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HomeMy WebLinkAboutCCMinutes - 11/15/04 Mtg MINUTES Eugene City Council Regular Meeting Council Chamber--Eugene City Hall November 15, 2004 7:30 p.m. COUNCILORS PRESENT: Bonny Bettman, Nancy Nathanson, Scott Meisner, David Kelly, Betty Taylor, Gary Papd, Jennifer Solomon. COUNCILORS ABSENT: George Poling. Mayor James D. Torrey called the meeting of the Eugene City Council to order. 1. PUBLIC HEARING: An Ordinance Amending the Laurel Hill Plan Land Use Diagram to Redesignate Property Identified as Tax Lots 199, 200, 300, Assessor's Map 18-03-03-2 3 from Low-Density Residential to Commercial and to Rezone the Property from R-1 Low-Density Resi- dential to C-2 Community Commercial; Adopting a Severability Clause; and Providing an Effec- tive Date Mayor Torrey called for council declarations of ex parte contacts and conflicts of interest. Councilor Kelly indicated he was contacted by some citizens of the Laurel Hill Valley asking about the applications under consideration; he had indicated to them he could not discuss the subject because of the quasi judicial nature of the applications. He had also met with Mr. Larson, the owner of the property, on another topic months before the application was submitted. Mayor Torrey determined councilors had no information to share based on their visits to the site. City Manager Dennis Taylor introduced Patricia Thomas of the Planning Division, who was present to discuss the staff report and criteria of approval. Ms. Thomas reviewed the applications before the council, which were a request for a change in the refinement plan designation (RA 04-01) and zone a change from Low-Density Residential to Commercial. She said the site was 1.38 acres and was located at the northeast comer of the intersection of Moon Mountain Drive and Laurel Hill Drive. The property was now zoned and designated for residential development. However, it was poorly suited for such development due to geographic constraints in the form of steep slopes and manmade constraints in the form of power lines. Ms. Thomas reported that the Eugene Planning Commission supported the staff recommendation to approve the applications by a vote of 4:2. Commissioners and Planning and Public Works staff were available to answer questions. MINUTES--Eugene City Council November 15, 2004 Page 1 Regular Meeting Ms. Thomas noted the relevant criteria for the refinement plan amendment, found in Eugene Code Section 9.8424, and the relevant code for the zone change, found in Section 9.8865. Further relevant policy language was found in the Laurel Hill Plan, Land Use and Future Urban Design Element Policy 5. Mayor Torrey urged those offering testimony to focus their comments on the approval criteria. Failure to raise an issue with sufficient specificity to allow the council to respond precluded that individual's ability to raise the issue on appeal. Mayor Torrey called first on the representatives of the Planning Commission. Jon Belcher, 1240 West 15th Avenue, #4, provided the Eugene Planning Commission's minority report on behalf of himself and Commissioner Mitzi Colbath. He said the applicant did not address the intent and policies in the refinement plan other than meeting the criteria allowing the plan to be modified. The applicant ignored that the plan had designated an area of land for commercial development directly across the street from the property in question. The applicant rejected the neighborhood's request to annex his property into the floating node. Mr. Belcher felt it would totally negate the plan to allow the property to be developed commercially, particularly when no commercial development had occurred in the area zoned for it since the refinement plan was adopted. Mr. Belcher acknowledged that staff believed that the fifth approval criterion was met, that is a change in circumstances not anticipated when the plan was adopted. He agreed there was a change in that ODOT had established access control limits across the entire northern edge of the undeveloped commercial node, along yet-to-be-built Brackenfern Road, preventing direct access to Glenwood Drive. Now it appeared access to the properties would have to be from Henderson Street to 25th Avenue, a very circuitous route for the residents and even more so for interstate traffic. Mr. Belcher said ODOT's new access control limits bring the viability of the plan's commercial node into significant question, and he recommended that the council direct staff to work with the neighbors and affected property owners to reevaluate the commercial node and modify it if appropriate. That could include the potential of adjusting the node boundaries to include the applicants' property. Mr. Belcher said that no additional part of the East Laurel Hill area was to be designated for commercial purposes until a public need was demonstrated. He did not think the public need had been demonstrated. He called on the City to revise the refinement plan to facilitate the applicants' needs and meet the needs of the neighborhood. John Lawless, 90 East 26th Avenue, Chair of the Eugene Planning Commission, said the commission's recommendation, which was based on the substantial changes in ODOT's access limitation policies and the presence of high voltage