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HomeMy WebLinkAboutCorrespondence APPLICANT 9/1/2005 • • LAW OFFICE OF BILL KLOOS, PC 375 W.4/'Si,SUITE 204 OREGON LAND USE LAW EUGENE,OR 97401 PO BOX 11906 EUGENE,OR 97440 TEL(541)914-4167 FAX(541)343-8702 E-MAIL DANTERRELL @LANDUSEOREGON.COM August 31, 2005 Gary Danielle, Hearings Official Rr'.+CE1 TED Springfield Development Services Dept. SEP 1 '2005 225 Fifth Street Springfield, OR 97477 BY: 64- _ Re: Applicant's Final Argument—Willamette Greenway Setback Line Case SHR2005-00004 (Marvin) i ' ' • • - Dear Hearings Official: L-6"1/1A- 41911A-clud This letter is submitted on behalf of Phil Marvin, the Applicant, and constitutes the Applicant's final argument in this matter. Generally, the City attempts to apply criteria not contained in the Springfield Development Code (SDC) provision for establishing the Greenway Setback Line, and otherwise seeks to inject standards and considerations directed towards development within the greater Willamette Greenway Overlay District into a proceeding that concerns the location of the Greenway Setback Line. In short, the City is overreaching. The Hearings Official should apply the standards provided by SDC 25.060 and establish the Greenway Setback Line at the location proposed by the Applicant. After reviewing the City's August 26, 2005 arguments, I perceive that both parties have spiraled into ever more detailed arguments that draw upon snippets of code and plan language to support each argument but that, in the end, lose the forest for the trees. Most importantly, some arguments appear to be inconsistent with Goal 15 even though the argument appears rational when examined against the quoted snippet. Consequently, this letter begins by taking a step back and looking at the big picture of the legal framework surrounding the Willamette Greenway and the Greenway Setback Line, and, consequently, this application. The letter then addresses the particular arguments presented in the City's memorandum and then returns to the issue of whether or not the application satisfies the approval criteria provided by SDC 21060 The Willamette Greenway Overlay District Versus the Willamette Greenway Setback Line The first thing to recall is that the Willamette Greenway Overlay District (Goal 15 and ORS 390.318 use the term Willamette River Greenway) is not the same as the Willamette Greenway Setback Line. They are two different designations with different standards for allowed uses. They have different purposes and they serve different functions. This application affects only the location of the Willamette Greenway Setback Line. The Willamette Greenway Overlay District applies to all lands which are within 150 feet of �.. • • Hearings Official August 31, 2005 Page 2of8 the ordinary low water line on the channel of the Willamette River, or are adjacent to the river and are publicly owned for park and recreational purposes. See SDC 25.020; Goal 15, C. 2. Boundary Considerations and Requirements, note 2, and F.3a.; and ORS 390.318(1). The uses allowed in the Willamette Greenway Overlay District are the same as those in the underlying zoning districts, except for those areas that are also within the Greenway Setback Area established by the Willamette Greenway Setback Line. SDC 25.050. Note that Goal 15 and its administrative rules generally do not limit the uses that are allowed in the Willamette River Greenway other than to require that uses be consistent with the purposes of Goal 15. Development within the Willamette Greenway Overlay District is subject to review under SDC Article 31, Site Plan Review Standards and the Standards of SDC Article 25 WG Willamette Greenway Overlay District. SDC 25.040. Furthermore, additional applicable development standards are provided by the Discretionary Use criteria of SDC 10.030. SDC 25.070. The Willamette Greenway Setback Line defines a subset of the area contained in the Willamette Greenway Overlay District. The Greenway Setback Line defines an area where uses and development are more stringently regulated. Development within the Greenway Setback Line is limited to water-dependent or water-related uses. SDC 25.060; Goal 15, C.3.k. Greenway Setback. Consequently, the uses allowed within the Greenway Setback Line are substantially fewer than those allowed in adjacent areas, which are subject the additional requirements of only the Willamette Greenway Overlay District. As noted above, this application affects only the location of the Willamette Greenway Setback Line, which will provide the minimum setback distance from the top of the river bank that non- water-dependent/water-related uses can be located. However, that does not mean that buildings or other structures will be located at the minimum setback line as the City's argument seems to suggest. That is because the property outside the Willamette Greenway Setback Line remains within the Willamette Greenway Overlay District and any development proposal in that area will have to demonstrate compliance with the relevant discretionary approval standards, which are extensive. What types of standards will apply to development within the portion of the Willamette Greenway Overlay District that is outside of the Greenway Setback Line? First, all of the SDC 25.060 approval standards, even those that are not applicable to this Greenway Setback Line application because the standard addresses development issues, will apply to any development application because they are expressly invoked by SDC 25.070. That means, for example, that development shall be directed away from the river to the greatest degree possible (SDC 25.060(8)), and that the development