Planning Commission

AGENDA EUGENE PLANNING COMMISSION Bascom‐Tykeson Room—Eugene Public Library Phone: 541‐682‐5481 100 W. 10th Avenue 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. Telecommu nications devices for deaf assistance are available at 541‐682‐5119. TUESDAY, OCTOBER 2, 2012 – 6:00 P.M. I. PUBLIC HEARING LUBA Remand: Goodpasture Island PUD: Off‐Site Transportation Improvements (City File WG 10‐3, LUBA No. 2011‐049) Public Hearing to consider testimony and evidence related to assignments of error sustained in LUBA’s Final Opinion and Order for Willamette Oaks LLC vs. City of Eugene and Goodpasture Partners LLC (LUBA No. 2011‐049). Willamette Greenway Permit application is for transportation improvements at the Goodpasture Island Road and Delta Highway interchange, including a new bridge. Lead City Staff: Steve Ochs, Associate Planner; 541‐682‐5453 steve.p.ochs@ci.eugene.or.us Public Hearing Format: The Planning Commission will receive a brief City staff report followed by an opportunity for public comment. Time limits on testimony may be imposed. The Planning Commission may seek a response to testimony from City staff. The applicant will be allowed a rebuttal period. At the end of the hearing, the Planning Commission Chair will announce whether the record is closed, the record will be held open, or the public hearing will be continued. Commissioners: Steven Baker; Jonathan Belcher; Rick Duncan; Randy Hledik, Chair; John Jaworski; Jeffery Mills; William Randall (Vice Chair)  AGENDA ITEM SUMMARY October 2, 2012 To: Eugene Planning Commission From: Steve, Ochs, Associate Planner Gabe Flock, Senior Planner Emily Jerome, Deputy City Attorney Subject: LUBA Remand: Goodpasture Island PUD: Off-Site Transportation Improvements (City File WG 10-3, LUBA No. 2011-049) ACTION REQUESTED To hold a public hearing on the remand from the Oregon Land Use Board of Appeals (LUBA) on this application (WG 10-3) and begin deliberations to resolve the assignments of error that were sustained by LUBA and remanded to the Planning Commission for this action. 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 means of mitigation for the development’s impact to the transportation system, the applicant proposed to construct off-site transportation improvements at the Goodpasture Island Road/Delta Highway interchange. Those proposed improvements were accepted by the City and made a condition of approval. The applicant is now requesting approval to construct these transportation facility capacity improvements to satisfy the conditions of the previous land use application approvals. 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. These 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. Their location with respect to the river and its setback (both located within the Greenway) is a key issue on remand. The Eugene Hearings Official held a public hearing for the subject application on December 15, 2010. The Hearings Official issued a decision conditionally approving the request on February 24, 2011. On March 9, 2011, Willamette Oaks appealed the hearings official’s decision to the Planning Commission, asserting twelve assignments of error. After a public hearing and deliberations, on April 25th, 2011 the Planning Commission issued an order affirming the hearings official’s decision, with some additional findings. Willamette Oaks then appealed the Planning Commission’s order to the Oregon Land Use Board of Appeals (LUBA), asserting six assignments of error. After considering the parties’ briefs and oral arguments, LUBA issued an order that affirms parts of the Planning Commission’s decision, but remands the matter back to 1 PC Agenda - Page 1 the Planning Commission for additional findings on two basic issues, discussed below. As LUBA’s was a mixed decision, both Willamette Oaks and Goodpasture appealed LUBA’s decision to the Court of Appeals. On May 16, 2012, the Court of Appeals affirmed LUBA’s decision without issuing an opinion. REMAND ISSUES Given the nature of LUBA’s remand, the record has been re-opened in order to consider additional evidence specific to the issues on remand. The Planning Commission’s role is limited to addressing those issues LUBA remanded. Decisions already made by the Planning Commission and not appealed in the first LUBA appeal, or appealed and affirmed by LUBA, are not subject to a second appeal. Thus, the Planning Commission’s role can be divided into two general tasks which are outlined below. Task1 - Adoption of findings that consider the State’s definitions of “Willamette River” and “channel” at ORS 390.310. These findings will either: (a) better explain the Hearings Official’s and Planning Commission’s earlier determination that the Delta Ponds/Debrick Slough area is not part of the Willamette River; or (b) change the Planning Commission’s earlier determination by now determining that the Delta Ponds/Debrick Slough area is part of the River and making different findings and determinations under EC 9.8815(1), (2) and (4) and Metro Plan Policy D-11.1 Staff recommends that the Planning Commission adopt supplemental findings to their original decision that support the Hearings Official’s and Planning Commission’s earlier determination that the Delta Ponds/Debrick Slough area is not part of the Willamette River, as explained in option (a) above. LUBA’s decision found that the City’s conclusion findings were inadequate; not that the City’s conclusion was incorrect. The City’s decision, that the phrase “the Willamette River” means only the main channel of the Willamette River, did not include consideration of the statutory definition that also refers to other channels as being part of the river. Below is a summary of the previous determinations made by the Hearings Official and Planning Commission, followed by LUBA’s remand on this issue. Also discussed below is the applicant’s response to LUBA’s remand, which includes an evaluation of the statutory definition with supporting water flow data and a field survey by AKS Engineering and Forestry, LLC. Based on the State’s definitions and the evidence provided by 1 EC 9.8815(1) provides: “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.” EC 9.8815(2) provides: “To the greatest possible degree, necessary and adequate public access will be provided along the Willamette River by appropriate legal means.” EC 9.8815(4) provides: “In areas subject to the Willakenzie Area Plan, the intensification, change of use, or development will conform with that plan’s use management considerations.” Metro Plan Policy D-11 provides: “[t]he taking of an exception shall be required if a non-water- dependent transportation facility requires placing fill within the Willamette River Greenway setback.” 2 PC Agenda - Page 2 the applicant, staff believes the Planning Commission’s earlier conclusion is correct and that the Commission can make additional findings to affirm its original conclusion and resolve this remand issue. The Hearings Official addressed the issue of the location of the “Willamette River” in relation to the site starting on page 3 of the “Decision of the Hearings Official: Goodpasture Island PUD: Off-site Transportation Improvements (WG 10-3)”. The Hearings Official relied on context in the transportation element of the Willakenzie Area Plan, (WAP) which describes bridges and “river crossings” and does not mention the Delta Highway overpass at this location as a “River Crossing”. The Hearings Official additionally noted that the WAP labeled only the main channel which runs west and south of the bridge as the “Willamette River” not the area near the bridge. The Planning Commission (pages 3 and 4 of the Final Order) agreed with the Hearings Official and note in the Final Order that the Hearings Official correctly interpreted that the term “the river” refers to only the current channel of the Willamette River not to a (possible) former channel of the river. LUBA’s decision (see LUBA’s Final Order, p. 12-14) found that the WAP transportation element relied on by the City is not “particularly persuasive context for ascertaining the meaning of the phrase ‘the Willamette River’ and ‘the river’ as used in the city’s ordinance implementing Goal 15.” LUBA’s decision found the City’s conclusion, that the phrase “the Willamette River” means only the main channel of the Willamette River, may not be consistent with the statutory definition as including other channels of the river and fails to consider whether the Delta Ponds/Debrick Slough is a “channel” of the river based on the statutory definition at ORS 390.310. LUBA’s decision noted that because the City’s Willamette Greenway criteria implement Goal 15, the use of the word “river” in the implementing provisions should have the same meaning as the term is used in Goal 15. ORS 390.310, part of the Willamette Greenway statutes provides a definition of “Willamette River”. Definitions for ORS 390.310 to 390.368. As used in ORS 390.310 to 390.368, unless the context requires otherwise: “(3) ‘Willamette River’ means that portion of the Willamette River, including all channels of the Willamette River, from its confluence with the Columbia River upstream to Dexter Dam and the Coast Fork of the Willamette River upstream the Cottage Grove Dam.” LUBA also notes that “Channel” is defined at ORS 390.310(1) as including “***any channel that flows water at ordinary low water mark”. They note that these definitions provide more relevant context than relied on by the City. LUBA concludes this issue by noting the City should consider the statutory definitions in determining whether the Delta Ponds/Debrick Slough is part of the “Willamette River”. On September 11, 2012, in response to LUBA’s remand on this issue, the applicant provided 3 PC Agenda - Page 3 additional information regarding “whether the Delta Ponds/Debrick Slough