Planning Commission

AGENDA Meeting Location: Sloat Room – Atrium Building Phone: 541-682-5481 99 W 10th Ave www.eugene-or.gov/pc Eugene, OR 97401 The Eugene Planning Commission welcomes your interest in these agenda items. Feel free to come and go as you please at any of the meetings. This meeting location is wheelchair-accessible. For the hearing impaired, FM assistive-listening devices are available, or an interpreter can be provided with 48 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 Division at 541-682-5675. TUESDAY, JULY 02, 2019 – Public Hearing (5:30 P.M.) A. PUBLIC HEARING: Appeal of the Hearing's Official Denial of a Zone Change for Simons Investment (City File Z 19-1) The Eugene Planning Commission will hold a public hearing to consider an appeal of the Hearings Official’s decision denying a Zone Change request to remove the /SR Site Review overlay zone. Lead City Staff: Rodney Bohner, 541-682-5437, RBohner@eugene-or.gov Public Hearing Format: The order of procedure will be as follows, unless modified by the Planning Commission Chair as may be necessary or appropriate: 1. The Planning Commission Chair will summarize procedures and commence the hearing. 2. City staff will provide a brief introduction and summary of the application/appeal. 3. Testimony will first be allowed from the applicant and those in support of the application 4. Testimony will then be allowed from parties who are neither proponents nor opponents. 5. Testimony will then be allowed from the opponents/appellant. 6. Staff may provide a response to testimony, as needed. 7. Planning Commissioners may then ask questions of staff (note that commissioners may also raise questions that might arise during any individual testimony). 8. Rebuttal will then be allowed from the proponent/applicant. 9. Finally, the Planning Commission Chair will announce whether the hearing and record is closed, held open, or if the public hearing will be continued. Please note that the Planning Commission will not make a decision the same night of the public hearing. Additional meetings for deliberations and a final decision will be scheduled following the hearing. Once made, the decision of the Eugene Planning Commission will be final at the local level. Commissioners: Steven Baker; John Barofsky; Tiffany Edwards (Vice Chair); Lisa Fragala; Chris Ramey; Ken Beeson; Kristen Taylor (Chair)  AGENDA ITEM SUMMARY July 2, 2019 To: Eugene Planning Commission From: Rodney Bohner, Assistant Planner, Eugene Planning Division Subject: Public Hearing on Appeal of Hearings Official Decision Denying a Zone Change for Simons Investment (City File Z 19-1) ACTION REQUESTED The Planning Commission will hold a public hearing, and possibly deliberate and take action on July 2, 2019 on the applicant’s appeal of the Eugene Hearings Official’s decision to deny a Zone Change application by Simons Investment to remove the /SR Site Review Overlay on ten properties (City File Z 19-1). BRIEFING STATEMENT The subject property consists of ten (10) tax lots containing a total of approximately 3.67 acres. The subject properties are located in the Whiteaker neighborhood north of West 5th Avenue between Charnelton Street and Washington Street. The subject properties are currently zoned S-W Whiteaker Special Area Zone with a /SR Site Review Overlay Zone and consist of a mix of land uses. A list of subject property tax lots is included as Attachment A. A vicinity and zoning map are included as Attachments B and C respectively. The applicant, Simons Investment, filed application for a zone change to remove the /SR Site Review Overlay Zone from the ten properties. On May 31, 2019, the Hearings Official denied the Zone Change application, and determined that that the subject properties are currently subject to the /SR Site Review Overlay Zone (see Attachment D). The applicant’s representative, Bill Kloos, filed a timely appeal of the Hearings Official’s decision (see Attachment E). Written notice of the appeal hearing was mailed to interested parties on June 21, 2019, 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 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 the subject Zone Change application. 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 1 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 are 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 applicable approval criteria from the Eugene Code. 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 regarding 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 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 project or decision. When issues are raised, staff works to help people better understand how to frame the issue 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 two (2) issues which are described below. To assist the Planning 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 the Appeal Statement are attached (see Attachments D and E). The record in this appeal, including the initial Staff Report and subsequent staff memoranda to the Hearings Official will be physically placed before the Planning Commission at the hearing and deliberations on this appeal and will also be provided electronically to each of the commissioners. Appeal Issue #1: The Hearings Official erred in determining that the properties have the /SR Site Review overlay zone on them. The /SR Site Review Overlay zone was not applied to these properties when the overlay zone was created in 2001. 2 Hearings Official’s Decision On pages 2 through 6 of the decision document, the Hearings Official addresses the applicant’s contention that when the City adopted its new land use code update (LUCU) in 2001, the ordinance eliminated the /SR Site Review Subdistrict, and accordingly eliminated all of the /SR Site Review Subdistrict Zones that had been previously imposed, and that the new overlay zone adopted in 2001 was never applied to the subject property. On page 4 of decision document, the Hearings Official concluded that the language of the adopting ordinance and text of the 2001 LUCU did not eliminate or otherwise impact the site review requirements imposed on the subject properties in accordance with the Whiteaker Plan. The Hearings Official concluded that nothing in the language or legislative history of Ordinance No. 20224 (the ordinance adopting LUCU) supports the assertion that the 2001 LUCU eliminated the application of the /SR Site Review to the subject properties. The Hearings Official determined