proposal will still have to consider state, regional and local recreational needs (SDC 25.060(1)). The City's concern that this is the last time those considerations will ever be applied to development of this property is misguided. Second, the discretionary use criteria of approval provided under SDC 10.030 are comprehensive. They invoke the MetroPlan and relevant refinement plans (1), site suitability considerations (2), and mitigation for adverse impacts (3). The mandatory approval standards are • • Hearings Official August 31, 2005 Page 3 of 8 broad and offer the decision maker extreme discretion to deny or condition a proposal that the decision maker finds unsuitable for the Willamette Greenway. Third, the site plan review provisions of SDC Article 31 provide a litany of tools which ensure that the City will have a handle on development within the Willamette Greenway Overlay District. Detailed information requirements are mandated by SDC 31.050; review criteria provided by SDC 31.060; and conditions of approval discussed in SDC 31.070. Of particular significance is SDC 31.070(1) which provides that site plan review conditions of approval may include, "Dedication of right of way when shown in TransPlan." Consequently, the bicycle path that the City is so concerned about (addressed further below) should be conditioned as part of a development plan for this site. The City will have ample opportunity to place under the microscope any subsequent development proposal for this property that affects land within the Willamette Greenway Overlay Zone and to ensure that such development is consistent with all applicable approval criteria. The reason this legal framework is discussed here is because the Applicant believes that the City is, in part, attempting to use considerations otherwise appropriate for development within the Willamette Greenway Overlay Zone to establish the location of the Greenway Setback Line. The SDC provides the standards to determine the location of the Greenway Setback Line, and it is inappropriate to inject standards and considerations, directed towards development within the Willamette Greenway, to the review process here. Applicable Review Criteria The applicable review criteria for this decision are provided by SDC 25.060. The City's August 26, 2005, memorandum argues that the Glenwood Refinement Plan (GRP) and the TransPlan also provide additional approval criteria. The City ens in its assertion. Generally, because the eight standards provided by SDC 25.060 do not expressly invoke any other standards (MetroPlan, GRP, Transplan, etc.), provisions from those documents cannot be applied as mandatory approval criteria. ORS 227.173(1). The Applicant recognizes that other documents, for example, the language contained in Goal 15, may provide guidance for interpreting and applying the eight SDC 25.060 approval standards. However, that does not mean that those other documents provide mandatory approval criteria. This may be a subtle distinction in some instances, but it is a significant distinction. This is especially so when a local government seeks to pick and choose policies from various planning documents to apply to an application. The approval criteria for this application are those provided pursuant to SDC 25.060. The Hearings Official should resist the temptation to impose any criteria not expressly invoked by those eight standards. The Applicant has discussed in previously submitted materials the reason why the GRP Willamette River Site Development Guidelines A. (GRP at 37-38) by its express terms does not • Hearings Official August 31, 2005 Page 4 of 8 apply to determinations that establish just the Greenway Setback Line and do not include a development proposal. Applicant will not repeat that argument here. The City argues that the temporary Greenway Setback Line of 150 feet, established by SDC 25.060, effectively makes the GPR Policy on page 37 a nullity if the GPR policy is interpreted as Applicant posits. The express language of each of those provisions says what it says. What the City's argument ignores is that the Glenwood Refinement Plan was adopted when Glenwood was under the jurisdiction of the City of Eugene. With that in mind, it is not surprising to find that the City of Springfield's provisions for the Willamette Greenway within the City do not mirror the GRP's policies for the Willamette Greenway within the Glenwood area, which is outside of the City limits. The two documents were not prepared by the same jurisdiction. What is important here, though, is that the two sets of requirements (the SDC requirement that no development can occur within 150 feet until the Setback Line is established and the GRP requirement that if development is approved before a setback line is established development must be located at least 20-35 feet from the top of bank) are not inconsistent. In both instances, development will be kept away from the top of the river bank until a Greenway Setback Line is established, as is required by Goal 15. Goal 15 is the ultimate, controlling standard here. It grants a lot of leeway to local jurisdictions. While each individual jurisdiction's plans and codes may be consistent with the policies and implementing measures provided by Goal 15, that does not mean that each jurisdiction's Goal 15 provisions mirrors those of every other jurisdictions'. The applicability of TransPlan is addressed in the following section. Bicycle Path The sole stated justification for the City's request of a 25-foot (expanded from the previously asserted 20-foot) Greenway Setback Line is to facilitate the construction of a riverfront bike path inside the Greenway