HomeMy WebLinkAboutResolution No. 4780
RESOLUTION NO. 4780
A RESOLUTION RESPONDING TO THE REMAND
OF ORDINANCE NOS. 20258 AND 20259.
The City Council of the City of Eugene finds that:
A. In July 2002, the City of Eugene, the City of Springfield, Lane County and
Lane Transit District ("the local governments") took actions that collectively amended
TransPlan, the Eugene-Springfield Metro Area General Plan, the West Eugene Wetlands
Plan, and the Lane County Rural Comprehensive Plan. The City of Eugene did so by
adopting Ordinance No. 20258 and Ordinance No. 20259 on July 8, 2002. The
amendments were made in response to a request from the Oregon Department of
Transportation ("ODOT") to enable ODOT to proceed with plans to construct the West
Eugene Parkway in a modified alignment.
B. The local governments' actions were appealed to the Land Use Board of
Appeals ("LUBA"). On March 24, 2003, LUBA issued its decision upholding the local
governments' action on most of the issues raised by the petitioners, but remanding the
actions based on four of the issues raised by petitioners.
C. The petitioners appealed LUBA's decision to the Court of Appeals. On
August 27, 2003 the Court of Appeals affirmed LUBA's decision, without providing a
written opinion. The petitioners did not seek the Supreme Court's review of the Court of
Appeals' decision. The appellate judgment of the Court of Appeals became effective
October 7, 2003 and LUBA issued a notice of appellate judgment on October 8, 2003 that
indicated the appellate judgment required no change to the earlier LUBA decision.
D. None of the issues on remand require the local governments to reopen the
record for additional evidence or to adopt additional findings. Instead, for each of the
four issues remanded by LUBA, the local governments need only describe the findings
already adopted in support of the actions taken or, as necessary, provide additional
explanation of evidence in the record that supports the findings already adopted.
NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
EUGENE, a Municipal Corporation of the State of Oregon, as follows:
Section 1. The Eugene City Council responds to the remand of Ordinances 20258
and 20259 with the Remand Response and Explanation of Findings contained in
Attachment A and incorporated herein by this reference.
Resolution - 1
Section 2. This Resolution shall become effective immediately upon adoption.
The foregoing Resolution adopted the 12th day of November, 2003.
m~~~
City Recorder
Resolution - 2
Attachment A
To Resolution 4780
Remand Response and Explanation of Findings
Introduction
In July 2002, the City of Eugene, the City of Springfield, Lane County and Lane Transit
District ("the local governments") took actions that collectively amended TransPlan, the
Eugene-Springfield Metro Area General Plan, the West Eugene Wetlands Plan, and the
Lane County Rural Comprehensive Plan. The local government actions were appealed to
the Land Use Board of Appeals ("LUBA"). On March 24,2003, LUBA issued its
decision upholding the local government actions on most of the issues raised, but
remanding the actions based on four of the issues raised by petitioners. The petitioners
appealed LUBA's decision to the Court of Appeals. On August 27,2003 the Court of
Appeals affirmed LUBA's decision, without providing a written opinion. The petitioners
did not seek Supreme Court review of the Court of Appeals' decision. The appellate
judgment of the Court of Appeals became effective October 7, 2003 and LUBA issued a
notice of appellate judgment on October 8, 2003 that indicated the appellate judgment
required no change to the earlier LUBA decision. None ofthe issues on remand require
the local governments to reopen the record for additional evidence. For each of the four
issues remanded by LUBA and set forth below, the local governments describe findings
already adopted to support the actions taken or, as necessary, provide some additional
explanations of those findings or the evidence in the record which supports the findings
already adopted.
Subassif!nment of Error 1 (d)
Petitioners argued that the local governments inadequately addressed Statewide Planning
Goal 2, Part II(c)(4) when they adopted exceptions to Statewide Planning Goals 3, 4, 11
and 14. Specifically, Petitioners argued that the findings relating to Goal 3 (Agricultural
Lands) were deficient with respect to the impacts of the Modified Alignment on adjacent
agricultural uses.
Criterion on remand:
Statewide Planning Goal 2, Part II(c)(4):
"A local government may adopt an exception to a goal when: * * *
(4) The proposed uses are compatible with other adjacent uses or will be so
rendered through measures designed to reduce adverse impacts."
LUBA's direction on remand:
"Although we might be able to locate an adequate response to this
subassignment of error from the many pages of findings, we decline to do so
without assistance from [the local governments]. On remand [the local
1
governments] must provide an adequate explanation for why the Modified
Project will be compatible with adjacent agricultural uses or what 'measures
designed to reduce adverse impacts' will render it compatible with those
adjacent uses. * * * [A]n adequate description of the nature of those
agricultural uses followed by a discussion of how they might be impacted by
construction of the Modified Project would seem to be a logical way to
proceed in providing that explanation."
Response and Explanation of Findings:
The adopted findings specifically address the Goal 2, Part II(c)(4) requirement cited by
the Petitioners and LUBA. In doing so, the findings describe the agricultural uses
adjacent to the Modified Alignment and explain that the Modified Alignment will be
compatible with those uses. What follows is a description and explanation of how the
local government findings conclude the actions adequately address Statewide Planning
Goal 2, Part II(c)(4).
