approving the Willamette Greenway Permit request on February 24, 2011. On March 9, 2011, an appeal of the Hearings Official’s decision was filed by Zack P. Mittge of Hutchinson, Cox, Coons, DuPriest, Orr & Sherlock, P.C. on behalf of Willamette Oaks LLC. The appeal is comprised of 12 assignments of error for the Willamette Greenway Permit as reflected in the written statement submitted by the appellant. The appeal asserts that the Hearings Official erred in his findings and decisions with respect to applicable approval criteria in EC 9.8815. In accordance with EC 9.7655(1), the City mailed written notice of the appeal hearing to the applicant, the appellant, the Cal Young Neighborhood Association, all persons who submitted written comments in regard to the original application, and all persons who requested notice. The written notice included the required elements set forth in EC 9.7655(2). The Planning Commission held a public hearing on this appeal on April 5, 2011. At the public hearing, Michael Robinson and Don Sowieja provided oral testimony on behalf of the applicant. Zack Mittge provided oral testimony on behalf of the appellant, Willamette Oaks LLC. Don Sowieja, followed by the applicant’s counsel Michael C. Robinson spoke during the rebuttal period on behalf of the applicant. Written testimony was also provided by the parties at the hearing, which is included in the record. The Planning Commission closed the public hearing on April 5, 2011 but allowed for final written argument from the applicant until April 12, 2011. After the public record was closed, the Planning Commission deliberated the appeal issues at its meeting on April 15, 2011, before taking final action on the appeal. The appeal is based on the record and limited to the assignments of error contained in the appeal statement submitted. As described below, the Planning Commission affirms the Hearings Official’s decisions to approve the subject applications with additional findings. Those additional findings are detailed below with respect to each related assignment of error. II. APPLICABLE CRITERIA The Willamette Greenway Permit application is required to meet the following approval criteria: 9.8815 Willamette Greenway Permit Approval Criteria and Standards. Willamette Greenway permit approval may be granted only if the proposal conforms to all the criteria in subsections (1) through (4), and the applicable standards of subsection (5) as follows: (1) To the greatest possible degree, the intensification, change of use, or development will provide the maximum possible landscaped area, open space, or vegetation between the activity and the river. Final Order – Goodpasture Island Off‐Site Transportation Improvements (WG 10‐3) April, 2011 PC AIS April 25, 2011 - Page Page71 (2) To the greatest possible degree, necessary and adequate public access will be provided along the Willamette River by appropriate legal means. (3) The intensification, change of use, or development will conform with applicable Willamette Greenway policies as set forth in the Metro Plan. (4) In areas subject to the Willakenzie Area Plan, the intensification, change of use, or development will conform with that plan’s use management considerations. (5) In areas not covered by subsection (4) of this section, the intensification, change of use, or development shall conform with the following applicable standards: (a) Establishment of adequate setback lines to keep structures separated from the Willamette River to protect, maintain, preserve, and enhance the natural, scenic, historic, and recreational qualities of the Willamette Greenway. Setback lines need not apply to water related or water dependent activities as defined in the Oregon Statewide Planning Goals and Guidelines (OAR 660‐15‐000 et seq.). (b) Protection of significant fish and wildlife habitats as identified in the Metropolitan Plan Natural Assets and Constraints Working Paper. Sites subsequently determined to be significant by the Oregon Department of Fish and Wildlife shall also be protected. (c) Protection and enhancement of the natural vegetative fringe along the Willamette River to the maximum extent practicable. (d) Preservation of scenic qualities and viewpoints as identified in the Metropolitan Plan Natural Assets and Constraints Working Paper. (e) Maintenance of public safety and protection of public and private property, especially from vandalism and trespass in both rural and urban areas to the maximum extent practicable. (f) Compatibility of aggregate extraction with the purposes of the Willamette River Greenway and when economically feasible, applicable sections of state law pertaining to Reclamation of Mining Lands (ORS Chapter 517) and Removal of Material; Filling (ORS Chapter 541) designed to minimize adverse effects to water quality, fish and wildlife, vegetation, bank stabilization, stream flow, visual quality, noise, safety, and to guarantee necessary reclamation. (g) Compatibility with recreational lands currently devoted to metropolitan recreational needs, used for parks or open space and owned and controlled by a general purpose government and regulation of