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, AUGUST 23, 2016 – 6:00 P.M. PUBLIC HEARING: APPEAL OF HEARINGS OFFICIAL DECISION FOR CATHEDRAL PARK (CU 02-4) The Planning Commission will hold a public hearing on appeal of the Hearings Official’s decision to approve a conditional use permit for 172 units of Controlled Income and Rent housing on the southerly undeveloped 15.8 acres of the Rest Haven Memorial Park cemetery at 3900 Willamette Street. See agenda item summary for more information. Lead City Staff: Gabe Flock, 541-682-5697 gabriel.flock@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 Planning Commissioners to staff. 7. Rebuttal testimony from applicant. 8. Closing of public hearing. Planning Commissioners: Steven Baker; John Barofsky (Vice Chair); John Jaworski; Jeffrey Mills; Brianna Nicolello; William Randall; Kristen Taylor (Chair)  AGENDA ITEM SUMMARY August 23, 2016 To: Eugene Planning Commission From: Gabe Flock, Senior Planner, Eugene Planning Division Subject: Appeal of Hearings Official Decision: Cathedral Park (CU 02-4) ACTION REQUESTED The Planning Commission will hold a public hearing on an appeal of a Conditional Use Permit (CUP) application that was recently approved by the Eugene Hearings Official. The application and CUP approval is for a development proposal that includes up to 172 dwelling units of Controlled Income and Rent (CIR) Housing. BACKGROUND The proposed development is located on the undeveloped southerly portion of the Rest Haven Memorial Park cemetery property at 3900 Willamette Street, encompassing an area of approximately 15.8 acres. A vicinity map and a reduced version of the applicant’s most recent site plans of record are provided as Attachments A and B. The CUP application for Cathedral Park was originally submitted on April 8, 2002. The City initially deemed the application incomplete and upon submittal of supplemental application materials, the applicant requested that the City deem the application complete for processing. The City’s Planning Director then responded with a letter to the applicant rejecting the application, with an explanation of the City’s reasoning (i.e. the inability to address the conflicts that it posed between the proposed development and the existing CUP for Rest Haven Memorial Park”). The applicant appealed the City’s decision to reject the application to the State’s Land Use Board of Appeals (LUBA). LUBA remanded the City’s decision to reject the application (see LUBA No. 2002-131, included in the full record), meaning they returned it to the City to undertake the required land use application process for a CIR-CUP application. Following the remand, the applicant did not request that the City proceed with its review and decision on the application until recently, on May 11, 2016. Given the procedural history dating back to 2002 when the application was originally deemed complete, the City’s review of the proposal is based exclusively on the applicable approval criteria that were in effect for CIR housing at the time the application was submitted (see EC 9.696-9.724). In other words, the decision to approve, approve with conditions or deny the proposal must be based only on whether the proposal complies with these criteria. EC 9.386(13), in effect at that time, provides that “[w]here an application is processed under section 9.724, the provisions of that section are exclusive” and thus no other approval criteria apply. The applicable approval criteria from EC 9.724, are listed in both the original staff report and the Hearings Official’s decision approving the CUP. Page 1 PC Agenda - Page 1 The initial public hearing on this CIR-CUP request was held on June 29, 2016 and the record was left open for additional evidence and testimony until July 8, 2016. Another period was allowed for response to the open record testimony until July 15, 2016. Applicant's final written argument was due by July 22, 2016 and the Hearings Official’s decision granting approval was issued on July 31, 2016. The Hearings Official’s decision includes a number of approval conditions under the applicable criteria related to phasing, necessary infrastructure, preservation of trees and other vegetation, setbacks and screening. See Attachment C for a full copy of the Hearings Official’s decision granting approval of the applicant’s CIR-CUP request. Please also refer to the original staff report for a more detailed summary of the procedural history of the application to date. The applicant’s materials also include a detailed analysis on the legislative history of the City’s CIR housing provisions which provide helpful context as to the narrow scope and exclusive nature of the applicable approval criteria for CIR housing in this case. PLANNING COMMISSION’S REVIEW ROLE Based on procedural requirements set forth in the Eugene Code (2002), the Planning Commission may address only those appeal issues set out in the written appeal statements. Further, the Planning Commission limits its consideration to the evidentiary record established before the Hearings Official (see EC 9.714). The Planning Commission generally does not accept new evidence on appeal, and the decision on appeal is based on whether or not the Hearings Official failed to properly evaluate the application or make a decision consistent with the applicable criteria. Those criteria are the exclusive CIR-CUP approval criteria, as noted above, from EC 9.724. Before granting an appeal, or changing the conditions of approval the Hearings Official imposed, the commission is required to make findings of fact as to why the Hearings Official’s findings were in error (see EC 9.716). SUMMARY OF APPEAL ISSUES Two appeals of the Hearings Official’s approval decision were received by the City on August 11, 2016. The first was submitted by Bill Kloos on behalf of the applicant, Charles Wiper, Inc. This appeal is focused solely on the “goal post rule” (ORS 227.178(30(a) and whether the standards in effect on April 8, 2002 would be used to evaluate and issue any permits needed to implement the approval of the CIR- CUP. The second appeal was submitted by Marilyn Cohen on behalf of multiple co-appellants, and include five appeal issues, which are briefly summarized below: 1. Public wastewater services are not available to the entire project; 2. The 1995 CUP restricts the applicant’s ability to develop the site and to access roads and utilities on other parts of the cemetery; 3. There is insufficient evidence in the record regarding the proposed private stormwater services and the proposed private street; 