The local governments adopted exceptions to specific Statewide Planning Goals through
the following enactments: Eugene Ordinance No. 20258, Lane County Ordinance No. P A
1174, Springfield Ordinance No. 6022 and Lane Transit District Resolution No. 2002-
028. Each of the local governments based their actions on findings contained in Exhibit C
to their enactments. Exhibit C is composed of four documents (Exhibit C, Exhibit C-1,
Exhibit C-2 and Exhibit C-3). The findings adopted as Exhibit C-1 ("C-1 findings") quote
the Goal 2, Part II(c)(4) requirement at page 8. In response to that requirement, the
findings refer to and incorporate analysis provided in later portions of the findings,
concluding that the requirement is satisfied. C-1 findings, page 8. On pages 9-12 of the
C-1 findings, the local governments state and conclude that:
"[o]utside the UGB, most of the affected land is zoned for agricultural use.
However, for reasons explained in more detail in the Compatibility Memorandum,
incorporated herein by reference, much of the adjoining agricultural land is being
used as open space for wetland mitigation or to protect threatened and endangered
species. See Figure 2; see also Compatibility Memorandum at Figure 1. In terms
of impacts on commercial farm enterprises, the northward realignment of the
WEP does not result in any acreage loss of the four large commercial farms in the
project vicinity. In fact, compared to the Approved Design, it reduces adverse
impacts to commercial farm operations by moving the facility farther from the
large cattle operation south of West 11th Avenue. West of Goble Lane, the
facility essentially occupies the same area as the Approved Design, rendering no
real impact differences from that alignment. Except for these places, there are no
commercial farms in the project vicinity. Instead, this area is checkered with a
pattern of hobby farms that do not contribute significantly to the commercial
agricultural enterprise. The Modified Project creates no new parcels outside the
UGB, and it should not increase the potential for encroachment beyond that
associated with the Approved Design."
2
The referenced Figure 2 of the C-1 findings is entitled Landuse Compatibility, Rural
Impacts and shows the land uses in the vicinity of the Modified Alignment, specifying
the type of agricultural use (hay, sheep, cattle) for those sites where agricultural uses are
in place. The Supplemental Draft Environmental Impact Statement ("SDEIS") for the
Modified Alignment was cited heavily throughout the findings. The SDEIS contains two
maps at figure 3-3, page 1 of2, and figure 3-4 page 1 of2. Figure 3-3 shows Existing
Land Use along the Modified Alignment. Figure 3-4 of the SDEIS shows the
comprehensive plan designations adjacent to the Modified Alignment. As shown in
Figure 3-4 and described in the adopted findings, there is land adjacent to the Modified
Alignment designated as Agriculture. Though the existing uses along the proposed
parkway vary widely, the findings note that the great majority of the land bordering the
northern side of the Modified Alignment is in parks/open space and is managed as part of
the West Eugene Wetlands Plan.
In addition, pages 47-49 of the C-1 findings are dedicated specifically to the requirement
of Goal 2, Part lI(c)(4). The discussion in this section of the findings largely summarizes
the Compatibility Memorandum that was also adopted by the local governments (as
Exhibit C-3) and incorporated into the C-1 findings. The C-1 findings on pages 47-49
explain the reduction of impacts on farm uses that will result from the Modified
Alignment. They also explain the Modified Alignment's effect on access to rural
properties and the ways in which access is designed to "limit local access to the adjoining
rural area, thereby reducing adverse farm impacts and maintaining compatibility." C-1,
page 47. The findings then explain in detail how the ownership interests and zoning of
the areas adjacent to the Modified Alignment will assist in ensuring limited access to
adj acent agricultural areas. C-1, page 48-49.
The findings adopted as Exhibit C-3 and incorporated into the C-! findings are those
referred to above as ODOT's Compatibility Memorandum. This ten-page memorandum
identifies each tax lot that is adjacent to the Modified Alignment and provides a detailed
description of those properties and their uses. The memo contains an analysis of the six
major ways that a roadway project can impact land uses in rural areas and concludes,
with some detail, that "[t]he WEP would not have any major impacts on land uses in the
project area. In general, it is compatible with adjacent uses." C-3, page 10.1 Based on
that analysis and the additional adopted findings as described above, the local
government concluded the actions complied with applicable standards for exceptions to
Statewide Goals, including the requirements of Goal 2, Part lI( c)( 4).
1 The analysis concentrates on the impacts (or lack thereof) based on the following six categories: l)
displacement of houses and buildings; 2) acreage losses from roadway rights-of-way and/or uneconomic
remnants; 3) parcelization, resulting in more complicated farming practices; 4) complication of access to
properties; 5) visual modifications to the rural setting; and 6) potential induced development.
3
Subassif!nment of Error l( e)
Petitioners argued that the local governments' findings inadequately addressed OAR 660-
012-0070(8) by failing to address whether the rural lands adjacent to the Modified
Alignment would be adversely affected by increased accessibility.
Criterion on remand:
OAR 660-012-0070(8)
"To address Goal 2, Part lI( c)( 4), the exception shall:
(a) Describe the adverse effects that the proposed transportation
improvement is likely to have on the surrounding rural lands and land
uses, including increased traffic and pressure for nonfarm or highway
oriented development on areas made more accessible by the
transportation improvement;
(b) Adopt as part of the exception, facility design and land use measures
which minimize accessibility of rural lands from the proposed
transportation facility or improvement and support continued rural use
of surrounding lands."
