HomeMy WebLinkAboutItem 2: Ordinances on Minor Code Amendments (MiCAP Remand)
ECC
UGENE ITY OUNCIL
AIS
GENDA TEM UMMARY
Public Hearing: Minor Code Amendment Project (Remand)
An Ordinance Concerning Land Use Regulations; Readopting Provisions from Ordinance
No. 20418 in Response to Remand; Amending Section 9.6410 of the Eugene Code, 1971;
and Providing an Effective Date and a Sunset Date
An Ordinance Concerning Land Use Regulations; Readopting Provisions from Ordinance
No. 20418 in Response to Remand; Amending Section 9.2751 of the Eugene Code, 1971;
and Providing an Effective Date and a Sunset Date
Meeting Date: September 21, 2009 Agenda Item Number: 2
Department: Planning and Development Staff Contact: Alissa Hansen
www.eugene-or.gov Contact Telephone Number: 541/682-5508
ISSUE STATEMENT
The City Council will hold a public hearing to consider readopting amendments to the Eugene Land Use
Code (Chapter 9) related to building heights in the South University neighborhood and parking
requirements for multi-family developments in the South and West University neighborhoods.
BACKGROUND
Minor Code Amendment Project and Land Use Board of Appeals
On August 11, 2008, as part of the Minor Code Amendment Project (MiCAP), the City Council passed
two ordinances containing land use code amendments covering 18 topics. Ordinance No. 20417
amended numerous lot and development standards. Ordinance No. 20418 did two things: (1) it lowered
maximum building heights in a 16-block area in the South University neighborhood, and (2) it increased
parking requirements for multi-family developments in the South and West University neighborhoods.
The City Council directed that Ordinance No. 20418 (“the height and parking ordinance”) be given an
immediate effective date. Subsequently, both ordinances were appealed to the Land Use Board of
Appeals (LUBA) by the Home Builders Association of Lane County. On June 12, 2009, LUBA issued a
decision affirming the City’s approval of Ordinance No. 20417, but remanding the height and parking
ordinance back to the City. LUBA’s decision rendered the height and parking ordinance ineffective. To
readopt the height or parking provisions consistent with LUBA’s decision, the City Council must make
certain findings discussed below.
LUBA remanded the height and parking ordinance because it was not clear that its requirements are
consistent with the state’s Transportation Planning Rule (TPR) or, in the case of the parking
requirements, with an adopted refinement plan policy in the West University Refinement Plan.
Specifically, LUBA remanded the height and parking provisions based on a concern that the City’s
current height and parking provisions may be needed for the City’s continued compliance with various
Z:\CMO\2009 Council Agendas\M090921\S0909212.doc
subsections of the transportation rule that requires local governments to have regulations to reduce
reliance on the automobile. LUBA also remanded the parking provisions based on a concern that they
are inconsistent with the West University Refinement Plan, Chapter V, Policy 3, which states that the
City will update its Land Use Code and particularly take into account the need to review parking
requirements for residential development with the purpose of reducing the required number of spaces
per unit in the plan area.
Action on Remand from LUBA
To reinstate the height and parking provisions, the City must adopt findings demonstrating how the
height and parking provisions are consistent with the sections of the state transportation rule sections
identified by LUBA, and with West University Refinement Plan Policy 3. Attached for the City
Council’s consideration are draft ordinances and findings that specifically address the remand issues
raised by LUBA. Although the building height and parking provisions were previously contained in one
ordinance (No. 20418), they have been separated into two ordinances for the council’s consideration on
remand.
Effective Date
Consistent with the City Attorney’s recommendation and the City Council’s usual practice for land use
regulations, each of the draft ordinances has been prepared so that the regulations will not go into effect
until they are “acknowledged” by the State. If no appeal is filed, the ordinances would take effect in 30
days. If appealed, effectiveness would be delayed until the appeal body makes a final determination that
the City’s new findings sufficiently demonstrate consistency with the identified provision of the State
transportation rule and refinement plan policy.
Instead of an effective date that is triggered by State acknowledgement, the council has the option of
directing staff to revise either or both of the draft ordinances to use the 30-day effective date most often
used for non-land use ordinances. Additionally, if six councilors agree, the council has the option of
directing that either or both ordinances be revised to include an immediate effective date, as it did when
the provisions were adopted the first time. The three options for an effective date have both political
and legal implications that staff intend to address further, if there are questions.
Sunset Date
The City Council originally adopted the MiCAP height and parking ordinance with the intent that it
would serve as an interim measure, to give the Infill Compatibility Standards (ICS) project time to
examine the height and parking issues more comprehensively and to propose different standards or
solutions, if needed. At that time the ICS project was expected to return to the council with proposed
actions on height and parking by February 11, 2010. As such, the City Council directed that the height
and parking ordinance (No. 20418) include a sunset provision, making the height and parking
regulations automatically repeal (go out of effect) on February 11, 2010, if they had not already been
replaced with an ICS proposal by that date.
To be consistent with the City Council’s original intent, each of the draft ordinances (see Attachments A
and B) has been prepared with a sunset date. The sunset date in these ordinances has been extended to
June 30, 2010, to accommodate the potential of an appeal of the ICS height and parking provisions.
City Attorney staff will respond to questions with respect to the sunset date and associated options.
Z:\CMO\2009 Council Agendas\M090921\S0909212.doc
RELATED CITY POLICIES
West University Refinement Plan, Chapter V, Policy 3:
The City of Eugene will update its Land Use Code and that effort shall particularly take into
account the need to:
- reduce non-residential uses permitted in the R-3 and R-4 zones;
- redefine usable open space;
- enable infilling on newly created small lots;
- enable alley access as the primary access to newly created lots;
- reduce the minimum lot size;
- increase the flexibility of development standards (for example to enable more efficient use of open
space, shared open space, shared parking, and more extensive use of public rights-of-way);
- review parking requirements for residential development with the purpose of reducing the required
number of spaces per unit in the plan area;
- amend the commercial zoning in the City Code to provide a greater range of commercial zones.
COUNCIL OPTIONS
This item is scheduled for public hearing only.
CITY MANAGER’S RECOMMENDATION
This item is scheduled for a public hearing only. Staff will take questions after the hearing and provide
responses in advance of the date scheduled for action, October 12, 2009.
SUGGESTED MOTION
No motion is suggested as deliberation and action is currently scheduled for October 12, 2009.
ATTACHMENTS
A.Draft Ordinance and Findings for Building Height
B.Draft Ordinance and Findings for Parking
C.LUBA Decision
D.Written Testimony Received between September 1, 2009, (date notice was provided to parties of the
appeal) and September 11, 2009
FOR MORE INFORMATION
Staff Contact: Alissa Hansen
Telephone: 541/682-5508
Staff E-Mail: alissa.h.hansen@ci.eugene.or.us
Z:\CMO\2009 Council Agendas\M090921\S0909212.doc
ATTACHMENT A
ORDINANCE NO. _______
AN ORDINANCE CONCERNING LAND USE REGULATIONS; READOPTING
PROVISIONS FROM ORDINANCE NO. 20418 IN RESPONSE TO REMAND;
AMENDING SECTION 9.2751 OF THE EUGENE CODE, 1971; AND
PROVIDING AN EFFECTIVE DATE AND A SUNSET DATE.
THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS:
Section 1.
Subsection (3) of Section 9.2751 of the Eugene Code, 1971, is amended to
revise subsection (a) and to add a subsection (c) as follows:
9.2751 Special Development Standards for Table 9.2750.
(3)Building Height.
(a)
Except as provided below, [I]in the R-3 and R-4 zone, the maximum
building height shall be limited to 30 feet for that portion of the building
located within 50 feet from the abutting boundary of, or directly across
an alley from, land zoned R-1.
(c) For that area bound by Hilyard Street to the west, Agate Street to
thth
the east, East 18 Avenue to the north and East 20 Avenue to the
south:
1. In the R-3 zone, the maximum building height shall be limited
to 35 feet for that portion of the building located within 160
feet from the abutting boundary of, or directly across an alley
from, land zoned R-1.
2. In the R-4 zone, the maximum building height shall be limited
to 35 feet for that portion of the building located within 50 feet
from the abutting boundary of, or directly across an alley
from, land zoned R-1. It shall be limited to 50 feet for that
portion of the building located within 175 feet from land
zoned R-3, and shall be limited to 75 feet for that portion of
the building located within 176 feet and 225 feet of land zoned
R-3.
Section 2.
The City Recorder, at the request of, or with the concurrence of the City
Attorney, is authorized to administratively correct any reference errors contained herein or in
other provisions of the Eugene Code, 1971 to the provisions added, amended, or repealed
herein.
Section 3.
The legislative findings to address the June 12, 2009 remand from the Land
Use Board of Appeals, attached as Exhibit A hereto, are adopted in support of this Ordinance.
Section 4
. Notwithstanding the effective date of Ordinances as provided in the Eugene
Charter of 2002, this Ordinance shall become effective upon the date that both of the following
have occurred: (a) the ordinance has been acknowledged; and (b) at least 30 days have passed
since the date the ordinance was approved.
Section 5.
This Ordinance and the amendments authorized herein shall automatically
sunset and be repealed on June 30, 2010. The City Recorder is requested to note the sunset
date on appropriate City logs.
Passed by the City Council this Approved by the Mayor this
_____ day of________________, 2009 ____ day of ________________, 2009
_____________________________ _______________________________
City Recorder Mayor
Ordinance - Page 2 of 2
EXHIBIT A
Findings
Building Height Transition
Code Amendment Eugene Code Section 9.8065 requires that the following approval
criteria (in bold and italics) be applied to a code amendment:
(1) The amendment is consistent with applicable statewide planning goals adopted by the
Land Conservation and Development Commission.
Goal 12- Transportation. To provide and encourage a safe, convenient and economic
transportation system.
The Land Use Board of Appeals, in their Final Opinion and Order for the appeal of Ordinance
No. 20418, found that “[w]hile it seems unlikely to us that the prior maximum building height
limits in the R-3 and R-4 zone played much a role when the city’s comprehensive plan and land
use code were acknowledged as complying with Goal 12 and the TPR, we cannot be sure that it
played no role in facilitating “transit oriented developments (TODs) on lands along transit
routes,” as OAR 660-012-0045(5)(a) requires.” LUBA remanded for findings that address OAR
660-012-0045(5)(a).
italic bold
The complete text of OAR 660-012-0045(5)(a) is provided below (in text):
OAR 660-012-0045 Implementation of the Transportation System Plan
(5) In MPO areas, local governments shall adopt land use and subdivision regulations to
reduce reliance on the automobile which:
(a) Allow transit-oriented developments (TODs) on lands along transit routes;
As explained below, the regulations that set maximum building heights in the City’s R-3 and R-4
zones have played no part in the City’s representations or DLCD’s actions regarding
acknowledgement for consistency with this OAR.
Prior to 2001, the Eugene Code set the maximum building height in R-3 at 40 feet, but did not
set a zone-wide maximum building height in the R-4 zone. For both the R-3 and R-4 zones,
however, the maximum height was limited to 25 feet for that portion of the building within 50
feet from the abutting boundary of, or directly across an alley from, any of land zoned AG, RA
or R-1 (the maximum height in the AG, RA and R-1 zones was 25 feet).
A comprehensive update to the City of Eugene’s land use code was adopted in 2001. The 2001
update set new building height maximums in the R-3 and R-4 zones of 50 feet and 120 feet,
respectively. For both the R-3 and R-4 zones, however, the maximum height was limited to 30
feet for that portion of the building located within 50 feet from the abutting boundary of, or
directly across the alley from, land zoned R-1 Low Density Residential (the maximum height in
R-1 was 30 feet).
The current (MiCAP) proposal further limits maximum building heights in the R-3 and R-4
zones within a 16 block area located south of the University of Oregon to provide a more
graduated height transition between this R-3/R-4 area and the adjacent R-1 neighborhood.
