Planning Commission

AGENDA Meeting Location: Harris Hall Lane County Public Service Building Phone: 541-682-5481 125 East 8th Avenue www.eugene-or.gov/pc Eugene, Oregon 97401 The Eugene Planning Commission welcomes your interest in this agenda item. Feel free to come and go as you please at the meeting. This meeting location is wheelchair-accessible. For the hearing impaired, FM assistive-listening devices are available or an interpreter can be provided with 48 hours’ notice prior to the meeting. Spanish-language interpretation will also be provided with 48 hours’ notice. To arrange for these services, contact the Planning Department at 541-682-5675. TUESDAY, OCTOBER 20, 2015 – 6:00 P.M. PUBLIC HEARING: APPEAL OF HEARINGS OFFICIAL DECISION: LAUREL RIDGE (Z 15-5) The Planning Commission will hold a public hearing on an appeal of Hearings Official approval of a zone change from AG/WR Agricultural with Water Resources overlay to R-1/PD/WR Low Density Residential with Planned Unit Development and Water Resources overlays, and PRO/PD/WR Parks Recreation and Open Space with Planned Unit Development and Water Resources overlays. Lead City Staff: Erik Berg-Johansen, 541-682-5437 erik.berg@ci.eugene.or.us Public Hearing Format: 1. Staff introduction/presentation. 2. Public testimony from applicant and others in support of application. 3. Comments or questions from neutral parties. 4. Testimony from opponents. 5. Staff response to testimony. 6. Questions from Hearings Official. 7. Rebuttal testimony from applicant. 8. Closing of public hearing. Commissioners: Steven Baker; John Barofsky; John Jaworski (Chair); Jeffrey Mills; Brianna Nicolello; William Randall; Kristen Taylor (Vice Chair)  AGENDA ITEM SUMMARY October 20, 2015 To: Eugene Planning Commission From: Erik Berg-Johansen, Assistant Planner, Eugene Planning Division Subject: Appeal of Hearings Official Decision: Laurel Ridge Zone Change (Z 15-5) ACTION REQUESTED The Planning Commission will hold a public hearing on an appeal of a zone change that was recently approved by the Hearings Official. The appeal, filed by the Laurel Hill Valley Citizens (LHVC) neighborhood association, contests the approved boundary line between the proposed R-1 and PRO zones on the subject property. Given the limited time frame between this hearing and the expiration of the allowed 120-day statutory time limit, the Planning Commission should also begin deliberations this same evening, immediately following the close of the public hearing. Deliberations will continue at the next regular meeting scheduled for October 26th, with final action required no later than November 6th in order to meet the 120-day deadline for a final local decision in accordance with ORS 227.178 and 197.763(6)(e). BACKGROUND In 2012, the current applicant (Environ-Metal Properties, LLC) requested a zone change from Agriculture (AG) to Low-Density Residential (R-1) zoning on the subject properties (for a vicinity map, see Attachment A). The proposal, which included concurrent tentative Planned Unit Development, Standards Review, and Traffic Impact Analysis applications, did not propose to rezone any portion of the site as Park, Recreation & Open Space (PRO) zoning. PRO zoning is the associated zoning to implement the Metro Plan Parks and Open Space (POS) land use designation category. The proposal was originally heard by the Hearings Official on August 28, 2013, and was ultimately denied. To summarize, the Hearings Official found that the Metro Plan diagram clearly shows the POS designation on a portion of the subject site, and that the applicant erred in omitting the POS designation entirely. In the end, the Hearings Official’s decision to deny the project was affirmed by the Planning Commission, Oregon Land Use Board of Appeals (LUBA), and the Court of Appeals. Since that time, the applicant has re-applied for a zone change which acknowledges the existence of POS designation on the subject property, and proposes to establish a combination of R-1 and PRO zoning to implement the applicable Metro Plan designations. The Hearings Official recently approved the zone change, which is now the subject of an appeal by the affected neighborhood association. Page 1 PC Agenda - Page 1 PLANNING COMMISSION’S REVIEW ROLE Based on procedural requirements set forth in the Eugene Code (see EC 9.7655), the PC may address only those issues set out in the written appeal statement. Further, the PC limits its consideration to the evidentiary record established before the HO; the PC may not accept new evidence, except that which it officially notices. The City Attorney has advised that the PC should not use its authority to take official notice of material that would be new evidence when it is considering an appeal. The Eugene Code requires that the PC’s decision on this appeal be based on whether or not the HO failed to properly evaluate the application or make a decision consistent with the applicable criteria. Those criteria are the Zone Change Approval Criteria at EC 9.8865, to the extent they are implicated by the appeal. This is particularly important given the subject matter of this appeal; the PC’s role is not to dissect the evidence and choose the “correct” or preferred zoning configuration in the first instance as if it were the original decision-maker. Instead, the PC’s role on appeal is to determine whether or not the HO erred in his decision, based on the record of evidence and testimony he had before him. Staff also notes that the sole criterion at issue in this zone change appeal is EC 9.8865(1), which states the following: EC 9.8865(1): The proposed zone change is consistent with applicable provisions of the Metro Plan. The written test of the Metro Plan shall take precedence over the Metro Plan diagram where apparent conflicts or inconsistencies exist. In the event that the PC finds the HO did not err, the PC may simply affirm his decision, or adopt supplemental findings in support of that affirmation. If the PC determines the HO erred and chooses to modify or reverse the decision, the PC is required to provide specific findings of fact as to why the decision was in error. The PC cannot reverse the decision without such findings. As discussed above, it is critical that the PC’s decision on this appeal be issued no later than November 6th to meet the 120-day statutory time limit. The PC’s decision must be made in accordance with the procedures for appeals at EC 9.7650 through EC 9.7685. SUMMARY OF APPEAL ISSUES In 2014, LUBA affirmed that some POS designation (which corresponds to PRO zoning) exists on the subject site. The question raised by the current application was not if POS designation exists, but rather how much (in terms of acreage) exists on the subject site. In effect, the central issue is where the boundary exists between R-1 and PRO zoning on the subject property, based on interpretation of an ambiguous adopted plan diagram that shows a split (non- parcel specific) plan