is part of the Willamette River as defined in ORS 390.310.” The applicant provided a letter from AKS Engineering and Forestry, LLC (AKS) along with photographs noting (and depicting) that as of August 21, 2012, there is no water flowing from the Willamette River to Delta/Ponds Debrick Slough (see page 4 of the applicant’s Findings of Fact and Exhibits 1-3). A field survey was also provided by AKS, which shows that the closest observed connection point was surveyed at an elevation 1.47 feet higher than the ordinary low water line of the Willamette River. Based on this information, the applicant notes that the Delta Ponds/Debrick Slough is not connected to the “Willamette River” at ordinary low water and therefore is not “channel” as defined in ORS 390.310. The applicant provides additional information regarding the historic use of the Delta Ponds/Debrick Slough (page 6 of the applicant’s Findings of Fact and Exhibit 4), including: 1) how the area was a gravel mine that was used in part to construct the Delta Highway and Beltline Road; 2) information regarding the ownership of the Delta Ponds and how the ownership is not consistent with the ownership of rivers, as the state typically holds title to all river beds, whereas the City owns the ponds; and 3) information from the City’s Delta Ponds Plan that notes the City reestablished a hydrologic connection between the Willamette River and the Delta Ponds during Winter high water, but does not connect at ordinary low water. In response to LUBA’s remand on this issue, staff recommends that the Planning Commission adopt additional findings that consider the State’s definitions of “Willamette River” and “channel” at ORS 390.310. These findings would rely on the information and findings provided by the applicant and would conclude that, as the Delta Ponds/Debrick Slough do not flow water at ordinary low water, they are not a “Channel” as defined at ORS 390.310(1) and, therefore, are not included in the statutory definition of “Willamette River” at ORS 390.310. The additional findings could also rely on the evidence provided by the applicant regarding the history of the area as further evidence that the Delta Ponds are not part of the “Willamette River”. If the Planning Commission affirms its original conclusion (with additional findings) that the Delta Ponds/Debrick Slough are not a part of “the river,” no additional findings will be required under EC 9.8815(1), (2) and (4) and Metro Plan Policy D-11, as the original findings in relation to these criteria were based on the conclusion that “the river” did not include the Delta Ponds/Debrick Slough area. Task 2 - Adoption of supplemental findings that either: (a) better explain the Hearings Official and Planning Commission’s determination that transportation improvements to the un-zoned Delta Highway right-of-way are not subject to the Metro Plan description of the Parks and Open Space land use designation (Metro Plan II-G-9), Metro Plan policy H-1, plan provisions related to parks and open space; and, a Willakenzie Area Plan (WAP) goal that references the protection and enhancement of land designated park and open 4 PC Agenda - Page 4  space in the Metro Plan. (WAP, p.6.); or, (b) change the Planning Commission’s decision by now determining that those parks and open space plan provisions do apply and by making findings addressing them. Staff recommends the Planning Commission adopt supplemental findings that explain the Hearings Official’s and Planning Commission’s previous determination, as explained in option (a) above. LUBA stated that they did not understand the City’s determination, as cited below. We do not understand why the city determined that the proposal does not need to be consistent with the Metro Plan open space policies or the WAP’s open space policies, or what the city thought was the significance, if any, of the fact that the property is unzoned. The fact that the right-of-way is unzoned does not necessarily mean that Metro Plan and WAP policies applicable to the proposed development of land designated Open Space and Parks do not apply. There may be other reasons why the Metro Plan and WAP goals and policies cited by Willamette Oaks either do not apply to the proposed development or do not apply in the way that Willamette Oaks suggests, but neither the decision nor the response briefs cite any such reasons. Accordingly, remand is necessary for the city to consider whether any Metro Plan and WAP goals and policies apply to the proposed development, and if so, whether the development is consistent with such goals and policies. [LUBA Final Order pp. 24-25, emphasis added in bold] LUBA’s decision found that there is insufficient information in the record to explain why the Hearings Official and Planning Commission determined that the Metro Plan and WAP policies on open space are not applicable to the subject Willamette Greenway Permit. Staff believes that the Hearings Official and Planning Commission were correct in their determination, but that supplemental findings are necessary to resolve this matter on remand. Based on the Willamette Greenway permit requirements, staff also believes that the Planning Commission can sufficiently explain why the policies cited by Willamette Oaks are not applicable. One reason for inapplicability is not the un-zoned status of the right-of-way, but that the Metro Plan and Willamette Greenway Permit approval criteria in the City’s code are intentionally designed to limit the scope of which plan provisions (both Metro Plan and WAP) are to be considered. The approval criteria that invoke plan provisions read as follows, with emphasis added: EC 9.8815(3): The intensification, change of use, or development will conform with applicable Willamette Greenway policies as set forth in the Metro Plan. EC 9.8815(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. The Willamette Greenway policies set forth in the Metro Plan referenced in the approval 5 PC Agenda - Page 5 criterion EC 9.8815(3), are listed in the Willamette River Greenway, River Corridors, and Waterways Element (pages III-D-4 and III-D-5, Metro Plan), an excerpt of which is included as Attachment A. The “use management considerations” in the Willamette Greenway are listed on pages 155 and 156 of the WAP and provided in Attachment B. It is important to note that the Willamette Greenway approval criteria do not point to other policies or require compliance with the Metro Plan diagram. The language included within the Willamette Greenway Permit approval criteria cited above specifically limit the range of policies to be considered. This language is distinct from approval criteria for various other application types which clearly invoke a broader set of plan provisions including the land use diagram and other provisions. For example, the zone change approval criteria (with emphasis added) illustrate this point: EC 9.8865(1): The proposed zone change is consistent with applicable provisions of the Metro Plan. The written text of the plan shall take precedence over the Metro Plan diagram where apparent conflicts or inconsistencies exist. EC 9.8865(2): The zone change is consistent with applicable adopted refinement plans. In the event of inconsistencies between these plans and the Metro Plan, the Metro Plan shall prevail. Necessarily, the zone change approval criteria require a broader analysis of not only the designations established on the Metro Plan diagram, but other potentially applicable “provisions”. As other zone change case history before the Hearings Official, Planning Commission, and LUBA instructs, these “provisions” in some cases may also include adopted policies, and sometimes other less specific goals and findings which are relevant and must be considered in the City’s decision, depending on the context and relevant facts in a given application. Similarly, the zone change approval criteria also require consistency with “applicable adopted refinement plans” which is even less specific as to which plan provisions may apply in a given case. Unlike zone changes, the approval criteria for Willamette Greenway Permits invoke a much narrower scope of review, specific to only the Metro Plan “Willamette Greenway policies” and the WAP “use management considerations” for the Willamette Greenway, as cited above. To help illustrate this point, staff further notes that other application types, such as site reviews at EC 9.8445(6), only require compliance with applicable adopted plan policies which are codified at EC 9.9500. Thus, while in some cases it may be necessary to review the text and context of a given plan provision to determine the extent of its relevance or applicability as part of the approval criteria, the City’s code provides initial direction which must first be considered to determine if the plan provision applies at all. With the City’s code language as the starting point, it is clear in this case that the policies and goals raised by the opponents are not applicable under the approval criteria for Willamette Greenway permits at EC 9.8815. It is the express language of the approval criteria in relation to the Metro Plan and WAP which, in part, resolves this matter, 6 PC Agenda - Page 6 rather than the fact that the existing right-of-way is un-zoned, as relied upon in prior decisions. Staff therefore recommends that the Planning Commission adopt findings to this effect, in order to resolve the issue on remand. Even so, as this issue relates to the requirements of ORS 197.175(2)(d) in the context of LUBA’s decision (see LUBA Final Order at footnote 15, p.24), it can be found based on the record materials and the applicant’s additional findings provided on remand, that the opponents have not demonstrated any inconsistency with provisions of the Metro Plan or WAP that are outside the intentionally narrow scope of the