Planning Commission

AGENDA Meeting Location: Sloat Room—Atrium Building Phone: 541-682-5481 99 W. 10th Avenue www.eugene-or.gov/pc Eugene, Oregon 97401 The Eugene Planning Commission welcomes your interest in these agenda items. Feel free to come and go as you please at any of the meetings. This meeting location is wheelchair-accessible. For the hearing impaired, FM assistive-listening devices are available or an interpreter can be provided with 48 hour notice prior to the meeting. Spanish-language interpretation will also be provided with 48 hour notice. To arrange for these services, contact the Planning Division at 541-682-5675. MONDAY, MARCH 13, 2017 – REGULAR MEETING (11:30 a.m.) I. PUBLIC COMMENT 11:30 AM The Planning Commission reserves 10 minutes at the beginning of this meeting for public comment. The public may comment on any matter, except for items scheduled for public hearing or public hearing items for which the record has already closed. Generally, the time limit for public comment is three minutes; however, the Planning Commission reserves the option to reduce the time allowed each speaker based on the number of people requesting to speak. II. ITEMS FROM COMMISSION AND STAFF 11:40 AM A. Other Items from Commission B. Other Items from Staff C. Learning: How are we doing? III. DELIBERATIONS/POSSIBLE ACTION: 12:00 PM APPEAL OF PLANNING DIRECTOR DECISION FOR THE OAKS AT 14TH (ARB 16-5) Lead Staff: Althea Sullivan, 541-682-5282 althea.c.sullivan@ci.eugene.or.us Commissioners: Steven Baker; John Barofsky (Vice Chair); John Jaworski; Jeffrey Mills; Brianna Nicolello; William Randall; Kristen Taylor (Chair)  AGENDA ITEM SUMMARY March 13, 2017 To: Eugene Planning Commission From: Althea Sullivan, Assistant Planner, Eugene Planning Division Subject: Deliberations & Action on Appeal: The Oaks at 14th (ARB 16-5) ACTION REQUESTED: The Planning Commission will hold deliberations and provide staff with direction to prepare a draft Final Order on an appeal of the Planning Director’s Adjustment Review approval for The Oaks at 14th (ARB 16-5). The following Agenda Item Summary (AIS) is intended to provide a brief overview of relevant background information, procedures, and a summary of new evidence and argument in the context of the appeal issues raised to date. BACKGROUND: The Planning Commission held a public hearing on February 15, 2017 to consider an appeal of the Planning Director’s decision approving an Adjustment Review, which granted adjustments to Multi-Family Development and Public Access standards. The adjustments were granted for a 54-unit apartment complex intended to provide affordable, permanent housing for people with criminal histories. After the public hearing ended, the record was left open from February 15, 2017 to February 22, 2017 to allow for new evidence and argument from any party. The second open record period was from February 22, 2017 to March 1, 2017 and allowed for evidence and argument in response to any materials submitted during the first open record period. The final week from March 1, 2017 to March 8, 2017 was reserved for the applicant’s final written rebuttal (no new evidence allowed). For ease of use, staff has provided the written record materials collected since the previous AIS and has attached them in reverse chronological order. The list below describes what each item is, and when it was received. Attachment A Applicant’s Final Argument Received March 2, 2017 through March 8, 2017 Attachment B Response Received February 23 through March 1, 2017 Attachment C Open Record Received February 16, 2017 through February 22, 2017 Attachment D Hearing Exhibits Received at the public hearing February 15, 2017 PC Agenda - Page 1  Attachment E Pre-hearing Testimony Received between January 26, 2017 and the public hearing on February 15, 2017 For additional background please also see the previous Agenda Item Summary (AIS) on this matter, provided by staff prior to the February 15, 2017 public hearing. Additional hard copies of the previous packet will be made available at the deliberations meeting as well. PRELIMINARY/PROCEDURAL MATTERS: The Planning Commission’s primary task at the March 13, 2017 meeting is to hold deliberations to determine whether the Planning Director “failed to properly evaluate the application or make a decision consistent with the applicable criteria” in conditionally approving the applicant’s requested adjustments. Staff’s goal is to finish the meeting with clear direction to assist in the preparation of a draft Final Order that can be acted upon no later than March 20, 2017 which is the last day before the 120-day deadline for a final local decision on this appeal under State law. The Planning Commission’s review is limited to the evidence and argument in the record. All record materials have been made available to the Planning Commission, and staff is available to assist with managing materials or finding a specific item that may be of interest. Additionally, your review is limited to assertions of error which have been raised as part of the record to date. Upon review of all the materials submitted since the appeal was filed, staff could not identify any new arguments alleging that the Planning Director failed to properly evaluate the application or make a decision consistent with the applicable criteria, beyond those raised in the appellant’s original written appeal statement. Although the appellant’s representative indicated at the hearing that some of the issues raised in the appeal statement would be withdrawn, none of the issues raised by the appellant were removed or otherwise dropped from the appeal, in writing. As the Planning Commission deliberates, a determination will need to be made with respect to each appeal issue raised. For each appeal issue, the Planning Commission has the option to do either of the following:  Find that the Planning Director’s decision properly evaluates the application and makes a decision consistent with the applicable adjustment review criterion at issue, without any need for additional findings (affirm); or  Clearly state how the Planning Director’s decision fails to properly evaluate the application or makes a decision that is inconsistent with the applicable adjustment review criterion, and either: o Find that the applicant has demonstrated consistency with the adjustment review criterion, but modify the Planning Director’s decision approving the application to properly evaluate the application or address the criterion (modify); or o Find that the applicant has not demonstrated consistency with the adjustment review criteria (reverse). PC Agenda - Page 2 SUMMARY OF TESTIMONY RELATED TO APPEAL ISSUES The following summary of appeal issues is provided in the same order as in the AIS for the February 15, 2017 public hearing, which has been provided separately. To assist the Planning Commission in organizing the new written evidence and argument, staff has provided reference to items under the appeal issue they appear to be related to. The materials addressed by this AIS are limited to the attachments listed above, and do not provide comment on verbal testimony received at the public hearing on February 15, 2017. This is intended only as a general organization tool for the Planning Commission, and as mentioned above the entire record is available. 