Setback Line in the future. The City contends that the GRP and TransPlan provide standards to require a 25-foot Greenway Setback Line to accommodate the bike path. The Applicant raises several additional issues concerning the City's position. First, the City improperly relies upon TransPlan to assert that the Greenway Setback Line must be sufficiently wide to include a bicycle path(as opposed to a bike path being located in the broader Willamette Greenway). The policy/intent statement for TransPlan Bicycle Policy# 1 provides, in relevant part: "This policy also supports the construction of multiple-use bicycle/pedestrian paths along the Willamette River within the Willamette River Greenway and along the McKenzie River and other major drainage ways where practicable. Land use activities along these corridors should be done in a manner that allows the possibility of future bikeway construction." Transplan, Chapter 2, pages 31- • • Hearings Official August 31, 2005 Page 5 of 8 32. This policy expressly states a desire to locate bike paths in the Willamette River Greenway, not within the Greenway Setback Line. The City's assertion that the Greenway Setback Line must be established such as to permit a bike path within that line is not supported by TransPlan. Another important point to make here is that TransPlan is the refinement plan that pertains to transportation-related issues. The eight criteria under SDC 25.060 state nothing about considerations for transportation. Consequently, it is doubtful that TransPlan is related to any of the applicable approval criteria. The first criterion under SDC 25.060 references recreational purposes, but the relevant refinement plan to provide guidance on recreation-related issues is the Willamalane Parks and Recreation District Park and Recreation Comprehensive Plan. That document says nothing about bike paths in the Willamette Greenway. Second, the City's position is also not supported by the provisions concerning conditions of approval for site plan review applications. As noted above, SDC 31.070(1) provides that the City can impose conditions of approval to require dedications of right of ways when shown in TransPlan. Those rights of ways are obtained as part of development proposals. The SDC standards for the Willamette Greenway Overlay District expressly invoke the site plan review standards for review of development proposals. SDC 25.040. Consequently, the mandate to accommodate bicycle paths as envisioned by TransPlan and other plans is properly done as part of a development proposal as opposed to an application to establish solely the Greenway Setback Line. Third, the City's position is inconsistent with Goal 15 and the GRP. The City's argument is that a minimum Greenway Setback Line of 25 feet is needed to accommodate a bicycle path along the Willamette River. Under that argument, in those narrow portions of the Greenway Setback Line, all riparian vegetation would have to be removed so that a paved bike path with gravel shoulders could be located there. This is patently inconsistent with the stated intent of Goal 15 and the GRP to keep structures separated from the river in order to protect, maintain, preserve and enhance the natural qualities of the Willamette River Greenway. The Applicant also wishes to reiterate the point made in a footnote in the post-hearing letter dated August 17, 2005. Applicant has very serious reservations as to whether a 25-foot paved and graveled bicycle path can be considered a "water-dependent" or "water-related" use as that term is used in the Statewide Planning Goals. Those terms are defined in the Goals. It has been Applicant's counsels' experience that those terms are strictly interpreted and applied by LUBA and the courts. The Applicant realizes that, from one perspective, he may be shooting himself in the foot by asserting that the need to accommodate a bicycle path is not a proper justification for where to establish the Greenway Setback Line. This is because, in the end, it means that any future bike path must be incorporated into the development plan for the remainder of the site. However, • • Hearings Official August 31, 2005 Page 6 of 8 given the legal framework established by Goal 15, the implementing rules, the SDC and relevant plan provisions, that is the way the system has been set up. The time for the City to exact a bicycle path for this property is not during the establishment of the Greenway Setback Line, but when a development application is submitted for development within the Willamette Greenway Overlay District. When one steps back and examines the legal framework surrounding the Willamette Greenway and the Greenway Setback Line, that becomes readily apparent. The Hearings Official should not base the determination for the location of the Greenway Setback Line upon any consideration for a paved bicycle path. City Request for Decision Authorization to Reopen Greenway Setback Line The City's memorandum requests a determination from the Hearings Official that the Greenway Setback Line established during this decision can be open to alteration during the required Type III Discretionary Use hearing at a future date. The City offers no legal basis upon which such a decision is authorized. That request flies in the face of the SDC, which provides that the Greenway Setback Line can be established without a development proposal. Why would any party incur the costs to establish the Greenway Setback Line only to have such determination be tentative, subject to change at the City's whim as part of a later development application? The reason the Applicant offered to have the Greenway Setback Line surveyed is