LUBA's direction on remand:
"Subassignment of error 1 ( e) is sustained to the limited extent that is assigns
error to respondents' failure to consider and address accessibility impacts that can
be attributed to the change in the Approved Project that the challenged decisions
made by approving the Modified Project corridor."
Response and Explanation of Findings:
The local jurisdictions findings specifically address the requirements of OAR 660-012-
0070(8) at pages 47-49 of the C-1 findings. In addition, the explanation provided above
regarding Goal 2, Part lI(c)(4) also addresses this remand item. What follows is a
description and additional explanation of the findings that address accessibility impacts
attributable to the changes contained in the Modified Project.
The findings discussed above show that the limited access design feature of the facility
will minimize access to the neighboring agricultural land. Findings Exhibit C-1, pages
47 - 49. The Modified Alignment will close the existing Highway 126/Goble Lane
access, and relocate it to an existing driveway west of Goble Lane. That action will help
limit local access by reducing the number of access points onto the new highway. C-1
findings, page 47. Also, contrary to the Approved Design, the Modified Alignment will
not have a direct connection with W. 11th Avenue west of Greenhill Road. That action
will eliminate another access to the highway from the surrounding EFU land and is an .
improvement over the Approved Design. The railroad tracks south of the future
Modified Project also create a barrier that minimizes accessibility to the rural lands in this
area. C-1 findings, page 48.
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"Overall, the significant wetlands resource, the large amount of acreage in
public ownership, and the EFU zoning should provide adequate protection
for rural and resource lands and minimize their accessibility. The
presence of the railroad, the locations of wetlands and public land
ownerships, particularly at Green Hill Road and in close vicinity to the
Modified Project alignment terminus, will minimize pressures for highway
oriented development in the area." C-1 findings, page 48.
The only access to the Modified Project outside the UGB is the combined Goble
Lane/private driveway access, a combination of two existing access onto Highway 126.
An access onto W. 11th, outside the UGB, which was part of the Approved Design, will
be eliminated. Access to rural lands are not provided for along the facility between
Green Hill Road and the Project terminus. As the findings conclude, these measures are
adequate to reduce accessibility to the neighboring rural area.
Subassif!nment of Error 2( d)
Petitioners argued that the local governments needed to provide findings showing that the
challenged actions are consistent with the TransPlan policies that implement OAR 660-
012-0035(5)( c )(D).
Criterion on remand:
OAR 660-012-0055(1)(a):
"(a) If by May 8, 2000, a Metropolitan Planning Organization (MPO)
has not adopted a regional transportation system plan that meets
the VMT reduction standard in 0035(4) and the metropolitan area
does not have an approved alternative standard established
pursuant to 0035(5), then the cities and counties within the
metropolitan area shall prepare and adopt an integrated land use
and transportation plan as outlined in 0035(5)(c)(A)-(E). Such a
plan shall be prepared in coordination with the MPO and shall be
adopted within three years[.]" (Emphasis added.)
OAR 660-012-0035(5)(c):
"(5) The Commission may authorize metropolitan areas to use alternative
standards in place of the VMT reduction standard in 0035(4) to
demonstrate progress towards achieving reduced automobile reliance as
provided for in this section:
* * *
(c) If a plan using an alternative standards, approved pursuant to this
rule, is expected to result in an increase in VMT per capita, then
the cities and counties in the metropolitan area shall prepare and
adopt an integrated land use and transportation system plan
including the elements listed in (A) - (E) below. Such a plan
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shall be prepared in coordination with the MPO and shall be
adopted within three years of the approval of the alternative
standard: . . .
LUBA's direction on remand:
"OAR 660-012-0035(5)(c) sets out detailed requirements for 'an integrated
land use and transportation plan,' * * *.
We have some question whether [the state's administrative rules] require
adoption of the plan described in OAR 660-012-0035(5)(c), since
respondents apparently have an approved alternative VMT reduction
standard. * * *
Respondents do not respond to this sub assignment of error in their brief. * *
* Petitioners' approach in this subassignment of error is to fault respondents
for not addressing unnamed TransPlan policies that petitioners contend must
nevertheless exist. . ..
* * * [W]ithout some assistance from respondents, we cannot say this
subassignment of error is lacking in merit."
Response and Explanation of Findings:
The local governments' findings do not include analysis of the Modified Alignment's
consistency with TransPlan policies that implement OAR 660-012-0035(5)(c)(D) because
State law does not require that TransPlan contain such policies and such policies,
therefore, do not exist in TransPlan.
As stated in the rules quoted above, there are two circumstantial categories in which an
area must adopt policies that implement OAR 660-012-0035(5)(c)(A)-(E):
1) if the MPO has not adopted a regional transportation system plan that meets
the VMT reduction standard in 0035(4) and the metropolitan area does not
have an approved alternative standard established pursuant to 0035(5) [OAR
660-012-055(1)(a)]; or
2) if the MPO has adopted an alternative VMT standard that is "expected to result
in an increase in VMT per capita." [OAR 660-012-0035(5)(c)].