1. “The Planning Director erred in approving these adjustments because they were improperly considered while a parallel LUBA process was underway, considering some of the same specific land use issues. And in which, in fact, in which a remand was recently granted.” The appellant’s representative provided a letter on February 22, 2017 which included the Final Opinion and Order of the Land Use Board of Appeals (LUBA) (see Attachment C). The appellant notes that building permits for The Oaks at 14th are currently subject to a remand due to failure to address key land use code provisions, however no argument is made about why this is an issue in the context of the adjustment review approval criteria. Staff did not see any specific argument made as to how the Planning Director erred in approving adjustments while LUBA was considering an appeal of the building permits. Additionally, as staff noted in the previous AIS, no regulation in the Eugene Code or State statute would preclude the applicant from filing their request for adjustment, or for the City to process the adjustment review application. In fact, the City had an obligation under the local code and statutes to process the application, including this appeal process, to issue a final local decision on the adjustment review. 2. “The Planning Director erred in approving these adjustments because they failed to consider any of the several relevant arguments in the testimony which was submitted in the form of LUBA appeal documents.” Staff does not find a clear connection between the record materials and the above appeal issue, and the appellant has not provided any further detail or argument as to how the Planning Director may have erred. As stated in the original AIS, the inclusion of materials related to a building permit appeal is not directly related to approval criteria for adjustments. Additionally, if the appellant believed the materials and criteria were interconnected it would be their obligation to specify the arguments and demonstrate how they might be relevant in the context of the approval criteria. 3. “The Planning Director also erred in approving these adjustments where judgement is called of regarding compatibility due to reading into the code words and meaning not there i.e. that compatibility concerns are limited to landscape and architectural physical features, when the code includes no such qualification on the meaning of “compatibility”. PC Agenda - Page 3  Contextual and social issues are just as important to project compatibility as physical factors. In the proposal, both are deficient.” Staff directs the Planning Commission to the AIS provided prior to the public hearing, page 5 specifically. Staff did not find any new arguments in the materials which clarify where in the Eugene Code that “social issues” fit with the adjustment of building locations, setbacks, and access. While not related to a specific approval criterion for the requested adjustments, the applicant has provided numerous materials which demonstrate their efforts to work with the existing community during the initial design phase (see Attachment F of the previously provided AIS). In their final argument, the applicant also notes that while they believe they met the criteria for adjustment, they intend to be flexible and even suggest an additional condition of approval to provide additional support for their project (see Page 9 of Attachment A). As to the social issues, testimony submitted prior to the public hearing provides statements of support for the overall goals of the project and the social issues it is trying to address (see Attachment E). 4. “The Planning Director erred in approving adjustment to EC 9.5500(4) because the proposal does not create or contribute to the continuity of building facades along the street, does not create an attractive pedestrian environment along all streets, and because the proposal is not compatible with adjacent development, especially so the south, east, and west.” Sue Palsbo provided a letter on February 16, 2017 which raises a point in support of the project being compatible with adjacent property (see page 131 of Attachment C). Palsbo, a neighboring property owner, points out that the orientation of Building 1 allows for the Oak Grove (an amenity) to be viewed from the Oak Patch Cottages, which shares a property line with The Oaks at 14th. The appellant provided a letter on February 22, 2017 which questions the Planning Director’s approval of an adjustment to EC 9.5500(4). Staff directs the Planning Commission to Attachment B starting at page 1 for the appellant’s materials. The applicant provided detailed responses to the appellant’s assertion of error above in their final argument received March 8, 2017 (see Attachment A). The applicant points out that raising questions about evidence, or hypothesizing about whether a proposed design could be better is not contrary evidence. Additionally, the appellant offers no expert testimony (as asserted by the applicant) and points to a single picture of the Oak Patch entrance, which the applicant argues is not a proper representation as the project is still under construction. To assist the Planning Commission, the applicant also provided graphics of what the final project will look like, and several photographs of how the project currently looks while under construction. Photographs of the site are provided starting at page 47 of Attachment C, and a PC Agenda - Page 4 visual representations of the finished project are provided starting at page 32 of Attachment D. A visual representation of the applicant’s proposed pedestrian amenity can be found at pages 128-129 of Attachment C. Staff notes that the testimony provided by Palsbo provides further support for the compatibility of the project with the surrounding development. As to the question of contributing to the continuity of building facades, the Planning Director noted that the area is residential and many buildings are not located directly on the street (see page 5 of the Planning Director’s decision). 