Planning Commission

AGENDA Meeting Location: Sloat Room—Atrium Building Phone: 541-682-5481 99 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 Planning Division at 541-682-5675. MONDAY, SEPTEMBER 16, 2013 – REGULAR MEETING (11:30 a.m. to 1:30 p.m.) 11:30 a.m. I. PUBLIC COMMENT The Planning Commission reserves 10 minutes at the beginning of this meeting for public comment. The public may comment on any matter, except for items scheduled for public hearing or public hearing items for which the record has already closed. Generally, the time limit for public comment is three minutes; however, the Planning Commission reserves the option to reduce the time allowed each speaker based on the number of people requesting to speak. 11:40 a.m. II. BENSON, AMBER (Z 13-2) APPEAL OF HEARINGS OFFICIAL DECISION – DELIBERATIONS/ACTION Staff: Zach Galloway, 541-682-5485 1:15 p.m. III. A. Other Items from Staff B. Other Items from Commission C. Learning: How are we doing? Commissioners: Steven Baker; John Barofsky; Jonathan Belcher; Rick Duncan; John Jaworski (Vice- Chair); Jeffery Mills; William Randall (Chair)  AGENDA ITEM SUMMARY September 16, 2013 To: Eugene Planning Commission From: Zach Galloway, AICP, Associate Planner, Eugene Planning Division Subject: Deliberations on the Appeal of Hearings Official Decision – Benson Zone Change (Z 13-2) ACTION REQUESTED To deliberate 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. PLANNING COMMISSION’S REVIEW ROLE As per Eugene Code 9.7680, the Planning Commission review and decision should 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 affirm the Hearings Official’s decision with supplemental findings; or, in the event that the Planning Commission finds the Hearings Official erred in approving the request and chooses to reverse the decision, the Planning Commission is required to provide specific findings of fact as to why the decision was in error. The Planning Commission cannot reverse the decision without such findings. 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. 1 PC Agenda - Page 1 (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: (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 promoting 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. On June 11, 2013, Jennifer Yeh, chair of the Harlow Neighbors, filed an appeal of the Hearings 2 PC Agenda - Page 2 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 as 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 under the following three primary assignments, asserting that the Hearings Official: (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. SUMMARY OF APPEAL PUBLIC HEARING Public Testimony and relation to the Appeal Statement The Planning Commission received testimony from the applicant, appellant, and other opponents of the zone change. There was much relevant testimony heard that directly relates to the appeal statement and can be tied to material already found in the official record. However, as a reminder to the Planning Commission of proper procedure, it is important to recognize there was also testimony provided that had no relation to the appeal statement and, in some cases, offered new evidence outside the existing record. While not necessary to list here, that testimony is inadmissible and should not be used by the Commission in their analysis of the appeal of the Hearings Official’s decision. Procedural Items Taking Official Notice. The Commission received a request to “take official notice” of the original, signed version of Ordinance No. 19855. City staff has historically advised against admitting new evidence at this stage in the land use process, as the appeal process should be confined to the same information available to the Hearings Official when crafting the decision. In this case, the evidence is already found within the official record. The request was specific to the original, signed version of the ordinance. The Planning Commission voted unanimously (4:0) to take official notice. Objection to new evidence. Mike Reeder, attorney representing the applicant, provided a letter with his oral testimony at the public hearing. That letter contained one sentence that the parties now agree was new evidence: “While Ordinance No. 19855 adopted the WAP, it miscolored the Subject Property as LDR, rather than MDR as instructed by the City Council.” Reeder letter dated July 9, 2013, page 2. That sentence should therefore be stricken and not considered by the Planning Commission. Timing The Eugene Code requires that the Planning Commission issue a decision within 15 days of the 3 PC Agenda - Page 3 close of the record following the public hearing. Both parties, applicant and appellant, granted concurrent timeline extensions to the state mandated 120-day timeframe and the Eugene Code- required period, meaning that a final decision must be reached by October 28, 2013. The Planning Commission did not extend the open record period for additional testimony following the public hearing. Deliberations were delayed due to a request from both parties to place the appeal process on hold while entering into private negotiations. The settlement negotiations did not produce an alternative resolution, and the Planning Commission will reconvene for deliberations on September 16, 2013. TIMELINE OF EVENTS RELATED TO SUBJECT LOT (TAX LOT 101, MAP 17-03-20-44) As requested by the Planning Commission at the conclusion of the public hearing, the following provides a timeline of events that relate to the subject lot or the area adjacent thereto. The bold, italicized text is the date of the legislative or other action, and the following parenthesis refers the reader to the exhibit and page number within the official record. 1987. (Exhibit SSS, page 1313) The 1987 Metro Plan diagram – sometimes referred to as the “blob diagram” – shows a large swath of MDR along the east side of Coburg Road that extends eastward into the Harlow neighborhood. The subject lot abuts Coburg Road, and was clearly within the MDR “blob.” September 9, 1991. (Exhibit EE, page 282) The memo and accompanying materials to the Metropolitan Area Planning Commissions includes a proposed Metro Plan Diagram amendment (page 315, item 1.b) for 7 acres from Medium-Density Residential to Low-Density Residential. Exhibit EE also includes a letter (page 359) from Dr. and Mrs. William J. McHolick – then-owner of the subject property – objecting to the proposed change from medium-density residential to “[t]he proposed low density classification.” November 12, 1991. (Exhibit NN, page 477-478) Eugene Planning Commission minutes show that the commission discussed Dr. McHolick’s request to retain the Medium-Density Residential plan designation, and they voted unanimously (5:0) to recommend the City Council approve a revised Metro Plan amendment that retains the MDR designation for the subject property. June 8, 1992. (Exhibit AAAAA, page 1804) Eugene Ordinance No. 19855, signed and adopted June 8, 1992, was the official adoption of the Willakenzie Area Plan. On the first page of Ordinance No. 19855, the findings state that the Eugene Planning Commission met six times to review and deliberate on the revised draft Plan. These deliberations led to “a total of 53 amendments to the draft Plan.” The dates of the deliberation sessions correspond to Exhibit NN, cited above, which resulted in the recommendation to retain the Medium-Density Residential plan designation on the McHolick property. However, that recommendation is not included in the numerous revisions to the draft Plan that are found in Exhibit B to the ordinance. Instead, the draft Willakenzie Area Plan, 4 PC Agenda - Page 4 attached as Exhibit A to the ordinance, depicts the subject property as Low Density Residential. June 8, 1992. (Exhibit FF, page 369) Eugene Ordinance No. 19856, signed and adopted June 8, 1992, was the official adoption of Metro Plan amendments to implement the Willakenzie Area Plan. It includes findings that state, “[a]doption of those proposed amendments has been recommended by the Eugene, Springfield, and Lane County Planning Commissions.” The ordinance then ordains that the Metro Plan diagram “is amended in the Willakenzie planning areas, as revised in Exhibit B, to provide as follows, and as shown graphically in Exhibit C attached hereto.”  On page 370 of the official record, the text states: “Change designation from Medium Density Residential to Low Density Residential for a 6 acre site on the east side of Coburg Road between Harlow Road and Tandy Turn.” The subject site was not included in the amendment. This reflects the Planning Commission’s unanimous decision to recommend the then-McHolick property be removed from the amendment.  Exhibit B. Eugene City Council Metro Plan Amendment Revisions (page 379 of the official record) is prefaced with the following text: “Among the recommendations on the draft Willakenzie Area Plan forwarded to the elected officials by the Eugene Planning Commission were proposed amendments to the Metro Plan. The following Metro Plan amendments were adopted by the Eugene City Council:” A summary of Amendment #5, which affected parcels around the then-McHolick property (i.e. the subject site) states, “Proposed area reduced by approximately 1 acre. Remove Tax Lot 101, Assessor’s Map 17- 03-20-4-4 (McHolick Parcel); change acreage, number of tax lots and text.”  