Willamette Greenway Permit approval criteria in the City’s code. Therefore, staff recommends that the Planning Commission also adopt the applicant’s findings regarding this issue on pages 9-22 of the Applicant’s Findings of Fact. These findings follow the analytical steps LUBA has established for local government to apply in determining whether a local comprehensive plan provision is an independent mandatory approval criterion applicable to an individual land use application. The applicant steps through the policy language in each instance and correctly concludes that these policies are either inapplicable, or otherwise satisfied, in the context of this quasi-judicial land use application process. The applicant’s findings conclude that Policy H-1, additional “Parks and Recreation Facilities Element policies” and WAP goals are in some cases aspirational, or in some cases planning directives to the City, but cannot be used as independent approval criteria to the application. The applicant provides findings to show that even if the policies are applicable to this application as Willamette Oaks asserts, the proposal is consistent with the policies. STAFF RECOMMENDATION Based on the available evidence to date, and consistent with the preceding findings including specific clarifications in response to the LUBA issues remanded, staff recommends that the Planning Commission, after future deliberation, take action to adopt supplemental findings as summarized below in the form of a revised final order. In regards to “Task 1”, the “Willamette River” issue described above, these findings would consider the State’s definitions of “Willamette River” and “channel” at ORS 390.310 and rely on evidence provided by the applicant regarding flow at “ordinary low water” as well as the history of the area to support the Planning Commission’s original conclusion that the Delta/Ponds Debrick Slough are not a “channel” of the Willamette River. In regards to “Task 2”, the “Parks and Open Space” issue described above, staff recommends the adoption of supplemental findings that explain the Hearings Official and Planning Commission’s determination that transportation improvements are not subject to the Metro Plan and WAP provisions regarding parks and open space, not because they are un-zoned but rather, because the Metro Plan and the Willamette Greenway Permit approval criteria do not subject this application to compliance to those provisions; and, even if they are found to be applicable, they are satisfied. Staff further recommends the Planning Commission adopt the applicant’s findings which analyze these policies, describe how they are not applicable to the proposal and find that even if they are applicable they are met by this application. 7 PC Agenda - Page 7 With these additional findings, staff recommends that the Planning Commission affirm the original decision of the Planning Commission on remand from LUBA for Goodpasture Island PUD: Off-Site Transportation Improvements (WG 10-3). ATTACHMENTS A. LUBA Final Opinion and Order B. Planning Commission Final Order C. Hearings Official Decision D. Metro Plan Policies Excerpt E. Applicable Willakenzie Area Plan Policies The record is available for review at the Eugene Planning Division offices. The record will also be made available for review at the Planning Commission meeting. 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 8 PC Agenda - Page 8 PC Agenda - Page 9 PC Agenda - Page 10 PC Agenda - Page 11 PC Agenda - Page 12 PC Agenda - Page 13 PC Agenda - Page 14 PC Agenda - Page 15 PC Agenda - Page 16 PC Agenda - Page 17 PC Agenda - Page 18 PC Agenda - Page 19 PC Agenda - Page 20 PC Agenda - Page 21 PC Agenda - Page 22 PC Agenda - Page 23 PC Agenda - Page 24 PC Agenda - Page 25 PC Agenda - Page 26 PC Agenda - Page 27 PC Agenda - Page 28 PC Agenda - Page 29 PC Agenda - Page 30 PC Agenda - Page 31 PC Agenda - Page 32 PC Agenda - Page 33 PC Agenda - Page 34 PC Agenda - Page 35 PC Agenda - Page 36 PC Agenda - Page 37 PC Agenda - Page 38 PC Agenda - Page 39 PC Agenda - Page 40 PC Agenda - Page 41 PC Agenda - Page 42 PC Agenda - Page 43 PC Agenda - Page 44 PC Agenda - Page 45  DECISION OF THE HEARING OFFICIAL FOR THE CITY OF EUGENE OREGON WILLAMETTE GREENWAY PERMIT Application File Name Number Site Transportation Improvements WG 10 Goodpasture Island PUD Off 3 s Request Applicant Approval of Willamette Greenway Permit application for transportation improvements including a new bridge Located at the Goodpasture Island Delta Road Highway intersection Subject Property Zoning Location Goodpasture Island Road and Delta Highway Interchange The area of request is public of and is not zoned way right RelevanfDates Application submitted on August 24 2010 supplemental information submitted October 29 2010 application deemed complete on October 29 2010 public hearing held on December 15 2010 Applicant s Representative Don Sowieja Myhre Group Architects Inc 503 236 6000 Lead City Staff Steve Ochs Associate Planner Eugene Planning Division Phone 541 682 5453 J The hearing official held a hearing on this application and a hearing on an appeal of another application by the same applicants No PDF 10 3 ST 10 4 on the same date This 5 MDA 10 decision is for the Willamette River Greenway Permit request only The hearing official prepared a separate decision for the other application Summary of the Public Hearing The hearing official held a public hearing on this application on December 15 2010 The hearing official stated he had no conflicts of interests and no ex parte communications No person objected to the hearing official conducting the hearing Steve Ochs Associate Planner Gabe Flock Senior Planner and Gary McNeel Senior Transportation Analyst were present and spoke for the city The city recommended the application complied with the approval criteria for a Willamette Greenway approval Hearing Official Decision WG 10 3 PC Agenda - Page 46 Donald Sowieja Myhre Group Architects Mike Shippey Coyote Creek Ecological Services Brian Genovese JRH Transportation Engineering Justin Gerlitz ZCF Engineering and Troy Lyver ZCF Engineering presented the application for the applicant Mr Sowieja stated that the applicant concurred with the staff report and recommended conditions of approval Zack Mittge Hutchison Cox Coons DuPriest Orr Sherlock PC presented testimony and evidence in opposition to the application for Willamette Oaks LLC Gunnar Schlieder GeoScience Inc also presented evidence for Willamette Oaks LLC Donald Sowieja Justin Gerlitz Brian Genovese and Michael Robinson Perkins Coie representing the applicant presented rebuttal testimony The applicant and Mr Mittge requested to hold the record open to allow time for submission of additional evidence The hearing official established the following deadlines December 29 2011 for submission of new evidence January 5 2011 for submission of rebuttal and January 12 2011 for the applicants final legal argument There were no objections to any of the materials submitted during this record open period the hearing official accepts all of the materials the parties submitted during this record open period Following the open record period the applicant moved to reopen to record to submit additional evidence The hearing official granted the motion and allowed rebuttal The applicant waived final legal argument for this reopened record period Documents Considered by the Hearing Official The hearing official received and reviewed voluminous application materials with multiple large maps and appendices referral comments the staff recommendation comments format to the hearing official including lengthy submissions from Willamette Oaks and documents submitted at the hearing and during the two open record periods Typically the hearing official lists each document in the decision however the vast number of documents makes such a list impractical here City staff has preserved the originals of each document in the city files Site Characteristics and Present Request In June of 2010 the applicant received tentative PUD and Zone Change approval to construct a unit family 583 multi development on a development site located at Goodpasture Island Road and Alexander Loop see PDT 09 6 As part of that application the 4 and Z 09 1 TIA 09 applicant proposed off site transportation facility capacity improvements at the Goodpasture Island Delta Road Highway interchange The hearing official and Planning Commission imposed conditions of approval requiring the proposed improvements The applicant is now requesting approval to construct the improvements The improvements include a new bridge associated with the widening of Goodpasture Island Road and the widening of interchange approaches The proposed transportation improvements are located completely within the Willamette Hearing Official Decision WG 10 3 2 PC Agenda - Page 47 Greenway boundary and completely within existing Delta Highway right of The area of the way transportation improvements is adjacent to Goal 5 protected Delta Ponds wetlands to the east and Goodpasture wetlands to the west The Goodpasture wetlands to the west and Delta Ponds wetlands to the southeast are both Goal 5 Category A wetlands both of which require a conservation setback of 50 feet from the resource boundary The Delta Ponds wetlands to the northeast are Category B wetlands which require a conservation setback of 25 feet The application materials contain additional details about the proposal Evaluation of Willamette River Greenway Permit Criteria The criteria for development within the Willamette Greenway are found in EC 8 9 815 The approval criteria are shown below in bold typeface with findings and conclusions related to each based on the record before the hearing official EC 8 1 9 815 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 The staff report notes the new bridge