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, JUNE 26, 2018 – 6:00 P.M. A. Public Hearing: Appeal of Furtick Family Limited Partnership (PDT 17-4 and ARA 17-15) The Planning Commission will hold a public hearing on an appeal of Hearings Official approval of a Needed Housing Tentative Planned Unit Development and Adjustment Review application submitted by Furtick Family Limited Partnership. Lead City Staff: Dan Lawler, 541-682-5282 daniel.r.lawler@ci.eugene.or.us Public Hearing Format: The Planning Commission will receive a brief City staff report followed by an opportunity for public comment. Testimony will be taken in the following order: from applicant and others in support of the proposal; from interested persons who neither are proponents nor opponents of the proposal; and from those in opposition to proposal. Time limits on testimony may be imposed. The Planning Commission may seek a response to testimony from City staff and ask questions. The applicant will have an opportunity to provide rebuttal testimony. At the end of the hearing, the Planning Commission Chair will announce whether the record is closed, the record will be held open, or the public hearing will be continued. Commissioners: Steven Baker; John Barofsky (Chair); John Jaworski; William Randall; Kristen Taylor  AGENDA ITEM SUMMARY June 26, 2018 To: Eugene Planning Commission From: Dan Lawler, Assistant Planner, Eugene Planning Division Subject: Public Hearing: Appeal of Hearings Official Decision on a Needed Housing Tentative Planned Unit Development and Adjustment Review for Furtick Family Limited Partnership (City files PDT 17-4 and ARA 17-15) ACTION REQUESTED On June 26, 2018 the Planning Commission will hold a public hearing, and possibly deliberate and take action on an appeal of the Eugene Hearings Official’s decision approving a Needed Housing Tentative Planned Unit Development and Adjustment Review application submitted by Furtick Family Limited Partnership (City files PDT 17-4 and ARA 17-15). BRIEFING STATEMENT The subject property is approximately 4.48 acres, vacant and is zoned R-1 Low-Density Residential. The property is located north of the intersection of Spring Boulevard and 30th Avenue, and south of Central Boulevard. Immediately east is a City-owned tax lot that is reserved for public road purposes, and to the west is Laurelwood Golf Course. Furtick Family Limited Partnership (Applicant) filed an application for a Needed Housing Tentative Planned Unit Development (PUD) on the property and an adjustment review. The proposal includes 14 residential lots, an open space tract, and an adjustment review to pave only a portion of the existing Spring Boulevard right-of-way. The site will have a density of approximately 2.9 units per gross acre. A vicinity map is included as Attachment A, and a reduced version of the site plan is included as Attachment B. The Hearings Official approved the Needed Housing Tentative PUD for 14 single-family lots with conditions of approval (see Attachment C). Following the approval, the Fairmont Neighbors Association (Appellants) filed a timely appeal of both the Tentative PUD and adjustment review decisions (see Attachment D). Upon receipt of the appeal, written notice of the appeal hearing was sent on June 15, 2018, consistent with land use code requirements. PLANNING COMMISSION ROLE The Eugene Planning Commission serves our community in two main roles. One role is to assist the Eugene City Council in legislative efforts to create or modify our community’s policies related to land use. The other role is to serve as a “quasi-judicial” body to make decisions on individual land use 1 applications in the context of the Eugene Code. In this case, the Planning Commission is being asked to act like a judge rather than a policy-maker. The Planning Commission must decide whether to affirm, reverse, or modify the Hearings Official’s decision based on the approval criteria for a Needed Housing Tentative PUD. The first step will be a public hearing, during which the Planning Commission will have an opportunity to hear from any interested parties who wish to make arguments based on the existing record. The basis of the appeal is limited to the issues raised during the review of the original application, and set out in the appeal statement; no new issues or evidence is allowed (see Eugene Code 9.7655). Following the hearing, the Planning Commission will discuss the testimony presented in the public hearing, written testimony provided to the Planning Commission and the record of the