Planning Commission

AGENDA Meeting Location: Harris Hall, Lane County Public Service Building Phone: 541‐682‐5481 125 East 8th Avenue www.eugene‐or.gov/pc Eugene, OR 97401 The Eugene Planning Commission welcomes your interest in this agenda item. Feel free to come and go as you please at the meeting. 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 Planning Department at 541‐682‐5675. TUESDAY, JULY 9, 2013 – 6:00 P.M. PUBLIC HEARING: APPEAL OF HEARINGS OFFICIAL DECISION: BENSON, AMBER (Z 13‐2) The Planning Commission will hold a public hearing on an appeal of a Hearings Official decision of a zone change from R‐1 Low Density Residential to R‐2 Medium Density Residential Lead City Staff: Zach Galloway, 541‐682‐5485 Zach.g.galloway@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. 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; John Barofsky; Jonathan Belcher; Rick Duncan; John Jaworski (Vice‐ Chair); Jeffery Mills; William Randall (Chair)  AGENDA ITEM SUMMARY July 9, 2013 To: Eugene Planning Commission From: Zach Galloway, AICP, Associate Planner, Eugene Planning Division Subject: Appeal of Hearings Official Decision – Benson Zone Change (Z 13-2) ACTION REQUESTED To hold a public hearing on an appeal of the Eugene Hearings Official’s decision to approve a Zone Change for the Benson property (Z 13‐2) located at 955 Coburg Road, and to take action to affirm, reverse, or modify the Hearings Official’s decision. BRIEFING STATEMENT Summary of application The application subject to this appeal is a proposed zone change for a 1 acre parcel (approximately) located at 955 Coburg Road immediately south of its intersection with Tandy Turn. The proposed zone change requests a change to the zoning map from R‐1 Low‐Density Residential to R‐2 Medium‐Density Residential. The applicant and property owner is Amber Benson, and she is represented by Anne Delaney, Bergsund Delaney Architecture & Planning, and Mike Reeder, Arnold Gallagher Percell Roberts & Potter, attorneys at law. The zone change request was submitted on January 18, 2013 and deemed complete on February 15, 2013. Planning staff reviewed the zone change application for compliance with the applicable approval criteria (EC 9.8865), which include the following: (1) The proposed change is consistent with applicable provisions of the Metro Plan. The written text of the Metro Plan shall take precedence over the Metro Plan diagram where apparent conflicts or inconsistencies exist. (2) The proposed zone change is consistent with applicable adopted refinement plans. In the event of inconsistencies between these plans and the Metro Plan, the Metro Plan controls. (3) The uses and density that will be allowed by the proposed zoning in the location of the proposed change can be served through the orderly extension of key urban facilities and services. (4) The proposed zone change is consistent with the applicable siting requirements set out for the specific zone in: 1 PC Agenda - Page 1  … (f) EC 9.2735 Residential Zone Siting Requirements. The application was also reviewed for compliance with the Oregon Transportation Rule, specifically the relevant sections of Goal 12 Transportation in the context of Oregon Administrative Rule 660‐ 012‐0060, which states: (9) Notwithstanding section (1) of this rule, a local government may find that an amendment to a zoning map does not significantly affect an existing or planned transportation facility if all of the following requirements are met. (a) The proposed zoning is consistent with the existing comprehensive plan map designation and the amendment does not change the plan map; (b) The local government has an acknowledged TSP and the proposed zoning is consistent with the TSP; and (c) The area subject to the amendment was not exempted from this rule at the time of an urban growth boundary amendment as permitted in OAR 660‐ 024‐220(1)(d), or the area was exempted from this rule but the local government has a subsequently acknowledged TSP amendment that accounted for urbanization of the area. After reviewing the criteria, including testimony from the applicant, the neighborhood and other parties, staff concurred with the applicant’s conclusion that the applicable plan diagrams (Metro Plan and Willakenzie Area Plan) supported a change in zoning to R‐2, Medium Density Residential. Planning staff ultimately recommended the Hearings Official approve the zone change and apply the site review overlay (/SR) as a means of advancing compatibility. Hearings Official Decision & Appeal The Eugene Hearings Official held a public hearing for the subject application on Wednesday, April 10, 2013. At the request of opponents and with a time extension granted by the applicant, the Hearings Official continued the public hearing and reconvened a second hearing on Wednesday, April 24, 2013. In accordance with ORS 197.763, the Hearings Official extended the open record period for 21 days – one week for additional testimony and evidence submittals, one week for rebuttal arguments, and the last week for the applicant to submit final argument. The open record period concluded on May 15, 2013. The Hearings Official reviewed the