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HomeMy WebLinkAboutCorrespondence APPLICANT 8/17/2005 RUG 17 2005 10: 01RM LAW OFFICE OF HILL KLOOS 541 -344-9502 p- 1 TA- LAW OFFICE OF BILL KLOOS, PC 1i AUG ;D U 1 r y �aD� 375 W.4"SL,SUITE 204 OREGON LAND USE LAW _ EUGENE,OR 97401 rJ PO BOX 11906 ,/� EUGENE,OR 97440 By � D p� �� • TEL(541)914-4157 FAX(541)343-8702 EMAIL OANTERRELLGLANDUSEOREGON.COM FAX TRANSMITTAL SHEET t--)fcat I -p I am transmitting - 8 -page(s), including this cover sheet. From: Dan Terrell Date: August 17, 2005 Re: SHR2005-00004 (Marvin)—Willamette Greenway Setback Line Application To: Colin Stephens; via fax: (541) 726-3689 Cohn: Attached are Applicant's additional materials for the Marvin Willamette Greenway Setback Line Application, addressed to the Hearings Official. I am e-mailing a copy of this letter to Gary and to you. In the letter is a request to keep the record open an additional 3 weeks, to September 7, 2005, so that Mike Shippey can prepare a precise delineation of the proposed Setback Line. Please let me know if you have any questions or other concerns. Dan • AUG 17 2005 10: 01RM LAW OFFICE OF BILL KLOOS 541 -344-9502 p. 2 • • • _ LAW OFFICE OF BILL KLOOS, PC 375 W.4th St.,SUITE 204 OREGON LAND USE LAW EUGENE,OR 97401 PO BOX 11906 EUGENE,OR 97440 TEL(541)9144167 FAX(541)343-6702 E-MAIL DANTERRELL®LANDUSEOREGON.COM August 17, 2005 Gary Damielle, Hearings Official Springfield Development Services Dept. 225 Fifth Street Springfield, OR 97477 Re: Request of Establishment of the Willamette Greenway Setback Line, Case Number SHR2005-00004 (Marvin) Dear Hearings Official: This letter is submitted on behalf of Phil Marvin, the Applicant in this matter. Three issues raised during the public hearing and in the staff report for the hearing warrant a response by the Applicant. The issues discussed below, under separate headings, concern: the precise delineation of the Willamette Greenway Setback Line, which includes an additional request to keep the record open; the City's argument that the setback line should be at least 20 feet from the top of the riverbank; and additional arguments as to why the proposed Setback Line satisfies the approval criteria. • Applicant understands that, during the proceedings, Mr. Stevens agreed that there was no need to cite specific SDC development provisions in a decision that establishes a Willamette Greenway Setback Line, so long as the decision mentions that there are additional development standards, to include setback standards, that will apply to any future development on this property. Because the Applicant agrees with this approach, as opposed to the approach presented in Recommendation(1) in the August 3, 2005, Hearings Official Public Hearing Transmittal Memorandum, no additional discussion of this issue is included here. I. Delineation of Setback Line and Request to Keep the Record Open During the public hearing, you expressed concern about the vagueness of the proposed Willamette Greenway Setback Line presented in the application materials. You expressed an interest in having that line be precisely defined to avoid any confusion as to its location in any future development application proceedings. The Applicant agrees that a more precise identification of the Setback Line would be beneficial in the long run. We have contacted Michael Shippey of Coyote Creek Environmental Services, Inc. about how to best identify the setback line. His recommendation was for him to go out and stake the line, and then have the line either surveyed or established with GPS coordinates. The end result of either approach would be to have a precise line with identified points plotted on a plan and possibly RUG 17 2005 10: 01RM LRW OFFICE OF BILL KLOOS 541 -344-9502 p. 3 • • • Gary Darnielle,Hearings Official August 17, 2005 Page 2 of 7 also,included in a metes and bounds description of the setback line. Mr. Shippey informed us that this work could be done within approximately 3 weeks. The Applicant hereby requests that the Hearings Official grant an extension of 3 weeks,to Wednesday, September 7, 2005, for the record to be kept open in this matter so that a precise delineation can be prepared and entered into the record. The method of delineation will be via either survey or through GPS coordinates as described above. The precise delineation should address the concerns expressed by you about the materials currently in the record. IL Glenwood Refinement Plan "Willamette River Site Development Guidelines" Staffs Recommendation (2) from the Hearings Official Public Hearing Transmittal Memorandum proposes that the Hearings Official apply the Glenwood Refinement Plan Willamette River Site Development Guidelines and establish the setback line a minimum of 20 feet from the top of the bank on the subject property. The Hearings Official should not follow the staffs recommendation for because the Glenwood Refinement Plan provision cited by staff is not applicable to this application. First, nothing in SDC 25.060, the Greenway Setback approval criteria, invokes any of the policies or other provisions of the Glenwood Refinement Plan(or any other refinement plan) as an approval criterion for this application. The only outside source referenced in SDC 25.060 is Section C.3 of the Willamette River Greenway Goal 15, with which the Greenway