4. Proposed piping of Brae Burn Creek and the capture, piping and pumping of surface and stormwater to irrigate portions of the cemetery unnecessarily removes attractive and natural vegetation; 5. The application is too vague for approval. Page 2 PC Agenda - Page 2 Please see the attached written appeal statements for further information on the appeal issues raised (see Attachments D and E). The City Attorney’s memo pertaining to the “goal post rule” that is referenced in the applicant’s appeal is provided as Attachment F. Due to the short timeframe between receipt of the appeals and publication of this agenda item summary, it was not possible to provide an itemized response or recommendation on each appeal issue. STAFF RECOMMENDATION Staff recommends that the Planning Commission hold the public hearing and upon subsequent deliberations (scheduled for August 25th and 29th) determine whether to affirm, modify, or reverse the Hearings Official’s decision. Staff also notes that the final local decision on this appeal is required by September 8, 2016 in order to meet the statutory 120-day deadline. ATTACHMENTS A. Vicinity Map B. Reduced Site Plan C. Hearings Official Decision D. Applicant’s Appeal Statement E. Opponent’s Appeal Statement F. City Attorney’s Memo (June 29, 2016) 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 Planning Commission separately. The full record will also be available at the public hearing, and is publicly available on the City’s website at: http://pdd.eugene- or.gov/LandUse/SearchApplicationDocuments?file=CU-02-0004. FOR MORE INFORMATION: Please contact Gabe Flock, Senior Planner, Eugene Planning Division, by phone at (541) 682-5697, or by e-mail at gabriel.flock@ci.eugene.or.us. Page 3 PC Agenda - Page 3  Attachment A Cathedral Park - Vicinity Map (CU 02-4) T ES W 36TH AVE EN ST C E 36TH AVE OE LA W 37TH AVE WR NR KNOB HILL LN KEY C MO E 37TH AVE DELLWOOD DR T WATKINS LN E 38TH AVE W 38TH AVE E 39TH AVE W 39TH AVE DE E RT RAIL R D HIGH ST E 39TH PL R DENSMO PEARL ST RE S T- ST HA OE VE MO N R N E RD M EM OAK ST O RI AL W 40TH AVE PA R K E 40TH AVE NORMANDY WAY PEARL ST O AK CT OAK ST BRAE B E 42ND AVE URN DR D LN INWOO R ST D MI E LL D SI K ST HI G HS O R RO ED ETT B LOCHM O OR PL KS ID E T OO E 46TH AVE BR WESTBROOK WAY L AM ST ´ WIL NA LD LP E E 47TH AVE DO DG K RI C RO Ft Legend 0 250 500 1000 Rest Haven Cemetery Property Controlled income and rent housing proposed on southern portion of property (see site plan) PC Agenda - Page 4 Attachment B PC Agenda - Page 5 PROPOSED BOUNDARY NORTHWEST 40TH AVENUE PHASE / SOUTHWEST PHASE BRAE BURN DRIVE S 9°59 '35" W 906.31 ' NORTHWEST PHASE 707.33' 9" W S 6°0'4 SOUTHWEST PHASE AREA OF 375 West 4th, Suite 201, Eugene OR 97401 PROPOSED DEVELOPMENT SCREENING IMPACT AREA Phone: 541.686.4540 Fax: 541.686.4577 RESERVOIR BRAE BURN DRIVE www.schirmersatre.com N 88°17'41" E 1383.25' PROPOSED BOUNDARY SOUTHWEST PHASE / SOUTHEAST PHASE BRAE BURN DRIVE DEVELOPMENT CONDITIONAL USE PERMIT IMPACT AREA CATHEDRAL PARK AERIAL EXHIBIT NORTHEAST PHASE SOUTHEAST PHASE N 0°25'51"E 560.13' . . N PROPOSED BOUNDARY Scale: 1" = 100' - 0" SOUTHEAST PHASE / NORTHEAST PHASE N 89°37'40" E 555.34' 0 50 100 200 Revisions # Date Description June 29, 2016 ST. JUDE CHURCH PROPERTY 16 August 2002 N 1°31'40"W 684.00' W 774.47' N 4°31'20" Project Number . ces ces . © 2016, SCHIRMER SATRE GROUP STREET WILLAMETTE Drawn By Checked Date Phase CU-1A  Attachment C DECISION OF THE HEARINGS OFFICIAL FOR THE CITY OF EUGENE, OREGON CONDITIONAL USE PERMIT REQUEST Application File Name (Number): Cathedral Park (CU 02-4). Application Summary: Conditional use permit application to construct 172 units of controlled income and rent housing. Property Owner/ Applicant: Charles Wiper. Lead City Staff: Gabe Flock, Senior Planner. Subject Property/Zoning/Location: Southerly portion of undeveloped portion of Rest Haven Memorial Park Cemetery, west of Willamette Street, north of Braeburn Drive. Assessor’s Map 18-03-18-00 Tax Lot 300. The current zoning is R-1/WR – Low-Density Residential with a Water Resources Conservation Overlay. When the application was filed, the zoning was RA – Suburban Residential and did not include the Water Resources Conservation Overlay. Relevant Dates: The application was originally submitted on April 8, 2002. The application was eventually deemed incomplete on August 15, 2002 and rejected by the City on September 13, 2002. The Land Use Board of Appeals remanded the City’s decision on March 3, 2003. The applicant requested that the remand application be processed on May 11, 2016. A public hearing was held on June 29, 2016. Summary of the Public Hearing At the public hearing, senior planner Gabe Flock discussed the staff report and explained that there was not enough information to demonstrate compliance with all of the approval criteria. City attorney Anne Davies discussed the applicable ordinances. The applicant’s representatives explained the nature of the application and argued in favor of its approval. A number of neighbors and other opponents testified in opposition to the application. At the conclusion of the public Hearings Official Decision (CU 02-4) 1 PC Agenda - Page 6  Attachment C hearing, the record was left open nine days for the submission of new evidence, one additional week for responses to the new evidence, and one more additional week for the applicant’s final legal argument. DOCUMENTS CONSIDERED BY THE HEARINGS OFFICIAL I have considered all of the documents in the planning file for the proposed conditional use permit (CU 02-4), including all the materials submitted during the open record period, as well as the testimony provided at the public hearing. FACTS This case involves an unusual situation. The subject property, Rest Haven Cemetery, has been involved in numerous land use applications, disputes, and appeals to various bodies. The cemetery is a 72-acre parcel surrounded by residential uses. The present case begins with a conditional use permit (CUP) approval obtained in 1995 that authorized the cemetery use in two phases. The first phase authorized cemetery uses on the most of the property except the southern portion of the property. The second phase authorized cemetery uses on the southernmost 15.8 acres of the property known as Zone 6 (the area in dispute in the present case) subject to Condition of Approval 17 which required a 75-foot buffer along the southern property line. The CUP did not approve a specific development plan for the second phase, but instead required a later application and approval in order to develop