designation on the subject property. The record reflects that the applicant and opponents have differing methods and interpretations of how to correctly determine the location of the zoning boundary. The Hearings Official weighed that evidence on both sides and ultimately approved an alternative map that was created by the applicant during the open record period following the first evidentiary hearing (see Attachment B). LHVC asserts that the approved zone change includes less PRO zoning than is required to demonstrate consistency with the Metro Plan. The appeal statement (see Attachment C) identifies various Page 2 PC Agenda - Page 2 assignments of error which are all focused on the approved location of the boundary line between the R-1 and PRO zones on the subject property. Four appeal issues were raised by the appellant, which are summarized below and detailed in the written appeal statement. Staff also notes that the applicant’s representative, Bill Kloos, submitted a “motion to strike” (Attachment D) in response to the original appeal statement. The motion proposed redactions of text and attachments (maps) that were alleged to be new evidence. The City’s legal counsel agrees with the majority of the proposed redactions, as some new evidence/testimony was presented in the original appeal statement. As such, the original appeal statement has been removed from the record and is not attached to this AIS. In response to this motion to strike, appellants submitted a revised appeal statement (Attachment C). As stated, staff agrees with the majority of the applicant’s proposed redactions that eliminated certain sections and attachments of the original appeal statement. However, staff does not agree that the appellants’ reference to the dotted blue City limit line must be redacted. A clean version of ZC-4 was submitted by the applicant early on in this process. That document showed a dotted blue line representing the Eugene city limits. Accordingly, appellants’ reference in their appeal statement to the dotted blue line is not new evidence and need not be redacted. While this is not new evidence, the PC must still determine whether or not the City limits line (which is not present on the Metro Plan diagram) can legally be used to determine the location of the boundary line between POS and LDR plan designations. To assist the Planning Commission in determining whether to affirm, reverse, or modify the Hearings Official’s decision (see Attachment E), staff has identified pertinent record information and considerations below. 1. First Assignment of Error: “The Hearings Official erred by not taking into consideration the misplaced City Limit line shown as a dotted blue line on ZC-4… Proper placement of this line using Spring Boulevard, which is depicted on the Metro Plan, allows for a much more accurate and unequivocal location of the applicant property on the Metro Plan.” (See appeal statement for full text of this appeal issue). Summary: LHVC believe that the applicant’s zoning configuration, as approved by the HO, was created in error by not using the City limits line in relationship to Spring Boulevard as an additional physical referent to ensure a more accurate representation of the disputed zoning boundary. HO Decision: “It seems reasonable to me to align East 30th Avenue along the property line as the applicant did. That method seems more likely to be more accurate in the vicinity of the property than aligning East 30th Avenue farther away from the property. Therefore, I agree with the applicant that it properly used East 30th Avenue as a referent” (see HO Decision, Page 6). Staff Comments: The HO’s final decision, as quoted above, was primarily based on the alignment of East 30th Avenue Page 3 PC Agenda - Page 3 along the property line (as well as the 2 degree rotation issue with regard to the north arrow on the Metro Plan diagram), not the City limits line or Spring Boulevard. The HO did not explicitly address the location of the City limits in his decision; however, staff can confirm that he was aware of this issue as it was brought up at the hearing and is present in the record. In other words, staff believes that the HO considered the City limit line as shown on ZC-4, but chose not to base his final decision on the location of the City limits line in relation to the location of Spring Boulevard, in favor of the applicant’s argument and evidence. In any event, staff notes the adopted Metro Plan diagram does not show the location of the City limits line, thereby precluding its use as a physical referent from the adopted diagram under EC 9.8865(1). 2. Second Assignment of Error: The Hearings Official erred by allowing the applicant to use 30th Avenue as the sole referent to locate their property on the 2004 Metro Plan Diagram as seen in their map ZC-4 L included in the ‘Public Comment-Applicant Post-Hearing’ (Attachment #4).” (See appeal statement for full text of this appeal issue). Summary: The appellant’s testimony has consistently pointed out that mapping accuracy can be increased with the use of multiple referents (i.e. other streets in addition to 30th Avenue). In this case, the applicant used two referents: 30th Avenue and the north arrow as shown on the adopted Metro Plan diagram. HO Decision: “LHVC also uses tax lots for other properties, city limits, and additional streets to generate what it argues are more accurate maps than the applicant. LHVC materials were prepared in part by a certified engineering geologist, and the arguments are compelling. In fact, if the question were where the boundary is most likely located using any available information, I would likely agree with LHVC. In determining the boundary, however, we are all bound by the 2004 Metro Plan diagram.” (see HO Decision, Page 6) Further, the HO states the following: “In conclusion, this present situation is not like a math or science problem that if we work hard enough or look closely enough that the correct answer will appear. There is no exact correct answer. As there is no exactly correct answer, the best guess is the best I can do. As LUBA stated, we must to do the best we can with the tools at our disposal, and some of those tools arguably restricted the analysis.” (see HO Decision, Page 8) Staff Comments: The HO acknowledges that using additional referents could have increased the accuracy of the approved zoning configuration. However, the HO found that the analysis was legally “restricted” by the inconclusive 2004 Metro Plan diagram, and that the applicant correctly followed LUBA’s direction in terms of the referents used to align the maps. 3. Third Assignment of Error: The Hearings Official erred when he states, on page 6: “As staff’s September 2, 2015 memorandum explains, LHVC used maps generated by LCOG from a digital version that is different from the 2004 Metro Plan.” In fact, on September 2, 2015, during the open record period, LHVC submitted 5 additional maps, two of which place the