Exhibit C (page 386 of the official record) has an introductory statement that includes the following: “[t]he Eugene Planning Commission, during its deliberations on the plan, recommended a number of changes to the proposed amendments (see Exhibit B).” A map of Metro Plan Amendment 5, which does not include the then-McHolick property, is located on page 391 of the official record). While the subject site was originally included in the proposed Metro Plan amendment to change the designation from MDR to LDR, as noted previously, the legislative history here reveals how the subject site was removed from that amendment and its MDR designation retained. August 26, 1992. (Exhibit OO, page 482) and September 21, 1992. (Exhibit PP, page 571) Amendments to the Metro Plan must be formally adopted by all jurisdictions that are party to the plan. This includes Lane County and the City of Springfield. Exhibit OO comprises Lane County Ordinance PA 1020, and Exhibit PP is the City of Springfield’s Ordinance 5654. Those ordinances adopt the Metro Plan Amendments that the City of Eugene adopted in Ordinance 19856. As noted above, the subject site was not included in these amendments. April 11, 2003. (Exhibit TTTT, page 1704) The working maps used during the Housekeeping Revisions public process, described in the following item, were entered into the record. This map shows the subject site designated MDR. The designation of the subject site was not changed in the Housekeeping Revisions. 5 PC Agenda - Page 5  April 27, 2004. (Exhibit FFF, page 785) Ordinance No. 20319 is the adoption ordinance of the Periodic Review Metro Plan Housekeeping Revisions. As stated in Section 3 (page 788), “[t]he Metro Plan Diagram is removed, superseded and replaced by the Metro Plan Diagram, as amended and set forth in Exhibit C attached and incorporated herein, which is hereby adopted as an amendment to the Metro Plan.” Exhibit C (page 966) is the plan diagram in effect today. It depicts the subject site as MDR. This ordinance also amended the text related to the plan diagram, clarifying the circumstances under which a parcel’s designation is considered parcel-specific. December 31, 2010. (Exhibit RR, page 625) The Metro Plan diagram has undergone revisions since its initial 2004 adoption. Exhibit RR is the current version, and it designates the subject lot at MDR. REVIEW OF THE APPELLANT’S ASSIGNMENTS OF ERROR The following analysis provides the Planning Commission with direction to passages in the Hearings Official’s decision – cited as [HO decision, pg. X], references to the official record, and other relevant context for each of the appeal issues raised, in order to facilitate the Planning Commission’s deliberations. FIRST ASSIGNMENT OF ERROR The Decision erred by finding the application met the following approval criterion: EC 9.8865(1): The proposed zone 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. SUBASSIGNMENT OF ERROR 1.A The Decision erroneously found that the Metro Plan designation of the subject property is “Medium Density Residential” (“MDR”). Staff Analysis The appellant makes 4 specific assignments of error under the Subassignment 1.A heading. The first, noted above, is the most important in determining final action on the appeal. The appellant asserts that the Hearings Official relied upon an incorrectly colored 2004 Metro Plan diagram. The Hearings Official explains [HO Decision, pg. 8] his rationale in relying upon the 2004 Metro Plan diagram, as adopted by Ordinance No. 20319 (Exhibit FFF), which shows that the subject property is designated MDR. In addition to explaining why the 2004 Metro Plan, as adopted by Ordinance No. 20319, is the basis for his decision, the Hearings Official also notes new language [HO Decision pg. 9-10] added to the Metro Plan in 2004 that describes parcel specificity of plan designations. Both the Hearings Official’s decision, and the City Attorney’s memo provided for the initial public hearing (Exhibit QQ), concur that the subject site has a parcel specific designation of MDR. Next, as it relates to the general Metro Plan policies, it is important to call attention to the Hearing’s Official’s explanation of why the plan diagram – not specific policies – controls the land use designation for the subject site. The decision quotes a Metro Plan passage that describes the 6 PC Agenda - Page 6 relationship between plan diagram and policy, confirming that policy takes precedence over the plan diagram only where apparent conflicts and inconsistencies exist. Furthermore, the Hearings Official makes clear that only Metro Plan policies, not those of related refinement plans, can take precedence over the plan diagram where inconsistencies may exist. In the absence of conflict between the plan diagram and policy, one can rely on the plan diagram to determine the designation. In this case, the decision finds the subject site is clearly designated MDR and that no inconsistencies exist. In the second sub-assignment raised, the appellant states that the Hearings Official misapplied statutory rules of construction and case law, including State v. Gaines. State v. Gaines provides direction on how to review legislative history in the course of the land use application process. Just as the Hearings Official may review the full legislative history [HO Decision, pg. 8] found in the official record, so too may the Planning Commission review the full legislative history found therein. Next, the appellant asserts that the Hearings Official erroneously found that Ordinance No. 19856 amended the Metro Plan diagram to designate the property MDR. Ordinance No. 19856 is one of four ordinances related to the Willakenzie Area Plan (WAP) adopted by the City Council on June 8, 1992. This ordinance implemented the WAP through a series of specific amendments to the Metro Plan diagram. As relevant here, the Hearings Official explains his reading of the ordinance and related legislative history with several key findings [HO Decision, pg. 10-12]. He makes clear that in his view of the legislative history, the property was initially proposed to be included in a group of properties that were to change from MDR to LDR designation, meaning that the property was already designated as MDR “in some fashion” at the time Ordinance No. 19856 was adopted. He also finds that the subject property was specifically and intentionally removed from that proposed amendment (“Amendment #5”) which would have changed it’s designation from MDR to LDR. In doing so, he makes specific reference to minutes in the record that show the Planning Commission voted 5:0 in agreement with the former owner’s request that his property remain designated MDR. He therefore concluded that the property has been intentionally designated MDR in the Metro Plan since 1992. In the last issue raised under sub-assignment of error 1.A, the appellant asserts that the Hearings Official erroneously found that the wholesale replacement of the Metro Plan diagram in 2004 retained the MDR status on the subject property. The legislative history that the Hearings Official summarized [HO Decision, pg. 10-12] explains the means by which the property retained its MDR designation in 1992. His explanation of Ordinance No. 20319 [HO Decision, pg. 8] provides his rationale for relying upon the 2004 version of the Metro Plan as adopted by that ordinance. No amendments were made to the subject property designation in 2004, thereby retaining the MDR designation that dates back to at least 1987 Metro Plan diagram (Exhibit SSS). In summary, the Hearings Official found that the Metro Plan diagram is the controlling document in determining the correct land use designation of the subject property. As such, he explains his reliance on Ordinance No. 20319, as it is the adopting ordinance of the current Metro Plan Diagram. He found that the subject lot is clearly discernible on the plan diagram, and therefore, the zone change request is consistent zone change criterion at EC 9.8865(1). 7 PC Agenda - Page 7  KEY QUESTION #1 Has the Hearings Official erred in finding the zone change consistent with the Metro Plan?  If the Planning Commission agrees with the Hearings Official that the Metro Plan, as adopted in 2004 by Ordinance No. 20319, is the controlling planning document in the zone change application, and that the subject site is clearly designated Medium Density Residential, the Hearings Official’s decision should be affirmed.  Additionally, the Planning Commission should determine whether the Hearings Official was correct in not entertaining the numerous arguments by the appellant as to why or how the subject site is designated erroneously as a result of the WAP’s legislative history, in light of the City Council’s 2004 adoption of Ordinance No. 20319. (Related to Key Question #2, below).  