There is no evidence that suggests the height provisions discussed above were adopted or relied
upon to demonstrate compliance with OAR 660-12-0045(5)(a). Written findings addressing
compliance with Statewide Planning Goals and the Metro Plan were prepared for the 2001 land
use code update (Ordinance No. 20224). Those findings discussed numerous code provisions that
demonstrated consistency with Goal 12 - Transportation. The building height maximums were
not included in those findings as a basis for consistency with Goal 12. Based on those findings,
the 2001 code was acknowledged as complying with Goal 12 and the TPR, with no mention of
the building height maximums. The City’s consistency with OAR 660-12-0045(5) was not
dependent on the building height maximums.
It was actually the City’s establishment of a /TD Transit Oriented Development overlay zone in
1993 under Ordinance No. 19946 that specifically addressed compliance with OAR 660-012-
0045(5)(a). The 16-block area where the current (MiCAP) proposal would apply is not within
the /TD Transit Oriented Development overlay zone and leaves DLCD’s acknowledgement of
that zone’s consistency with OAR 660-012-0045(5)(a) undisturbed.
The current (MiCAP) proposal to require more graduated maximum heights in this 16-block area
is consistent with, and does not have any effect on the City’s current acknowledgement for
consistency with Goal 12 and specifically OAR 660-012-0045(5)(a).
ATTACHMENT B
ORDINANCE NO. _________
AN ORDINANCE CONCERNING LAND USE REGULATIONS; READOPTING
PROVISIONS FROM ORDINANCE NO. 20418 IN RESPONSE TO REMAND;
AMENDING SECTION 9.6410 OF THE EUGENE CODE, 1971; AND
PROVIDING AN EFFECTIVE DATE AND A SUNSET DATE.
THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS:
Section 1.
Table 9.6410 in Section 9.6410 of the Eugene Code, 1971, is amended by
adding additional requirements for Multi-Family developments, to provide as follows:
9.6410 Motor Vehicle Parking Standards.
Table 9.6410 Required Off-Street
Motor Vehicle Parking
Uses Minimum Number of Required Off-Street
Parking Spaces
Residential
Dwelling
[Multiple Family (3 or more dwellings on same lot) 1 per dwelling]
Multiple Family developments in the R-3 and R-1 space per studio or 1-bedroom unit
4 zones within the boundaries of the City 1.5 spaces/unit per 2-bedroom unit**
recognized West University Neighbors and 2 spaces/unit per 3-bedroom unit*
South University Neighborhood Associations.
*.5 spaces required for each additional
bedroom beyond 3 bedrooms
** Fractions of .50 are rounded up to the
next whole number.
Multiple Family – all other areas 1 per dwelling
Section 2.
The City Recorder, at the request of, or with the concurrence of the City
Attorney, is authorized to administratively correct any reference errors contained herein or in
other provisions of the Eugene Code, 1971 to the provisions added, amended, or repealed
herein.
Section 3.
The legislative findings to address the June 12, 2009 remand from the Land
Use Board of Appeals, attached as Exhibit A hereto, are adopted in support of this Ordinance.
Section 4
. Notwithstanding the effective date of Ordinances as provided in the Eugene
Charter of 2002, this Ordinance shall become effective upon the date that both of the following
have occurred: (a) the ordinance has been acknowledged; and (b) at least 30 days have passed
since the date the ordinance was approved.
Section 5.
This Ordinance and the amendments authorized herein shall automatically
sunset and be repealed on June 30, 2010. The City Recorder is requested to note the sunset
date on appropriate City logs.
Passed by the City Council this Approved by the Mayor this
_____ day of________________, 2009 ____ day of ________________, 2009
_____________________________ _______________________________
City Recorder Mayor
Ordinance - Page 2 of 2
EXHIBIT A
Findings
Multi-Family Parking Requirements in
West and South University Neighborhoods
Code Amendment Eugene Code Section 9.8065 requires that the following approval
criteria (in bold and italics) be applied to a code amendment:
(1) The amendment is consistent with applicable statewide planning goals adopted by the
Land Conservation and Development Commission.
Goal 12- Transportation. To provide and encourage a safe, convenient and economic
transportation system.
The Land Use Board of Appeals, in their Final Opinion and Order for the appeal of Ordinance
No. 20418, found that
[I]t seems entirely possible that the prior one off-street parking space
requirement for multiple family dwellings played a role when the city’s
comprehensive plan and land use regulations were acknowledged to
comply with OAR 660-012-0045(5)(c)(A) requirement that the city have a
parking plan which “[a]chieves a 10% reduction in the number of parking
spaces per capita in the MPO.” Without expressing any view of whether
those prior EC provisions were adopted to comply with the TPR or were
relied upon to secure acknowledgement, and without expressing any view
on whether the disputed amendments adopted by Ordinance 20418 may
cause the EC to be inconsistent with OAR 660-012-0045(5), we agree
with the petitioner that the city’s decision must be remanded so that the
city can address those questions.
italic bold
The complete text of OAR 660-012-0045(5) is provided below (in text):
OAR 660-012-0045 Implementation of the Transportation System Plan
(5) In MPO areas, local governments shall adopt land use and subdivision regulations to
reduce reliance on the automobile which:
(a) Allow transit-oriented developments (TODs) on lands along transit routes;
(b) Implements a demand management program to meet the measurable standards set
in the TSP in response to 660-012-0035(4);
(c) Implements a parking plan which:
(A) Achieves a 10% reduction in the number of parking spaces per capita in the MPO
area over the planning period. This may be accomplished through a combination
of restrictions on development of new parking spaces and requirements that
existing parking spaces be redeveloped to other uses;
(B) Aids in achieving the measurable standards set in the TSP in response to OAR
660-012-0035(4);
(C) Includes land use and subdivision regulations setting minimum and maximum
parking requirements in appropriate locations, such as downtowns, designated
regional or community centers, and transit oriented-developments; and
(D) Is consistent with demand management programs, transit-oriented development
requirements and planned transit service.
The Transportation Planning Rule (TPR) was adopted by the Oregon Land and Conservation
Development Commission in 1991 to implement Statewide Planning Goal 12.
To comply with the requirements of the TPR related to ‘land use and subdivision regulations,’
the City of Eugene initiated the Transportation Rule Implementation Project (TRIP) and adopted
an ordinance (Ordinance No. 19946) amending the city’s land use code in 1993. The TRIP
ordinance amended numerous provisions of the Eugene Code addressing vehicle and bicycle
parking, transit facilities, and pedestrian and bicycle access. The most relevant amendment was
one that reduced the city-wide minimum parking requirements for multi-family developments
from 1.5 spaces per dwelling unit to 1 space per dwelling unit plus an additional 25% reduction.
Although specific findings addressing consistency with the TPR were not adopted as part of the
1993 TRIP ordinance, documentation related to the 1993 TRIP ordinance makes it clear that this
1993 reduction in the minimum parking requirements was adopted to comply with OAR 660-
012-0045(5)(c)(A). However, as explained below, the proposed increase in the minimum
parking requirements for multi-family developments in the University area will not cause the
Eugene Code to be inconsistent with OAR 660-012-0045(5)(c)(A).
A comprehensive update of TransPlan (the local and regional transportation system plan) was
adopted in 2001 and was acknowledged as consistent with the TPR. TransPlan is very specific
as to how the City complies with OAR 660-012-0045(5)(c)(A). Included in TransPlan is a
policy and strategies related to parking management. The following excerpt and table is from
“Chapter 3: Plan Implementation” under “Parking Management Plan,” to implement OAR 660-
012-045(5)(c)(A):
TPR Requirements for Parking Space Reduction
The TPR requires a parking plan that achieves a 10 percent reduction in the
number of parking spaces per capita in the metropolitan area over the 20-
year planning period. For the Eugene-Springfield region, the TPR reduction
goal is .514. If the level of parking density (spaces per developed acre)
remains constant and the land development and population forecasts are
accurate, then the level of parking spaces per capita will be reduced by more
than the 10 percent reduction required by the TPR.
Estimated Parking Supply 1995 to 2015
1995 2015 2015 TPR Goal
Zone/Plan
Spaces Capita Spaces Capita Spaces Capita
Designation
Commercial 51,259 .229 57,865 .194 61,618 .207
Industrial 27,622 .124 30,200 .101 33,205 .111
Institutional 48,692 .218 49,067 .165 58,534 .196
Total 127,573 .571 137,132 .460 153,357 .514
As shown in the above table, when TransPlan was acknowledged as consistent with OAR 660-
012-0045(5), residential parking requirements were not a consideration. The City (with its co-
2
adopters) demonstrated -- and DLCD acknowledged -- a plan that would result in a10 percent
reduction in parking spaces per OAR 660-012-0045(5)(c)(A) without regard to residential
parking. The table showed that the level of parking spaces per capita would be reduced by more
than the 10 percent reduction required by the TPR. As such, the currently proposed (MiCAP)
increase in required parking for multi-family residential developments in a limited geographic
area does not impact the ability of the metropolitan area to meet the TPR requirement of
reducing parking spaces per capita by 10 percent, and will not cause the Eugene Code to be
inconsistent with OAR 660-012-0045(5).
(2) The amendment is consistent with applicable provisions of the Metro Plan and
applicable adopted refinement plans.
The Land Use Board of Appeals, in their Final Opinion and Order for the appeal of Ordinance
No. 20418, found that the City had not adequately addressed a seemingly relevant portion of
West University Refinement Plan Policy 3 when it adopted Ordinance 20418, increasing the
required number of parking spaces for multiple family dwellings in the West University
Neighborhood.
Chapter V, Policy 3 from the West University Refinement Plan is provided below (emphasis
added):
The City of Eugene will update its Land Use Code and that effort shall
particularly take into account the need to:
--reduce non-residential uses permitted in the R-3 and R-4 zones.
--redefine usable open space.
--enable infilling on newly created small lots.
--enable alley access as the primary access to newly created lots.
--reduce the minimum lot size.
--increase the flexibility of development standards (for example to enable
more efficient use of open space, shared open space, shared parking, and
more extensive use of public rights-of-way).
--review parking requirements for residential development with the purpose of
reducing the required number of spaces per unit in the plan area.
--amend the commercial zoning in the City Code to provide a greater range of
commercial zones. WURP, 49.
With respect to this policy, LUBA stated:
“From the decision and the evidence in the record that the parties have called to
our attention, we cannot tell why a decision to increase off-street parking is
consistent with a policy that calls for reducing off-street parking. Although we
agree with the city that West University Neighborhood Refinement Plan Policy 3
need not be interpreted to preclude the city from adjusting how the city chooses to
implement that policy, the city needs to explain how a decision to increase off-
street parking is consistent with a policy that calls for reducing off-street parking.
Because there are no findings that provide that explanation, we agree with
petitioner that remand is required.”
3
The City’s findings in response to LUBA’s remand, including the City Council’s
interpretation of the subject policy, follow.
The West University Refinement Plan was adopted in 1982. It includes text in the following
three categories: “findings, “policies” and “proposals.” In the Introduction section of the Plan,
on Page 3, it defines these categories in terms of how each is to be used. With respect to
“policies,” the Plan states:
Policies are adopted by the City Council as guidance for decision-making related
to the plan area. City programs, actions, and decisions, such as zone changes,
traffic pattern changes, and capital improvements, will be evaluated on the basis
of their ability to implement these policies as well as other adopted City goals and
policies. Because they are adopted by the council as the City’s guide for action,
policies are the most important statements in the plan.
WURP, 3. The use of policies as “guidance for decision-making” is reinforced in a number of
places throughout the Plan. For example, prior to the list of policies on Plan page 49, it directs
the reader to “[r]efer to the definition of policy on page 3.”
With this in mind, the City Council does not interpret Policy 3 as a mandate, prohibiting the
Council from increasing parking requirements at this time. Even if Policy 3 were more than a
guideline, by its very terms, the only mandate that could have been imposed by Policy 3 was the
requirement that eight things be “taken into account” when the City updated its land use code.