that portion of the property. In 2002, the owner sought to develop Zone 6 as controlled income and rent (CIR) housing. The CIR application was filed as a CUP under the applicable Eugene Code (EC) provisions at the time. The City refused to process the 2002 CIR housing application because the City believed the CIR application was in conflict with the 1995 CUP. The owner appealed the City’s refusal to process the application to the Land Use Board of Appeal (LUBA), who remanded the decision instructing the City to process the application and make a decision. Wiper v. City of Eugene, 44 Or LUBA 127 (2003). Subsequent to the remand, the owner filed a new application to allow the CIR housing or to modify the 1995 CUP to remove Zone 6 from the cemetery CUP. This application was not a proceeding on remand on the CIR housing application that had been remanded by LUBA. Instead it was a new application regarding the 1995 CUP. The City denied this application because allowing CIR housing in Zone 6 could not be accomplished with a CUP modification. The owner appealed that denial to LUBA, and LUBA affirmed the City’s denial. Wiper v. City of Eugene, 47 Hearings Official Decision (CU 02-4) 2 PC Agenda - Page 7  Attachment C Or LUBA 21 (2004). Thus, the existing state of circumstances was an approved 1995 CUP and a remanded 2002 CIR housing application. The remanded CIR housing application sat unaddressed for many years. A recent change in state law requires such lingering applications to be processed or abandoned. The applicant therefore asked that the 2002 CIR housing application be processed. The applicant realizes that CIR housing cannot be approved on Zone 6 unless Zone 6 is removed from the 1995 cemetery CUP. In order to remove Zone 6 from the 1995 CUP, the applicant must obtain approval of a new CUP for the cemetery, and the applicant has apparently begun the process of seeking a new CUP. Normally, the applicant would obtain the new CUP for the cemetery that would remove Zone 6 before applying for the CIR housing, but because the new statute requires action on the remanded CIR application within a certain time the CIR CUP must proceed before obtaining a new CUP for the cemetery. The applicant realizes that approval of the CIR CUP would require a condition of approval requiring approval of a new CUP for the cemetery removing Zone 6 from the 1995 CUP. The proposed CIR CUP application request is for approval of 172 units consisting of 12 studio units, 36 one-bedroom flats, 92 two-bedroom flats, 20 two-bedroom townhouses, 12 three- bedroom townhouses, and one community building. The applicant does not intend to develop the CIR housing but rather to work with an experienced developer of affordable housing to complete the project. Because the applicant is not planning on developing the project independently, some of the details of the proposed development are not as specific as if the application were being submitted by the developer. The proposed development would construct Cathedral Way running in a roughly U-shape from Willamette Street on the east, along the southern portion of Zone 6, and connecting to West 40th Avenue on the west, which would then connect to Braeburn Drive further to the west. The residences would be constructed along Cathedral Way. Although some of the existing trees would remain, many of the trees in the 75-foot buffer would be removed. Cathedral Way would run along the southern boundary of the property but would still have some buffer. When Cathedral Way turns north and runs along the western boundary, however, the developed area would be adjacent to the property line. A creek crosses the property in the southwest portion of the property. The creek is piped on both sides of the property but is not piped on the property. The application seeks to pipe the rest of the creek, and to use collected surface water and storm water for irrigation purposes. Hearings Official Decision (CU 02-4) 3 PC Agenda - Page 8  Attachment C ANALYSIS This application was originally filed in 2002. Under the “goal post” rule, the application must be decided based upon the approval criteria that were applicable when the application was first submitted.1 In 2002, CIR housing was a conditional use in the RA zone. EC 9.724 (2002) provided the applicable provisions for CIR housing.2 EC 9.724(1) provides: “Allowance of increased density. Subject to the standards contained in this section, the hearings official may increase density as follows: “(a) In RA and R-1 zoning districts, up to 75 percent of the allowable density for an R-2 development * * *.” As the staff report explains, the allowable density for R-2 development was 20 units per acre, so the proposed CIR CUP may have up to 15 units per acre. The staff report further explains that the proposed CIR CUP would have a density of either 11 or 11.8 units per acre depending on whether the Cathedral Way is included in the calculation. Either way, the proposed density easily is less than the allowable 15 units per acre. EC 9.724(1) is satisfied. EC 9.724(2) provides: “Criteria for hearings official approval. Applications for conditional use permits for controlled income and rent housing shall be processed and scheduled for public hearings in the same manner as other conditional permit applications, except the following shall substitute for the required criteria listed in 9.702: “(a) Public facilities and services are available to the site. If the public services and facilities are not currently available, an affirmative finding may be made if the evidence indicates that they will be available prior to the need by reason of: “1. Prior commitment of public funds or planning by the appropriate agencies, or “2. A commitment by the applicant to provide private services and facilities acceptable to the appropriate public agencies, or 1 ORS 227.178(3)(a) provides: “If the application was complete when first submitted or the applicant submits the requested additional information within 180 days of the date the application was first submitted and the city has a comprehensive plan and land use regulations acknowledged under ORS 197.251, approval or denial of the application shall be based upon the standards and criteria that were applicable at the time the application was first submitted.” 