If the Planning Commission does not agree with the Hearings Official that the Metro Plan, as adopted in 2004 by Ordinance No. 20319, is the controlling planning document or that the subject site is clearly designated Medium Density Residential, then the Commission must craft findings that explain why the Hearings Official has erred. SUBASSIGNMENT OF ERROR 1.B The Hearings Official erred by not adequately and properly evaluating Metro Plan Policy A.13, which requires the City “to [consider] impacts of increased density on ***existing neighborhoods.” Staff Analysis Neither Metro Plan Policy A.13, nor Policy A.23 which is referenced in Subassignment 1.B, is a decisional criterion and, as noted in the April 10th staff report, the policy must be balanced and considered in light of other relevant policy direction. There is extensive and valid legal precedent for this approach to properly applying non-mandatory, aspirational Metro Plan policies in a zone change application such as this. Further, page 12 of the Hearings Official’s decision states, “[t]he portions of the staff report entitled ‘Residential Land Use and Housing Element, Transportation Element and Energy Element’ are adopted by the Hearings Official by this reference to the extent they are consistent with the findings set forth above and the balance of this decision.” Based on this statement, the Hearings Official evaluated the cited policies and considered their effect on the zone change request. Also, staff notes that the appeal statement does not fully quote Policy A.13, which is itself a policy that recognizes the need to balance community directives. Policy A.13 states in full, “[i]ncrease overall residential density in the metropolitan area by creating more opportunities for effectively designed in-fill, redevelopment, and mixed use while considering impacts of increased residential density on historic, existing and future neighborhoods.” The sentence structure places the most emphasis on the first clause, which directs the City to “increase overall residential density in the metropolitan area.” Within the explanatory information under Subassignment 1.B, the appellant asserts that the only means of balancing the policy direction is by applying a variety of conditional land use controls, such as Site Review Overlay, Density Range Overlay, and specific development regulations or conditions of approval. The Hearings Official’s decision does incorporate staff’s analysis of Metro 8 PC Agenda - Page 8 Plan Policies A.13 and A.23 as noted above, and he further explains his determination that these policies are planning directives rather than mandatory approval criteria. As discussed on page 17 of the Hearings Official’s decision, the applicant noted that the Metro Plan policies A.13 and A.23 were not mandatory, the EC 9.5500 Multi-Family standards were sufficient standards to fulfill the policy, and there was legal precedence from a prior zone change application that did not apply the Site Review Overlay. With regard to Site Review, the Hearings Official concluded that there was insufficient policy basis to require the overlay, and does not further address the appellant’s assertion that even more specific conditions of approval or limitations on a future site plan are necessary to ensure these policies are met. He notes: “Certainly if those policies were intended to require that zone change approvals be subject to site plan review, then the language would so state.” SUBASSIGNMENT OF ERROR 1.C The Hearings Official erred by not adequately and properly evaluating Metro Plan Policy A.23, which requires the City to “Reduce impacts of higher density residential and mixed use development on surrounding uses by considering site landscape and architectural design standards or guidelines in local zoning and development regulations.” Staff Analysis Metro Plan Policy A.23 is not a decisional criterion and, as noted in the April 10th staff report, the policy must be weighed against the myriad other policy direction. The Hearings Official explicitly discusses Policy A.23 in his discussion of Site Review Overlay [HO Decision, pg. 17]. As noted under 1.B above, the Hearings Official agrees with the applicant’s three reasons for not applying Site Review Overlay. Also, it is important to note that Policy A.23 is a directive to the City to create regulations, and the City has fulfilled that obligation by adopted the multi-family standards in EC 9.5500. While an individual may view those standards insufficient to maintain compatibility, the quasi-judicial process is not the proper venue to address a prior legislative decision. The Hearings Official, in agreeing with the applicant, determined that he lacked authority to apply the Site Review Overlay, thereby acknowledging that neither Policies A.23 nor A.13 provide mandatory language requiring the Site Review Overlay to be imposed. The Willakenzie Area Plan offered the clearest direction, as asserted in the staff report, for application of the Site Review Overlay. The Planning staff report cited Willakenzie Area Plan Policy 8 as possible support for the site review overlay. However, the policy language is aspirational, lacking definitive (e.g., “shall”) requirements. It states, “[p]romote compatibility between low- density residential land uses and medium- to high-density residential land uses.” The supporting Proposed Action 8.1 calls for the City to apply the Site Review overlay (/SR) to all parcels zoned for higher density residential that abut low density residential. However, unlike policies, proposed actions are not adopted by the City Council and are considered advisory means to implement a policy. This further underscores the Hearings Official’s determination that he lacked sufficient policy basis to apply the Site Review overlay, and thus, he concurred with the applicant’s position that EC 9.5500 addressed the compatibility issue. 9 PC Agenda - Page 9 SECOND ASSIGNMENT OF ERROR The Decision erred by finding the application met the following approval criterion: EC 9.8865(2): The proposed change is consistent with applicable adopted refinement plans. In the event of inconsistencies between these plans and the Metro Plan, the Metro Plan controls. Staff Analysis The Hearings Official’s decision explains that the Willakenzie Area Plan (WAP) designates the subject site Medium Density Residential and the applicable policies do not preclude the zone change. However, the Hearings Official makes no determination of consistency with the WAP. Instead, he refers back to his findings that the Metro Plan, specifically its 2004 adoption by Ordinance No. 20319, is the controlling document and includes a clear, parcel-specific designation of MDR for the subject property. A full explanation is found on pages 12-14 of the Hearings Official’s decision. He also references Ordinance No. 19856 and the City Council’s “specific decision about the planning designation of the subject property.” The decision considers the legislative history in reaching this conclusion. His reading of Ordinance No. 19856, as described in greater detail above, concludes that the subject site was explicitly removed from the amendment changing other parcels from MDR to LDR in this area. Because the Metro Plan designation controls over the WAP policy and plan diagram, the Hearings Official chose not to rule on the opponent’s position that the WAP policy language was contradictory to the Metro Plan designation or that the Metro Plan was erroneously designated. SUBASSIGNMENT OF ERROR 2.A The Decision erroneously found that the WLUD designation of the subject property as “Low Density Residential” (“LDR”) was inconsistent with the Metro Plan Diagram designation of the subject property as “Medium Density Residential” (“MDR”). Staff Analysis The Hearings Official makes no mention of the WAP Land Use Diagram designating the property as LDR, other than to acknowledge the opponent’s theory that the subject site was erroneously mapped. In fact, he explicitly states [HO Decision, pg. 14] the following: “To be clear, the Hearings Official is not taking any position on the whether Mr. Conte’s mapping error theory is correct or incorrect.” Again, the Hearings Official found that the 2004 Metro Plan Diagram, as adopted by Ordinance No. 20319, is the controlling document. Furthermore, as has been noted several times previously, the Hearings Official recognizes the Metro Plan as controlling over the refinement plan. Thus, he has relied upon Ordinance No. 20319 as the basis for his decision, and provided underpinnings for such by explaining the legislative history of Ordinance No. 19856. The Hearings Official found the legislative intent clear that the City Council made a “specific decision about the planning designation of the subject property.” Therefore, even if the MDR designation in the WAP Land Use Diagram were a mapping error, the clear decision by the City Council to adopt Ordinance No. 19856 shows the intent to remove the subject property from