testimony and evidence, as well as staff’s recommendation and issued the decision to approve the zone change application on May 30, 2013. This decision did not support staff’s recommendation to apply the site review (/SR) overlay, finding that there was no legal basis for doing so. 2 PC Agenda - Page 2 On June 11, 2013, Jennifer Yeh, chair of the Harlow Neighbors, filed an appeal of the Hearings Official decision. The appeal is comprised of three assignments and 26 sub‐assignments of error to the Hearings Official’s decision for the zone change application. The appeal form and written statement is included here at Attachment A. Appeal Statement Assignments of Error The appeal statement submitted by Jennifer Yeh, Chair of the Harlow Neighbors, includes 3 primary assignments of error. The appellant makes 26 sub‐assignments of error to the Hearings Official’s decision under the following three primary assignments: (1) Erred in finding the proposed zone change complied with EC 9.8865(1), consistency with the Metro Plan; (2) Erred in finding the proposed zone change complied with EC 9.8865(2), consistency with the applicable adopted refinement plan; and (3) Erred in making a decision not supported by substantial evidence in the whole record, and the decision improperly construed the applicable law. For additional information on the subject request, please refer to the attached appeal form and written statement (Attachment A), as well as information provided under separate cover, which includes the Hearings Official’s decision, public testimony, and application information. Due to the large volume of record materials, a hyperlinked index is provided for ease of reference. Appeal Process The Eugene Planning Commission is scheduled to hold a public hearing on July 9, 2013. In accordance with the procedural requirements set forth in the Eugene Code (EC 9.7655), the appeal shall be based on the record, and it shall be limited to issues raised in the filed appeal statement. No new evidence pertaining to appeal issues can be accepted by the Planning Commission, and the basis of the appeal is limited to the issues raised during the review of the original application. The Planning Commission is required to conduct the public hearing according to the statutory procedures for quasi‐judicial hearings, and otherwise set forth in the Eugene Code (EC 9.7065 through 9.7095). PLANNING COMMISSION’S REVIEW ROLE The Planning Commission’s review must be focused on the question of whether the Hearings Official failed to properly evaluate the application or make a decision consistent with the applicable criteria in EC 9.8865. The Planning Commission may modify the Hearings Official’s decision with supplemental findings; or, in the event that the Planning Commission finds the Hearings Official erred in approving the request and chooses to reverse the decision, the Planning Commission is 3 PC Agenda - Page 3 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. Timing The Eugene Code requires that the Planning Commission issue a decision within 15 days of the close of the record following the public hearing. Planning staff emphasizes that in order to comply with Oregon statutory provisions (ORS 227.178) to act upon zone changes within 120‐days, a final order must be issued no later than July 29, 2013. The Planning Commission’s decision must otherwise be made in accordance with the provisions for appeal decisions (EC 9.7680), and more specifically, the decision must be consistent with the applicable zone change criteria (EC 9.8865). As noted previously, two public hearings were held on the zone change application and the public record was extended after the second hearing, thereby allowing sufficient time for continued submissions to the record. That official record now totals more than 1,000 pages. Further, the Planning Commission cannot accept new evidence during the appeal, as the review must be based on the same information available to the Hearings Official. In order to ensure a decision will be reached within the statutorily required 120‐day timeframe, the applicant has granted extensions totaling 37 days. Based on these considerations, Planning staff strongly recommends the Planning Commission not entertain any additional requests to extend the open record period for additional testimony following the public hearing, and instead, reconvene for deliberations on July 22, 2013. Deliberations Final deliberation and action by the Planning Commission is scheduled to occur at a work session on July 22, 2013. Planning staff requests that the Commission provide in advance any specific questions following the public hearing or via email to facilitate response at the deliberation session. PROCEDURAL ITEMS Pursuant to EC 9.7655(3), an appeal must “include a statement of issues on appeal, be based on the record, and be limited to the issues raised in the record that are set out in the filed statement of issues.” Mr. Paul Conte submitted a request (Attachment B) to the Planning Commission chair requesting the Commission take notice of the official, original signed Ordinance number 19855 and all accompanying exhibits. The City Attorney’s