such lands so that their use will not interfere with adjacent uses. As used in this section, the words "the greatest possible degree" are drawn from Oregon Statewide Planning Goal 15 (F.3.b.) and are intended to require a balancing of factors so that each of the identified Willamette Greenway criteria is met to the greatest extent possible without precluding the requested use. (6) When site review approval is required, the proposed development will be consistent with the applicable site review criteria. (7) The proposal complies with all applicable standards explicitly addressed in the application. An approved adjustment to a standard pursuant to provisions beginning at EC 9.8015 of this land use code constitutes compliance with the standard. Final Order ‐‐ Goodpasture Island PUD Off‐Site Transportation Improvements (WG 10‐3) April 2011 PC AIS April 25, 2011 - Page 8 Page 2 III. RECORD BEFORE THE PLANNING COMMISSION The record before the Planning Commission consists of the Eugene Planning Commission Agenda Item Summary for Appeal of Hearings Official Decision: Goodpasture Island Off‐Site Transportation Improvements (WG 10‐3) dated April 5, 2011; the decision of the Eugene Hearings Official, Goodpasture Island Off‐Site Transportation Improvements dated February 24, 2011; the written and oral testimony presented by appellant, applicant, and other parties to the Planning Commission; and all written and oral testimony (including City staff reports) presented to and not rejected by the Hearings Official. The entire City Planning & Development Department file was physically before the Planning Commission prior to the close of the record. IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW After consideration of the applicable law and all argument and evidence in the record, the Planning Commission finds that the subject applications satisfy all applicable approval criteria. Accordingly, the Planning Commission hereby incorporates the Decision of the Hearings Official, Goodpasture Island PUD: Off‐Site Improvements (WG 10‐3) (hereinafter referred to as the Willamette Greenway Decision) and affirms the Willamette Greenway Decision, including the findings and conditions stated in the decision. A. ADDITIONAL FINDINGS AND MODIFIED CONDITIONS OF APPROVAL On March 9, 2011 a written appeal statement was submitted by Zack P. Mittge of Hutchinson, Cox, Coons, DuPriest, Orr & Sherlock, P.C. on behalf of Willamette Oaks LLC, included a total of twelve (12) assignments of error. Each of these assignments of error is set forth below, followed by the Planning Commission's findings of fact and conclusions of law as to each one. Appellant’s First Assignment of Error: The Hearings Official misinterpreted applicable law and made a decision that is not supported by adequate findings, substantial evidence or substantial reasons, in holding that Willamette River Greenway permit criteria (including applicable Metro Plan and Willakenzie Area Plan Use Management Standards) are not applicable to the proposed project even though it is located entirely within the river channel of the Willamette River Greenway. (Including EC 9.8815(1),(2),(3) and (4) and Metro Plan policies D.5 and D.11) The Hearings Official completed a detailed analysis of the cited Metro Plan policies and Willamette Greenway approval criteria. The Hearings Official acknowledges the project area is entirely within the Willamette River Greenway, while noting that the proposed improvements would be located approximately 3,200 feet from the existing channel of the Willamette River. The Hearings Official does not find that the Greenway criteria in this appeal issue are not applicable to the project as asserted in this assignment of error, rather the Hearings Official correctly addresses the Greenway criteria in the context of the project being over a half mile from “the river”. The Hearings Official completed a detailed analysis and addresses the issue of the river channel location in relationship to the project on page 3, 4 and 7 of the Willamette Greenway Decision based on the record. The Hearings Official correctly interprets that the term “the river” refers only Final Order ‐‐ Goodpasture Island PUD Off‐Site Transportation Improvements (WG 10‐3) April 2011 PC AIS April 25, 2011 - Page 9 Page 3 to the current channel of the Willamette River not to a (possible) former channel of the river as the appellant asserts. While the appellant refers to “former river channels” and various reaches of the Willamette River throughout the testimony, the appellant has not provided evidence establishing that the project location is in the area of a former river channel. The Planning Commission finds that the Willamette Greenway Decision provides adequate findings on this issue, and there is no substantial evidence in the record of any error by the Hearings Official. For the reasons set forth in the Willamette Greenway decision, the April 5 Staff Agenda Item Summary, the Applicant’s April 5 Letter and the Applicant’s April 12 letter, the Planning Commission denies the appellant’s first assignment of error and affirms, adopts and incorporates the Hearings