the amendments, thereby retaining the Medium Density Residential designation. As the Hearings Official states on page 13 of his decision, the Metro Plan designation must prevail in order to adhere to the clear intent of the City 10 PC Agenda - Page 10 Council in Ordinance No. 19856. To the extent there may be an inconsistency, his decision is silent on that matter and focuses simply on the fact the Metro Plan is clear and controls in this case. SUBASSIGNMENT OF ERROR 2.B The Decision erroneously found that “it is not possible, at least given the facts of this quasi- judicial application, to interpret the WAP, including Harlow subarea Policy 4, to disallow the proposed medium density residential use.” Staff Analysis In reaching a final decision on the zone change request, the Hearings Official relied on the Metro Plan designations and the excerpted policy at the top of his decision at page 13, which states: “In all cases the Metro Plan is the guiding document and refinement plans and policies must be consistent with the Metro Plan. Should inconsistencies occur the Metro Plan is the prevailing policy document.” Given this context and direction, the Hearings Official was hesitant to adopt any findings addressing the applicability or compliance with Policy 4. Finding that the Metro Plan controlled, he chose to rely on what he believed was the clear legal authority in the matter, rather than entertaining alternative theories of erroneous mapping. To the extent that Planning Commission may determine the need to further discuss Harlow subarea Policy 4, staff notes there are there are two important items to consider. First, this policy was a part of the WAP when the City Council made a clear and intentional decision, through adoption of Ordinance No. 19856, to not redesignate the subject parcel from MDR to LDR. Thus, in the course of a quasi-judicial proceeding, it is not appropriate for the Planning Commission to question the legislative decision making of the City Council in 1992. Further, as described in the staff report dated April 10, 2013 and the City Attorney’s Memo (Exhibit QQ), Policy 4 is not prohibitive. As such, it must be considered and balanced along with other policies of the Metro Plan and WAP. The staff report includes findings addressing this balancing. This sub-assignment of error again notes the Hearings Official’s lack of consideration for Metro Plan Policies A.13 and A.23, as well as the need to apply development regulations as conditions of approval to a zone change. Please refer to prior explanations of these two points under sub- assignments 1.B and 1.C. SUBASSIGNMENT OF ERROR 2.C The Decision erroneously entirely ignored WAP Residential Policy 1, which requires that any decision “Maintain the existing low density residential character of existing neighborhoods while recognizing the need to provide housing for all income groups.” Staff Analysis For reasons stated above under Assignment of Error 2, the Hearings Official’s decision does not refer to WAP Residential Policy 1. If the Planning Commission ultimately determines this was in error, supplemental findings can be crafted to address the issue. The staff report did address 11 PC Agenda - Page 11 compliance with Policy 1. As described in the immediately prior subassignment, Residential Policy 1 was also part of the WAP at the time the City Council adopted Metro Plan amendments that did not change the designation of the subject parcel, thereby retaining the MDR designation. Again, staff believes the Planning Commission should not question the legislative decision making of the City Council in 1992. In the course of this quasi-judicial proceeding, the Commission should give deference to the City Council’s past actions and acknowledge that the policy was considered at the time they adopted the 1992 Planning Commission recommendation to remove the subject parcel from the proposed Amendment 5 of Ordinance No. 19856. SUBASSIGNMENT OF ERROR 2.D The Decision erroneously entirely ignored WAP Land Use Policy 3, which requires that any decision “retain existing significant vegetation whenever possible to provide buffering between … low-density and higher density residential uses.” Staff Analysis For reasons stated above, the decision does not refer to WAP Land Use Policy 3. If the Planning Commission ultimately determines this was in error, supplemental findings can be crafted to address the issue. The staff report includes a discussion of Policy 3. SUBASSIGNMENT OF ERROR 2.E The Decision erroneously entirely ignored WAP Land Use Policy 6, which requires that any decision “Minimize land use conflicts by promoting compatibility between low-density and higher density residential land uses …” Staff Analysis For reasons stated above, the decision does not refer to WAP Land Use Policy 6. Again, if the Planning Commission ultimately determines this was in error, supplemental findings can be crafted to address the issue. Again, the staff report includes analysis of Policy 6. ADDITIONAL NOTES Staff Analysis The appeal statement under this heading focuses entirely upon the April 10, 2013, staff report. There is no discussion of how the Hearings Official may have erred in reaching a decision. However, it is the decision of the Hearings Official that is on appeal, not staff’s recommendation. Lacking specific assignments of error, this section is considered editorial and staff recommends that the Planning Commission disregard these statements as unrelated to the official appeal assignments of error. 12 PC Agenda - Page 12  KEY QUESTION #2 Has the Hearings Official erred in his decision to rely upon the 2004 Metro Plan as the controlling document, and therefore not to provide further findings in regard to the WAP?  As stated above in Key Question #1, if the Planning Commission agrees with the Hearings Official that the Metro Plan, as adopted in 2004 by Ordinance No. 20319, controls, and that the subject site is clearly designated Medium Density Residential, the Hearings Official’s decision should be affirmed.  If the Planning Commission decides the Hearings Official erred by not adequately addressing criterion (2) under EC 9.8865, or otherwise believes supplemental findings are warranted, then the Commission has the discretion to adopt supplemental findings regarding the WAP. Any supplemental findings should focus on the main topic areas discussed previously in the appeal statement: o the Willakenzie Area Plan designation and legislative history, o Willakenzie Area Plan policies and Harlow Subarea Policy 4, or o /SR site review overlay. THIRD ASSIGNMENT OF ERROR The Hearings Official made a decision not supported by substantial evidence in the whole record, and the Decision improperly construed the applicable law. SUBASSIGNMENT OF ERROR 3.A The Hearings Official failed to find that Ordinance 19855 designated the lots as LDR in WAP & WLUD and consequently the Metro Plan designation was LDR after 19855 was adopted. Staff Analysis The Hearings Official recognized that the Metro Plan is the controlling document in land use decisions. Thus, his decision to find the zone change consistent with Metro Plan is based on the Medium Density Residential (MDR) designation in the most recent plan diagram, as adopted in 2004 by Ordinance No. 20319 [HO decision, page 8]. Furthermore, the Hearings Official chose to go beyond the adopted Metro Plan in order to analyze the relationship between Ordinance No. 19855, which in 1992 adopted the Willakenzie Area Plan (WAP), and Ordinance No. 19856, which contained associated amendments to the Metro Plan [HO decision, page 10-11] necessary to implement the WAP. The decision also reviews legislative history that clarifies the process that resulted in the subject site retaining its MDR designation. SUBASSIGNMENT OF ERROR 3.B The Hearings Official failed to find that Ordinance 19855 was acknowledged as “consistent” with the Metro Plan. Staff Analysis Again, the Hearings Official recognized that the Metro Plan is the controlling document in land use decisions. Thus, his decision to find the zone change consistent with Metro Plan is based on the Medium Density Residential (MDR) designation in the most recent plan diagram, as adopted in 2004 by Ordinance No. 20319 [HO decision, page 8]. 