5. “The Planning Director erred in conditioning approval of an adjustment to EC 9.5500(4) because EC 9.05000 defines “enhanced pedestrian space” to be “characterized by the incorporation of permanent amenities” plural, and to create an overall positive effect, not just one single item from the list. The Planning Director here lowered the adjustment bar below that called for in the code. It takes more than one item to make an effective pedestrian environment.” As noted by the above statement of error, the Planning Director conditionally approved an adjustment to EC 9.5500(4), see page 6 of the Planning Director’s decision. Staff notes that the Planning Director relied upon the definition of enhanced pedestrian space provided by the Eugene Code at EC 9.0500 to ensure that the condition of approval was clear. While not directly related to the question of whether multiple amenities should have been required, there is evidence in the record from the applicant and appellant which provides argument about whether the condition has been met or not. The applicant submitted a site plan and illustration which show their proposed pedestrian amenities (see pages 128 and 129 of Attachment C). The appellant provided argument that the proposed amenities were not adequate because the rendering shows a perspective several feet higher than a standing persons head (see page 4 of Attachment B). In its final rebuttal the applicant pointed out that “enhanced pedestrian space” is not an approval criterion (see page 9 of Attachment A). However, they also recommend an additional condition of approval to demonstrate their desire to be flexible and further ensure that they have created an “attractive pedestrian environment” as required by the approval criteria (see page 9 of Attachment A). If the Planning Commission finds that the materials related to the condition are relevant, a number of options are available, including the following to affirm or modify the Planning Director’s decision:  The Planning Commission could determine that the condition of approval needs to be modified to require more than one additional amenity, or to specifically require the applicant to develop the area on Sheet G002 dated August 29, 2016 as reflected in their revised pedestrian study dated February 18, 2017.  The Planning Commission could determine that the condition needs to be deleted (if the Planning Commission finds that the condition is unnecessary because the criterion is met by the applicant’s original proposal).  The Planning Commission could determine that the Planning Director’s condition is still needed to address the criterion, and that the condition needs no modification. PC Agenda - Page 5 6. “The Planning Director erred in approve an adjustment to EC 9.5500(5) for Building 1 because the non-street-facing entrances do not promote compatibility with adjacent property, do not achieve a strong building presence on existing streets, and do not provide socialization benefits to the residents.” The applicant points out that “The only mention of this adjustment by the Appellant is a single sentence in her appeal statement that simply restates the criteria and states that the criteria are not met.” (see page 6 of Attachment A). Staff also directs the Planning Commission to the letter from Palsbo dated February 16, 2017, which points out how The Oaks at 14th is compatible with the Oak Patch Cottages which are immediately to the south (see page 131 of Attachment C). Staff also directs the Planning Commission to the AIS provided prior to the public hearing, specifically page 7. 7. “The Planning Director erred in approving an adjustment to EC 9.5500(5) for building 1 because “efficient massing” is not an approval criterion. The building features across West 14th Avenue with which compatibility is alleged to be enhanced are not even visible from the relevant aspects on The Oaks site.” Staff directs the Planning Commission to the AIS provided prior to the public hearing, specifically page 7. Additionally, the applicant has provided a direct response which further bolsters their argument for an adjustment to EC 9.5500(5) (see pages 5 to 6 of Attachment A). 8. “The Planning Director erred in approving these adjustments where judgement is called of regarding compatibility due to the inadequately addressing the full scope of relevant architectural issues including building placement, alignment, height, bulk, and massing. Use of the acknowledged design device of reducing height near lot boundaries and slightly increased building setbacks in themselves reflect attempts to mitigate the impact of the much larger, non-compatible institutional-scale buildings. The fact that the buildings are less incompatible with the apartment development to the north in no way addresses the compatibility, or lack thereof, with small single family homes to the south.” Staff again directs the Planning Commission to the letter from Palsbo dated February 16, 2017 and the AIS provided prior to the public hearing. The applicant also stepped through the qualifications of their design team, and process used to reach the final design pointing to an effort to satisfy neighbors throughout the process as the impetus for many of their design choices, see Attachment A. There are also several photographs and illustrations of the site which could be connected to the above statement (see pages 46 to 50 of Attachment C, and pages 32 to 38 of Attachment D). 9. “The Planning Director erred in approving an adjustment to EC 9.5500(12) because of incomplete parking impact analysis, including the notable lack of available “on-street parking” as called for in EC 9.8030(8). The parking adjustment requires consideration of available street parking spaces, which in fact are practically nill.” PC Agenda - Page 6 The appellant lists approval criteria poses a question which is related to the above statement of error (see pages 3 and 4 of Attachment C). The question asks if the Oak Patch frontage achieves minimal negative aspects of parking uses in multi-family developments, to the same degree, as would strict compliance with parking standards. The applicant provided materials on February 22, 2017 which provide a section titled Parking Analysis, see pages 45 to 46 of Attachment C. The applicant walks through the fact that the parking courts do not exceed 9,000 square feet in size, and are physically and visually separated by landscaped areas greater than 20 feet in width. Additionally multi-family housing requires 1 space per dwelling, minus the 25 percent reduction provided as a right of development, requiring The Oaks at 14th to provide a total of 42 spaces. In an effort to satisfy the condition of approval which required an additional pedestrian amenity, the applicant provided an amended site plan, and an illustration of their proposed amenities (see materials starting at page 127 of attachment C). The applicant concludes that their amended site plan proposes 48 parking spaces (the Planning Director approved a plan with 50) and points out how they will provide 1 bicycle parking space per dwelling. The applicant also provided a direct rebuttal to the appellant in their final rebuttal submitted March 8, 2017. The applicant points out that the appellant offers no contradicting evidence, and the main argument is a restatement of the approval criteria (see page 7 of Attachment A). Staff notes that the Planning Director approved the adjustment understanding that a reduction in the number of spaces, and limiting the size of spaces effectively limits the size of parking