that there is no indication in the record for this application that the discontinuation of the term “subdistrict” was intended to “discard” the /SR Site Review requirements that had been attached to any properties prior to 2001. Nor is there any evidence that /SR Site Review was inadvertently “killed” when the City replaced the term “subdistrict” with “overlay.” The Hearings Official further states that there is no language in Ordinance No. 20224 or the 2001 LUCU that “explicitly” removes or “discards” the /SR Site Review that had been originally attached to the subject property in 1994. The 2001 LUCU did not impact the continuation of the /SR Site Review that was legislatively attached to the subject property in 1994. In conclusion, the Hearings Official determined that: 1) the City’s actions in 1994 to impose the /SR Site Review when it implemented the Whiteaker Plan; 2) the City’s actions in 2001 when it adopted the current land use code; 3) the City’s legislative intent as it is reflected in Ordinance No. 20224 and in the City’s actions since 2001; and, 4) the City’s current Overlay Zone Map, all indicate that the subject property is currently encumbered by the /SR Site Review Overlay Zone. Based on the above, the Hearings Official denied the applicant’s request for a determination that the /SR Site Review Overlay Zone does not currently apply to the subject properties. Summary of Appellant’s Argument On pages 2 through 8 of the appeal statement, the appellant (applicant) contends that: (1) LUCU repealed the /SR Site Review Subdistrict, and (2) nothing in the adopting ordinance or the language of LUCU, or any subsequent adopted ordinance or map, applied the /SR Site Review Overlay Zone to the subject parcels. The appellant argues that the Hearings Official erred in the interpretation and application of Ordinance No. 20224 and LUCU to conclude that the subject properties are encumbered by the /SR Site Review Overlay Zone. According to the appellant, the plain text and context of Ordinance No. 20224 repealed the prior zoning districts and subdistricts, and, while Ordinance No. 20224 imposed new base zones to replace the prior zoning districts, the ordinance did not explicitly replace or repeal subdistricts, and in fact the language of the ordinance indicated that the overlay zones were to be applied in subsequent actions that never occurred. The appellant therefore concludes that the /SR Site Review Overlay Zone is not now attached to the subject properties. 3 Staff Comments Staff agree with the Hearings Official’s determination. Staff believes that legislative commentary, previously adopted ordinances, draft Eugene Code, and adopted Eugene Code (with relevant excerpts provided as part of the record materials for consideration) collectively demonstrate the continuity of legislative intent to retain the /SR Site Review Overlay Zone on the subject property, consistent with the Whiteaker Plan. While it is true that the has City reformatted, renumbered, and renamed various base zones and overlays (previously referred to as districts and subdistricts in the “old code” prior to the City’s land use code update in 2001), staff disagrees with the applicant’s argument that the City somehow inadvertently removed Site Review from the subject property. Staff’s findings and arguments are described in detail in the initial Staff Report and open record memo from staff to the Hearings Official as part of the initial public hearing process. It seems plain to staff that this new theory from the applicant could have far-reaching, unintended legislative consequences that are well beyond the scope of the Planning Commission’s authority to address in the context of this site-specific, quasi-judicial zone change application. If the applicant’s arguments are adopted by the Planning Commission as a basis to determine that the /SR Site Review Overlay Zone does not exist on the subject property at this time, those arguments could be extrapolated to provide that most overlay zones throughout the City (other than those indicated on codified maps such as the /TD or /CAS Overlay Zones, that were previously applied to properties as “subdistricts” through zone change decisions prior to the City’s land use code 2001), are rendered meaningless and inapplicable. Such a far reaching, policy-laden, and community-wide concern related to the City’s long-standing practice of using zoning overlays as means of regulating land use and development should be addressed legislatively by the City Council. The applicant’s theory should be rejected. Appeal Issue #2: Assuming the /SR Site Review overlay zone does apply to the subject properties, the Hearings Official erred in denying this application to remove the overlay. The relevant approval criterion at EC 9.8865(2) states: (2) The proposed zone change is consistent with applicable adopted refinement plans. In the event of inconsistencies between these plans and the Metro Plan, the Metro Plan controls. The relevant policy from the Whiteaker Plan (Policy 2) states: Apply Site Review Subdistrict to properties that are zoned C-2 General Commercial, GO General Office, or I-2 Light-Medium Industrial that are adjacent across an alley, or across a street from land zoned low-density residential since the uses on these properties are potential incompatible with the following exception: Do not apply Site Review to C-2 zoned land within the 6th/7th Avenue Commercial Area. Also apply Site Review to properties that are across adjacent, across an alley, or across a street from land within a historic district with the following exceptions: Do not apply Site Review to property zoned PL Public Land or low-density residential. Also apply Site Review to all properties zoned MU-W Whiteaker Mixed Use and to all properties zoned R-2/20 or any other residential 4  district that allows an equal or higher residential density, excluding property in a historic district. (Emphasis added). The relevant approval criterion at EC 9.8865(4) states: (4) The proposed zone change is consistent with the applicable siting requirements set out for the specific zone in: (o) EC 9.3905 S-W Whiteaker Special Area Zone Siting Requirements. The applicable siting requirement at EC 9.3905 states: EC 9.3905 S-W Whiteaker Special Area Zone Siting Requirements. In addition to the approval criteria at EC 9.8865 Zone Change Approval Criteria, the site must be planned for a special mix of uses in the Whiteaker Neighborhood Plan. Hearings