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Message - Testimony on LUCU Remand Ordinances
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Posted by  Kevin Matthews on April 09, 2002 at 00:37:22:


Post-hearing Addition -- Thank you for extending the open time on the public record on this matter. With the time provided, I look forward to revising, correcting, and completeing these remarks. In the meantime, here in electronic form is the testimony I submitted this evening. -- KMM
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Testimony on Proposed LUCU Remand Ordinances - 2002.0408
Kevin Matthews, Southeast Neighbors


Dear Eugene City Councilors and Mayor,

As a citizen of Eugene, as elected president of an active neighborhood group, as someone who has testified previously on the Land Use Code Update (LUCU) before and after adoption, and as an intervener on the City side in the lawsuit brought before the Land USe Boar d of Appeals (LUBA) by the Eugene Chamber of Commerce and Homebuilders Association, I welcome this opportunity to share some views.

It is clear that the City has a solemn obligation to response promptly and appropriately to the LUBA remand of LUCU from that lawsuit.

It is regrettable that during the formulation of the City's response to the LUBU remand, the City attorney met privately with the Chamber of Commerce and the Homebuilder's Association, with no opportunity for participation offered to recognized interveners -- and then proceeded to assert in writing that equal access had been scrupulously provided.

It is regrettable that the condensed public process in which we are now engaged has been structured in such a way that the ability of the city council to take in and respond effectively to public input is minimized. Whoever is responsible for a schedule that sandwiches the only opportunity for public testimony immediately after the relevant council work session and immediately before expected council votes to adopt should take another look at his or her concept of public participation.

What About Severability?

With regard to the overall urgency of response to the LUBA remand of LUCU, there is substantial uncertainty. If LUCU and the previous adopting ordinances included effective severability clauses, then the current situation should be that LUCU remains in effect, except for the small number of remanded sections. If effective severability clauses were not included, such an omission would appear to be the kind of gross error that makes professional discipline appropriate. Such an essential error is not one which the taxpayers of Eugene should have to pay additional legal fees to correct.

Why Three Ordinances Instead of One?

The case for passing adjustments to LUCU in the form of three separate ordinances has not been made effectively. The approach seems flawed legally, procedurally, and in terms of the public trust.

All three ordinances include adjustments to LUCU, and all three include severability clauses. Either the three stand alone, in which case after Ordinance 1 has passed then Ordinances 2 and 3 should not be considered and passed without 45 day notice to LCDC, or the three are a package, as suggested by the references to 2 and 3 which are embodied in Ordinance 1, in which case passing them separately is an empty piece of sophistry effective only in obscuring public discourse.

IF the intent of creating three ordinances is to give an opportunity for Council process to in fact adopt 1 without adopting 2 and 3, then this form of presentation must be understood as a fraud against the public trust. The previously adopted legislative intent of LUCU should not be watered down with reduced public process under cloak of a LUBA remand.

The three ordinances should be combined into one, and be amended, adopted, or rejected as one.

What Goal 5 Inventory?

Many of proposed adjustments to LUCU use the term of art "the city's acknowledged Goal 5 inventory." The content of this inventory is critical as in many cases the proposed adjustments rely of this term to distinguish which regulations apply. About the city's Goal 5 inventory, LUBA says in their opinion:

Identifying the city¹s Goal 5 inventory is not an easy task,
in part because it was adopted as part of a regional
planning process, and in part because the inventory consists,
as far as we can tell, of a large collection of various
"working papers" and maps.

The opinion goes on to detail the confusing and amorphous nature of the
"acknowledged Goal 5 inventory."

When we have asked city staff and attorney for the specific details of the "the city's acknowledged Goal 5 inventory", we have been referred to one map. Frankly, the map provided, showing only a few major streets, no property lines, with six different shading types, with NO direct reference in either key or title to either Goal 5 or inventory, does not provide an adequate basis for either public input on land use code policy, or for use and administration of a LUCU which would rely on it to determine which code sections are relevant to a given property.