applicant’s Page 4 PC Agenda - Page 4  property on high-resolution scans of the approved 2004 Metro Plan Diagram obtained from City Planning Staff.” (See appeal statement for full text of this appeal issue). Summary: LHVC are concerned that the HO did not consider their most recently submitted maps, which were created using a scanned version of the official (paper) 2004 Metro Plan diagram. HO Decision: The relevant quote from the HO’s decision is included in the “Third Assignment of Error” listed above. Staff Response: Staff confirms that a scanned version of the 2004 Metro Plan diagram was transmitted to the appellants, and it appears that they used this scanned version in their more recently created maps and figures submitted during the open record period following the public hearing (see LHVC Sheets 9/2/15- 03 and 9/2/15-04 in LHVC’s “Open Record Submittal”). Based on the HO’s acknowledgment and discussion of these maps in the record, it appears that he did not ignore them but also did not decide in favor of adopting them as part of his approval. 4. Fourth Assignment of Error: The Hearings Official erred by ignoring the absence of an accurate acreage calculation in the revised application. (See appeal statement for full text of this appeal issue). Summary: LHVC asserts the HO erred in approving the zone change without an exact acreage determined for the portion of the subject site to be zoned PRO. HO Decision: The HO did not require an exact calculation of acreage based on the applicant’s map that was approved. He did, however, adopt a condition of approval based on staff’s recommendation to require the applicant’s legal description of the approved zoning boundary to be reviewed and approved by the City Surveyor. Staff Comments: The exact acreages of the resulting areas to be zoned R-1 and POS based on the HO’s approval are not included in the record. However, the condition of approval will ensure that the acreage is subsequently determined as part of the City Surveyor’s review and approval of the zoning boundary, in the event that the HO’s decision is affirmed. STAFF RECOMMENDATION Staff recommends that the Planning Commission determine whether to affirm, modify, or reverse the Hearings Official’s decision regarding the contested boundary between R-1 and PRO zone boundaries. Depending on that determination, the PC may need to adopt supplemental or revised findings as part of its Final Order, to be issued no later than November 6, 2015. ATTACHMENTS A. Vicinity Map Page 5 PC Agenda - Page 5 B. Hearings Official’s Approved Zone Change Map (reduced in size) C. LHVC Appeal Statement (Revised Version) D. Applicant’s Motion to Strike (with Attachments) E. Hearings Official Zone Change Decision The entire record of materials for the subject application is available for review at the Eugene Planning Division offices and will be provided to the PC separately. The full record will also be available at the public hearing. FOR MORE INFORMATION: Please contact Erik Berg-Johansen, Assistant Planner, Eugene Planning Division, by phone at (541) 682- 5437, or e-mail at erik.berg@ci.eugene.or.us Page 6 PC Agenda - Page 6  Attachment A - Vicinity Map RIVERVIEW ST SNOWBERRY RD N S EL FLORAL H ILL DR C RO ERO OCK PIN R KD R Tax Lot 701 H 0T E3 AV E Tax Lot 703 BLOOMBERG RD Bloomberg Legend City Park Subject Properties FO RE ´ Streets ST BL Taxlots VD Miles Caution: This map is based on imprecise 0 0.125 0.25 0.5 source data, subject to change, and for general reference only. 8-7-2015 PC Agenda - Page 7  PC Agenda - Page 8 EXHIBIT L Attachment B OR ION T F CT NO TRU NS CO ZONE CHANGE: METRO PLAN LAURELRIDGE NEAR 30TH AVENUE AND SPRING BLVD., EUGENE OREGON DIAGRAM ON SUBJECT PROP. MAP 18-03-10-00, LOTS 701 & 703 Legend Notes SUBJECT SITE 1. LOT 701 PROPERTY LINE BASED ON A 6.27.2011 SURVEY BY BRANCH ENGINEERING. SURVEYED PROPERTY LINE 2. CITY LIMITS AND URBAN GROWTH SURVEYED BOUNDARY BASED ON 6.27.2011 SURVEY URBAN GROWTH BOUNDARY BY BRANCH ENGINEERING. 3. 30TH AVENUE CENTERLINE LOCATED USING RECORDED DATA FROM LANE N PROPOSED BOUNDARY COUNTY SURVEYOR'S OFFICE BY BRANCH BETWEEN POS AND LDR ENGINEERING. 4. ADOPTED 2004 METRO PLAN MAP: 30TH AVENUE CENTERLINE IMAGE WAS SCANNED AND THEN Revisions ROTATED 2 DEGREES. # Date Description 1 9.2.15 Adopted 2004 MP Map • •• • • • ••• • • •• • • • •• • • • • •• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • JSB / ces 5-15-2015 ZONE CHANGE 1104 RMS Project Number Drawn By Checked Phase Date ADOPTED 2004 METRO PLAN MAP: ROTATED ZC-4 Attachment C PC Agenda - Page 9 Attachment C PC Agenda - Page 10 Attachment C PC Agenda - Page 11 Attachment C PC Agenda - Page 12 Attachment C PC Agenda - Page 13 Attachment C PC Agenda - Page 14 Attachment C PC Agenda - Page 15 Attachment C PC Agenda - Page 16 Attachment C PC Agenda - Page 17  Attachment D LAW OFFICE OF BILL KLOOS PC OREGON LAND USE LAW 375 W. 4TH AVENUE, SUITE 204 BILL KLOOS EUGENE, OR 97401 BILLKLOOS@LANDUSEOREGON.COM TEL: 541.343.8596 WEB: WWW.LANDUSEOREGON.COM October 8, 2015 Eugene Planning Commission C/o City of Eugene Planning and Development 99 West 10th Avenue Eugene, OR 97401 Re: LaurelRidge Zone Change (City File Z 15-5) Applicant’s Motion to Strike Parts of Blix Appeal City of Eugene: The Hearing Official approved the requested zone change. Laurel Hill Valley Citizens appealed the approval on October 6. The appeal as filed violates the code. It includes new evidence, in violation of the code. It raises issues not raised below, in violation of the code. The applicant requests the illegal evidence and issues be redacted. This motion to strike the objectionable material is based on EC 9.7655, which provided in part: (2) The appeal shall be submitted on a form approved by the city manager, be accompanied by a fee established pursuant to EC Chapter 2, and be received by the city no later than 5:00 p.m. of the 12th day after the notice of decision is mailed. The record from the proceeding of the hearings official or historic review board shall be forwarded to the appeal review authority. No new evidence pertaining to appeal issues shall be accepted. (3) The appeal shall include a statement of issues on appeal, be based on the record, and be limited to the issues raised in the record that are set out in the filed statement of issues. The appeal statement shall explain specifically how a hearings official or historic review board failed to properly evaluate the application or make a decision consistent with applicable criteria. The basis of the appeal is limited to the issues raised during the review of the original application. [Emphasis added] The following items or allegations in the appeal document constitute new evidence. They may not be accepted. They must be redacted. 