lots and impact of the parking use, see pages 10-11 of his decision. NEXT STEPS The Planning Commission needs to determine their position on this appeal, including specific direction on any modified or supplemental findings that may be necessary to support its conclusion. Pending further deliberation and direction from the commission, staff will prepare a Final Order for consideration and final action. As noted above, the Planning Commission has essentially three options: 1) affirm the Planning Director’s decision to approve the proposal and adopt his findings; 2) modify the Planning Director’s decision with new or amended findings/conditions; or 3) reverse the Planning Director’s decision with new or amended findings. ATTACHMENTS A. Applicant’s Final Argument B. Response C. Open Record D. Hearing Exhibits E. Pre-hearing Testimony The full record has already been provided to commissioners separately, and is also available to the public on the City’s website at: PC Agenda - Page 7 http://pdd.eugene-or.gov/LandUse/ApplicationDetails?file=ARB-16-0005 A hardcopy of the complete record can also be made available for free inspection at the Atrium Building, 99 West 10th Avenue, between 9:00 a.m. and 5:00 p.m. Monday through Friday. Copies may also be obtained at cost. FOR MORE INFORMATION: Please contact Althea Sullivan, Assistant Planner, City of Eugene Planning Division, at 541-682- 5282 or via email at althea.c.sullivan@ci.eugene.or.us PC Agenda - Page 8  Attachment A Page 1 Memo To: Erik Berg-Johansen, Associate Planner Althea Sullivan, Assistant Planner From: Ross Williamson Attorney for Housing and Community Services Agency of Lane County (HACSA) cc: Eugene Planning Commission Emily Jerome, Assistant City Attorney Date: March 8, 2017 Re: The Oaks at 14th Adjustment Review Application ARB 16-5 Final Applicant Submission This memorandum contains the final written argument for HACSA (the applicant) in this appeal of the Planning Director’s approval of ARB 16-5. No new evidence is included with this submission. Prior testimony and submissions from HACSA have demonstrated the factual support for the Planning Director’s decision. The purpose of this memorandum is to briefly summarize HACSA’s overall position in this appeal and to also respond to Appellant’s submission during the final open record rebuttal period. In short, HACSA requests that the Planning Commission affirm the Planning Director’s decision. Mary McCullough (the Appellant) has not undermined the evidence that supports HACSA’s adjustments and there is no reasonable basis in the record to overturn the Planning Director’s reasoned decision. I. The Parties and Evidentiary Standards The Oaks at 14th proposes 54 single bedroom units on 1.48 acres of R-2 zoned land. The applicant in this matter is HACSA, a local government entity based in Lane County that provides housing for low-income residents. Throughout the development process, and during this appeal process, HACSA has been represented by a team of local experts in their respective fields. The record contains testimony and evidence from the following: Jacob Fox, Executive Director of HACSA with years of experience providing housing solutions to low-income individuals and families; Paul Solomon, Executive Director of Sponsors Inc. with over 15 years of experience providing housing and services to individuals transitioning into the community from jail or prison; Steve Ochs, Real Estate Development PC Agenda - Page 9  Attachment A Page 2 Erik Berg-Johansen Althea Sullivan March 8, 2017 Page 2 Director for HACSA with years of experience in both land use planning and development in the Eugene community; Colin McArthur, AICP, certified land use planner at Cameron McCarthy; Sara Bergsund, AIA, licensed architect at Bergsund DeLaney Architecture & Planning, PC; David Dougherty, ASLA, registered landscape architect at Dougherty Landscape Architects; and Damien Gilbert, PE, registered professional engineer at Branch Engineering. The lone appellant here is Mary McCullough. At the February 15 public hearing on this appeal, Ms. McCullough asserted that the development should not move forward because “bad men” do not belong in her neighborhood. As I am sure we all remember, Ms. McCullough also played what appeared to be a video recording of a small boy she confronted on the street near the development site. There was no evidence provided that the video was captured with consent. Indeed, the context of the video would lead a reasonable person to conclude otherwise. As a result, it is quite possible that Ms. McCullough’s actions were criminal. ORS 165.540(1)(c). The Planning Commission should not support the presentation of such evidence. Whether criminal or not, the Planning Commission should make a stand against this stomach-turning conduct. Ms. McCullough is represented in this appeal by Kevin Matthews. Mr. Matthews does not appear on his own behalf but on behalf of Ms. McCullough. Mr. Matthews does not allege that he has any active licenses or accreditations in any land use or real estate related field. Even if Mr. Matthews has past training as an architect, Oregon law prohibits unlicensed architects from practicing in Oregon.1 As to his current qualifications, at the February 15 public hearing, Mr. Matthews alleged that his expertise comes from having attended many Eugene land use meetings and hearings. Thus, Ms. McCullough is represented here by a lay-person that has established no evidentiary foundation to express any professional opinions on any matter before the Planning Commission. Lay-person testimony should be accepted by the Planning Commission, but lay-person testimony does not sufficiently rebut testimony presented by experts on technical issues (e.g., licensed, registered, or accredited experts in their respected fields). See, e.g., Lenox v. Jackson County, 54 Or LUBA 272, 277-78 (2007) (finding that someone with “experience” in geology is not entitled to deference on matters involving the technical aspect of construction and road building). II. Planning Commission’s Role The Planning Director approved HACSA’s Adjustment Review application, with two conditions. With Ms. McCullough’s appeal, the Planning Commission is now tasked with reviewing the Planning Director’s decision on appeal. HACSA disagrees with the City 1 ORS 671.020(1) provides: “In order to safeguard health, safety and welfare and to eliminate unnecessary loss and waste in this state, a person may not engage in the practice of architecture or assume or use the title of ‘Architect’ or any title, sign, cards or device indicating, or tending to indicate, that the person is practicing architecture or is an architect or represent in any manner that the person is an architect, without first qualifying before the State Board of Architect Examiners and obtaining a certificate of registration as provided by ORS 671.010 to 671.220.” PC Agenda - Page 10  Attachment A Page 3 Erik Berg-Johansen Althea Sullivan March 8, 2017 Page 3 