LUBA further states that:

The short answer is that the city must demonstrate that, to
the extent the LUCU amends programs that were previously
adopted to protect significant Goal 5 resources, the
challenged amendments comply with the Goal 5 rule. OAR
660-023-0250(3); Pekarek v. Wallowa County, 36 Or
LUBA 494, 498 (1999) (where a plan or zoning ordinance
amendment affects inventoried Goal 5 resources, the local
government must apply the requirements of the Goal 5 rule
and determine that the rule is satisfied). That does not
necessarily mean that the city must repeat the entire Goal 5
process, or adopt new or amended ESEE analyses. Where the
justification the city adopted to support its original Goal
5 programs also supports the amended Goal 5 programs, the
city may simply explain why that is the case. However, where
the original justification does not justify the amended Goal
5 program, part or all of the original justification will
need to be amended to support the amended Goal 5
program.

The proposed approach to this requirement by LUBA and by statute is to not change the applicable code or zoning for any area on "the city's acknowledged Goal 5 inventory". Or in other words, the proposal is to roll back any terms of LUCU which would change protections on areas in "the city's acknowledged Goal 5 inventory". This is a broadly understandable shortcut to patching LUCU provisions on remand. However, a detailed analysis of this approach, its very large potential impacts, and where the shortcut may or may not be necessary, is impossible without a more specific definition of "the city's acknowledged Goal 5 inventory".

LUCU Adjustments in Detail

I respectfully submit for your consideration the following detailed adjustments to the proposed ordinances. These specific points are presented according to this simple principle: Where a way is immediately available to directly fix LUCU provisions to be consistent with both original legislative intent and the LUBA opinion, such repairs should be made now, in strong preference to simply deleting or exempting significant code provisions.

Thank you for considering these points.

Best wishes,


Kevin Matthews
President, Southeast Neighbors

Detailed Comments on Ordinance 1

Section 1. -- OK

Section 2. -- Add phrase instead of delete:

Section 9.0500 of the Eugene Code, 1971, is amended by adding this text:

", as shown on a Response Time Map adopted by the Eugene Fire Marshall which provides a clear and objective implementation of this definition."

Because: the remand of LUCU does not erase the city's responsibility for safe and efficient public safety services. Where there is a simple way to fix LUCU provisions to be consistent with both original legislative intent and with the LUBA opinion, a provision should be repaired rather than deleted or exempted.

Section 3. -- Clarify definition of "the city's acknowledged Goal 5 inventory".

Section 4. -- Clarify definition of "the city's acknowledged Goal 5 inventory".

Section 5. -- Clarify definition of "the city's acknowledged Goal 5 inventory".

Section 6. -- Add phrase to clarify:

", unless the city makes a finding that the zoning change is consistent with the Goal 5 justification for protecting this site in "the city's acknowledged Goal 5 inventory".

Because: without this additional phrase, the proposed adjustment unnecessarily and inappropriately alters the original legislative intent.

Section 7. -- Clarify definition of "the city's acknowledged Goal 5 inventory".

Section 8. -- Clarify definition of "the city's acknowledged Goal 5 inventory".

Section 10. -- Delete proposed adjustments.

Because: There is no basis in the LUBA opinion for the changes proposed, or any direct reason to remove coverage of 'gravel' parking, unauthorized fill, and 'ponds', for instance. Rather, the LUBA remand simply requires the city to provide findings that these provisions are compatible with Goal 5. That is how the city should respond here.

Section 11. -- Delete proposed adjustments.

The generic explanation provided for why these changes are being proposed is not adequate in the absence of a more specific reference to the opinion.

Section 12. -- No explanation is provided for proposed changes.

Section 17. -- Should reference a specific landscape industry quality standard. There has been time for staff to do this by now, though there admittedly there isn't time tonight.

Section 19. -- Add additional paragraph 1b, renumber others appropriately:

(1) (b) For applications proposing needed housing, applicant shall provide adequate drainage to development so that increased stormwater runoff to adjoining private properties will not be increased over pre-development levels.

Alternatively:

(1) (b) For applications proposing needed housing the developer shall show
that a connection exists from the development site’s Storm water
drainage system to the city’s existing Storm water system at a point
where the city’s system has the capacity to accept the additional flow.

Because: it is unacceptable public policy to exempt "needed housing" development from the requirement of providing good drainage, especially since local developers have repeatedly argued that 'all housing is needed housing'.

Also -- Clarify definition of "the city's acknowledged Goal 5 inventory".

Section 20. - Delete proposed amendments.