2 Unless otherwise noted, all EC references are to the 2002 version that was applicable when the applicable was filed. Hearings Official Decision (CU 02-4) 4 PC Agenda - Page 9  Attachment C “3. Commitment by the applicant to provide for offsetting all added public costs or early commitment of public funds made necessary by the development.” The staff report states that public facilities are available to the site. Opponents provided substantial amounts of testimony arguing that various public facilities and services are inadequate to serve the increase in population that would occur with approval of the CIR housing. In particular, opponents argue sanitary sewer, storm water, schools, and roads are not adequate to serve the proposed development. Opponents argue that traffic is already congested and dangerous on both sides of the property. According to opponents, the proposed CIR housing would only exacerbate an already serious problem. Opponents also argue that storm water runoff already causes problems for properties near the southwestern corner of the property. According to opponents, the creek in the southwestern corner already floods and the increased impervious surfaces would make the problem worse. Opponents also argue that schools do not have capacity for the additional students that would arrive with the proposed development. If EC 9.724(2)(a) required that all public facilities and services were adequate to serve the proposed use, I might well agree with opponents that the approval criterion was not satisfied. EC 9.724(2)(a), however, does not require that public facilities and services are adequate – merely that they are “available.” As the applicant explains in a lengthy history of the CIR ordinances, an earlier version of EC 9.724(2)(a) required that “[p]ublic and private facilities are adequate to meet anticipated demand.” (Emphasis added.) After the adequacy requirement resulted in problems for obtaining approvals for CIR housing, the City amended the EC to remove the adequacy requirement so that CIR housing applications could be approved as long as public facilities and services were available to the site rather than requiring that they be adequate. As the applicant further explains, the Planning Commission applied the version of EC 9.724(2)(a) at issue in the present case in the Woodleaf Village case (CU 95-7) and in response to arguments that public facilities and services were not adequate found that the EC amendments removed the adequacy requirement. The Planning Commission found that public facilities and services were available to the property and imposed conditions of approval to improve some of the public facilities and services that needed improvement due to the project. As the Woodleaf Village case makes clear, the question under EC 9.724(2)(a) is whether public services are available not whether they are adequate. In the present case, even though some of the public facilities and services may be Hearings Official Decision (CU 02-4) 5 PC Agenda - Page 10  Attachment C currently inadequate they are available.3 Opponents’ arguments concerning the inadequacy of public facilities and services do not provide a basis for denying the application. Many of the opponents’ arguments regarding traffic, noise, disturbances, views, and storm water are based on the alleged adverse impacts the proposed CIR housing development would have on the opponents’ use and enjoyment of their properties. While those would be valid and relevant arguments under a standard CUP application, such adverse impacts are not a consideration under EC 9.724(2), except as discussed later under EC 9.724(2).4 Therefore, except as discussed later, opponents’ arguments regarding adverse off-site impacts do not provide a basis for denying the application. EC 9.724(2)(a) is satisfied. EC 9.724(2)(b) provides: “The proposed project is designed to: “1. Avoid unnecessary removal of attractive vegetation; “2. Provide setbacks or screening as necessary when possible and practical to ensure privacy to adjacent outdoor living areas; and “3. Provide safe and usable parking, circulation, and outdoor living areas as well as ingress and egress.” EC 9.724(2)(b)(1) requires that the proposed project is designed to “[a]void unnecessary removal of attractive vegetation.” The CIR housing application proposes to remove substantial amounts of vegetation. All of the vegetation contained within the U-shaped site plan is proposed to be removed to construct the proposed road, buildings, and facilities. Opponents argue that the proposal violates EC 9.724(2)(b)(1) because so much vegetation is proposed to be removed. According to opponents, too much vegetation would be removed, in particular the large trees that currently provide a buffer on the southern portion of the property. The staff report states that there 3 The applicant and staff have proposed conditions of approval to improve public facilities and services. 4 Under current EC 9.8090(2) the conditional use approval criteria provide: “The location, size, design, and operating characteristics of the proposal are reasonably compatible with and have minimal impact on the livability or appropriate development of surrounding property, as they relate to the following factors: (a) The proposed building(s) mass and scale are physically suitable for the type of density of use being proposed. (b) The proposed structures, parking lots, outdoor use areas or other site improvements which could cause substantial off-site impacts such as noise, glare and odors are oriented away from nearby residential uses and/or are adequately mitigated through other design techniques, such as screening and increased setbacks. (c) If the proposal involves a residential use, the project is designed, sited and/or adequately buffered to minimize off-site impacts which could adversely affect the future residents of the subject property.” Hearings Official Decision (CU 02-4) 6 PC Agenda - Page 11  Attachment C is not enough information to determine whether there is unnecessary removal of attractive vegetation: “Because the full extent of vegetation removal remains unclear, and the applicant has not justified the necessity of the proposed alignments, the necessity for vegetation removal in those areas is not clearly demonstrated. Without more precise information regarding the location of existing vegetation, and the area of necessary construction impact to accommodate the proposed facilities (serving the proposed CIR housing), an evaluation of the extent of necessary vegetation removal is not possible at this time. “Staff acknowledges that something less than a full tree inventory (as required for Woodleaf Village) would be adequate, subject to consideration and approval by the Hearings Official. For example, the applicant could still provide a more detailed plan showing the full extent of