Office has provided a memo (Attachment C) that offers the Planning Commission legal context for consideration while reviewing this request. The subject items of the request are admissible, as allowed by EC 9.7095, which provides the Planning Commission the discretion to take “official notice” of such existing public records. Assistant City Attorney Anne C. Davies will be present at the public hearing and available for questions or procedural advice. In order to finalize the record prior to beginning deliberations, the Planning 4 PC Agenda - Page 4 Commission will need to dispose of the request at the public hearing. ATTACHMENTS The entire application file including the Hearings Official decision is available for review at the Eugene Planning Division offices, and it will be provided to the Planning Commission under separate cover. A public submission by Mr. Paul Conte, received June 28, 2013, is also provided under separate cover. The application file will also be made available for review at the Planning Commission public hearing and any follow‐up work sessions on this matter. For convenience, the following public record items are attached for reference: A. Appeal form and written statement for Z13‐2, submitted by Jennifer Yeh, Chair of the Harlow Neighbors, dated June 11, 2013. B. Letter from Mr. Paul Conte to Planning Commission Chair, dated June 17, 2013. C. City Attorney’s Office memo from Assistant City Attorney Anne C. Davies, dated July 2, 2013. FOR MORE INFORMATION: Please contact Zach Galloway, AICP, Eugene Planning Division, by phone at (541) 682‐5485, or by e‐ mail at zach.a.galloway@ci.eugene.or.us. 5 PC Agenda - Page 5  Attachment A PC Agenda - Page 6 PC Agenda - Page 7 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  Attachment B June 17, 2013 Mr. Randall Hledik, Chair Eugene Planning Commission c/o Eugene Planning Division REQUEST TO TAKE NOTICE OF THE OFFICIAL, ORIGINAL SIGNED ORDINANCE NUMBER 19855 AND ALL ACCOMPANYING EXHIBITS, AND PLACE THESE DOCUMENTS INTO THE RECORD FOR “BENSON” ZONE CHANGE APPEAL (FILE Z 13-2) Dear Mr. Hledik, A pivotal fact that must be established in this case is the true Willakenzie Area Plan (WAP) designation of the subject parcel, as determined by the Willakenzie Land Use Diagram (WLUD). Both the WAP and WLUD were adopted by Ordinance No. 19855. I am requesting that, in order to remove any ambiguities or questions of provenance or versions of the WAP and WLUD, the Eugene Planning Commission take official notice of the original, signed Ordinance No. 19855 and all accompanying exhibits, which are currently in the archives of the City Recorder’s Office; and that you place authenticated copies of these original documents into the record for “Benson” zone change appeal (File Z 13-2). I appreciate that this request may at first seem unusual and/or unnecessary, so let me explain. Ordinance No. 19855 adopted “Exhibit A - Willakenzie Area Draft Plan of June, 1991” and “[t]he Plan Diagram included in the Willakenzie Area Plan.” The City Recorder’s file contains the original ordinance, signed in ink by Mayor Jeffrey R. Miller. Attached to the ordinance is the original Exhibit A, including the WAP and the full-sized original of the WLUD. The original designates the subject lot as Low Density Residential (LDR). The version of the WAP and WLUD that has been distributed by the Planning Division and posted on the City’s website is not the version that was adopted by Ordinance No. 19855. This other version is titled “Willakenzie Area Plan September 1992.” It does not include a full-size copy of the WLUD, and the WLUD shows the subject lot designated as Medium Density Residential (MDR). The application, dated January 18, 2013, relied upon the September 1992 WLUD that showed the subject lot designated as MDR. The April 10, 2013 Staff Report submitted to the Hearings Official also relied upon the WLUD that showed the subject lot designated as MDR. PC Agenda - Page 22 Mr. Randall Hledik June 17, 2013 Page 2 The applicant’s attorney relied upon the WLUD that showed the subject lot designated as MDR in a letter to the Hearings Official dated April 24, an e-mail to the City dated April 30 and another letter to the Hearings Official dated May 1. Only on April 29, 2013 – just two days before the close of the evidentiary record – did I finally uncover the original and true WLUD document, which was in the City Recorder’s archives. As mentioned, the WLUD actually adopted by City Council designates the subject parcel LDR. Planning staff refused my request on April 29 (after uncovering the original WLUD) to place a copy of the complete, official file for Ordinance 19855 into the record, despite the critical importance of establishing beyond any doubt what designation City Council adopted for the subject lot when it adopted the Willakenzie Area Plan on June 2, 1992. After the appeal was filed, I again requested that staff make available to the Planning Commissioners the original folder, or an authenticated copy of the original, full-sized WLUD. In my experience, it is normal to provide decision makers originals in possession of the City when that’s necessary to establish the true