Official's findings and conclusions on this issue set forth on pages 3‐10 of the Willamette Greenway Decision. Appellant’s Second Assignment of Error: The Hearings Official misinterpreted applicable law and made a decision that is not supported by adequate findings, substantial evidence or substantial reasons by permitting the placement of fill within the Greenway setback without a Goal exception required by Policy D.11 of the Metro Plan. Policy D.11 requires an exception to Statewide Planning Goal 15 for placing of fill within the Willamette Greenway setback. The Hearings Official completed a detailed analysis of this issue at pages 6 and 7 of the Willamette Greenway Decision and found that the Willamette Greenway setback line, is a line separately established within the Willamette Greenway Boundary to keep structures separated from the river. While the development is clearly within the boundaries of the Willamette River Greenway, the Willakenzie Area Plan (WAP) establishes a “setback line” at “35 feet from the top of the riverbank”. As the transportation improvements are located more than one‐half mile from the river, no fill is proposed within this setback which would require a Goal exception. The Hearings Official also provided findings responding to Willamette Oaks arguments that the improvements are in the river by noting that the term “river” only refers to the current channel of the Willamette River, not a possible former channel of the river as the appellant asserts. The Planning Commission finds that the Willamette Greenway Decision provides adequate findings on this issue, and there is no substantial evidence in the record of any error by the Hearings Official. For the reasons set forth in the Willamette Greenway Decision, the April 5 Staff Agenda Item Summary, the Applicant’s April 5 Letter and the Applicant’s April 12 letter, the Planning Commission denies the appellant’s second assignment of error and affirms, adopts and incorporates the Hearings Official's findings and conclusions on this issue set forth on pages 6‐7 of the Willamette Greenway Decision. Appellant’s Third Assignment of Error: The Hearings Official misinterpreted applicable law and made a decision that is not supported by adequate findings, substantial evidence or substantial reasons by approving an application for a Willamette River Greenway permit for property that is not owned by the applicant. The area of the request is public right of way owned by Lane County with the City of Eugene having jurisdiction over the Goodpasture Island Road bridge structure. The Hearings Official found that while EC 9.7010 requires that applications be signed by the property owners there is no Final Order ‐‐ Goodpasture Island PUD Off‐Site Transportation Improvements (WG 10‐3) April 2011 PC AIS April 25, 2011 - Page 10 Page 4 requirement in the Eugene Code or State statute that the property be owned by the applicant as asserted in this assignment of error. The Hearings Official correctly concluded the applicant received the needed signatures from the City and County representatives. The Planning Commission finds that the Willamette Greenway Decision provides adequate findings on this issue, and there is no substantial evidence in the record of any error by the Hearings Official. For the reasons set forth in the Willamette Greenway Decision, the April 5 Staff Agenda Item Summary, the Applicant’s April 5 Letter, the Applicant’s April 12 letter, the Planning Commission denies the appellant’s third assignment of error and affirms adopts and incorporates the Hearings Official's findings and conclusions on this issue set forth on pages 17‐18 of the Willamette Greenway Decision. Appellant’s Fourth Assignment of Error: The Hearings Official misinterpreted applicable law and made a decision that is not supported by adequate findings, substantial evidence or substantial reasons by relying on purported “authorizations” from employees of the City of Eugene and Lane County to authorize the applicant to file a Willamette River Greenway permit on public property. The Hearings Official addresses this issue on pages 17 and 18 of the Willamette Greenway Decision. The area of the request is public right of way owned by Lane County with the City of Eugene having jurisdiction over the Goodpasture Island Road bridge structure. The appellant asserts that the authorizations provided by the applicant that were signed by representatives of the City of Eugene and Lane County to make the Willamette Greenway application are not sufficient. The applicant submitted a letter from Mark Schoening, City Engineer on behalf of the City of Eugene, and a letter from Liane Richardson, Acting County Administrator as well as Marsha Miller, Director of Lane County Public Works to authorize the application pursuant to EC 9.7010. The Hearings Official found that the persons who signed the authorizations could make such authorizations. The Planning Commission finds that the Willamette Greenway Decision provides adequate findings on this issue, and there is no substantial evidence in the record of any error by the Hearings Official. For the reasons set forth in the