Setback Line must be consistent. The Goal 15 provisions mirror the criteria provided by SDC 25.060. Simply put, the Glenwood Refinement Plan is not an approval criterion and should not be applied to this proposal. Second, the Glenwood Refinement Plan Willamette River Site Development Guidelines do not apply,by its express language, to this application. The provision states that it applies to "development within the Greenway in the Glenwood area until the City establishes a Glenwood Greenway Setback Line[.]" Staff Report,page 8. As I explained at the hearing, this provision of the Glenwood refinement plan establishes a default standard that applies to development close to the Willamette River until the Setback Line is established. The express language of the provision states that it applies only until the line is established. What this application does is establish the Setback Line. The Glenwood Refinement Plan Willamette River Site Development Guidelines do not require that the established Setback Line be a minimum of 20 to 35 feet, it provides that, when a Setback Line has not been established; the presumptive setback will be 20 to 35 feet. This provision is not a standard for the establishment of the Setback Line. At the public hearing, staff referred to the definition of"Development" in the SDC to support Recommendation(2). The SDC definition of Development provides: RUG 17 2005 10: 01RM LAW OFFICE OF BILL KLOOS 541 -344-9502 p. 4 • • • Gary Danielle, Hearings Official August 17, 2005 Page 3 of 7 "Any human-made change to improved or unimproved real estate, including but not limited to a change in use; construction, installation or change of a structure; subdivision and partition; establishment or termination of a right of access; storage on the land; drilling and site alteration such as that due to land surface mining, dredging,paving, excavation or clearing of trees and vegetation. Agricultural uses (including agricultural structures), when otherwise permitted by the underlying zoning district, shall be exempt from this definition except when agricultural structures are placed within adopted special flood hazard zones. As used in Article 27, FP Floodplain Overlay District, any human-made change to improved or unimproved real estate, including, but not limited to buildings or other structures, mining, dredging, filling, grading,paving, excavation, or drilling operations located within the area of special flood hazard." The current application, to establish the Greenway Setback Line on the property is not development as that term is defined in the SDC. Again, the express language of the Glenwood Refinement Plan Willamette River Site Development Guidelines states that it applies only to • development within the Greenway. The cited standard is not applicable to this proposal. For the reasons provided above, the Hearings Official should conclude that the Glenwood Refinement Plan Willamette River Site Development Guidelines do not constitute approval criteria for this application and should base the determination of the Setback Line solely on the criteria provided by SDC 25.060. III. Additional Explanation Relating to Approval Criteria During the public hearing, you suggested that the Applicant provide additional explanation as to why the proposed line has been established where it is to help you prepare findings that can address the variations in the width of the proposed Greenway Setback Line along the subject property. As is evident from the "Report of Findings: Site Inventory of Natural Features" prepared by Coyote Creek Environmental Services, Inc., criterion (6), "the natural vegetative fringe along the river shall be enhanced and protected to the maximum extent practicable," has been the most significant criterion for the proposed Setback Line. However, the Setback Line adequately addresses the concerns raised by the criteria, and is appropriate due to the other reasons provided below. (I)Local, regional and State recreational needs shall be provided for consistent with the carrying capacity of the land. The possibility that public recreation use might disturb adjacent property shall be considered and minimized to the greatest extent possible. The Applicant agrees with the Staff Report analysis defers to Willamalane Parks and Recreation District regarding the location of parkland on the property and that it has not selected this AUG 17 2005 10: 02RM LAW OFFICE OF HILL KLOOS 541 -344-9502 p. 5 • • Gary Danielle, Hearings Official August 17, 2005 Page 4of7 property as a parkland site. Consequently, the proposal does not involve the use of the site for local, regional or state recreational needs because the property has not been designated for that use. The Applicant recognizes that incidental, non-parkland recreational use may occur along the River as part of a bicycle path envisioned in the Glenwood Refinement Plan. This is more of a public access issue, which is addressed immediately below. (2)Adequate public access to the river shall be provided. The proposed Setback Line is approximately 140 feet on the southern end of the site,near Franklin Boulevard and the Willamette River Bridge, and narrows as it progresses northward along the river, sometimes becoming as narrow as 10 feet from the top of bank. The only public street access to the site is along Franklin