Of the eight things that Policy 3 lists to be “taken into account,” the one now at issue is most
clearly not a mandate for a certain result. Unlike the other seven things on the list -- which begin
with terms that direct a certain outcome (“reduce,” “redefine,” “enable,” “increase,” or “amend”)
-- the item at issue only directs that the City “review” the existing code text “with the purpose of
reducing” required parking. To the extent the Policy did operate as a directive, it only directed
that the City Council, when updating its land use code, ‘take into account the need to review
current parking requirements with the purpose of reducing the required number of spaces per
unit.’ In fact, the City Council did so with the land use code update it adopted in 1993. That
approach failed to alleviate the neighborhood’s parking problems and, as discussed below, it is
consistent with the Plan to now take a different approach.
Even if Policy 3 had been drafted in a way that could be interpreted as a mandate, the definition
of “policy” and other Plan text explaining how the Plan is to be used make it clear that it would
be erroneous to interpret Policy 3 as a mandate, especially a mandate that still controls in these
circumstances. The Plan is now more than 18 years old. Since the Plan’s adoption, the City has
tried a ‘one space per unit’ approach to parking in this neighborhood. However, that approach
has not been an effective solution to the parking problems in the neighborhood. The Plan was
not intended to make ineffective solutions mandatory. In the “Use of the Plan” section, the Plan
refers to itself as a “flexible guide for specific decision making” and states that “[a]nalysis and/or
testing of proposed solutions to problems may prove that they should become City policy or
should be dropped.” WURP, 4. Consistent with this provision, the text of Policy 3 and the other
Plan provisions discussed above, the City Council interprets Policy 3 as being a guide, but not a
mandate. The Policy served as guidance with the City’s testing of a ‘one space per unit’
approach. The Policy now causes the City Council to be cautious as it increases the parking
requirement, but it does not preclude the City Council from doing so.
4
1BEFORE THE LAND USE BOARD OF APPEALS
2OF THE STATE OF OREGON
3
4HOME BUILDERS ASSOCIATION
5OF LANE COUNTY,
6Petitioner,
7
8and
9
10DAN NEAL,
11Intervenor-Petitioner,
12
13vs.
14
15CITY OF EUGENE,
16Respondent,
17
18and
19
20PAUL T. CONTE, RENE KANE,
21CAROLYN JACOBS, DEBORAH HEALEY,
22MARK STEVEN BAKER, MARILYN MOHR,
23CHARLES SNYDER and KEVIN MATTHEWS,
24Intervenors-Respondents.
25
26LUBA Nos. 2008-148 and 2008-149
27
28FINAL OPINION
29AND ORDER
30
31 Appeal from City of Eugene.
32
33 Bill Kloos, Eugene, filed a petition for review and argued on behalf of petitioner.
34With him on the brief was the Law Office of Bill Kloos, PC.
35
36 Dan E. Neal, Eugene, filed a petition for review and represented himself.
37
38 Emily N. Jerome, Eugene, filed a response brief and argued on behalf of respondent.
39With her on the brief was Harrang Long Gary Rudnick P.C.
40
41 Paul Conte, Rene C. Kane, Carolyn Jacobs, Deborah Healey, Charles Snyder,
42Marilyn Mohr and Kevin Mathews, Eugene, filed a response brief. Paul Conte argued on his
43own behalf.
44
45 Jon Chandler, Salem, filed an amicus brief on behalf of Oregon Home Builders
Page 1
1Association and National Association of Home Builders.
2
3 HOLSTUN, Board Member; BASSHAM, Board Chair; RYAN, Board Member,
4participated in the decision.
5
6 AFFIRMED (LUBA No. 2008-148) 06/12/2009
7 REMANDED (LUBA No. 2008-149)
8
9 You are entitled to judicial review of this Order. Judicial review is governed by the
10provisions of ORS 197.850.
Page 2
1Opinion by Holstun.
NATURE OF THE DECISION
2
3 Petitioner appeals two city ordinances (Ordinances 20418 and 20417) that adopt a
4number of amendments to the Eugene Code (EC). The amendments that are challenged in
5this appeal (1) lower the maximum main building height that is permitted in the city’s R-3
6(Limited High-Density Residential) and R-4 (High Density Residential) zones in a specific
7area next to the University of Oregon, (2) increase off-street parking requirements for
8multiple family development in R-3 and R-4 zones in two neighborhoods near the University
9of Oregon, and (3) amend EC provisions concerning stormwater management.
REPLY BRIEF
10
11 Petitioner moves for permission to file a reply brief to respond to new issues raised in
12respondent’s and intervenors-respondents’ briefs. The motion is granted.
AMICUS BRIEF
13
14 The Oregon Homebuilders Association and the National Association of
15Homebuilders move for permission to file an amicus brief. The motion is granted.
FACTS
16
A. Maximum Building Heights in the R-1, R-3 and R-4 Zones South of the
17
University of Oregon (EC 9.2751(3))
18
19As a general rule, the maximum building heights in the R-1, R-3 and R-4 zones are
2030 feet, 50 feet and 120 feet, respectively. EC Table 9.2750. Those general maximum
21building heights, as set out in EC Table 9.2750, are not altered by the challenged ordinances.
22While EC Table 9.2750 sets out the development standards that apply generally
23within residential zones, including the aforementioned maximum building heights, EC
249.2751, which follows that table, adopts a number of “Special Development Standards” that
25apply in addition to or in place of the standards in EC Table 9.2750. One of those Special
26Development Standards is EC 9.2751(3). Under EC 9.2751(3), building heights in R-3 and
27R-4 zones are further restricted where the R-3 or R-4 zone adjoins an R-1 zone. Both before
Page 3
1and after the challenged ordinances, as a general rule in the R-3 and R-4 zones, buildings
2located within any portion of an R-3 or R-4 zone that is closer than 50 feet to an R-1 zone
3can be no taller than 30 feet tall. EC 2.9751(3) has the effect of extending the R-1 zone 30
4foot maximum building height restriction for a distance of 50 feet into adjoining R-3 and R-4
5zones, so that there is a 50-foot deep, 30-foot high step-up to the higher maximum building
6heights in the R-3 and R-4 zones, where they adjoin an R-1 zone. This generally applicable
7step-up is carried forward in the challenged ordinances.
8Ordinance 20418 adopts a different step-up regulatory regime for a 16-block area
th
9located south of the University of Oregon. That area is bounded by 18 Street on the north,
th
1020 Street on the south, Agate Avenue on the east and Hilyard Avenue on the west. Those
11blocks are zoned a mixture of R-1, R-3 and R-4. The sixteen blocks are separated from the
th
12University of Oregon by 18 Street. The zoning for those blocks generally transitions as you
th
13proceed south away from the university from R-4 zoning (across 18 Street from the
14University of Oregon) to R-3 and then to R-1 zoning as you approach and cross into the large
15residential neighborhood to the south of the 16-block area. In its brief the city sets out the
16challenged amendment to EC 2.9751(3) in legislative format (bold/italic text added,
17bracketed, line-through text deleted), and we set out the amendment in that format below:
18(3) Building Height
19(a)Except as provided below, [I]in the R-3 and R-4 zone, the
20maximum building height shall be limited to 30 feet for that
21portion of the building located within 50 feet from the abutting
22boundary of, or directly across an alley from, land zoned R-1.
23(b) For that area bound by Hilyard Street to the west, Agate
thth
24Street to the east, East 18 Avenue to the north and East 20
25Avenue to the south:
261. In the R-3 zone, the maximum building height shall
27be limited to 35 feet for that portion of the building
28located within 160 feet from the abutting boundary of,
29or directly across an alley from, land zoned
.
R-1
Page 4
12. In the R-4 zone, the maximum building height shall
2be limited to 35 feet for that portion of the building
3located within 50 feet from the abutting boundary of,
4or directly across an alley from, land zoned R-1. It
5shall be limited to 50 feet for that portion of the
6building located within 175 feet from land zoned R-3,
7and shall be limited to 75 feet for that portion of the
8building located within 176 feet and 225 feet of land
9zoned R-3.
10Under Ordinance 20418, for R-3-zoned property within this 16-block area, the 30-
11foot high step-up in maximum building height that extends 50 feet into the R-3 zone is
12replaced with a 35-foot high step up that extends 160 feet into the R-3 zone. In other words,
13the step-up is a little higher (35 feet versus 30 feet) and extends farther into the R-3 zone
14(160 feet versus 50 feet).
15Under Ordinance 20418, for R-4 zoned property, 30-foot step-up is replaced with a
16three step-up regime. The first step extends 50 feet into the R-4 zone and is 35 feet high.
17The second step into the R-4 zone (between 50 feet from the R-1 zone and 175 feet from the
18R-1 zone) is 50 feet high. The third step (between 175 feet from the R-1 zone and 225 feet
19from the R-1 zone) is 75 feet high. Within the 16-block area, a building may be built to the
20full 120-foot height allowed by EC Table 9.2750, only if it is more than 225 feet from an
21adjoining R-1 zone. For property that is closer than that to the R-1, buildings must observe
22the lower step-ups in maximum building heights described above.
B.Required Off-Street Parking for Multifamily Development (EC Table
23
9.6410)
24
25EC Table 9.6410 sets out off-street parking requirements for uses allowed under the
26EC. One of those uses is multiple family dwellings. Prior to the challenged amendments,
27one parking space per multiple family unit was required by EC Table 9.6410. Ordinance
2820418 amends EC Table 9.6410 to adopt different off-street parking requirements in two
29neighborhoods. That amendment is set out below in the same legislative format that was
30used above for the amendments to EC 9.2751(3):
Page 5
Table 9.6410 Required Off-Street
Motor Vehicle Parking
UsesMinimum Number of Required Off-
Street Parking Spaces
Residential
Dwelling
[Multiple Family (3 or moredwellings on [1 per dwelling]
same lot]
Multiple Family developments in the R-3 1 space per studio or 1-bedroom unit
and R-4 zones within the boundaries of 1.5 spaces/unit per 2-bedroom unit**
the City recognized West University 2 spaces/unit per 3-bedroom unit*
Neighbors and South University
Neighborhood Associations. *.5 spaces required for each additional
bedroom beyond 3 bedrooms
**Fractions of .50 are rounded up to the
next whole number.
Multiple Family – all other areas 1 per dwelling
1As an example of the effect of the above amendment, before the amendment, an
2apartment building with 20 two-bedroom units would require 20 off-street parking places (20
3X 1 = 20). With the above amendment, that apartment building would require 30 off-street
4parking spaces (20 X 1.5 = 30). As another example, a building with 21 four-bedroom
5apartments would require 21 off-street parking places before the challenged amendment (21
6X 1 = 21). With the above amendment to EC Table 9.6410, that 21-unit apartment building
7would require 53 parking spaces (21 X 2.5 = 52.5 + .5 = 53).
Page 6
1Petitioner’s first through seventh and ninth assignments of error challenge the
2amendments adopted by Ordinance 20418 on various grounds.
C. Stormwater Management
3
4 EC 9.6790 directs the City Manager to adopt a Stormwater Management Manual.
5The second ordinance that is challenged in this appeal, Ordinance 20417, amends EC 9.6790
6to specify certain goals with which the Stormwater Management Manual must be consistent.
7Petitioner challenges that amendment in its eighth and ninth assignments of error.
INTRODUCTION
8
9 The first seven assignments of error, particularly the third through seventh
10assignments of error, assume that the new building height limits in the 16-block area south of
11the university and the new off-street parking requirements in the South and West University
12Neighborhoods necessarily will preclude residential development at the maximum allowed
13density in those areas and will have the effect of increasing the number of trips by
14automobile and the resultant pollution and greenhouse gases. As we explain below, the EC
15regulates residential development directly and also imposes development standards that may
16have the indirect effect of reducing the achievable development densities. The EC
17amendments that are the subject of this appeal could have indirect effects on development
18densities and the parties have very different ideas about the likely impact of the disputed EC
19amendments on residential development densities. The parties also have very different ideas
20about the likely impacts of the disputed amendments on traffic and traffic related pollution.