Hearings Official’s decision. This portion of the process is referred to as deliberations. The purpose of deliberations is to help the Planning Commission reach a decision, on each appeal issue. The Planning Commission should ask itself the following question as it considers each appeal issue: given the information in the record at the time of the Hearings Official’s decision, did the Hearings Official correctly evaluate the application, and make a decision consistent with the Needed Housing Tentative PUD criteria in Eugene Code (EC) 9.8325.1 STAFF ROLE City of Eugene Planning staff will be present throughout the public hearing and deliberations to assist the Planning Commission. Staff will advise the Planning Commission with regard to process, location of materials in the record, legal matters, and interpretation of land use code requirements. Staff may provide advice and recommendations based on their professional expertise and familiarity with the application and record of materials to date; the Planning Commission may choose whether or not to follow staff recommendations at their discretion. Staff will also assist the Planning Commission in drafting the final decision on this appeal. In addition to supporting the Planning Commission, staff also serve as a contact for applicants, neighbors and other interested parties. In this role, staff often hear from the people who may be directly impacted by a particular project or decision. When issues are raised, staff works to help people better understand how to frame a concern in terms of the approval criteria. Staff listens carefully to all issues, seeks to fully understand the issues and impacts of land use applications, and attempts to provide the best service possible to everyone involved. While all issues are important, staff also make every effort to help our community understand that all land use decisions must be made based on the approval criteria located in the Eugene Code and our community’s adopted plans and policies. SUMMARY OF APPEAL ISSUES The applicant’s appeal focuses on four issues which are described below. To assist the Planning 1 ORS 197.307(4) requires local governments to adopt and apply only clear and objective standards, conditions and procedures regulating the development of housing, including needed housing. The City’s Needed Housing Tentative PUD application criteria comprise the clear and objective path for PUDs. 2 Commission in determining whether to affirm, reverse, or modify the Hearings Official’s decision, staff has identified pertinent record information and considerations below. Each appeal issue is listed below (in bold italics). The full text of the Hearings Official’s Decision and Appeal Statement are attached (See Attachments C and D). The April 25th Staff Report to the Hearings Official is included in the application file for reference. Appeal Issue #1: The Hearings Official erred regarding the applicability of the South Hills Study (“SHS”) to this needed housing PUD application by confining the scope of the SHS to relate only to the density of the proposed development. As a result, the DHO [Decision of the Hearing’s Official] lacks consideration of factors expressed in the SHS necessary to support a finding that EC 9.8325(2) is satisfied. Hearings Official’s Decision EC 9.8325(2) states: The proposed land uses and densities within the PUD are consistent with the land use designation(s) shown on the Metro Plan Land Use Diagram, as refined in any applicable refinement plan. On pages 5 and 6 of the Hearings Official’s Decision, the Hearings Official notes that “land uses and densities being consistent with the Metro Plan and applicable refinement plans” refers to the specific type of land use (low density residential housing) and specific density maximums and minimums (5 units per acre or less). The Hearings Official also stated that “EC 9.8325(2) does not sweep in sundry other policies and recommendations from refinement plans,” but even if those policies and recommendations “were somehow applicable they are obviously not clear and objective standards as required by the needed housing statutes.” (See Hearings Official’s Decision page 6). Thus, the Hearings Official determined that EC 9.8325(2) is satisfied because the proposed PUD complies with the Metro Plan’s low density residential land use designation and the 5 unit per acre maximum density limit of the South Hills Study. Summary of Appellants’ Argument In the appeal statement (see pages 1 and 2), Appellants claim that the proposed PUD’s consistency