13 PC Agenda - Page 13 SUBASSIGNMENT OF ERROR 3.C The Hearings Official failed to properly apply the requirement stated in the WAP that “City programs, actions, and decisions will be evaluated on the basis of their ability to implement adopted policies in [the WAP]***.” Staff Analysis The excerpted quote in sub-assignment of error 3.C is taken from page 4 of the Willakenzie Area Plan (WAP). It is contained within the Terminology section, and effectively is a definition for “Policies.” In full, the sentence states, “City programs, actions, and decisions will be evaluated on the basis of their ability to implement adopted policies in this plan as well as other adopted City goals and policies.” To the extent appellant is asserting that the Hearings Official ignored applicable policies or adopted a decision that failed to comply with applicable policies, that argument has already been addressed. SUBASSIGNMENT OF ERROR 3.D The Hearings Official failed to identify any evidence that the subject property was designated MDR just prior to adoption of Ordinance 19856. Staff Analysis As required by the zone change approval criteria at EC 9.8865(1), the question at hand is whether the zone change request is consistent with the Metro Plan designation. The Hearings Official’s decision to find the zone change consistent with Metro Plan is based on the Medium Density Residential (MDR) designation in the most recent plan diagram, as adopted in 2004 by Ordinance No. 20319 [HO decision, page 8]. In his summary of the legislative history, the Hearings Official specifically addresses the designation of the subject property prior to adoption of Ordinance No. 19856 [HO decision, page 11]. The decision cites Exhibit NN for necessary context. The Hearings Official found that the subject site was included in proposed amendments to the Metro Plan diagram that would have changed designations from Medium Density Residential to Low Density Residential. But, as noted on page 11 of the decision, the subject site was removed from Amendment 5; thus, “at the time Ordinance No. 19856 was adopted, the Metro Plan Diagram already designated, in some fashion, the subject property as medium density residential.” SUBASSIGNMENT OF ERROR 3.E The Hearings Official erroneously found Ordinance 19856 resulted in the subject property being designated MDR. Staff Analysis As noted above in response to sub-assignment of error 3.D, the Hearings Official states [HO decision, page 11] his finding that Amendment 5 did not amend the Metro Plan to redesignate the subject property as Medium Density Residential. Instead, he recognizes that the explicit removal of the subject site from the amendment results in the parcel retaining the existing MDR designation. 14 PC Agenda - Page 14 SUBASSIGNMENT OF ERROR 3.F The Hearings Official failed to address the unreasonable outcomes of the finding that the subject property was MDR after Ordinances 19855 and 19856 were adopted, when adjacent properties retained their LDR status notwithstanding enduring the same City actions. (See Exhibit WWW, pages 12-19.) Staff Analysis As covered under Assignment of Error 1, the Hearings Official’s decision is based on the adopted Metro Plan diagram. The decision found the zone change request consistent with the Medium Density Residential designation. The Hearings Official explains [HO decision, page 8-9] that the decision is based on the most recent plan diagram, which was adopted in 2004 by Ordinance No. 20319. The decision further summarizes the legislative history outlining how the subject site’s then-owner, Dr. McHolick, specifically requested that his property be removed from Amendment 5 and retain its Medium Density Residential designation (Exhibit NN, page 8-9). The Planning Commission voted unanimously (5:0) to “retain the medium-density residential designation for Mr. McHolic’s [sic] property.” As adopted by the City Council, Ordinance No. 19856 reflects the Planning Commission’s recommended action with the following explicit text: “Remove Tax Lot 101, Assessor’s map 17-03-20-44 (McHolick);…”[HO decision, pg. 11)]. The subject site would not be the subject of a Metro Plan amendment to Low Density Residential if already designated as such. SUBASSIGNMENT OF ERROR 3.G The Hearings Official erroneously found that Lane County Ordinance PA 1020 adopted Amendment #5. Staff Analysis The Hearings Official addresses the issue in his decision, page 12 and Footnote 5. Exhibits OO and PP are the adoption ordinances of the Lane County Commission and the City of Springfield Council, respectively. As partners on the multi-jurisdiction Metro Plan, all jurisdictions are required to adopt Metro Plan amendments under certain circumstances. In footnote 5, the decision recognizes that Lane County “adopt[ed] the same treatment of Mr. McHolick’s property retaining its medium density residential status.” In Lane County Ordinance PA 1020, that same treatment was to not include the McHolick property in the plan diagram redesignations from MDR to LDR. SUBASSIGNMENT OF ERROR 3.H The Hearings Official erroneously found that the condition for 19856 being effective (in Section 4) was met and that 19856 therefore became effective. Staff Analysis See the Staff Response for sub-assignment of error 3.G. 15 PC Agenda - Page 15 SUBASSIGNMENT OF ERROR 3.I The Hearings Official erroneously found that raising the issue of 19856 not ever becoming effective was an impermissible “collateral attack.” Staff Analysis See the Staff Response for sub-assignment of error 3.G. This sub-assignment of error relates to the assertion in sub-assignment 3.G that Lane County Ordinance PA 1020, as a complementary piece of adopting amendments to the Metro Plan diagram, was not properly adopted. The appeal period for debating the procedural validity of Lane County Ordinance PA 1020 has long since passed. Further, the 2004 adoption of City Ordinance No. 20319 was not challenged. That ordinance recognized the designation of the subject site as Medium Density Residential. SUBASSIGNMENT OF ERROR 3.J The Hearings Official erroneously relied on a reading of Ordinance 19855 that ignores the role of the WAP in this decision in a manner that represents an impermissible “collateral attack” by the Hearings Official on Ordinance 19855. Staff Analysis Absent a more substantive explanation of the sub-assignment, staff has insufficient information to provide direction to the Planning Commission. But, as articulated on page 10-11 of the decision, the Hearings Official found that the Metro Plan is the controlling planning document at issue. Therefore, it is Ordinance No. 19856, as the ordinance that amended the Metro Plan, and the associated context as well as Ordinance No. 20319, as the adopting ordinance of the current Metro Plan, that is the focus of the decision. SUBASSIGNMENT OF ERROR 3.K The Hearings Official erroneously found that the designation of the subject property was MDR after. Staff Analysis Subassignment of error 3.K appears incomplete and, as such, a thorough response is not possible. At its simplest reading, this subassignment is a restatement of Assignment of Error 1. The Hearings Official recognized that the Metro Plan is the controlling document in land use decisions. Thus, his decision to find the zone change consistent with Metro Plan is based on the Medium Density Residential (MDR) designation in the most recent plan diagram, as adopted in 2004 by Ordinance No. 20319 [HO decision, page 8]. SUBASSIGNMENT OF ERROR 3.L The Hearings Official erroneously failed to apply the explicit directions on the 1987 Metro Plan Diagram in effect at the time Ordinance 19855 and 19856 were adopted and on the April 1, 2000, and April 11, 2002 versions of the 1987 Metro Plan Diagram, all of which required that the subject property’s designation be determined by the WAP and WLUD, i.e., as LDR. 16 PC Agenda - Page 16 Staff Analysis As covered under Assignment of Error 1, the Hearings Official’s decision is based on the current, adopted Metro Plan diagram. The decision found the zone change request consistent with the Medium Density Residential designation. The Hearings Official explains [HO decision, page 8-9] that the decision is based on the most recent Metro Plan Diagram, which was adopted in 2004 by Ordinance No. 20319. Clear legislative and procedural history is provided in the record, and the Hearings Official cites it throughout the decision, specifically pages 10-12. SUBASSIGNMENT OF ERROR 3.M The Hearings Official failed to make a finding that the September 1992 WLUD was erroneously colored and had no basis in legislative action and was almost certainly the source of coloration of the subject property in subsequent Metro Plan Diagrams. Staff Analysis The Hearings Official did not find the 1992 Willakenzie Area Plan was erroneously colored. Instead, in his review of the legislative history, the Hearings Official found that, “[t]he City Council made a specific decision about the planning designation of the subject property in Ordinance no. 19856.” [HO decision, page 13] That specific decision was to not include the subject property in Amendment 5, thereby retaining the Medium Density Residential designation. In addition to the legislative summary provided on pages 10-12, the decision also includes an analysis of the City Council’s legislative decision making on page 13. These passages again recognize that the subject property’s designation was not an error. To the contrary, the designation was an intentional legislative act to remove the subject property from the Metro Plan amendment that changed the plan designation from Medium Density Residential to Low Density Residential. SUBASSIGNMENT OF ERROR 3.N The Hearings Official erroneously found that the Metro Plan Diagram designation of the subject property was MDR just prior to adoption of the 2004 Metro Plan Update. Staff Analysis See staff response under subassignment of error 3.L. SUBASSIGNMENT OF ERROR 3.O The Hearings Official erroneously found that adoption of 2004 Metro Plan Update by Eugene Ordinance 20319 amended (or otherwise resulted in) the subject property’s designation to MDR. Staff Analysis The Hearings Official found that Ordinance No. 20319 was the adopting ordinance of the most recent version of the Metro Plan, and as such, the decision to find the zone change consistent with the plan diagram designation is based on the current, adopted Metro Plan. The decision does not conclude that Ordinance No. 20319 amended the subject property’s designation to Medium Density Residential. In fact, the decision finds, and states as such in several places that the City Council in 1992 made a specific legislative act to remove the subject property from Amendment 5 of Ordinance No. 19856, thereby retaining its Medium Density Residential designation. 