A. Direct Regulation of Residential Development Density
21
22 The Eugene Code regulates development density directly and indirectly. The Eugene
23Code regulates residential development density directly by imposing both minimum and
24maximum density requirements. Within the R-3 and R-4 zones, residential development
25must achieve a “Minimum Net Density Per Acre” of at least 20 units. EC Table 9.2750.
26That means within the R-3 and R-4 zones, residential development at a net density of less
Page 7
1than 20 units per acre may not be approved. The EC also imposes a maximum density in
2these zones. Within the R-3 zone, the “Maximum Net Density per Acre” is 56 units. EC
3Table 9.2750. With the R-4 zone, the “Maximum Net Density per Acre” is 112 units. Id.
4These minimum and maximum density requirements are not changed by the disputed
5amendments. This means that under EC Table 9.2750, both before and after the challenged
6amendments, the permissible residential development density within the R-3 zone ranges
7from a low of 20 units to a high of 56 units per net acre, and the permissible residential
8development density within the R-4 zone ranges from a low of 20 units to a high of 112 units
9per net acre.
B.Indirect Regulation That May Affect Residential Development Density
10
11Although required minimum residential density and permissible maximum residential
12density in the R-3 and R-4 zones under EC Table 9.2750 are unchanged, petitioner contends
13the new (lower) maximum building heights in parts of the 16-block area south of the
14university and the new off-street parking regulations in the two university neighborhoods
15will have the indirect effect of preventing development from achieving the R-3 and R-4
16maximum 56 and 112 units per acre densities in those areas.
1. Petitioner’s View of the Indirect Effect
17
18One developer testified below that the reduced building height in the 16-block area
19will reduce potential building envelopes by
20“approximately 25% in the R4 zone immediately south of the U of O. Over
21an area of about 22 acres, this results in a loss of about 600 potential dwelling
22units—not a minor result.” Record 912.
23That same developer went on to contend that the increased off-street parking requirements
24for multiple family dwellings in the two university neighborhoods would similarly preclude
25achieving the maximum densities allowed under the EC in the R-3 and R-4 zone for multiple
26family dwellings in the two university neighborhoods:
Page 8
1“[The increased off-street parking required for multiple family dwellings in
2the two university neighborhoods] will result in [an] increase of parking
3requirements to 200% of current for 2 bedroom units to 400% of current for 5
4bedroom units. I have reviewed the impact on eight recent projects of ours in
5these neighborhoods – two in design, four in construction now, and two
6recently completed. None of these projects could be built as designed. The
7amount of land required for parking limits the remaining space, used for out
8door living, pedestrian circulation, landscaping, and lastly – dwelling units,
9such that actual achievable density is reduced to ½ to 1/3 of current. Thus, we
10put cars before people, and actually invite more cars into the neighborhood,
1
11while reducing density.” Record 912.
12The developer went on to contend that “[a]s a practical matter, this will reduce the density
13that can be achieved by about half, in some cases 2/3.” Record 917.
2.Intervenors-Respondents’ View of the Indirect Effect
14
15Intervenors-respondents spend 17 pages in their brief arguing that the developer’s
16testimony quoted above for the most part fails to identify the assumptions or bases for his
17conclusions and vastly overstates the likely impact of the disputed changes. Intervenors-
18respondents’ Brief 10-27. Intervenors-respondents ultimately take the position that the
19regulations are unlikely to prevent individual development proposals from achieving the
20maximum residential development densities authorized by EC Table 9.2750 in either the R-3
21or R-4 zone.
22Intervenors-respondents particularly dispute petitioner’s contention that the new,
23lower maximum building heights will result in a loss of 600 units in the R-4 zoned portion of
24the 16-block area. Intervenors-respondents point out that within the R-4 zone, where the
25amendments will impose lower maximum building heights in R-4 zoned areas that are
26located within 225 feet of an R-1 zone, the percentage reduction in the normal 120-foot
27maximum building height would only necessarily result in a reduction in the achievable
28maximum development density if a 12-story building that takes full advantage of the 120-
1
A table that purports to display the impact of the disputed changes on the eight projects referenced in the
quoted text appears at Record 923.
Page 9
2
1foot maximum height limit is required to achieve the allowed 112 units per net acre.
2Intervenors-respondents contend that is clearly not the case, and point to a table in the record
3that shows existing developments with 3.5 and 4 stories that have achieved densities of 112
4and 110 units per net acre, respectively. Record 385. A developer will simply need to
5achieve the maximum permitted 112 units per net acre in the R-4 zone in a shorter building.
6That may require a different design to achieve the maximum permitted residential density in
7the three, five or seven story buildings that are now possible in the step-up transition area
8within the R-4 zoned portion of the 16-block area, but intervenors-respondents contend there
9is no reason to believe the permissible maximum development density cannot be achieved in
3
10such shorter buildings.
11Intervenors-respondents also contend that petitioner’s reasoning regarding the likely
12effect of the new off-street parking requirements is flawed as well. In particular, intervenors-
13respondents contend that petitioner overlooks EC 9.6410(3)(a), which reduces the amount of
14off-street parking that is required under EC Table 9.6410, both before and after the disputed
15amendment to EC Table 9.6410. EC 9.6410(3)(a) provides as follows:
16“A parking reduction of up to 50% of the minimum requirement in the /ND
17overlay zone and up to 25 percent of the minimum requirement in all other
18zones is allowed as a right of development. In addition to these reductions, a
19parking reduction of 25% of the minimum required off-street parking is
20allowed for shared off-street parking.”
21Thus, if an applicant wanted to take advantage of EC Table 9.6410, the amount of
22required off-street parking for multiple family housing in the two university neighborhoods
23under EC Table 9.6410 before the disputed amendments was .75 parking spaces per unit.
24That EC 9.6410(3)(a) 25 percent reduction would also apply to the new off-street parking
2
At oral argument the parties appeared to generally agree that each story of a building requires
approximately 10 feet of building height so that a 30-foot building would likely include three stories.
3
Intervenors-respondents also point out that the maximum building height in the 16-block area within 50
feet of R-1 zoned property (for R-4 zoned property) is actually increased slightly by Ordinance 20418 (from 30
feet to 35 feet).
Page 10
1requirements for multiple family development in the two university neighborhoods.
2Intervenors-respondents contend that the developer’s failure to recognize the continued
3application of EC Table 9.6410 led him to seriously overstate the magnitude of the increase
4in off-street parking requirement for multiple family dwellings in the two university
5neighborhoods.
6Finally, intervenors-respondents contend that there are a number of recent examples
7of multiple family development in the university neighborhoods that comply with or exceed
8the new off-street parking standard. Record 385. We understand intervenors-respondents to
9contend that more attention to design may be required in the future and that in some cases
10parking may need to be constructed underground, but so long as those measures are
11considered there is no reason to expect that the new off-street parking requirements will
12preclude multiple family development at the maximum allowed density in the R-3 or R-4
13zones in the two university neighborhoods.
14We agree with intervenors-respondents that petitioner appears to significantly
15overstate the impact of the disputed amendments. In particular, we agree that the reduced
16maximum building heights in the R-4 step down areas need not result in a direct or
17proportional reduction in development density and need not preclude development that
18achieves the permissible maximum residential density per net acre. As far as we can tell, the
19precise impact of the disputed changes on the ability of a particular applicant to achieve the
20maximum permissible residential development densities will depend on a number of
21variables. However, based on our review of the evidence cited by petitioner and intervenors-
22respondents, while it may be more expensive to construct underground parking and
23achieving the maximum allowed residential density in the R-4 zone may be more difficult,
24particularly where the maximum building height is 35 feet, the record simply does not
25support petitioner’s contention that the disputed amendments necessarily will preclude
Page 11
1achievement of maximum residential development densities in the 16-block area and the two
4
2university neighborhoods.
3With that introduction to the parties’ dispute regarding the likely impact of the EC
4amendments, we now turn to petitioner’s assignments of error.
FIRST ASSIGNMENT OF ERROR
5
6 The city has different kinds of zones, including base zones, overlay zones and special
7area zones. We understand petitioner to contend that because the challenged amendments
8regulate building height differently in a 16-block R-3 and R-4 zoned area than elsewhere in
9the city’s R-3 and R-4 zones and regulate off-street parking requirements differently in two
10university neighborhoods than elsewhere in the R-3 and R-4 zones they are de facto special
11area zones. In its first assignment of error, petitioner argues the city has adopted a stealth
12special area zone without applying and demonstrating compliance with the criteria that
13govern creation of special area zones.
5
14 EC 9.3000 explains the purpose for creating Special Area Zones. There are a
15number of criteria that govern application of Special Area Zones. Among those criteria is
16EC 9.3020(1)(b), which requires the city to find that the area that is to be included in the
17Special Area Zone:
4
As we explain below, the likely impact of the increased off-street parking requirements on traffic in the
neighborhood is somewhat less clear.
5
EC 9.3000 provides:
Purpose for Creating Special Area Zones
“. The S Special Area zone provides procedures
and criteria for recognition of areas of the city that possess distinctive buildings or natural
features that have significance for the community and require special consideration or
implementation of conservation and development measures that can not be achieved through
application of the standard base zones. In some cases, an S Special Area Zone is applied to
implement a plan for an area identified for nodal development. Application of S Special zone
to a lot containing a specific building, structure, object, site or archeological resource that
qualifies as an historic landmark will ensure that permitted uses encourage preservation of
historic qualities.”
Page 12
1“Possesses distinctive buildings or natural features that require special
2consideration to ensure appropriate development, preservation, or
3rehabilitation. In order to be considered distinctive, it must be demonstrated
4that:
5“1. The area is characterized by buildings that merit preservation in order
6to protect their special features; or
7“2.The area contains natural features that have been identified by the city
8as worthy of special treatment or preservation.”
9 The city responds that there is no reason why the city cannot draw the distinctions
10that are drawn in Ordinance 20418 and regulate building heights differently within the R-3
11and R-4 zones in the designated 16-block area and regulate required off-street parking
12differently in the two university neighborhoods.The city goes on to argue that not only is
13there no legal prohibition against making such regulatory distinctions within a base zone and
14within the generally applicable parking standards at EC Table 9.6410, the standards for
15creation of a Special Area Zone make it clear that the desired regulatory distinctions could
16not be accomplished via a Special Area Zone. That regulatory distinction has nothing to do
17with “buildings that merit preservation” or “natural features that [are] worthy of special
18treatment or preservation,” as is required under EC 9.3020(1)(b).
19 We agree with the city. The first assignment of error is denied.
SECOND ASSIGNMENT OF ERROR
20
21 ORS 227.186(2) requires that legislative acts relating to zoning be adopted by
6
22ordinance. EC 9.1050 requires that the boundaries of any zone must be shown on the
7
23official zoning map. The new multiple family off-street parking standards apply only in the
6
ORS 227.186(2) provides:
“All legislative acts relating to comprehensive plans, land use planning or zoning adopted by
a city shall be by ordinance.”
7
EC 9.1050 provides in part:
Page 13
1West University Neighborhood and the South University Neighborhood. Petitioner contends
2the city violated EC 9.1050 and 9.3010 and ORS 227.186(2) because the boundaries of the
3two neighborhoods were set by city resolution rather than by ordinance, and the boundaries
4of those two neighborhoods are not shown on the city’s official zoning map.