grading and site improvements, a more detailed look at the trees adjacent to the limits of proposed impact, along with an arborist report recommending proposed protection measures. “Additionally, conditions of approval could be imposed to ensure that a tree preservation plan is put in place to ensure protection of the trees indicated to remain over the long-term, and pending any additional evidence provided by the applicant, staff would request the opportunity to evaluate and recommend any appropriate conditions of approval in response to what is provided.” Staff Report 11. The applicant provided clarification for which portions of the property would have vegetation removed. While the exact specifications of the proposed development are not finalized, the applicant has provided a site plan that shows which areas would have vegetation removed. The applicant again explains how the Planning Commission interpreted this provision in the Woodleaf Village case. The Planning Commission found: “Given the intent and direction of the council to facilitate the construction of controlled income rent housing, and the fact that this term is found in the criteria for approval of an increase in density, leads to a conclusion that an element of necessary destruction of vegetation is that which must be lost to accommodate the increased density. The maximum allowable density under the ordinance must be presumed and vegetation lost to accommodate that maximum density is necessarily lost. * * * “It is a fact of development, however, that the site must accommodate the housing units, common areas and dedicated streets. If a site has vegetation throughout, as this one does, it will be necessary to remove a substantial portion of that vegetation in order to accommodate a controlled income and rent housing project.” Hearings Official Decision (CU 02-4) 7 PC Agenda - Page 12  Attachment C As the applicant demonstrates, under EC 9.724(2)(b)(1) if CIR housing construction is proposed for a particular area then the vegetation gets removed. In areas that are not proposed for development, the vegetation is to be preserved. The CIR housing proposal only proposes to remove vegetation in the areas proposed for development. The application proposes to retain the remaining vegetation. The applicant has suggested conditions of approval that further protect remaining vegetation. While it is true that a large amount of vegetation is proposed to be removed, under the reasoning in Woodleaf Village it is not unnecessary removal. Furthermore, the applicant is not even proposing to develop to the maximum allowable density. As discussed earlier, the applicant proposes to pipe the currently exposed creek in the southwestern portion of the property. Opponents argue, among other things, that in order to pipe the creek that additional vegetation would have to be removed. According to opponents, because the applicant does not have to pipe the creek (and they also argue piping the creek is prohibited) removing vegetation to pipe the creek is unnecessary. The applicant explains that piping the creek is necessary to get sanitary lines under the creek to reach City facilities south of the property and that it is necessary to remove vegetation to get storm water to the creek. Opponents have not pointed to anything in the 2002 EC that would prohibit piping the creek. I agree with the applicant that piping the creek is part of the CIR housing development and therefore removing vegetation for that development is not unnecessary. EC 9.724(2)(b)(1) is satisfied. EC 9.724(2)(b)(2) requires that the proposed project is designed to “[p]rovide setbacks or screening as necessary when possible and practical to ensure privacy to adjacent outdoor living areas.” Currently there is at least a 75-foot buffer in Zone 6 for residences to the south and southwest of the property. The proposed CIR housing would eliminate much but not all of the buffer on the southern boundary and would eliminate all of the buffer on the western boundary where Cathedral Way would connect to West 40th Avenue. Opponents argue that eliminating so much of the 75-foot buffer would not provide enough of a setback along the southern and western boundaries. According to opponents, adjoining residences need to be screened from the proposed use to protect their privacy. The staff report found that it was not clear that EC 9.724(2)(b)(2) is satisfied. “Based on the applicant’s June 9, 2016 site plans, trees and vegetation generally provide adequate screening along the southern and southwestern property lines, assuming preservation of such areas is conditioned. However, along the western property line (just south of the proposed connection of the private street to W. Hearings Official Decision (CU 02-4) 8 PC Agenda - Page 13  Attachment C 40th Avenue) high-impact/activity areas including parking areas and trash enclosures are shown located right on or adjacent to the property line. No trees or vegetation is proposed to be retained or preserved in these areas, nor is any screening shown on the site plans. As apparent on the aerial photo, this area backs up to outdoor living areas of the adjacent residential uses. While staff believes that residential development is not necessarily or inherently incompatible with other adjacent, residential uses, the applicant’s plans with regard to setbacks, fencing and screening are not entirely clear under this standards in terms of ensuring privacy to adjacent outdoor areas. It may be that with additional information, clarification, and perhaps refinements to the proposed site plans that the applicant could demonstrate compliance under this standard.” Staff Report 12. Although the exact details of the CIR housing would not be provided until a CIR developer is brought in, the proposed site plan shows the areas where the housing, roads, parking lots, and public facilities would be located. Even though the precise details of development are not known, the proposed site plan shows where the development would be located in relation to adjoining residences. EC 9.724(2)(b)(2) concerns ensuring “privacy to adjacent outdoor living areas.” The adjacent outdoor living areas at issue are the back yards of residences adjoining the subject property to the south and west. I agree with the staff report that the proposed CIR housing has sufficient setbacks and screening from the residences to the south and southwest. In the south and southwest portions of the proposed site plan the proposed CIR housing is not developed up to the property line. There are open spaces and existing