Official’s Decision On page 7 of the decision, the Hearings Official finds that the applicant (appellant) does not address or establish how removal of the/SR Site Review Overlay Zone is consistent with the Whiteaker Plan. Specific to the Whiteaker Plan, the Hearings Official finds that Ordinance 19978, which adopted the Whiteaker Plan – and added Site Review to the subject property, that: “The Whiteaker Plan contains policies to apply Site Review to property with the most significant potential for compatibility issues being raised during new development or redevelopment. The application of /SR Site Review subdistrict zoning is being considered concurrent with adoption of the refinement plan. After the City of Eugene explores the use of design standards, as part of the major update to the Eugene Code, the need and desirability for site review may change.” The Hearings Official finds that the Whiteaker Plan requires Site Review for subject property because it was considered “property with the most significant potential for compatibility issues being raised during new development or redevelopment.” Subsequently, the Hearings Official finds that the applicant has not provided any evidence as to how the /SR Site Review Overlay Zone is no longer necessary for the subject properties; or how the subject properties continue to comply with the Whiteaker Plan without the /SR Site Review Overlay Zone. Therefore, regardless of the applicant’s arguments regarding the base zone title, the applicant has not established that the proposed zone change is consistent with the applicable Whiteaker Plan. Summary of Appellants’ Argument This argument from the appellant concerns zone change approval criteria at EC 9.8865(2) and (4). To summarize, these criteria address the proposed zone change in terms of consistency with adopted refinement plans and applicable siting requirements set out for the specific zone. 5 Regarding EC 9.8865(2) and consistency with the adopted refinement plan, the Whiteaker Plan, the appellant addresses this criterion on page 8 of the appeal statement, stating that the Whiteaker Plan relates to the “MU-W Whiteaker Mixed Use” base zone and that that zone no longer exists due to 2001 Land Use Code Update. Because, the appellant argues, the MU-W zone no longer exists, any reference to the MU-W zone in the refinement plan cannot be a basis for denial of the zone change request. Furthermore, the appellant asserts that the refinement plan does not relate to the S-W Whiteaker Special Area base zone because that zone did not exist when the plan was adopted. As such, the refinement plan does not require the /SR Site Review Overlay Zone on this property because neither the current overlay zone nor current base zone existed in 1994 when the Whiteaker Plan was adopted, and the plan has not been amended since 2001 to invoke either zone. The appellant contends that because the refinement plan does not require imposition of the /SR Site Review Overlay Zone, removal of that zone would be consistent with the plan. Regarding EC 9.8865(4) and consistency with siting requirements, appellant states that the Hearings Official erred by failing to find compliance with this standard. The appellant argues that the proposed zone change is consistent with the S-W Whiteaker Special Area Zone Siting Requirement regardless of whether the /SR Site Review Overlay Zone is applied to the property and states that there are no siting requirements in the Eugene Code that mandate the retention of the /SR Site Review Overlay Zone on the subject property. Staff Comments Regarding consistency with the adopted Whiteaker Plan, staff agree with the Hearings Official that the applicant has not established that the proposed Zone Change is consistent with the Whiteaker Plan. Staff note that the changes adopted in the LUCU reclassified the MU-W Whiteaker Mixed Use District to S-W Whiteaker Special Area Zone (EC Table 9.1045). City Council did not initiate a zone change process or ever adopt an ordinance re-zoning the MU-W Whiteaker Mixed Use District, and instead chose to approve the changes through a legislative code amendment process. As demonstrated in EC Table 9.1045, the amendment process has reclassified numerous zones. City Council Ordinance No. 20224 adopting LUCU, repealed Ordinance No. 19979 (Whiteaker MU-W District) and reclassified MU-W Whiteaker Mixed Use District to S-W Whitaker Special Area Zone, utilizing a naming and abbreviation convention that provides consistency among other special area zones. Staff maintain that S-W is not a new, different zone. S-W is a reclassified zone, per the land use code and the legislative intent expressed through its adoption by the City Council. Therefore, the fact remains that the requirement for the /SR Site Review Overlay Zone was implemented and attached to the subject property by way of a zone change decision in the past, and there has been no formal or explicit action by the City to remove it by way of a zone change to date. Staff agrees with the Hearings Official that the appellant has not provided any evidence to establish that removal of the /SR Site Review Overlay Zone is consistent with the Whiteaker Plan. As noted previously, “The Whiteaker Plan contains policies to apply Site Review to property with the most significant potential for compatibility issues being raised during new development or redevelopment.” [Emphasis added.] Staff agrees with the Hearings Official 6 that the applicant has not established that /SR Site Review Overlay Zone is no longer necessary for the subject properties. Nor has the applicant established that the subject properties will continue to comply with the Whiteaker Plan without the /SR Site Review Overlay Zone. Regarding consistency with siting requirements at EC 9.8865(4)(o), staff agree with the appellant that the /SR Site Review Overlay Zone is not explicitly addressed in the context of this approval criterion. Instead, staff believe it is the applicable policies in the Whiteaker Plan that require attachment of the /SR Site Review Overlay Zone to the subject properties under EC 9.8865(2). Because EC 9.8865(4)(o) specifically relates to siting requirements for the S-W Whiteaker Special Area base zoning, which already exists on the subject properties and is not changing as part of the applicant’s requested zone change, it does not appear to staff that EC 9.8865(4)(o) provides a further basis for denial of the applicant’s request. STAFF RECOMMENDATION/NEXT STEPS Staff recommends that the Planning Commission hold the public hearing and upon subsequent deliberations (a second meeting is scheduled for July 9, 2019) affirm the Hearings Official’s decision. Staff notes that the final local decision on this appeal is required by July 16, 2019 to meet the statutory 120-day deadline. If the Planning Commission’s decision modifies the Hearings Official’s decision, staff seeks direction on those changes to support the commission’s decision. In the event the Planning Commission reverses the Hearings Official’s decision and approves the application, the Planning Commission will need to provide direction on clear findings, relying upon existing evidence in the record, to explain how each of the Zone Change approval criteria are met and why. 