5The city’s response is twofold. First, the city contends that Ordinance 20418 does not
6change the boundaries of the R-3 or R-4 zone. We understand the city to contend that
7because those boundaries were not changed, no amendment of the city’s official zoning map
8was required, and EC 9.1050 is not implicated. Second, the city contends that the ORS
9227.186(2) requirement that legislative acts relating to zoning be adopted by ordinance did
10not take effect until 1998, whereas the resolutions establishing the two neighborhoods were
11adopted many years earlier, in the 1980s. We understand the city to contend that even if
12ORS 227.186(2) might apply prospectively to preclude future amendments to the boundaries
13of those neighborhoods by resolution, for purposes of applying the new parking regulations,
14ORS 227.186(2) does not apply retroactively to preclude application of the new off-street
15parking requirements to neighborhoods that were delineated by resolution before the statute
16took effect. We agree with the city.
17 The second assignment of error is denied.
THIRD ASSIGNMENT OF ERROR
18
19 ORS 197.295 through 197.314 and 197.475 to 197.490 are referred to as the needed
20housing statutes. OAR chapter 660 division 8 is the Land Conservation and Development
21Commission (LCDC) administrative rule that was adopted to implement the needed housing
22statutes and Statewide Planning Goal 10 (Housing). OAR 660-008-0025 allows the city to
23defer rezoning land that is within an urban growth boundary to the maximum planned
“Zone boundaries shall be depicted on an official map titled, ‘Eugene Zoning Map.’ Overlay
zone boundaries shall be indicated on the ‘Eugene Zoning Map,’ or on an official map titled,
‘Eugene Overlay Zone Map.’ * * *”
Page 14
1residential density, if such deferral is justified and subject to clear and objective rezoning
8
2standards.
3 The Eugene/Springfield Metro Area General Plan (Metro Plan) designates the
4affected university neighborhoods “High Density.” According to the Metro Plan, the High
5Density designation calls for “[o]ver 20 dwelling units per gross acre (could translate to over
628.56 units per net acre depending on each jurisdiction’s implementation measures and land
7use and development codes).” Metro Plan Policy A.9. As already noted, the city’s R-3 zone
8permits up to 56 units per net acre and the R-4 zone permits up to 112 units per net acre. By
9reducing the 50-foot and 120-foot maximum building height maximum in the 16-block area,
10petitioner argues the city has effectively downzoned this area in a way that is inconsistent
11with the Metro Plan and OAR 660-008-00025.We understand petitioner to argue the new
12off-street parking requirements have the same effect for the larger South and West University
13Neighborhoods.
14 Petitioner’s argument is without merit. The Metro Plan calls for 20 units per gross
15acre or 28.56 units per net acre. The R-3 zone permits up to 56 units per net acre and the R-4
16zone permits up to 112 units per net acre.The permissible maximum density under the R-3
17zone is twice what the Metro Plan calls for and the permissible maximum density in the R-4
18zone is well over three times what the Metro Plan calls for. Therefore, the City of Eugene
8
OAR 660-008-0025 provides:
“A local government may defer rezoning of land within an urban growth boundary to
maximum planned residential density provided that the process for future rezoning is
reasonably justified. If such is the case, then:
“(1) The plan shall contain a justification for the rezoning process and policies which
explain how this process will be used to provide for needed housing.
“(2) Standards and procedures governing the process for future rezoning shall be based
on the rezoning justification and policy statement, and must be clear and objective.”
Page 15
1has not deferredrezoning to the density called by in the Metro Plan, it has chosen to zone for
2much higher densities, and OAR 660-008-0025 is simply inapplicable.
3Even if OAR 660-008-0025 could be read to preclude new land use regulations that
4might have the indirect effect of making it difficult to achieve the densities called for under
5the Metro Plan, petitioner comes nowhere near showing that is the case here. As we have
6already noted, the existing R-3 and R-4 zoning is unaffected by the challenged amendments,
7and there is at best conflicting evidence in the record concerning whether the amendments
8call into question whether in some circumstances it may not be possible to achieve the 112
9unit per net acre maximum density allowed under the EC in the R-4 zone. There is simply no
10credible evidence in the record that the disputed amendments will make it no longer possible
9
11to achieve the more modest 28.56 units per net acre called for under the Metro Plan.
12The third assignment of error is denied.
FOURTH ASSIGNMENT OF ERROR
13
14 ORS 197.307(6) requires that “[a]ny approval standards, special conditions and the
15procedures for approval” that are adopted by the city and applied to needed housing as
16defined by ORS 197.303 must be “clear and objective and may not have the effect, either in
17themselves or cumulatively, of discouraging needed housing through unreasonable cost or
10
18delay.”
9
We recognize that other city zoning districts may allow development at densities that are less than
required under Metro Plan Policy A.9 and that the higher densities allowed in the R-3 and R-4 zoning may be
necessary to offset those lower densities so that the city as a whole complies with the minimum density required
by Metro Plan Policy A.9. However, petitioner does not argue that this consideration is in play here and we do
not consider the issue further.
10
The text of ORS 197.307(6) is set out below:
“Any approval standards, special conditions and the procedures for approval adopted by a
local government shall be clear and objective and may not have the effect, either in
themselves or cumulatively, of discouraging needed housing through unreasonable cost or
delay.”
Page 16
1 The new off-street parking standard imposed by Ordinance 20418 in the two
2university districts requires an increasing number of parking spaces for multiple family
3dwelling units, depending on how many bedrooms a multiple family dwelling unit has. The
4EC does not define the term “bedroom.” Webster's Third New Int'l Dictionary, 196 (1981)
5defines a bedroom as “a room furnished with a bed and intended primarily for sleeping.”
6According to petitioner the same hypothetical apartment unit that is depicted on the drawing
7that appears between pages 13 and 14 of its petition for review could be found to have
8anywhere from one to four bedrooms depending on whether the applicant expressed an intent
9to use the rooms shown as a bedroom, den, exercise room or office. Petitioner contends that
10the bedroom-based off-street parking standard is not “clear and objective,” and for that
11reason violates ORS 197.307(6).
12 We seriously question whether the amendment to EC Table 9.6410 to make the
13required off-street parking space for multiple family dwellings in the two university districts
14depend on the number of bedrooms constitutes an “approval standard,” within the meaning
15of ORS 197.307(6). To begin with, EC Table 9.6410 is probably more accurately described
16as a performance standard than a standard that determines whether an application for a
17multiple family dwelling can be approved. As the city explains in its brief, an applicant for
18needed housing that is subject to EC Table 9.6410 presumably will indicate on its application
19how many bedrooms are included in a request for approval of a multiple family apartment
20building. The city would rarely, if ever, have reason to question the applicant’s
21representation regarding how many bedrooms a proposal will have. The required off-street
22parking would be computed accordingly, and the application would be approved and the
23apartment would be built and occupied. If it later turns out that exercise rooms, dens and
24offices are being rented as bedrooms, the city might face the prospect of an enforcement
25action. But that possibility is no different that the possibility that the apartment building
26might run afoul of any number of performance standards after it is initially approved.
Page 17
1 Even if the amended EC Table 9.6410 is properly viewed as an “approval standard,”
2within the meaning of ORS 197.307(6), we believe it is sufficiently “clear and objective.”
3As we explained in Rogue Valley Assoc. of Realtors v. City of Ashland, 35 Or LUBA 139,
4156-58 (1998), aff’d 158 Or App 1, 970 P2d 685 (1999), the needed housing statutes were
5derived from LCDC’s St. Helens Housing Policy. We concluded that under the St. Helens
6Housing Policy:
7“‘Needed housing’ is not to be subjected to standards, conditions or
8procedures that involve subjective, value-laden analyses that are designed to
9balance or mitigate impacts of the development on (1) the property to be
10developed or (2) the adjoining properties or community. Such standards,
11conditions or procedures are not clear and objective and could have the effect
12‘of discouraging needed housing through unreasonable cost or delay.’” 35 Or
13LUBA at 158.
14Basing the required number of parking spaces on the number of bedrooms seems quite unlike
15the “adverse impact” or “compatibility” standards that were prescribed as review criteria for
16needed housing under the St. Helens Housing Policy. Admittedly, at least the illusion of a
17lack of clarity can be created in even the clearest of statutory language. However, in view of
18the regulatory function that the number of bedrooms serves in EC Table 9.6410, we do not
19believe the needed housing statutes require more clarity or objectivity. At the time of
20approval, it would appear that the number of bedrooms for purposes of computing the
21required off-street parking is entirely within the control of the applicant, subject to later
22action by the city in the event that rooms that were not proposed or approved as bedrooms
23subsequently are used as such.
24The fourth assignment of error is denied.
FIFTH ASSIGNMENT OF ERROR
25
26 The EC is a city “land use regulation,” within the meaning of ORS 197.015(11).
27Under ORS 197.835(7)(a), LUBA must reverse or remand an amendment to a land use
28regulation if the land use regulation amendment is “not in compliance with the
29comprehensive plan[.]” The City of Eugene’s comprehensive plan is made up of a number of
Page 18
1documents. Two of those documents are the Metro Plan and the West University Refinement
2Plan. Petitioner argues under its fifth assignment of error that Ordinance 20418 is
3inconsistent with certain Metro Plan and West University Refinement Plan policies.
4 In addressing the Metro Plan and its refinement plans, the city’s findings explain:
5“The code amendments include minor changes to the Land Use Code that
6address issues raised by the community that are primarily related to residential
7development and lot configuration standards, without raising significant
8policy issues. Given the minor nature of these amendments, there are no
9relevant Metro Plan policies affected by this action. Furthermore, the
10amendments do not address any adopted refinement plans. Therefore, no
11refinement plan is affected by this action.” Record 31.
12Before turning to petitioner’s specific challenge, we note that while local law may
13require findings for legislative land use decisions, and by statute some land use decisions
14must be supported by findings without regard to whether they are quasi-judicial or
15legislative, there is no specific, generally applicable legal requirement that cities must adopt
16findings to support legislative land use decisions. Witham Parts and Equipment Co. v.
17ODOT, 42 Or LUBA 435, 451, aff’d 185 Or App 408, 61 P3d 281 (2002);
18Redland/Viola/Fischer's Mill CPO v. Clackamas County, 27 Or LUBA 560, 563-64 (1994);
19Von Lubken v. Hood River County, 22 Or LUBA 307, 313-14 (1991). Nevertheless, even
20without a generally applicable legal requirement that legislative land use decisions must in
21all cases be supported by findings, for LUBA and the appellate courts to perform their review
22function, “there must be enough in the way of findings or accessible material in the record of
23the legislative act to show that applicable criteria were applied and that required
24considerations were indeed considered.” Citizens Against Irresponsible Growth v. Metro,
25179 Or App 12, 16 n 6, 38 P3d 956 (2002). With that understanding of our standard of
26review in this matter, we turn to petitioner’s arguments.
A. West University Refinement Plan Policy 3
27
28 West University Refinement Plan Policy 3 requires, among other things, that the city
29“review parking requirements for residential development with the purpose of reducing the
Page 19
11
1required number of parking spaces.” (Emphasis added.) Petitioner contends that because
2Ordinance 20418 increases the required number of parking spaces for multiple family
3dwellings in the West University Neighborhood, rather than reducing them, the ordinance is
4inconsistent with the policy.
5 The city responds in its brief that West University Neighborhood Refinement Plan
6Policy 3 was adopted when that refinement plan was adopted in 1982. According to the city,
7in 1993 it updated the EC and adopted the requirement that multiple family development
8must provide only one off-street parking space per unit. The city contends that there is
9evidence in the record that the old one-space off-street parking space standard “was not
10working in the University area and it needed to be revised.” Brief of Respondent 17. The
11city contends that this “policy does not prohibit the City from revisiting and adjusting the
12way in which it has implemented the policy.” Id.
11
West University Refinement Plan Policy 3 provides:
“The City of Eugene will update its Land Use Code and that effort shall particularly take into
account the need to:
“-- reduce non-residential uses permitted in the R-3 and R-4 zones.
“-- redefine usable open space.
“-- enable infilling on newly created small lots.
“-- enable alley access as the primary access to newly created lots.
“-- reduce the minimum lot size.