power lines on the property were sufficient cause for the commission to find for the applicant in this matter. Mayor Torrey then called on the applicants' representative. Bill Kloos, attorney for the applicant, called the council's attention to a colored aerial photograph of the site in question and the subject property in plan view. He noted the items were in the public record. Mr. Kloos said that little of the property in question was actually usable; only 9,000 square feet of the property was unencumbered by power line easements, and that area was subject to setbacks on both the east and west. He MINUTES--Eugene City Council November 15, 2004 Page 2 Regular Meeting said all parties seemed to be in agreement that the site was not suitable for residential use. He noted that the Eugene-Springfield Metropolitan Area General Plan (Metro Plan) stated that sites under power lines were unsuitable for residential use. Mr. Kloos said that both the ODOT and City transportation staff agreed that the access to the site can be worked out. He said that ODOT was very concerned about mixing commercial and residential traffic, but the applicant had shown the agency a conceptual way that could occur and ODOT was satisfied. He emphasized that a transportation impact analysis (TIA) would be completed before development occurred. Mr. Kloos said he was sensitive to Mr. Belcher's argument that the refinement plan should be amended, and while he thought that was appropriate, he did not think that process should hold up the application. He pointed out that the applicant had been working with staff for a year on the issue, and the applicant followed staffs direction in filing the application. Staff and the commission supported the application. He asked for the council's support. Mayor Torrey called on those in opposition to the application. Charles Biggs, 540 Antelope Way, acknowledged he was unfamiliar with the application in question but was concerned about neighborhood plans. He said revising a refinement plan was serious because neighbors relied on the plans. If a plan was changed in a significant way, he believed that there was reason to deny the application. In regard to the power lines on the property, Mr. Biggs pointed out the Quail Run development was built under power lines. He opposed the application and supported revising the refinement plan. Jan Wostmann, 2645 Riverview Street, representing the Laurel Hill Valley Citizens, said the primary issue in dispute regarding the requested amendment to the Laurel Hill Plan was the need for additional commercial land in the area. He said a public need must exist for the application before the criteria in the refinement plan amendment were satisfied (Eugene Code 9.8424(1)(c). He said the application was not consistent with Policy 5 of the Laurel Hill Plan, which stipulated that no additional property in the East Laurel Hill area would be designated for commercial use until a public need was demonstrated. Mr. Wostmann recalled an earlier 1998 rezoning application, which was denied because there was no need for additional commercial zoning at that time since no portion of the development node had been developed. Now new owners were seeking rezoning to allow commercial development, claiming a public need, but the commercial node still had not been developed. Mr. Wostmann noted the three claims for public need identified in the staff notes, suggesting the council evaluate those claims against the %ommonsense precedent" set in 1998 and consider how much of the available land supply had been used. He believed the reasons offered were speculative at best. He submitted written testimony. Thomas Gossart, 3055 Floral Hill Drive, representing the Laurel Hill Valley Citizens, discussed the public need for commercially zoned land and distinguished local commercial need from the needs of tourists traveling on the freeway. He said it was clear the property owner sought the rezoning in order to sell the land to a developer to develop as a motel. That did not meet the needs of residential development. He believed there was sufficient commercial land available to meet the needs of residents. He disagreed that the ODOT access limits meant the existing commercial node was less desirable as it could still easily be reached by residents. He said that the applicants argued there was a need for immediately developable commercial land. However, he quoted from the September 21 testimony of Richard Larson, who suggested that neighborhood commercial development would not occur until the residential development was substantially completed. The need would be met as the need arises. He agreed. Mr. Gossart submitted written MINUTES--Eugene City Council November 15, 2004 Page 3 Regular Meeting testimony. Carolyn Cox, 2720 Riverview Street, representing the Laurel Hill Valley Citizens, said no public evidence had been presented of the need for more commercially designated land, such as motel vacancy rates. The applicants assert the lack as a fact. All the assertions presented could be interpreted ambiguosly, such as the applicants' reference to the ~public." Planning staff defined the public in this case as the traveling public. The applicants assert that the recent removal of a motel in the vicinity argued for the need for