Boulevard, near the widest section of the proposed Setback Line. Because all street traffic must enter from that location, it is appropriate for the greatest setback line to be located near there to provide an attractive entrance for the public to access the Greenway and the proposed bicycle path. People traveling by bicycle across the Willamette River will be able to immediately access the Greenway and bicycle path at this point. As is evident above, the Applicant and City disagree about what the minimum width of the Setback Line should be. The City argues that a 20-foot setback from the top of bank is needed to facilitate a bicycle path. Because of the location of the property, development related to any future use of the property will have to receive a discretionary land use approval. Applicant believes that it is through such a development application process that the City should properly exact or purchase the bicycle path footprint, not at the time the Setback Line is established. Such exaction would not require an expansion of the Greenway Setback Line, it can be established adjacent to the Setback Line.' In addition,public access to the Greenway can be provided through the property at locations other than the southern end of the property, at the time development is proposed if such access meets the Dolan.requirements. In any event,the City has adequately explained how any of several other setback requirements provided in the code will limit how close buildings or other physical structures can located to the Greenway. Although one or more of those standards may change in the future, it is unlikely that all of them will change before development occurs on the site. Consequently, adequate space between physical development on the site and the Greeway will be provided to facilitate public access to and along the Greenway. As Mr. Moe requested at the hearing, the Hearings Official should consider affording as much 'Although not an issue to be resolved here, the Applicant has some concern about whether a bicycle path is a"water dependent" or "water related" use as those terms are defined by the statewide planning goals and whether such a use is appropriately located within the Greenway Setback Line. • RUG 17 2005 10: 02RM LRW OFFICE OF BILL KLOOS 541 -344-9502 p. G • • Gary Darnielle, Hearings Official August-17, 2005 Page 5 of 7 flexibility as possible for future development on the subject property when establishing the Setback Line. The narrowest portions of the Setback Line are along the northern strip of the subject property, where the site itself narrows to a point. In that northern area of the site, a minimal Setback Line is appropriate. The establishment of a deep Setback Line will have a disproportionate adverse effect on development options in that area of the property, yet not provide any enhanced public access to the Willamette River. The tapered narrowing of the Setback Line, from south to north, facilitates public access to the river as well as allows for development of the northern most portions of the site. (3) Significant fish and wildlife habitats shall be protected. The Coyote Creek Environmental Study notes, consistently with the Glenwood Refinement Plan, that there are no significant fish and wildlife habitat on or along the property. The proposed Setback Line would preserve all of the riparian vegetation along the Willamette River to provide as much protection of fish and wildlife as exists now. The Applicant does not propose the removal of any of the riparian habitat that forms the habitat for the wildlife species identified in the study. The study notes that there is no wildlife habitat in the mown meadow and scattered trees matrix portion of the property. Protection of all the relevant fish and wildlife habitat on the property satisfies this criterion. (4)Identified scenic qualities and view points shall be preserved. As noted in the staff report and the Coyote Creek Environmental Study, the site is generally visible from the Willamette River Bridge and from a few locations from Day Island Park. The widest portions of the proposed Setback Line, on the southern end of the site, provide a vegetative face to travelers on the bridge and across the Willamette River. The northern portions of the river front lie across a vegetative island in the Willamette River, as is evident in the most recent aerial photographs included in the Coyote Creek Environmental Study. Because that island screens the northern portion of the site, a greater vegetative Setback Line is not needed for scenic quality purposes. Thus the scenic qualities of the site will be preserved from the Willamette River Bridge and from across the river. The proposed Setback Line also preserves view-points from the subject property to the River and to Day Island Park. None of these view-points will be disturbed. Consequently, this standard is met. (5) The maintenance of public safety and protection ofpublic and private property, especially from vandalism and trespass shall be provided for to the maximum extent practicable. The subject property has had a history of trespass and vandalism, largely as a result of vagrants camping in the vegetative portions of the property. At first glance, this criterion would suggest reducing the Setback Line in the southern area of the property to minimize the