Neither of the above circumstances exists for the TransPlanjurisdictions. TransPlan is a
regional transportation system plan that includes an approved alternative VMT standard
established pursuant to OAR 660-0012-055(1)(a). Therefore, it is not required to include
the 0035(5)(c)(A)-(E) policies under the first category. Further, for the reasons discussed
below, TransPlan's alternative VMT standard is not expected to result in an increase in
VMT per capita. Therefore, it is not required to include the 0035(5)(c)(A)-(E) policies
6
under the second category, either. The local governments were not required to make
findings on the nonexistent TransPlan policies.
Chapter 4 of TransPlan contains an analysis of Daily Vehicle Miles of Travel Per Capita
on page 7. It provides that "[u]nder the Financially Constrained TransPlan, VMT per
capita decreases slightly showing no increase over the 20-year period. The Transportation
Planning Rule (TPR) seeks no increase in VMT per capita over ten years and a 5 percent
reduction over 20 years." It also states "[a]mendments to the TPR require areas not
meeting the VMT reduction target to seek approval from the Land Conservation and
Development Commission (LCDC) for the use of alternative measures in demonstrating
reduced reliance on the automobile. This process is discussed further in Part Three: TPR
Alternate Pe7jorrnance Measures of this chapter."
Part Three: TPR Alternate Pe7jorrnance Measures of TransPlan explains:
Oregon's Transportation Planning Rule (TPR) requires that TransPlan comply
with certain performance measures (either a Vehicle Miles Traveled per capita
target or alternative measures). As described in Table 6 (Chapter 4, Page 5), VMT
per capita is expected to remain virtually unchanged through 2015 (1-percent
decrease). As a result, the region will not meet the reduction in VMT per capita
called for in the TPR. The TPR provides that, should a plan not meet the VMT
reduction targets, alternative measures can be developed to demonstrate
compliance with the TPR.
* * *
Alternative Performance Measures were developed to address this requirement.
While these measures have been incorporated into Table 6, a more detailed
description of the measures and related interim benchmarks are presented in Table
7. These measures were approved by LCDC on May 4th, 2001.
More specifically, Table 6 of TransPlan (Summary of Key Performance Measures) shows
that VMT per capita is projected to decrease by 1 percent from 1995 levels. TransPlan
then discusses the approved alternative VMT standard and addresses the conditions that
LCDC attached to the alternative standards' approval. LCDC's Order approving the
alternative standard is included in TransPlan's Appendix G.
These provisions of TransPlan show that the local governments have an approved
alternative standard established pursuant to OAR 660-012-0035(5). Therefore, TransPlan
is not required to by OAR 660-012-055(1)(a) to include findings addressing OAR 660-
012-0035(5)(c)(D). Further, the TransPlan provisions discussed above show that the
adopted alternative VMT standard that is not "expected to result in an increase in VMT
per capita." Therefore, TransPlan is not required by OAR 660-012-0035(5)(c) to include
findings addressing OAR 660-012-0035(5)(c)(D). Since TransPlan is not require to (and
does not) contain a policy specifically intended to implement OAR 660-012-
7
0035(5)(c)(D), petitioners subassignment of error 2(d) is without merit, as LUBA
suggests.
Assif!nments of Error 5. 6. and 7
Petitioners argued that the City of Eugene and Lane County erroneously changed the
designation of 'Protect' and 'Restore' wetlands at the western end of the Parkway to the
'Planned Transportation Corridor' designation without demonstrating that the changed
designations comply with Goal 5 with respect to the Oak Hills Significant Vegetation and
Wildlife site.
Criterion on remand:
OAR 660-023-0250(3)(b):
"Local governments are not required to apply Goal 5 in consideration of a
PAPA [post acknowledgment plan amendment] unless the PAPA affects a
Goal 5 resource. For purposes of this section, a PAPA would affect a
Goal 5 resource only if:
* * *
(b) The PAPA allows new uses that could be conflicting uses with a
particular significant Goal 5 resource site on an acknowledged
resource list[.]"
LUBA's direction on remand:
"Although it is not entirely clear, we understand petitioners to argue that the
area now designated Planned Transportation Corridor crosses * * *
protected Goal 5 significant vegetation and wildlife areas. * * *
* * *
* * * The maps from the WEWP and the Metro Plan are not sufficiently
precise in the relevant delineations to confirm respondents' argument [that
the Oak Hills Significant Vegetation and Wildlife Area lies outside the
boundaries of the WEWP and is not affected by the WEWP amendments].
Another Map, entitled Figure D 3, Metro Plan Update, Natural Assets and
Constraints Working Papers, Significant Vegetation & Wildlife Areas,
appears to confirm respondents' position. However, petitioners object that
respondents have not demonstrated that the map is a county' enactment' that
is subject to official notice by LUBA. * * * Because respondents do not
provide a basis for us to take official notice of that map, we do not do so. * *
*
8
* * * On remand, respondents may take appropriate action to confirm that
the designated Significant Vegetation and Wildlife area designated on the
Metro Plan is unaffected by the WEWP amendments. If that is not the case,
and the disputed WEWP amendments affect the Significant Vegetation and
Wildlife Area, respondents must demonstrate that such action is consistent
with Goal 5."