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. ATTACHMENTS A. Property Table B. Vicinity Map C. Zoning Map D. Hearing Official’s Decision E. 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 as a courtesy, are also available on the City’s website at: https://pdd.eugene-or.gov/LandUse/SearchApplicationDocuments?file=Z-19-0001 FOR MORE INFORMATION: Please contact Rodney Bohner, Assistant Planner, Eugene Planning Division, by phone at (541) 682-5437, or by e-mail at rbohner@eugene-or.gov 7 Z 19-1 Attachment A  ATTACHMENT B - VICINITY MAP EB I105 W 4TH AVE WASHINGTON ST W 4TH ALY LAWRENCE ST LINCOLN ST EB I105 ONRP CHARNELTON ST W 5TH AVE Subject Property W 5TH ALY W 6TH AV E UGB ´ Caution: This map is based on imprecise source data, subject to change, Subject Properties Feet and for general reference only. 0 100 200 400 Taxlots April 2019 Simons Investment (Z 19-1) Z 19-1 Attachment C Assessor's Map: 17-03-30-43 Tax Lots: 00800, 01100, 01200, 01300, 01400 Assessor's Map: 17-03-31-12 Tax Lots: 01400, 01800, 02000, 02200 Assessor's Map: 17-03-31-21 Tax Lot: 00500 Removal of the /SR Site Review overlay zone W 4th Ave ^ Lincoln St Lawrence St Charnelton St ^ ^ ^ W 4th Aly ^ ^ ^ ^ ^ ^ W 5th Ave W 5th Aly Zoning /SR Overlay C-2 Community Commercial I-2 Light-Medium Industrial ´ S Special Area ^ Subject Site  Z 19-1 Attachment D DECISION OF THE HEARINGS OFFICIAL FOR THE CITY OF EUGENE, OREGON ZONE CHANGE REQUEST Applicant/File Name (Number): Simons Investment Property LLC (Z 19-1) Application Summary: Zone change request for property consisting of ten lots in an area bounded by West 4th Avenue to the north, Charnelton Street to the east, West 5th Avenue to the south, and Washington Street to the west, from S-W Whiteaker Special Area Zone with /SR Site Review Overlay to S-W Whiteaker Special Area Zone1 Applicant’s Representative: Teresa Bishow, AICP, Bishow Consulting, LLC Lead City Staff: Rodney Bohner, Assistant Planner The following findings and conclusions are based upon written evidence and testimony presented before and at the public hearing held on May 1, 2019, oral testimony presented at the public hearing, and all documents in the Eugene City planning file for the Simons Investment Property LLC Zone Change Request through the close of the Record on May 22, 2019. Conclusion: The applicant’s request for a zone change from S-W Whiteaker Special Area Zone with /SR Site Review Overlay to S-W Whiteaker Special Area Zone is denied. DISCUSSION AND FINDINGS: A. Background The applicant submitted a zone change application for the subject property to the City on February 11, 2019. The city deemed the application complete on March 11, 2019. Following public notice, a public hearing was held on May 1, 2019. The public hearing began with the hearing official’s explanation of the process and statutory and local procedural requirements for the hearing.2 Following this explanation, Assistant Planner Rodney Bohner presented the staff’s 1 The application states that the subject property is currently zoned S-W Whiteaker Special Area Zone with /SR Site Review overlay and requests removal of that overlay. As discussed below, the applicant now disputes that the /SR Site Review overlay applies to the subject property and seeks a determination that it does not. 2 The hearing official’s explanation included a statement that she has had no exparte contacts regarding the application and has no personal or financial interest in the subject property or the proposed zone change. The hearing official noted that her daughter lives in the Whiteaker neighborhood. She has not discussed the application Hearings Official Decision (Z 19-1) 1 D-1 summary and analysis of the application. Following the staff presentation, the applicant’s representative, Teresa Bishow, and attorney, Bill Kloos, presented testimony on behalf of the applicant. Following the applicant’s presentation, five individuals spoke in opposition to the application. Following staff comments, Theresa Bishow and Bill Kloos presented rebuttal testimony on behalf of the applicant. At a neighbor’s request, at the close of the public hearing the record was left open for a period of seven days, until 5:00 pm on May 8, 2019, for additional testimony and evidence; until 5:00 pm on May 15, 2019 for evidence and testimony responding to the additional testimony and evidence submitted during the initial open record period; and until 5:00 pm on May 22, 2019 for the applicant’s final rebuttal argument. During the first open record period, the city staff submitted into the record a supplemental memorandum to which it attached the City’s Zoning and Overlay Maps. During the second open record period, the applicant submitted responsive testimony and copies of historic city ordinances, and letters of support from two tenants of the applicant. The applicant submitted its rebuttal argument on May 22, 2019. B. Site Characteristics The subject property includes ten tax lots containing a total of approximately 3.67 acres. The subject property is located in the Whiteaker neighborhood, north of West 5th Avenue between Charnelton Street and Washington Street. Based on the City’s zoning and overlays maps, the subject property is currently zoned S-W Whiteaker Special Area Zone with /SR Site Review overlay. C. Description of Request The zone change application initially requested removal of the /SR Site Review overlay from the property’s current zoning. Following issuance of the staff report, the applicant amended the application to seek a determination that the /SR Site Review overlay does not currently apply to the subject property. D. Evaluation of Request 1. Request for Determination