17 PC Agenda - Page 17 SUBASSIGNMENT OF ERROR 3.P The Hearings Official erroneously found that the 2004 Metro Plan is parcel-specific for the subject property. Staff Analysis The Hearings Official’s decision addresses the issues of parcel specificity on pages 9-10. It excerpts specific, relevant Metro Plan text from Ordinance No. 20319 that highlights the newly added plan language. In addition, the City Attorney’s Office provided a memo (Exhibit QQ) that covers parcel specific determinations. The decision then goes on to explain how the Hearings Official reached his conclusion that the subject site is parcel specific, noting that: “The location and shape of the subject property (lot 101) is easily recognizable in the official version of the Metro Plan Diagram as being “designated” as medium density residential. A reasonable person viewing the Metro Plan Diagram would conclude that the subject property is designated medium density residential. This constitutes substantial evidence demonstrating that the Metro Plan Diagram is clear enough to show that the subject property is an identifiable parcel “within a clearly defined plan designation” that borders only one other plan designation, that being low density residential. Therefore, the Metro Plan Diagram is parcel specific for the subject property, and the designation is clearly medium density residential.” SUBASSIGNMENT OF ERROR 3.Q The Hearings Official failed to make adequate finding of substantial impacts as required by Fasano. Staff Analysis Sub-assignment of error 3.Q is insufficient to adequately review and provide the Planning Commission relevant direction or information. The decisions in Fasano have been incorporated into Oregon Revised Statutes (ORS), and due to the lack of supporting argument, staff is unable to discern the reference here to “substantial impacts.” SUBASSIGNMENT OF ERROR 3.R The Hearings Official failed to apply the Fasano standard of review and burden of proof that Fasano requires of the applicant of a zone change. Staff Analysis Again, sub-assignment of error 3.R is insufficient to adequately review and provide the Planning Commission relevant direction or information. The decisions in Fasano have been incorporated into Oregon Revised Statutes (ORS), and due to the lack of supporting argument, staff is unable to discern the reference here to the burden of proof. 18 PC Agenda - Page 18  KEY QUESTION #3 Did the Hearings Official adequately support his decision with evidence found in the official record?  If the Commission views the findings as adequate, then staff recommends affirming the Hearings Official’s decision.  If adequate findings are lacking or there are additional items on which the Planning Commission determines there is a need to make findings, then staff requests explicit direction. RECOMMENDATION Based on the official record, decision of the Hearings Official, testimony received at the public hearing, and the Commission’s deliberations, there are essentially three options before the Planning Commission, as follows:  Should the Planning Commission find no errors in the Hearings Official’s decision, staff recommends the Commission simply affirm the decision and incorporate its findings by reference.  Should the Planning Commission find that supplemental findings are necessary to ensure compliance with the applicable approval criteria, with consideration of the appeal issues described above; staff recommends that the Planning Commission modify the Hearings Official’s decision pursuant to EC 9.7680.  Should the Planning Commission find the Hearings Official erred in approving the request and chooses to reverse the decision, the Planning Commission is required to provide specific findings of fact as to why the decision was in error. The Planning Commission cannot reverse the decision without such findings. ATTACHMENTS The entire application file including the Hearings Official decision and appeal statement is available for review at the Eugene Planning Division offices, and has been provided to the Planning Commission under separate cover. The full record of materials will also be made available for review at the Planning Commission deliberation session. For convenience, the following items are attached for reference. A. Appeal Statement. 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. 19 PC Agenda - Page 19  Attachment A APPEAL STATEMENT RE DECISION APPROVING ZONE CHANGE BENSON FILE Z 13 2 The following statement by appellant who is the representative of the Harlow City neighborhood association lists the specific issues on Neighbors a chartered s Decision is inconsistent with appeal and identifies where the Hearings Official the criteria applicable to the above captioned application for approval of a zone change The Harlow Neighbors neighborhood association encompasses the subject property and the Harlow Neighbors Executive Committee voted unanimously to file this appeal THE HEARINGS OFFICIAL DECISION The Hearings Official approved a zone change for the subject property from 1 Low Density Residential Zone R R R Medium Density 1 Zone to 2 Residential Zone 2 R Zone FIRST ASSIGNMENT OF ERROR The Decision erred by finding the application met the following approval criterion EC 8 1 9 865 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 The following subassignments of error individually and in combination resulted in the erroneous finding that the application was consistent with the Metro Plan Note that references to exhibits in the following sections are intended to assist the Planning Commission in understanding the assignments of error and are not intended as exhaustive references to all relevant evidence in the record 1 Appeal Statement Z 13 2 June 11 2013 PC Agenda - Page 20  SUBASSIGNMENT OF ERROR A 1 The Decision erroneously found that the Metro Plan designation of the subject property is Medium Density Residential MDR The 2004 Metro Plan Diagram relied upon by the Hearings Official has an erroneous MDR coloration for the subject property The actual Metro Plan designation for the subject property is LDR The errors made by the Hearings Official in reaching his findings include but are not limited to the following The Hearings Official erroneously applied statutory rules of construction and court decisions including misapplying State v Gaines in evaluating the effect of Eugene Ordinance 19856 The Hearings Official erroneously found that Ordinance no 19856 amended the Metro Plan Diagram to specifically designate the property medium density residential The Hearings Official erroneously found that the wholesale replacement of the Metro Plan Diagram in 2004 retained the medium density residential status of the subject property Eugene Ordinance 20319 did retain the subject property s designation and did not amend the property s designation However the subject s actual designation was LDR at the time Ordinance 20319 property was adopted and the LDR designation was retained The 2 R Zone is inconsistent with the Metro Plan designation of the subject property as LDR and therefore the R 2 Zone is not consistent with the Metro Plan SUBASSIGNMENT OF ERROR B 1 The Hearings Official erred by not adequately and properly evaluating Metro Plan Policy 1 A 3 which requires the City to to consider impacts of increased density on existing neighborhoods The Hearings Official relied primarily on the April 10 2013 staff report which addresses Policy 1 A 3 under the Residential Land Use and Housing Element The staff report states that the remainder of the policy 2 Appeal Statement Z 13 2 June 11 2013 PC Agenda - Page 21  e to consider impacts on existing neighborhoods cannot be fully language i addressed through a zone change The staff report states The City of Eugene has adopted design standards for multi development projects that are intended to improve design family quality The Decision erroneously found that EC 5 9 500 would accomplish the same objectives as Site Review Overlay However both the staff report and the Decision erroneously fail to explain which multi family development standards address the potential impacts established by