1. Attachment #1 – An excerpt from the City of Eugene’s Internet-based zoning map showing a portion of the subject property. This zoning map is not on the record. It is new evidence. It is not allowed in this appeal. PC Agenda - Page 18  Attachment D Eugene Planning Commission October 8, 2015 Page 2 2. Attachment #3c – A marked-up copy of the applicant’s diagram ZC-4. This copy here has hand-drawn markings applied by the appellant. This marked-up diagram, presented here as Attachment #3c, is not on the record. It is new evidence. It is not allowed in this appeal. 3. Appeal Statement, Page 1, para 3: “…the accompanying sheet ZC-4…” is referring to Attachment #3c. As Attachment #3c is a marked-up copy of sheet ZC-4 and, because it is marked-up, is new evidence, then any narrative discussing sheet ZC-4 is also new evidence and is not allowed in this appeal. 4. Appeal Issue 1. There are two references to ZC-4 and one reference to Attachment #3c, which is a marked-up copy of ZC-4. As noted above, this copy of ZC-4 is new evidence. These three references, therefore, are new evidence and are not allowed. 5. Appeal Issue 1. The middle section of this issue narrative, beginning on line seven, is a detailed explanation of how to use Attachment #3c. As Attachment #3c is new evidence, so is this detailed explanation. Specifically, the statement is: “As shown on Attachment #3C this can be done by placing Point A of the overlay (Attachment #3A) at Point C of the Metro Plan (Attachment #3B) and making Line A-B parallel to the green finger (having the little trapezoid of City up against the east side of the finger). This proper overlay can be seen in LHVC Sheet 912115-01 (Attachment #2) which was included in the LHVC Post Hearing submission.” This is new evidence and is not allowed. 6. Appeal Issue 1. The last sentence of this issue narrative refers to Attachment #1. As Attachment #1 is new evidence, so is this sentence. Specifically, the statement is: “That this is the proper location of the Eugene City Limits relative to the Spring Blvd “finger” can be verified by examining area maps such as the Eugene Zoning Map (Attachment #1)” This is new evidence and is not allowed. 7. Appeal Issue 4. The statement “City of Eugene staff has estimated that there appears to be approximately 42 acres of PRO designated land on the subject property” does not appear in the record. It is, therefore, new evidence and is not allowed. 8. Appeal Issue 4. The statement “This acreage of steep slopes and unstable soil contains the headwaters of a federally protected creek and wildlife corridor to the Willamette River” is not in the written record. It is therefore new evidence and is not allowed. PC Agenda - Page 19  Attachment D Eugene Planning Commission October 8, 2015 Page 3 The following items or allegations in the appeal document constitute new issues that were not raised before the Hearing Official. They may not be accepted. They must be redacted. 1. Appeal Issue 4. This appeal issue states that the HO erred by ignoring the absence of an accurate acreage number in the applicant’s materials. Acreage calculations were included in the applicant’s initial application materials and in the staff report. Whereas “acreage calculations” are in the record, the alleged requirement for an “accurate acreage calculation” as part of revised application materials or as part of a decision, is not in the record. Put differently, it is only in this appeal that anyone has alleged the requirement for an “accurate acreage calculation.” Because this issue was not raised below, it may not be raised here. Attached to this letter is a copy of the appeal on which we have redacted with black lines the material that should be redacted, based on the errors listed above. Sincerely, Bill Kloos Bill Kloos Cc: Schirmer Satre Group Client Encl: Appeal showing proposed redactions PC Agenda - Page 20 Attachment D PC Agenda - Page 21 Attachment D PC Agenda - Page 22 Attachment D PC Agenda - Page 23 Attachment D PC Agenda - Page 24 Attachment D PC Agenda - Page 25 Attachment D PC Agenda - Page 26 Attachment D PC Agenda - Page 27 Attachment D PC Agenda - Page 28 Attachment D PC Agenda - Page 29 Attachment D PC Agenda - Page 30  Attachment D FINAL ORDER OF THE EUGENE PLANNING COMMISSION ON APPEAL OF ENVIRON‐METAL PROPERITES, LLC ZONE CHANGE (Z 15‐5) I. INTRODUCTION This Final Order concerns the appeal by the Laurel Hill Valley Citizens of the September 24, 2015, decision of the Eugene Hearing Official approving zone changes for about 120 acres of land. The decision was a zone change from AG/WR ‐ Agricultural with Water Resource overlay to PRO/PD/WR –Parks, Recreation & Open Space with Planned Development and Water Resource overlays and R‐1/PD/WR – Low‐Density Residential with Planned Development and Water Resource overlays. The central issue in this application was locating the boundary between the LDR and POS plan designations on the Metro Plan Diagram. The Hearing Official summarized the general issue as follows, at page 3 of his decision. In the present case, the applicant has attempted to ascertain the boundary between the LDR and POS plan designations. The applicant has provided its position on where the boundary is and has requested R‐1 zoning to the north of the boundary and PRO zoning to the south of the boundary. Opponents, including the Laurel Hill Valley Citizens (LHVC), dispute the applicant’s location of the boundary and provided evidence of where they believe the boundary should be located. Unsurprisingly, the applicant’s boundary would allow for more R‐1 zoning while the opponents’ boundary would require more PRO zoning. The dispute in this case is the location of that boundary. II. PRELIMINARY ISSUES The applicant has objected to several parts of the appeal statement filed by Weltzen Blix on behalf of the LHVC. The objections contends that the appeal contains some new evidence that should be stricken. The objections also allege that the appeal includes an issue that was not raised in the proceeding before the Hearing Official. We resolve those issues here. **** III. ISSUES ON APPEAL The findings below address all issues raised in the LHVC appeal, notwithstanding the procedural objection raised in Part II above. LHVC Appeal Issue 1: LHVC alleges that the HO erred in failing to take into consideration the city limits line when determining where the LDR/POS plan boundary line is located on the Metro Plan Diagram. PC Agenda - Page 31  Attachment D The HO did not error in failing to rely on the city limits line in any way in locating the LDR/POS boundary line. The HO explained, on page 6 paragraph 2 of his decision: “LHVC also uses tax lots for other properties, city limits, and additional streets to generate what it argues are more accurate maps than the applicant. City limits and tax lots are not depicted on the 2004 Metro Plan diagram. So even though LHVC’s maps may be theoretically more accurate, they are not more accurate for determining the boundary by using the 2004 Metro Plan diagram.” In summary, the task is to clarify the location of the LRD/POS boundary line on the Metro Plan Diagram. The Diagram does not show the city limits line. The text of the