of Applicability of /SR Site Review Overlay The applicant argues that when the City adopted its new land use code in 2001, the ordinance eliminated the /SR Site Review subdistrict overlay and, accordingly, eliminated all of the /SR Site Review overlays that had been previously imposed; and that the ‘new’ overlay zone adopted in 2001 has never been applied to the subject property. Based on that argument, the applicant seeks a determination that the /SR Site Review overlay “was never put onto the property”. (Applicant’s amended request, April 29, 2019.) with her daughter and her daughter’s residence in the neighborhood does not impact her ability to make an objective and impartial decision on the application. Hearings Official Decision (Z 19-1) 2 D-2 The essence of the applicant’s argument is that because Ordinance 20224, which adopted the 2001 land use code, “killed” the overlay subdistricts and the city has not applied the ‘new’ overlay zone to those properties, the city has since then been inappropriately applying the /SR Site Review overlay to all properties to which it had attached the /SR Site Review overlay before 2001. As described in the pre-hearing request and at the hearing, the applicant initially argued that the City mistakenly failed to “connect the dots” and as a result, while the City’s decisions makers may have thought they were making no changes to the overlays zones then in effect, they inadvertently removed them. In his final rebuttal argument, the applicant’s attorney suggests that City Council did not intend to continue those /SR Site Review overlays. As a threshold matter, the City staff respond that the applicant’s amended request amounts to a request for a legislative determination that the City eliminated the /SR overlay subdistrict in its entirety in 2001, consideration of which is beyond the hearing official’s authority. In fact, much of the applicant’s testimony and evidence, including the historical evaluation and documentation of the evolution of the City’s zoning code since 1935, the arguments regarding the legislative history of the City’s 2001 actions, and the arguments regarding the effect of Ordinance 20224 as it applies to the /SR Site Review overlay as a whole, appears to seek to revisit and reevaluate the effect of the City’s 2001 code update as it applies generally to the City’s /SR Site Review overlay zone. Such a request would be beyond the scope of the hearing official’s authority through this zone change request. However, despite its arguments and evidence, the applicant insists it is not facially challenging the 2001 land use code update as it relates to the continued applicability of the /SR overlay zone. It asserts that this request applies only to the ten lots that comprise the subject property. While the applicant has not provided evidence specific only to the subject property, to the extent the request can be construed and limited in its scope to question whether the /SR Site Review overlay zone currently applies to the subject property, arguably that narrow question can be considered in the context of this quasi-judicial zone change request. As the applicant and the City agree, when the Whiteaker Refinement Plan was adopted in 1994, the subject property was zoned MU-W/Whiteaker Mixed Use through a City-initiated zone change. At the same time, also as required by the Whiteaker Refinement Plan, the City applied the /SR Site Review subdistrict overlay to the subject property, based on the following language: 2. Apply Site Review Subdistrict to properties that are zoned C-2 General Commercial, GO General Office, or I-2 Light-Medium Industrial that are adjacent across an alley, or across a street from land zoned low-density residential since the uses on these properties are potential incompatible with the following exception: Do not apply Site Review to C-2 zoned land within the 6th/7th Avenue Commercial Area. Also apply Site Review to properties that are across adjacent, across an alley, or across a street from land within a historic district with the following exceptions: Do not apply Site Review to property zoned PL Public Land or low-density residential. Also apply Site Review to all properties zoned MU-W Whiteaker Mixed Use [emphasis added] and to all properties zoned R-2/20 or any other residential district that allows an equal or higher residential density, excluding property in a historic district. Hearings Official Decision (Z 19-1) 3 D-3 No changes to the Whiteaker Refinement Plan, or its implementation, have occurred since then. During the City’s land use code update in 2001, all properties zoned MU-W Whiteaker Mixed Use were rezoned S-W Whiteaker Special Area Zone. Since then, all of those properties subject to the 1994 rezoning, including the subject property, have been designated on the City’s zoning and overlay maps as S-W/SR, Whiteaker Special Area Zone with Site Review overlay. The applicant argues now that Ordinance 20224 “explicitly repealed the Site Review subdistrict zone – it no longer exists.” The applicant reasons that because the City “formally reclassified the MU-W zone to the new S-W Whiteaker Mixed Use zone, [but] there was no formal or explicit action by the City to reclassify the Site Review subdistrict zone to the new Site Review overlay zone” the city failed to “connect the dots” and the overlay specifically applied to properties in 1994 was effectively eliminated. (Applicant Response Testimony, May 15, 2019.) The applicant appears to place dispositive significance the change in reference from the “old Site Review subdistrict zone” to the /SR Site Review overlay zone adopted in the 2001 code. It argues that because the code adopted a new /SR Site Review overlay zone, the ‘old’ subdistrict overlays effectively were eliminated; and because the 2001 code established overlay zones rather than overlay ‘subdistricts’, the application of the ‘subdistricts’ to properties to which it had applied was also eliminated. The applicant argues: “The land use code update in 2001 discarded the sub-district zones in the former code and created most of the overlay zones in the current code. However, the 2001 adopting ordinance did not apply the new overlay zones to any property. Whether the City Council erroneously assumed the new overlay zones were being applied to the properties in the 2001 ordinance, or it intended to apply the new overlay zones throughout the City in a subsequent legislative action, it never happened.” Applicant Amended Request, April 29, 2019. Contrary to the applicant’s argument, however, nothing in the language or legislative history of Ordinance 20224 supports the applicant’s assertion that the 2001 land use code eliminated the application of the /SR Site Review to the subject property. There is no indication in this record that the discontinuation of the term ‘subdistrict’ was intended to ‘discard’ the /SR Site Review requirements that had been attached to any properties prior to 2001. Nor is there any evidence that /SR Site Review was inadvertently ‘killed’ when the city replaced the term ‘subdistrict’ with ‘overlay.’ The applicant is correct that the new code adopted a new /SR site review overlay zone. However, notwithstanding the applicant’s repeated assertions, there is no language in Ordinance 20224 or the 2001 land use code that “explicitly” removes or “discards” the /SR Site Review that had been attached the subject property in 1994. Unlike the S-W Whiteaker Special Area Zone, which affirmatively and explicitly replaced the MU-W Whiteaker Mixed Use zone, the 2001 code did not impact the continuation of the /SR Site Review that was legislatively attached to the subject property in 1994. Hearings Official Decision (Z 19-1) 4 D-4 The language of Ordinance 20224 does not indicate that, as applied to the subject property, the City eliminated the existing /SR Site Review when it adopted the 2001 land use code. However, to the extent there is a question as to the effect of the ordinance language, the legislative history indicates that was not the City’s intent. The city staff provided minutes of the Planning Commission’s consideration of the then-proposed code update in March, 2000. Those minutes include the following statement: “Responding to a question from [Planning Commissioner] Mr. Farley, [then planning staff] Ms. Bishow confirmed that generally the overlay zones were reformatted and renumbered for clarity, but where they applied had not changed.” March 7, 2000 Eugene Planning Commission Minutes. The applicant’s attorney now fully discounts that statement, since it was made “only” by a staff member and “only” to a planning commissioner and asserts “that isolated comment is hardly enough to read text into the LUCU ordinance that is not there – text that would apply the new /SR overlay zone to all properties that had the Site Review subdistrict at the time of LUCU [Land Use Code Update] adoption.” (Applicant May 22, 2019 Closing Argument.) Instead, it appears the applicant’s attorney would read into the LUCU ordinance an elimination of the existing site review overlay zone and its wholesale replacement (but not implementation) with the new overlay zone. In fact, the language of that ordinance does not eliminate, or otherwise impact, the site review overlay that had been applied in accordance with the Whiteaker Refinement Plan. And the staff’s confirmation that “where they applied had not changed” during deliberations is relevant evidence to support the plain language of the legislation. The fact that the City’s interpretation of the impact (or lack of impact) of the 2001 code on the /SR Site Review overlay that was attached to the subject property in 1994 has remained for the intervening 18 years, and that the City’s Overlay Zone Map continues to show that the subject property is subject to the /SR Site Review overlay, is further evidence that the 2001 land use code update did not intend to remove the /SR overlay from the subject property. 3 The applicant also relies on the language Ordinance 19978, which adopted the Whiteaker Plan – and added the /SR Site Review to the subject property, that: “The Whiteaker Plan contains policies to apply Site Review to property with the most significant potential for compatibility issues being raised during new development or redevelopment. The application of /SR Site Review subdistrict zoning is being considered concurrent with adoption of the refinement plan. After the City of Eugene explores the use of design standards, as part of the major update to the Eugene Code, the need and desirability for site review may change.” The applicant states that “[d]uring the major update of the Eugene Code [in 2001] the Council adopted a new S-W zone and city-wide design standards that eliminate the continued need and 3 The applicant also challenges the legitimacy of the City’s Overlay Zone Map on the basis that it has not been properly adopted. The hearing official relies on the zoning and overlay boundaries as they are depicted on the city’s official maps, in accordance with EC 9.1050. The applicant’s issue with the City’s Overlay Map adoption process is beyond the scope of this zone change request. Hearings Official Decision (Z 19-1) 5 D-5 desirability for site review.” (Applicant supplemental testimony, May 1, 2019.) However, whether the applicant thinks the 2001 design standards “eliminate the continued need and desirability for site review,” the City’s action in 2001 did not address that Refinement Plan policy. To the extent the applicant is suggesting that the 2001 legislative action implicitly constituted a decision on the “need and desirability for site review” for purposes of the Whiteaker Plan policies, there is nothing in the 2001 legislation to support that conjecture. The question of the “need and desirability for site review” under in the Whiteaker Plan is not at issue in this application. And whether the applicant thinks the Whiteaker Plan policy that required the /SR Site Review be applied to the subject property should be revised or re-evaluated is not relevant to the issue of whether the /SR Site Review, which was applied to the property in 1994, continues to apply. The City’s actions in 1994 to impose the /SR Site Review when it implemented the Whiteaker Plan; the City’s actions in 2001 when it adopted the current land use code; the city’s legislative intent as it is reflected in 2001 and in the City’s actions since 2001; and the City’s current Overlay Zone Map all indicate that the subject property is currently encumbered by the /SR overlay zone. The applicant’s request for a determination the /SR Site Review Overlay does not currently apply to the subject property is denied. 