Attorney’s advice as to the proper scope of review in this appeal.2 Nonetheless, whether the adjustment criteria are met here is an evidentiary matter. In other words, the Planning Commission is tasked with looking at the record and determining whether there is evidence in the record upon which a reasonable decision maker would determine that the criteria are satisfied. The question is not whether different evidence or different designs would meet the criteria; instead, the question is whether the evidence in this record meets the applicable criteria. Importantly, raising questions about the evidence, or hypothesizing about whether the proposed design could be better is not contrary evidence. Such statements are merely questions, not evidence. Questions and hypotheticals do not undermine a criterion that has evidentiary support in the record. See, e.g., Rochlin v. Multnomah County, 37 Or LUBA 237, 251-52 n.15 (1999) (testimony that simply express doubt at the applicant’s evidence is easily overcome); Wal-Mart Stores, Inc. v. City of Bend, 52 Or LUBA 261, 276 (2006) (“The critical issue for the local decision maker will generally be whether any expert or lay testimony offered by permit opponents raises questions or issues that undermine or call into question the conclusions or supporting documentation that are presented by the applicant’s experts and, if so, whether any such questions or issues are adequately rebutted by the applicant’s experts.”) Appellant and her representative do not raise sufficient evidentiary weaknesses as to the foundational evidence in the record that supported the Planning Director’s decision. As the applicant, HACSA has met its burden by providing evidentiary support for each of the applicable criteria. The Planning Director did not err and the decision should be affirmed. III. Each Adjustment is Supported by the Record HACSA sought five adjustments. The five adjustments are: A) EC 9.5500(4)(b) Building setbacks; B) EC 9.5500(5)(a) Building orientation; C) EC 9.5500(5)(b) Ground floor entrances; D) EC 9.5500(12)(c) Parking in frontage; and E) EC 9.6735 Public access. The Planning Director determined that HACSA met the criteria for each of these adjustments. The Planning Commission should concur in that determination. Prior submissions by HACSA before both the Planning Director and the Planning Commission support approval. Here, HACSA addresses the arguments raised by the Appellant. The analysis that follows shows that the Appellant has not raised any basis to overrule the Planning Director’s determination. 2 This Adjustment Review is a “limited land use decision” and should proceed under the appeal procedures set out in EC 9.7600 - 9.7635 and ORS 197.195(5). The City has erroneously invited new appeal issues. PC Agenda - Page 11  Attachment A Page 4 Erik Berg-Johansen Althea Sullivan March 8, 2017 Page 4 A. Building Setbacks With this adjustment, HACSA seeks to reduce the amount of setback area that is occupied by buildings along both the Oak Patch Road frontage and the West 14 th Avenue frontage. The criteria for this adjustment are found in EC 9.8030(2) and provide: Where this land use code provides that the setback standards applicable to specific zones may be adjusted, the standards may be adjusted upon finding that the proposed setback is consistent with the following applicable criteria: (a) Minimum and Maximum Front Yard Setback Adjustment. The minimum or maximum required front yard setback may be adjusted if the proposal achieves all of the following: 1. Contributes to the continuity of building facades along the street. 2. Creates an attractive pedestrian environment along all adjacent streets. 3. Is compatible with adjacent development. From testimony at the public hearing and in post-hearing submissions, Appellant takes issue with each of the three criterion. Appellant asserts that the proposed design is “institutional” and that the design provides too great of a building setback from Oak Patch thereby showing a lack of continuity and compatibility. (Appellant’s Appeal Statement filed January 23, 2017 at 1; Appellant’s Memo submitted February 22, 2017 at page 1-3.) Appellant raises questions as to the proposed design, but does not offer expert testimony. The only evidence submitted by Appellant is a single picture of the Oak Patch entrance, showing a construction site. (Appellant’s Memo submitted February 22, 2017 at page 2.) Appellant’s evidence does not relate to the proposed finished product and is therefore insufficient. In addition, Appellant’s testimony is essentially that the design could be better, or could be more attractive. Notably absent from this criterion is the mention of “enhanced pedestrian space,” a term defined in EC 9.0500 and a term used in a condition of approval. Appellant attempts to make traction by arguing that “enhanced pedestrian space” requires multiple amenities. (Appellant’s February 22, 2007 submission at page 3.) Despite these arguments by Appellant, the proposed design does call for multiple pedestrian amenities (e.g., textured paving, planters, a gazebo, sitting areas, and retained Oak trees). The condition of approval requested one additional amenity. That additional amenity has been proposed. (Memorandum from Colin McArthur dated February 22 at page 6 and Exhibit C.) Appellant’s argument to the contrary has no foundation in the record. Testimony at the public hearing and questions from the Planning Commission also raised issues with window treatments applied to certain south-facing windows. In response to the Planning Commission’s request, HACSA submitted information about these window treatments. (Memorandum from Colin McArthur dated February 22 at page 6 and PC Agenda - Page 12  Attachment A Page 5 Erik Berg-Johansen Althea Sullivan March 8, 2017 Page 5 Exhibit B.) While HACSA has proposed these window treatments in response to neighbor concerns, the window treatments and the neighbors’ concerns do not relate to an approval criterion at issue before the Planning Commission. HACSA has been responsive to its neighbors and has made adjustments not only to the design of the entire development site, but also to specific architectural elements. The window treatments are such a response. But, the window treatments, or lack thereof, are not an appeal issue and not related to an applicable adjustment criterion. As previously demonstrated in the record, project architect Sara Bergsund and landscape architect David Dougherty have created an inviting design that works within the confines of the long and narrow development site. The criteria call for “contributing” to the “continuity” of building facades. That criteria do not require all buildings to be the same. Similarly, the criteria also calls for “compatibility.” This too does not require a development to be the same as other developments. The testimony and evidence in the record demonstrate that the proposed design fits in with the surrounding neighborhood, especially in comparison