“-- increase the flexibility of development standards (for example to enable more
efficient use of open space, shared parking,and more extensive use of public rights-
of-way).
“--review parking requirements for residential development with the purpose of
reducing the required number of spaces per unit in the plan area.
“-- amend the commercial zoning in the City Code to provide a greater range of
commercial zones.” (Emphasis added.)
Page 20
1 There is evidence in the record that parking is a problem near the university and that
2the old one-space per unit parking standard is likely contributing to that parking problem.
3However, it seems to us that it was entirely foreseeable in 1993 that “reducing the required
4number of parking spaces per unit in the plan area” could either create or exacerbate parking
5problems in the university area, if steps beyond simply reducing the required number of
6parking spaces were not taken. From the decision and the evidence in the record that the
7parties have called to our attention, we cannot tell why a decision to increase off-street
8parking is consistent with a policy that calls for reducing off-street parking. Although we
9agree with the city that West University Neighborhood Refinement Plan Policy 3 need not be
10interpreted to preclude the city from adjusting how the city chooses to implement that policy,
11the city needs to explain how a decision to increase off-street parking is consistent with a
12policy that calls for reducing off-street parking. Because there are no findings that provide
13that explanation, we agree with petitioner that remand is required. Citizens Against
14Irresponsible Growth v. Metro.
15 This subassignment of error is sustained.
B.Metro Plan Housing Policies
16
17Metro Plan Policy A.2 provides in part that “[r]esidentially designated land within the
18UGB should be zoned consistent with the Metro Plan and applicable plans and policies[.]”
19As previously noted, Metro Plan Policy A.9 calls for residential dwelling densities of 20
20dwelling units per gross acre and 28.56 dwelling units per net acre. Metro Plan Policy A.14
21provides that the city is to “[r]eview local zoning and development regulations periodically
22to remove barriers to higher density housing and to make provision for a full range of
23housing options.” Petitioner argues Ordinance 20418 is inconsistent with these policies
24because it introduces new barriers to higher density and does not allow the density
25envisioned by the Metro Plan.
Page 21
1As we have already explained, the EC allows significantly higher densities in the R-3
2and R-4 zones than is required under Metro Plan Policy A.9, and the challenged decision
3does not change that zoning. We are not persuaded by any of petitioner’s arguments that the
4challenged amendments will leave the city unable to comply with the 28.56 dwelling units
5per net acre standard that is set by Metro Plan Policy A.9. As far as we can tell, Ordinance
620481 is consistent with Metro Plan Policy A.2 or A.9.
7Petitioner appears to interpret Metro Plan Policy A.14 to prohibit the city from
8adopting any land use regulation amendments that might ultimately prove to be “barriers to
9higher density housing [or] provision [of] a full range of housing options.” That is not what
10the policy says. Metro Plan Policy A.14 directs the city to review city land use regulations
11periodically to “remove barriers to higher density housing and to make provision for a full
12range of housing options.” Metro Plan Policy A.14 seems to recognize that the city’s ability
13to predict the ultimate impact of land use regulations on housing density and options at the
14time land use regulations are adopted or amended is imperfect. Metro Plan Policy A.14
15simply requires that the city assess and correct, on a periodic basis, any land use regulations
16that prove to be a barrier to housing density or providing a full range of housing options.
17While Metro Plan Policy A.14 probably would bar a land use regulation that on its face will
18be a barrier to achieving desired housing density or housing options, and petitioner
19apparently believes that is the case with Ordinance 20418, we do not agree.
20This subassignment of error is denied.
Page 22
C.Metro Plan Impervious Surface Policy
1
2Metro Plan Policy G.17 provides that the city should “[i]nclude measures in local
3land development regulations that minimize the amount of impervious surface in new
12
4development[.]”
5Petitioner contends that because residential development in the areas affected by
6Ordinance 20418 will have to be accommodated in shorter buildings in some cases and will
7have to provide more parking it is logical to assume there will be more impervious surface
8and Ordinance 20418 therefore violates Metro Plan Policy G.17.
9As was the case with petitioner’s reading of Metro Plan Policy A.14, petitioner
10misreads Metro Plan Policy G.17 to require something that it does not require. Metro Plan
11Policy G.17 does not prohibit any amendment of the EC that might lead to individual
12development that includes more impervious surfaces. Metro Plan Policy G.17 requires the
13city to include measures in its land use regulations that will minimize impervious surfaces; it
14is not a blanket ban on land use regulation amendments that might, in particular cases, lead to
15more impervious surfaces.
16Where a land use regulation amendment would inevitably lead to increased
17impervious surfaces, it is possible that we would require that the city adopt findings to
18explain why such an amendment is consistent with Metro Plan Policy G.17. However,
19petitioner’s assumption that the theoretically taller buildings with fewer parking spaces that
20were possible under the EC before Ordinance 20418 would inevitably result in less
21impervious surface and that the shorter buildings with more parking that will likely result
12
Both petitioner and the city state that this policy is Metro Plan Policy G.18. According to the Metro Plan
that is available on the city’s website, which we assume is the current and applicable version of the Metro Plan,
the impervious surface policy appears at Metro Plan Policy G.17 and the full text of that policy is as follows:
“Include measures in local land development regulations that minimize the amount of
impervious surface in new development in a manner that reduces stormwater pollution,
reduces the negative effects from increases in runoff, and is compatible with Metro Plan
policies.”
Page 23
1under the Ordinance 20418 amendments will inevitably result in more impervious surface is
2simply too tenuous. As intervenors-respondents point out, apparently few developers of
3multiple family dwellings in the area are currently taking advantage of the higher maximum
4building heights before Ordinance 20418, and even if they were it does not necessarily
5follow that the smaller footprint of such buildings would result in fewer impervious surfaces.
6In addition, if parking is provided underneath multiple family development, there would be
7no increase in exposed impervious surface.
8This subassignment of error is denied.
9The fifth assignment of error is sustained in part and denied in part.
SIXTH ASSIGNMENT OF ERROR
10
11 Under its sixth assignment of error, petitioner argues the city failed to demonstrate
12that the amendments adopted by Ordinance 20418 are consistent with the Transportation
13Planning Rule (TPR-OAR chapter 660, division 12) and Metro Plan and TransPlan Policies.
A. Significant Affect on Transportation Facilities
14
15 As potentially relevant in this appeal, under the TPR an amendment to a land use
16regulation would significantly affect a transportation facility if “[a]s measured at the end of
17the planning period identified in the adopted transportation system plan,” the land use
18regulation amendment would:
19“(A) Allow land uses or levels of development that would result in types or
20levels of travel or access that are inconsistent with the functional
21classification of an existing or planned transportation facility;
22“(B) Reduce the performance of an existing or planned transportation
23facility below the minimum acceptable performance standard
24identified in the TSP or comprehensive plan; or
25“(C) Worsen the performance of an existing or planned transportation
26facility that is otherwise projected to perform below the minimum
27acceptable performance standard identified in the TSP or
28comprehensive plan.” OAR 660-012-0060(1)(c).
Page 24
1If a land use regulation would significantly affect a transportation facility, OAR 660-012-
20060(1) requires that a local government “put in place measures * * * to assure that allowed
3land uses are consistent with the identified function, capacity, and performance standards
4(e.g. level of service, volume to capacity ratio, etc.) of the [significantly affected] facility.”
5Under OAR 660-012-0060(2) those required measures may include:
6“(a) Adopting measures that demonstrate allowed land uses are consistent
7with the planned function, capacity, and performance standards of the
8transportation facility.
9“(b) Amending the TSP or comprehensive plan to provide transportation
10facilities, improvements or services adequate to support the proposed
11land uses consistent with the requirements of this division; such
12amendments shall include a funding plan or mechanism consistent
13with section (4) or include an amendment to the transportation finance
14plan so that the facility, improvement, or service will be provided by
15the end of the planning period.
16“(c) Altering land use designations, densities, or design requirements to
17reduce demand for automobile travel and meet travel needs through
18other modes.
19“(d) Amending the TSP to modify the planned function, capacity or
20performance standards of the transportation facility.
21“(e) Providing other measures as a condition of development or through a
22development agreement or similar funding method, including
23transportation system management measures, demand management or
24minor transportation improvements. Local governments shall as part of
25the amendment specify when measures or improvements provided
26pursuant to this subsection will be provided.”
27 We understand petitioner to argue that Ordinance 20418 will significantly affect a
28transportation facility, although petitioner does not identify which transportation facilities it
29believes will be significantly affected. We also understand petitioner to argue that the city
30has failed to adopt one or more of the mitigation measures required by OAR 660-012-
310060(1) and 660-012-0060(2). Perhaps more precisely, we understand petitioner to contend
32that the city improperly found that Ordinance 20418 will not significantly affect any
33transportation facilities, without adequately explaining why the city believes that is the case.
Page 25
1 The city adopted the following to address whether Ordinance 20418 will significantly
2affect a transportation facility:
3“Due to the minor nature of these amendments, the amendments do not affect
4the provision of safe, convenient and economic transportation systems and do
5not significantly affect any transportation facilities.” Record 30.
6 Petitioner and the city have very different views about the likely impact of the
7Ordinance 20418 increased off-street parking requirement. Petitioner believes that with
8additional off-street parking places it necessarily follows that additional cars will be
9introduced into the South and West University Neighborhoods that would otherwise not
10travel to and through those neighborhoods. The city (and intervenors-respondents), on the
11other hand, believe that the students who now share the multi-bedroom apartments that only
12require a single off-street parking space per apartment are in most cases already bringing
13their cars to school, and the effect of requiring more off-street parking spaces will be to
14provide an off-street parking space to park cars that, for the most part, would otherwise be
15traveling the streets of the South and West University Neighborhoods anyway. Under
16petitioner’s theory, the additional parking spaces equal an additional car for almost every
17parking space; under the city’s and intervenors-respondents’ theory additional parking spaces
18will not significantly add new cars and simply would reduce the congestion that is generated
19when the cars owned by apartment residents are driven around in search of one of the limited
20supply of on-street parking spaces.
21There is not a great deal of evidence to support either theory, but intervenors-
22respondents cite some testimony that lends some support to their position. Record 705-06,
13
23846-47. Given (1) the lack of evidence that the additional parking spaces that will be
24required under Ordinance 20418 will materially increase the total number of vehicle trips in
13
We also note that while we have rejected petitioner’s contention that the amended stepped-up maximum
building heights will necessarily decrease the density of development, petitioner fails to recognize that that
aspect of its position in this matter, if true, likely would reduce the transportation facility impact of Ordinance
20418.
Page 26
1these neighborhoods, (2) the existence of some evidence that trips will not materially
2increase, and (3) petitioner’s complete failure to identify which transportation facilities it
3believes will be significantly affected, we do not agree that the city’s findings are inadequate
4to establish that Ordinance 20418 will not significantly affect West and South University
5Neighborhood transportation facilities.
6This subassignment of error is denied.
B.Metro Plan and TransPlan Policies
7
8TransPlan, which was adopted to comply with Statewide Planning Goal 12
9(Transportation) and the TPR, calls for the city to designate nodes and to implement a nodal
10development strategy to reduce automobile dependence and increase use of other forms of
11transportation. Petitioner contends Ordinance 20418 violates a number of TransPlan
12Policies.
Land Use Policy #1: Nodal Development.
13“
14“Apply the nodal development strategy in areas selected by each jurisdiction
15that have identified potential for this type of transportation-efficient land use
16pattern.”
17Areas within the West and South University Neighborhoods are identified in TransPlan as
18potential nodes.
Land Use Policy #3: Transit-Supportive Land Use Patterns
19“.
20“Provide for transit-supportive land use patterns and development, including
21higher intensity, transit-oriented development along major transit corridors
22and near transit stations; medium- and high-density residential development
23within ¼ mile of transit stations, major transit corridors, employment centers,
24and downtown areas; and development and redevelopment in designated areas
25that are or could be well served by existing or planned transit.”