with the designations of the Metro Plan and SHS is insufficient to satisfy the requirement of EC 9.8325(2) that the PUD’s land use be consistent with the Metro Plan and SHS’s land use designations. Rather than just compare designations, Appellants argue that consistency between proposed and designated land uses should be determined by applying policy statements under the “Specific Recommendations” subheading of the SHS. The Appellants believe the factors under the subheading must be evaluated, including the potential for surface movement, the view potential of the property, the nature of existing vegetation, the nature of surrounding development, and the nature of the development proposal to determine consistency between proposed and designated land uses. Finally, Appellants believe that the “Specific Recommendations” of the SHS require that the PUD procedures be utilized to accommodate siting in areas with the least amount of vegetation, and that the PUD failed to do so. 3 Staff Comments Staff agrees with the conclusion of the Hearings Official that EC 9.8325(2) is satisfied because the proposed PUD complies with the Metro Plan’s low density residential land use designation and the 5 unit per acre maximum density limit of the South Hills Study. Staff agrees that this criterion merely requires a proposed PUD’s land use and density to be consistent with land use designations within the Metro Plan and applicable refinement plans. Here, the proposed Furtick PUD is a low- density residential land use and the Metro Plan designates the site’s land use as low-density residential. Although the SHS does not contain land use designations, it does contain density limits for residential uses. Clearly, and without the exercise of discretion or value-laden analysis, the proposed Furtick PUD’s land use designation complies with the land use designations of the Metro Plan and the density requirements of the SHS. Appeal Issue #2: The Hearings Official erred in finding EC 9.8325(4) satisfied as there is insufficient evidence to sustain a dispositive finding according to the applicable provisions. Hearings Official’s Decision EC 9.8325(4)(a) states: (4) For areas not included on the city’s acknowledged Goal 5 inventory, the PUD preserves existing natural resources by compliance with all of the following: (a) The provisions of EC 9.6880 to EC 9.6885 Tree Preservation and Removal Standards, (not subject to modifications set forth in subsection (11) below). EC 9.6885(2)(a) states that: (2) Tree Preservation and Removal Standards. No permit for a development activity subject to this section shall be approved until the applicant submits plans or information, including a written report by a certified arborist or licensed landscape architect, that demonstrates compliance with the following standards: (a) The materials submitted shall reflect that consideration has been given to preservation in accordance with the following priority: 1. Significant trees located adjacent to or within waterways or wetlands designated by the city for protection, and areas having slopes greater than 25%; 2. Significant trees within a stand of trees; and 3. Individual significant trees. On Page 7 of the Hearings Official’s Decision, the Hearings Official determined that the applicant’s arborist provided a tree study that demonstrates consideration of the trees on site. In the study, the arborist explains that the large open space tract on the northern portion of the property will retain trees in areas having greater than 25% slope, while the proposed road and building envelopes would take up a large amount of the remaining property. Thus, the Hearings Official determined that EC 4 9.8325(4) is satisfied because the arborist’s study demonstrated sufficient consideration of the trees on site, as required by EC 9.6885(2)(a). Summary of Appellants’ Argument On Pages 3 and 4 of the appeal statement, Appellants argue that the arborist’s study fails to show that EC 9.6885(2)(a) and EC 9.8325(4) are satisfied. Specifically, Appellants claim that the arborist’s study shows that the trees were evaluated, but not that the proposal itself reflected consideration of preserving significant trees within a stand of trees or individual significant trees. Appellants believe that because the proposed road placement cuts through an area with a high concentration of individually significant trees, this criterion is not met. Finally, Appellants contend that the Conditions of Approval should impose a limitation on tree removal in each lot’s title, instead of