to avoid having any doubt about the location of that line at the time of development. Certainty as to the location of the Greenway Setback Line is what this process is all about. The criteria for determining the Greenway Setback Line are provided by SDC 25.060. The application of those criteria should result in the same determination, whether the request to establish the line is submitted with a development proposal or without. The location of the Setback Line is not dependent upon what development is proposed. The result of the analysis should be the same, whether it is done now or later, with or without a development proposal, at the property owner's request or the City's request. Once established, the Greenway Setback Line is established. There is no reason why the location of that line should be revisited, especially since development within the Willamette Greenway outside of the Greenway Setback Line is subject to intense discretionary review. It appears as if the City's request is being made without regard to the express language of SDC 25.070. The City seems to be afraid that certain criteria applied in this Greenway Setback Line determination will not apply to a request to construct on the property. That somehow, because this application is submitted without a development proposal, future development proposals on this property within the Willamette Greenway Overlay District will avoid serious review. The City's fears are unfounded. In addition to the discussion presented above, the Applicant notes that SDC 25.070, the development standards provision for the Willamette Greenway Overlay District, provides: • • • Hearings Official August 31, 2005 Page 7 of 8 "In addition to Discretionary Use criteria specified in Section 10.030 of this Code, applications in the WG Overlay District shall also meet the standards specified in Section 25.060 of this Article." By expressly invoking SDC 25.060, SDC 25.070 ensures that the same eight SDC 25.060 criteria used to review Greenway Setback Line applications will be used to evaluate any development application within the Willamette Greenway Overlay District. That is the case whether development is proposed inside or outside of the Greenway Setback Line. The Greenway Setback Line does not need to be revisited in order to ensure that the SDC 25.060 criteria apply to development proposals on the subject property within the Willamette Greenway Overlay District. The Hearings Official should deny the City's request to incorporate into his final decision authorization for the City to alter the established Greenway Setback Line. Conclusion With the application materials, the August 17, 2005, post-hearing letter, and the staking of the subject property, the Applicant has demonstrated that the proposal satisfies the approval criteria for establishing the Greenway Setback Line provided by SDC 25.060. The City disagrees with Applicant's proposed location for the Setback Line. However, the arguments used by the City to justify why the setback line should be up to 15 feet wider along portions of the Willamette River are based upon policies, standards and documents not invoked by the SDC 25.060 criteria. Because they are not applicable standards, those justifications represent overreaching by the City. It should know better. The Greenway Setback Line is to be determined by applying the SDC 25.060 criteria. Once established, there is no sound reason why the location of the Greenway Setback Line should be revisited. The Applicant has demonstrated above that any development proposal within the Willamette Greenway Overlay District will be subject to discretionary review under the same criteria that were used to establish the Greenway Setback Line. The Hearings Official should deny the City's request to incorporate a provision in this Greenway Setback Line determination that would allow the City to revisit the location of that line during any future development applications. The Hearings Official should also deny the City's request to expressly state what other approval criteria are to apply to a future development application for the subject property. Applicant has explained that doing so can only cause confusion as to the relevant review criteria for a development application if, for some reason, some of the standards were to change before a development application is filed. Any future development on the property will be subject to all of the applicable criteria in effect at the time the development application is submitted. The • Hearings Official August 31, 2005 Page 8 of 8 Applicant has no objection to the Hearings Official noting in the decision that a future application for development on the property will be subject to additional discretionary review; Applicant's concern is with a listing of particular standards. The Applicant also recognizes the importance for all concerned parties to know precisely where the Greenway Setback Line has been established. Consequently, the Applicant believes it would be appropriate for the Hearings Official to include a condition of approval that the location of the Greenway Setback Line, as determined by the Hearings Official's decision, shall be surveyed and mounted, and that the survey will be filed with the City. The Hearings Official should approve the application to establish the Willamette Greenway Setback Line for the subject property. Where the Hearings Official disagrees with Applicant's proposed location for the line, the Hearings Official should provide in the decision guidance as to its proper location and the reasoning why that location should differ from the Applicant's. Sincerely, Dan Terrell cc: Client Colin Stephens