to the existing multi-family developments to the north, south and east. Moreover, HACSA’s experts created a design that takes into account the thorough and inclusive community outreach in order to achieve a project that is permitted outright on the R-2 zoned property but that also addresses community concerns. The Planning Director’s approval of this adjustment request should be affirmed. B. Building Orientation This adjustment is requested by HACSA to alter the orientation of Building 1 to create a central pedestrian plaza rather than a simple linear arrangement of buildings. The criteria for this adjustment are found in EC 9.8030(4) and provide: Where this land use code provides that building orientation and entrance standards may be adjusted, the standards may be adjusted upon finding that the proposal complies with one of the following: (a) Promotes compatibility with adjacent property. (b) Creates building orientations and entrances that achieve all of the following: 1. Support and augment the building setback, massing and architectural details. 2. Achieve an attractive streetscape with a strong building presence on existing and future streets. 3. In the case of multiple-family developments, provides socialization benefits to residents. HACSA is not able to identify any discernable arguments made against this adjustment in the testimony or post-hearing submissions made by Appellant. Appellant did raise a question with the orientation of Building 1 in her appeal statement (Appeal Statement filed PC Agenda - Page 13  Attachment A Page 6 Erik Berg-Johansen Althea Sullivan March 8, 2017 Page 6 January 23, 2017 at 1), but that issue was not carried forward at the public hearing or in post-hearing submissions. At the hearing, Appellant’s representative stated that he was not pursuing some of Appellant’s initial arguments set out in the appeal statement. This particular adjustment appears to be one that has been abandoned, as no additional argument is made. Nevertheless, there is sufficient evidence in the record to demonstrate that the orientation of Building 1 promotes compatibility with adjacent property. Indeed, the altered orientation of Building 1 almost mirrors the apartment complex to the north. In addition, the change in orientation for Building 1 allows for increased open space on the site and more amenities for residents and visitors. Frankly, this adjustment simply makes the development site more attractive for both future residents and neighbors. As to this adjustment request, Appellant does not contest the Planning Director’s decision with any contrary evidence. The Planning Director’s decision is supported by the great weight of evidence in the record and should be affirmed. C. Ground Floor Entrances Related to the second adjustment, this adjustment also concerns Building 1 and impacts the ability to create the proposed pedestrian plaza. The criteria for this adjustment are the same as for the adjustment to building orientation and are found in EC 9.8030(4) set out above. The only mention of this adjustment by Appellant is a single sentence in her appeal statement that simply restates the criteria and states that the criteria are not met. (Appellant’s Appeal Statement filed January 23, 2007 at 1.) Nowhere does Appellant even appear to address this adjustment with evidence or actual argument. The orientation of ground floor entrances as depicted in the site plan are not discussed in any of Appellant’s post-hearing filings. To the extent there is some mention that could conceivably be drawn to address this adjustment, the Planning Director’s decision is more than sufficiently supported by the record. The proposed design for Building 1 mimics the apartment complex to the north, as well as the cottages to the south. As some neighbors have mentioned in testimony and evidence, the Building 1 orientation also responds to community input by limiting the facades that would otherwise run along the property lines. Simply stated, the requested adjustment promotes compatibility with neighboring developments. The Planning Director’s decision on this adjustment is supported by the record, not contested by the Appellant, and supported by the neighbors. The adjustment approval should be affirmed. PC Agenda - Page 14  Attachment A Page 7 Erik Berg-Johansen Althea Sullivan March 8, 2017 Page 7 D. Parking in Frontage This adjustment concerns HACSA’s proposal to include parking spaces within the front yard setbacks at the Oak Patch Road access. The criteria for this adjustment are found in EC 9.8030(8)(f) and provide: The requirements set forth in EC 9.5500(12) may be adjusted if the proposal achieves to the same degree as would strict compliance with the standards all of the following: 1. Limitations on the use of continuous parking drives in large-scale multiple-family developments. 2. Limitations on the size of individual parking lots in multiple-family development. 3. Minimal negative aspects of parking uses in multiple-family developments. Where cost considerations preclude parking beneath or within residential buildings, combinations of partial and interrupted parking drives; on-street parking; and small, dispersed parking courts are an acceptable alternative. For this adjustment, Appellant states that HACSA does not meet any of the three criteria. (Appellant’s Memo submitted February 22, 2017 at page 3-4.) The argument that appellant makes consists, in total, of restating the applicable criteria with certain words and phrases highlighted with bold text. As a result, Appellant offers no evidence to contradict the designs and testimony offered by HACSA’s experts. Even if the Planning Commission can discern an actual argument from Appellant’s submission, it does not undermine the Planning Director’s decision here. HACSA’s design creates an outright permitted use on a narrow lot and provides more than the minimum required parking spaces. At the request of community members, the provision of additional parking will minimize the potential for impacts to on-street parking. Additionally, the design incorporates pedestrian amenities at the Oak Patch access in order to minimize any negative aspects of parking within the Oak Patch setback. The Oak Street access and the associated pedestrian amenities were designed by a licensed architect in consultation with a licensed landscape architect. Appellant asks the Planning Commission if the design could be better or if it could be different. That is not an evidentiary argument against the great weight of evidence in the record that supports the design choices taken by HACSA. Appellant’s arguments as to this adjustment, to the extent there are any, should be denied and the Planning Director’s decision affirmed. E. Public Access This adjustment is requested by HACSA to allow the development site to take access from Oak Patch Road rather than West 14th Avenue. As mentioned at the public hearing, this adjustment is a result of HACSA’s outreach with the neighborhood