2. Request to remove /SR Site Review Overlay Eugene Code (EC) Section 9.678(2) requires evaluation of an application for a zone change to determine whether the request complies with the following criteria: EC 9.8865(1): The proposed change is consistent with applicable provisions of the Metro Plan. The written text of the Metro Plan shall take precedence over the Metro Plan diagram where apparent conflicts or inconsistencies exist. Finding: Based on the adopted Metro Plan land use diagram, the Metro Plan designates the subject property as “Mixed Use”. As noted in the staff report, the Metro Plan describes the “Mixed Use” designation as: Mixed Use: This category represents areas where more than one use might be appropriate, usually as determined by refinement plans on the local level. (For example, the Whiteaker Refinement Plan includes several areas where a mix of compatible uses, based in part on existing development, are designated.) In the absence of a refinement plan, the underlying plan designation shall determine the predominant land use. The requested S-W Whiteaker Special Area Zone is consistent with both the Metro Plan Mixed Use designation. As described at EC 9.3900, the purpose of the S-W Whiteaker Special Area Zone is to “encourage vitality of the area for employment and industrial, institutional and Hearings Official Decision (Z 19-1) 6 D-6 commercial uses while also allowing a mix of residential dwellings.” The uses permitted in the S-W Whiteaker Special Area zone are listed at Table 9.390 and are consistent with the Metro Plan Mixed Use designation. EC 9.8865(2): The proposed zone change is consistent with applicable adopted refinement plans. In the event of inconsistencies between these plans and the Metro Plan, the Metro Plan controls. Finding: The subject property is subject to the Whiteaker Refinement Plan. A portion of the subject property is also included within the Eugene Downtown Plan area. The Eugene Downtown Plan provides a broad policy basis for uses that will strengthen the economic vitality of the downtown area. However, it does not contain an adopted land use diagram. While the application cites two policies from this plan that it asserts provide general support for the requested zone change, neither constitute approval criteria for this application. As discussed above, when the Whiteaker Plan was adopted in 1994, the subject property was zoned, through a City-initiated zone change process, to apply the Whiteaker Mixed Use zone. The property was then rezoned to the S-W Whiteaker Special Area Zone during the City’s 2001 code update process. The application describes and establishes that the underlying S-W Whiteaker Special Area zone is consistent with the refinement plan. The applicant does not, however, address or establish how removal of the/SR Site Review overlay is consistent with the refinement plan. Instead, the applicant relies on a hearing official decision in Z 18-7 (Simons Oregon Investment) where the hearing official declined to impose the /SR Site Review overlay to the applicant’s request for a zone change from I-2, Light-Medium Industrial to S-W, Whiteaker Special Area zone. Significantly, and as the staff correctly note, the property at issue in that case was not subject to the 1994 Refinement Plan policy that required (and continues to require) the /SR Site Review overlay on properties then zoned M-U Whiteaker Mixed Use. The present request to remove the /SR Site Review overlay that was attached to the subject property in 1994 is not equivalent or comparable to a request to add the /SR Site Review overlay to property that was not subject to that Refinement Plan policy. In fact, the applicant has not provided any evidence to establish how removal of the /SR Site Review overlay from the subject property is consistent with the Whiteaker Refinement Plan. As recited above, “[t]he Whiteaker Plan contains policies to apply Site Review to property with the most significant potential for compatibility issues being raised during new development or redevelopment.” (Emphasis added.) The Whiteaker Plan required site review for subject property because it was considered “property with the most significant potential for compatibility issues being raised during new development or redevelopment.” The applicant does not provide any evidence as to how the /SR Site Review is no longer necessary for the subject property; or how the subject property continues to comply with the Refinement Plan without the /SR Site Review. Instead, the applicant’s narrative is directed at the overall ‘need and desirability for site review” which it Hearings Official Decision (Z 19-1) 7 D-7 argues has changed. However, also by the express terms of the Whiteaker Plan, that ‘need and desirability for site review” is an issue for the City to determine through a legislative process. It does not provide a basis to remove the /SR Site Review overlay from the subject property. Several neighbors provided testimony expressing their concern regarding compatibility of new or redevelopment in the Whiteaker Neighborhood – and the continued need for the /SR Site Review to ensure compatibility issues are addressed. The applicant’s generalized argument regarding the overall need for /SR Site Review on S-W Whiteaker Special Area-zoned properties does not address how or why, as applied to the subject property, the /SR Site Review overlay is not necessary to ensure compliance with the Whiteaker Refinement Plan. Without any evidence related specifically to the subject property, the applicant has not established that removal of the /SR Site review overlay from that property is consistent with the Whiteaker Refinement Plan. The applicant has not established that the proposed zone change is consistent the applicable Whiteaker Refinement Plan. EC 9.8865(3): The uses and density that will be allowed by the proposed zoning in the location of the proposed change can be served through the orderly extension of key urban facilities and services. Finding: The Metro Plan defines key urban facilities and services as wastewater services, stormwater services, transportation facilities and services water, fire and emergency medical services, and police protection, city-wide parks and recreation programs electric service, land use controls, communication facilities and public schools. As the applicant’s narrative describes, the subject property is in a developed area where all key urban facilities and services are available and accessible. Public Works referral comments also confirm that wastewater, stormwater and streets are available to serve the subject property. EC 9.8865(4): The proposed zone change is consistent with the applicable siting requirements set out for the