26Petitioner contends that the additional off-street parking mandated by Ordinance 20418 is the
27antithesis of “higher intensity, transit-oriented development along major transit corridors.”
“Land Use Policy #5: Implementation of Nodal Development
28
Page 27
1“Within three years of TransPlan adoption, apply the ND, Nodal Development
2designation to areas selected by each jurisdiction, adopt and apply measures to
3protect designated nodes from incompatible development and adopt a
4schedule for completion of nodal plans and implementing ordinances.”
5The Land Use Policy #5 three-year deadline to apply the ND designation and apply
14
6measures to protect nodes from incompatible development was requested by DLCD.
7According to petitioner, that three-year deadline expired four years ago and the city has yet
8to designate nodes. Petitioner contends that requiring additional off-street parking for
9multiple family development in areas of the city that have been identified as potential nodal
10development areas is inconsistent with the above TransPlan policies. In particular, petitioner
11argues that introducing such additional parking is inconsistent with the city’s obligation
12under Land Use Policy #5 to “protect designated nodes from incompatible development.”
13The city adopted the following findings to reject arguments that were presented to the
14city below that Ordinance 20418 is inconsistent with TransPlan’s nodal development
15policies:
16“* * * DLCD raises a concern that the increase in parking requirements for
17new multi-family developments in the West University and South University
18neighborhoods will encourage automobile use in the nodal area. Like the
19South University neighborhood, a portion of the West University
20neighborhood is identified in the TransPlan as being part of a ‘Potential Nodal
21Development Area,’ but no portion of the neighborhood has received the
22Nodal Development Area designation in the Metro Plan and no portion has
23been rezoned to include the /ND Nodal Development overlay zone.
24“It is not clear that any of the areas affected by the height and parking
25amendments will be designated and zoned as nodal areas for purposes of the
14
The text in TransPlan following Land Use Policy #5 explains:
“This policy was added at the request of the Department of Land Conservation and
Development Commission. The nodal development strategy anticipates a significant change
in development patterns within proposed nodes. Development of these areas under existing
plan designations and zoning provisions could result in development patterns inconsistent
with nodal development. This policy documents a commitment by the elected officials to
apply the new /ND nodal development Metro Plan designation and new zoning regulations to
priority nodal development areas within three years of TransPlan adoption, subject to
available funding.”
Page 28
12015 performance measure. The transition requirement applies only to the R-
23 * * * and R-4 * * * zoned land just south of the University* * *. Further,
3the building heights in the R-3 and R-4 zones would be restricted to 35 feet
4only for that portion of a building located within 160 feet from the abutting
5boundary of, or directly across an alley from, land zoned R-1, and building
6heights in the R-4 zone would be restricted to 50 feet only for that portion of a
7building located within 175 feet of land zoned R-3, and to 75 feet for a portion
8of a building greater than 175 feet and up to 225 feet from land zoned R-3.
9DLCD has not identified a basis for concluding that the proposed height
10transitions will unlawfully interfere with the region’s ability to meet its 23.3%
11performance standard and the City finds no such basis.Further, the City
12finds that the modest parking requirements are necessary to address excessive
13demand for on-street parking resulting from the increase in multi-family
14developments in the area and finds that the requirements do not conflict with
15any nodal policy, standard or criterion.” Record 30 (emphasis added).
16Petitioner first contends that the city cannot rely on its failure to take action to
17designate nodes within three years, as it promised to do in Land Use Policy #5, to relieve the
18city of any obligation to protect potential nodes from inappropriate development. We agree
19with petitioner on that point. However, in the findings emphasized above, the city also found
20that the amendments will not have the negative effect on the city’s ability to achieve desired
21residential densities and the city’s ability to meet the 23.3% nodal development performance
22standard that petitioner claims. Those findings also take the position that the modest amount
23of additional off-street parking that will be required under Ordinance 20418 does not conflict
24with the city’s nodal development policies. Petitioner neither acknowledges nor specifically
25challenges those findings.
26This subassignment of error is denied.
C. OAR 660-012-0035 and 660-012-0045
27
28 Petitioner argues that Goal 12 and its implementing administrative rule (the TPR)
29potentially apply directly to the challenged land use regulation amendment, by virtue of ORS
15
30197.835(7)(b) and EC 9.8065(1). Petitioner contends that although OAR 660-012-0060(1)
15
ORS 197.835(7)(b) provides that LUBA must reverse or remand an amendment to a land use regulation
if “[t]he comprehensive plan does not contain specific policies or other provisions which provide the basis for
Page 29
1describes one circumstance when local governments must apply the TPR when amending
2their land use regulations, it does not purport to describe the only circumstance where that
3may be the case.
4Amendments to comprehensive plan and land use regulation requirements that were
5adopted to comply with the TPR clearly might render the comprehensive plan or land use
6regulations inconsistent with the TPR, even if they do not have a “significant affect on a
7transportation facility,” as that concept is defined by OAR 660-012-0060(1). We agree with
8petitioner that in amending comprehensive plan and land use regulation requirements that
9were adopted to implement the TPR, the city is required to ensure that the amendments are
10consistent with the TPR and thus the TPR would apply directly to such amendments.
11The only TPR requirements that petitioner cites under this subassignment of error are
12OAR 660-012-0035(5) and OAR 660-012-0045(5). OAR 660-012-0035(5) authorizes
13alternative ways to reduce vehicle miles traveled and the city’s nodal development policies
14were adopted to implement 660-012-0035(5). We have already rejected petitioner’s
15challenge based on the city’s nodal development policies, and petitioner’s argument here
16adds nothing to the arguments we have already rejected.
17OAR 660-012-0045(5), among other things, requires the city to adopt land use
18regulations to reduce reliance on the automobile. Petitioner contends that OAR 660-012-
190045(5) requires that the city
20“have regulations that: allow transit-oriented development along transit
21routes; implement a demand management program to meet measureable
22standards in the TSP; achieves a 10% reduction in the number of parking
23spaces in the region over the planning period; and establishes ‘off-street
24parking maximums’ in downtown and other areas, among other things.”
25Petition for Review 24.
the regulation, and the regulation is not in compliance with the statewide planning goals.” EC 9.8065(1)
requires that amendments to the EC must be “consistent with applicable statewide planning goals adopted by
the Land Conservation and Development Commission.”
Page 30
1Although it seems unlikely to us that the prior maximum building height limits in the
2R-3 and R-4 zone played much of a role when the city’s comprehensive plan and land use
3regulations were acknowledged as complying with Goal 12 and the TPR, we cannot be sure
4that it played no role in facilitating “transit oriented developments (TODs) on lands along
5transit routes,” as OAR 660-012-0045(5)(a) requires. And in any event it seems entirely
6possible that the prior one off-street parking space requirement for multiple family dwellings
7played a role when the city’s comprehensive plan and land use regulations were
8acknowledged to comply with OAR 660-012-0045(5)(c)(A) requirement that the city have a
9parking plan which “[a]chieves a 10% reduction in the number of parking spaces per capita
10in the MPO.” Without expressing any view on whether those prior EC provisions were
11adopted to comply with the TPR or were relied on to secure acknowledgment, and without
12expressing any view on whether the disputed amendments adopted by Ordinance 20418 may
13cause the EC to be inconsistent with OAR 660-012-0045(5), we agree with petitioner that the
14city’s decision must be remanded so that the city can address those questions.
15This subassignment of error is sustained.
16The sixth assignment of error is sustained in part.
SEVENTH ASSIGNMENT OF ERROR
17
18 Under its seventh assignment of error, petitioner argues that Ordinance 20418
19violates Statewide Planning Goal 6 (Air, Water and Land Resources Quality). Goal 6 is set
20out below:
To maintain and improve the quality of the air, water and land
21“
resources of the state.
22
23“All waste and process discharges from future development, when combined
24with such discharges from existing developments shall not threaten to violate,
25or violate applicable state or federal environmental quality statutes, rules and
26standards. With respect to the air, water and land resources of the applicable
27air sheds and river basins described or included in state environmental quality
28statutes, rules, standards and implementation plans, such discharges shall not
29(1) exceed the carrying capacity of such resources, considering long range
Page 31
1needs; (2) degrade such resources; or (3) threaten the availability of such
16
2resources.”
3The amicus brief submitted in support of this assignment of error contends that Ordinance
420418 will contribute to global warming and violates Goal 6.
5Petitioner’s and amici’s thesis is relatively simple. The new lower maximum
6building heights in the R-3 and R-4 zones in the 16-block area will prevent development at
7the maximum densities allowed in the R-3 and R-4 zones in the 16-block area next to the
8university and thereby reduce the capacity of that area to provide housing. According to
9petitioner, this means “some portion of the student population will have to live further away
10from the university,” and petitioner speculates that these displaced students will drive to
11school, rather than walk or ride their bikes, and thus add to air pollution and global warming.
12Petition for Review 25. With regard to the increased off-street parking required by
13Ordinance 20418, petitioner contends that the additional off-street parking spaces will
14displace bedrooms and increase auto commuting with resulting air quality and global
15warming impacts. According to petitioner, “[w]ithin the development envelope on any site,
16there is a simple trade-off between bedrooms for students and bedrooms for cars.” Id. at 26.
17Finally, petitioner argues that with more off-street parking spaces more students who do not
18have cars now, because they are discouraged by the lack of off-street parking, will be
19encouraged to get cars and drive them.
20If petitioner’s and amici’s thesis had support in the evidentiary record, we would
21likely require the city to better explain why it believes the changes adopted by Ordinance
2220418 are small and will not have air quality impacts that could reasonably be expected to
23implicate Goal 6. But petitioner’s and amici’s thesis has little or no support in the
24evidentiary record. As we have already explained, the reduced three step-ups in maximum
16
Petitioner also cites three Metro Plan Policies that petitioner contends were adopted to implement Goal
6, but petitioner does not argue that those policies impose requirements that are not imposed by Goal 6.
Page 32
1building height adopted by Ordinance 20418 will not make it impossible for developers of
2affected multiple family development to achieve the maximum allowed densities in the R-3
3and R-4 zone. There is simply no credible evidence to support petitioner’s contention to the
4contrary.
5With regard to the additional off-street parking required by Ordinance 20418, as we
6have already explained, the evidentiary record does not support a conclusion that those
7additional parking spaces will prevent development from achieving the maximum densities
8allowed in the R-3 and R-4 zones. In some cases those additional parking spaces may
9require that parking be put underground to achieve the maximum allowed densities, but
10petitioner’s apparent assumption that parking spaces and bedrooms are a one-to-one tradeoff
11is not supported by the evidentiary record. Finally, as we have already explained, there is
12some evidence in the record that the students that occupy the multi-bedroom apartment units
13that are the target of the new off-street parking requirement already have cars and will not be
14induced to bring their cars to the neighborhood for the first time by the new off-street parking
15requirements. There is no credible evidence that a material number of students are
16discouraged from bringing their cars under the current limited requirement for off-street
17parking and would be induced to bring their cars to the neighborhood by the new off-street
18parking standard.
19Before the city is obligated to consider whether a land use regulation amendment
20implicates its obligations under Goal 6 to ensure that the amendment will not lead to
21violation of air quality standards, there must be at least some minimal basis for suspecting
22that the land use regulation amendment will have impacts on air quality that would threaten
23to violate air quality standards. In this case, petitioner’s unsupported assumptions
24concerning the impacts of Ordinance 20418 failed to provide such a minimal basis for
25suspecting Ordinance 20418 would have any significant impact on air quality, much less that
Page 33
1any such impacts would threaten to violate applicable state or federal environmental quality
2statutes, rules and standards.
3The seventh assignment of error is denied.
EIGHTH ASSIGNMENT OF ERROR
4
5 Petitioner’s eighth assignment of error challenges Ordinance 20417. Section 17 of
6Ordinance 20417 amends EC 9.6790 by adding a new subsection (6) to EC 9.6790. EC
79.6790 was enacted by a prior ordinance that was not appealed—Ordinance 20369.