leaving tree removal in individual lots to future owners’ discretion. Thus, Appellants believe that the Hearings Official erred in determining that the proposal satisfies EC 9.6885(2)(a) and EC 9.6880. Staff Comments Staff believes that the Hearings Official did not err in determining that EC 9.6885(2)(a) and EC 9.8325(4) are satisfied because the proposal considers preservation of significant trees within a stand and individually significant trees. Although Appellants claim the proposal does not consider significant trees within a stand, Applicant’s written statement states that “the Open Space tract facilitates the strategic preservation of both trees on slopes greater than 25% and within a stand.” (Emphasis added) (See Page 6 of Applicant’s January 2018 Written Statement). Indeed, the Applicant’s site plan shows stands of significant trees in the Open Space tract on the northern end of the property and indicates that they will not be removed. (See Page 1, Existing Conditions, of Applicant’s site plan). In addition, the site plan shows stands that include moderate and high priority trees on the southern and southwestern portions of the site and indicates that most of the trees in these stands will remain, although their removal is atthe discretion of a future lot owner. Therefore, Applicant’s written statement and site plan show consideration of significant trees, consistent with this criterion. Appellants’ claim that the proposal failed to consider individual significant trees overlooks information contained in Applicant’s written statement and site plans. The written statement says that “lot sizes are large to facilitate preservation of individual trees throughout the PUD” and that “small lots have less yard space which increases the Critical Root Zone (CRZ) impacts.” (See Page 6 of Applicant’s January 2018 Written Statement). Designing lot sizes in a manner that facilitates preservation of individual trees is clearly a consideration related to tree preservation. In addition, although Appellants claim the proposal merely evaluated, rather than considered, tree preservation, declining to remove individual moderate and high priority trees in the northern, southern, and southwestern portions of the site at this time indicates that the proposal not only considers preservation of those trees, but promotes their actual preservation. The fact that some moderate and high priority trees on the northeastern portion of the site are marked for removal does not negate the proposal’s consideration of individually significant trees on other portions of the site. Therefore, staff believes that the Hearings Official did not err in determining that EC 9.6885(2)(a) and EC 9.8325(4) are satisfied. 5  Appeal Issue #3: The Hearings Official erred in finding that the proposed PUD does not run afoul of the prohibition on grading on slopes exceeding 20% contained in EC 9.8325(5). Hearings Official’s Decision EC 9.8325(5) states: (5) There shall be no proposed grading on portions of the development site that meet or exceed 20% slope. The Hearings Official determined that the PUD did not propose grading on slopes exceeding 20% because proposed activity on the slopes constitutes excavating, rather than grading. Because the Eugene Code does not define “grading,” the Hearings Official used Webster’s New World Dictionary (Second Edition) to define the term “grading” as “to make (ground) level or slope (ground) evenly for a roadway, etc.” (See Hearings Official’s Decision Pages 8-9). The Hearings Official determined that grading is concerned with levelling or flattening an area to either perfectly flat or a consistent slope to prepare the ground for something like a foundation, driveway, or road. In contrast, the Hearings Official used the Webster’s New World Dictionary to reason that excavation is more concerned with “digging or making a hole or uncovering something – such as digging holes for underground lines or posts.” (See Hearings Official’s Decision Page 9). Applying the definitions of excavation and grading to the Applicant’s proposal, the Hearings Official reasoned that installing wastewater and stormwater lines and cantilevered dwellings on posts in areas of 20% slopes constitutes excavation, rather than grading, so long as the applicant does not level out the slope. The Hearings Official imposed a condition of approval (see Condition of Approval #1 on page 11 of the decision) to ensure compliance with this criterion. Thus, the Hearings Official determined that the proposal satisfies EC 9.8325(5). Summary