Metro Plan is explicit that in this area the Metro Plan Diagram is not parcel‐specific. It would be erroneous to use city limit lines. LHVC Appeal Issue 2: The LHVC alleges that the HO erred in using only 30th Ave. as a referent to locate the property on the Metro Plan Diagram. LHVC says that Spring Blvd and Bloomberg Park should also have been used. There are two issues here: (a) Whether it was error to use only 30th Ave.; and (b) Whether Spring Blvd. and Bloomberg Park also should have been used. (a) The applicant and the HO actually used multiple “referents” to locate the property on the Metro Plan Diagram. The HO used both the 30th Ave. alignment adjacent to the property, and the north arrow on the Diagram. The UGB line was also used, in a general way, to confirm that some part of the property has a POS plan designation. The task before the City is to locate a survey of the subject tax lot on the Metro Diagram, which in this area is ambiguous because, as the text of the Metro Plan says, the Diagram is not tax lot specific. It is also important to note that the text of the Metro Plan does not set a minimum or maximum number of referents to use at any location. It is also worth noting that the Staff concurred with the methodology used by the applicant and approved by the HO. The September 2 Staff Memorandum says: “Staff believes the applicant did not fundamentally err in their methodology. In fact, they did essentially what LUBA had prescribed in their prior decision to uphold the City’s denial of a previous zone change application for the subject property – to scan the Metro Plan diagram into a digital format, enlarge it, and use 30th Avenue as a physical referent. The applicant obtained surveys of the 30th Avenue centerline and the subject tax lots; this allowed them to establish the relationship between 30th Avenue and the boundaries of the subject tax lots. Then, the applicant matched the surveyed 30th Avenue location with the Metro Plan diagram’s representation of 30th Avenue (a solid black line). In theory, this “overlay” method is not PC Agenda - Page 32  Attachment D incorrect and it will produce results with some degree of accuracy. Staff acknowledged this early on in the process, which is why approval of the zone change was recommended in the first place.” (b) The HO did not error in failing to use Spring Blvd and Bloomberg Park as additional referents for locating the property on the Diagram. Spring Blvd. is considerably more remote from the subject property than 30th Ave., and, in contrast to 30th Ave., the surveyed location of the Spring Blvd. right of way is not known in relation to the subject property. Bloomberg Park is not labelled on the Metro Plan Diagram. LHVC is referring to a green blob on the Diagram as Bloomberg Park, but the exact location of the park is not shown on the Diagram. Again, the text of the Metro Plan explains that Diagram is not tax lot specific in the area of the green blob that LHVC is calling Bloomberg Park because at that location there is a boundary line between two plan designations. Put differently, the generalized (non‐tax lot specific) location of the Bloomberg Park green blob is not useful in determining the exact location of the generalized boundary line between LDR and POS on the subject property. LHVC Appeal Issue 3: The LHVC alleges that the HO should have relied upon their Sheet 9/2/15‐03 as locating the plan boundary more accurately. As noted by the applicant, it appears that the LHVC actually intends to reference their Sheet 9/2/15‐04, which is a scaled up copy of the Metro Plan Diagram. However, the version of scaled up copy of the Diagram has been supplemented with city limits lines. As noted above, city limits lines do not appear on the Metro Plan Diagram and, therefore, may not be used as an aid to locate the subject property. As the HO decision says, at page 6 paragraph 2: “City limits and tax lots are not depicted on the 2004 Metro Plan diagram.” Therefore, the LHVC has not shown error in the decision in this respect. LHVC Appeal Issue 4: The LHVC alleges that the HO erred by failing to consider acreage calculations when resolving the plan boundary lines. They reference estimates of acreage they say were provided by city staff. They allege: “It is an error if a zone change is approved when the exact acreage subject to the change is not part of the application.” The HO did not error in failing to require acreage calculations in connection with the application or by failing to consider resulting acreage numbers when resolving the ambiguous plan diagram for this site. Knowing acreages is not related to any criteria for making this zone decision. The logic of the inquiry is to resolve the ambiguity in the plan, using the correct rules, thus determining exactly where the LDR/POS boundary line is. Once the location of the line is known, it can be reduced to a metes and bounds description. The final acreage calculations result from that final delineation. PC Agenda - Page 33  Attachment D The foregoing findings and conclusions are adopted as the Final Order of the Eugene Planning Commission for Environ‐Metal Properties LLC Zone Change (Z 15‐5), on this __th day of October, 2015. ______________________________ William Randall, Chair Eugene Planning Commission PC Agenda - Page 34  Attachment E DECISION OF THE HEARINGS OFFICIAL FOR THE CITY OF EUGENE, OREGON ZONE CHANGE INTRODUCTION Application File Name (Number): Environ-Metal Properties, LLC/ Laurel Ridge (Z 15-5) Applicant’s Request: Zone change from AG/WR - Agricultural with Water Resource overlay to PRO/PD/WR – Parks, Recreation & Open Space with Planned Development and Water Resource overlays and R-1/PD/WR – Low-Density Residential with Planned Development and Water Resource overlays. Subject Property/Location: Located at the end of Riverview Street, north of 30th Avenue, west of Moon Mountain. Assessor’s Map 18-03-10-00 - Tax Lots 701 and 703. Relevant Dates: Application submitted on March 27, 2015; application forced complete on July 2, 2015; public hearing held on August 26, 2015. Applicant’s Representative: Richard Satre of the Schirmer Satre Group. Lead City Staff: Erik Berg-Johansen, Associate Planner, Eugene Planning Division. Summary of the Public Hearing The Hearings Official held a public hearing on this application on August 26, 2015. The Hearings Official stated he had no conflicts of interests, was not biased, and had no ex parte communications to disclose. No person objected to the Hearings Official conducting the hearing. Erik Berg-Johansen (Berg-Johansen), Associate Planner, and Gabe Flock, Senior Planner, were present for the hearing. Berg-Johansen presented the staff report at the public hearing, recommending approval of the application. Richard Satre and Bill Kloos spoke in favor of the application. A number of neighbors from the Laurel Hill area spoke in opposition to the application. At the conclusion of the public hearing, the Hearings Official