more motels along 1-5, although it could mean there were too many motels and the motel was removed to make better use of the property. She suggested that the applicants' assertion that two developers expressed interest in the property at a below-market cost indicated such a motel was only profitable if land costs were low. Ms. Cox said that a principle was a stake. If the City's refinement plans were amended every time a developer wanted a change, they would be worthless. She asked the council to honor the plan and its policies. Rich Hazel, 2603 Moon Mountain Drive, representing the Laurel Hill Valley Citizens, did not want the applicants' attorney to suggest what all were in agreement on. He questioned what evidence of public need existed. He thought the applicant was misinterpreting the plan and his arguments did not speak to the policies. He said that Policy 5 was not complex and was not related to changes in economic patterns, land speculation, or the needs of tourists. It addressed the future needs of the area. Since its adoption, development had happened exactly as expected. He said Policy 5 was valid and should be upheld. Mr. Hazel questioned if there was a need for more commercial land when none of the commercially designated land had been developed. He said the need would arise some day, but it was not present now. Kevin Matthews, 120 West Broadway, speaking as President of Friends of Eugene and Southeast Neighbors, believed there was insufficient evidence in the record to support the application. He termed the application a case of speculation against the plan. He preferred to see the plan amended through a ~normal" process. That might or might not lead to a development opportunity, but it would be fair. He noted his neighborhood organization's 5:1 vote to support the Laurel Hill Neighbors position and the Planning Commission's minority position. Mr. Matthews suggested that the application to ~up-zone" the property from residential to commercial had Ballot Measure 37 implications and said the council should proceed slowly. Betty Hemmingson, no address given, representing the Laurel Hill Neighbors, also addressed the issue of public need. Exhibit A, the findings for the application, stated that land should be developable under the designation given it. She said the property in question was encumbered with power line easements well before the adoption of the refinement plan. She said the current zoning and the power line easements were in place when the applicant purchased the property. She termed him a land speculator who acquired a marginal property and then tried to increase its value by seeking to rezone. Ms. Hemmingsen said the needs of two individuals did not constitute a public need. She did not think that individual property owners should be allowed to seek refinement plan amendments. Ms. Hemmingsen said that did not mean the neighborhood association was opposed to adjusting the commercial node, but the needs of all landowners should be considered in that process. Mayor Torrey called on staff for its response. There was no staff response. Mayor Torrey called on the applicants' representative for rebuttal. MINUTES--Eugene City Council November 15, 2004 Page 4 Regular Meeting Mr. Kloos said the applicants' rationale for rezoning the property was not based on the need for a motel or the demise of a motel in the area. It was based on the desire that some practical use be made of the property. It could not be developed residentially due to the encumbrances created by the power lines. He reiterated that by policy, the comprehensive land use plan recognized the site was not a good place to put houses. If it was not good for houses, what should be done with it? He did not think it fair to ask the property owner to live with a blighted property indefinitely. Mr. Kloos said that one then needed to look for another use, and another use required a different zone; in this case the commercial zone made sense. He acknowledged the property owners received inquiries from motel developers, but that interest did not drive the request. The need to make use of the property drove the request. Mr. Kloos said that Laurel Hill Plan Policy 5 discusses need and four needs were identified, the most fundamental of which was for the property owner to be able to make some use of the property. He said the references to the balance of the existing commercial property in the node were well-taken, but that node, which was also largely owned by his client, was not being developed because it could not be developed yet. Brackenfern Road needed to be improved before development could take place. In addition, east of Brackenfern Road the topography falls off dramatically, creating service delivery issues. Mr. Kloos believed that development of that property was sometime off in the future. Mayor Torrey closed the public hearing. He called on the council for questions and comments. Councilor Pap~ asked if there were Ballot Measure 37 implications to the applications, as asserted in testimony. City Attorney Glenn Klein said no. He indicated he would give the question more thought before the council took action, but could think of no implications now. Councilor Pap~ asked if there were Dolan implications to the issue if the property had no practical