Response and Explanation of Findings:
The City of Eugene adopted amendments to the West Eugene Wetlands Plan through its
Ordinance No. 20259. Lane County did so through its Ordinance No. PA 1175. Both
Ordinances included as their "Exhibit B" findings that analyzed the WEWP amendments'
consistency with Statewide Planning Goal 5 and with applicable policies from the Metro
Plan. Each jurisdiction also adopted as findings three documents prepared by ODOT.2
The ODOT documents also contain analysis of environmental considerations for the
Modified Alignment of the Parkway, both under Statewide Planning Goal 5 and under
federal environmental laws. The findings do not contain a Goal 5 (OAR 660-023-
0250(3)(b)) analysis of the Significant Vegetation and Wildlife site referred to in the
LUBA appeal (the Oak Hills site identified in the 1982 Goal 5 inventory).3 The reason
for the lack of Goal 5 analysis of the Oak Hills Significant Vegetation and Wildlife site:
the Oak Hills site was not in the area that could conflict with the WEWP redesignations.4
The wetland areas redesignated by the City and County are wetlands that are located
within the Parkway's Modified Alignment and that were identified in the WEWP as
"Protect" or "Restore.,,5 The Oak Hills Significant Vegetation and Wildlife site is
composed of two hills north of the Parkway's Modified Alignment. LUBA stated: "we
understand petitioners to take the position that these areas [the redesignated wetlands and
the Oak Hills Significant Vegetation and Wildlife site] are the same or that they overlap."
The local governments asserted that the areas were different. LUBA remanded the matter
so that the local governments' governing bodies could provide a determination on this
factual matter. This determination can be made based on materials already in the record.
2 These ODOT documents are: l) West Eugene Parkway Modified Project - Consistency with Statewide
Planning Goals and Transportation Planning Rule, October 7, 1999; 2) Alternatives Considered, October 4,
1999; and 3) Incompatible Adjacent Land Uses in the WEP Project, July 30, 1999.
3 The Oak Hills site was included on the area's GoalS inventory as a privately-owned site identified as
Significant Vegetation and Wildlife Area No.3. Metro Plan Update Vegetation/Wildlife Habitats Working
Paper, Aprill2, 1978, pages D-ll, 12.
4 The findings prepared by ODOT refer to the "Oak Hills area" and to "Oak Hills" but only in providing
information about the general location of the Modified Alignment and of other alignments that were
considered for the Parkway. Those findings state in several places that, for the old alignment - the
"Approved Design" - the western limit of the Parkway is "west of the intersection of Highway l26 and
Goble Lane near Oak Hills." See e.g. Exhibit C-1 at l, 2 and 44, C-2 at Sand 22 and C-3 at 1. Various
diagrams in the record show an area northwest of the Parkway terminus labeled as "Oak Hills." See e.g.
Exhibit C-l at 4 Y2, Exhibit C-2 at 16 Y2. These diagram references show the Oak Hills area in a general
way, in various locations. None indicate the specific location of the Goal S site that is identified as the Oak
Hills Significant Vegetation and Wildlife site in the area's 1982 inventory.
5 Wetland sites in the Parkway alignment that were designated by the WEWP as "Develop" did not need to
be redesignated to the Planned Transportation Corridor designation to accommodate the Parkway.
9
The redesignated wetland areas are illustrated on the map adopted as Exhibit A to the
Ordinances. That map shows that the most western part of the Parkway corridor
redesignated by the WEWP amendments runs just north of the railroad tracks and
terminates at a point east of the intersection of the railroad tracks and Highway 126 and
further east of the WEWP boundary. The eastern terminus of the affected wetlands is
more precisely shown on Map 3 of the WEWP, the Wetlands Designations Map. Both
parts of the Oak Hills Significant Vegetation and Wildlife site are located further north of
the railroad tracks, north and west of the Planned Transportation Corridor wetland area.
The redesigned wetlands are not on/do not overlap the Oaks Hills Significant Vegetation
and Wildlife site.
The Oak Hills site is described in the 1982 Goal 5 inventory documents as "[p ]rominent
oak-covered hills. . . containing the largest expanse of oak habitat type." Metro Plan
Update Vegetation/Wildlife/Wildlife Habitats Working Paper, April 12, 1978, page D-13.
Though "Wetlands" was one often criteria considered in selecting Significant Vegetation
and Wildlife sites for the 1982 Goal 5 inventory, the Oak Hills site was identified under
Goal 5 only due to its attributes as a "Limited habitat type within region or metro area"
and as a "Corridor." The "Wetlands" criterion was not met for the Oak Hills site. Metro
Plan Update Vegetation/WildlifelWildlife Habitats Working Paper, April 12, 1978, pages
D-11, 12.
Even if the geographic area of the Oak Hills Significant Vegetation and Wildlife site did
include wetlands that were protected by the WEWP, the removal of WEWP protection of
that wetland would not have removed the Goal 5 protections of the site. The WEWP
designates wetlands either for protection, restoration or development. Amendments to
these designations can only change the status of a wetland - allowing greater or less
protection of the wetland. The WEWP does not provide any protection for resource types
other than wetlands. Changing the level of protection for a wetland through a WEWP
amendment does not effect the level of Goal 5 protection provided to the site due to other
natural attributes.
Perhaps the clearest reason for the conclusion that the Oak Hills Significant Vegetation
and Wildlife site was not redesignated as part of the WEWP amendments is that the Oak
Hills site, as identified in the Goal 5 inventory, is not even within the plan boundaries of
the WEWP. Therefore, the Oak Hills Significant Vegetation and Wildlife site could not
have been redesignated under the WEWP.
