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 hour notice prior to the meeting. Spanish-language interpretation will also be provided with 48 hour notice. To arrange for these services, contact the Planning Division at 541-682-5675. MONDAY, AUGUST 17, 2015 – REGULAR MEETING (11:30 a.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. OAKLEIGH CO-HOUSING PUD (PDT 13-1): DELIBERATIONS AND ACTION Lead City Staff: Gabe Flock, 541-682-5697 gabriel.flock@ci.eugene.or.us 1:15 p.m. V. ITEMS FROM COMMISSION AND STAFF A. Other Items from Staff B. Other Items from Commission C. Learning: How are we doing? Commissioners: Steven Baker; John Barofsky; John Jaworski (Chair); Jeffrey Mills; Brianna Nicolello; William Randall; Kristen Taylor (Vice Chair)  AGENDA ITEM SUMMARY August 17, 2015 To: Eugene Planning Commission From: Gabe Flock, Senior Planner, City of Eugene Planning Division Subject: Remand Deliberations: Oakleigh Co-housing PUD (City File PDT 13-1) ACTION REQUESTED To deliberate and take action on a remand decision from the Land Use Board of Appeals (LUBA), concerning an appeal of the Eugene Hearings Official’s tentative approval for Oakleigh Co-housing PUD (PDT 13-1). BACKGROUND INFORMATION Extensive background information on this remand and previous decisions relating to the Oakleigh Co-Housing PUD is included in the full record provided separately, as well as the prior Agenda Item Summary (AIS) and City Attorney memo for the public hearing on this matter. Please refer to those materials as necessary for purposes of deliberating on the remaining matters to be resolved as part of the remand. On July 28, 2015, the Planning Commission held a public hearing to consider testimony from Simon Trautman, as required on remand. Mr. Trautman was not present and did not provide any oral testimony. However, the day before the hearing, written testimony along with numerous attachments was submitted with the signature of Mr. Trautman and provided to commissioners prior to close of the public hearing and record. The applicant’s attorney, Zack Mittge was present at the hearing and provided oral testimony in support of the application, and in response to the written testimony submitted. Following the close of the hearing and record, commissioners had a number of questions with regard to procedural requirements and admissible evidence, as to what materials would be allowed as part of the remand deliberations. Staff and the City Attorney provided some initial advice about what could be considered under “official notice” provisions under EC 9.7095(1), and offered to provide a follow-up memo that would more specifically address what items in the Trautman testimony should be allowed, or otherwise be rejected as inadmissible new evidence. That memo is included as Attachment A. The Planning Commission also decided not to re-open the record on the landscaping issue, which is the only other substantive issue not affirmed by LUBA on appeal. As a result, the commission will need to rely on the existing record to deliberate on resolving that issue concerning “adequate screening” along the eastern property boundary. PC Agenda - Page 1 DELIBERATIONS ON REMAND Below is a brief outline of staff’s recommended approach to deliberations now that the public hearing and record is closed: Task #1: Determine What Items in the Trautman Testimony Should be Allowed or Otherwise Rejected as Inadmissible New Evidence. As an initial matter prior to deliberations, the Planning Commission will need to determine what items in the Trautman testimony should be allowed, or otherwise rejected as inadmissible new evidence. The attached City Attorney memo provides a guide to assist the commission in making those initial determinations. Task #2: Consider the Trautman Testimony and Determine Whether They Warrant Changes to the Planning Commission’s Findings or Decision on Appeal. The Planning Commission affirmed the Hearing’s Official’s approval of the PUD on appeal, with a number of conditions, including the condition of approval regarding landscape screening on the eastern boundary of the property (i.e. in essence, modifying the Hearings Official’s decision to omit the requirement he made for landscape screening along that boundary). LUBA then affirmed that decision on all issues except for the landscape screening condition of approval. The Planning Commission must now consider the new testimony presented by Mr. Trautman (particularly the arguments raised about transportation and street improvements, adequacy of Oakleigh Lane for access, etc.) and determine whether that testimony changes any of the findings previously adopted with regard to the application when the commission first heard the appeal. The Planning Commission may choose to confirm its previous findings, or it may adopt revised findings based on Mr. Trautman’s new testimony. For ease of reference, staff directs the Planning Commission’s attention to a few key areas in the record that address the approval criteria related to Mr. Trautman’s appeal arguments, and include previous findings made, affirming compliance with those relevant approval criteria