and responds to a direct PC Agenda - Page 15  Attachment A Page 8 Erik Berg-Johansen Althea Sullivan March 8, 2017 Page 8 request from neighbors to keep traffic off of Acorn Park Road. The criteria for this adjustment are found in EC 9.8030(28) and provide: The public access requirement of 9.6735(2) may be adjusted if the site developer demonstrates any of the following: (a) Physical conditions preclude compliance with EC 7.420. Such conditions may include, but are not limited to, topography, trees, existing buildings or other existing development on the subject property or adjacent property. (b) The proposed adjustments to the standards will provide safe ingress and egress to the development site, will not negatively impact the efficiency of the public right-of-way, and will not result in a hazard to the bicycle, pedestrian or vehicular traffic using the right-of-way. (c) The proposed development will not impact one or more of the existing access connections to the development site. Impact to an existing access connection includes, but is not limited to, increasing the number of vehicles, either directly or indirectly, that will utilize an existing access connection for ingress or egress to the development site. (d) Compliance with EC 7.420(1)(c) will result in traffic patterns inconsistent with the character of the property located within a quarter mile radius of the development site or will increase the number of vehicular trips using the street with the lower classification above the typical daily trip range for that street’s classification. Appellant’s appeal statement did not contest this fifth adjustment for public access. Only in Appellant’s post-hearing February 22 submission does she assert that the fencing on the site impacts the safety of the Oak Patch access. (Appellant’s Memo submitted February 22, 2017 at page 4-5.) In her March 1 submission, Appellant takes issue with some provisions of the traffic study submitted by HACSA. (Appellant’s Memo submitted March 1, 2017 at 3-8.3) These post-hearing arguments are too late to raise a new appeal issue. Appellant’s appeal of this public access adjustment should be rejected. Even if the Planning Commission addresses these issues, Appellant does not undermine the Planning Director’s decision. As set out in HACSA’s March 1 submission, the sight line issue raised by Appellant is being addressed (Applicant only has so much authority here because only the City has authority to create no-parking zones on either side of the Oak Patch driveway). While Appellant claims the 6’ fence causes sight line concerns, the fact is that the fence stops 10’ from the property line and conserves the required “sight line triangle” at the Oak Patch access (McArthur Memo dated March 1 at page 2). 3 Appellant’s March 1 submission is confusingly dated February 22. As a result, both of Appellant’s post-hearing submissions are dated February 22. To clarify, Appellant’s February 22 submission is the 5 page submission and Appellant’s March 1 submission is the 9 page submission. PC Agenda - Page 16  Attachment A Page 9 Erik Berg-Johansen Althea Sullivan March 8, 2017 Page 9 The Planning Commission should also dismiss Appellant’s concerns with the traffic study. First, the traffic study is submitted in response to a condition of approval and at the request of the Planning Commission. Appellant and her representative are not traffic engineers and have no expertise with which to dispute HACSA’s registered engineer’s conclusion. HACSA’s traffic engineer has provided testimony and evidence to support his conclusion that the proposed Oak Patch driveway will provide safe access to the site. As an evidentiary matter, this conclusion is uncontested by Appellant; raising questions as to an expert’s opinion is not the same as raising contrary evidence to dispute the conclusion. Moreover, Appellant is wrong in each of the issues raised as to HACSA’s traffic study. Rather than speak for HACSA’s engineer, attached as Exhibit A is a memo that addresses Appellant’s concerns. (Memo from Damien Gilbert dated March 8, 2017.) The attached is not new evidence, but argument that succinctly disproves each of Appellant’s concerns. HACSA’s traffic engineer confirms his conclusion as to the safety of the Oak Patch access and provides answers to Appellant’s questions. As the only expert testimony in the record on this subject, HACSA’s traffic study is conclusive. With the traffic study before the Planning Commission, the record now demonstrates that HACSA has satisfied this particular condition of approval from the Planning Director’s decision. In other words, the record now contains undisputed expert testimony that Oak Patch will provide safe access to the site. As a result, there is no longer a need for this particular condition of approval, and the Planning Commission should affirm the Planning Director’s decision and remove the condition for a traffic study. Even if the Planning Commission reviews Appellant’s belated arguments as to this adjustment, the Planning Commission should affirm the Planning Director’s decision. This adjustment is supported by clear and conclusive evidence in the record. IV. Proposed Condition of Approval HACSA has met all criteria for the requested adjustments. The Planning Director agreed. Even so, to show the continued flexibility that has been a hallmark for this project, in response to questions raised by both testimony and Commissioners at the February 15 public hearing, HACSA proposes one additional change to its design. To provide additional support for an attractive pedestrian environment under EC 9.8030(2), to provide additional support for the continuity of building facades along Oak Patch under EC 9.8030(2), and to provide additional support for compatibility with adjacent property under both EC 9.8030(2) and EC 9.8030(4), the applicant proposes the following condition of approval:  The Applicant shall convert the two parking spaces closest to Oak Patch Road shown on the site plan (Sheet G002 dated August 29, 2016) into an additional enhanced pedestrian space as illustrated in Applicant’s revised pedestrian amenity study dated February 18, 2017. PC Agenda - Page 17  Attachment A Page 10 This condition of approval is illustrated in HACSA’s memorandum submitted by Colin McArthur on February 22 at page 6 and Exhibit C. The condition of approval is in addition to the condition of approval contained in the Planning Director’s decision and provides additional evidentiary support for the criteria under EC 9.8030(2) and EC 9.8030(4). With this condition of approval, HACSA removes all doubt that its project meets the applicable criteria for the requested adjustments. Moreover, HACSA continues to show that it intends to be a good neighbor for the long-term and will continue to work with the neighborhood as the project moves from the development phase into the operational phase. V. Conclusion For all the reasons in the record, and for the additional reasons set