left the record open for Hearings Official Decision (Z 15-5) Page 1 PC Agenda - Page 35  Attachment E one week for the submission of new evidence, one additional week for responses to the new evidence, and one more week for the applicant’s final legal argument. FACTS The subject property is comprised of two tax lots totaling 121.68 acres located in the Laurel Hill valley area. Tax lot 701 is the northern parcel and is located just south of the terminus of Riverview Street and Hendricks Hill Drive. Tax lot 703 to the south is located just northeast of 30th Avenue. Although the property has been annexed into the City, it still retains an Agricultural (AG) zoning designation with a Water Resource (WR) overlay. Adjacent parcels to the east are also zoned AG and parcels to the north are zoned Low-Density Residential (R-1). Large parcels to the south are located outside of the City’s urban growth boundary (UGB) and designated forest land. Most of the southern boundary of tax lot 703 is also the southern edge of the UGB which runs near a ridgeline. The applicant seeks to rezone some of the property Low- Density Residential with Planned Development and Water Resource overlays (R-1/PD/WR) and part of the property Parks, Recreation & Open Space with Planned Development and Water Resource overlays – (PRO/PD/WR).1 In 2012, the applicant sought to rezone the entire property R-1.2 The applicant also submitted concurrent applications for a planned unit development, standards review, and a traffic impact analysis. An approval criterion for zone changes is that the proposed zone change be consistent with the Metro Plan. As discussed in more detail later, the Metro Plan is a general map that does not show specific parcels in the area of the applicant’s property. On the Metro Plan the boundary between a Low Density Residential (LDR) plan designation (which R-1 zoning enacts) and a Parks and Open Space (POS) plan designation (which PRO zoning enacts) is close to the UGB that is the southern boundary of tax lot 703. In the 2012 applications, the applicant argued that all of the property inside the UGB was planned LDR. Another hearings official denied the applications for not being consistent with the Metro Plan because he found that the boundary between the LDR and POS plan designation was north of the UGB and ran through the applicant’s property. The Planning Commission and the Land Use Board of Appeals (LUBA) affirmed the Hearings Officer’s conclusion that part of the applicant’s property is planned POS. 1 Because there is no dispute regarding the planned development and water resource overlays, for ease of reference I will just refer to the two proposed zoning designations as R-1 and PRO. 2 There is a small portion of tax lot 703 in the southeast corner that is outside the UGB that was not included in the 2012 zone change request or the present request and is not at issue. Hearings Official Decision (Z 15-5) Page 2 PC Agenda - Page 36  Attachment E See Environ-Metal Properties, LLC v. City of Eugene, ___ Or LUBA ___ (LUBA No. 2013-098, Jan. 29 2014) (providing a more detailed explanation of the property). The court of appeals affirmed LUBA’s decision without an opinion. 263 Or App 714 (2014). Although LUBA agreed with the previous Hearings Official that part of the applicant’s property was planned POS, LUBA did not determine where the boundary was but did provide some guidance on how to determine a more precise location of the boundary. In the present case, the applicant has attempted to ascertain the boundary between the LDR and POS plan designations. The applicant has provided its position on where the boundary is and has requested R-1 zoning to the north of the boundary and PRO zoning to the south of the boundary. Opponents, including the Laurel Hill Valley Citizens (LHVC), dispute the applicant’s location of the boundary and provided evidence of where they believe the boundary should be located. Unsurprisingly, the applicant’s boundary would allow for more R-1 zoning while the opponents’ boundary would require more PRO zoning. The dispute in this case is the location of that boundary. DOCUMENTS CONSIDERED BY THE HEARINGS OFFICIAL I have considered all of the documents in the planning file for the proposed zone change, (Z 15-5) as well as the testimony and documents provided at the public hearing and the evidence submitted during the open record period. ANALYSIS Eugene Code (EC) 9.8865 provides the criteria for approval of a zone change.3 EC 9.8865(1) provides in pertinent part that the “proposed change is consistent with the applicable 3 EC 9.8865 provides: “Zone Change Approval Criteria. Approval of a zone change application, including the designation of an overlay zone, shall not be approved unless it meets all of the following criteria: “(1) The proposed change is consistent with applicable provisions of the Metro Plan. The written text of the Metro Plan shall take precedence over the Metro Plan diagram where apparent conflicts or inconsistencies exist. “(2) The proposed zone change is consistent with applicable adopted refinement plans. In the event of inconsistencies between these plans and the Metro Plan, the Metro Plan controls. “(3) The uses and density that will be allowed by the proposed zoning in the location of the proposed change can be served through the orderly extension of key urban facilities and services. Hearings Official Decision (Z 15-5) Page 3 PC Agenda - Page 37  Attachment E provisions of the Metro Plan.” The dispute in this case is whether the applicant’s proposed zone change is consistent with the boundary between LDR and POS plan designations on the Metro Plan diagram. There is no dispute regarding whether the remaining zone change approval criteria in EC 9.8865 are satisfied. I have reviewed the staff report and it thoroughly analyzes the remaining zone change approval criteria and explains why they are satisfied. I therefore adopt and incorporate those findings in this decision. A preliminary issue is whether I must only determine whether the applicant’s proposed boundary is correct or whether I must determine where the boundary is if different from the applicant’s proposal. Opponents argue that if the applicant’s proposed boundary is inaccurate (which they argue it is) that the application should be denied. The applicant argues that even if it is wrong about the boundary of the location, the City must determine where the boundary is and rezone the property accordingly. I agree with the applicant that the location of the boundary is a matter of law and that the applicant is entitled to a zone change to R-1 up to the boundary, wherever the boundary is. In 2012, the applicant submitted a development plan along with the zone change request. Because the zone change request was denied, the development plans also had to be denied. In the present case, the applicant is only seeking a zone change and is waiting on the final location of the zoning boundary to submit