by all three decision-makers including the Hearings Official, Planning Commission and LUBA. These materials are also included as attachments to the public hearing AIS dated July 28, 2015: Hearings Official (HO) Decision • EC 9.8320(5) regarding safe and adequate transportation systems: see HO Decision at Pages 18-29 (July 28th PC Agenda Packet, Pages 47-58). • EC 9.8320(6) regarding risk to public safety: see HO Decision at Pages 29-31 (July 28th PC Packet Pages 58-60). • EC 9.8320(11)(b) regarding applicable street standards: see HO Decision at Pages 37-38 (July 28th PC Packet Pages 66-67). PC Agenda - Page 2 Planning Commission (PC) Final Order • EC 9.8320(5) regarding safe and adequate transportation systems: see PC Final Order at Pages 3-4 (July 28th PC Agenda Packet, Pages 97-98). • EC 9.8320(6) regarding risk to public safety: see PC Final Order at Pages 4-5 (July 28th PC Agenda Packet, Pages 98-99). • EC 9.8320(11)(b) regarding applicable street standards: see PC Final Order at Page 5 (July 28th PC Agenda Packet, Page 99). LUBA Final Opinion and Order • EC 9.8320(5), (6) and (11)(b): see LUBA Final Opinion and Order at Pages 29-42 (July 28th PC Agenda Packet, Pages 135-148). Please also refer directly to the admissible portions of the Trautman testimony and references made throughout those materials, as to relevant record materials cited in support of the appeal arguments. Task #3: Determine How to Resolve the Landscape Screening Issue Based on the Existing Record. As part of its approval of a PUD, the City must find that “[t]he PUD will provide adequate screening from surrounding properties including, but not limited to, anticipated building locations, bulk, and height.” EC 9.8320(3). The Hearings Official determined that the site plan submitted as proposed by the applicant was insufficient to screen the proposed development from the view of those individuals using the park and bike path to the east. However, the Hearings Official determined that, with a condition of approval requiring some screening, the application could be approved. He imposed the following condition of approval (Condition #15): “Prior to final PUD approval, the applicant shall revise the final site plan and landscaping plan compliant with EC 9.6200 to provide landscape screening along the eastern property boundary * * *.” On appeal, the Planning Commission determined that the landscape screening along the eastern property boundary was not necessary (“Additional landscape screening is not required along the eastern property boundary.” Revised Condition #15). LUBA disagreed with the Planning Commission and determined that the applicable approval criterion, EC 9.8320(3), requires the applicant to provide landscaping to screen the proposed development from adjacent lands; “it is not concerned with the views the PUD will have of adjacent lands.” LUBA held that the Planning Commission’s decision to leave the eastern boundary open to the park failed to screen the PUD from view from the park, as required by EC 9.8320(3). Following the hearing, the City Attorney provided you with an email briefly summarizing the concerns expressed by the commission at that time about requiring landscape screening, and PC Agenda - Page 3 the rationale for modifying the Hearings Official’s decision to omit that requirement. She also urged that commissioners view the webcast of the meeting held on December 16, 2013 where this issue was deliberated upon previously. The discussion begins at about minute 5:00 and continues until minutes 21:30 of the webcast (see http://ceapps.eugene-or.gov/PCWEBCAST/WEBCAST/Play.aspx?mid=604). In summary, the decision to not require screening was based at least in part on 1) the existing vegetation that screens the view from the bike path toward the site, 2) the fact that, at least on the southern portion of the east boundary, the structures are already set back from the property line, 3) any proposed screening cannot be located in the easement that runs along that eastern property line, so any vegetative screening would have to be placed to the west of that easement, and 4) because the structures toward the north (Buildings 2 and 4) are so close to the easement line, some relocating of buildings (i.e. complete redrawing of the site plan) would likely be required in order to accommodate such screening. Staff is prepared to assist the commission in addressing those concerns, which appears possible with some wording changes and a revised condition to ensure compliance with EC 9.8320(3), in a manner substantially similar to what the Hearings Official had required. In the original condition of approval, he referenced the standards at EC 9.6200, but did not specify the exact type of landscape treatment to be required under those standards. Staff notes that there does appear to be sufficient space shown on the applicant’s site plans (see LUBA record at Page 1200) along the majority of the eastern boundary of the site, but outside the existing easement, to accommodate a landscape strip to the “L-2” standard at EC 9.6210(2). That would require a screen of low shrubs at 30-42 inches high, 1 