economic use. Mr. Klein did not think there was a Dolan takings claim. Nothing had changed since the time the property owners purchased the property, so that implied they were aware of the property's limitations, including the current zoning. He would discuss the issue with Planning staff and let the council know if his opinion changed. Councilor Pap~ asked if development could occur under the power lines on the property or in the power line right-of-way or easement. Ms. Thomas said building construction could occur outside the easement; parking could occur within the easement. Councilor Pap~ asked about the location of other commercial land in the area. Ms. Thomas referred him to a map on page 235 of the meeting packet and used the aerial photograph provided by Mr. Kloos to point out the property in question. Councilor Pap~ determined from Ms. Thomas there were letters from the neighborhood association in opposition to the application in the meeting packet. Councilor Bettman determined from Mr. Klein that in the absence of a request from the public, the record did not need to be left open. Councilor Bettman indicated she wanted to leave the record open as she wished the public to have the benefit of the staff responses. Councilor Bettman, seconded by Councilor Kelly, moved to leave the record open MINUTES--Eugene City Council November 15, 2004 Page 5 Regular Meeting for two weeks. Councilor Solomon determined from Mr. Klein that the council was scheduled to take action on the application on November 22, and leaving the record open would mean action would be postponed until December 6. Councilor Kelly thought the issues raised by the application were significant and wanted the applicant and neighborhood association to be able to respond to any staff responses. In response to a question from Mayor Torrey, Mr. Klein said the council would not need to hold another public hearing. Roll call vote; the motion passed, 7:0. Councilor Kelly conceded that the parcel was not suited for residential development, but he believed the issue before the council was the larger principle of whether the council would honor neighborhood refinement plans. The City and neighborhoods had put a "lot of stock" in those plans. While they could be revised, that should be done in the context of a broad public process including all property owners, not just a single applicant. He believed the proposed amendment "made a mockery of the plan" by failing to consider context. Councilor Kelly was "almost a little embarrassed" by the findings' discussion of public need. He pointed out that the City had put aside 20 acres for commercial development in the immediate area of the applicants' property and no commercial development had occurred. Until a public need was demonstrated, no more commercial land should be developed. He thought the findings were "grasping at straws," and noted that while Mr. Kloos said that a motel was not the reason for the application, the findings specifically mentioned the potential of motels on the site, so he concluded "the applicant did talk about a motel." Councilor Kelly could not connect that to public need. If the property owner had owned the property for many years he would feel differently, but the property owner bought the property three years ago knowing its limitations. He agreed that property owners should be able to use their property, but the correct approach was through the refinement plan. Councilor Meisner thanked those offering testimony for their clear and cogent remarks. Given that the record had been held open, he would not state a position on the applications at this time as he did not think it appropriate to go on the record before the public record closed. Councilor Meisner said through its transportation plans and lobbying, the City had made it clear it was seeking new ramps from Franklin Boulevard to 1-5 and wanted to look at that possibility and its relationship to other interchanges comprehensively. He asked if Planning or Public Works staff had looked at the future of the interchange in question in light of possible changes and done any analysis whether the commercial node would remain viable if the ramps were built. Mayor Torrey asked what could be located on the property in question if the application was denied. Mayor Torrey solicited a second round of council comments and questions for future staff follow-up. Councilor Bettman wanted to know if the property had been encumbered by the prohibition on development under power lines when the applicant bought the property, and if the residential zoning had been in place at that time. Ms. Thomas indicated staff would get back to her with an answer. MINUTES--Eugene City Council November 15, 2004 Page 6 Regular Meeting Councilor Bettman said the applicant argued the property was unsuitable for residential use but it was suitable for a regional commercial use. She asked if there was a requirement that one could make the case for a use being more suitable than another. In her visits to Seattle she had noticed the proliferation of pornographic retailers next to motel uses along Interstate 5, and asked if the rezoning of the property would facilitate the development of such a use. Councilor Bettman noted that Lane County Commissioner Bill Dwyer developed a