out above, HACSA respectfully requests that the Planning Commission affirm the Planning Director’s decision in total. In approving the Planning Director’s decision, HACSA requests removing the condition of approval addressing the traffic study and requests the addition of the proposed condition of approval set out above. With these amendments, the Planning Commission’s decision will be supported by the great weight of evidence in the record and will respond to the reasonable concerns of the neighborhood. F:\1Clients\Muni\HACSA\LUBA Appeal\The Oaks at 14th LUBA Appeal\MEMO - PC Appeal Final Argument 3.8.17 RMWcad.docx PC Agenda - Page 18  Attachment A Page 11 MEMORANDUM DATE: March 8, 2017 PROJECT: The Oaks at 14TH TO: Ross M. Williamson, Attorney at Law Speer Hoyt, LLC CC: Colin McArthur, AICP Cameron McCarthy FROM: Damien Gilbert, P.E. RE: Traffic Study – Responses to Rebuttal in Appeal In an effort to provide arguments to the appellant’s rebuttal testimony regarding the traffic study provided for The Oaks at 14th project site, I am supplying this memorandum for submittal to the record. General Note Traffic engineering studies are highly technical documents prepared by professional engineers with specialized expertise. The lay opinion testimony submitted by the appellant critiquing some of the technical details in the traffic study clearly shows the appellant’s lack of understanding and technical expertise in engineering. It was not expert in nature, as it was not based on scientific, technical, or other specialized knowledge, and lacked the proper credential to make confident engineering statements. Crash Rate The appellant provided a copy of Table 1 of The Oaks at 14th Traffic Study, with the first comment referring to Table 1 and subsequent comments referencing the Oregon Department of Transportation’s (ODOT’s) Analysis Procedures Manual (APM), which was referenced in the traffic study. It appears that the appellant mixes and matches reported and applicable segment and intersection crashes, crash rates, and applicable review criteria, as well as multiple versions of the Oregon Department of Transportation’s (ODOT’s) Analysis Procedures Manual (APM) to attempt to discredit the results and conclusions stated within The Oaks at 14th Traffic Study, that were provided and sealed by a registered professional engineer. The applicable section of the traffic study for The Oaks at 14th that the traffic study cited are intended to reference ODOT’s APM, Version 2, Section 4.3.4, as stated on page 5 of the traffic study. The CURRENT APM was last updated 02/2017. Because the APM was updated in February, it is likely that the referenced page number was changed after the writing of the traffic study, but the section reference to 4.3.4 is applicable. 310 5th Street, Springfield, OR 97477 | p: 541.746.0637 | www.branchengineering.com Exhibit A - Page 19 PC Agenda  Attachment A Page 12 The Oaks at 14th Traffic Study Rebuttal Testimony Responses (16-310:10) March 8, 2017 Per CURRENT APM (Version 2) and as reported in the traffic study, the segment crash rate is calculated and reported as crashes per million vehicle miles of travel, while intersection crash rates are calculated as crashes per million entering vehicles. As indicated and referenced to in the traffic study, APM (Version 2) section 4.3.4 specifies that due to the calculation methodology that involves a mathematical division operation with the segment length in the denominator, a segment of roadway less than 1.00 mile in length should be avoided because the calculation methodology would result in an inflated segment crash rate. This information is provided on Page 4 of the Appellant’s Rebuttal. The referenced APM page number included in the traffic study was likely updated in February after the writing of the February 10, 2017 The Oaks at 14th Traffic Study. The appellant references the reported crash rate of 0.249 crashes per million entering vehicles at the intersection of W. 18th Ave and Oak Patch Road and states that it is “perilously close” to the “90th percentile of danger for its intersection type.” The traffic study referenced a critical crash rate of 0.293 crashes per million entering vehicles as the statewide 90th percentile crash rate for three-way stop controlled intersections. The 90th percentile critical crash rate of 0.293 crashes per million entering vehicles is intended to be the standard threshold which the calculated crash rate is compared to to identify if there is a significant crash frequency that requires additional in-depth analysis. The 90th percentile rate is not exceeded for the three-way stop controlled intersection at 18th Ave and Oak Patch Road. The appellant refers to the APM Version 2, Page 4-99 and a 0.10-mile segment which is identified thereon for Study Area Segmentation in application of the Highway Safety Manual’s Predictive modeling methodology. Page 4-99 of the current (Version 2) APM is contained within the larger section 4.4, which is dedicated to the HSM’s predictive modeling methodologies for mitigating conditions to improve safety when a crash pattern has been identified. The HSM methodology may be applicable after a crash pattern has been identified on a rural roadway or an arterial roadway where the HSM has developed predictive models to utilize in the analysis process intended to identify effectiveness of potential mitigation scenarios. The HSM Predictive methodologies discussed within section 4.4 of the current (Version 2) APM may be applicable if Oak Patch Road was classified a rural or arterial roadway where the critical crash rate has identified a significantly high crash rate and where the HSM has predictive modeling data available. As reported in the traffic study, Oak Patch Road is a major collector roadway. The HSM methodology is an entirely different calculation methodology and with an entirely different application than the critical crash rate analysis methodology provided in the traffic study. The predictive modeling and critical crash rate calculations have different applicability, different inputs, different review criteria, and utilize different analysis procedures. Conclusion Contrary to the Appellant’s concluding statements, the applicable review criteria for the proposed adjustment review that includes the proposed access location on Oak Patch Road (EC 7.420) was addressed and analyzed adequately with appropriate findings in the February 10, 2017 The Oaks at 14th Traffic Study. The traffic study conclusions are valid that conclude that the proposed driveway approach on Oak Patch Road will provide safe and efficient ingress and egress to the development site; will not negatively impact the efficiency of the public right-of-way; and will not result in a hazard to the bicycle; pedestrian or vehicular traffic using the right-of- way. Please do not hesitate to contact me with any questions, or if I can provide any additional assistance. 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