canopy tree per 30 linear feet, and 70 percent ground coverage with living plant materials. The commission could also specify a slight relocation of proposed buildings and other improvements as shown, to provide additional space for the landscaping, or require some form of different (i.e. narrower) screening at key locations. Similarly, the condition could specify the allowance for openings at locations where the plans show pathway connections to the east. NEXT STEPS Pending further deliberation and direction from the commission on these remaining issues, staff will prepare a revised final order for consideration and action at a subsequent meeting. ATTACHMENTS A. City Attorney Memo The full record has been provided to commissioners separately, and is also available to the public on the City’s website at: http://pdd.eugene-or.gov/LandUse/ApplicationDetails?file=PDT- 13-0001. A hardcopy of the complete record is also available for free inspection at the Atrium Building, 99 West 10th Avenue, between 9:00 a.m. and 5:00 p.m. Monday through Friday. Copies may also be obtained at cost. PC Agenda - Page 4 FOR MORE INFORMATION: Please contact Gabe Flock, Senior Planner, City of Eugene Planning Division, at 541-682-5697 or via email at gabriel.flock@ci.euegne.or.us. PC Agenda - Page 5 Date: August 12, 2015 To: Eugene Planning Commission From: Anne C. Davies Subject: Oakleigh Remand Hearing I. Official Notice On July 27, 2015, the day before the Planning Commission remand hearing, Simon Trautman caused to be filed with the City a hearing memo. The memo included numerous attachments, including at least some of the briefing of parties before LUBA and Court of Appeals. Mr. Trautman’s letter includes four attachments. (Attachment A: Oregon Maps; Attachment B: Drawing of Oakleigh Lane ROW; Attachment C: LUBA opinion in Butte Conservancy v. City of Gresham; Attachment D: CD containing LUBA record and supplemental record, audio recording of LUBA oral argument, LUBA briefing, and Court of Appeals briefing). The next day, the afternoon of the hearing, legal counsel received an e-mail from Bill Kabeiseman requesting that the Planning Commission take official notice of certain documents. Mr. Kabeiseman represented Simon Trautman before the Court of Appeals. It was not clear at the time the e-mail was received whether Mr. Kabeiseman still acted as Mr. Trautman’s legal representative. Mr. Kabeiseman has since confirmed that he represents Mr. Trautman. Mr. Kabeiseman’s request to take official notice provides: “Please accept this e-mail as a request for the city to take judicial notice of the briefing documents before LUBA and the Court of Appeals.” It is not entirely clear what documents Mr. Kabeiseman seeks to have the Planning Commission take official notice of. In an abundance of caution, again, I suggest you assume the request covers all of what appears on Attachment D to Mr. Trautman’s letter. As explained at the hearing, there are certain documents within the LUBA briefs submitted by Mr. Trautman that were stricken by LUBA as outside the record. Those documents include Exhibit A to Intervenor- Petitioner Conte’s Amended Petition for Review (3rd of 12 files appearing on Attachment D to Mr. Trautman’s July 27, 2015 submittal). That exhibit, including the red notation box that was added for this remand proceeding, should be disregarded by the commission. It also appears that the versions of the briefs that were scanned by Mr. Trautman were copies that included notations and highlighting. For example, an arrow appears on Mr. Trautman’s copy of page 8 of the applicant’s opening LUBA brief (12th of 12 files appearing on Attachment D to Mr. Trautman’s July 27, 2015 submittal) that was not part of the brief submitted to LUBA. Further, pages 1262, 1257 and 1258 of the electronic version of the LUBA record (5th PC Agenda - Page 6 of 12 files appearing on Attachment D to Mr. Trautman’s July 27, 2015 submittal) contain colored highlighting that was not part of the original record. Those additions, as well as any other additions, revisions or edits, should be disregarded by the commission. II. Review Limited to Record Eugene Code 9.7655(3) limits the Planning Commission review to evidence presented to the hearings official. Mr. Trautman’s July 27, 2015 submittal also contains three other attachments, Attachments A, B and C. Attachment C is a copy of a LUBA decision, Butte Conservancy v. City of Gresham. The commission is entitled to consider caselaw. However, the copy of the case that is attached to Mr. Trautman’s testimony contains highlighting, which should be disregarded. Attached to this memo is a clean version of that case. Please refer to that version when reviewing the case. Accordingly, the commission should determine whether Mr. Trautman submitted any new evidence that should be rejected and not considered in this appeal. Attachment A is an aerial photo that shows the area in question. This particular copy of the aerial photo was not submitted into the record during the initial proceedings before the hearings official. [Note inserted text box: “PDT 13-1 Remand Testimony: Attachment