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ATTACHMENT B
April 12, 1978
METRO PLAN UPDATE
VEGETATION/~ILDLIFE/WILDLIFE HABITATS
I. INTRODUCTION
II" BACKGROUND AND REGIONAL SETTING
1 I I. CORRELATION BETWEEN WILDLIFE Alw VEGETATIVE COVER
Iv. INVENTORY AND ANALYSIS
V. SIGNIFICANT VEGETATION AND WILDLIFE AREAS
VI. ASSUMPTIONS AND FINDINGS
fnlS 15 one of a series of working papers describing the Metro Area's
nat~(al assets and constraints. Please refer to Box 3 of the Metro
P:~n Updctte flow chart.
5. Fish
spawning
Areas
6. Agricul-
tural
Lands
7. Rock Out-
. crop Areas
8. Snags
9. Limi ted
Habi ta ts
Major rivers and a few streams: Important resources
for the reproduction of anadromous fish (i.e., those that
mature in the sea and migrate to streams to spawn). Coho
salmon, spring chinook salmon, fall chinook salmon, winter-
rURfsteelhead, summer-run steelhead and cutthroat trout
migrate. from the Pacific Ocean into the forks of the Willa-
mette and McKenzie Rivers. Most of the river systems located
in tbe metro area provide important gravel spawning areas:
Croplands and pasturelands: Provide opportunities
for wildlife. .When managed to provide hedgerow, wooded
plots and buffe~s of natural vegetation, agricultural
lands can be enhanced.
'Provide a very limited and yet significant wildlife
nabit~t for the endangered western rattlesnake and other
t.eptiles in tne metro area. There are only a few large rock
outcrop areas whi'ch have not been or are now bei ng used as
q!,larry rock. sources. .
St,anding dead wees repres.ent a unique habitat requirement
for a number:of bitds and mammals. Insect
ea'Hrig birds 'create cavities which cavity-nesting birds
and mammals inhabi't. Snags are decreasing in numbers as
old growthsta~ds ar~ being cut at an increasing rate.
Snag trees need to be set aside to preserve those wild-
life species depend~nt upon this ecological niche.
Vegetation habitat types.which: 1) constitute less
than 1% o,f the total stucly area, or 2) 'constitute a sig-
nificant.'.;propo.rtJoo of a .type which is not abundant in
elther Lane: County or Oregon. Based on these two ~ri-
teria, seven significant habitat types were determined
to be limited and therefore important to the study area:
riparian woodlands, mixed conifer/deciduous woodlands,
pure ponderosa pine~ pure incense cedar, and wetlands,
including freshwater marsh, wetland shrub and wet
meadows.
SIGNIFICANT VEGETATION AND WILDLIFE AREAS
Thirty-five significant vegetation and wildlife geographic sites or
areas have been identified in the study area. These sites were selected
utilizing ten criteria derived from the vegetation and wildlife inventory
0-10 .
and analysis and the nine significant habitat types. These sites have
significant vegetative or wildlife values and warrant some form of
protection. The criteria are as follows:
1. Habitat of endangered or threatened plant and wildlife species
2. Wetl ands
3. Fish spawning. areas
4. Limited habitat type within region or metro area
5. Habitat of species at extent of range
6. Areas of significant vegetation diversity
7. Corridors (ridgetops; migration routes)
8. Plant or marine foss,il .beds
9. Climax ecosystems
10. Significant wildlife habita~ area.
Any area meeting one or more cr-iteria is considered significant. The
following matrix identifies signifi~ant areas within the metro study
area and depicts tne relevant,cy.;~.eria. Please also refer to Map 0-3.
The matrix also denote5'whether,. the significant areas are in public or
private ownership. A brief disc~sion of 'the areas follows the matrix.
0-11
1
2 I
3
4
5
6
7
8
9
10
11
12
13
14
'5
f-;6
17
18
19
20
21
22
23
24 '
25
26
27 I
28
29
30
31
f-32
SIGNIFICANT VEGETATION AND WILDLIFE AREAS
SIGNIFICANT CRITERIA
33
34
35
Lonq Tom River Riparian Woodlands
Fern Ri dap Reservoi r .
Oak Hills
Bert1 esen SloUGh _';
Willow Creek Wetlands
Pure Ponderosa Pine Stands
Will amette/t.1cKenzi e Corlf1 uence
HcKenzi e Sharp~ Ta Hed Snake Site
Avres Pure Incense-Cedar Stand. ' .
Wi11amette Wetland.
Del ta Ponds .
Gillespie Butte and- Ponds
Skinner's Butte Park
Alton Baker Park
Hendricks Park
Amazon Park
Portland St. Pure Ponderosa Pine
Stands
Spencer Creek Drainaae
Eastern Oreaon Type RidaetoD
Spencer's Butte Park
Russell Creek Drainaqe
Laurel Hill Natural Area
Second St. Marine Fossil Beds
Neotune Park and Ponds
Twin Butte Plant Fossil Beds
Mt. Pisaah (Howard Bufford Park) -
Wi1dish Construction Co. Gravel
Pi ts
Mt. Pisaah Area Rookerv
Mahogany Lane Pure Incense
Cedar Stands .________.