version of a disputed document. Staff has again refused, without providing any justification other than pointing to exhibits which are incomplete and/or whose provenance is not established. Only by providing the Planning Commission the original, complete file can the matter be settled with no lingering doubt. Thus, I’m respectfully making this request. In lieu of providing the originals, it would satisfy everyone, I think, if staff provided a complete copy of the ordinance and exhibits that are in the City Recorder’s possession and staff authenticated the provenance of the copy for the appeal record. As an alternative that would require even less staff assistance, you could request staff to authenticate that the photographic images in Exhibit AAAAA are true images of the contents in the City Recorder’s archives. Ms. Michelle Mortensen was present with me during the entire time I examined the file and while I took these photographs and can attest to their authenticity. Thank you for helping eliminate this potential, and unnecessary, source of confusion prior to your deliberations. Paul Conte 1461 W. 10th Ave. Eugene, OR 97402 PC Agenda - Page 23  Attachment C Date: July 1, 2013 To: Eugene Planning Commission From: Anne C. Davies, Assistant City Attorney Subject: Benson Zone Change (Z 13-2) The applicant is requesting approval to change the zoning of the subject property (Tax Lot 00101 of Assessor’s Map 17-03-20-44), from R-1 Low-Density Residential to R-2 Medium- Density Residential. The application was deemed complete on February 15, 2013. The Hearings Official held a public hearing on this application on April 10, 2013, and a continued hearing on April 24, 2013. On May 30, 2013, the Hearings Official approved the subject zone change request. On June 11, 2013, the Harlow Neighbors filed an appeal of the Hearings Official’s decision to the Planning Commission. The appeal statement included three assignments of error (with numerous sub-parts to each assignment) outlining alleged errors made by the Hearings Official in his decision approving the subject zone change request. 1. Scope of Planning Commission’s Review Eugene Code (EC) 9.7655 provides the prerequisites and procedures for filing an appeal of a Hearings Official decision to the Planning Commission. EC 9.7655(3) requires the appeal statement to include a statement of issues on appeal and limits the Planning Commission’s review of the appeal to those appeal issues set forth in the appeal statement. Accordingly, the Planning Commission should limit the appeal issues it considers to those issues listed in the appellant’s appeal statement. 2. Motion to Take Official Notice Appellant has requested that the Planning Commission take official notice of the original signed version of Ordinance No. 19855, and all accompanying exhibits. Ordinance No. 19855 is the City’s official act that adopted the Willakenzie Area Plan (WAP) in 1992. There are several code sections that are relevant to the commission’s determination whether to grant appellant’s request. First, both EC 9.7650 and 9.7655(3) limit the Planning Commission’s review of the Hearings Official’s decision to the record created before the Hearings Official. The Planning Commission reviews the Hearings Official’s decision for error, and does not make its own decision on the approval criteria in the first instance. For that reason, it makes sense for the Planning Commission to limit the evidence to those materials that were before the Hearings Official when he made his determination. {00092826;1 } PC Agenda - Page 24 Eugene Planning Commission July 1, 2013 Page 2 That said, the code allows an approval authority (including the Planning Commission) in conducting a quasi-judicial hearing, to take “official notice” of certain documents, including any public records of the City. EC 9.7095(1). The authorization under EC 9.7095(1) is discretionary; i.e., the Planning Commission does not have to grant a request to take official notice, but it may do so. In the past, the city attorney has cautioned the Planning Commission (based on the code provisions explained above, which limit the Planning Commission’s review to the existing record) about granting requests to take official notice, especially where such a request seeks to include additional factual information that could be used to bolster or attack the evidentiary basis for the Hearings Official’s determination on the applicable approval criteria. In this case, the appellant seeks to have the Planning Commission consider the original signed Ordinance No. 19855. An ordinance is an officially promulgated legislative act of the City, and as such, is generally a proper enactment of which to take official notice. In the Oregon courts, courts are authorized to take judicial notice of an ordinance, comprehensive plan or enactment of any court or incorporated city. See Oregon Evidence Code (OEC) 202(7). The current request is a bit less problematic than requests the Planning Commission has addressed in previous appeals, which generally involved requests to take official notice of certain facts, as opposed to legislative acts. {00092826;1 } PC Agenda - Page 25