Willamette Greenway Decision, the April 5 Staff Agenda Item Summary, the Applicant’s April 5 Letter and the Applicant’s April 12 letter, the Planning Commission denies the appellant’s fourth assignment of error and affirms adopts and incorporates the Hearings Official's findings and conclusions on this issue set forth on pages 17‐18 of the Willamette Greenway Decision. Appellant’s Fifth Assignment of Error: The Hearings Official misinterpreted applicable law and made a decision that is not supported by adequate findings, substantial evidence or substantial reasons by approving a Willamette River Greenway permit for a transportation facility that is not contained in and is inconsistent with the TransPlan. The appellant’s statement is vague and fails to identify an applicable criterion to which these arguments apply, as required by EC 9.7655(3). Nonetheless, the Planning Commission further addresses this issue as a precautionary measure in the event of additional appeals. The Hearings Official noted that the approved tentative PUD (PDT 09‐1) and zone change (Z 09‐6) (approved by Hearings Official and Planning Commission) concluded that the proposed bridge and Final Order ‐‐ Goodpasture Island PUD Off‐Site Transportation Improvements (WG 10‐3) April 2011 PC AIS April 25, 2011 - Page 11 Page 5 additional lanes are consistent with Transplan. The proposed bridge and additional lanes are not changing functionally so there is nothing that would change (or provide a factual legal basis for changing) this prior conclusion. The Planning Commission finds that the Willamette Greenway Decision provides adequate findings on this issue, as it has been previously confirmed as part of the tentative PUD approval (PDT 09‐1), that the proposal is consistent with TransPlan and there is no substantial evidence in the record of any error by the Hearings Official. The Planning Commission also finds that this appeal issue does not relate to any applicable approval criteria for the Willamette Greenway Permit approval as granted. For the reasons set forth in the Willamette Greenway Decision, the April 5 Staff Agenda Item Summary, the Applicant’s April 5 Letter and the Applicant’s April 12 letter, the Planning Commission denies the appellant’s fifth assignment of error and affirms, adopts and incorporates the Hearings Official's findings and conclusions on this issue set forth on pages 18 of the Willamette Greenway Decision. Appellant’s Sixth Assignment of Error: The Hearings Official misinterpreted applicable law and made a decision that is not supported by adequate findings, substantial evidence or substantial reasons by approving a Willamette River Greenway permit for development within an area designated as Parks and Open Space in both the Metro Plan and the Willakenzie Area Plan and which is required to be zoned as open space by Goal 15. Again, the appellant’s statement is vague and fails to identify an applicable criterion to which these arguments apply, as required by EC 9.7655(3). Nonetheless, the Planning Commission further addresses this issue as a precautionary measure in the event of additional appeals. The Hearings Official notes that the adopted Metro Plan diagram and WAP does show the project area in dark green corresponding to the Parks and Open Space designation. However, the Hearings Official also notes that the Metro Plan diagram is a “generalized map and graphic”, and the plan text states that it is drawn at a “metropolitan scale, necessitating supplementary planning on a local level”. The WAP plan text also indicates that right of way is not subject to the plan policies, and right of way is not zoned under the Eugene Code. As noted earlier, this application involves land entirely within existing right of way. The Planning Commission finds that the Willamette Greenway Decision provides adequate findings on this issue, and there is no substantial evidence in the record of any error by the Hearings Official. For the reasons set forth in the Willamette Greenway Decision, the April 5 Staff Agenda Item Summary, the Applicant’s April 5 Letter and the Applicant’s April 12 letter, the Planning Commission denies the appellant’s sixth assignment of error and affirms, adopts and incorporates the Hearings Official's findings and conclusions on this issue set forth on pages 18‐19 of the Willamette Greenway Decision. Appellant’s Seventh Willamette Greenway Assignment of Error: The Hearings Official misinterpreted applicable law and made a decision that is not supported by adequate findings, substantial evidence or substantial reasons by approving a Willamette River Greenway permit that would require filling, grading, excavating, and removal of native vegetation prohibited by the City’s Water Resources standards at EC 9.4900 et seq. Final Order ‐‐ Goodpasture Island PUD Off‐Site Transportation Improvements (WG 10‐3) April 2011 PC AIS April 25, 2011 - Page 12 Page 6 The Hearings Official addressed three arguments made by the appellant with respect to the /WR Water Resource Standards. First, the appellant argues that the application submittals show construction within conservation area setbacks. In