trees that would be retained that provide adequate screening to adjoining backyards. The back yards to the west present a closer question. The proposed site plan shows the CIR development. There are residences, parking areas, and trash receptacles very close to the west property line on the site plan. If the approval criterion required that there be adequate setbacks and screening to ensure the privacy of adjacent outdoor uses, I would likely agree with opponents that the application does not satisfy the approval criterion. EC 9.724(2)(b)(2), however, only requires that the privacy of adjacent outdoor living area be ensured when “possible and practical.” The applicant explains that the Planning Commission determined what EC 9.724(2)(b)(2) means in the Woodleaf Village case. “[EC 9.724(2)(b)(2) does] not promise much in the way of absolute protection from impacts of an abutting development of a controlled income and rent housing project. In short, the criterion requires the developer to ‘do the best you can under the circumstances.’ No absolute level of effectiveness of setback or Hearings Official Decision (CU 02-4) 9 PC Agenda - Page 14  Attachment C screening reducing impacts on adjacent property is required or assumed by the criterion.” Although the proposed CIR housing development is adjacent to the residences adjoining the property to the west, the applicant has done the best it can under the circumstances. Given that Cathedral Way connects to West 40th Avenue, the proposed development needs to be closer to those residences. Proposed conditions of approval require a sight obscuring fence, wall, or vegetation along the western property line to provide screening. While total privacy of adjacent outdoor living areas would not be achieved, the application ensures such privacy as much as is possible or practical under the circumstances. EC 9.724(2)(b)(2) is satisfied. EC 9.724(2)(B)(3) requires that the proposed project is designed to “[p]rovide safe and usable parking, circulation, and outdoor living areas as well as ingress and egress.” Opponents argue that the application does not meet this approval criterion, in particular ingress and egress from the property. The staff report explains how the application satisfies the safety requirements for these features. The staff report focuses on the safety of such features on the subject property and ingress and egress from the property. Opponents’ arguments include concerns about dangerous conditions on the roads adjoining the property. I agree with the staff report that the application satisfies the safety requirements on the subject property. The staff report notes that Cathedral Way may be too steep in certain places, but that such problems can be resolved through conditions of approval. Proposed conditions of approval require road design to comply with the 1999 road standards that were in effect at the time the application was submitted. With conditions of approval, EC 9.724(2)(b)(3) is satisfied. EC 9.724(2)(c) provides: “The increase in density shall not be permitted in areas that are unavailable for controlled income and rent (CIR) housing with increased density. Areas that are unavailable for increased density are shown on Figure 33 as shaded areas. Those areas not shaded on Figure 33 are available for CIR housing with increased density.” As the staff report explains, the subject property is not within any of the shaded areas in Figure 33. Therefore, 9.724(2)(c) is satisfied. The applicant has satisfied all the applicable approval criteria for a conditional use permit. A number of opponents’ arguments misconstrue the nature of the application. Many of opponents’ arguments are based on the theory that the proposed application violates the provisions Hearings Official Decision (CU 02-4) 10 PC Agenda - Page 15  Attachment C and conditions of approval of the 1995 CUP, in particular Condition of Approval 17. Even many of opponents’ arguments regarding EC 9.724(2) incorporate references to a required 75-foot buffer. While Condition of Approval 17 from the 1995 CUP included a 75-foot buffer, there is nothing in the approval criteria for a CIR housing CUP that requires a 75-foot buffer. While opponents are correct that the proposed CIR housing would run afoul of the 1995 CUP and Condition of Approval 17, the application is specifically based on the premise (and a condition of approval) that the applicant will also obtain a new CUP regarding the cemetery use that allows Zone 6 to be removed from the cemetery CUP. All of opponents’ arguments regarding the 1995 CUP and/or the 75-foot buffer area do not provide a basis to deny the application. Although this decision approves a conditional use permit for CIR housing, the applicant cannot construct the CIR housing without obtaining further approvals, such as building permits. Since this application was filed in 2002, the City has adopted a number of new ordinances that arguably could apply to future permits for the CIR housing. The applicant explains that some of those provisions cannot be satisfied and would result in the approved CUP being prevented from being constructed. The applicant argues that none of the new provisions should be applicable to future permits necessary to develop the CIR housing under the goal post rule. See n 1. The City argues that the goal post rule would not be applicable to future applications to develop the property such as building permits and that the new provisions would apply. The applicant seeks conditions of approval determining that the new provisions do not apply to any future development of the CIR housing. The City seeks conditions of approval determining that the any future development of the CIR housing be subject to the current provisions. While I understand the applicant’s desire to decide the issue (the uncertainty regarding having to comply with provisions that are impossible to comply with could drive away potential developers), I think any decision on this issue would be speculative and advisory. The applicant and the City identify a number of potential EC provisions that they think could apply to any future building permits, but even if such provisions are likely to arise they have not yet arisen and there is no guarantee exactly which provisions may be at issue. The present application is for a conditional use permit to construct controlled income and rent housing, this application is not for building permits. Any speculation about what standards and criteria would apply to future building permits would be just that – speculation. Hearings Official Decision (CU 02-4) 11 PC Agenda - Page 16  Attachment C The parties spend a great deal of time discussing goal post rule cases and their applicability to the present situation. A number of those cases are not particularly relevant to the present situation because they did not involve a two-step approval process like the present case where the first step is approval of a certain type of use and the second step is an application for development such as a building permit to actually construct the use that was approved. Even in those cases involving a two-step process, the issue of what standards and criteria applied arose during the second step – when for instance building permits were submitted – not during the first step. The current application is just the first step, and I do not think it is appropriate or even possible to decide issues that might arise during the second step. For instance, the goal post rule only applies to applications for a permit. “Permit” is defined as “the discretionary approval of a proposed development of land.” While it seems likely that any issues regarding what standards and criteria apply during a potential step two process would be discretionary, until such applications are filed and responded to by the City that is not absolutely for certain. Even assuming all such applications would be discretionary and permits for purposes of the goal post rule, there is hardly an exhaustive list of what potential EC provisions might apply, and as the goal post cases demonstrate the nature of those provisions might affect which standards and criteria apply. Even if the City is correct that current standards and criteria would apply, the City acknowledges that under Gagnier v. City of Gladstone, 38 Or LUBA 858 (2000), the City “may not apply development standards at the building permit phase, where to do so would result in denial of a project that was previously approved in the processing of a land use application.” This further illustrates that the applicability or inapplicability of current standards and criteria will have to be addressed individually if and when they arise.5 Until any future applications are submitted, any decision about what standards and criteria apply to those applications would be pure speculation. DECISION For all the reasons set forth above, the Hearings Official APPROVES the conditional use permit to construct 172 units of controlled income rent housing, subject to the following conditions of approval: 5 This illustrates the difficulty of even trying to craft conditions of approval at this stage that would be workable at a later stage. A potential condition of approval would have to state which set of standards and criteria apply – except in circumstances where they do not apply. I do not think there is any way to definitively state now what standards and criteria might apply to any future applications. Those standards and criteria will have to be determined on a standard and criterion by standard and criterion basis. Hearings Official Decision (CU 02-4) 12 PC Agenda - Page 17  Attachment C CONDITIONS OF APPROVAL 1. As allowed by EC 9.718, the CIR CUP shall terminate unless an application for a development permit needed to implement the CIR CUP is applied for within 7 years of the effective date of approval. Thereafter, an application for a development permit needed to implement the CIR CUP for each subsequent phase must be applied for not later than 7 years after the completion of construction of the preceding phase. The CIR CUP will terminate with respect to any phase for which an application for a development permit is not applied for within the foregoing time limitations. For purposes of this condition, the “effective date of approval” is the date of all appeals, challenges, and/or suits related to the approval or denial of this CIR CUP and to the cemetery CUP required under these conditions of approval. 2. The property may be developed with up to 172 units of controlled income and rent housing with associated parking and other development described or depicted in the application and materials submitted in support thereof (CIR CUP). Development may occur in one or more phases. Except for the limitation of not more than 172 total units and the development impact area described in these conditions of approval, the site plan is conceptual in nature, is not binding, and the actual development may differ. The timing, size, mix of units, the number, location, and development to be included in each phase and all other matters pertaining to development of the approved CIR CUP are to be determined by the applicant. The applicant is not is not required to develop all of the approved CIR CUP. Property not developed with development approved under this CIR CUP may be developed for other uses provided that the applicant first modifies the footprint of the CIR CUP to remove such property. 3. The CIR CUP property will be developed solely with CIR housing as defined in the 2002 Eugene Code at EC 9.015. If the applicant seeks to develop non-CIR housing on the property, or to change the use in such a manner that it no longer complies with the definition of CIR housing in EC 9.015, the applicant shall obtain any necessary land use approvals and/or permits. 4. Before a development permit to construct any of the 172 units may be issued, a new cemetery CUP shall be obtained so that the area of the property developed with CIR housing lies outside the footprint of the cemetery CUP. The CIR CUP may share facilities Hearings Official Decision (CU 02-4) 13 PC Agenda - Page 18  Attachment C and/or services (including sanitary lines, storm water lines, water lines, electric lines, roads or other means of circulation) with the cemetery and other current or future uses which may be located on or off the property including those lying within the footprint of the new cemetery CUP and/or the CIR CUP. 5. The applicant may capture, pipe, and pump any surface water and/or storm water flowing on the property to a holding reservoir to be used for irrigation so long as the applicant obtains all required City, state, and/or federal permits as may be necessary. 6. Cathedral Way shall at a minimum meet private street construction standards for paving width and depth, sight distance, maximum grade, and sidewalks.6 7. Final plans for any phase shall demonstrate that any proposed street meets the local street standard as described in the Eugene Arterial & Collector Street Plan dated November 1999, including but not limited to, maximum grade requirements, sidewalk requirements, sight distance requirements, and traffic controls that might be needed at the proposed intersections. 