Because: First, generally, the remand of LUCU does not erase the city's responsibility to regulate development for basic public safety. Blanket exemptions from public safety requirements are unacceptable.

Second, with regard to Goal 5 areas, the point was remanded because the city offered no defense. The city can respond simply by providing a finding of why geological analysis requirements will not change Goal 5 protections.

Third, for needed housing applications, city can respond simply by making a finding that geological analysis requirements, because they serve and essential public safety purpose, will not cause unreasonable cost or delay for needed housing applications.

Also -- Clarify definition of "the city's acknowledged Goal 5 inventory".

Section 22. - Fix here using language from Ordinance 2.

9.6730 Pedestrian Circulation On-Site.
(3) Design of On-Site Pedestrian Facilities. All on-site pedestrian paths provided for the purposes of complying with this land use code shall conform with the following standards:
(d) On-site pedestrian paths intersected by driving aisles shall be marked with striping or constructed with a contrasting paving material to indicate a pedestrian crossing area.

Section 24. - Instead of deleting, make clear and objective by reference to map.

9.6815 (2) Street Connectivity Standards
(e) The requirements of subparagraphs (b) and (c) of this subsection do not apply if it is demonstrated that a connection cannot be made because of the existence of a natural resource area either protected from street development in the city's acknowledged Goal 5 inventory, or else mapped in the city's draft natural resources inventory as adopted in 2001-2002.

Because: First, simply deleting the street connectivity exemption for natural resource areas is illegal for areas on the city's acknowledged Goal 5 inventory without prior findings. Second, for other areas the provision can be made clear and objective by reference to map, thereby preserving legislative intent and good public policy.

Section 26. -- The provisions should be re-written to preserve legislative intent and also be clear and objective by removing unnecessary conditionals. Substitute text for paragraph (1):

9.6835 Public Accessways.
(1) To provide access for pedestrians and bicyclists to and
from residential areas, transit stops, neighborhood activity centers, and
other commercial and industrial areas, or where required by adopted plans, the
city shall require within the development the dedication to the public and
improvement of accessways to connect to cul-de-sacs, or to pass through blocks,
provided the city makes findings to demonstrate consistency with constitutional
requirements. Public accessways shall conform to design
standards for accessways contained in the "Design Standards for Eugene Streets,
Sidewalks, Bikeways and Accessways".

Section 30. (9.6885) -- Tree Preservation.

- Replace all of the strikeout text in LUCU 9.6885 (2) [Ordinance #1 pages 22 and 23]

- Delete the wording of LUCU 9.885 (2) (c) and replace it with the following:

(c) That residential development will occur in a manner that protects at
least 70% of the critical root zone of each retained under subsection
(2)(a) above; except that the total amount of land protected on any single
lot shall not exceed the percentages list below. Should the critical root
zone area to be protected be greater then these limits, then the number of
significant trees preserved under 9.6885 shall be reduced until the
protected critical root zone area of the preserved trees is less then the
applicable limit. For the following zones the limit shall be:

1. R-1 49%
2. R-1.5 and rowhouses in R-1 and R-2 24%
3. R-2 49%
4. R-3 and R-4 24%

- Add the following finding to Ordinance #1:

As the amount land available for development after the area protected
as the critical root zone of significant trees in LUCU 9.6885 is
subtracted is greater then the Maximum Lot Coverage limitations
contained in Table 9.2750 it is the determination of the Council that the
amount of Goal 10 buildable land is not reduced.

Section 32. (9.8090) - Add phrase.

9.8090 (5) (c) 2. ", or as subsequently adjusted in compliance with Goal 5."

Because: Otherwise the change fails in its purpose of Goal 5 compatibility. The issue is not what the initial Goal 5 protections are, but rather, what the current acknowledged Goal 5 protections are.

Section 33. (9.8100) - Rather than just delete protections, correct them to be clear and objective.

9.8100 (3)
(a) All rare plants (those that are proposed for listing or are listed under
State or Federal law) are preserved. The protected area shall include the
area occupied by the plant, plus a minimum 100 foot buffer measured
from the center of the plant.

(b) The City Manager shall maintain a list of all known rare animal
species habitat. For the purpose of this section “rare animal species” are
those that are proposed for listing or are listed under State or Federal law.
That list shall delineate the location and boundaries of each habitat listed.
The protected area shall include the area of any listed habitat, plus a
minimum 100 foot buffer measured from its perimeter.