development plans. It is not the applicant’s fault that the Metro Plan is not parcel specific and it is difficult to determine exactly where the boundary is. The applicant should not be required to submit multiple applications trying to determine where the boundary is located. The applicant has submitted a reasonable proposal for where the boundary should be located. The applicant has demonstrated that it is entitled to a zone change to R-1 north of the boundary and PRO south of the boundary. While it might seem that determining the specific boundary between plan designations would be relatively straightforward, it has turned out to be anything but. The location of the boundary is depicted on the 2004 Metro Plan diagram. The Metro Plan diagram was originally “(4) The proposed zone change is consistent with the applicable siting requirements set out for the specific zone * * *. “(5) In cases where the NR zone is applied based on EC 9.2510(3), the property owner shall enter into a contractual arrangement with the city to ensure the area is maintained as a natural resource area for a minimum of 50 years.” Hearings Official Decision (Z 15-5) Page 4 PC Agenda - Page 38  Attachment E adopted in 1980 and then amended in 1987 and 2004. There are more recent maps purporting to be the Metro Plan diagram, but as explained by the applicant the last adopted Metro Plan diagram was the 2004 version. No new versions of the Metro Plan diagram have been adopted since 2004. The 2004 Metro Plan diagram is a small scale map on an 11 x 17 inch map where one inch equals approximately 7000 feet. The POS designation is depicted in a green color and the LDR designation in a yellow color. The UGB is depicted as a dashed black line. The UGB line, however, is only approximation as the exact location of the UGB was not established until a boundary commission decision in 2007. East 30th Avenue and the UGB intersect on the Metro Plan just to the southwest of the property. After agreeing with the City that at least some of the applicant’s property was planned POS, LUBA suggested a potential method to determine a precise location for the boundary: “Because the Metro Plan diagram is now digitized, and the depicted plan boundaries are sharper than in previous versions, the problem may not be as difficult to solve as petitioners [the applicant] fear. It may be possible to scale up the digital version of the map, overlay it with property lines from a digital database, and determine the precise plan designation boundaries on the subject property with reasonable accuracy. If for some reason that is not possible, the city and petitioner will have to do the best they can with the tools at their disposal.” Slip op 21. While the applicant argues that LUBA’s instructions are merely dicta and need not be followed, LUBA’s suggestions certainly seem like a good place to start. The applicant, however, does raise the point that LUBA was not aware that there is not a digitized version of the 2004 Metro Plan available. As the applicant explains, although there is a digitized version of the Metro Plan, that digitized version is not identical to the 2004 Metro Plan. The Lane Council of Governments (LCOG) maintains the maps and data used in generating the maps. The current version available from LCOG has made adjustments and improvements since 2004. LCOG also specifically states that the only version of the Metro Plan that is considered official is the 2004 11 x 17 inch version.4 As digitized versions cannot be used precisely as LUBA suggested, the parties have had “to do the best they can with the tools at their disposal.” In general, the parties have attempted to follow LUBA’s suggestion by enlarging the relevant portion of the Metro Plan and superimposing the subject property on that enlargement. 4 As the applicant points out, LCOG’s August 12, 2015 letter to LHVC states, “[e]ven now, after several iterations of adoption and amendment, it is worth noting that the only version of the Metro Plan Diagram that is considered official is the one produced at the 11 x 17 size and scale, on which the designations are depicted over single-line representation of major streets and roads.” Hearings Official Decision (Z 15-5) Page 5 PC Agenda - Page 39  Attachment E The applicant produced a metes and bounds description of the property. No one appears to take issue with that description. The applicant then superimposed the subject property, using the metes and bounds description, on to a same scale version of the 2004 Metro Plan. Because the 2004 Metro Plan is generalized, the decision of where to place the subject property when superimposing it on the 2004 Metro Plan requires the use of referents to properly line up the two maps. The applicant used Eat 30th Avenue and the north arrow to align the two maps. An enlarged version of the applicant’s proposed boundary is depicted in Exhibit M. LHVC does not agree with the method the applicant used to superimpose the map of the property on to the scaled version of the 2004 Metro Plan. LHVC produced maps showing much more POS designated land by using a version of the Metro Plan diagram obtained from LCOG that are depicted in Exhibits 1-5 to their letter of September 2, 2015. LHVC also uses tax lots for other properties, city limits, and additional streets to generate what it argues are more accurate maps than the applicant. LHVC materials were prepared in part by a certified engineering geologist, and the arguments are compelling. In fact, if the question were where the boundary is most likely located using any available information, I would likely agree with LHVC. In determining the boundary, however, we are all bound by the 2004 Metro Plan diagram. As staff’s September 2, 2015 memorandum explains, LHVC used maps generated by LCOG from a digital version that is different from the 2004 Metro Plan. Even though that digitized version is likely more accurate than the 2004 Metro Plan, even LCOG acknowledges that only the 2004 Metro Plan is the official version of the diagram. Furthermore, city limits and tax lots are not depicted on the 2004 Metro Plan diagram. So even though LHVC’s maps may be theoretically more accurate, they are not more accurate for determining the boundary by using the 2004 Metro Plan diagram. LHVC also takes issue with how the applicant aligned East 30th Avenue with the subject property. According to LHVC, aligning the location of East 30th Avenue on the map of the property with East 30th Avenue on the 2004 Metro Plan diagram results in the two depictions of East 30th Avenue diverging from each other, particularly the farther you get from the property. LHVC attempted to align East 30th Avenue differently to show more POS plan designation for the property. The 2004 Metro Plan diagram is a generalized map. When it is scaled up to match metes and bounds descriptions of individual parcels there will almost always be discrepancies. No matter where you align East 30th Avenue, the