evidence in the record and exactly how those standards address the specific zone change request Evidence in the record Exhibit WWW demonstrates that the City Multiple Development Standards s Family will not mitigate the potential negative impacts of a zone change to R 2 Medium Density Residential Zone The Decision erroneously failed to make the finding required by Fasano v Washington Co Commission that there are very significant potential impacts that may and are likely to arise from a zone change to 2 R Medium Density Residential Zone See Exhibit WWW and testimony by residents Consequently the Decision failed to adequately consider these potential impacts and to apply the standard of review required by Fasano when evaluating Metro Plan Policy A B In conjunction with Metro Plan Policy 2 A 3 and WAP policies discussed under the Second Assignment of Error even if development within the Metro Plan MDR density range were allowed on the subject property balancing these comprehensive plan provisions would require constraining the intensity of the development sthat allowed For example the Hearings Official was required to consider whether a Site Review Overlay Zone as recommended by staff a Density Range Overlay Zone as explained in Exhibit WWW or specific conditions of approval to address maximum height minimum setbacks maximum vehicle use area maximum bedrooms minimum and maximum site on parking and other standards appropriate to density residential uses low The staff report specifically recommended applying the Site Review SR Overlay Zone in order to ensure the development allowed by the upzone would be consistent with Metro Plan Policy 1 A 3 in conjunction with Willakenzie Area Plan Policy 8 see below The Hearings Official rejected this recommendation on the erroneous basis that Metro Plan Policy 1 A 3 was not a mandatory requirement Without conceding whether Plan Policy 1 A 3 is a 3 Appeal Statement Z 2 13 June 11 2013 PC Agenda - Page 22  mandatory policy the City is required to evaluate the policy and balance it along with other Metro Plan and WAP provisions The Hearings Official s neglect of the required evaluation and balancing was an error Note also that although the Hearings Official did not impose the Site Review Overlay Zone evidence in the record Exhibit WW W demonstrates that the Site Review Overlay Zone would not mitigate the potential negative impacts of a zone change to 2R Medium Density Residential Zone If the City intends to rely on a Site Review Overlay Zone in its final decision there must be findings that explain specifically how Site Review Needed Housing approval criteria address the potential impacts established by evidence in the record and exactly how the criteria contained within the Site Review Overlay Zone address the specific zone change request SUBASSIGNMENT OF ERROR 1 C The Hearings Official erred by not adequately and properly evaluating Metro Plan Policy 2 A 3 which requires the City to Reduce impacts of higher density residential and mixed use development on surrounding uses by considering site landscape and architectural design standards or guidelines in local zoning and development regulations A zone change is a local zoning regulation and therefore falls within the scope of Policy 2 A 3 As discussed above under Metro Plan Policy 1 A 3 the Hearings Official relied primarily on the April 10 2013 staff report which addresses Policy A 2 3 under the Residential Land Use and Housing Element The staff report states that Policy 2 A 3 is essentially a directive to create compatibility standards between density low residential and density higher residential uses Emphasis added The staff report again relies on family multi development standards and the Site Review Overlay Zone The report states Planning staff favors a consistent application of the Site Review overlay The Decision erroneously fails to adequately evaluate Metro Plan Policy 2 A 3 for the same reasons given for Policy 1 A 3 The appeal arguments provided under Subassignment of error 13 are incorporated herein as arguments applicable to Metro Plan Policy 2 A 3 as well 4 Appeal Statement Z 13 2 June 11 2013 PC Agenda - Page 23 SECOND ASSIGNMENT OF ERROR The Decision erred by finding the application met the following approval criterion EC 8 2 9 865 The proposed change is consistent with applicable adopted refinement plans In the event of inconsistencies between these plans and the Metro Plan the Metro Plan controls In the current case the applicable adopted refinement plan is the Willakenzie Area Plan the WAP The WAP includes a plan diagram called the Willakenzie Land Use Diagram the WLUD Both the WAP and WLUD were adopted by Eugene Ordinance 19855 and have been acknowledged as consistent with the Metro Plan The following subassignments of error individually and in combination resulted in the erroneous finding that the application was consistent with the WAP Note that references to exhibits in the following sections are intended to assist the Planning Commission in understanding the assignments of error and are not intended as exhaustive references to all relevant evidence in the record SUBASSIGNMENT OF ERROR A 2 The Decision erroneously found that the WLUD designation of the subject property as Low Density Residential LDR was inconsistent with the Metro Plan Diagram designation of the subject property as Medium Density Residential MDR The 2004 Metro Plan Diagram relied upon by the Hearings Official has an erroneous MDR coloration for the subject property The actual Metro Plan designation for the subject property is LDR which is consistent with the WLUD designation The R 2 Zone is inconsistent with the WLUD designation of the subject property as LDR and therefore the 2 R Zone is not consistent with the WAP SUBASSIGNMENT OF ERROR 1 2 3 The Decision erroneously found that it is not possible at least given the facts of this quasi judicial application to interpret the WAP including Harlow subarea Policy 4 to disallow the proposed medium density residential use 5 Appeal Statement Z 13 2 June 11 2013 PC Agenda - Page 24  The basis for this finding comprised an erroneous finding that the Metro Plan Diagram designates the subject property as MDR an erroneous finding that the Metro Plan Diagram designation conflicts with Harlow Subarea Policy 4 and an erroneous finding that the Metro Plan Diagram designation renders Harlow Subarea Policy 4 completely inapplicable to the current Decision The Hearings Official erred in several ways First the Metro Plan designates the subject property as LDR not MDR as covered under Subassignment of Error 1 A Second the Hearings Official assumed that Harlow Subarea Policy 4 conflicted with the Metro Plan despite the fact that the WAP was explicitly adopted and acknowledged as being consistent with the Metro Plan Third the Hearings Official erred by not evaluating Harlow Subarea Policy 4 in any substantive manner justifying this omission by stating If this decision is appealed and the Hearings Official s analysis under EC 8 1 9 865 is found to be in error then the WAP policies might become relevant and applicable Emphasis added The Hearings Official erred by finding that It simply does not follow that the City Council would make that decision with the intention that future application of WAP could contradict that specific planning designation This finding is based on the erroneous assumption that the subject property had a Metro Plan designation of MDR But even if that were the case this finding is overly broad and erroneously assumes that a refinement plan policy cannot restrict the nature of development on a parcel to less than what is allowed by the Metro Plan designation Specifically even if the Metro Plan designation of the subject parcel were MDR and it is not the Hearings Official was required to thoroughly evaluate and balance all plan provisions including Harlow Subarea Policy 4 Keeping in mind that the WAP was explicitly adopted and acknowledged as being consistent with the Metro Plan even if development within the Metro Plan MDR density range were allowed on the subject property the Harlow Subarea Policy 4 requirement that the City shall consider the area encompassing the subject property as appropriate for density low residential uses in conjunction with Metro Plan Policies 1 A 3 and 2 A 3 as well as other WAP policies discussed below could and would constrain the intensity of the development sthat allowed For example the Hearings Official was required to consider whether consistency with these 6 Appeal Statement Z 13 2 June 11 2013 PC Agenda - Page 25  comprehensive plan provisions required a Site Review Overlay Zone as recommended by staff a Density Range Overlay Zone as explained in or specific conditions of approval to address maximum Exhibit WWW and height minimum setbacks maximum vehicle use area maximum bedrooms minimum and maximum on site parking and other standards appropriate to low residential uses density The Hearings Official erroneously treated a Metro Plan MDR density range as low residential entirely ruling