NatronRock Outcrops
Cedar Creek Western Hemlock Old
Growth Area
Hayden Bridge West. Rattlesnake
. Area
McKenzie River Bend'
Havden Bridae Wildlife Area
East Fern Ridge Reservoir Wildlife
I Area
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Public Ownership
All publicly owned significant vegetation and wildlife areas, except for
Area 31, are parklan9 .areas. They are identified as significant areas
because a portion'b~'all-6f the parks have vegetation and wildlife
resources of importance to the metro study area. Park management plans,
if not already completed, should be completed to provide for the pro-
tection of vegetation and wildlife resource areas.
Private Ownership
1. Long Tom River Riparian Woodlands
A Nature Conservancy identified natural area which contains a large
tract of ri~arian ash woodland providing a good wildlife and
waterfowl habitat. .
3.. Oak Hills
'.
Prominent oak-covered hills located west of Eugene containing the
largest expanse of oak babt~at type; an important preferred wild-
1 ife habitat fo,," some wild1'Qf~\ species.
4. Bertelson Slnugh
The last large freshwater\marsif remaining in the metro study area
outs ide of Fern Ridge Reservoir; an important wildl ife habitat for
fur-bearing mammals, song birds, amphibians and waterfowl.
5. Willow Creek Wetlands
A large expanse of riparian woodlands, wetland shrub and wet
grassland in close proximity .to the urbanized area west of Eugene,
an important habitat for many wildlife species.
6. Pure Ponderosa Pine Stands
The largest acreage of pure ponderosa pine stands in the metro
study area; a limited and preferred habitat for some wildlife
species.
7. Wil'amette/McKenzie Confluence
A Nature Conservancy identified natural area of importance which
contains the largest heron rookery in the metro study area; also a
good fur-bearing mammal, waterfowl, fish spawning and wildlife
habitat area. .
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RESOLUTION NO. 4786
A RESOLUTION CONCERNING THE CITY'S RESPONSE TO THE
REMAND OF ORDINANCE NOS. 20258 AND 20259; AND
AMENDING RESOLUTION NO. 4780.
The City Council of the City of Eugene finds that:
A. On November 12, 2003 the City Council adopted Resolution No. 4780 responding
to the remand of Ordinance Nos. 20258 and 20259 through a Remand Response and Explanation
of Pin dings attached as Attachment A to Resolution No. 4780 ("Remand Response").
B. Subsequent to adoption of Resolution No. 4780 issues have arisen in connection
with the Remand Response, and the Council finds that, in order to avoid a delay and litigation
costs associated with an appeal of this matter, it would be in the public interest to amend a
portion of the Remand Response in a manner that does not affectthe City's legal position.
C. The City has revised its response to Sub assignment of Error 2( d) as reflected in
Attachment A hereto, which should be adopted in replacement of the response to that
Subassignment of Error in Attachment A to Resolution No. 4780.
NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EUGENE, a
Municipal Corporation of the State of Oregon, as follows:
Section 1. Resolution No. 4780 adopted by the City Council on November 12,2003
is amended by replacing the response to Sub assignment of Error 2( d) in the Remand Response
and Explanation of Findings attached as Attachment A thereto with the Remand Response and
Explanation of Findings to Subassignment of Error 2( d) attached as Attachment A to this
Resolution.
Section 2. The City Recorder is requested to attach a copy of this Resolution and its
attachment to Resolution No. 4780. Except as amended herein, all other provisions of
Resolution No. 4780 and Attachment A thereto remain in full force and effect.
Section 3. This Resolution shall become effective immediately upon adoption.
The foregoing Resolution adopted t"he 26th day of January, 2004.
fY\a~
1
Resolution
Attachment A
To Resolution 4786
Remand Response and Explanation of Findings
Subassif!nment of Error 2( d)
Petitioners argued that the local governments needed to provide findings showing that the
challenged actions are consistent with the TransPlan policies that implement OAR 660-012-
0035(5)(c)(D).
Criterion on remand:
OAR 660-012-0055(l)(a):
"(a) If by May 8, 2000, a Metropolitan Planning Organization (MPO) has not
adopted a regional transportation system plan that meets the VMT
reduction standard in 0035(4) and the metropolitan area does not have an
approved alternative standard established pursuant to 0035(5), then the
cities and counties within the metropolitan area shall prepare and adopt an
integrated land use and transportation plan as outlined in 0035(5)(c)(A)-
(E). Such a plan shall be prepared in coordination with the MPO and shall
be adopted within three years[.]" (Emphasis added.)
OAR 660-012-0035(5)(c):
"(5) The Commission may authorize metropolitan areas to use alternative
standards in place of the VMT reduction standard in 0035(4) to demonstrate
progress towards achieving reduced automobile reliance as provided for in this
section: .
"***
n( c) If a plan using an alternative standards, approved pursuant to this rule,
is expected to result in an increase in VMT per capita, then the cities and
counties in the metropolitan area shall prepare and adopt an integrated
land use and transportation system plan including the elements listed in
(A) - (E) below. Such a plan shall be prepared in coordination with the
MPO and shall be adopted within three years of the approval of the
alternative standard: * * *."
LUBA's direction on remand:
"OAR 660-012-0035(5)(c) sets out detailed requirements for 'an integrated land use
and transportation plan,' * * *.