8. Final plans for any phase for the number of parking spots shall meet the 2002 EC standards. 9. Available but inadequate public services and facilities to the site shall be improved to a level sufficient to support the particular phase of the CIR CUP development. Any such improvements shall be at the applicant’s or developer’s responsibility and expense. 10. The unimproved portion of West 40th Avenue that extends from the subject property to the intersection of Braeburn Drive shall be improved to the extent necessary to allow access to the CIR development. Options for improvement include a Privately Engineered Public Improvement (PEPI) or Temporary Surfacing Permit (TSP). 11. Concurrently with the proposed street improvements at the intersection of Cathedral Way and Willamette Street, the applicant or developer shall construct a public sidewalk, meeting applicable standards, along the frontage of the property from the intersection of Willamette Street and Cathedral Way running to or directly across from the nearest transit stop on Willamette Street. 6 The applicant sought language allowing Cathedral Way to be constructed as a private street, public road, service drive, drive aisle, or combination of those options. I agree with staff that the application is for a private street so any approval should be for a private street as well. Hearings Official Decision (CU 02-4) 14 PC Agenda - Page 19  Attachment C 12. Except as provided herein, development approved under the CIR CUP shall be located within the shaded area shown on CU-1A dated June 29, 2016 labeled “development impact area.” Facilities and services (including sanitary lines, storm water lines, water lines, electric lines, roads, or other means of circulation) may be located outside of the development impact area as determined by the Eugene Public Works Department. Final location of sanitary lines, storm water lines, and water and electric lines shall be as finally determined by the City in PEPI plans and by EWEB’s engineering staff. The boundary of the development impact area may be modified by applicant as development occurs provided that such modification results in not more than a net increase of 10% per phase in the footprint of the development impact area to allow for project flexibility and/or to address public works, engineering, developer or funding agency requirements or unforeseen contingencies. 13. For each phase, the applicant shall provide a mapped inventory of existing trees along the boundary of that portion of the proposed development impact area (as depicted on the applicant’s site plans dated June 29, 2016) to be developed during the particular phase. The inventory shall indicate the location, size, and species of existing trees within 20 feet of the development impact area boundary. Scaled dimensions shall also be provided on the mapped inventory, and the location of the boundary shall be clearly marked with flagging, stakes, or other obvious visible means of demarcation, in order to determine its actual location on the ground. 14. The entire development impact area may be graded and cleared of vegetation. Vegetation within the “CIR undeveloped area” shall not be removed unless it: i) is dead, diseased, hazardous, noxious or invasive species, or presents a fire threat as further addressed in these conditions of approval, or ii) is necessary to locate facilities or services as directed by Eugene Public Works or the Fire Marshall as addressed in these conditions of approval. If any tree located in the current Zone 6 and within 15 feet of the perimeter of the development impact area should die within 5 years of adjacent construction, that tree will be replaced at a 2:1 ratio with a tree from the City’s approved tree planting list in the vicinity of the impacted tree. 15. The applicant shall obtain the services of a certified arborist to provide a report on the proposed impacts to existing trees included in the inventory, including a critical root zone Hearings Official Decision (CU 02-4) 15 PC Agenda - Page 20  Attachment C analysis for the trees along the boundary of impact. The arborist shall include proposed protection measures for trees within the 20-foot area along the boundary of the development impact area. The arborist shall also implement any protection measures needed to ensure the survival of trees on adjacent property where the development impact area abuts the property line along the western boundary of the subject site. 16. The applicant’s final site plans for each phase shall be revised to show that the areas outside of the development impact area but presently within Zone 6 (as shown on the final approved plans for the cemetery CUP (CU 95-2)) are designated as “CIR undeveloped area” that are subject to the following additional requirements; a. Trees and other native vegetation within the designated “CIR undeveloped area” shall be retained and protected to the extent possible with protective fencing installed at the direction of the certified arborist along the boundary of the impact area, and subject to inspection and approval by City staff, prior to and for the duration of any adjacent construction-related activity. b. No excavation, grading, material storage, staging, vehicle parking, or other construction activity shall take place within the identified “CIR undeveloped area” without prior approval by the City. c. Removal of dead, diseased, or hazardous tress shall be allowed with documentation from a certified arborist as to the condition of the tree and the need for removal. Documentation must be provided to the City for review and approval prior to tree removal activity. Otherwise, vegetation within the “CIR undeveloped area” shall not be removed unless it is dead, diseased, hazardous, noxious, invasive, or presents a fire threat that is documented by the City’s Fire Marshall. d. Any tree removed under the provision above shall be replaced at a ratio of 2:1. These replacement trees shall be native species, with a minimum caliper of 2 inches for deciduous trees and a minimum height of 5 feet for coniferous or evergreen trees. Planting, watering, and general maintenance of replacement trees shall be conducted by the property owner in a manner that ensures their establishment and long-term survival. 17. All structures, buildings, parking areas, and trash enclosures shall be setback from exterior property lines in accordance with applicable setback requirements. 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