specific zone in: ***** (o) EC 9.3905 S-W Whiteaker Special Area Zone Siting Requirements. In addition to the approval criteria at EC 9.8865 Zone Change Approval Criteria, the site must be planned for a special mix of uses in the Whiteaker Neighborhood Plan. Finding: As discussed above, the requested zone change is consistent with the Metro Plan. However, the applicant has not addressed whether the site is planned for a special mix of uses in the Whiteaker Neighborhood Plan; and has not addressed how removal of the /SR Site Review overlay would ensure consistency with applicable siting requirements of the Whiteaker Plan. EC 9.8865(5) In cases where the NR zone is applied based on EC 9.2510(3), Hearings Official Decision (Z 19-1) 8 D-8  the property owner shall enter into a contractual arrangement with the City to ensure the area is maintained as a natural resource area for a minimum of 50 years. Finding: The NR zone does not apply to the subject property and, therefore, this criterion is not applicable to the requested zone change. Transportation Planning Rule Pursuant to Oregon Administrative Rule (OAR) 660-012-0060, Statewide Planning Goal 12 (Transportation) requires that zone change applications specifically address compliance with Goal 12. OAR 660-012-0060 requires: (1) If an amendment to a functional plan, an acknowledged comprehensive plan, or a land use regulation (including a zoning map) would significantly affect an existing or planned transportation facility, then the local government must put in place measures as provided in section (2) of this rule, unless the amendment is allowed under section (3), (9), or (10) of this rule. Finding: The requested zone change is subject to section (9) of OAR 660-012-0060, which states: (9) Notwithstanding section (1) of this rule, a local government may find that an amendment to a zoning map does not significantly affect an existing or planned transportation facility if all of the following requirements are met. (a) The proposed zoning is consistent with the existing comprehensive plan map designation and the amendment does not change the plan map; (b) The local government has an acknowledged TSP and the proposed zoning is consistent with the TSP; and (c) The area subject to the amendment was not exempted from this rule at the time of an urban growth boundary amendment as permitted in OAR 660-024-0220(1)(d), or the area was exempted from this rule but the local government has a subsequently acknowledged TSP amendment that accounted for urbanization of the area. The City of Eugene’s Eugene 2035 Transportation System Plan (2035 TSP) is the City’s acknowledged local transportation system plan. Chapter 3 of the 2035 TSP, entitled “Needs Assessment and Evaluation”, provides: The needs assessment and resulting projects… that establish a transportation system adequate to meet the identified local transportation needs are based upon the land use Hearings Official Decision (Z 19-1) 9 D-9  designations established by the Metro Plan. Because the 2035 TSP is based on the Metro Plan land use designations, any zone allowed within the land use designation is consistent with both the Metro Plan and this 2035 TSP. As discussed above, the requested zone change is consistent with the existing Metro Plan designation for the subject property; no Plan amendment is requested. Therefore, pursuant to OAR 660-012-0060(9), a zoning map amendment resulting from approval of the requested zone change would not significantly affect an existing or planned transportation facility; and the measures otherwise required under OAR 660-012-0060(2) do not apply to this application. DECISION Based on the above analysis and findings, the Hearings Official determines that the subject property is currently subject to the /SR Site Review Overlay zone; and DENIES the application for a zone change of the subject property from S-W Whiteaker Special Area Zone with /SR Site Review overlay to S-W Whiteaker Special Area Zone. Virginia Gustafson Lucker Hearings Official Dated this 31st day of May, 2019. Mailed this _____ day of _____, 2019. SEE NOTICE OF HEARINGS OFFICIAL DECISION FOR STATEMENT OF APPEAL RIGHTS Hearings Official Decision (Z 19-1) 10 D-10  fo)@©@:OW@: m\ Z 19-1 Attachment E w JUN 1 1 2019 � LAW OFFICE OF BILL KLOOS PC CITY OF EUGENE OREGON LAND USE LAW 375 W. 4TH AVENUE, SUITE204 PLANNING DIVISION BILL KLOOS EUGENE, OR 97401 BILLKLOOS@LANDUSEOREGON.COM TEL: 541 .954-1260 WEB: WWW.LANDUSEOREGON.COM June 11, 2019 Eugene Planning Commission c/o Eugene Planning and Development Atrium Building 99 West 10th Ave. Eugene, OR 97401 Re: Simons Investment Property LLC (Z 19-1) Applicant's Appeal of Hearing Official Denial Dear Commissioners: The Hearings Official (HO) denied this request to remove the /SR Site Review Overlay Zone from 10 tax lots in the S-W Whiteaker Special Area Zone. The HO denied the owner's request for a determination that the /SR overlay zone, which was created in the 2001 makeover of the code, was never actually applied to the property. Having determined that the /SR overlay zone does apply to the property, the HO then denied the owner's request to remove it. The HO erred on both issues. Each error is appealed here. The owner requests a determination that the /SR overlay zone does not apply to the property. If the /SR overlay zone does apply, the owner requests removal of the overlay - that is, approval of the zone change request. We address each of these issues separately below. I. The HO erred in determining that the properties have the /SR Site Review overlay zone on them. The /SR Site Review Overlay zone was not applied to these properties when the overlay zone was created in 2001. A. Background and Framework The interpretation issue concerns the language and implementation of the Land Use Code Update, Ordinance No. 20224 (LUCU), adopted in 2001, and the status of the site review subdistrict from the old version of the Eugene Code following the adoption of LUCU. The question at issue is whether LUCU repealed the prior site review subdistricts and intended future decision-making to impose the new /SR Site Review Overlay Zone on specific properties, or whether the 2001 amendments automatically converted the site review subdistrict to the /SR Site Review Overlay Zone under LUCU. Put another way, did the properties that were subject to a site review subdistrict continue to have the burden of site review following the adoption of E-1 E-2 E-3 E-4 E-5 E-6 E-7 E-8 E-9