of Appellants’ Argument Appellants believe that the Hearings Official erred in determining that EC 9.8325(5) is satisfied because, in their view, installing wastewater and stormwater lines in areas of 20% slope does involve grading. According to Appellants (see page 4 of Appeal Statement), excavating trenches for these lines requires that: “the trench is graded to a consistent slope such that drainage of the intended pipe, whether for waste or stormwater, is not compromised. Then, when returning the removed dirt to cover the pipes and fill in the remainder of the trench, grading again occurs to match the disturbed area with the slope of the existing area on either side of the trench such that a consistent slope is maintained across the once disturbed area.” (See Appeal Statement Page 4). Further, Appellants argue that the Hearings Official’s first Condition of Approval indicates that grading will occur. The Condition states that for areas of 20% slope or greater, “the applicant shall provide a profile of the existing grade line for the area within which an activity to develop is proposed, and a plan 6 to demonstrate how the grade line will be retained or otherwise restored.” (See Hearings Official’s Decision Page 11). Appellants contend that under the Hearings Official’s Condition, “one can excavate to any extent, so long as the initial grade is restored,” but that excavating to disturb the grade and then restoring it constitutes grading under the Hearings Official’s definition of the term. Thus, Appellants claim that EC 9.8325(5) is not satisfied. Staff Comments Staff believes that the Hearings Official did not err in determining that grading will not occur on slopes exceeding 20% and that EC 9.8325(5) is satisfied. First, excavating a trench and installing wastewater and stormwater lines results in the filling of a cavity, which aligns closely with the Hearings Official’s definition of “excavation.” Thus, what the Applicant proposes is excavation, rather than grading. Similarly, returning removed dirt to cover the surface of the excavated and filled trench does not constitute grading under the Hearings Official’s definition of the term. The Hearings Official describes grading as “to make (ground) level or slope (ground) evenly for a roadway, etc.” and levelling or flattening an area to either perfectly flat or a consistent slope to prepare the ground for something like a foundation, driveway, or road. (See Page 9 of Hearings Official’s Decision). Both descriptions of the term grading—which Appellants embrace and accept in their appeal statement—indicate that the activity is used to prepare the ground for development or building that will occur upon it. Simply leveling fill dirt to a consistent slope on top of a trench is not grading because it does not prepare the ground for building that will occur on top of it. This is a key difference between excavating and grading. Therefore, staff believes that grading will not occur on areas exceeding 20% slope and that EC 9.8325(5) is satisfied. Appeal Issue #4: The Hearings Official erred in extending the right of way designation of Tax Lot 301 to encompass a roadway, which by extension formed the basis for the erroneous finding that EC 9.8325(6) is satisfied. Hearings Official’s Decision EC 9.8325(6) states: (6) The PUD provides safe and adequate transportation systems through compliance with all of the following: (a) EC 9.6800 through EC 9.6875 Standards for Streets, Alleys, and Other Public Ways (not subject to modifications set forth in subsection (11) below). The Hearings Official stated that “although opponents’ argument is difficult to follow, they appear to argue that there is not a safe and adequate transportation system because Spring Boulevard is not a City street.” (See Hearings Official’s Decision Page 10). The Hearings Official also responded to Appellants’ argument that “Spring Boulevard ends at the southern end of Tax Lot 301 and the area 7 north of that is a City trail” by stating that “Tax Lot 301 is a City owned lot that has right-of-way for the extension of Spring Boulevard,” and thus, EC 9.8325(6) is satisfied. (See Hearings Official’s Decision Page 10). Summary of Appellants’ Argument Appellants argue that although Tax Lot 301 is indeed a City owned lot, the reserved right-of-way is for a shared path trail as outlined in the Eugene Transportation System Plan. Appellants go on to say that “there was no right of way granted that ran with the deed of Tax Lot 301,” that “there was no dedication to the public of the right-of-way,” and