structure including the additional would lanes be located on the northeast side of the existing bridge structure At its closest point the existing channel of the Willamette River is approximately 2 3 00 feet 0 6 miles to the southwest of the project site The area between the project area and the river is extensively developed with a variety of uses including family multi developments subdivisions and commercial development The improvements will be located on the side of the existing bridge away from the river thus the area between the new bridge and the river will remain unchanged Willamette Oaks argues that the transportation improvements would be entirely within the channel of the former mainstem of the Willamette River and in an area designated in the City s acknowledged comprehensive plan As such Willamette Oaks argues the very nature of constructing transportation improvements cannot provide maximum possible landscaped area open space or vegetation between the activity and the river Letter from Zack Mittge Dec 15 2010 The hearing official notes that the Eugene Code does not define the Willamette River so determining whether the term the river in this provision requires interpretation Context indicates that the term the river refers to only the current channel of the Willamette River Context is found in the Willakenzie Area Plan WAP which contains a transportation element This element describes river crossings WAP pp 80 81 Within this description is a listing of vehicular bridges the Ferry Street Bridge the Washington Jefferson Bridge and Beltline Bridge which cross the Willamette River within the planning area WAP at 80 As well the WAP lists four bicycle bridges crossing the Willamette in the plan area Each of these bridges crosses only the current channel of the river This element does not mention the Delta Highway overpasses as a river crossing In fact the base map used within the transportation element contains a Willamette River label which appears only within the current channel not the former channel where the Delta Highway is located See e g WAP at Hearing Official Decision WG 10 3 PC Agenda - Page 48 82 84 and 86 Additionally city staff stated that the city has previously applied the Willamette Greenway requirements to the current channel of the river not to former channels Staff noted that the code does not use the term former in the Willamette Greenway requirements Memo from Steve Ochs Dec 29 2010 Based on all of this context the hearing official concludes that the term the river as used in this criterion refers to the mainstem of the Willamette River not to former channels Additionally the hearing official notes that this criterion evaluates the landscaped area open space and vegetation between the activity and the river Willamette Oaks argument that the activity the bridge and additional lanes could not be permitted under this provision because it would occur within the river itself is not responsive to the provision The provision does not ask whether the activity itself would provide maximum landscaped area open space or vegetation rather the measuring area is the land between the activity and the river not the activity itself The staff report accurately states that there would be no change to the landscaped area open space or vegetation between the activity and the river As shown on the applicant 2 six trees are to be removed on s tree protection plan sheet GP the north side of the existing bridge There are no trees being removed on the southwest side of the existing bridge between the activity and the river Four of the trees to be removed are in the median near the bridge while two are located near the Delta Pond fringe but outside of the Goal 5 conservation setback for the wetland To mitigate the removal of these six trees the applicant has provided a planting plan that proposes the planting of 20 replacement trees and replanting of areas that may be disturbed through the construction process see Sheets L20 1 and L2 L2 2 Based on the available information EC 8 9 1 815 is satisfied EC 8 2 9 815 To the greatest possible degree necessary and adequate public access will be provided to and along the river by appropriate legal means As noted above the proposed transportation improvements are located over half a mile northeast of the Willamette River The proposed transportation facilities changes include 1 Improvement of the southbound ramp off by changing the lane use of existing lanes 2 Widening Goodpasture Island Road Bridge by adding a bridge structure on the north side of the existing bridge so the existing bridge will accommodate eastbound travel and the new bridge westbound travel 3 Widening Goodpasture Island Road east of the existing bridge to accommodate four traffic lanes 4 Widening the northbound Delta Highway ramp on to two lanes 5 Tapering Goodpasture Island Road to the existing width at both ends of the improvements 6 Installing traffic signal modifications to accommodate the roadway changes Hearing Official Decision WG 10 3 4 PC Agenda - Page 49 The bridge improvements will provide additional turn lanes and accommodate automobile travel in a more efficient manner which provides drivers adequate access traveling to the river The existing bridge has one f 5 3 oot bicycle lane eastbound and a f 5 oot shared bike path The proposed improvements will result in f5 pedestrian oot bicycle lanes traveling each direction Additionally a separate f 8 oot wide sidewalk will be provided on the new bridge see Exhibit 2 These additional improvements will provide safer and more convenient public access for pedestrians traveling to and from the river to the south and west These improvements are all confined to the Delta Highway of way a long distance from right the river and will not impact existing access to the river on the intervening properties Existing development and public ways connect to the East Bank Trail which provides public access to the Willamette River The applicant s written statement further indicates that the proposed improvements will not hinder planned future paths within the Delta Pond area see page 2 of Section 01 of the s written statement applicant Willamette Oaks argues that the proposal must provide public access along the river The basis of this argument is the same as for its argument that the proposal does not comply with EC 1 9 8 t hat 815 the development would be within the Willamette River The hearing official responded to that point above concluding that the term the river refers to the current channel not to the former mainstem the proposed transportation improvements are not occurring within or adjacent to the river The proposed transportation improvements are more than a half mile from the riverthis provision does not require the applicant to provide access along the river as part of this application Because the improvements enhance vehicular bicycle and pedestrian connections to the street bicycle and sidewalk network that access the river the proposal provides necessary and adequate public access to the river to the greatest degree possible EC 8 2 9 815 is satisfied EC 8 3 9 815 The intensification change of use or development will conform with applicable Willamette Greenway policies as set forth in the Metro Plan D and 5 of the Metro Plan contain the Willamette Greenway policies Of these Pages III 4 several policies apply specifically to local government agency services The following Metro Plan policies are potentially relevant to the proposal 5 New development that locates along river corridors and waterways shall be Policy D limited to uses that are compatible with the natural scenic and environmental qualities of those water features This development is located near the Delta Ponds and Goodpasture Pond As noted elsewhere the proposed transportation improvements are completely within existing of way and right located over a half mile from the Willamette River As part of the tentative PUD decision for Hearing Official Decision WG 10 3 PC Agenda - Page 50 Goodpasture Island PUD PDT 09 1 the hearing official found in part The text of this policy specifically the words shall be limited to uses indicates that it applies when developing lists of allowable uses in zoning ordinances This policy could also apply to a site specific application such as this application where the zoning code allows on a caseby basis for limiting the range of uses allowed Additionally this policy implements a number of Metro Plan findings For example finding 12 states that residential and commercial development along the Willamette River Greenway provides greater opportunity for public access and enjoyment than industrial use Implicit in finding 12 is that residential development is compatible with the natural scenic and environmental qualities of water features consistent with this policy Here the use within the way right for transportation purposes and facilities has long been of established Because the way of is being used for the purposes of transportation and the right proposal does not change the use or limit the range of allowed uses this policy does not prohibit the continued use of the way right for transportation purposes Right of of is not way zoned and specifically intended for transportation facilities such as proposed To the extent this policy applies to the new bridge and transportation improvements at the interchange the applicant has provided additional findings that show how the use is compatible with the natural scenic and environmental qualities of the nearby ponds These findings are found on page 1 of Section 02 of the applicant s written statement and are incorporated herein by reference Additionally compliance with the intent of this policy is further assured through codified protection of Goal 5 resources by the current WR overlay designation and need to comply with