A.”] However, a substantially similar one appears on page 895 of the LUBA Record (5th of 12 files appearing on Attachment D to Mr. Trautman’s July 27, 2015 submittal). A color copy of the document appearing at LUBA Record 895 was included in the LUBA Record as Retained Exhibit I (RE-I). However, that color exhibit is still at LUBA or the Court of Appeals and is, therefore, not readily available for your review. Accordingly, for ease of reference, you may refer to the color version of Attachment A to Mr. Trautman’s July 27 submittal. Attachment B is a drawing of the Oakleigh Lane right of way. This document was not presented to the hearings official and was neither before the hearings official when he made his decision nor in front of the Planning Commission when it issued its decision in this case. As discussed above, opponents attempted to include a substantially similar document before LUBA. See Intervenor-Petitioner Conte’s Amended Petition for Review, Exhibit A (3rd of 12 files appearing on Attachment D to Mr. Trautman’s July 27, 2015 submittal). Upon motion by the City, LUBA struck that exhibit and refused to consider it. See Page 30 of LUBA’s August 21, 2014 Final Opinion and Order; PC Agenda Page 135. The Planning Commission should likewise decline to consider this document. III. Review Limited to Issues Raised in Notice of Appeal Eugene Code 9.7655(3) limits the issues on appeal to those issues identified in the written appeal statement. The Planning Commission will have to determine whether all of the issues raised in Mr. Trautman’s July 27th submittal were identified as appeal issues in the initial appeal statement (PC Agenda – Pages 7-27). In particular, at the hearing, the applicant objected to Mr. Trautman’s additional allegation that the hearings official erred in failing to consider that a portion of the paving for Oakleigh Lane lies outside the right-of-way. Applicant asserts that that is a new issue that was not identified in the original appeal statement. PC Agenda - Page 7  For ease of reference, the issue is summarized on page 2 of Trautman’s Appeal Testimony as follows: “Approximately 6 feet of the paving on the 250-foot segment of Oakleigh Lane immediately to the west of the subject property lies outside the 20-foot public right-of- way and on private property. The Public Works Report, on which the Hearings Official relied, assumed a 19-foot wide, unobstructed pavement as the basis for the report’s conclusion that Oakleigh Lane’s existing pavement was adequate and safe. “The Hearings Official’s findings did not explain how the decision would ensure that the entire 19-foot pavement width would remain available for public use and that cars wouldn’t be legally parked on the pavement on private property and thus obstruct the pavement. Accordingly, all conclusions regarding the safety and adequacy of Oakleigh Lane that are based on a ’19-foot pavement width’ are not valid and cannot be relied upon.” The Planning Commission must determine whether this particular issue was raised in the original appeal statement. EC 9.7655(3) requires that an appeal must be limited to the issues set out in the “filed statement of issues.” It also requires that the appeal statement explain specifically how the hearings official failed to properly evaluate the application or make a decision consistent with applicable criteria. In short, the code requires a local appellant to identify the specific grounds that form the basis for the appeal. Accordingly, a local appellant may not thereafter raise different grounds for appeal that were not identified in the appeal statement. In this case, the appellant raised numerous issues related generally to the safety of Oakleigh Lane and that the proposed PUD did not comply with certain approval criteria addressing transportation. See First through Fourth Assignments of Error in Appeal Statement, PC Agenda – Pages 8-18. However, the appeal statement does not include the alleged error that Mr. Trautman now asserts; i.e., that Oakleigh Lane is not safe because a portion of the paved roadway falls outside the right-of-way and therefore cannot be considered when determining the safety of Oakleigh Lane. The planning commission should therefore not consider that new issue. However, even if the commission chooses to consider that issue, it is doubtful that it could provide a basis to overturn the underlying decision or to revisit the commission’s previous findings regarding the safety of Oakleigh Lane. First, Mr. Trautman’s assertion that 6 feet of pavement lies outside the right of way is based on a rough outline of lot lines superimposed on an aerial photo. Even though a version of that aerial photo was submitted in the prior proceedings, it does not contain the level of accuracy required to determine the amount of property, if any, that lies outside the right-of-way. Second, any of the paved portion of Oakleigh Lane that lies outside the right of way that has existed for 10 years or more will be considered to have been acquired by the City as a prescriptive easement. ACD:abm Attachments 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