that the “alleged right-of-way for the proposed road is not so designated on the adopted Street Right-of-Way Map.” (See Appeal Statement Page 6). For these reasons, Appellants claim that the Hearings Official lacked a sufficient basis for satisfying EC 9.6805 and EC 9.8325(6). Staff Comments Staff believes that the Hearings Official did not err in determining that Tax Lot 301 has right-of-way for the extension of Spring Boulevard and that EC 9.8325(6) is satisfied. Although Appellants claim that Tax Lot 301 is reserved as right-of-way for a shared path trail, the Lot’s deed, which is in the record, shows otherwise. Page 2 of the deed states that the: “City, by acceptance of this grant, hereby declares that it has full knowledge that the subject real property conveyed by this grant was acquired with road funds of Lane County and hereby accepts the legal obligations and restrictions of use of the property for public road purposes as provided for under Oregon law and this grant.” (Emphasis added) Thus, the Lot’s deed restricts use of the property to “public road purposes” and contains no mention of using the property for trails or any other non-road purpose. In addition, although the Street Right-of- Way Map does not show this segment of Spring Boulevard, it is noted that this map only shows arterial and collector streets. Public Works referral comments indicate that after improvements are made, the City intends to classify the street as an access lane, which is a public street. (See Page 4 of Public Works Referral Comments). Further, Spring Boulevard’s proposed 60 feet of right-of-way and 28 feet of paving are consistent with Eugene Code’s requirements for right-of-way and paving widths. Therefore, staff believes that Tax Lot 301 has right-of-way for the extension of Spring Boulevard and that EC 9.8325(6) is satisfied. STAFF RECOMMENDATION/NEXT STEPS Staff recommends that the Planning Commission hold the public hearing and upon subsequent deliberations (scheduled for July 3, 2018) determine whether to affirm, modify, or reverse the Hearings Official’s decision. If the Planning Commission determines that the Hearings Official’s decision should be affirmed, it can be adopted in its entirety without further need for findings. If the decision seeks to modify the 8 Hearings Official’s decision, for example to add or revise conditions of approval, or provide a response to legal issues raised by the applicant, staff seeks direction on those changes to support the commission’s decision. In the event of reversal (denial), the Planning Commission will need to provide direction on clear findings, relying upon existing evidence in the record, to explain its basis on what PUD approval criteria are not met. Staff is available as part of this process to facilitate whatever final decision is made, and prepared to help draft a final order that can affirm, modify, or reverse the Hearings Official’s decision. Staff notes that the final local decision on this appeal is required by July 7, 2018 to meet the statutory 120-day deadline. ATTACHMENTS A. Vicinity Map B. Reduced Site Plan C. Hearing Official’s Decision D. Appeal Statement 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. Record materials will also be available at the public hearing, and may be made available as a courtesy on the City’s website at: http://cepddweb/PDDServices/LandUse/SearchApplicationDocuments?file=PDT-17-4 FOR MORE INFORMATION: Please contact Dan Lawler, Assistant Planner, Eugene Planning Division, by phone at (541) 682-5282, or by e-mail at daniel.r.lawler@ci.eugene.or.us 9  Vicinity Map Attachment A SPRI UGB NG VD L BL LN RA S EX NT CE ES EUGENE VD BL Subject CENTRAL BLVD E 29TH AVE Property SPRING BLVD E3 0T HA ´ VE TH AVE E 30 Legend Caution: Ft This map is based on imprecise source data, subject to change, Subject Property and for general reference only. 0 125 250 500 April 17, 2018  v 8• SOtZ6 m H aC - ' s N003b0 '3N39n3 c5 isgf a 8a o m w GAIS 0NI2JdS 0NV 3AV H10£ F gm eg O dIHSb3N1bVd a3liW11 AlIWV3 NJllllnJ r- W~g 44 Q P~ j3d ~ e and 3AI- LN31 LV-= E fz-~ s? y \ \ lei ~~o Uf µ WISbBS ~ I w ~ S V 3 a/6 o I I~ R A^ g G I I~ 01. 9, \ 0 ry' Je\ i 8NV7 ARA ZIWWAS \ r R o ` it Tit-. q l p ~$ 08 vc 3~< \ III tr n I. so so o~ I A q I r Tl c a SHA03 AlWAROD I r ice' \ =~ o i 4 2 s a Ikl I I I a 8 3 I r El ZS q~ a, 1f9 561. KI µ . R Y 3~ Y C~ 005 Nl4xLLiiYSID] y~~~ C 3 v mvr a. 3AV M16Z 3 MY) + r~ o' T r} WAM s I I J4' I , z w 1r; 7VHLNHA Attachment B Attachment C: Hearings Official's Decision Attachment D: Appeal Statement