EC 4 9 900 et seq This section states that the purpose of the WR overlay is to provide conservation of significant riparian areas wetlands and other related water wildlife habitat areas included on the city s Goal 5 inventory and the water quality within these resource areas Consistent with this policy the WR overlay limits uses in the resource areas and setbacks As noted below at EC 8 7 9 815 the proposed transportation improvements are occurring entirely outside of the adjacent WR conservation areas and setbacks Willamette Oaks argues that the road widening and bridge construction are not compatible with the natural scenic and environmental qualities of the water features within the river corridor The basis for this argument appears to be Willamette Oak s argument that the proposed development would encroach into the conservation setback This decision addresses that argument below in response to EC 4 9 900 Water Resource WR standards concluding that the proposed transportation improvements are not within the conservation setback Policy 1 D 1 The taking of an exception shall be required if a dependent non water transportation facility requires placing offill within the Willamette River Greenway setback The Willamette River Greenway setback is a line separately established within the Willamette Greenway Boundary see Goal 1S OAR 0005 3 to keep structures separated 660 C K 0150 Hearing Official Decision WG 10 3 6 PC Agenda - Page 51 r from the river While the development site is clearly within the boundary of the Willamette River Greenway the subject site is also within the adopted City refinement plan the Willakenzie Area Plan WAP The WAP includes use management standards which establish a Willamette River Greenway setback line at feet 35 back from the top of the riverbank Land Use Management Standard 1 page 155 These land use standards were specifically established in the WAP to implement Goal 15 As noted elsewhere in this report the proposed transportation improvements are occurring more than one mile 0 half 6 mile from the Willamette River As such no fill is proposed 35 Willamette Greenway setback line The applicant provides additional within the foot findings regarding compliance with this policy on Page 2 of Section 2 Metro Plan of the s written statement These findings are incorporated herein by reference applicant Willamette Oaks argues that the proposed development is occurring within the Greenway boundary as shown in the Metro Plan noting The Greenway boundary is the only greenway setback depicted in the Metro Plan Letter from Zack Mittge at 10 Dec 15 2010 Willamette Oaks does not cite to a specific map or provision of the Metro Plan however the Metro Plan diagram does show a Greenway boundary The hearing official is unsure if this is what Willamette Oaks is referring to Nevertheless in the staff report city staff explained that the Willamette River Greenway setback is distinct from the Willamette River Greenway boundary The setback is a subset of the entire Willamette Greenway Boundary Willamette Oaks incorrectly believes the term setback as used in Policy 1D 1 refers to the boundary depicted in the Metro Plan but Policy 1 D 1 is not limited to only depictions of the Willamette Greenway found in the Metro Plan It refers to a setback that other authorities establish Willamette Oaks also argues that even if the setback is 35 feet from the top of the riverbank the proposed transportation improvements fall within that boundary because the improvements are located within the actual river As discussed above in response to EC 2 9 8 815 and below in response to EC 4 9 900 the term river refers only to the current channel to the former mainstem channel not The remaining Willamette Greenway policies on pages II D and D 4 5 either provide broad II policy direction to the City or are not applicable to this specific application Based on the available information the proposal is consistent with the applicable Willamette Greenway policies set out in the Metro Plan EC 8 3 9 815 is satisfied Because the proposed transportation improvements are not occurring within the Willamette Greenway setback an exception to Goal 15 is not required for the proposed facility EC 8 4 9 815 In areas subject to the Willakenzie Area Plan the intensification change of use or development will conform with that plan s use management considerations The area of the request is within the boundaries of Willakenzie the Plan an adopted refinement plan that imposes use management requirements consistent with Statewide Goal 15 see WAP Hearing Official Decision WG 10 3 7 PC Agenda - Page 52 156 The following use management standards shown in italics apply to development 154 within the Willamette Greenway in the Willakenzie Plan area 1 Provisions that all new structures expansion of existing structures drives parking area or storage areas shall not be permitted within the first 35 feet from the top of the riverbank unless the location of the floodway boundary requires a greater separation There are three exceptions to this standard a Structures designed solely recreation for use e g a deck or steps leading to the river and driveways for boat landings and related water or water dependent uses are permitted within the 35 foot setback b Public improvements including pedestrian and bicycle trails public plazas and similar amenities but excluding roads and parking areas are exempt from the setback requirements specified above C Structures existing as of the date of adoption of this plan shall be allowed to rebuild at the some distance from the river that they were before destruction by fire flood or other disaster This standard does not apply to the subject application the subject site is located is over h a alf mile 0 6 miles from the top of the river at its nearest point see Attachment A and the proposal does not include improvements within the vicinity of the foot 35 setback 2 Provision for public pedestrian and bicycle access along the river This standard does not apply because the proposed development is located more than half one mile from the river at its closest point and intervening properties are fully developed Access along the river is already available via the existing riverbank bike path and connecting sidewalks within the existing street system Again Willamette Oaks argues that the development would be within the river and thus the applicant must provide bicycle access along the river Letter from Zack Mittge at 12 Dec 15 2010 The hearing official again concludes that the development would not be within the river as discussed in the findings and conclusions in response to EC 4 9 900 below 3 Provision that the area within the 35 foot setback area may be included in any density calculation of a project This standard does not apply as previously noted the subject site is not located within the 35 foot setback 4 Continuous building facades and opaque fences or walls exceeding 75 feet in length shall be discouraged within the Greenway to allow for visual access to and from the river Staff stated that this standard does not apply because no buildings fences or walls are proposed Willamette Oaks however argued that the application includes walls in excess of 75 Hearing Official Decision WG 10 3 8 PC Agenda - Page 53 feet Letter from Zack Mittge at 12 Dec 15 2010 The hearing official agrees with Willamette Oaks that there would be walls in excess of 75 feet in length The applicant is constructing a retaining wall however this wall would be in the northeast portion of the project site facing only a wetland and would not constrain any visual access to and from the river Additionally the hearing official notes that this standard uses the term discourage There is no restriction against walls exceeding 75 feet in length The proposed development does not conflict with this standard 5 Activities or uses such as open storage of materials shall be discouraged within the greenway As noted by the applicant no activities or uses for open storage of materials are proposed Therefore this standard is not applicable 6 Except from small identity and directional signs business signs shall be oriented away from the river The proposal does not include any business signs This standard is not applicable 7 Significant fish and wildlife habitats as identified in the adopted Natural Resources Special Study or Metropolitan Plan Natural Assets and Constraints Working Paper shall be protected Sites subsequently determined to be significant by the Oregon Department of Fish and Wildlife shall also be protected The Metropolitan Natural Assets and Constraints Working Paper identifies the Willamette River Greenway in Figure J1 and shows the Willamette River as a fish spawning river The Metropolitan Plan Natural Assets and Constraints Working Paper does not identify any habitat sites on or near the development site The Delta Ponds adjacent to the right of to the east way and Goodpasture Ponds just to the west have been determined to be significant habitat by the Oregon Department of Fish and Wildlife and should be protected Protection of this significant habitat is provided through codified protection of Goal 5 resources by the current WR overlay designation and need to comply with EC 4 9 900 et seq This section states that the purpose of the WR overlay is to provide conservation of significant riparian areas wetlands and other related water wildlife habitat areas included on the City s Goal 5 inventory and the water quality within these resource areas Consistent with this policy the WR overlay limits uses in the resource areas and conservation setbacks The Goodpasture wetlands to the west and Delta Ponds wetlands to the southeast are both Goal 5 Category A Wetlands that require a conservation setback of 50 feet from the resource boundary The Delta Ponds wetlands to the northeast are