response to this argument, the Hearings Official found that while the applicant initially provided a wetland delineation, it never provided the City a jurisdictional wetland boundary formally accepted by the Oregon Division of State Lands (ODSL). The applicant instead relied on the setback distance as measured horizontally from wetland boundaries established on the City’s adopted Goal 5 maps (“Goal 5 Locally Significant Wetland Sites Within the Eugene Urban Growth Boundary”), as specifically allowed by EC 9.4920(2)(b). Based on the evidence provided, the Hearings Official found that the proposal avoided the conservation setback as measured from the adopted Goal 5 resource site boundary, but pointed out that some of the applicant’s maps contained either conflicting or insufficiently detailed notes to make this clear. The Hearing Official therefore correctly imposed a condition of approval requiring the applicant to clarify its final maps. Second, Willamette Oaks argued that the City’s “Goal 5 Locally Significant Wetland Sites Within the Eugene Urban Growth Boundary” map is not detailed enough to provide for a precise delineation of the conservation setback. The Hearings Official noted that the Planning Commission described the process for delineating a Goal 5 / WR Site boundary in the November 2008 decision on appeal of Alder Woods PUD (PDT 07‐5 and SDR 08‐2). The Hearings Official did not make a distinction between this proposal and the Alder Woods PUD decision in referring to the /WR Water Resources Conservation Overlay Zone, noting that the information provided in this application was detailed enough to determine the improvements would not take place in the setbacks (as measured from the resource site according to code) and concluded that the development would not take place within the /WR resource or applicable setbacks based on information provided by the applicant and staff. While the Hearings Official did not need to make a distinction in order to find that the standards and criteria were met, the Planning Commission finds that a distinction should be made between the process set forth above by the Planning Commission in the Alder Woods PUD appeal in delineating a riparian resource site and the process for delineating a wetland resource site setback (as was the case in this application). Given this distinction, the Planning Commission clarifies its interpretation to state that the two part process set forth in Alder Woods is not applicable to wetland resource sites, as the code at EC 9.4920(2)(b) clearly sets forth that an applicant may choose to use either the adopted Goal 5 resource site boundary in determining the setback or if provided by the property owner a wetland delineation accepted by ODSL. Furthermore, in no case with a wetland resource site, would there be a situation like Alder Woods where the adopted resource site boundary extends beyond the setback. Third, and last, the appellant argued at the hearing that once the applicant delineates a wetland and receives ODSL concurrence, it cannot step back and choose to use the City’s map. The Hearings Official correctly found that there is no restriction in the Eugene Code requiring an applicant to use a wetland delineation that it prepares. Again, EC 9.4920(2)(b) states that the Final Order ‐‐ Goodpasture Island PUD Off‐Site Transportation Improvements (WG 10‐3) April 2011 PC AIS April 25, 2011 - Page 13 Page 7 distances are measured from wetland boundaries as determined by the City’s “Goal 5 Locally Significant Wetland Sites Within the Eugene Urban Growth Boundary” map, or if provided by the property owner a jurisdictional wetland boundary accepted by ODSL. The applicant in this case chose the Goal 5 map option to determine the wetland boundary and the Hearings Official correctly found this to comply with applicable standards. As such, the Planning Commission finds that there is no substantial evidence in the record of any error by the Hearings Official. For the reasons set forth in the Willamette Greenway decision, April 5 Staff Agenda Item Summary, the Applicant’s April 5 Letter and the Applicant’s April 12 letter, the Planning Commission denies the appellant’s seventh assignment of error and affirms, adopts and incorporates the Hearings Official's findings and conclusions on this issue set forth on pages 10‐14 of the Willamette Greenway Decision. Appellant’s Eighth Assignment of Error: The Hearings Official misinterpreted applicable law and made a decision that is not supported by adequate findings, substantial evidence or substantial reasons in holding that the proposed intensification, change of use or development would, to the greatest possible degree, provide the maximum landscaped area, open space and vegetation between the activity and the river where the proposal is within the channel of the Debrick Slough/Delta Ponds reach of the Willamette River, and requires the construction of an unplanned transportation facility, with associated filling, retaining walls and native vegetation removal within or immediately adjoining conservation areas. The Hearings Official acknowledges the project area is entirely within