low-income residential property on land encumbered by power lines by locating other activities, such as storm water treatment facilities and parking, under the lines. She questioned the assertion the property in question could not be used for residential purposes. Councilor Kelly asked if the property owners' inability to make use of their property was a criterion for a refinement plan amendment. He recalled that Brackenfern Road was scheduled to be improved in 2006 and asked staff to confirm that detail. Councilor Kelly asked staff to outline how quickly a refinement plan amendment that addressed all property owner interests could be completed. He also asked staff to contrast ODOT's access control and distance at this location to the access control and distances existing along 1-5 already, particularly such as occurred in Wilsonville, where long distances did not seem to matter to the use of the commercially zoned area. Councilor Taylor asked if the City was obligated to find a use for everyone's property. She also asked how a motel could be needed by a neighborhood. Councilor Pap~ asked why the property in question was not included in the commercial node when the refinement plan was adopted. Ms. Thomas indicated she would follow up. Councilor Bettman spoke to information she would like to see regarding the relationship of the application to Ballot Measure 37. She said if the property was purchased before provisions of the Land Use Code Update or other relevant regulations were adopted, she wanted to know what may be eligible for a Ballot Measure 37 claim, and if there was a way to include a applicants' waiver to any Ballot Measure 37 claim as a provision of a zone change approval to provide protection for the City. 2. PUBLIC HEARING: An Ordinance Concerning Real Property Compensation; Adding Sections 2.070, 2.075, 2.080, 2.085, 2.090, and 2.095 to the Eugene Code; 1971; Declaring an Emergency; and Providing an Immediate Effective Date City Manager Taylor introduced the item, recalling that on November 8 the council reviewed an ordinance for implementing recently passed Ballot Measure 37 as of its effective date of December 2. The public hearing was the first of two scheduled. The second hearing would take place on November 22, 2004. Mayor Torrey opened the public hearing. C. Robert Suess Sr., 260 East 38th Avenue, said due to a series of frustrating obstacles and his age, his desire to develop his property for affordable residential housing had ended. He suggested the council step into the shoes of offended landowners for a short time. Mr. Suess cited those who had purchased land long ago to subdivide for their children, build on and enjoy in their later years, or to develop to fund their MINUTES--Eugene City Council November 15, 2004 Page 7 Regular Meeting retirement. Those individuals paid taxes for years and then were denied use of their investment. He hoped the City Council would give sincere consideration to offended landowners and not treat them as second-class citizens. He said that information regarding the effect of escalating land costs on the community and mutual solutions were being prepared. He asked that the council delay adoption of the ordinance until it could review that information. Kevin Matthews, 120 West Broadway, Friends of Eugene, called for a provision of public notice within a reasonable time frame when a Ballot Measure 37 claim was made. He suggested the cost be placed on the applicant making a claim if possible. He thought Councilor Bettman's question on possible waivers for up- zoning should be follow-up on. He referred to Section 2.0901 of the proposed ordinance and asked that it be modified to state the council %hall" have a hearing. He referred to Section 2.0904 of the ordinance and asked that the %ither/or" language be clarified. He believed a third option was missing. Jim Trunnell, 2238 Silhouette Road, spoke of the losses he had experienced as the owner of buildings containing a bar and restaurant in Eugene because of the City's smoking ban in restaurants and bars. He said his leases with his tenants had been affected adversely. Sales in the bar had been dramatically affected. He said that many bars and restaurants in Eugene had been forced to close because of the council's smoking ban. He had lost the value of his property because of the City's actions and was unable to collect fair rent because the affected businesses could not pay it. Mr. Trunnell believed that property owners would make Ballot Measure 37 claims against the City because of the ban, and asked the council to do the right thing and repeal the local smoking ban so that bar owners in Eugene were on a legal playing field with other communities. Lauri Segal, 120 West Broadway, representing 1,000 Friends of Oregon, did not think the ordinance's definition of %wner" went far enough. She suggested adding a definition for the term %laimant" as being the present owner who had also owned the property prior to and since adoption of the regulation at issue. A valid claim needed to come from a person who currently owned the property and owned it at the time the regulation was enacted. That did not seem to be reflected in the ordinance. Ms. Segal discussed the definition of ~valid claim," suggesting that text be added that stated ~A claim submitted by the lower of real property that is subject to a land use regulation adopted or enforced by the City after the property became the property of the current owner, and that restricts the use of private real property..." Referring to the compensation claim submittal procedure, Ms. Segal suggested that it be modified to read that the claimant must be both the present owner and contiguous owner since the enactment of the regulation. Ms. Segal indicated she would submit her comments in writing. David Monk, 3720 Emerald Street, supported the application fee being recommended, and endorsed the claims process being proposed. He agreed with Mr. Matthews that public hearings should be mandatory rather than at the discretion of the City Manager. Mr. Monk also suggested that public notice be extended beyond the current 300-foot mailing area. He expressed concern about the provision regarding a private cause of action, questioning whether it was the most effective approach to compensation for property owners living adjacent to a property on which a claim has been filed. There being no more requests to speak, Mayor Torrey closed testimony, reiterating that a second hearing and action was scheduled for November 22. Mayor Torrey called on the council for comments and questions for staff follow-up. MINUTES--Eugene City Council November 15, 2004 Page 8 Regular Meeting Councilor Kelly recalled that he had requested language related to public notice. Mr. Klein indicated text regarding public notice would be prepared prior to the next hearing. Councilor Kelly asked Mr. Klein to provide comment to the council regarding Ms. Segal's suggested text changes related to the definitions of owner and claimant. Councilor Kelly noted that the ordinance defined "family member" but the term was never used, except in the definition of exempt land use regulation, and the definition of exempt land use regulation was never cited anywhere in the ordinance. He suggested the term be deleted if it was not to be used. Councilor Pap~ determined from Mr. Klein that the City's smoking ban was not a land use regulation and, even if it were, it would fall under the exemption in Ballot Measure 37 related to public health and safety. Councilor Pap~ asked Mr. Klein to comment on testimony regarding the definition of "property owner" and "claimant." Mr. Klein clarified the definitions in the ordinance were taken directly from the text in Ballot Measure 37. He said that staff did not make the definitions very specific because it did not know what the courts would do or what claims would be coming forward. Staff had attempted to provide the council with maximum flexibility as the City began to process Ballot Measure 37 claims. Once the City had more experience implementing the measure, the council would be able to make changes to the ordinance. Councilor Bettman agreed that additional language regarding public notice of hearings was needed. Councilor Bettman asked how the ordinance could be modified to address the fact that some land use ordinance added value to a property rather than detracted from it and allow the City to take that into consideration as it calculated a claim's value. Councilor Bettman suggested that the ordinance to be modified include language that precluded a property owner who successfully sought an up-zoning for their property from making a Ballot Measure 37 claim against the City. Councilor Bettman wanted to know if the time limits for Ballot Measure 37 claims were limited to when the heirs received a property or if the claims time limit went back to when the original family member purchased a property. Councilor Bettman noted the council's receipt of a suggestion that juries, rather than the City Council, decide claims. She found that interesting, and asked for input from legal counsel as to the legality of that approach. Councilor Taylor also supported the inclusion of a provision calling for a required public hearing and she supported broader public notice. She also wanted staff input on a suggestion received by the council that claims be decided by the courts. Mayor Torrey said the ordinance before the council created a set of standards under which all could make claims. He said the fee being proposed was not unreasonable given that the City budget had not anticipated the cost of the measure. He did not believe the City was getting the support it needed from the State in MINUTES--Eugene City Council November 15, 2004 Page 9 Regular Meeting implementing the measure, and thought the council was doing the responsible thing in enacting the ordinance. Mr. Klein concurred with the remarks of the mayor. He said the ordinance laid out a process that was not mandatory; the City could still process applications not following the process. The fee would collect only the actual cost of processing a claim. He said the ordinance included provisions that the proponents of Ballot Measure 37 did not like, and he would address those in the staff notes for the next hearing. Mr. Klein indicated that written comments were being accepted before the next hearing. The meeting adjourned at 9:02 p.m. Respectfully submitted, Dennis M. Taylor City Manager (Recorded by Kimberly Young) MINUTES--Eugene City Council November 15, 2004 Page 10 Regular Meeting