Category B wetlands that require a conservation setback of 25 feet As noted below at EC 8 7 9 815 which is incorporated herein by reference the proposed transportation improvements are occurring outside of the adjacent WR conservation areas andsetbacks assuring their protection Hearing Official Decision WG 10 3 9 PC Agenda - Page 54 Willamette Oaks argues that the WR overlay protections would not protect the wetlands because the proposal does not comply with those provisions Letter from Zack Mittge at 13 Dec 15 2010 However as noted below the hearing official concludes that the proposal does comply with the WR requirements 8 The natural vegetative riparian fringe along the Willamette River as identified on the Willakenzie Area Plan Natural Resource Area Map shall be protected and enhanced to the maximum extent practicable As shown on the Willakenzie Area Plan Natural Resource Areas Map WAP 158 the riparian fringe located is well away from the project area along the edge of the Willamette River As such this standard is not applicable 9 Scenic qualities and viewpoints as identified in the Metro Plan Natural Assets and Constraints Working Paper shall be preserved Figure H2 Scenic Areas in the Metropolitan Plan Natural Assets and Constraints Working Paper does not identify scenic qualities or viewpoints on or near the development site EC 8 5 9 815 In areas not covered by subsection 4 of this section the intensification change of use or development shall conform with the following applicable standards The proposed improvements are covered by subsection 4 as they are located within the boundaries of the Willakenzie Area Plan area This criterion is not applicable EC 8 9 6 815 When site review approval is required the proposed development will be consistent with the applicable site review criteria The improvements are located completely within existing right way which is not zoned Site of Review approval is not required in this instance this criterion is not applicable EC 8 7 9 815 The proposal complies with all applicable standards explicitly addressed in the application An approved adjustment to a standard pursuant to provisions beginning at EC 8 9 015 of this land use code constitutes compliance with the standard The applicant addresses additional standards applicable to this application in Section 04 of the s written statement The applicable standards are addressed below The applicant applicant does not request any adjustment and none is required EC 4 9 900 Water Resource WR standards As noted above the applicant submitted a standards review application for work in the WR setback which was later withdrawn A standards review application is required for specific Hearing Official Decision WG 10 3 10 PC Agenda - Page 55 development to occur in Goal 5 conservation areas In this case it appears a standards review is not required as no development will take place within the adjacent WR conservation area The area of transportation improvements is adjacent to the Delta Ponds wetlands WKZ 6 WKZ to the east and Goodpasture Wetlands WKB 7 5 to the west The Goodpasture Wetlands to the west and Delta Ponds wetlands to the southeast are Category A wetland which require a conservation setback of feet 50 from the resource boundary The Delta Ponds wetlands to the northeast WKZ 6 are Category B wetlands which require a conservation setback of 25 feet These conservation setbacks are listed in EC 4 b 2 9 920 EC 4 b 2 9 920 states Conservation setbacks are measured horizontally from wetland boundaries established under the Goal 5 Locally Significant Wetland Sites Within the Eugene Urban Growth Boundary map or if provided by the property owner from the jurisdictional wetland boundary accepted by the Oregon Department of State Lands MCS Corp prepared a wetland delineation report Aug 2010 which the Oregon Department of State Lands DSL reviewed and concurred with letter from DSL Nov 8 2010 The applicant submitted the delineation report to the city as part of its application materials but did not submit DSL s concurrence Willamette Oaks submitted DSL s concurrence as part of its Dec 15 2010 testimony Willamette Oaks seems to make three distinct arguments relating to this criterion First Willamette Oaks argues that the application submittals show construction within conservation setbacks In its Dec 15 2010 letter to the hearing official Willamette Oaks argued that the applicant s own site plans show that the applicant would be placing a retaining wall structure and fill within a conservation setback Letter from Zack Mittge at 3 4 Dec 15 2010 In support of its argument Willamette Oaks cites three maps that the applicant submitted with its application GP 2 GP 4 and GP5 These maps show both the Goal 5 resource boundary and the 25 foot setback from that boundary and the wetland boundary as delineated Map GP 4 contains a note stating setback 25 from delineated wetland boundary This 25 foot setback is the minimum required by EC 4 b 2 9 929 Map GP 5 is a utility placement plan that does not show any wetland delineation or notes concerning where development would be in relation to the wetlands Map GP 2 contains a note stating area of intrusion into 25 setback 810 sf APPROXIMATELY This would appear to be inconsistent with the note on map GP 4 but map GP 2 does not state whether this intrusion is into the setback as measured from the Goal 5 resource boundary or the delineated wetland boundary The hearing official also observes that map GP 6 shows a Typical Road Section Ret Wall Near Wetland Boundary which contains a note stating setback from wetlands to new wall construction varies min 10 roadway GP does not state whether 0 But again map 6 this setback is measured from the Goal 5 resource boundary or the delineated wetland boundary All of the above evidence relates to the wetland northeast of the development site Willamette Oaks also pointed to map GP 3 and argued that the applicant has not demonstrated that construction on the west end of the proposed lane widening could be accomplished 3 does not show construction intrusions without impacting wetlands to the northwest Map GP Hearing Official Decision WG 10 3 11 PC Agenda - Page 56 into the conservation setback so there is no evidence supporting Willamette Oak s contention about this western wetland area Completing the review of the evidence related to this issue the hearing official considers the portion of the s written statement that responds to EC 4 applicant b 2 9 920 Written Statement by Myhre Group at 25 The applicant stated The wetland to the east as shown by the Adopted Goal 5 Resource Inventory Boundary is located such that the none of the proposed transportation improvements would impact the wetland or enter the wetland buffer The applicant then referred to map 5 and map GP 1 Map 5 only shows the wetlands it does not show the proposed development Map 1 GP shows the wetland delineation and a schematic plan but no details about the relationship between the proposed development and the wetland At the hearing on Dec 15 2010 Mr Sowieja the applicant stated The important note there the wetland location information came from the city s GIS information database and has been placed by our civil engineering team members relative to the existing improvements and so there s radial accuracy related to these locations relative to our improvements Based on that information and the setbacks established for the various classifications of natural resources that these fall under our improvements are outside of those setback areas Z Others in the applicant s team also provided testimony that all development would avoid the conservation setback Based on the evidence the hearing official believes the proposal does avoid the conservation setback as measured from the Goal 5 resource but as pointed out above the maps contain either conflicting or insufficiently detailed notes to make this clear The hearing official thus imposes a condition of approval requiring the applicant to clarify its final maps Prior to final approval the applicant shall clarify it maps showing the conservation setback including but not limited to the GP 6 series to show 1 and note that the foot 25 conservation setback is as measured from the Goal 5 resource and not the delineated wetland 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 Letter from Zack Mittge at 2 Dec 29 2010 The staff report contains information tending to show that the information is detailed enough The staff report stated Regarding the accuracy of the applicant s depiction of the wetland boundary staff notes that the maps adopted with the Goal 5 ordinance were based on the City GIS data The applicant used GIS data provided by the City to show the s 1 The applicant also referred to App G Standards Review Narrative Responses but the applicant withdrew the standards review portion of the application so the hearing official does not consider this referenced document 2 This quote was taken from the recording of the hearing at 00 29 20 Nearing Official Decision WG 10 3 12 PC Agenda - Page 57  resource boundary in determining where the setbacks are The representation is based on the identical GIS information contained in the adopted maps but the GIS data was not specifically adopted as part of the implementing ordinance A past appeal decision CI 07 3 addressed the location of Goal 5 boundaries noting that the GIS maps are accurate so long as the map is not at a smaller scale than the original data With respect to Goal 5 data the original GIS scale used is 1 inch to 500 feet While the applicant s site plans are reduced below the 1 to 500 feet scale staff has also included a map at the 1 to 500 scale see Attachment B Goal 5 Setbacks Map which confirm the accuracy of the s site plans No standards review is required for this development applicant because all development would occur