the Willamette River Greenway, but the decision notes that the proposed improvements would be located approximately 3,200 feet from the existing channel of the Willamette River. The Hearings Official correctly interprets that the term “the river” refers only to the current channel of the Willamette River not to a (possible) former channel as the appellant previously asserted. Additionally, the Hearings Official correctly notes that the relevant “measuring area” for this criterion is the land between the activity and the river. In this case, there would be no change to the landscaped area, open space or vegetation between the activity and the river. The Planning Commission finds that the Willamette Greenway Decision provides adequate findings on this issue, and there is no substantial evidence in the record of any error by the Hearings Official. For the reasons set forth in the Willamette Greenway Decision, the April 5 Staff Agenda Item Summary, the Applicant’s April 5 Letter and the Applicant’s April 12 letter, the Planning Commission denies the appellant’s eighth assignment of error and affirms, adopts and incorporates the Hearings Official's findings and conclusions on this issue set forth on pages 3‐7 of the Willamette Greenway Decision. Appellant’s Ninth Assignment of Error: The Hearings Official misinterpreted applicable law and made a decision that is not supported by adequate findings, substantial evidence or substantial reasons in holding that the proposed intensification, change of use or development would, to the greatest possible degree, provide necessary and adequate public access to and along the river where the proposal provides no access to the Debrick Slough/Delta Ponds reach of the river, and fails to provide pedestrian connections as required by EC 9.6835(2), “Design Final Order ‐‐ Goodpasture Island PUD Off‐Site Transportation Improvements (WG 10‐3) April 2011 PC AIS April 25, 2011 - Page 14 Page 8  Standards for Eugene Streets, Sidewalks, Bikeways and Accessways” and applicable ADA standards or sidewalk connection standards in Chapter 7.1 The Hearings Official addresses this issue regarding public access by noting that the criterion does not include or refer to possible former river channels as asserted by the appellant, and that the proposal is more than a half‐mile from “the river”. As such, this provision does not require the applicant to provide access along the river as the project area is not located along the river. The proposed bridge includes required sidewalks and the Hearings Official provided a condition on page 14 of the decision that requires that all public improvements be designed and constructed to Chapter 7 standards. The Planning Commission finds that the Willamette Greenway Decision provides adequate findings on this issue, and there is no substantial evidence in the record of any error by the Hearings Official. For the reasons set forth in the Willamette Greenway Decision, the April 5 Staff Agenda Item Summary, the Applicant’s April 5 Letter and the Applicant’s April 12 letter, the Planning Commission denies the appellant’s ninth assignment of error and affirms, adopts and incorporates the Hearings Official's findings and conclusions on this issue set forth on pages 3‐7 and 14‐15 of the Willamette Greenway Decision. Appellant’s Tenth Assignment of Error: The Hearings Official misinterpreted applicable law and made a decision that is not supported by adequate findings, substantial evidence or substantial reasons in holding that policy D.5 Metro Plan is not applicable to the application, or that the proposed new development is compatible with natural, scenic and environmental qualities of the water features based on the existing transportation facilities, the /WR overlay designation, or the “additional findings” at Page 1 of Section 2 of the applicant’s written statement. Metro Plan Policy D.5 notes that new developments located along river corridors should be limited to uses that are compatible with various qualities of those water features. The Hearings Official did not find that this policy is inapplicable as asserted by the appellant. The Hearings Official addresses this policy at length, correctly noting that the policy does not prohibit the continued use of right of way for transportation purposes. The Planning Commission finds that the Willamette Greenway Decision provides adequate findings that the development is compatible with the various qualities of the water features, and there is no substantial evidence in the record of any error by the Hearings Official. For the reasons set forth in the April 5 Staff Agenda Item Summary, the Applicant’s April 5 Letter and the Applicant’s April 12 letter, the Planning Commission denies the appellant’s ninth assignment of error and affirms, adopts and incorporates the Hearings Official's findings and conclusions on this issue set forth on pages 5‐6 of the Willamette Greenway Decision. Final Order ‐‐ Goodpasture Island PUD Off‐Site Transportation Improvements (WG 10‐3) April 2011 PC AIS April 25, 2011 - Page 15 Page 9  Appellant’s Eleventh Assignment of Error: The Hearings Official misinterpreted