8Ordinance 20369 was adopted on June 14, 2006 and took effect on July 14, 2006. EC 9.6790
9is set out below, with the new subsection (6) that was added by section 17 of Ordinance
1020417 shown in italics:
Stormwater Management Manual
11“. In order to implement Section 9.6791
12through 9.6797 of this code, the City Manager shall adopt in accordance with
13EC 2.019, City Manager – Administrative and Rulemaking Authority and
14Procedures, a Stormwater Management Manual. The Stormwater
15Management Manual may contain forms, maps and facility agreements and
16shall include requirements that are consistent with the following goals:
17“(1) Reduce runoff pollution from development by reducing impervious
18surfaces and capturing and treating approximately 80% of the average
19annual rainfall.
20“(2) Control and minimize flows from development in the Headwater
21Areas using a variety of techniques to release water to downstream
22conveyance systems at a slower rate and lower volume, thereby
23reducing the potential for further aggravation of instream erosion
24problems.
25“(3) Emphasize stormwater management facilities that incorporate
26vegetation as a key element, and include design and construction
27requirements that ensure landscape plant survival and overall
28stormwater facility functional success.
29“(4) Operate and maintain stormwater management facilities in accordance
30with facility-specific O & M Plans.
31“(5) Reduce pollutants of concern that are generated by identified site uses
32and site characteristics that are not addressed solely through the
33pollution reduction measures by implementing additional specific
34source control methods including reducing or eliminating pathways
Page 34
1that may introduce pollutants into stormwater, capturing acute
2releases, directing wastewater discharges and areas with the potential
3for relatively consistent wastewater discharges to the wastewater
4system, containing spills on site, and avoiding preventable discharges
5to wastewater facilities, surface waters or ground waters.
6“6.Except as otherwise allowed by this land use code, allow disturbances
7or development within drainage ways only when all of the following
8conditions exist:
9“(a) The disturbance or development will not impede or reduce
10flows within the drainage way;
11“(b) The disturbance or development will not increase erosion
12downstream; and
13“(c) The constructed pipe system is sized to convey all of the runoff
14from the upstream watershed when the upstream watershed is
15completely developed.”
16 According to the city, EC 9.6790(1) through (5) has been an acknowledged part of
17the EC since 2006. In addition, at about the same time that EC 9.6790(1) through (5) was
18adopted by Ordinance 20369 on June 14, 2006, the City Manager adopted the Stormwater
19Management Manual that EC 9.6790(1) through (5) calls for. According to the city, that
20Stormwater Management Manual was submitted to DLCD following post acknowledgment
21procedures and is now deemed acknowledged. In this assignment of error, petitioner
22challenges the city’s decision to add subsection (6) to EC 9.6790.
A. Improper Delegation to the City Manager
23
24 Petitioner first argues that Ordinance 20417 improperly delegates the legislative task
25of fleshing out the directive in EC 9.6790(6) to the City Manager, which will be adopted by
26the city by administrative rule making rather than by ordinance. Petitioner contends that this
27delegation is improper and violates ORS 227.186(2). ORS 227.186(2) directs that “[a]ll
28legislative acts relating to comprehensive plans, land use planning or zoning adopted by a
29city shall be by ordinance.”
Page 35
1 The city responds that Ordinance 20417 did not delegate responsibility for adopting a
2Stormwater Management Manual to the City Manager. That delegation was accomplished
3by Ordinance 20369, which is not subject to review in this appeal of Ordinance 20417.
4According to the city, if petitioner believes the delegation is legally improper, petitioner may
5challenge the City Manager’s next exercise of rulemaking under in EC 9.6790. We agree
6with the city.
7 This subassignment of error is denied.
B.Petitioner’s Remaining Arguments
8
9Petitioner contends that EC 9.6790(6) violates the OAR 660-008-0015 and ORS
10197.307(6) requirements that approval standards that are applied to development of needed
17
11housing must be clear and objective. Petitioner also argues that even if the EC 9.6790(6)
12standards are clear and objective, they are impossible to comply with and render the city’s
13clear and objective route for approval of needed housing illusory.See Home Builders Assoc.
14v. City of Eugene, 41 Or LUBA 370, 420 (2002) (where a local government adopts both a
15clear and objective and optional discretionary approval standards under ORS 197.307(3)(d),
16the option to seek approval of needed housing under clear and objective standards is illusory
18
17if those clear and objective standards are impossible to satisfy). Finally, petitioner argues
17
OAR 660-008-0015 provides as follows:
“Local approval standards, special conditions and procedures regulating the development of
needed housing must be clear and objective, and must not have the effect, either of
themselves or cumulatively, of discouraging needed housing through unreasonable cost or
delay.”
The text of ORS 197.307(6) was set out earlier at footnote 10.
18
ORS 197.307(3)(d) provides:
“In addition to an approval process based on clear and objective standards as provided in
paragraph (b) of this subsection, a local government may adopt an alternative approval
process for residential applications and permits based on approval criteria that are not clear
and objective provided the applicant retains the option of proceeding under the clear and
objective standards or the alternative process and the approval criteria for the alternative
process comply with all applicable land use planning goals and rules.”
Page 36
1the city erred by failing to assess the impact of EC 9.6790(6) on the city’s inventory of
2residential, commercial and industrial lands. Petitioner contends EC 9.6790(6) will render
3much of that land unbuildable and leave the city with an inadequate supply of land for
4residential, commercial and industrial development.
5The city responds that petitioner misreads the legal effect of EC 9.6790(6). As
6originally enacted, EC 9.6790 directed the City Manager to adopt a Stormwater Management
7Manual that was consistent with the goals set out at EC 9.6790(1) through (5). Ordinance
820417 does not change EC 9.6790(1) through (5) in any way. As we have already noted, the
9City Manager has adopted a Stormwater Management Manual. All that Ordinance 20417
10does is add some additional goals that the City Manager must consider. The goals set out in
11EC 9.6790(6) do not themselves apply to needed housing and because they do not apply to
12needed housing they could not be impossible to comply with. Neither do they have any
13effect on the city’s inventory of residential, commercial or industrial lands. The City
14Manager’s action to implement EC 9.6790(6) may have all of those effects and may run afoul
15of OAR 660-008-0015, the needed housing statutes, and the city’s obligation to ensure an
16adequate supply of land for residential, commercial and industrial development. However,
19
17EC 9.6790(6) itself does not have any of those effects.
18The eighth assignment of error is denied.
NINTH ASSIGNMENT OF ERROR
19
20 ORS 227.186(4) and (5) impose detailed statutory notice requirements, commonly
21known as “Ballot Measure 56 notice,” for city decisions that rezone property. Under its
22ninth assignment of error, petitioner argues that both Ordinance 20417 and 20418 “rezoned”
19
The parties suggest that the City Manager may have adopted standards in the Stormwater Management
Manual like those that are required by Ordinance 20417 before Ordinance 20417 was adopted. Even if that is
the case, that does not change the legal effect of Ordinance 20417.
Page 37
20
1property, within the meaning of ORS 227.186(9)(b). Petitioner questions whether the
2notice required by ORS 227.186 was given. We understand petitioner to argue the city
21
3should have given the notice required by ORS 227.186(5) and failed to do so. Intervenor-
4petitioner claims that he “did not receive the individual notice required by ORS 227.186.”
5Brief of Intervenor-Petitioner 1-2.
6 Given the broad ORS 227.186(9) definition of “rezoned,” we agree with petitioner
7that the amendments adopted by Ordinance 20418 “rezoned” property.See n 21. However,
8given the limited legal effect of the amendment adopted by section 17 of Ordinance 20417,
9we do not agree that section 17 of Ordinance 20417 rezoned property. That is the only
10section of Ordinance 20417 that petitioner argues rezoned property. Because Ordinance
1120418 rezoned property, the city was required to give the individual written notice required
12by ORS 227.186(4) and (5) for Ordinance 20418.
13 ORS 227.186(4) requires that “individual written notice” “be mailed to the owner of
14each lot or parcel of property that [an] ordinance proposes to rezone.” That individual
15written notice must be mailed “[a]t least 20 days but not more than 40 days before the date of
22
16the first hearing.” ORS 227.186(5) sets out fairly detailed requirements with which the
23
17notice must “substantially” comply.
20
ORS 227.186(9) provides:
“For purposes of this section, property is rezoned when the city:
“(a) Changes the base zoning classification of the property; or
“(b) Adopts or amends an ordinance in a manner that limits or prohibits land uses
previously allowed in the affected zone.”
21
Petitioner cites ORS 227.186(6) rather than ORS 227.186(5). However, as the city correctly notes, the
detailed notice requirements of ORS 227.186(6) apply to amendments pursuant to periodic review. The
amendments adopted by Ordinances 20417 and 20418 were not adopted pursuant to periodic review. The
detailed notice requirements of ORS 227.186(4) and (5) apply to Ordinances 20417 and 20418, assuming they
rezoned property.
22
ORS 227.186(4) provides:
Page 38
1 The city responds that it mailed individual written notice to all property owners
2within the West University and South University Neighborhoods. Record 958-76. The list
3of those property owners who were mailed individual written notice includes intervenor-
24
4petitioner. Record 965. The city contends that its notice was mailed 30 days before the
“At least 20 days but not more than 40 days before the date of the first hearing on an
ordinance that proposes to rezone property, a city shall cause a written individual notice of a
land use change to be mailed to the owner of each lot or parcel of property that the ordinance
proposes to rezone.”
23
ORS 227.186(5) provides:
“An additional individual notice of land use change required by subsection (3) or (4) of [ORS
227.186] shall be approved by the city and shall describe in detail how the proposed
ordinance would affect the use of the property. The notice shall:
“(a) Contain substantially the following language in boldfaced type across the top of the
face page extending from the left margin to the right margin:
“_________________________________________________________________________
“This is to notify you that (city) has proposed a land use regulation that may affect the
permissible uses of your property and other properties.
“__________________________________________________________________________
“(b) Contain substantially the following language in the body of the notice:
“__________________________________________________________________________
“On (date of public hearing), (city) will hold apublic hearing regarding the adoption of
Ordinance Number_____. The (city) has determined that adoption of this ordinance may
affect the permissible uses of your property, and other properties in the affected zone, and
may change the value of your property.
“Ordinance Number _____ is available for inspection at the ______ City Hall located
at________.A copy of Ordinance Number _____ also is available for purchase at a cost
of_____.
“For additional information concerning Ordinance Number_____, you may call the (city)
Planning Department at ___-___.”
__________________________________________________________________________”
24
The statute requires that the city mail notice to property owners, it does not require that the mailed notice
actually be received. Therefore, intervenor-petitioner’s claim that he did not receive individual written notice is
not sufficient to show a violation of ORS 227.186. In any event, as the city points out, intervenor-petitioner
Page 39
1initial hearing, which is within the time required by ORS 227.186(4) and that the notice
2substantially complied with the content requirements of ORS 227.186(5).
3The individual written notice that the city gave in this matter was given within the
4deadline specified in ORS 227.186(4). Petitioner offers no reason to question the city’s
5assertion that all affected property owners were mailed individual written notice. Neither
6does petitioner make any attempt to argue that the individual written notice that the city
7mailed in this matter did not substantially comply with the substantive requirements of ORS
8227.186(5). Indeed petitioner’s entire substantive argument in support of this assignment of
9error is that “[i]t is not clear from the record that the required notice was given for either of
10the ordinances.” Petition for Review 48.Petitioner’s argument under this assignment of
11error is not sufficiently developed to demonstrate error.
12 The ninth assignment of error is denied.
13 Our resolution of the fifth and sixth assignments of error require that Ordinance
1420418 be remanded. Ordinance 20417 is affirmed.
was aware of the local proceedings that led to adoption of both ordinances and intervenor-petitioner
participated in those proceedings.
Page 40