outside the protected conservation areas Attachment B is entitled Goal 5 Setbacks Map 1 500 Scale and shows conservation setbacks in red and transportation improvements in yellow The colors do not touch so based on this map it appears the proposed development would avoid the conservation setbacks although the hearing official notes that the map states that it is based on imprecise source data and is for general reference only Third and last Willamette Oaks argued at the hearing that once the applicant conducts a wetland delineation and receives DSL concurrence it cannot step back and choose to use the s map Willamette Oaks did not argue this point in its Dec 15 or Dec 29 submittals but city seemed to make this argument in its Jan 5 2011 letter Letter from Zack Mittge at 4 Jan 5 2011 Conceptually Willamette Oaks argument makes that sense is when there is more specific and recent wetland information the applicant should use that information in place of but that is not what the Eugene Code says There is no restriction in the Eugene the city map Code requiring an applicant to use a wetland determination that it prepares EC 4b 2 9 920 states that the distances are measured from wetland boundaries as determined by the citys Goal 5 Locally Significant Wetland Sites Within the Eugene Urban Growth Boundary map or a jurisdictional wetland boundary accepted by the Oregon Department of State Lands The Planning Commission described the process for delineating a Goal 5 WR Site boundary in the Alder Woods PUD No PDT 07 5 2 Nov 3 2008 decision On page 7 of that SDR 08 decision the Planning Commission stated The Planning Commission finds that the correct process for delineating the Goal 5 WR Site boundary is to a Begin with a generalized delineation of the WR Site boundary based on the applicable map of Significant Goal 5 Riparian Corridors and Wildlife Habitat Site in Section III of the Goal 5 Water Resources Conservation Plan b If the delineation of the WR Site boundary under a is not precise enough to determine compliance with applicable criteria and standard or is otherwise Hearing Official Decision WG 10 3 13 PC Agenda - Page 58  4 unsatisfactory the next step is to arrive at a more precise depiction of the resource site boundary It is not clear to the hearing official whether this Alder Woods PUD decision is referring to the WR Water Resources Conservation Overlay Zone generally or to a specific subsection within the WR section of the Eugene Code Ultimately that is not important It refers to the WR section generally thus it is precedent for the hearing official to follow If it refers to a different subsection than EC 4b 2 9 920 then it provides contextor more specifically a process in an analogous situation that the hearing official should also follow Based on the text of EC b 2 9 4 920 and this prior Planning Commission decision the hearing official denies Willamette s legal argument that the hearing official must use the MCS wetland delineation report Oak EC 6 9 500 Public Improvement Standards EC 6 9 Improvements requires that all public improvements be designed and 505 Specifications constructed in accordance with adopted plans and policies the procedures specified in EC Chapter 7 and standards and specifications adopted pursuant to EC Chapter 7 The applicant addresses these standards on page 14 of Section 04 of the written statement showing conceptual compliance subject to more detailed review as part of the PEPI process In order to ensure compliance with EC 6 9 505 the following condition is warranted An Engineering and Construction agreement is required for the private construction of public improvements and must be submitted When the construction plans are submitted for review and approval The configuration and size of the public improvements shall further be subject to approval by the City Engineer upon review of the design and supporting analysis prepared by the applicant s engineer In regards to EC 6 1 9 and EC 6 505 Water Supply 2 9 505 Sewage as there is no new water or wastewater sewage on the subject site therefore these criteria are not applicable EC 6 3 9 505 Streets and Alleys requires all streets to be paved to the width specified in EC 6 9 870 and improved according to adopted standards and specifications pursuant to EC Chapter 7 The proposed improvements to Goodpasture Island Road a minor arterial meet the width specified in EC 6 9 870 Table 6 9 870 shows a paving width of 46 to 70 feet for a minor 4 feet arterial As shown on Exhibit 2 the proposed widening will result in a paving width of 55 As noted in the condition above compliance with Chapter 7 standards will be subject to further review and approval at the time of the PEPI Regarding EC 64 9 505 Sidewalks and 5 Bicycle Paths and Accessways all sidewalks and bicycle paths and accessways to improved according to adopted standards and specifications 7 standards for this pursuant to EC Chapter 7 As conditioned above compliance with Chapter portion of the public improvements will be subject to additional review through the PEPI process 14 Hearing Official Decision WG 10 3 PC Agenda - Page 59 Based on the above findings conditions and future permit requirements noted the proposal is consistent with applicable standards EC 6 9 706 Development in Flood Plains through EC 6 9 709 Special Flood Hazard Areas Standards These standards do not apply because the subject property is not located within any of these designations per the Federal Emergency Management Agency s FEMA Flood Insurance Rate Map FIRM 41039C1128F EC 6 9 710 Geological and Geotechnical Analysis As required at EC 6 5 9 710 the applicant submitted a Level 2 geotechnical analysis dated 6 2 3 prepared by K 010 A Engineering Inc which provided the required analysis of site characteristics surface sub investigation and recommendations for design and construction consistent with these standards The analysis recommended site stripping and compaction in preparation for the bridge foundation It then recommended either cast piles or micro piles as foundation structures 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 subsequent PEPI permit process At the hearing Gunnar Schlieder of GeoScience Inc presented testimony regarding the s geotechnical analysis on behalf of Willamette Oaks GeoScience followed this oral applicant presentation with a letter dated Dec 29 2010 K A Engineering the applicant s engineering firm responded to each point in a Jan 5 2011 letter explaining why it conducted the analysis in the manner it did and why it believes its interpretations of the data are correct s geotechnical analysis is complete As noted The hearing official is satisfied that the applicant above city staff concurred with the assessment GeoScience presents a professional difference A Engineering conducted the analysis alternative conclusions about in opinion about how K some of the data and stark disagreement with conclusions about the data The hearing official s methodology and interpretation of the is not in a position to decide that one professional geotechnical data is more correct or believable than the other Here KA Engineering has explained the basis of the methods and conclusions in response to the issues that GeoScience raised The hearing official concludes that the applicant s geotechnical analysis satisfies EC 9 6 710 EC 6 9 725 Outdoor Lighting Standards While the applicant addresses lighting standards in the written statement there is insufficient information provided to ensure compliance with this standard It is noted per EC 6 5 9 725 public streetlights constructed to Chapter 7 standards and specifications are exempted from Hearing Official Decision WG 10 3 15 PC Agenda - Page 60 the lighting standards If lighting other than public streetlights is proposed compliance with City of Eugene outdoor lighting standards will otherwise be required during the PEPI review process EC 6 9 780 Vision Clearance Area The proposed transportation improvements will provide vision clearance areas at corners and sightlines as required by ODOT and AASHTO Specific designs will be subject to further review or approval during the PEPI review process per the requirements of the Eugene Code This criterion is met EC 6 9 791 through EC 6 9 797 Stormwater Management In regards to EC 6 9 s proposal will have separate 791 Stormwater Destination the applicant destinations for runoff generated on the west and east side improvements The discharge will be into existing grassy areas located in the clover areas of the interchange under Lane County jurisdiction or through existing culvert outfalls to the east of the development Public Works staff confirms that the proposal conceptually meets destination requirements subject to s Facilities Permit processes further review through the PEPI and Lane County Regarding EC 6 9 s proposal includes 792 Stormwater Pollution Reduction the applicant stormwater treatment for all of the newly created impervious areas and drainage patterns will treatment curb follow existing conditions Methods of pre include inlet sumps traps and s StormFilter to fully treat the stormwater prior mechanical treatment systems such as Contech to its release into the adjacent wetland Specific designs demonstrating compliance will be provided during the PEPI review process per the requirements of the Eugene Code The standards of EC 6 9 793 through EC 6 9 796 do not apply to this application In regards to EC 6 9 797 Stormwater Operation and Maintenance the proposed stormwater improvements will be publicly maintained An Operations and Maintenance agreement as required by EC 6 d 3 9 797 shall be required as part of the PEPI process To ensure compliance the following condition of approval is warranted s proposed An Operations and Maintenance Agreement for the applicant s Stormwater Management Manual is stormwater facilities per