applicable law and made a decision that is not supported by adequate findings, substantial evidence or substantial reasons in holding that the proposal conforms to Willakenzie Area Plan standards 2, 4 and 7. Again, the appellant’s statement is vague and fails to identify an applicable criterion to which these arguments apply, as required by EC 9.7655(3). Nonetheless, the Planning Commission further addresses this issue as a precautionary measure in the event of additional appeals. Standard #2 provides for public pedestrian and bicycle access along the river. The Hearings Official correctly notes that the development is located more than one‐half mile from the river and access is already provided to the river by the intervening properties. (see also, Assignment of Error 1, regarding the definition of “the river”). Standard #4 only discourages facades and walls exceeding 75 feet in length. The Hearings Official agrees with the appellant that there would be a retaining wall in excess of 75 feet in length; however, the wall would be on the northeast facing only a wetland and would not constrain visual access to and from the river. Standard #7 requires protection of fish and wildlife habitat. The Hearings Official noted that protection of the adjacent significant habitat is provided by compliance with codified /WR Water Resource standards. (see also, Assignment of Error 7 regarding compliance with /WR overlay requirements). The Planning Commission finds that the Willamette Greenway Decision provides adequate findings to provide that the development conforms to Willakenzie Area Plan standards 2, 4 and 7, and there is no substantial evidence in the record of any error by the Hearings Official. For the reasons set forth in the Willamette Greenway Decision, the April 5 Staff Agenda Item Summary, the Applicant’s April 5 Letter and the Applicant’s April 12 letter, the Planning Commission denies the appellant’s eleventh assignment of error and affirms adopts and incorporates the Hearings Official's findings and conclusions on this issue set forth on pages 7‐10 of the Willamette Greenway Decision. Appellant’s Twelfth Assignment of Error: The Hearings Official misinterpreted applicable law and made a decision that is not supported by adequate findings, substantial evidence or substantial reasons in holding that the proposal conforms to applicable Geological and Geotechnical requirements under EC 9.6710. The Hearings Official’s decision notes that the applicant submitted a Level 2 geotechnical analysis which provided the required analysis of site characteristics, sub‐surface investigation, and recommendations for design and construction, consistent with applicable standards. Public Works staff concurred with this initial geotechnical assessment. Adherence to the report recommendations (or subsequent recommendations resulting from the new information submitted during this permit process) will be required during the subsequent Privately Engineered Public Improvement permit process. The Hearings Official considered testimony provided by GeoSceince, Final Order ‐‐ Goodpasture Island PUD Off‐Site Transportation Improvements (WG 10‐3) April 2011 PC AIS April 25, 2011 - Page 16 Page 10 Inc. on behalf of the appellant and subsequent response from K&A Engineering on behalf of the applicant. The Hearings Official’s decision notes that the appellant presented a professional difference in opinion about how the analysis was conducted, but found that the applicant’s engineers adequately explained the basis of the methods and conclusions in response to the issues raised. As such, the Hearing Official correctly concludes that the applicant’s geotechnical analysis satisfies EC 9.6710. The Planning Commission finds that the Willamette Greenway Decision provides adequate findings to provide that the development meets the applicable Geological and Geotechnical requirements under EC 9.6710, and there is no substantial evidence in the record of any error by the Hearings Official. For the reasons set forth in the April 5 Staff Agenda Item Summary, the Applicant’s April 5 Letter and the Applicant’s April 12 letter, the Planning Commission denies the appellant’s twelfth assignment of error and affirms adopts and incorporates the Hearings Official's findings and conclusions on this issue set forth on page 15 of the Willamette Greenway Decision. V. CONCLUSION The Eugene Planning Commission has reviewed the record and the appellant’s assignments of error, and has voted to affirm the decision of the Hearings Official to approve the Willamette Greenway Permit for Goodpasture Island PUD: Off‐site Transportation Improvements (WG 10‐3). Additional findings are provided in Section IV of this Final Order. The foregoing findings and conclusions are adopted as the Final Order of the Eugene Planning Commission for Goodpasture Island PUD: Off‐site Transportation Improvements (WG 10‐3), this 25th day of April, 2011. ______________________________ Heidi Beierle, Chair Eugene Planning Commission Final Order ‐‐ Goodpasture Island PUD Off‐Site Transportation Improvements (WG 10‐3) April 2011 PC AIS April 25, 2011 - Page 17 Page 11