Attachment A to Resolution No. 4786 - 1
~'We have some question whether [the state's administrative rules] require adoption
of the plan described in OAR 660-012-0035(5)(c), since respondents apparently
have an approved alternative VMT reduction standard. * * *
"Respondents do not respond to this subassignment of error in their brief. * * *
Petitioners' approach in this sub assignment of error is to fault respondents for not
addressing unnamed TransPlan policies that petitioners contend must nevertheless
exist * * *
. ~~* * * [W]ithout some assistance from respondents, we cannot say this
sub assignment of error is lacking in merit."
Response and Explanation of Findings:
The local governments' findings do not include analysis of the Modified Project's consistency
with TransPlan policies that implement OAR 660-012-0035(5)(c)(D) because State law did not
require that TransPlan contain such policies prior to the local government actions approving the
modified alignment of the West Eugene Parkway-and such policies, therefore, did not exist in
TransPlan at that time.
As stated in the rules quoted above, there appear to be two circumstantial categories in which an
area must adopt policies that implement OAR 660-0 12-0035(5)(c)(A)-(E):
1) if the MPO has not adopted a regional transportation system plan that meets the VMT
reduction standard in 0035(4) and the metropolitan area does not have an approved
alternative standard established pursuant to 0035(5) [OAR 660-012-055(1)(a)]; or
2) if the MPO has adopted an alternative VMT standard that is "expected to result in an
increase in VMT per capita." [OAR 660-012-0035(5)(c)].
Although it is not necessary to resolve this issue to address the remand, it would appear neither
of the above circumstances exists for the TransP1an jurisdictions. TransPlan is a regional
transportation system plan that includes an approved alternative VMT standard established
pUrsuant to OAR 660-0012-055(1)(a). Therefore, under this interpretation TransP1an is not
required to include the 0035(5)(c)(A)-(E) policies under the first category. Even if required,
OAR 660-012-0035(5)(c) would seem to eliminate the need for such policies. . Another
interpretation would require TransPlan to include such policies under the first category. Further,
for the reasons discussed below, TransPlan's alternative VMT standard is not expected to result
. in an increase in VMT per capita. Therefore, it is not required to include the 0035(5)(c)(A)-(E)
policies under the second category, either. Even if the provisions of the Transportation Planning
Rule (TPR) require an "integrated land use and transportation plan", the local governments were
not required to make findings on the nonexistent TransPlan policies and the LCDC actions on
TransPlan did not require inclusion of those policies prior to the local government actions
remanded by LUBA.
Attachment A to Resolution No. 4786 - 2
Chapter 4 of TransPlan contains an analysis of Daily Vehicle Miles of Travel Per Capita on page
7. It provides that "[u]nder the Financially Constrained TransPlan, VMT per capita decreases
slightly showing no increase over the 20-year period. The Transportation Planning Rule (TPR)
seeks no increase in VMT per capita over ten years and a 5 percent reduction over 20 years." It
also states "[a]mendments to the TPR require areas not meeting the VMT reduction target to
seek approval from the Land Conservation and Development Commission (LCDC) for the use of
alternative measures in demonstrating reduced reliance on the automobile. This process is
discussed further in Part Three: TPR Alternate Performance Measures ofthis chapter."
Part Three: TPR Alternate Performance Measures of Trans Plan explains:
'lOregon's Transportation Planning Rule (TPR) requires that TransPlan comply with
certain performance measures (either a Vehicle Miles Traveled per capita target or
alternative measures). As described in Table 6 (Chapter 4, Page 5), VMT per capita is
expected to remain virtually unchanged through 2015 (I-percent decrease). As a result,
the region will not meet the reduction in VMT per capita called for in the TPR. The TPR
provides that, should a plan not meet the VMT reduction targets, alternative measures can
be developed to demonstrate compliance with the TPR.
((***
'lAlternative Performance Measures were developed to address this requirement. While
these measures have been incorporated into Table 6, a more detailed description of the
measures and related interim benchmarks are presented in Table 7. These measures were
approved by LCDC on May 4th, 2001.
More specifically, Table 6 of TransPlan (Summary of Key Performance Measures) shows that
VMT per capita is projected to decrease by 1 percent from 1995 levels. TransP1an then discusses
the approved alternative VMT standard and addresses the conditions that LCDC attached to the
alternative standards' approval. LCDC's Order approving the alternative standard is included in
TransP1an's Appendix G.
These provisions of TransPlan show that the local governments have an approved alternative
standard established pursuant to OAR 660-012-0035(5). Therefore, TransPlan is not required to
by OAR 660-012-055(1)(a) to include findings addressing OAR 660-012-0035(5)(c)(D).
Further, the TransPlan provisions discussed above show that the adopted alternative VMT
standard that is not "expected to result in an increase in VMT per capita." Therefore, TransPlan
is not required by the express language. of OAR 660-012-0035(5)(c) to include policies
addressing OAR 660-012-0035(5)(c)(D) even if OAR 660-012-0055(1)(a) could be interpreted
to require actions addressing OAR 660-012-0035(5)(c). Since TransPlan was not required to
(and did not) contain. a policy specifically intended to implement OAR 660-012-0035(5)(c)(D) at
the time of the local government actions remanded by LUBA, petitioners subassignment of error
2( d) is without merit, as LUBA suggests.
Attachment A to Resolution No. 4786 - 3