the City required during the PEPI permit process While the applicant includes other standards in the written statement many are not applicable or will be addressed in the future as part of subsequent permitting requirements To the extent s findings on pages 2 they might be considered applicable to this application the applicant 1 5 reference will be confirmed during subsequent PEPI permit are incorporated by Compliance review as conditioned Hearing Official Decision WG 10 3 16 PC Agenda - Page 61 Issues Raised by Willamette Oaks Not Related to Willamette River Greenway Permit Criteria EC 7 9 010 Signature of Property Owner Willamette Oaks argued that the application should be denied because the applicant improperly applied for a Greenway Permit for property that it does not own Specifically Willamette Oaks cites to EC 7 9 010 and ORS 227175 Letter from Zack Mittge Dec 15 2010 To start ORS 227175 does not require that a property owner sign a land use application That section only authorizes an owner of land to apply for a permit or zone change It does not require the signature of the property owner when another person desires to apply for a permit or zone change However EC 7 9 010 requires Applications shall be signed by the property owner unless the applicant is a public agency ih which case the signature of the property owner is not required This is a mandatory requirement for land use applications such as the current Greenway Permit request Here city staff stated that Lane County owns the Delta Park ROW in fee title and transferred jurisdictional authority over Goodpasture Island Road to the City of Eugene which has an easement for roadway purposes through and over Delta Highway to maintain and operate Goodpasture Island Road Memo from Steve Ochs Dec 29 2010 While helpful Willamette Oaks correctly stated in its rebuttal that this does not describe whether the city jurisdiction extends only to the existing bridge Letter from Zack Mittge Jan 5 2011 In response the applicant moved to reopen the record to submit authorizations from the City of Eugene and Lane County for the applicant to make the this application The applicant submitted a letter from Mark Schoening City Engineer which stated that Mr Schoening has 010 and authority to authorize the applicant to submit the application pursuant to EC 7 9 authorizes the applicant to make the subject application Similarly The applicant submitted a letter from Liane Richardson Acting County Administrator and Marsha Miller Director Public Works which stated that Ms Richardson and Ms Miller have authority to authorize the applicant to submit the application pursuant to EC 79010 and authorizes the applicant to make the subject application The applicant submitted a map from Lane County and a survey from Baker and Associates in support of these authorizations Not surprisingly Willamette Oaks argued that the authorizations are insufficient for several the record does not contain the trail of reasons all of which boil down to one point delegation from the City Council and County Board of Commissioners down to the persons who signed the authorizations Willamette Oaks cited various charter provisions and state statutes In rebuttal the applicant cited other charter provisions and state statutes In short the hearing level persons who signed the authorizations and official accepts the letters from these high asserted that they have authority to make such authorizations The hearing official does not believe the level of information that Willamette Oaks asserts is necessary in the record By comparison if a private party owned the subject land in fee title with no other interests the level of information that Willamette Oaks argues is needed would equate to a title report Hearing Official Decision WG 10 3 17 PC Agenda - Page 62 showing the current owner of the land 3 the signature of that owner and something perhaps a notary showing that the person who signed the application is actually the person whose name appears on the title report EC 7 9 010 simply does not require this level of information It requires a signature The applicant received the needed signatures from the city and county officials who assert they have authority to provide the signatures The application complies with EC 7 9 010 Even without the authorization letters at this time the hearing official would not have denied the application for failure to comply with EC 7 9 010 EC 7 9 000 et seq does not specify a remedy for failing to have the property owner s signature on the application Willamette Oaks 4 Or LUBA 32 1998 Johnston presents a very different cited Johnston v City of Albany 3 situation there the applicant proposed to use a portion of a parcel that was subject to an agreement giving the Klinefelters exclusive control and possession until a specific contingency occurred The Klinefelters did more than just not consent to the application they objected to the application Here there is nothing in the record showing any objection from the city or county The hearing official would not have concluded that the lack of consent to the application would be similarly fatal but would have imposed a condition of approval requiring consent by the City of Eugene and Lane County TransPlan Precludes the Proposed Transportation Facility Willamette Oaks argues that the proposed bridge and additional lanes do not appear within the s Transportation System Plan and thus conflict with the plan Letter from Zack Mittge City Dec 15 2010 City staff correctly responded to this argument by noting that the approved tentative PUD PDT 091 and zone change Z 09 6 approved by the Hearing Official and Planning Commission on appeal concluded that the proposed bridge and additional lanesare consistent with the Transportation System Plan The proposed bridge and additional lanes have not changed functionally there is no factual or legal basis to revisit this prior conclusion Designation of the Area as Parks and Open Space Willamette Oaks argues that the subject property where the bridge and additional lanes would be constructed is designated in the Metro Plan and Willakenzie Area Plan as open space and the proposed bridge and additional lanes are not allowed in this area Willamette Oaks also c requires open space zoning of all open space areas Letter from argues Goal 15 provision F 2 Zack Dec Mittge 15 2010 The Metro Plan diagram does show this area in dark green the plan notes that this diagram is a generalized map and graphic however the plan text states that it is drawn at a metropolitan scale necessitating supplementary planning on a local level and the land use designations shown the diagram provide direction for decisions pertaining to appropriate 3 Indeed in rebuttal the applicant provided a copy of the deeds that were noted on the Baker and Associates survey Hearing Official Decision WG 10 3 18 PC Agenda - Page 63 reuse redevelopment urbanization of vacant parcels and additional use of underdeveloped parcels Metro Plan 1 G G II 2 These statements indicate that it is necessary to look at the II refinement plan and zoning map to determine if the Delta Highway right way is subject to of Metro Plan open space policies If the refinement plan and zoning map apply to the Delta of then it would be appropriate to apply Metro Plan policies Highway right way The Willakenzie Area Plan WAP land use diagram see map following page 19 in the WAP shows the area of the proposed development in dark green corresponding to a Open Parks Space designation However Land Use Finding No 4 WAP p 10 states that the WAP study area excludes streets and alleys The plan text thus indicates that the Delta Highway right of way is not subject to the plan policies City staff stated that the land is not zoned open space rather it is not zoned Memo from Steve Ochs Dec 29 2010 Finally because the project area is already used as the Delta Highway and Goodpasture Island Road overpass Goal 15 does not require open space zoning for the project area Willamette Oaks argument that transportation improvements are prohibited within the existing Delta Highway of right has no basis in state law the Metro Plan or Eugene Code way Decision Based on the application information and materials other evidence described in this report and the findings and conclusions contained in this report Hearing Official APPROVES the Willamette Greenway Permit subject to the conditions of approval listed below The applicant is cautioned that the conditions of approval below differ from the conditions contained in the staff recommendation Prior to final approval the applicant shall clarify it maps showing the conservation setback including but not limited to the 1 GP series to show and note that the 25 6 foot conservation setback is as measured from the Goal 5 resource and not the delineated wetland 2 An Engineering and Construction agreement is required for the private construction of public improvements and must be submitted when the construction plans are submitted for review and approval The configuration and size of the public improvements shall further be subject to approval by the City Engineer upon review of the design and supporting analysis prepared by the s applicant engineer Hearing Official Decision WG 10 3 19 PC Agenda - Page 64  3 An Operations and Maintenance Agreement for the applicant s proposed stormwater facilities per the City s Stormwater Management Manual is required during the PEPI permit process Dated this day of February 2011 Mailed this 25 day of February 2011 JeAgy Litwak Hearings Official SEE NOTICE OF HEARING OFFICIAL DECISION FOR STATEMENT OF APPEAL RIGHTS Hearing Official Decision WG 10 3 20 PC Agenda - Page 65 PC Agenda - Page 66 PC Agenda - Page 67 PC Agenda - Page 68 PC Agenda - Page 69 PC Agenda - Page 70 PC Agenda - Page 71 PC Agenda - Page 72 PC Agenda - Page 73 PC Agenda - Page 74