farther you get away from the alignment the Hearings Official Decision (Z 15-5) Page 6 PC Agenda - Page 40  Attachment E more the maps will diverge. It seems reasonable to me to align East 30th Avenue along the property line as the applicant did. That method seems more likely to be more accurate in the vicinity of the property than aligning East 30th Avenue farther away from the property. Therefore, I agree with the applicant that it properly used East 30th Avenue as a referent.5 LHVC also argues that the applicant misaligned the map of the property on the 2004 Metro Plan diagram because it did not rotate the map of the property to match the rotation of the 2004 Metro Plan diagram. Upon close examination of the 2004 Metro Plan diagram, it is apparent that the north arrow is not pointing straight up to the top of the page, but instead is pointing slightly clockwise. LHVC explains that this is a two degree tilt to align with “grid north” as opposed to straight up, which would be pointing to “true north.” Without descending into a cartographical rabbit hole, essentially grid north is designed to take into account the discrepancy of creating a flat map of the spherical earth. LHVC argues that while the 2004 Metro Plan is tilted two degrees to grid north, the map of the property that the applicant superimposed on the 2004 Metro Plan is not tilted and is pointed to true north. The applicant laudably confirmed during the open record period that in fact the map of the property was pointed to true north while the Metro Plan is tilted to grid north. If LHVC is correct that the map of the property was not tilted as it should have been to align with the 2004 Metro Plan then additional portions of the applicant’s property would be designated LDR. In its final legal argument, the applicant argues that the two degree tilt to grid north on the 2004 Metro Plan is merely a scrivener’s error and should be disregarded. The applicant argues that the 1980 and 1987 versions of the Metro Plan diagram, as well as the unofficial LCOG 2010 version all have the north arrow pointing straight up to true north. The applicant further argues that the findings associated with decision creating the 2004 Metro Plan diagram do not mention the north arrow. According to the applicant, if the governing bodies had intended to rotate the north arrow in the decision they would have mentioned it. Furthermore, the applicant argues that rotating the north arrow might result in different zoning designations for parcels from 1987 to 2004 in areas of the Metro Plan diagram that are not parcel specific. 5 LHVC also argues that a map submitted by the applicant during the 2012 application demonstrates that the applicant’s current proposed boundary is inaccurate. Applicant’s sheet SA 7.0 does show more of the property in the POS designation than the current proposal. I agree with the applicant, however, that that map was only used as a planning tool as was not in any way meant as a representation of the LDR/POS boundary. Hearings Official Decision (Z 15-5) Page 7 PC Agenda - Page 41  Attachment E There does not appear to be any explanation for why the north arrow points to true north in the 1980 and 1987 Metro Plan diagrams and points to grid north in the 2004 Metro Plan diagram. Perhaps the applicant is correct that the north arrow on the 2004 Metro Plan diagram is a scrivener’s error. Perhaps the scrivener’s errors occurred on the 1980 and 1987 Metro Plan Diagrams. As LHVC points out, there is a reason that the north arrow might be tilted towards grid north. ORS 93.312(2) provides: “A description of land that contains coordinates associated with the position of a point on a land boundary must: “(a) Use the Oregon Coordinate System; “(b) Use one specified zone and system for the entire description * * *.” According to LHVC, the Oregon Coordinate System is what requires using grid north. While the applicant is correct ORS 93.312 is not applicable to land use decisions and the 2004 Metro Plan diagram does not have coordinates, it is some justification for why the north arrow might be tilted. Ultimately, I have no way of knowing whether the north arrow pointing to grid north on the 2004 Metro Plan diagram is a scrivener’s error or not. As discussed earlier regarding more recent potentially more accurate versions of the Metro Plan diagram, we are stuck with what is depicted on the 2004 Metro Plan diagram for better or for worse. For whatever reason, the 2004 Metro Plan diagram depicts the north arrow pointing to grid north rather than true north. Therefore, I find that the map of the subject property should also have been tilted two degrees to grid north. The applicant admirably recognized this might be a potential resolution and generated a map using the 2004 Metro Diagram and a map of the subject property also tilted two degrees to grid north. This map is submitted as Exhibit L. The applicant also submitted a metes and bounds legal description of the boundary depicted in Exhibit L in Exhibit O. I believe this is the most accurate description of the boundary between the LDR and POS plan designations on the property. Staff has asked for a condition of approval that the legal description be subject to review and approval by the City Surveyor and the City of Eugene Public Works Department. The applicant does not object to that condition of approval. In conclusion, this present situation is not like a math or science problem that if we work hard enough or look closely enough that the correct answer will appear. There is no exact correct answer. As there is no exactly correct answer, the best guess is the best I can do. As LUBA Hearings Official Decision (Z 15-5) Page 8 PC Agenda - Page 42  Attachment E stated, we must to do the best we can with the tools at our disposal, and some of those tools arguably restricted the analysis. Given the 2004 Metro Plan diagram and the metes and bounds description of the property, I believe the best guess is to align East 30 th Avenue along the western edge of the property and to rotate the map of the property to align with grid north as depicted in Exhibit L and described in Exhibit O. DECISION Based upon the available evidence and preceding findings, the Hearings Official APPROVES the applicant’s request for a zone change from AG/WR – Agricultural with Water Resource overlay to PRO/PD/WR – Parks, Recreation & Open Space with Planned Development and Water Resource overlays and R-1/PD/WR – Low-Density Residential with Planned Development and Water Resource overlays, with the following condition of approval: (1) The legal description in Exhibit O shall be subject to review and approval by the City Surveyor and the City of Eugene Public Works Department. Dated this 24th day of September, 2015. 24th day of September 2015. Mailed this _____ Fred Wilson Hearings Official SEE NOTICE OF HEARINGS OFFICIAL DECISION FOR STATEMENT OF APPEAL RIGHTS Hearings Official Decision (Z 15-5) Page 9 PC Agenda - Page 43