opportunities for • RUG 17 2005 10: 03RM LAW OFFICE OF BILL KLOOS 541 -344-9502 p. 7 •• • Gary Damielle,Hearings Official • August 17, 2005 Page 6 of 7 trespass and vandalism in those areas of the property where it is most prevalent. However, the proposed Setback Line balances this criterion with criterion (6), which proposes protecting the natural vegetative fringe to the maximum extent practicable. The large vegetative area of the south, where most trespass and vandalism occurs, is preserved. The vandalism that may arise when the site is developed in the future will be mitigated somewhat by how development is likely to occur on the property. Because access to the property is from the south and the southern portion of the property is the widest on the site, the southernmost area closest to the Greenway Setback Line will likely not have buildings close to the Greenway area that could be subject to vandalism. Even if development occurs near the Setback Line, there is sufficient space on this portion of the property to design mitigation measures into the development. Also of note is that the southern part of the property is visible from Franklin Boulevard and from the bridge. This affords that area a better opportunity for security monitoring than areas farther north. The more northern portions of the property, where the Setback Line narrows, provide less flexibility for the location of future development. Consequently,buildings will more likely be set closer to the setback line than in the southern portions of the site. Also, the northern portion of the property is furthest away from public view, and will be more difficult to monitor for security. There, vast areas of vegetation could invite vagrant camping and related vandalism. Consequently, it is appropriate for the Setback Line to narrow as it moves northward along the Willamette River. The configuration of the proposed Setback Line strikes an appropriate balance between this criterion and the next. (6) The natural vegetative fringe along the river shall be enhanced and protected to the maximum extent practicable. As noted in the Coyote Creek Environmental Study, the natural vegetative fringe along the Willamette River will be protected—none of the fringe will be removed. Furthermore, although the study indicates that the actual vegetative fringe is typically 0 feet to 8 feet in some areas of the property, the minimum Setback Line from the top of bank will be 10 feet. As the study notes, this widened area could be enhanced by the planting of additional native species typically found in a riparian setting. (7) The location of known aggregate deposits shall be considered. Aggregate extraction may be permitted outside the Greenway Setback Area subject to compliance with State law, the underlying district and conditions of approval designed to minimize adverse effects on water quality,fish and wildlife, vegetation, bank stabilization, stream flow, visual quality, quiet and safety and to guarantee reclamation. Staff concurs with the Applicant that this criterion is not applicable in this instance because there RUG 17 2005 10: 03RM LAW OFFICE OF BILL KLOOS 541 -344-9502 p. 8 • • Gary Darnielle, Hearings Official August 17, 2005 Page 7 of 7 are no known aggregate deposits on the property. (8)Developments shall be directed away from the river to the greatest possible degree; provided, however, lands committed to urban uses shall be permitted to continue as urban uses, including port,public, industrial, commercial and residential uses, uses pertaining to navigational requirements, water and land access needs and related facilities. Applicant has noted that this proposal does not contain a development proposal; therefore this criterion is not applicable here. However, as the Staff Report indicates, any future development • proposal will be subject to discretionary review because it is located within 150 feet of the ordinary low water mark of the Willamette River. Because development will occur under either/or the Discretionary Use provisions, SDC Article 10, or the Site Plan Review Standards, SDC Article 31, and each invokes compliance with applicable refinement plan policies, among others, development must be consistent with those policies and standards. The Staff Report demonstrates that those standards impose requirements that any development on the property be sensitive to Greenway concerns, which include the orienting of development. Consequently, future development will be directed away from the river to the greatest degree possible to comply with the applicable development standards. IV. Conclusion The Applicant has requested that the record be left open for an additional three weeks, until September 7,2005, in order for the applicant to prepare and submit materials that will precisely document the location of the proposed Setback Line. With that material and the material submitted here and with the application, the Hearings Official has sufficient evidence before him to conclude that the proposal satisfies all of the applicable standards provided by SDC 25.060, The Hearings Official should approve the Willamette Greenway Setback Line as proposed, or to reasonably condition the approval so that it satisfies each of the applicable criteria. Thank you for your consideration. Sincerely, Dan Terrell cc: Client Colin Stephens