out all other applicable aspects of density uses when that is clearly not the case The Hearings Official erred by never evaluating how Harlow Subarea Policy 4 was to be balanced with other plan provisions despite Planning staff advice that the policy must be weighed within the context of the s submitted memo that other policies that apply as well as the City Attorney states LUBA would likely determine that the City must addressed sic Policy 4 in the evaluation of the proposed zone change Emphasis added SUBASSIGNMENT OF ERROR 2 C The Decision erroneously entirely ignored WAP Residential Policy 1 which requires that any decision Maintain the existing low density residential character of existing neighborhoods while recognizing the need to provide housing for all income groups The Hearings Official erroneously treated a Metro Plan MDR density range as entirely ruling out all other applicable aspects of density low residential character when that is clearly not the case Residential Policy 1 specifically refers to the existing low density residential character which was documented in the record as predominantly single family detached on and around the subject property EC 0 9 500 includes the following applicable definition Residential Character A combination of qualities and features that gives identity to a particular area where the predominant use is housing and that distinguishes the area from other areas The Decision erroneously failed to even evaluate the existing low density residential character and balance the requirement of Residential Policy 1 with other plan provisions Even if the subject property were designated to allow greater density than the Metro Plan LDR density range the Hearings Official 7 Appeal Statement Z 13 2 June 11 2013 PC Agenda - Page 26  was required to consider the other qualities and features that give the subject property abutting properties and the surrounding area the particular identity In particular even with an MDR designation the subject property must be limited to the family single detached housing that gives the Harlow Subarea its identity This issue was raised in Exhibit W pages 29 31 and other testimony The Hearings Official made the same kinds of errors as described under Subassignment of error 1 2 3 which are incorporated into this section by reference SUBASSIGNMENT OF ERROR D 2 The Decision erroneously entirely ignored WAP Land Use Policy 3 which requires that any decision retain existing significant vegetation whenever possible to provide buffering between density low and higher density residential uses This issue was raised in Exhibit W pages 28 29 The Hearings Official made the same kinds of errors as described under Subassignments of error 1 2 3 and C 2 which are incorporated into this section by reference SUBASSIGNMENT OF ERROR E 2 The Decision erroneously entirely ignored WAP Land Use Policy 6 which requires that any decision Minimize land use conflicts by promoting compatibility between density low and higher density residential land uses This issue was raised in Exhibit W page 29 The Hearings Official made the same kinds of errors as described under Subassignment of error 1 2 3 and C 2 which are incorporated into this section by reference ADDITIONAL NOTES Although the Decision did not address WAP policies the April 10 2013 staff report did address the policies identified above 8 Appeal Statement Z 13 2 June 11 2013 PC Agenda - Page 27  Staff recommended the Site Review Overlay Zone to address some of the policy requirements However as covered under Subassignments of error LB and C1 the Site Review Overlay Zone is inadequate and the staff report failed to meet the statutory requirement to explain which Site Review approval criteria would ensure compliance with the plan policies and exactly how those criteria would accomplish that The staff report also makes a similar claim for the City s multi family development standards without providing sufficient explanation of which standards would provide consistence with plan policies and how they would accomplish that Additional staff comments on the Site Review Overlay Zone and the multi family development standards did not adequately address the deficiencies that were explained in detail in Exhibit WWW The April 10 staff report failed to address in any way the requirement of Residential Policy 1 to a m intain the existing low density residential character of existing neighborhoods Staff also attempted to downgrade the role of Harlow Subarea Policy 4 However their arguments were without merit as explained in the April 24 2013 letter from William Kabeiseman THIRD ASSIGNMENT OF ERROR The Hearings Official made a decision not supported by substantial evidence in the whole record and the Decision improperly construed the applicable law The following identifies specific errors the Hearings Official made that contributed to the two assignments of error above Note that references to exhibits in the following sections are intended to assist the Planning Commission in understanding the assignments of error and are not intended as exhaustive references to all relevant evidence in the record SUBASSIGNMENT OF ERROR A 3 The Hearings Official failed to find that Ordinance 19855 designated the lot as LDR in WAP WLUD and consequently the Metro Plan designation was LDR after 19855 was adopted SUBASSIGNMENT OF ERROR B 3 The Hearings Official failed to find that Ordinance 19855 was acknowledged as consistent with the Metro Plan 9 Appeal Statement Z 13 2 June 11 2013 PC Agenda - Page 28  SUBASSIGNMENT OF ERROR C 3 The Hearings Official failed to properly apply the requirement stated in the WAP that City programs actions and decisions will be evaluated on the basis of their ability to implement adopted policies in the WAP SUBASSIGNMENT OF ERROR D 3 The Hearings Official failed to identify gEy evidence that the subject property was designated MDR just prior to adoption of Ordinance 19856 SUBASSIGNMENT OF ERROR E 3 The Hearings Official erroneously found Ordinance 19856 resulted in the subject property being designated MDR SUBASSIGNMENT OF ERROR F 3 The Hearings Official failed to address the unreasonable outcomes of the finding that the subject property was MDR after Ordinances 19855 and 19856 were adopted when adjacent properties retained their LDR status notwithstanding enduring the same City actions See Exhibit WWW pages 19 12 SUBASSIGNMENT OF ERROR 3 G The Hearings Official erroneously found that Lane County Ordinance PA 1020 adopted Amendment 5 SUBASSIGNMENT OF ERROR H 3 The Hearings Official erroneously found that the condition for 19856 being effective in Section 4 was met and that 19856 therefore became effective SUBASSIGNMENT OF ERROR 3 1 The Hearings Official erroneously found that raising the issue of 19856 not ever becoming effective was an impermissible collateral attack SUBASSIGNMENT OF ERROR 3 J The Hearings Official erroneously relied on a reading of Ordinance 19855 that ignores the role of the WAP in this decision in a manner that represents an impermissible collateral attack by the Hearings Official on Ordinance 19855 10 Appeal Statement Z 13 2 June 11 2013 PC Agenda - Page 29  SUBASSIGNMENT OF ERROR K 3 The Hearings Official erroneously found that the designation of the subject property was MDR after SUBASSIGNMENT OF ERROR 3 L The Hearings Official erroneously failed to apply the explicit directions on the 1987 Metro Plan Diagram in effect at the time Ordinances 19855 and 19856 were adopted and on the April 1 2000 and April 11 2003 versions of the 1987 Metro Plan Diagram all of which required that the subject property s designation be determined by the WAP and WLUD e i as LDR SUBASSIGNMENT OF ERROR 3 M The Hearings Official failed to make a finding that the September 1992 WLUD was erroneously colored and had no basis in legislative action and was almost certainly the source of the coloration of the subject property in subsequent Metro Plan Diagrams SUBASSIGNMENT OF ERROR IN The Hearings Official erroneously found that the Metro Plan Diagram designation of the subject property was MDR just prior to adoption of the 2004 Metro Plan Update SUBASSIGNMENT OF ERROR 3 0 The Hearings Official erroneously found that adoption of 2004 Metro Plan Update by Eugene Ordinance 20319 amended or otherwise resulted in the s designation to MDR subject property SUBASSIGNMENT OF ERROR P 3 The Hearings Official erroneously found that the 2004 Metro Plan is parcel specific for the subject property SUBASSIGNMENT OF ERROR 3 Q The Hearings Official failed to make adequate finding of substantial impacts as required by Fasano SUBASSIGNMENT OF ERROR R 3 The Hearings Official failed to apply the Fasano standard of review and burden of proof that Fasano requires of the applicant for a zone change 11 Appeal Statement Z 13 2 June 11 2013 PC Agenda - Page 30 CONCLUSION For the foregoing reasons this zone change must be denied Respectfully submitted this 11th day of June 2013 FOR HARLOW NEIGHBORS Jennifer Yeh Harlow Neighbors Chair 12 Appeal Statement Z 13 2 June 11 2013 PC Agenda - Page 31