Because: Simply deleting the provisions is unnecessary, and fails to preserve original legislative intent.

Section 34. (9.8220). - Fix provisions to be clear and objective.

Please see specific wording given in previous sections on same points.

Section 35. (9.8320) - Add phrase.

9.8320 (4) (c) 2. ", or as subsequently adjusted in compliance with Goal 5."

Because: Otherwise the change fails in its purpose of Goal 5 compatibility. The issue is not what the initial Goal 5 protections are, but rather, what the current acknowledged Goal 5 protections are.

Section 36. (9.8325) - Rather than just delete protections, correct them to be clear and objective.

9.8325 (4)
(a) All rare plants (those that are proposed for listing or are listed under
State or Federal law) are preserved. The protected area shall include the
area occupied by the plant, plus a minimum 100 foot buffer measured
from the center of the plant.

(b) The City Manager shall maintain a list of all known rare animal
species habitat. For the purpose of this section “rare animal species” are
those that are proposed for listing or are listed under State or Federal law.
That list shall delineate the location and boundaries of each habitat listed.
The protected area shall include the area of any listed habitat, plus a
minimum 100 foot buffer measured from its perimeter.

(c) All waterways are protected. Protected areas shall include the area between the banks and a minimum 50 foot buffer on each side of the line of ordinary high water.

(6) (b) [see language above]

(9) All proposed dwellings within the PUD are within 1/4 mile of an accessible
recreation area or open space that is at least one acre in size and will be
available to residents.

(10) Stormwater runoff from the PUD will not create increased peak flows or velocity in on natural drainage courses either on-site or downstream.

Because: Simply deleting the provisions is unnecessary, and fails to preserve original legislative intent.

Section 37. (9.8320) - Add phrase.

9.8320 (2) (c) 2. ", or as subsequently adjusted in compliance with Goal 5."

Because: Otherwise the change fails in its purpose of Goal 5 compatibility. The issue is not what the initial Goal 5 protections are, but rather, what the current acknowledged Goal 5 protections are.

Section 38. (9.8445) - -- Rather than just delete protections, correct them to be clear and objective.

9.8445 (3)

(a) All rare plants (those that are proposed for listing or are listed under
State or Federal law) are preserved. The protected area shall include the
area occupied by the plant, plus a minimum 100 foot buffer measured
from the center of the plant.

(b) The City Manager shall maintain a list of all known rare animal
species habitat. For the purpose of this section “rare animal species” are
those that are proposed for listing or are listed under State or Federal law.
That list shall delineate the location and boundaries of each habitat listed.
The protected area shall include the area of any listed habitat, plus a
minimum 100 foot buffer measured from its perimeter.

(c) All waterways are protected. Protected areas shall include the area between the banks and a minimum 50 foot buffer on each side of the line of ordinary high water.

(e) Natural resource areas designated on the Metro Plan diagram as "Natural
Resource" and areas mapped in the draft natural resource inventory adopted by the city 2001-2002 are protected. Protection shall include the area of the resource.

(6) (b) [see language above]

(9) All proposed dwellings within the PUD are within 1/4 mile of an accessible
recreation area or open space that is at least one acre in size and will be
available to residents.

(10) Stormwater runoff from the PUD will not create increased peak flows or velocity in on natural drainage courses either on-site or downstream.

Because: Simply deleting the provisions is unnecessary, and fails to preserve original legislative intent.

Section 39. (9.8515) - Add phrase.

9.8515 (7)
(a) 2. ", or as subsequently adjusted in compliance with Goal 5."

(c) 2. ", or as subsequently adjusted in compliance with Goal 5."

Because: Otherwise the change fails in its purpose of Goal 5 compatibility. The issue is not what the initial Goal 5 protections are, but rather, what the current acknowledged Goal 5 protections are.

Section 40. (9.8520) - Correct in place as shown for similar section above.


Citizens Nature Project! http://www.NatureProject.org/nature.html
Neighbors Forum! http://www.SoutheastNeighbors.org/sen_forum.html
====================================================================
Kevin Matthews, matthews@artifice.com
541-345-7421 vox, 541-345-7438 fax, P.O. Box 1588, Eugene, OR 97440

 


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